PEABODY — Councilor-at-Large Anne Manning-Martin said residents want to know what's happening with a nearly five-year legal battle over a proposed Verizon Wireless cell tower on Lynn Street.

At the council's meeting last week, she asked if the council would back a motion to have the city solicitor file a stay to prevent the tower from being constructed while the city appeals an earlier court ruling, in which a judge instructed the council to grant the necessary permits.

But the motion, by Manning-Martin and Councilor-at-Large David Gravel, failed in a 4-5 vote, with two councilors absent. Those opposed said such legal maneuvering would best be discussed behind closed doors with the city solicitor.

City Council President Jon Turco, who represents Ward 1 where the cell tower would be located, strongly opposed the motion for a stay. 

"I'm actually appalled that this was even brought up in open session, that this whole case has been discussed in an executive session for a reason so as to not put the city in a bad position," Turco said. He said the city solicitor would be the one to decide on whether to file a stay or not.

The proposed 60-foot cell tower would be constructed behind Michael's Limousine Company at 161 Lynn St. Neighbors against the tower have put up "No Cell Phone Tower" signs around the neighborhood. 

For almost five years, the city has been fighting with Cellco Partnership, which does business as Verizon Wireless, which wants to install the tower to fill a coverage gap in South Peabody. 

The tower plan has faced a number of failed alternatives, from a cell tower at the Coolidge Avenue water treatment plant (which has sparked a separate legal appeal), to a distributed antenna system created by another company, to a proposal to attach small cell antennas to Peabody Municipal Light Plant poles.

At the end of March, a judge ruled against the city and sent the matter back to the council, instructing it to grant Verizon Wireless a special permit and other permits for the cell tower, something the council had denied back in 2014, sparking the appeal.

The city has signaled it plans to appeal, filing a notice of appeal with the state Appeals Court. City Solicitor Michael Smerczynski could not be reached for comment; Mayor Ted Bettencourt announced late Tuesday Smerczynski was stepping down from his post and returning to private practice.

Small cells the answer?

There is a parallel track that could make the need for the cell tower, and the lawsuit surrounding it, moot.

Peabody Municipal Light Plant, the city's municipal electric utility which is a separate entity from the city, has been in negotiations with Verizon Wireless on terms to use of PMLP power poles for 14 small cell antennas in South Peabody. In the past, the two sides could not come to terms.

But Charles Orphanos, the light plant's manager, said Tuesday that near the end of June, PMLP submitted its costs to attach to its power poles to Verizon Wireless.

He said the electric utility documented its attachment costs and application fees, following along with a declarative order of the Federal Communications Commission that requires the light plant to make its poles available at reasonable terms and conditions.

Verizon Wireless has since replied, and last week the utility held an internal meeting and finalized its response. Orphanos expects to sit down with the carrier in a couple of weeks to negotiate.

"I fully expect to sit down at the table to hammer out an agreement which will allow them to attach to existing poles," Orphanos said. 

The issue, Orphanos said, is the agreement with Peabody is not simply about 14 pole attachments in South Peabody, but rather has "national implications." That's because small cells are the backbone of new 5G high-speed wireless technology being rolled out across the country. Orphanos said for PMLP, the goal is to get a master agreement in place not only for Verizon Wireless but for other carriers that may come along wanting to attach to their power poles.

The disagreement

At the Aug. 22 council meeting, Manning-Martin said residents following the case have told her a stay had not been filed in Land Court to prevent the cell tower. She added that the city's briefs in the appeal were due by Sept. 17. The appeals process could take 18 months to two years, she said.

"Simply because it's in appeal doesn't mean that Verizon cannot put up the cell tower," Manning-Martin said. 

"It gives the city more time to enjoy the fact there is not going to be a booming tower sitting there while we go through the appeal process," Gravel said of the stay.

Ward 6 Councilor Mark O'Neill said that since this was a matter of active litigation, it would best be discussed behind closed doors at a meeting next month.

But Manning-Martin said there is a safeguard — if the mayor disagrees with the motion, he could veto it. 

Ward 4 Councilor Edward Charest and Ward 2 Councilor Peter McGinn both agreed with O'Neill. So did Turco, who was surprised councilors did not consult him, given the cell tower is proposed in the part of the city he represents.

Gravel told Turco he had the right to bring this legal matter and other matters before the council.

"So, don't be appalled," said Gravel. "Any councilor has the right to bring up an issue in motions, orders and resolutions. You have the right to disagree, but I don't think any councilor needs to be reprimanded for bringing up an issue, and I take offense to a reprimand of that nature."

Gravel said if Turco does not like the motion for stay, he should just vote against it.

Turco added that "all of sudden because it's an election season, we want to bring this out to open session. That's great, but not with my support."

"Well, it certainly has nothing to do with me wanting to get elected," said Gravel, who retiring from the council.

Manning-Martin took "umbrage" to Turco's comments about this being about the election.

"It is a harmless motion, as I stated, but very harmful if we don't put a stay in for them to put up that tower, because they can," Manning-Martin said. "And if I'm wrong, it's harmless, no big deal." 

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