Court rules against radio station owner

PORTLAND – An independent radio station owner’s plans to start a station in Hermon were dealt a setback Wednesday when the Maine Supreme Judicial Court ruled against him.

The court affirmed a Penobscot County Superior Court’s decision that the town of Hermon acted properly when it refused Daniel Priestly a permit for a radio tower in the town’s village commercial zone.

Justices did not hear oral arguments in the case, but relied on briefs and other documents.

Priestly, who sold WGUY-FM to Clear Channel in 2000, sued Hermon after the Zoning Board of Appeals denied his 2001 application to construct a “broadcast transmission facility” behind M & K Carpet on Route 2. Priestly sought to construct a 199-foot tower on land owned by Mitchell and Mary Gallant of Hermon.

He said Wednesday that now all local remedies have been exhausted, he can ask the Federal Communications Commission to intervene in the matter.

The FCC could rule that federal regulations governing the agency outweigh the local land use and zoning ordinance.

Priestly said he would consult with his attorney this week and decide how to proceed.

The town considered Priestly’s proposed “broadcast transmission facility” for a new commercial AM radio station to be a “communications tower.” The town’s code enforcement officer denied Priestly’s permit application because communications towers are permitted in three zones within the town, but not within the village.

Priestly argued the tower was one component of a radio station and therefore an essential service. Communication towers for “essential services,” such as those used by fire and police departments, are permitted in the village commercial zone.

The state’s highest court disagreed. “Under the Land Use Ordinance, the town is not an ‘essential service,’ first, because it is not a radio station, and second, because even if it were, a radio station is not an ‘essential service’ merely because it is required to participate in the Emergency Broadcast System,” wrote Justice Howard H. Dana Jr. for the court.

“Priestly also wrongly relies on the [FCC] rules and definitions in his interpretation of the town’s ordinance,” Dana concluded. “As noted, the primary source of the meaning of any term contained in a zoning ordinance is the ordinance itself.”

Priestly purchased licenses for two stations three years ago. His all-news station began broadcasting from Veazie last fall.

The tower for that station, 1340 AM, is located in Eddington, across the Penobscot River from Veazie.

He said Wednesday that the FCC normally gives a licensee three years to complete construction and begin broadcasting. Priestly said the FCC had “suspended the ticking of the clock” in Hermon until the dispute with the town is resolved.