By Melissa Beecher
Thursday, November 28, 2002

WAYLAND - A federal judge has ordered the Zoning Board of Appeals to authorize construction the town's first cell phone tower, ending an 8-year legal dispute.

For nearly 10 years, Nextel has contended that service gaps exist in Wayland and a tower was needed near the town center to provide better service for customers.

The legal case arose out of the ZBA's February denial of Nextel's request for a height variance to install the antenna on the tower, which is outside the town's wireless communications district.

In his ruling, Keeton says the ZBA decision was "not supported by substantial evidence" and was in violation of the federal Telecommunications Act of 1996.

"Obviously, I am pleased and Nextel is pleased with this decision," said Steven Grill, the attorney representing Nextel. "The is the culmination of a long effort to provide service to that part of the state. I think that decision speaks for itself."

Town officials expressed frustration at the decision, and said that an appeal has not yet been ruled out.

"We are disappointed that Judge Keeton chose to side with Nextel in this case, but we believe we proffered an aggressive defense on behalf of the town and the Zoning Board of Appeals," said Selectman Brian O'Herlihy. "I think that an appeal is still under consideration, although I don't think that there is a lot to appeal in this situation.

"The board felt, and continues to feel, it was important to defend the town's wireless communications bylaw," said O'Herlihy. "While the outcome of this case is not what we hoped for, we were able to develop some useful technical information during the preparation of the town's defense that the board believes will provide us with a sound technical basis for enforcing the wireless district bylaw in the future."

No money damages were sought by Nextel, and the town will only need to pay for its own legal costs. This case was the first test of the town's wireless communications bylaw since its enactment in May 1999.

Nextel has sought to place an extension on the Nstar tower that would rise 11 feet 8 inches, bringing the total height to 108 feet 8 inches. The height exceeds the town's 35-foot height maximum that exists in the historic zoning district.

In the decision, Keeton said, "Circumstances existing in this case demonstrate that any further efforts of Nextel are likely to be as fruitless as its efforts up to this point. The alternative sites, even if technically feasible in the abstract, do not overcome the undisputed evidence in the record of the town's hostility to the provision of wireless service."

"Nextel had met its heavy burden of showing the town's hostility, and therefore that any further efforts would be so likely to be fruitless, that it is futile even to try," the judge stated.

In 1995, Nextel filed a plan with the Planning Board. The board granted a ANR (approval not required), freezing zoning bylaws for the applicant's proposal. Since that time, a new wireless zoning district was established, which Nextel claimed did not effectively allow it to provide services.

An official order of the U.S. District Court in Boston is expected to be issued sometime prior to the end of the year.