A federal district court judge has dismissed a lawsuit filed by a Concord Street resident aimed at blocking a proposal for a cell tower that has since been withdrawn.
Patti B. Saris, chief U.S. District Court judge in Boston, found that resident Keith Miller's legal challenge amounts to a so-called SLAPP suit aimed at wrongly discouraging the companies from ever going forward. SLAPP is an an acronym for "strategic litigation against public participation." Miller, a Boston-based lawyer himself, owns property on Jebeka Lane off Concord Street near what had been the proposed tower site.
In her 22-page decision, filed July 8, Saris allowed a motion by the defendants — the city of Gloucester, SBA Towers V LLC and communications provider New Cingular Wireless — seeking "sanctions" in the form of reimbursement of attorneys fees.
Miller's legal action grew out of the City Council's 2015 granting of a special permit to allow SBA Tower and New Cingular to build a cell tower rising 150 feet on land the companies were to lease on the Fryklund Tree Farm and Composting property at 250 Concord St. The application was filed in 2014. While city's Zoning Board of Appeals declined to grant its approval, it referred the proposal to the City Council and the council gave the project a green light.
Despite getting the permit, the companies never built the tower, which had drawn intense opposition and a petition from residents in the upper Concord Street area. In 2018, Boston-based attorney Wayne Dennison, representing SBA and New Cingular, notified the city that 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 council accepted the withdrawal in August 2018.
Miller challenged the city's handling of the process in both state Superior Court and in Massachusetts Land Court. The Superior Court case was dismissed in 2016 and the Land Court challenge essentially dismissed in 2018.
Miller also turned his claim to the federal courts, claiming that the city and the tower companies failed to properly notify Miller of hearings on the issue so he would have the chance to speak. While Miller's property, owned under his MRFS Living Trust, is near the potential tower site, he did not qualify to be listed as an abutter, according to a city listing. Miller did not return phone calls to his Boston office regarding this story.
In her decision, Saris noted that, from October through December 2014, resident Sue Klem had emailed a number of Concord Street neighbors regarding Zoning Board of Appeals updates on the proposal, and that Miller was among those receiving the regular emails. In one instance, Saris wrote, Miller responded to Klem's update notice by saying "Thanks, I was away on Thursday, but plan on coming to next meeting."
In her finding, Saris noted that Miller "does not deny that the emails alerted him to the existence of the (residents') petition or hearings form the proposed cell tower.
"Rather," the judge wrote, "he states that, relying on (Klem's emails) ... he did not attend the next ZBA meeting, or any subsequent meetings, including the final hearing," that the "emails never discussed the 'true purpose of the (zoning) application or the substance of the decision."
"This argument is head-spinning," Saris wrote. "The emails clearly show that Miller had actual notice that the ZBA was holding hearings on the wireless defendants' application, and that it would likely be issuing an opinion to transfer the ultimate decision to the City Council."
Ray Lamont can be reached at 978-675-2705, or email@example.com.