CAPE ELIZABETH – Verizon Wireless has filed a lawsuit against Cape Elizabeth alleging that the town’s Zoning Board of Appeals violated a federal law as well as a local zoning ordinance when it denied its proposal to install communications equipment on an existing water tower.

Portland Cellular Partnership, doing business as Verizon Wireless, filed the complaint in U.S. District Court in Portland on July 9. The town was given three weeks to submit a rebuttal to the lawsuit.

According to the suit, Verizon asserts, “The town’s denial of a permit for the facility constitutes legal error under both the Spectrum Act and the ordinance.” It also alleges that “a municipality ‘may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower.”

According to Verizon’s attorney Scott D. Anderson, of Portland law firm Verrill Dana, the company’s application for the 80-foot-tall water tower located at 11 Avon Road does not substantially change its physical dimensions and therefore, the town is required to approve the application.

“Our position is that the water tower was an alternative tower structure, that we met the criteria, and that a permit should have been issued under the local ordinance,” Anderson said.

The tower, owned by the Portland Water District, has not been used for water storage since 2007. It does, however, have an existing antenna licensed by the Federal Communication Commission, said Anderson, which the district uses to communicate with the town’s wastewater treatment plant.

In November 2013, Verizon Wireless signed a lease with the water district to install its equipment on the water tower, which was constructed more than 60 years ago.

Verizon has since brought forth its proposal to the zoning board twice, said Anderson, claiming that if the permit is ultimately approved, it would “fill a significant coverage gap” in that area of town “without having to extend or expand the size of the existing tower.”

Anderson said the town’s zoning ordinance allows for the installation of wireless communications facilities on “alternative tower structures,” including the old water tower. In addition, the suit claims that the water tower is an “eligible facility” under the federal Spectrum Act.

“The proposed facility will provide additional service coverage in the southeastern portion of Cape Elizabeth,” according to the lawsuit. “Providing adequate service is a challenge in Cape Elizabeth as the town has one of the most restrictive local telecommunications ordinances in the state of Maine.”

According to Anderson, one of the priorities of Verizon Wireless and other cellular companies is using existing structures, rather than building new towers, when improving service.

“The idea is that, when the structure is already there, the impacts to the community already exist,” he said.

At a meeting in May, several residents spoke against the proposal citing lowered property values, increased traffic and negative visual impact.

Verizon appealed to the zoning board in April after the town’s code enforcement officer Benjamin McDougal denied the company’s application in March. According to the McDougal, part of his argument is that under the town zoning ordinance “cellphone towers are not allowed as a permitted use” in the Residence A zoning district.

“There is a definition in our zoning ordinance of alternative tower structures, and the water tower does not fit that definition,” he said.

Secondly, he said, he has since consulted with the town’s attorney, Monaghan Leahy law firm of Portland, and they “agreed that the federal law does not pre-empt” the town’s zoning ordinance.

“It’s not that the town does not want antennas there,” said McDougal. “It was denied on the fact it does not meet our zoning (ordinance).”

At a meeting in June, the zoning board did not allow public comment on the issue and agreed to uphold the code enforcement officer’s decision.

“In order to continue to pursue the site, we need to go to court to challenge the town’s permitting decision,” Anderson said.

“There is no basis for a town to deny a permit when you are doing something that really isn’t going to have a significant impact on the neighborhood or the town,” he said.