PEABODY — A nearly five-year-old pitched legal battle between Peabody and Verizon Wireless over cell phone towers could be resolved soon.
The city's attorney said Wednesday both sides appear to be nearing an agreement to allow the telecommunications giant to install small cell antennas on Peabody Municipal Light Plant poles.
City Solicitor Michael Smerczynski said a deal between PMLP and Verizon Wireless was close and both sides were looking to come to a resolution, which would in turn settle the ongoing legal cases against the city.
This had all started in 2014 after the council's rejection of a proposed 60-foot cell tower behind Michael's Limousine at 161 Lynn St. Verizon Wireless said it needed the tower to fill a coverage gap in the area.
"They are very close to a resolution to this issue," said Jon Turco, the City Council president and Ward 1 councilor, earlier this week, "and I hope the light plant will help us." PMLP is a nonprofit municipal utility run separately from city government.
Meanwhile, Verizon Wireless has gone to court with a renewed motion for summary judgment, asking a judge for an injunction to force the city to give it permission to put up the cell tower in a residential neighborhood in South Peabody — a project residents had decried as an eyesore.
"It doesn't belong in the middle of a residential neighborhood," Turco said.
Smerczynski said he took part in oral arguments before Land Court Judge Jennifer Roberts in Boston on Tuesday.
The sentiment of the judge, according to Smerczynski, was that there has been five years of litigation and no alternative for Verizon to deploy its wireless assets.
The Telecommunications Act of 1996 is supposed to remedy what appears to be an effective prohibition of telecommunications facilities. He said the judge took the case under advisement.
Following the council's August 2014 rejection of the cell tower off Lynn Street, councilors also rejected a cell tower at the end of Coolidge Avenue at the city's water treatment plant.
Other alternatives included the creation of a citywide distributed antenna system that never came to be, Verizon installing its own utility poles around the area to carry its own antennas, and the use of existing PMLP poles for those antennas. The deal in the works will focus on attaching antennas to PMLP poles.
In Verizon Wireless' November court filing, it said the light plant had previously proposed a one-time fee of about $750,000 for setup and a year’s worth of fees for pole usage and fiber optic cable, and reoccurring monthly pole and fiber fees, even though Verizon has access to fiber optic cabling through an affiliate.
Verizon Wireless rejected this offer because "it was thousands of times higher than the regulated rates established by the (Federal Communication Commission) for similar attachments to utility poles.”
Verizon Wireless had also sought permission to locate its own poles, but, in September 2018, the council rejected those locations.
The council justified its decision based on new FCC rules that would require PMLP to make its utility poles available to Verizon Wireless, in this case, under terms and conditions that the FCC considered reasonable, in terms of pricing.
But the company argued the FCC rule was already subject to other legal challenges and PMLP had not said it would abide by the rule. Challenges could take years to work their way through the courts. The November court filing also said PMLP failed to offer any further proposals on pricing.
Smerczynski said Wednesday that one of the issues that came up was Verizon Wireless had asked the judge to give it the special permit for the cell tower at 161 Lynn St. and "all other necessary approvals."
But, he said, Verizon Wireless also needs a variance from the Zoning Board of Appeals for side yard and rear yard setbacks and tower height. The company filed for a variance but did not follow up to get it, he said.
The landowner also had to seek a special permit "to expand and alter his preexisting, nonconforming use and structure," which would involve a separate hearing before the council.
Not seeking the variance before the ZBA would deny neighbors' rights to appeal that decision in court. The city also requires approvals before other boards first before coming to the City Council.
Smerczynski said that under the months-long timetable for ongoing litigation, and possible year to two years if the city decides to appeal, it makes sense that the "federal regulation is going to solve this issue."
An attorney representing Verizon Wireless could not be reached for comment. PMLP General Manager Charles Orphanos did not return calls seeking comment.
Staff writer Ethan Forman can be reached at 978-338-2673, by email at email@example.com or on Twitter at @TannerSalemNews.