Jonathan Lawless, et al. Plaintiff's Attorney Lynne Williams, Esq.
Defendant's Attorney Stephen Langsdorf, Esq. Neal Pratt, Esq. (Intervenors) Jonathan Pottle, Esq. (Intervenors)
Petitioners Jonathan, Ed, Kathy and Jesse Lawless filed a M.R. Civ. P. 80B appeal challenging the decision of the Board of Appeals of the Town of Vienna to grant a permit to Intervenors Global Tower Assets, LLC ("GTA") and Northeast Wireless Networks, LLC ("NWN") for the construction of a cell phone tower on a lot abutting land owned by the Petitioners. Petitioners contend that the Board of Appeals: 1] lacked jurisdiction over Intervenors' appeal of the underlying Planning Board's Decision; 2] misinterpreted the language of the Wireless Ordinance; and 3] erred in failing to reconsider their decision as requested by Mr. Weingarten.
NWN is the holder of a Federal Communication Commission ("FCC"] license authorizing the provision of personal communication services to the Town of Vienna and surrounding area. GTA works with wireless carriers such as NWN to identify, develop, and construct appropriate sites for the development of personal wireless service facilities, such as the telecommunications tower at issue (the "Tower"). Petitioners own property that abuts or is located close to the Tower. For purposes of the present appeal, Repondent Town of Vienna ("Town") includes two discrete instrumentalities: 1) a Planning Board and 2) a Board of Appeals.
In September 2013, Intervenors submitted an application to the Planning Board for local approval of their telecommunications tower pursuant to the Town's Wireless Telecommunications Facilities Siting Ordinance ("Wireless Ordinance"). Petitioner Ed Lawless served on the Town's Planning Board, but recused himself due to the conflict of interested created by his-and his family's-proximity to the Tower. On May 13, 2014, the Planning Board issued a written decision finding that Intervenors met all of the Wireless Ordinance review standards except for the safety setback standard set forth in Section 7.2(E). The Wireless Ordinance setback standard provides, in pertinent part:
(1) A new or expanded wireless telecommunications facility must comply with the setback requirements for the zoning district in which it is located, or be setback one hundred five percent (105%) of its height from all property lines, whichever is greater. The setback may be satisfied by including the area outside the property boundaries if secured by an easement. The following exemptions may apply:
a) The setback may be reduced by the Planning Board on a showing by the applicant that:
(i) The facility is designed to collapse in a manner that will not harm other property;
(ii) Ice build-up and discharge will not present a public safety hazard; [and]
(iii) Any hazard, guywires or tower structure will not adversely affect public safety.
Interpreting this language the Planning Board's primary consideration was whether or not to grant an exemption to the setback requirements of the Ordinance. Its chairman explained that the Ordinance says the Planning Board "may" grant a setback if certain conditions are met, not that the Planning Board must grant an exemption. While the ordinance does not offer guidance as to what conditions the word "may" apply to, its chairman believed it could apply to "visual impact, effectiveness of coverage, safety, characteristics of the offended abutting property and probably some other factors." The chairman's comments focused on the safety and characteristics of the abutting property. He explained that: 1) the Intervenors did not adequately respond to his concerns about the Tower collapsing under wind forces that were stronger at the bottom of the Tower than the top; 2) he believed that while it was unlikely to occur, the movements of the Tower if it collapsed could sling ice onto adjacent property; and 3) the abutting property is residential, creating a "potential, albeit small, safety hazard" to the abutting residential property owner. The Planning Board voted 4-0 against granting a setback exemption under Section 7.2(E) because of the aforementioned safety concerns.
Intervenors filed a timely administrative appeal on May 20, 2014, pursuant to Section 10 of the Wireless Ordinance. ("Any person aggrieved by a decision of the Planning Board under this ordinance may appeal the decision to the Board of Appeals"), After receiving Intervenors' administrative appeal, the Town discovered there were no records that a municipal board of appeals had been lawfully established by the Town's legislative authority. On August 19, 2014 a special town meeting was held and the Town voters adopted a Board of Appeals Ordinance to lawfully constitute a Board of Appeals. Appeals were filed following the adoption of the Board of Appeals Ordinance to be reviewed using an appellate review standard. Pending appeals-such as the Interveners'-"shall be heard and decided under a de novo review standard consistent with the regular administration of appeals under 30-A M.R.S. § 2691." (Board of Appeals Ordinance §V(E).)
On November 24, 2014, the Town Board of Appeals held a pre-hearing meeting to review the scope of Intervenors' administrative appeal, and to schedule a site visit and hearing. Petitioners did not attend this pre-hearing meeting and did not object to the Board of Appeals proceeding with a de novo review, nor did any party or person raise any issues other than the safety setback standard. On January 13, 2015, the Board of Appeals conducted a properly noticed site visit and de novo hearing. At the hearing, Intervenors presented testimony regarding the Tower's safety design as well as documentary evidence. At the hearing's conclusion, the Board of Appeals rendered its decision by unanimously voting that Intervenors had satisfied the safety setback standard of the Wireless Ordinance, and subsequently issuing its Notice of Decision granting Intervenors' administrative appeal and approving their Tower application.
The Notice of Decision explained that based on the evidence submitted "the telecommunications facility proposed by GTA and NWN was designed to collapse in a manner that will not harm other property or adversely affect public safety, and that ice build-up and discharge will not present a public safety hazard." From this factual finding, the Board of Appeals concluded:
[A]s a matter of law that the telecommunications facility proposed by GTA and NWN satisfies the alternate setback standard set forth in Section 7.2E of the Ordinance because GTA and NWN have shown (i) the facility is designed to collapse in a manner that will not harm other property; (ii) ice build-up and discharge will not present a ...