Friday, January 18, 2002
Board of appeals struggles with cell tower issues
The board of appeals continued their open deliberations for granting the variances requested by American Tower Corporation and a number of cell phone companies to site their 150-foot stealth monopine cell tower on the Duren property at 662 Bedford Road. Town counsel Rich Hucksam was present to give the board guidance on how to proceed in their deliberations, and more specifically, what issues were germane to the discussion and which could be omitted from consideration.
The board has major time constraints as it has pounds of data to sift through that were submitted over the past six months by the petitioners and the opposing abutters. They must have their written opinion in the hands of the town clerk by January 31. If they fail to do this, the variances are automatically given to the petitioners.
The board had decided last week that they needed guidance from town counsel on a number of issues:
· Wetland issues. This issue was raised by the abutters as they claimed they had evidence that there was an illegally filled wetland in this area, and asked the board to delay a decision so that the conservation commission could look at this more closely. (See "Cell tower battle continues at ConsCom" on page 7.) Hucksam said that this was not relevant to these discussions and that the board could not put off making a decision because of it. It is only relevant if it impacts on soil conditions under the proposed tower.
· Plastic branches. There was some evidence during the hearing that the plastic branches would fall off the tower on a regular basis and would be unsightly and dangerous. Hucksam said that the plastic material is not relevant to the decision. It would only be germane if it relates to the safety issue of falling branches.
· American Tower not a cell phone company. This issue relates to a discussion about whether American Tower, which is not a cell phone company but a major construction business, would be covered by the Telecommunications Act of 1996. Town counsel deemed this was not a "substantive issue."
· Other town lands available. This issue deals with whether the board should consider the issue of availability of town, state or federal conservation lands. Does the difficulty in obtaining permission to use any of those options make them not a viable alternative? Counsel said, "What sites are available is important to your decisionalternative sites is a critical issue. The board should look at specific sites and see if they are really unavailable, [however] the decision is based on evidence on the record."
· Property values. This issue relates to the conflicting information presented to the board regarding the deterioration of the abutters' property. Counsel said that the board has to make a judgment on what's been given. "A property owner can give an opinion. Also, local realtors' opinions could be considered expert."
· Noise. The issue of a humming sound from cooling equipment, along with vehicular traffic, should be dealt with by the board, counsel advised, and should be considered with the "weight and value of evidence on record."
· Special permit. Last week member Shann Kerner noticed that the initial request by the petitioners was for a special permit along with the variances. Under the change in bylaws, this board is unable to issue special permits for cell towers. The counsel gave the opinion that it was an inadvertent check on the application. But in order to ensure that, the board when offering its opinion should specifically say that the application was for a variance, and not a special permit, and that the applicant must obtain other necessary permits.
· Cabinets. This issue relates to the cabinets and other wooden structures necessary to house the telecommunication equipment that accompanies the tower, and whether these structures need additional variances. Hucksam advised that these should be part of the wireless communications facility. They don't need additional variances, but should be subject to the variances of the tower. Thus the 900-foot setback requirement would refer not only to the tower, but the edge of cabinets.
· Derogation of bylaw. This issue refers to the town bylaw which states siting requirements for cell towers. The question of what kind of derogation from the bylaw should be permitted was raised. Hucksam said that this was a judgment call, but that it must be a substantial derogation of the bylaw, and not a minimal one. The board must look at the statement of purpose of the wireless facility by law and at its intention.
· Safety of pole. This issue is largely related to the safety of the pole and if it fell would there be substantial detriment to the public good. This issue has been hotly discussed because of the proximity of a Pei residence at 97 Stoney Gate that is within 200 feet of the proposed structure. Town counsel said that the board must look at the evidence presented to make a determination.
· Variance amount. Hucksam counseled that the degree of variance needed on any one particular property is relevant to the issue of substantial derogation as written in the bylaws. In other words, as restated by member Sauer, "If there are sites that would require less variance, that is germane to our decision."
· Alternate sites. This relates to the issue of substantial prohibition as stated in the Telecommunications Act. If applicant shows that further efforts are fruitless, that is substantial prohibition. Hucksam said, "If an applicant has conducted a great search and says there wasn't any other place to site its facility, the board doesn't have a burden to provide another site, but it has to refute [the applicants' assertion]." He said that the board must look at the evidence presented.
· Hardship. The two issues of gap in coverage, and no alternative siting are the essence of the case of hardship that the applicants have made. Town counsel told the board that they have to address this issue of hardship, "Not making a determination of hardship would put you in jeopardy in the courts." He went on to say, "If other sites are available, there is no hardship."
Clerk of the board Midge Eliassen summed up the board's work at hand. She said, "This is a local zoning board, operating under bylaws passed by the local community. However, we can't work only in that small box. The Telecommunications Act and case law must be part of this decision."
© 2002 The Carlisle Mosquito