No cell tower while appeal pending, mayor says

Peabody Mayor Ted Bettencourt speaks to residents of Ward 1 at the Brown School on Lynn Street about a proposed cell tower at Michael’s Limousine.

PEABODY — Mayor Ted Bettencourt tried to clear the airwaves when it came to the status of a legal appeal of a controversial cell tower planned for land behind Michael’s Limousine at 161 Lynn St., during a neighborhood meeting Tuesday night.

“Verizon cannot put that pole up until all those appeals are exhausted,” said Bettencourt during an hour-long meeting with more than 100 concerned residents, city councilors and council candidates. They gathered at the Brown Elementary School on Lynn Street, which sits about a block north from the proposed cell site.

Bettencourt said it was his wish that a separate agreement between the city’s light plant and Verizon Wireless to hang small cell antennas on 14 Peabody Municipal Light Plant poles would avoid one big pole at the limo company. 

Those in attendance applauded as the meeting broke up, though some, like Kim Gale of Lynn Street, questioned whether it was wise for the mayor to put all the city’s cell tower strategy eggs in the PMLP agreement basket. 

“To me, this is the right way to go,” Bettencourt said.

Bettencourt said the agreement will resonate outside of South Peabody as it could set a precedence on what providers — rolling out more powerful 5G service — will pay municipal utilities to locate small cells on poles.

Bettencourt insisted all legal appeals have to be exhausted before any cell tower can be built. 

The appeal has dragged on for five years as a number of alternatives have been explored, including a cell tower on city land at Coolidge Avenue, a city-wide distributed antenna system, and Verizon Wireless siting its own poles for small cell antennas. None of the ideas have come to fruition.

The legal appeal could take up 18 to 24 months, by which time Bettencourt hopes an agreement would be struck with between Verizon Wireless and PMLP.

There has been renewed concern in the neighborhood after Verizon Wireless scored a legal victory on March 27 in Land Court of the City Council’s 2014 denial of a special permit for a cell tower meant to fill a gap in coverage.

Bettencourt said the city has won a 30-day extension for its appellate attorney to get up to speed on the case. It won’t be until Oct. 18 that the city files its brief. Verizon Wireless will have then 40 days to answer. It could be another three to four months before the case is heard.

Even after the case is heard, it could be months before a decision is made. If the city loses, it could then appeal to the state Supreme Judicial Court, Bettencourt said.

Another way

However, Bettencourt signaled he was hopeful Verizon Wireless and the light plant could strike a deal. That the negotiations have dragged on has led to a sense of frustration by the city and the neighborhood, he said.

“PMLP has been working with us,” he said, “I would like it to be faster.”

The sticking point, he said, is price.

State and federal telecommunications regulators recommend a one-time attachment fee for the antenna of $500 for each pole, Bettencourt said, with Verizon asking for a little less and PMLP a little more. 

Both sides are also negotiating the annual fee to use the poles, which regulators recommend at $270 a year for each pole.

The need for the meeting

Tuesday night’s meeting was sparked after Councilors-at-Large Anne Manning-Martin and David Gravel were defeated in a 4-5 vote on Aug. 22, in their motion for the city solicitor to seek a stay in court to prevent the cell tower from being built.

Bettencourt, in his Sept. 6 letter to the council, outlined the need for Tuesday’s meeting “to clear up confusion and misinformation.” 

He wrote that “motions for legal action cannot be initiated upon the request of individual members of the council. Doing so, despite the best of intentions, may have negative consequences to the City Council’s authority and to the city’s litigation strategy and position.”

After the vote, Manning-Martin emailed former City Solicitor Michael Smerczynski on Aug. 27 asking “as you are my attorney in the cell phone litigation, please consider this my formal directive to file a motion to stay construction of a cell tower at Mike’s Limousine pending the outcome of the appeal.”

Manning-Martin said she did this because she was named in the Verizon Wireless appeal, and that the city’s attorney should also represent her interests. Manning-Martin said Tuesday morning she had yet to receive a response to her request.

“I want to defend myself and I have a right to defend myself,” said Manning-Martin, who has been a vocal opponent of the cell tower in South Peabody from the start. Bettencourt noted that in this case, the city and the neighbors are on the same page when it comes to wanting to block the South Peabody cell tower.

After Tuesday’s meeting, Manning-Martin said she learned a lot, and noted the mayor was “very confident” Verizon Wireless cannot build the tower while the appeal is pending.

“I hope he is right,” she said.

The City Council, meeting as the Committee of the Whole, plans to meet in executive session on Thursday, 7 p.m., to discuss the city’s cell tower appeal.

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