Judge to decide whether Pittsfield cell tower protest goes to trial

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PITTSFIELD — The judge handling a dispute over a new Pittsfield cell tower hinted Tuesday that neighbors might not have received the notice that the law requires.

But, Berkshire Superior Court Judge Douglas H. Wilkins still has the matter under review, after listening to opposing counsel make their cases on the fate of a new Verizon Wireless communications tower that now stands near the top of Alma Street on the city's south side.

"I have not resolved any of this in my mind," Wilkins told lawyers for the city's Zoning Board of Appeals, Verizon Wireless and abutters, at the start of a half-hour telephone hearing.

The last time the attorneys went before a judge on this case, on May 7, the site for the 115-foot cell tower was being prepared. Today, the tower appears to be largely complete. Neighbors sought an injunction stopping the project, but that request never was ruled on by Judge Maureen Hogan, who initially heard the case.

It falls now to Wilkins to decide whether to grant a request by the city and Verizon Wireless to rule that neighbors waited too long to appeal a ZBA decision reached in late 2017.

Neighbors want to keep the case alive and see it go to trial.

The city maintains that it sent notices of the tower project to abutters in 2017, as required by state law. A large group of neighbors, though, claim that they did not receive the city's mailings.

Attorney Buffy Lord, representing the ZBA, pointed to an affidavit by Nate Joyner, a city employee, saying he prepared a list of abutters and sent notices by mail.

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That action, Lord said, is enough. The city met its duty by putting notices in the mail.

"Receipt of the notice is not required by statute," she said. If the Legislature had wanted hard evidence that municipalities had notified abutters of projects that need special permits, it would have put that into the law and required proof through receipts, she said.

There is evidence that some forms of notice were provided — including in a legal ad in The Eagle. One resident of a nearby neighborhood attended the special permit hearing in 2017.

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"In this case, it was clear that there was notice," Lord said. The 20 days that abutters initially had to appeal is long past, she noted.

"And cannot be resurrected at this time," Lord said.

Jeffrey Scrimo, a Lenox attorney representing neighbors, urged Wilkins to allow the case to continue past the summary judgment sought at this point by the city and Verizon Wireless.

He argued that the case cannot be decided on legal precedent alone, since facts are in dispute.

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By that, he means the question of notice.

"The circumstantial evidence is overwhelming here," Scrimo said. He told Wilkins that he is prepared, at trial, to show that about 20 nearby Pittsfield households did not receive notice about the proposed tower, harming his clients.

"My clients did not attend the hearing, only because they did not know about it — and would have otherwise," he said. The first they learned of the project is when construction trucks arrived early this year.

"The plaintiffs immediately brought suit, even in the middle of a pandemic," Scrimo said. "My clients responded to this issue as soon as they learned of it."

Wilkins said that if he were to rule now, he likely would acknowledge the circumstantial evidence of missing notices.

"I would have to assume the city did not send notice to some people," the judge said. "Because so many people didn't get it."

Larry Parnass can be reached at lparnass@berkshireeagle.com, at @larryparnass on Twitter and 413-588-8341.


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