Conway’s town counsel Jason Dennis has filed a motion to dismiss Kevin MacMillan’s lawsuit about the Artist Falls Road cell tower approval. Here Dennis is seen at an unrelated selectmen’s meeting in February 2023. (Photo by Daymond Steer, Conway Daily Sun)
The town is asking a judge to dismiss a $50 million lawsuit that was filed against it over approval of a cell tower off Artist Falls Road.
On Nov. 12. Town Code Enforcement Officer Jeremy Gibbs gave Bear Hill Development of Natick, Mass., a building permit for a wireless communications facility on Artist Falls Road. The permit must be exercised within a year’s time. The tower is estimated at about 160 feet tall.
Artist Falls resident Kevin MacMillan has been fighting the approval since the Zoning Board of Adjustment OK’d the tower in 2021. MacMillan, a builder by trade, built the Sun’s office building in the 1990s.
On Nov. 21, MacMillan, who believes cell towers cause health hazards, filed suit in Carroll County Superior Court seeking $50 million from the town. Since then, the case was moved to Hillsborough County North in Manchester, which is the state’s land use court.
His suit says, in part, that the ZBA accepted “false information of an advertised balloon test from Vertex Towers.” It continues, “The Conway ZBA ignored residents’ concerns on collapse, on fire, on height of tower and radiation hazards as discovered by the National Toxicity Program and the NH Commission on Electromagnetic radiation and the IAFF.”
On Dec. 9, the town’s attorney, Jason Dennis of Hastings Law Office in Fryeburg, Maine, filed a motion to dismiss. It was based on the following:
- First, MacMillan didn’t appeal the issuance of the building permit to the Zoning Board of Adjustment. “As such, MacMillan has failed to exhaust his administrative remedies,” said Dennis.
- Second, the fraud claim doesn’t support the point of his lawsuit and lacked specificity weren’t specific enough.
- Third, planning board and zoning issues have have been fully litigated at the Superior and New Hampshire Supreme Court.
Dennis cited the Superior Court case of Benjamin Averill, et al v Town of Conway, in which Averill challenged the planing board’s site plan and subdivision approval.
“In this case, because the building permit presents no change from the use/structure that was permitted (and already litigated), Macmillan’s challenge to the issuance of a building permit arises out of the same circumstances and relies on the same facts as did Macmillan’s (and the Averills’) challenge to the original approval of the cell tower back in 2022-23,” said Dennis, adding that state and local governments can’t regulate the location of wireless service facilities based on RF emissions. A scheduling conference will be held today at 8:45 a.m.
MacMillan previously sued the zoning board in Carroll County Superior Court and lost. The state Supreme Court affirmed the Superior Court’s decision in an order dated March, 22, 2023.
One reason why this tower is significant to Conway is selectmen have said that lack of year around cell service is a reason to hold off on implementing paid parking in North Conway Village, as that relies on a cellphone app.
The plan floated a few years ago was to charge $2 per hour during business hours to park in North Conway Village with a pay-by-app system. It was estimated the program could raise about $900,000 annually.
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