RTM supports cell tower suit

If it was up to the Representative Town Meeting (RTM), the Board of Selectmen would join a resident lawsuit seeking to bar AT&T from installing a cell tower on Valley Road.

By a decisive margin of 150-33 with 10 abstentions, the body voted Monday night to pass a non-binding sense of the meeting resolution urging the selectmen to join the suit seeking an injunction against AT&T in Stamford Superior Court to build the tower at 455 Valley Road. That property is currently owned by the Aquarion Water Company, which struck the deal with AT&T to allow the 64-foot tower to be built alongside an existing water tank, but there are continued concerns that the deal violates the terms of the deed for the property the town reached with Aquarion in 1952.

The lease said that the property had to be used for water company purposes, however the question of how strictly that needs to be adhered to remains an open question. A letter in 1952 by then chairman of the Planning and Zoning Commission Edward Close said that the property must be used for “exclusively for water company purposes” but the word “exclusively” does not appear in the actual deed.

First Selectman Peter Tesei and Selectman David Theis, acting on the advice of the town attorney, have said they believe a judge in this case will rule for AT&T because of the language of the deed. Because of this they have resisted attempts to join the lawsuit as plaintiffs, which has been brought up multiple times by Selectman Drew Marzullo.

Now the RTM has given its voice of approval to the neighbor lawsuit. Neighbors have said that not only is the proposed cell tower an aesthetic problem, but it presents a potential health risk since it is so close to town drinking water supply.

However, the RTM did not focus on the health issues or even on the merits of this particular cell tower, but rather the precedent not fighting this suit would create. Several members said this opened the door to other development projects on properties like this that the town would no longer be able to prevent.

“This is not about cell towers,” RTM member Peter Berg, chairman of the Land Use Committee said. “Our discussion revolved around the need for the town to defend its land rights and whether the RTM should have a say if the town is not going to defend them. We don’t know why the town is not defending it’s land rights. We just know that it’s not.”

The original sale of the land was approved by the RTM in 1953 with the understanding it would be used for water purposes and members said they had to respect the wishes of their past colleagues. RTM member Nick Edwards went so far as to call it an “obligation” for the RTM and others urged their colleagues to take action.

“I am in distress that there are people in the RTM saying, ‘Let’s not get involved in town affairs,’” RTM member Joan Pankowsky said. “This is our town. Why are we sitting here? Why are we members of the RTM? There was an RTM in 1953 that put conditions on [this sale]. We have people coming up to us and telling us the town needs to uphold the legal agreement… As a member of the RTM, I want to uphold what the RTM in 1953 said they wanted the conditions to be. What else are we to do but say, ‘Please Mr. First Selectman, listen to the deed.’”

RTM member Francis Burgweger Jr. said that the town’s failure to defend the “reverter”, which was a clause of the sale that would have given the property back to the town if deed conditions were not met, would be seen as abandonment and the town would lose the right to ever get the property back no matter what Aquarion did with it.

“Having that reverter in effect created a valuable property right for the town,” Mr. Burgweger said. “If some day Aquarion Water Company decides to build a 7-11 there instead of a water treatment plant, the town gets the property back right along the Mianus River which is potentially very valuable. It’s important to preserve the town’s rights in the reverter.”

Mr. Burgweger also pointed to a similar 2006 Connecticut Supreme Court case where Verizon was blocked from building a tower in Greenwich on property leased by Aquarion because it was not being used for water purposes was a sign that the court would rule in favor of the neighbors. This was disputed, however, by others on the RTM who claimed the cases are not similar enough for it to be a precedent.

The town is currently a defendant in the suit, but were they to join in as a plaintiff that could be adjusted. RTM Districts 2, 8 and 9 had all individually supported joining the suit, but now the full RTM is on record with its vote, giving what is still a non-binding resolution at least a little more teeth. Several neighbors who are part of the suit appeared at the meeting and urged the selectmen to get involved, saying it would make their case much stronger.

“It’s important for us to have the town on our side,” Robert Luzzisaid. “So far we’ve asked Mr. Tesei and Mr. Theis why they’re not supporting us and we haven’t gotten any answers. They’ve told us to date that they defer to their lawyers.”

Mr. Marzullo has attempted in the past to get the board to take up joining the lawsuit as a plaintiff, but each time he did not receive a second, meaning the motion did not come up for a vote before the three-person board. There is no indication yet if he will try again now that the RTM passed the resolution.

Due to the ongoing litigation, the selectmen are prevented from speaking publicly about the specifics of the case. However, Mr. Theis did take time Monday night to speak out at what he referred to as “personal attacks” accusing him and Mr. Tesei of not representing their constituents. He indicated sympathy for the neighbors, but that the language of the deed, which does not have that magic word of “exclusive,” kept the selectmen from joining the suit.

“As a third generation resident of this town who went to school here, there’s nobody who cares more and has done more for his fellow citizens than I,” Mr. Theis said. “We have relied solely on the advise of our learned counsel. The original agreement did not transfer appropriately enough to the deed. I wish it had. It’s not that I don’t want to support my neighbors or that Peter Tesei doesn’t want to support his neighbors. We want everyone to know the language is deficient. We wish it wasn’t. But I think it is.”

 

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