More than three years after city officials granted communications companies permits for a 130-foot cell tower on leased land in West Gloucester, the tower remains only a dream, and the companies have pulled back their efforts to build it.

But a neighborhood resident who lost a state court challenge to the city's permit approval has filed a federal lawsuit, claiming city officials wrongfully colluded with the tower developers to push the project through. He is seeking to recoup undefined court costs tied to his challenge to the project in the first place.

At the core of the case is a 2015 permit granted by the city's Zoning Board of Appeals and City Council, which gave a green light to SBA Tower V. Inc., and New Cingular Wireless LLC to build a tower on land the companies were to lease on the Fryklund Tree Farm and Composting property at 250 Concord St.

The proposal, initially seeking a tower height of 150 feet spotlighted with a test balloon so residents would have a sense of the project's scope, drew immediate opposition within the neighborhood. Residents succeeded in pushing to get the height reduced under the final approval.

But the tower has never been built — and a message sent to the city last month from Boston-based attorney Wayne Dennison, representing SBA and New Cingular Wireless, indicate that it won't be. 

While "reserving the right" to pursue a similar project in the future, "the permit holders will not be constructing, operating, or maintaining the proposed personal wireless facility at 250 Concord St. as authorized ... ," the memo indicated. The City Council was expected to vote to accept the withdrawal at its meeting Tuesday night.

The withdrawal came as a surprise to Concord Street resident Peter Radachio. He had been among the neighbors opposed to the initial filing for a 150-foot tower with exterior antennas, then were more accepting of a 130-foot "unipole," a tower that was to be built with its antennas encased inside.

"I'm glad to hear they've backed off," Radachio said of the applicants. "I won't be sad to still see that sky and treeline not interrupted. But I think, with the compromise we had, everybody had moved on thinking the (shorter) tower would be built — and then it wasn't."

His fight goes on

One resident persisting in fighting the tower, however, is Keith Miller, who owns property on Jebeka Lane off Concord Street, just south of and across the road from the proposed tower site.

Miller, a Boston-based attorney, had filed a lawsuit in state Superior Court against the two cell tower applicants and the city over the ZBA's approval in 2015.  A judge earlier this year dismissed the case, finding that Miller had not filed in a timely fashion and did not have standing for his challenge. Now Miller has filed a new complaint in U.S. District Court in Boston, charging, among other things, that the city wrongfully ignored its own zoning rules and essentially colluded with the communications companies in offering help for pushing the tower proposal through.

Miller said Tuesday that the withdrawal of the tower proposal has no impact on his commitment to his own challenge.

"If anything, I think it's more important now," he said in a phone interview, citing the city's alleged actions regarding the tower plans.

The action names as defendants the city and both SBA and Cingular Wireless, a wholly owned subsidiary of AT&T. Neither general counsel Chip Payson nor anyone else in the city's legal department responded to a call seeking comment Tuesday.

"Regardless (of the tower withdrawal), they have already cost me two court cases exercising my rights as a citizen of Gloucester to challenge this," he said. "I don't have some sort of personal vendetta against the city of Gloucester or anything like that, but I also know their conduct is actionable, and I'm just pursuing what I had to spend to make them do what they're legally required to do."

For one thing, Miller's action claims that the council illegally allowed for an elevated height some 50 feet above the tree canopy despite regulations that limit such allowances to overlay zones — which the Concord Street site is not. He also produced exhibits in the form of emails between SBA and Cingular Wireless attorneys and former city solicitor Suzanne Egan that he says shows wrongful collusion on the part of the city and the developer.

In one email, Egan tells Edward Pare, representing SBA and Cingular Wireless, that she believes the companies' "best course of action is an application for variance from the Zoning Board of Appeals seeking a variance for the dimensional requirements" of the city's zoning bylaw.

A second exchange between Pare and Egan, who served as solicitor for 2008 through 2014, shows Pare suggesting a different course of action to gain approval for the permits, and Egan responding "I think everyone is the same page now."

"I think it's self-explanatory," Miller said. "I don't think the city should be colluding with a developer — and that's what my case shows."

Ray Lamont can be reached at 978-675-2705, or rlamont@gloucestertimes.com

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