Friday, January 11, 2002
Still waiting for cell tower ruling
After many months of hearings, in which cell tower applicants presented their case for three variances for the placement of a 150-foot monopole at 662 Bedford Road, and abutters disputed their assertions, the complicated case was in the hands of the Carlisle Board of Appeals (BOA). Recognizing that rejecting the application may expose the town to litigation under the Telecommunications Act of 1996 and granting the variance may gut the town cell tower bylaw, the board moved cautiously. After sorting through the many issues, claims and threats, the BOA decided to defer the precedent-setting decision until a number of thorny questions could be reviewed by town counsel.
BOA authority clarified
On the surface it was a bit confusing. The BOA opened their January 3 meeting by closing the hearing. A bit contradictory, you might think. Not really, when the cell tower is the topic. There were few in attendance and the most excitement occurred when power was lost and the battery-operated lights came on with an annoying hum. Since the hum generated by a cell tower installation was an issue raised by the abutters, the irony of this sound effect was not lost on the few diehards in attendance.
The board made it clear that the town bylaws give the authority to grant a permit for cell towers to the planning board, not the appeals board. Only the land variances are the purview of the appeals board.
The applicants had originally asked for a special permit. However, since the initial application, the town rewrote their bylaws, and put the authority to grant special permits for cell towers into the hands of the planning board.
Sorting the issues
With that established, the board spent the evening discussing the issues, decided which issues were germane to the discussion, and which were of less import or not related to the land variances. Relegated to the latter category were such issues as wetlands, the conservation lands, plastic branches of the monopine, traffic to the site, commercially zoned property (it is residentially zoned), aesthetics of pole, and the property value impact.
Board member Hal Sauer initiated the discussion. The applicants' hardship claim has two components: first, they claim that the cell phone companies lack a strong enough signal in that area of Carlisle, and secondly, they claim that there is no other land available on which to site their tower.
Sauer said, "The residents have provided evidence that the cell tower isn't necessary (in both of these hardship areas). If the variances were granted they would gut the bylaws." He went on to say, "We are not in the position to eviscerate the bylaws. I have trouble with this." Clerk of the board Midge Eliassen agreed that Sauer had put his finger on the main issue. "That is the nut of it," she said. "The bylaw says variances can be given if they don't substantially derogate the bylaw."
Sauer continued, "When we put 17 houses within the 900 feet and one house within the setback of 200 feet would that not substantially derogate the bylaw? Our Town Meeting has voted it in and I don't think we have the power to change the bylaw."
Chair Terry Herndon brought up the "big gorilla:" the Telecommunications Act of 1996 which says that towns can't obstruct cell companies' efforts to provide seamless coverage across the country. Throughout the hearings, the applicants held the litigation sword over the board's head, as Herndon echoed the danger: "If a bylaw prohibits the siting, the court [may] ignore the bylaws and allow the permit."
Sauer reiterated his feeling about the availability of other land, which would negate the applicants' claim that there was no alternative. An example is the Woodward land on Bedford Road, which was offered to the cell tower companies as an alternative but which is currently under agricultural restriction. David Woodward came before the board at the last public meeting to reiterate his offer of land. The cell tower companies rejected this site due in part to its agricultural restriction and because variances would be needed for this site also. The abutters at that time said that the degree of variances would be dramatically smaller.
Eliassen reiterated that the question of hardship is based on both the gap in coverage, and that there is no other place. She said, "Whether or not alternate sites exist is relevant to the hardship issue."
Another topic that the board thought was relevant to the discussion was the issue of safety. Eliassen said the bylaw mentions "substantial detriment to the public good." Sauer added that the location of a house 200 feet from the pole makes safety a relevant issue.
The board also discussed a number of cell tower companies that have pulled out. Nextel, the original applicant at 1 River Road, has pulled out. Nextel's letter was read in part. It withdrew because it felt the number of terms demanded by American Tower was unreasonable. Also, it was concerned about the monopoly that existed and said that the environment was exploitative. Most recently Voice Stream also pulled out, stating that the project was unfeasible.
Questions for town counsel
The board realized that they had many questions for town counsel Rich Huxtel. Foremost was the question of how to handle comparing the evidence from the abutters versus the data and affidavits from cell company experts. Another question was whether the surface cabinets needed to store the electronic and electrical equipment are part of the tower variance or whether additional variances would be required.
In closing Eliassen said, "The 900-foot radius bylaw is a new variance for us...Whatever we do we'll set precedents for any cases in the future."
The BOA will meet again on Wednesday, January 9. They are under major time constraints as they must have their written findings in the hands of town clerk Sarah Andreassen by Thursday, January 31, or the variances will be automatically granted.
© 2002 The Carlisle Mosquito