Wireless company sues Vermont regulators after officials ground plans for new tower

a rural road and field with a street sign and a white house in the background
Bordoville Road as seen from Route 108 in Enosburgh on Wednesday, June 22, 2022. A telecommunications tower has been proposed for a property up the street. Photo by Shaun Robinson/VTDigger

A Massachusetts company is suing Vermont regulators after officials denied its plan to build a new wireless communications tower off a small mountain road in Enosburgh. 

The state’s Public Utility Commission declined to issue Industrial Tower and Wireless a certificate of public good for the 140-foot tower in early August, seemingly closing out a lengthy review process that, earlier this year, appeared that it might swing the other way. 

That’s because, in February, a hearing officer recommended that the utility commission approve the project. But in May, commissioners ordered the project back under review after the area regional planning commission submitted revised testimony on the plan.

Utility commissioners ultimately found that, while there was a “general state interest” in building the tower, it did not override the Northwest Regional Planning Commission’s concerns that the tower was larger than it ought to be for the scale of the area. 

Now, well over a year after plans were first filed with state regulators in June 2022, the project’s denial is set to come under scrutiny in U.S. District Court in Burlington.

The Industrial Tower and Wireless civil suit asserts that, in making their decision, members of the utility commission violated federal telecommunications law because the ruling was not based on sufficient evidence and could limit access to cellphone service. 

Vermont law requires the utility commissioners to provide what’s known as “substantial deference” to the recommendations of a regional planning commission before making a decision. But the lawsuit argues the utility commission applied that concept incorrectly. 

The state regulators’ denial “is not supported by substantial — or actually any — evidence,” the Aug. 31 suit argues. “The PUC’s Denial Order rests solely on the (planning commission’s) erroneous comments that the Tower, as proposed, will be unduly obtrusive.”

The company is asking a federal judge to force the Public Utility Commission to issue a certificate of public good for the project and greenlight its construction “immediately.”

The utility commission declined to comment, citing in an email a policy that members do not “comment on matters pending judicial review or to further explain Commission orders.”

Industrial Tower and Wireless, which already operates a network of telecommunications towers across New England, proposed to use the Enosburgh tower largely for two-way radio service and emergency dispatch services. Plans also called for enough space to be available for up to five cellphone service providers to install antennas there. 

The nearest telecommunications towers are 5 and 6.5 miles away, filings showed, which the company said were both too far away to serve the area targeted by their proposal. It also said the area’s mountainous topography limits the distance a signal could travel.

The project drew support from the St. Albans Police Department, which had plans to install regional dispatch equipment on the tower. In a letter filed with regulators, the department’s chief, Maurice Lamothe, called the project “a valuable improvement for public safety communications” in Bakersfield, Enosburgh, Berkshire and Richford.

“These areas have been known to have dead spots for our current radio system while dispatching emergency calls,” Lamothe said, adding he did not think the tower should be shorter than 140 feet.

Several residents — including a relative of the man whose land the project would be built on — said at a public meeting last summer that they supported the project. Others, though, strongly opposed the proposal, arguing it would disrupt the area’s rural character. 

Industrial Tower and Wireless pushed back on that claim, pointing to a report from a state-hired consultant that found the tower would be visible from only about 3% of the land area in a 2-mile radius around the tower site. Of that 3%, half would see only half the structure. 

Ultimately, though, the most consequential opposition to the tower proposal came from the regional planning commission. Its Project Review Committee found that the tower did not conform to guidelines in the St. Albans-based organization’s regional plan for Franklin and Grand Isle counties, according to a regulatory filing in July 2022.

Because Industrial Tower and Wireless had not identified any cell service providers that would use the tower — but was still planning to build a structure to accommodate such providers, in addition to its radio service — the project review committee said the tower was taller than it needed to be. The regional plan, the committee noted, provides that applicants build the “least obstructive system possible,” which the tower was not. 

Emily Klofft, a planner at the regional planning commission, wrote in an April 2023 filing — prepared in response to clarifying questions from state regulators — that even when considering the public safety interests, the tower still would be “obtrusive.”

“The project’s height is not compatible with the scenic rural character of the Bordoville hamlet and has a negative impact on the area’s historic resources,” Klofft wrote.

Reached by phone Tuesday, Catherine Dimitruk, executive director of the Northwest Regional Planning Commission, said the organization didn’t have anything to add to its  comments earlier this year, and declined to speak about the lawsuit filed against the state. She noted, though, that the project review process was especially lengthy. 

Industrial Tower and Wireless previously filed two other civil lawsuits against the utility commission, one accusing regulators of moving too slowly to review the Enosburgh project and the other asserting the same for a larger tower project in the town of Ira. The first suit was filed in December 2022, while the second was filed in March 2023.

The company has since voluntarily dismissed both those lawsuits, court records show. Lawyers representing Industrial Tower and Wireless did not respond to a request for comment about the latest lawsuit filed in August.

Writing in their denial, utility commissioners said the order of events in the Enosburgh case — namely, taking updated comments from the regional planning commission after the period to submit evidence had closed — was “less than ideal.” Commissioners also said they never found the regional planning commission’s perspective entirely clear.

Industrial Tower and Wireless pointed to this seeming lack of clarity in its lawsuit. 

The process also prompted concerns from the state’s Department of Public Service, which wrote in July that the introduction of “additional considerations” after the hearing officer’s initial recommendation was issued “has compromised the resolution of this matter to some degree.” 

The department did not explicitly express support for the tower, but noted it could help Vermont achieve its goal of getting cellphone service to all residents.

“The Department does not intend to assign fault for the confluence of unusual circumstances in this proceeding,” an agency attorney wrote in the July filing. 

The attorney noted, though, that the utility commission should use the Enosburgh case to consider whether it needs to make any changes to its procedures.

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