Selectmen join Valley Road cell tower lawsuit

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

The town will now become a plaintiff in the suit filed against AT&T and Aquarion Water Company to try and prevent the construction of the cell tower at 455 Valley Road. The board had previously rebuffed two attempts by Selectman Drew Marzullo to sign on as a plaintiff in the suit but that all changed on 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.

 

Aquarion entered into the deal with AT&T to build the cell tower, which would be placed alongside an existing water tank, on the property last year. While the Connecticut Siting Council has given it’s blessing to the tower, they did so over neighbor objections on a number of fronts including aesthetics and potential health issues since it would be located so close to part of the town’s drinking water supply. The land in question was once town property but it was sold nearly 50 years ago with the town retaining the right to get it back if the deed were found to have been violated by the water company.

The residents, neighbors on Valley Road and surrounding streets, are seeking an injunction in Stamford Superior Court.

The selectmen did not comment after the vote, citing the pending litigation, so the exact reasons for the change 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.

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 had previously urged his colleagues to join with the neighbors in the suit but his motions failed to reach a vote due to a lack of a second. Both First Selectman Peter Tesei and Selectman David Theis had expressed reluctance to join on as plaintiffs because of legal advice from Mr. Fox that absence of the word “exclusively” from the deed left it likely that a judge would rule against the neighbors and allow the cell tower to be built.

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 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.

There will be full coverage of this in the June 21 edition of the Post.

 

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