BIDDEFORD — Several weeks ago, a lawsuit filed in York County Superior Court in Alfred against the City of Biddeford by opponents of a cellular tower being built on Hill Street was dismissed.

The suit dealt with a decision by the city council to grant a contract zone to allow the tower to be built in an area that isn’t zoned for such structures.

After receiving notice of the dismissal, Frank Novotny, one of the residents opposing the tower, said an appeal has been filed.

However, City Attorney Keith Jacques said, “I fully expect us to be successful at the law court.” The law court, which is the Maine Supreme Judicial Court, is the highest court in the state’s judicial system.

The 140-foot tower is being built at 384 Hill St. by VC Properties, LLC, doing business as Mariner Tower, LP, of Kennebunkport. The contract zone was necessary because telecommunication facilities are not allowed in the I-2 zone where the property was located.

The tower is needed, said Chris Ciolfi with Mariner Tower, to allow better coverage for AT&T wireless services, which for now is the only company seeking placement on the proposed structure. There is room for more wireless companies to co-locate on the tower.

The public benefits of allowing the contract zone include the city paying $1 for the 14-acre lot purchased by the applicant. The applicant would also build a road, compliant with city standards, and install underground utilities, except water and sewer, at the site. The applicant would be granted a 100,000 square foot easement on the site for the placement of the tower.

Novotny and others who live in a neighborhood close to where the structure is being built have spoken numerous times, before both the planning board and city council, against allowing the cell tower.

In past testimony, Novotny has stated that he fears radio frequency, or RF, energy released by the wireless carriers locating on the tower would have a negative effect on the health of both nearby residents and students attending the city’s elementary and middle schools, which are located close to the tower site.

“I’m trying to prevent a tower of death from going up near schools,” said Novotny, in a telephone interview with the Journal Tribune last week.

Others have stated similar concerns.

However, a report conducted by an independent third party, which was paid for by the applicant, concluded that the RF energy that would be emitted from the carrier to be placed on the tower would be below the maximum permissible exposure level, as set by the Federal Communications Commission.

Wireless facilities cannot by denied based on RF emissions if they comply with FCC regulations, according to the federal telecommunications act.

Another issue raised by some residents is that they believe that the value of homes located near the tower will fall.

The motion to dismiss the tower opponents’ lawsuit didn’t deal with the merits of the citizens’ concerns, but was mostly based on procedural issues. In his motion on behalf of the City of Biddeford, Jacques stated that the plaintiffs didn’t file their appeal by the 30-day time limit required by the court system.

In addition, he noted in the motion that the plaintiffs submitted did not include either the required brief or record of the city proceedings on the matter by the 40-day deadline.

Prior to the suit, cell tower opponents had attempted to place a referendum question on the ballot that would have asked citizens to overturn the city council decision to grant the contract zone that allows the tower to be constructed.

The group failed to obtain enough eligible signatures by the deadline, according to City Clerk Carmen Morris.

Novotny said more signatures were obtained and submitted to the clerk. Those signatures were submitted after the deadline that is required by the city charter, according to Morris.

On Sept. 16, a motion to rescind the council action allowing the contract zone failed 5-4, with Councilors Michael Swanton, John McCurry, Bradley Cote, Roger Hurtubise and Michael Ready voting against it.

— Staff Writer Dina Mendros can be contacted at 282-1535, ext. 324 or dmendros@journaltribune.com.