October 11, 2013






Cell tower approved by board following contentious hearing
by Edward French and Lora Whelan


   After a four‑hour Whiting Board of Appeals hearing on October 1 with over 60 residents attending to hear why four residents of Yellow Birch Road were appealing a planning board decision to approve a permit for U.S. Cellular to erect a cell tower, the subsequent meeting held on October 8 by the board to vote on the appeal was a sedate affair. While the board took one and one‑half hours to read, discuss and act on the numerous parts and conditions, the conclusion stated the board's final decision. Only about 10 members of the public attended the second meeting.
     With unanimous approval board members Harold Crosby, Chair William Crosby, Steve Geel, Wendell McLaughlin and Donald Vose voted to grant U.S. Cellular's request to construct a "telecommunications facility consistent with this Notice of Decision, and in implementing this Notice of Decision, partially grants the appellants' administrative appeal and vacates the planning board's earlier decision, for entry of a new planning board permit approval of the telecommunications facility subject to the Conditions of Approval stated in this Notice of Decision at a meeting of the planning board within 30 days of the date of this decision."
     A large crowd had turned out for the October 1 hearing to consider the appeal by Cindy and Joseph Morrison, Alan Furth and Katie MacGregor of the planning board's July 29 decision to approve a permit for the tower on Yellow Birch Mountain. U.S. Cellular proposes to lease a 100' x 100' parcel owned by Daniel Smith that is near the mountain's summit. After more than three hours, though, over half of the people at the hearing had left. Of those remaining, almost all indicated that they supported U.S. Cellular's application, with only four, along with the appellants, being opposed.
     Andrew Hamilton of Eaton Peabody, an attorney for the town, acted through the board's chair, William Crosby, to direct the discussion, as the attorneys for the applicant and the appellants sparred over numerous issues. Although the board was considering an appeal of the planning board's approval for the cell tower, the parties had agreed that the board would conduct a de nouveau review instead of an appeal review.
     Sarah McDaniel, attorney for the appellants, raised several objections to the issuing of the permit, the most important ones, she said, being whether U.S. Cellular had met the collocation and structural design requirements of the town's Communication Facility Ordinance. She noted that the ordinance requires that the applicant provide evidence that no existing communication tower or structure could accommodate the equipment but that there was no evidence in the application that U.S. Cellular had contacted the owners of the SBA tower in Whiting.
     Richard Trafton, the attorney for U.S. Cellular, stated that no other facility is going to work in Whiting. Matt Straniero of U.S. Cellular explained that the company first looked at whether there is a suitable structure for collocation. The SBA tower is 8.7 miles away in western Whiting, and if U.S. Cellular used that tower there would be no cell coverage in the village part of the town. The Yellow Birch Road site would not only cover Whiting but would also provide overlapping coverage with the existing network of towers so there would be no holes or dropped calls at the bottom of hills.
     Concerning the structural design, McDaniel pointed out that the application provides materials for a sample design of a 190-foot tower, not the 230-foot tower that is proposed. Trafton and Jim Hebert of Black Diamond Consultants said that, because there is an expense involved in doing the geological testing of the site, the design would be provided to the code enforcement officer when a building permit is obtained. Trafton later said a condition of approval could include meeting the structural design standards for a 230-foot tower.
     In response to questions about maintenance of the road, Trafton said that U.S. Cellular would pay to repair any damage done to the road during the construction period and would post a bond to cover any costs incurred by the town. After construction, there would be only one vehicle per month, and during the winter they might use a snowmobile or ATV. The issue of whether the road is a public or private way is being determined in superior court, and McDaniel argued that there needs to be a clearer legal requirement that U.S. Cellular will maintain the road if it is a private way. Hamilton, though, replied that the appeals board cannot determine questions that are being considered in court.
     Concerning the scenic assessment requirements in the ordinance, Hamilton noted that the board is to determine if there are any sections in the town's comprehensive plan or ordinances that require that photo simulations be provided for the view from certain locations. Trafton said that U.S. Cellular could not find any designations of scenic vistas in the plan or ordinances. McDaniel said the appellants are requesting that photo simulations be shown from the Bold Coast shore, the village and a Route 1 rest stop. Board members all indicated that they believed that U.S. Cellular had submitted enough photos, with Chair Crosby noting, "They've already presented in the application any photos from any location that anyone would be seeing in town." The board then approved a motion stating that the photos submitted provided enough evidence.
     The tower would be 230 feet high, so that it will meet the ordinance requirement that a tower cannot be more than 150 feet taller than the highest point in the town, which is 386 feet. The top of the tower will be 532 feet above sea level and will be four feet under the maximum allowable height. McDaniel noted that the Federal Aviation Administration requires flashing lights for towers over 200 feet in height. She said flashing lights can attract migrating birds, so the U.S. Fish and Wildlife Service recommends that they be under 200 feet. Trafton responded that a reduction in height would limit the area that could be served, and the network with Machiasport, Cutler and Eastport towers would fail, with calls being dropped.
     U.S. Cellular agreed to provide a legal document indicating that an easement has been obtained from the owner of the property to the north, also Daniel Smith, so the tower can be within the required 110' property setback distance. In addition, McDaniel argued that an easement needs to be provided to maintain the current landscaping around the property. Trafton said the company also could provide an easement concerning cutting of trees.
     During the hearing, three of the appellants read statements outlining the reasons for their opposition to the proposed location. Alan Furth maintained that Yellow Birch Road is not an appropriate site for industrial or commercial development. Keeping it as it is would attract families to the area, as it would provide a safe place for children where families could enjoy the beauty of the town while living near the town center.
     Both Furth and MacGregor noted that U.S. Cellular has a lease on the Wallace Lyons property in Trescott, next to Hall's gravel pit. MacGregor also argued that use of the SBA tower would provide better cell coverage. She hoped that the town's residents would be able to determine what the community looks like. "If money talks, then we're in trouble," she said.
     Trafton responded that the U.S. Cellular had discarded the Trescott tower proposal when it was determined that a tower there would not provide overlapping coverage with other towers.
     Cindy Morrison noted that her home is less than 700 feet from the tower site. "I don't know how many people really want to be looking at that from their front door," she stated. McDaniel presented a map showing the year-round residences and summer camps on the road, arguing the abutting properties make up a residential neighborhood, not wooded lots as the application states.
     After a review led by Hamilton, the board decided that the application materials that have been submitted are sufficient. In applying the ordinance's standards to the application, the board indicated that the 146-page application either meets the required standards or will meet them with additional information that will be provided, except that more information will be needed on structural standards and visual impact. All three attorneys offered possible conditions that U.S. Cellular would have to meet.

Notice of decision conditions
     At the October 9 meeting the Notice of Decision was categorized in the following parts: the findings of fact and conclusion of laws regarding submission requirements and ordinance standards; standard conditions of approval and additional conditions of approval. In addition to meeting conditions already outlined in the town ordinance, the board of appeals approved additional conditions that U.S. Cellular will need to meet, including: specific conditions about road maintenance, new construction standards and bonding as well as facility removal bonding; a setback easement and vegetation agreement that restricts the "cutting or removal of trees and other vegetation on the landlord's property within 100' of the fence located within the 100' x 100' lease area"; and structural standards that conform to specific industry standards.

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