CONCORD — Atkinson officials want a lawsuit filed against them to be thrown out.
The town is being sued by SBA Towers, a cell phone company that wants to add antennae to an existing 160-foot tower near High Hill Road.
The company has been trying to get approval for the antennae from the Board of Selectmen since 2008, when a denial by the Zoning Board of Adjustment was overturned by a federal court judge.
In its lawsuit, the tower company alleged that the selectmen established rules as they went along during their review of the plans, attempted to impose an illegal fee during the permitting process, and are preventing phone service from being provided to local customers, violating the federal Telecommunications Act.
Last week, town attorney Sumner Kalman asked to have the lawsuit thrown out. On behalf of the town, Kalman denied nearly all of the accusations against the town and called the company's use of the Telecommunications Act "misplaced," according to court records.
The town has faced off with the tower company once in federal court. In 2007, the town's Zoning Board of Adjustment rejected the proposed antennae. SBA appealed to U.S. District Court in Concord and Judge James Muirhead overturned the board's decision in September 2008. But Muirhead required SBA Towers to seek approval for the project from the selectmen.
Kalman has asked for the case to be thrown out of federal court because it should be handled by Rockingham County Superior Court, he said. A 2005 agreement with the previous property owners states that disagreements over the use of the land should be heard by Rockingham County Superior Court if the town and landowner cannot come to an agreement.
"They chose to go to federal court, which is a place we've already been," Kalman said.
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No ruling has been made on the town's request to dismiss the lawsuit.
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