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Court rules against cell tower plaintiffs
OTISFIELD — Oxford County Superior Court has ruled that The Friends of Scribner Hill and plaintiff John Poto have no legal standing to force a reconsideration of the Otisfield Planning Board's approval of a cell tower. The ruling leaves three remaining plaintiffs active in the case.
A little more than a year after the Planning Board gave the go-ahead to U.S. Cellular to construct an 180-foot telecommunications tower on Scribner Hill, Justice Robert Clifford issued an order that resolves some of the long-standing issues.
"The clock is moving,” First Selectman Hal Ferguson said Monday morning.
In the order signed Jan. 31, Justice Clifford said The Friends of Scribner Hill is an unincorporated association and does not have standing to challenge the decision of the Board of Appeals last spring that upheld the Planning Board's January 2012 approval to build the tower.
Further, Clifford has ruled that Poto has no legal standing because he has not been directly aggrieved by the action of the appeals board.
That order leaves Kristen Roy, James Gregory and Joseph Brown as plaintiffs.
The judge has also dismissed with prejudice two complaints by the plaintiffs who alleged violation of Maine's Freedom of Access law and a request for a trial of the facts. Clifford said the plaintiffs' actions are simply an attempt “to evade the time limit requirements of the Otisfield Board of Appeals.”
Dismissal with prejudice means the plaintiffs can not bring the same action back before the Oxford County Superior Court, according to court officials.
The plaintiffs have 45 days to reply to the order. The town then has 30 days to reply to any new amended motion the plaintiffs may file. The plaintiffs have another 10 days to reply to that. If the plaintiffs do not file a response within that that time, the court will dismiss the case.
Roy declined to comment on the ruling Monday saying, “It's ongoing. We're working it out.”
The cell tower application was approved in January 2012, but construction has been held up by four appeals by The Friends of Scribner Hill and individuals. The group claims planners did not follow town ordinances and the comprehensive plan in making their decision. It asked that the issue go back to the Planning Board for a full hearing. The appeals to the appeals board in 2012 were each denied.
The appeal to Superior Court in Paris, which took over the case last summer, sought an order to have the case be sent back to planners for a full hearing.
In mid-December, the Board of Appeals made a final denial of a request to reconsider its Nov. 15 decision not to send the Scribner Hill communications tower application back to the Planning Board for a full hearing.
The unanimous decision was based on the determination that the request from Roy on behalf of The Friends of Scribner Hill came after the 10-day deadline for reconsideration, according to Ferguson.
The appeals board's Nov. 15 rejection of the appeal by The Friends of Scribner Hill came after nearly three hours of testimony at the Otisfield Community Hall. The appeal was based in part on the group's claim that the appeals board failed to consider evidence from The Friends group and did not meet some criteria set in the town's wireless communications ordinance.
Among the issues Poto and other plaintiffs addressed during the Board of Appeals hearings was their belief that proper notification of abutters was not given, the Planning Board's failed to meet some criteria set in the town's telecommunications ordinance and the board's failed to address residents' concerns.
Another issue raised by the plaintiffs was the location of the tower. Roy said Poland residents on Thompson Lake, and not Otisfield residents, appear to be the primary beneficiaries of the tower.
While acknowledging that some mistakes were made in the notification of abutters, the Board of Selectmen contended throughout the process that U.S. Cellular met the requirements of the town's telecommunications ordinance.
The tower is to hold equipment for cellular phone companies and the town's Fire Department.
The 13-page telecommunications ordinance, approved in 1999, lays out everything from the application requirements to documentation on whether the project has any adverse effect on scenic resources, historic resources, tower color, landscaping and other items.
Selectmen have said the ordinance should be reviewed in the future with an eye toward updating the document.