2018 ME 27
Me.2018Background
- In 2001 the Yarmouth Planning Board denied Sprint’s application to install antennas and ground equipment on the Yarmouth Water District water tower, finding the lot too small/narrow to mitigate adverse impacts.
- In April 2016 Verizon applied to colocate similar wireless equipment on the same water tower and submitted final plans in July 2016 to fill identified coverage gaps.
- Neighbors (Olson and Rabin) raised visual, noise, and health concerns at public hearings; the Board conducted a site walk and questioned Verizon about alternative sites.
- The Town Director’s September 23, 2016 report concluded Verizon had described its site-selection process and recommended approval with conditions, noting use of an existing tower avoids building a new tower.
- On September 28, 2016 the Planning Board unanimously granted conditional approval; Olson and Rabin appealed to Superior Court under M.R. Civ. P. 80B, which affirmed; they appealed to the Maine Supreme Judicial Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior Planning Board denial creates a rebuttable presumption that the site is unsuitable for future similar co-location (art. II(Z)(4)(a)(3)) | Olson: 2001 denial triggered presumption of unsuitability for any later similar equipment; Verizon must rebut it | Town/Verizon: the presumption is part of the new-tower-construction co-location-exhaustion regime and does not apply to co-location applicants | Court held the presumption applies only to new-tower-construction applicants and did not require Verizon to rebut it |
| Whether there was substantial evidence that Verizon investigated other technically feasible sites (art. II(Z)(9)(c)) | Olson: record lacks substantial evidence that Verizon explored and ruled out other technically feasible sites | Town/Verizon: Verizon explained its search (coverage-gap analysis); Board questioned Verizon at hearings and Director’s report referenced the selection process | Court held the Planning Board’s finding was supported by substantial evidence and affirmed approval |
Key Cases Cited
- Osprey Family Tr. v. Town of Owls Head, 141 A.3d 1114 (Me. 2016) (standard of review for Planning Board site-plan approvals)
- Bizier v. Town of Turner, 32 A.3d 1048 (Me. 2011) (deference to Planning Board fact-findings and ordinance characterizations)
- Fryeburg Tr. v. Town of Fryeburg, 151 A.3d 933 (Me. 2016) (ordinance interpretation principles)
- Desfosses v. City of Saco, 128 A.3d 648 (Me. 2015) (avoid interpretations producing absurd or illogical results)
- Dickau v. Vt. Mut. Ins. Co., 107 A.3d 621 (Me. 2014) (ordinance interpretation and consideration of purpose/structure)