ROME — A federal appeals court has affirmed a lower court’s decision to dismiss a lawsuit brought against the town by cellphone tower companies after the planning board rejected an application to build a cellphone tower at the summit of a popular hiking hill.

In a 31-page decision filed Friday, judges David Barron, Bruce Selya and Kermit Lipez on the U.S. First Circuit Court of Appeals ruled that Global Tower Assets LLC and Northeast Wireless Networks could not sue the town under the federal Telecommunications Act because it had not exhausted the administrative process at the local level by taking its case to the town board of appeals.

“We’re pleased with the decision of the court, but this certainly doesn’t prevent Global Towers and Northeast Wireless Networks from reapplying,” said Selectman Richard LaBelle on Monday. If they reapply, the companies will deal with a new, more restrictive wireless telecommunications ordinance voters approved at Town Meeting last year, LaBelle said.

The two companies in 2013 applied to build a 190-foot cellphone tower on property sited on the hill known as The Mountain, which overlooks Great and Long ponds and is a popular hiking area.

The planning board rejected that application in February 2014 because it didn’t meet the requirements of the town’s communications tower ordinance. The companies filed suit against the town in U.S. District Court in Bangor on March 11, the day after the board issued a one-page decision outlining the vote it took in February.

District court judge George Singal in Aug. 2014 dismissed the case on the grounds that the companies had not taken their case to the town appeals board to challenge the planning board decision. Therefore the planning board vote to deny the application was not a final decision the companies could challenge under the Telecommunications Act, which provides relief to applicants who have been denied at the local level, according to the circuit court decision.

“As a matter of state law, the planning board’s denial may be reviewed in state court only after the local board of appeals has exercised its own independent review,” the judges wrote in their decision.

“As a result, we agree with the appellees — the planning board and the town of Rome, Maine— that the planning board’s decision does not mark the end of the administrative process and thus is not a ‘final action’ for TCA purposes,” the judges wrote.

Reached by phone Monday, Erica Johanson, an attorney with the Eaton Peabody law firm representing the two cell tower companies, declined to comment on the case.

“I don’t have a statement available at this time,” Johanson said.

The circuit court judges also rejected the companies’ complaints that the planning board decision had violated their due process rights, including charges the planning board was biased against the application because some of its members are also part of the Belgrade Regional Conservation Alliance, a local nonprofit group that owns 207 acres on The Mountain and maintains hiking trails on the property.

The BRCA publicly opposed the tower, and the companies alleged that planning board members had a financial interest in the conservation easements the conservation group held, according to the ruling. Additionally, the companies alleged a brother of one of the planning board members was approached by a competitor to build a tower on his property abutting the site the companies planned to use, implying board members conspired to block the application so the brother could lease his land to the competitor, the circuit court judges said.

The judges rejected those allegations, stating that “the ‘run of the mill’ land use dispute does not give rise to a viable substantive due process challenge” and referring to other rulings that point out appeals from disappointed developers involve claims that local planning boards exceeded, distorted or abused their privileges.

“The companies vague allegations of conflicts of interest and financially motivated conspiracy do not — at least without far more — show that the planning board acted in the kind of conscience-shocking fashion that we require for substantive due-process challenges to make it past the gate,” the judges said.

The town of Rome has been fighting the court challenges in the case for almost two years and still faces legal challenges about the rejected application in the Maine Business and Consumer Court and Kennebec County Superior Court.

The lengthy court battles have been expensive.

Last March, voters approved spending $50,000 to defend against the lawsuit, but by July the town had almost run out of funds and asked for private donations to pay its legal fees. In November, the town asked again for donations to keep the legal fight alive.

LaBelle, on Monday, said the town had a remaining balance of $2,058.58 in the fund designated to pay for legal fees from the case.

Peter McGuire — 861-9239

[email protected]

Twitter: @PeteL_McGuire


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