Subject: [NEXTEL-1] Nextel files suit against Provincetown over wireless bylaw (October 26, 2002)

From: Marcel <[email-masked]>
Date: Sat, 26 Oct 2002 13:31:05 -0400

http://www.capecodonline.com/cctimes/nextelfiles26.htm

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October 26, 2002

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Nextel files suit against Provincetown over wireless bylaw
The cellular technology company claims the town's regulation amounts to prohibition.

By EMILY C. DOOLEY

STAFF WRITER
PROVINCETOWN - A lawsuit filed Thursday by Nextel Communications claims a Provincetown bylaw on wireless facilities is unconstitutional and violates the Telecommunications Act of 1996.

The lawsuit, filed in U.S. District Court, asks a judge to rule the town bylaw unconstitutional, illegal and void under federal law.

The fight is over a Nextel application asking for permits to place a six-panel antenna inside the cupola of a private house off Bradford Street.

From the start, abutters in the rural neighborhood have protested the idea. They fear the technology could open up the rest of the town to demands from other cellular carriers.

They see the lawsuit as a big money way to deal with a small town. "It's a steamroller," resident Peter Manso said. "You can't stop these people."

But the real problem lies with the bylaw. Under the Telecommunications Act, towns are allowed to regulate wireless facilities but not so much that it amounts to prohibition.

Nextel claims that a 500-foot setback from schools, residences and senior centers severely limits the number of places where such technology would be allowed.

The company has also taken issue with lease terms and insurance demands required by the bylaw, which was brought to town meeting in 1999 by citizen petition.

Nextel attorney Steven Grill filed suit against the town to challenge the bylaw in August. He didn't move forward with the case, hoping instead to get the permit.

But when the zoning board of appeals denied a request for a waiver from the 500-foot setback, insurance and lease requirement, Grill moved on to the lawsuit.

Zoning board Chairman Gary Reinhardt said the variance request was denied because choosing the Bradford Street address created the problem for Nextel. "To us, they were arguing good place, but bad bylaw," Reinhardt said. "Our job is to uphold the bylaw."

Nextel is also working through a hearing process with the planning board, which must grant the company a special permit before it can proceed.

Reinhardt said the zoning board must issue a variance before the planning board grants a special permit for the project. Despite the ruling, Reinhardt said he liked the idea of hiding the antennas. "It was a perfect solution," he said. "Visibly, it was invisible."

Reinhardt thinks the problem lies with the bylaw because it's too strict to comply with federal law.

"The town defends itself in a suit," Town Manager Keith Bergman said.

Grill said he filed the suit to preserve Nextel's rights, but it was not his first choice. "We're much more interested in working with the town than fighting with them," he said.

A hearing date before U.S. District Court Judge Douglas P. Woodlock has not been set. If he rules in favor of Nextel, it is not clear how or if Provincetown will be able to handle future wireless requests.

Experience may help. In 1996, before the town created the wireless facilities bylaw, Sprint entered into a 20-year lease with the town to place a cellular tower atop the Mount Gilboa water tank. A lawsuit challenging the zoning board's issuance of a permit held up the project for years until the Supreme Judicial Court upheld the town board.

(Published: October 26, 2002)

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