September 28, 2013





Whiting cell tower application to be subject of appeal hearing
 by Lora Whelan

   The proposed location of a U.S. Cellular cell tower on Yellow Birch Road in Whiting is the subject of a Whiting Board of Appeals public hearing scheduled for Tuesday, October 1, at 6:30 p.m. at the town office. Yellow Birch Road residents Cindy and Joseph Morrison, Alan Furth and Katie MacGregor filed the appeal after the July 29 unanimous decision by the town planning board to approve U.S. Cellular's application for the tower placement.
     Planning Board Chair James Burns explains that the board was guided by a "very good ordinance in place" and that the members believe U.S. Cellular's application followed the ordinance.
     Furth says, "There are details and procedures that we feel have not been followed." The notice of appeal filed by the four petitioners' lawyer, Sarah McDaniel of Maine Land Law LLC PC, catalogs two areas of concern: that the application does not satisfy the town ordinance location priority standards and that the application includes errors, misrepresentations and omissions.
     In addition to the appeal, Furth notes that the group has "prepared a request for a moratorium on cell and wind development" in order for the town to consider upgrading its ordinances. The town has a communication facility ordinance adopted in 2001 and a wind facility ordinance adopted in 2010.
     The 2001 Whiting communication ordinance was a result of a 1999 application by American Tower Corporation to place a tower on Yellow Birch Road. At the time there was no ordinance governing such towers. A complaint was filed by Yellow Birch Road resident Cindy Chagnon, now Cindy Morrison, against the town and American Tower Corporation. The complaint was dismissed by the Washington County Superior Court. However, American Tower Corporation did not follow through with its plans.
     In 2012 Washington County residents learned that U.S. Cellular was awarded funds through the FCC USF Mobility Fund to expand access to the region. Seven new sites eyed for cell towers include Eastport, Lubec, Cutler, Trescott, Alexander, Princeton and Whiting. The company is required to complete construction and begin to provide service by three years from the date of the award.
     U.S. Cellular Project Manager in Maine Richard Houde says, "The proposed tower in Whiting would bring new coverage to the town of Whiting, specifically along Route 1 between Whiting and Trescott, along Route 189 between Whiting and Trescott and along Old Cutler Road between Whiting and Cutler."
     When selecting new cell sites, Houde explains, "U.S. Cellular's team of system performance engineers conduct extensive tests to determine a location that will deliver strong signal strength and call quality. U.S. Cellular believes the proposed site is the best option to meet the cellular needs of the Whiting community. Whiting will continue to be without cellular coverage until a tower is approved and constructed."
     Renee Gray, an employee of Downeast EMS, is passionate about the importance of developing communication networks in the county. From her point of view, "It's a public safety issue." But it's also a matter of knowledge, she says. "There will still be a tower in Whiting," she explains, "but they [U.S. Cellular] would have to start from ground zero" if the planning board decision were overturned. "The public should know" about the appeal, she says. She has spoken to U.S. Cellular staff and explains that according to what she's been told the Yellow Birch Road tower "would have been up by the end of September if the [planning board] decision hadn't been appealed." She adds, "This was the one that was financed for 2013 because it bridges a gap. Eastport and one Lubec site are ready to go up, but financing is set for 2014." She pauses. The towers, she explains, "are all linked together, it's a network."

Status of Yellow Birch Road
     A separate issue requiring the town's attention is the legal status of Yellow Birch Road. Dennis Mahar, attorney for the town, explains that the town is seeking from superior court a determination as to whether the road is a town road, a public way, a private way with a public easement, or a completely private way. At issue, he says, "is whether the town has the obligation to maintain the road and to what standards."
     "The legal status of the Yellow Birch Road is very confusing and has been the subject of some confusion and controversy for many decades. At one time, it appears to have been a town road leading between what is now the state highway leading to Lubec, and what is now State Route 191 in Cutler, near Cutler village and what is now the Willy Corbett Field. Unfortunately, whatever action was taken to create the road has long since been lost and does not appear in the now existing records of either Whiting or Cutler."
     Mahar expects that the court will make the determination over the next several months. "There are still a couple of owners who have not responded, so we are seeking to notify under the rules of civil procedure. Once everyone has been notified, the court will issue a scheduling order. The board of selectmen and I hope to have a request for judgment before the court by year end. That will depend on the court's scheduling order."
     Mahar explains that most, if not all, of the landowners on Yellow Birch Road "have deeded rights of way over the road to access their properties, including, I believe, the owner of the lot where the proposed tower will be. Often, when property owners do not know for sure whether the road their property abuts is public or private, when they transfer that property they will include a right to use the road in their deed to anyone to whom they are conveying their property to assure access. So we believe all the landowners have the right to use the road and to convey their right to use the road, if it is private."

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