Law/Legal:
Cell Tower in Maine Defeated

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Posted:
25 May 2000

---------- Forwarded message ----------
Date: Fri, 12 May 2000 11:18:09 -0500 (CDT)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru <rbeavers@llion.org>
Cc: john_mccain@mccain.senate.gov
Subject: Judge rules againest cell tower in Maine (Knight)..

.......Guru says: It is going to be extremely difficult for any federal judge to ignore the constitutional issue in these cases......

Those of you who are engaged in such cases must simply ensure that YOUR case is carried to a federal court....!!  Best done by your local city, county, or state zoning authorities.....

The legal point is, of course, that control over such matters is a local decision -- because it was not expressly given to the federal government in the constitution....!!!  The 1996 Telecom Act violated that precept.......  Fight for your constitutional rights!!!

I receive too many messages on this list from people who are not willing to go the "legal" (lawyer) route.....  They think there is an easy shortcut by demonstrating, signing petitions, letters to the editor, etc.....  That sort of "P.R." activity is good for the cause, but the Telecom companies know they can outspend and outlast you there.....  (They don't worry one whit about the bad publicity.) But they also know they CAN'T beat a federal judge who is willing to preserve constitutional rights.....

When you are combining your P.R. campaign with legal/court processes, BOTH are more effective......!!!

Cheerio.....

Roy Beavers (EMFguru)
roy@emfguru.com

It is better to light a single candle than to curse the darkness

People are more important than profits!!


---------- Forwarded message ----------
Date: Fri, 12 May 2000 11:30:40 +0000
From: "Warren R. Knight" <wolfrun@mix-net.net>
To: "Roy L. Beavers" <rbeavers@llion.org>
Subject: Judge rules againest cell tower in Maine

This is link to story (below):

http://www.portland.com/news/0005121a1towers.shtml

Story from the Portland Press Herald 5/12/00

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Judge: Falmouth has right to reject tower proposal

By PETER POCHNA, Staff Writer
Copyright © 2000 Blethen Maine Newspapers Inc.

A federal judge in Portland has supported the town of Falmouth's right to regulate telecommunications towers, giving hope to Maine communities trying to prevent towers from impairing scenic views and damaging rural character.

Many communities have struggled to handle the dozens of tower proposals that have come to Maine in the past few years as telecommunications companies expand wireless networks for phones, computers and pagers.

The federal Telecommunications Act of 1996 encourages the development of the towers, and in most cases takes precedence over local ordinances. But U.S. District Court Judge D. Brock Hornby ruled this week that Falmouth did not violate federal law when it rejected a 200-foot tower and then a 170-foot tower proposed by Industrial Communications and Electronics Inc. of Massachusetts.

**  "This is a decision that's good for towns," said William Plouffe, the attorney representing Falmouth. "The telecommunications industry has been using federal law to override local zoning authority."**

Hornby's decision is the first ruling to come down from Maine's federal courts on tower regulations.

The decision will make it harder for companies to build towers in Maine, said Paul McDonald, attorney for the telecommunications company. **"This will provide the road map for the next case that comes down the pipe. I think towns will look to it for support for any steps they take around regulating tower proliferation."**

Municipalities such as Freeport, Buxton, South Portland, Bridgton and Cape Elizabeth have all struggled recently with proposals to build towers or develop tower regulations.

Ironically, the Falmouth tower plan was less intrusive than most. Industrial Communications and Electronics bought a two-acre site on Hardy Road in 1997 that already contained four towers, the tallest being 170 feet.  After an ice storm damaged the 170-foot tower, the company proposed removing all the towers and building a new 200-foot tower. The town's zoning board rejected the plan, in part because it violated setback requirements.

The company came back with a plan to replace the four towers with one 170-foot tower. Again, the town balked, this time because the new tower was in a different location than the damaged 170-foot tower.

Industrial Communications sued the town, claiming that it was violating the telecommunications act, in part, by "effectively prohibiting personal wireless service facilities."  Hornby rejected the claim. He wrote in a 26-page decision that **the company created its own problem by switching to a different type of telecommunications technology that could not be accommodated by the towers it owned, even before the ice storm.** The judge added that there is land in Falmouth where towers can be built that would meet zoning laws, and that the town has proven it will approve tower construction.

Laurie Downey, spokeswoman for a residents' group fighting a 1,700-foot television tower proposed for Baldwin, said the telecommunications act has intimidated towns into thinking they can do nothing to stop tower construction.

The Hornby ruling won't affect the Baldwin plan, because TV towers are regulated differently than telecommunications towers, but Downey said the ruling will have an effect elsewhere.

**"Small towns in Maine are very reluctant to go up against the federal government," she said. "But this case could show some communities that the deck is not totally stacked against them."**



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