CLARKSBURG, Mass. — Town officials are close to reaching an agreement over a lawsuit filed by Verizon over the denial of a cell-tower permit but an abuttor is pressing them not to forget how the tower's location might affect his property. 

 

Bryan Tanner, who is also the town moderator, appeared at last Wednesday's Select Board meeting to press officials on which spot at the former North Adams Country Club was under discussion for the placement of a 140-foot monopole. 

 

"Obviously Verizon has been successful in their court appeal and I've had to accept the fact a tower will be on that property," he said, but wondered if the location closest to his property was being weighed in the agreement. "At this point will ask the board a question: site No. 1, is that currently under consideration?"

 

Chairman Ronald Boucher said the board couldn't speak to the issue at this point. "We're going into executive session so I can't give you a yea or nay."

 

The town is expected to file an agreement with the telecommunications company by Friday, Oct. 5. Pittsfield Cellular Telephone Co., operating as Verizon Wireless, filed a lawsuit in federal court a month after the Planning Board denied its application for a permit last year. 

 

A status update filed Sept. 14 for the case in U.S. District Court in Springfield states the parties are "presently negotiating the specific terms of an Agreement (the general terms of which have already been drafted) in order to account for the interests of all affected parties and address all issues that have arisen with respect to the siting of the wireless communications that is the subject of this case."

 

The suit, filed on June 19, 2017, says the decision to deny the application was broadly stated as failing to comply with "all requirements set for in this bylaw" but does not specify what has not been met or what evidence was used to determine the asserted noncompliance.

 

The company is asking the court to declare that its rights have been violated and annul the decision by the Planning Board, and to order the board to grant the special permit and zoning approvals. Verizon is also asking that it be awarded "reasonable attorneys' fees and costs incurred in this action."

 

The Planning Board denied the permit on May 9, 2017, citing the applicant's failure to comply with the recently approved cell tower bylaw, including failing to prove that it needed to site another tower within five miles of an existing one (on Florida Mountain) and that it would have an adverse effect "on historic resources, scenic view, residential property values and natural and man-made resources."

 

The owner of the former golf course, Todd Driscoll, has been trying find ways to generate revenues at the 83-acre site after plans to refurbish the course fell through. The cell tower came on the heels of a solar array installed on the property. 

 

Verizon had countered in several formal and informal sessions of the board that another tower was critical to meeting the increased data demands in the area. Siting a tower at the town's covered landfill or in Stamford, Vt., wouldn't reduce the load for the northwest-facing tower on Florida Mountain. 

 

Residents and abuttors along River Road (Route 8) turned out in force largely in opposition to the tower, citing potential declines in property values and unsightliness. Bryan Tanner, whose 53 acres is surrounded on three sides by the golf course property, was particularly concerned about the proximity of the tower to his land. 

 

Verizon's suit takes issue with the changes in the composition of the Planning Board during the course of its application and the placement on the board of Town Administrator Carl McKinney, who lead much of the discussion during the public hearing and the vote. McKinney created a conflict of interest, claims Verizon, because he had not disclosed that he, too, lived on River Road across from the course. 

 

The town's response denies the claims made by Verizon, including an assertion that McKinney was the chairman at the time and states he "lives a considerable distance from the site of the proposed facility." McKinney lives across a street and a river from the course and there is another property between that roadway and the steep banking leading up to the course. 

 

But while the town may be closing in on a settlement, Tanner is worried that Verizon can now dispense with the compromise location it had put forward to the Planning Board. 

 

Verizon had initially proposed a 125-foot pole within 35 feet of Tanner's property line. But to meet the town's telecommunications bylaw, the tower had to be set back at least 150 percent of its height from the closest property line. So two other sites were considered: one (Site No. 3) was deemed too close to the solar array and the other, a 140-foot pole, would be located behind the old clubhouse. A balloon test was done of the latter location, Site No. 2.

 

Tanner said he'd connected Verizon about compensation and, on Sept. 4, had been told by the attorney that the company didn't need to negotiate because the town was making an agreement. Negotiations have been done in executive session leaving those most affected by the decision out of the loop, he said.

 

"My concern tonight it the town will negotiate for a tower site that will allow the tower to be 35 feet from my property," he said. And along with the tower will come barbwire-topped fence, distribution box and propane tank. "Nobody has contacted me about this negative effect on my property so I have a real problem with that."

 

He could live with site No. 2 but hoped more pressure had been brought to bear on the company to reconsider the covered landfill, which would give the town almost $1.2 million in leasing fees over the next 20 years. 

 

"I clearly understand your concern," Boucher said. "We have to do what's best for the town and we're going to have to move forward."