A 120-foot cell tower will be built in East Boothbay, after all.

The Boothbay Board of Selectmen voted unanimously on Nov. 12 to enter into a consent agreement with a Kennebunk-based telecommunications business to build the tower.

Prior to the agreement, Mariner Tower II had filed a federal lawsuit claiming it was twice improperly denied a use variance. The selectmen settled the pending litigation after its legal counsel and town manager advised the law was on Mariner Tower’s side.

In town attorney Sally Daggett’s legal analysis, it appeared federal law trumped a local ordinance. The town’s zoning ordinance prohibits cell towers in East Boothbay. But the Federal Telecommunications Act of 1996 disallows municipalities from taking actions that have the effect of prohibiting wireless telecommunications services.

In summarizing the board’s decision, chairman Steven Lewis believed pursuing the matter would be expensive and futile.

“I’d love nothing more than to go to court and win. But what I don’t want is to go to court and lose,” Lewis said. “I don’t believe we have a strong case. Three experts — including two of our own — have concluded there is a coverage gap in East Boothbay. I can’t see spending at a minimum of $100,000 of taxpayers money for nothing.”

The consent agreement requires Mariner Tower to follow regulations instituted by the town several years ago when another cell tower was constructed. The agreement also calls for Mariner Tower to provide space for municipal emergency communications, a fund to pay for the structure’s future removal, and $2,500 to pay a portion of the town’s legal fees.

Town Manager James Chaousis estimated the legal costs charged by Daggett’s firm of Jensen, Baird, Gardner & Henry was “about $15,000.”

Board of Appeals member Scott Adams understood the board’s desire to avoid court, but he believed the town should have gotten a better deal. He pointed to the lease agreement between Mariner Tower and land owner Lucy Ann Spaulding as a potential problem. The two have a 50-year lease.

Adams advised most tower lease agreements around the U.S. lasted between 5-10 years because technological advancements may make the towers obsolete. He believed a better deal was possible if the town negotiated from a  position of strength rather than weakness.

“We’ve been told from the ‘get-go’ we can’t win the case. Mariner Tower pretty much knew what our hand was, and that we were shaking in our boots the whole time,” Adams said.

Daggett disagreed. She believes, “based on the facts,” the town negotiated a favorable agreement. She estimated Boothbay received “about 90 percent” of what it asked for. She also said the time for negotiations had ended.

“They have basically told us to ‘take it or leave it’,” Daggett said. “They’ve already agreed to a large number of conditions that they were not very happy about. We asked them to pay for all of our legal costs and they agreed to pay $2,500, but not all.”

Had Boothbay proceeded with the lawsuit, it risked losing in court and not being able to place any restrictions on the proposed cell tower.

The selectmen hope the consent agreement will spur more changes in the town’s land use ordinance. The board endorsed a proposal to make cell towers an allowed-use throughout town along with new restrictions on the structures’ operation.

The selectmen want the planning board to start working on proposed changes in time for consideration at the May town meeting.

East Boothbay Resident Jean Reece-Gibson thought the selectmen’s action was long overdue. She was part of a group in June 2013 that lobbied the board to adopt a moratorium on cell tower construction.

Reece-Gibson believed the town could have avoided many of the problems associated with the  lawsuit if the selectmen had acted.

“Forgive me for saying I told you so, but I just can’t help myself,” said Reece-Gibson. “If an independent group comes to the board again sincerely wishing to solve a problem, I hope they’ll be confronted — with people a bit more receptive and circumspect — with what they have to say.”

Chaousis disagreed with her contention. He said the board took the East Boothbay residents’ concern seriously in 2013, but the selectmen were working with the planning board on instituting several complicated changes to the zoning ordinances, which took precedence over the cell tower issue.

“This has been part of a two-year process.The town has been reviewing the land use ordinances and updating the comprehensive plan. So don’t put the cart before the horse,” Chaousis said. “The selectmen weren’t going to make a rash decision on a cell tower moratorium at that time because they were working on higher priority issues.”

Reese-Gibson disagreed. She believed town officials could have instituted the restrictions on cell tower construction last year.

Adams believes the consent agreement will bring about 2-3 more cell towers in East Boothbay. He hearkened back to the August Appeals Board meeting when an AT&T representative indicated more towers were needed to address the East Boothbay coverage gap. AT&T is Mariner Tower’s client.

The selectmen hope changes in the zoning ordinance will place more restrictions on future towers than the consent agreement now requires.