The six year permitting process for the AT&T cell tower on Chappy took an unexpected turn today, when the Edgartown Planning Board received a letter from AT&T legal counsel asking the board to vote to vacate its April 3 approval of the special permit for the construction of a 115-foot permanent cell tower on Sampson Avenue.
In a three-page letter, attorney Stephen Anderson said the validity of the 4-1 supermajority decision was in question because board member James Cisek may not have been qualified to vote on the matter.
“If the four Board members who voted in favor of the Special Permit attended all of the hearing sessions on which the Board received testimony or other evidence, there is no legal issue with respect to the validity of that vote and the 4-1 super-majority vote stands,” Anderson wrote. “However, AT&T has recently been informed that James Cisek may not have attended one or more of the public hearing sessions listed above when he was an Alternate Member of the Board. At the time, this was not an issue because a fifth Board member, Robert Cavallo, did attend all of the hearing sessions. However, Mr. Cavallo unfortunately, and unexpectedly, passed away on January 1, 2018. It was only upon Mr. Cavallo’ s passing that Mr. Cisek was elevated to a full position on the Board.”
Anderson noted that since Edgartown has not adapted a by-law which allows absent members to become eligible to vote by watching or listening to a recording or reading the transcript of a missed public hearing, Cisek’s absence from previous public hearings could not have been rectified.
To resolve “this unfortunate situation,” Anderson proposed that the planning board immediately vote to vacate its April 3, 2018 vote and hold a new, expedited public hearing. At that public hearing, AT&T will reintroduce its entire application package. “The Board would then have the opportunity to hear briefly from any interested parties in support of or opposed to the proposed facility,” he wrote. “This approach will allow five members of the Board to hear all of the evidence and testimony upon which the Board’s written decision will rely. After the Board has heard the evidence and testimony, the five members could vote to close the hearing, deliberate, hold a proper vote, and issue the written decision.”
Anderson said the Board must act on the special permit application by June 15.
Planning board assistant Georgiana Greenough told The Times today that the board will likely take up the matter at its May 1 meeting.
If the permanent cell tower is installed, it will be 11 feet taller than the current 104-foot temporary tower, which is also located on Robert Fynbo’s property at 14 Sampson Avenue
AT&T had already applied to the Martha’s Vineyard Commission for a year extension for the permit of the temporary tower, to May 2019, in light of litigation filed against the MVC by Sampson Avenue resident Robert Strayton over its approval of the special permit for the tower.
Strayton told the planning board it could count on more litigation as he left the April 3 meeting.
Strayton ran against planning board alternate Scott Morgan for a seat on the board in last week’s town election. Morgan topped Strayton by a considerable margin, 600 votes to 176 votes.