Pittsfield Residents File New Litigation Over Cell Tower
PITTSFIELD, Mass. — Shacktown neighborhood residents have filed new litigation against the city in relation to a Verizon cell tower at 877 South St.
On Wednesday, they filed a suit to disqualify Donovan O'Connor & Dodig law firm from representing the city and a request for default after the defendants did not answer a suit filed in July.
It alleges that the law firm, with whom City Solicitor Stephen Pagnotta is a managing partner, has "disqualifying conflicts of interest" because Pagnotta is one of the defendants and has admitted to not having expertise in cell tower litigation in the past.
This comes after the residents' lawyer Scott McCollough received a letter signed by attorneys Buffy Lord and Gregory Howard under the letterhead of the law firm of Donovan O'Connor & Dodig LLP reporting that the Board of Health is in the process of preparing an administrative record needed for the July litigation.
"We are simply looking for the board to get the independent legal counsel under state law and under the separation that they have from the city that they really deserve," Alma Street resident Courtney Gilardi said.
"They can't find solutions or move forward without the legal expertise, whatever that solution is, because they are committed to finding solutions but in order to do that, they need to have unbiased legal representation."
On Friday, McCollough received notice that the court has decided not to automatically issue a finding of default and has set a deadline of Nov. 30 for all the non-board defendants to answer the motion for a finding of default.
The tower was erected in August 2020 and Gilardi and her daughter have spoken during open microphone at City Council meetings about the negative health effects they say are from electromagnetic fields (EMF) generated by the antennae on the 115-foot monopole. They have also reported residing in an alternate location because of the effects.
Five other Shacktown residents joined Gilardi in the legal action: Charlie and Judy Herzig, Mark and Angelika Markham, and Elaine Ireland.
On July 28, a civil action suit was filed in Berkshire Superior Court against Mayor Linda Tyer, City Solicitor Stephen Pagnotta, Pittsfield Cellular Telephone Co. (Verizon Wireless,) and the Board of Health.
It is an appeal of the board's June decision to rescind a cease-and-desist order after the telecommunications company filed a case against the city of Pittsfield in federal court and is a request for declaratory relief.
The suit alleges that the decision to rescind the order was in excess of, or in derogation of the board's authority or jurisdiction; that it was tainted and rendered unlawful by the illicit actions of the mayor, city solicitor, and/or others under the mayor's influence and control; and is not supported by substantial evidence.
There are four counts: an appeal of the decision, the mayor's refusal to enforce the board order, city solicitor conflicts of interest and improper coercion, and declaratory judgment.
The defendants, excluding the BOH, had 20 days to respond and did not. Verizon did file a notice of appearance to say it had an attorney involved in the case.
The board has 90 days to prepare an administrative record consisting of minutes and all documents submitted in relation to the cell tower. This is what prompted the letter from Lord and Howard.
McCollough said it is important to think about what is at stake during this process. He added that the plaintiffs want the same thing that the board wanted when it issued the cease-and-desist order: for Verizon to show up and meaningfully discuss solutions.
Gilardi said the board worked to identify lawyers that they felt had relative experience and deserve to have that.
"I think everybody wants to see us go home. Everybody wants to find solutions and we're simply asking for Verizon to show up with those solutions because every day we wake up and we are not in our beds, we are reminded of the situation that we are in," she said.
"Every day we have neighbors who are sick in their homes, or who are displaced like we are, we are just reminded not that this isn't being addressed, but people are actively working in the city to not get us the remedy that we seek."
She applauded the Board of Health's efforts, saying the members have been "incredible" in treating the residents with dignity and respectfully listening to testimonies.
"The reason why we did this litigation back in July was to get them the legal expertise that they need. It was to free them, was to liberate the board so that they could move forward with whatever the next steps are," Gilardi added.
"Because we know that they are committed, they have said that time and time again, in every meeting, 'we are committed to finding solutions, we are committed to finding solutions,' but how can you find solutions unless you have the technical expertise, the legal know-how, and the resources to do that work? Whatever that work is, whether that's reinstating the cease and desist, or whether that's something else. They need to have that guidance."
Tags: cell tower, lawsuit,
