Selectmen join Valley Road cell tower lawsuit

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Dramatically reversing course from its previous decisions, the Board of Selectmen has unanimously voted to join residents’ lawsuit seeking an injunction against a cell tower on Valley Road.

At a special meeting last Friday afternoon the selectmen met with town counsel and then emerged to put the vote on the record. Before this vote, the town had been listed as defendants in the suit against AT&T and Aquarion Water Company, but now the suit will be amended to list them as plaintiffs instead in the residents’ fight to prevent construction of a 64-foot cell tower at 455 Valley Road alongside an existing water tower there.

The board had previously rebuffed two attempts by Selectman Drew Marzullo to sign on as a plaintiff in the suit but that all changed last Friday with a quick vote after an approximately 45 minute executive session where the selectmen met with Town Attorney Wayne Fox and John Wetmore, the town’s special counsel on land use issues. Previously, Mr. Marzullo had attempted to get the selectmen to take a vote on it but his motions failed due to lack of a second.

 

At issue is whether Aquarion is violating its lease with Greenwich for the property, first signed in 1952, by allowing the tower to be built there. The neighbors seeking the injunction as well as members of the Land Use Committee on the Representative Town Meeting (RTM) have said the town’s intent at the time of the sale was clear, but town counsel had previously advised the selectmen there was a loophole that would cause a judge to rule in favor of the construction.

While Mr. Marzullo agreed with the neighbors’ claim that the tower constitutes a violation, both First Selectman Peter Tesei and Selectman David Theis had previously indicated they felt the language was not specific enough to prevent the construction. But now things have changed.

The selectmen did not comment after the vote, citing the pending litigation, so the exact reasons for their change in the vote are unknown. Mr. Fox spoke to reporters after the meeting and said it was done to clarify the interpretation of the actual deed of sale of the land from the town to the water company in 1952. The town’s Planning and Zoning Commission at the time was on the record that the land be used “exclusively” for water company purposes, which means that installing a cell tower there would seemingly violate the deed.

However, the actual deed does not include the word “exclusively” in mandating that the land be used for waterworks purposes. To some this left a loophole, to others it meant the town’s intent for the land was clear and that it should be defended in court.

Mr. Fox said he couldn’t speak to what he told the selectmen during Friday’s executive session but both he and Mr. Tesei indicated the board wanted clarity on the deed issue. Mr. Fox said that rather than have the neighbor’s suit potentially dismissed without clarification from a judge about what the deed does and does not allow, the board wanted to get a ruling on that issue. By having the selectmen join as a plaintiff the case is expected to be strengthened, increasing the chance that a ruling on that issue will come.

The selectmen’s decision comes four days after a vote by the Representative Town Meeting to pass by a sense of the meeting resolution by a 150-33 margin with 10 abstentions that showed support for the residents’ suit and urged the selectmen to join as plaintiffs. RTM members expressed concern that the town was not defending its land rights by not participating as a plaintiff and that the town was at risk of losing rights in the deed to have the valuable property revert back to it if Aquarion was found to be in violation of the lease.

It’s unclear what impact, if any, this non-binding sense of the meeting resolution had on the board’s thinking since no specific reasons were given by the three selectmen. Mr. Marzullo’s support for joining the suit has been clear and on multiple occasions Mr. Theis has expressed sympathy with the neighbors, but said that the language didn’t prevent the construction.

“It’s not that I don’t want to support my neighbors or that Peter Tesei doesn’t want to support his neighbors,” Mr. Theis said at last week’s RTM meeting when the sense of the meeting resolution was debated. “We want everyone to know the language is deficient. We wish it wasn’t. But I think it is.”

However, when asked last week why he changed his vote, he said he could not comment publicly because it is ongoing litigation.

Chuck Coursey, a spokesman for AT&T, said there is a demonstrated need for the cell tower to be built and that the deal is proper and will be allowed to go through by the court.

“AT&T continually strives to select cell locations that balance the need for meeting coverage requirements while minimizing possible aesthetic impacts,” Mr. Coursey said. “We continue to believe that the use of the water tank meets that balance and is a permitted use as a matter of Connecticut state law. We believe in the merits of our case and will defend it vigorously.”

Mr. Coursey did not specifically comment on the selectmen’s vote and what that will mean for the case.

Mark Kovack, who is representing the neighbors in the suit, said that he had anticipated AT&T filing a motion to dismiss the case, but that this development could well change that. He said he couldn’t speculate on what step AT&T will take next but said it was possible that the selectmen’s vote could lead to further settlement talks.

The two sides have engaged in settlement discussions over the past few months but there’s been no indication they have led to any progress.

Mr. Kovack said that the neighbors were pleased the selectmen decided to join the suit.

“I definitely think this is a positive development,” Mr. Kovack said. “It’s a good decision and it’s the right decision. It should strengthen our claim.”

 

editor@greenwich-post.com

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