Friday, January 18, 2002
Cell tower battle continues at conservation commission
Determined to pursue every trail that might lead to legal gold, opponents of a cell tower at 662 Bedford Road followed a somewhat overgrown path at the conservation commission's January 10 meeting. Wesley Stimpson of Canterbury Court presented a formal Request for Determination of Applicability (RDA) that asked the board to reconsider its August 2000 approval of an AT&T Wireless RDA that would allow them to install an electrical conduit leading to the proposed tower site at the rear of David Duren's property. The action pertained to the conduit alone, since the required trench would traverse a wetland buffer zone. The decision in no way applied to the proposed cell tower itself, which would be located outside the buffer zone.
Wetland boundaries questioned
The basis of Stimpson's argument for a reappraisal was that the wetland boundaries had changed substantially from those which appear in documentation submitted at the time the Canterbury Court development was approved in 1982. He claimed that the older map, on file at the Town Hall, indicated a 30-foot culvert and a small pond, while the wetland delineation done in the year 2000 showed a 100-foot culvert at an altered elevation and no pond, leading to a suspicion that the pond had been filled illegally in the interim. Further, Stimpson contended that the more recent re-delineation had been done in January, rendering it unreliable. Therefore he felt the commission should reconsider their action of August 2000 under the state Wetland Protection Act (WPA) and the town's Wetland Protection Bylaw as well as an old zoning bylaw that prohibits fill in a flood zone.
DEP advises no action
Conservation administrator Sylvia Willard informed the commission she had contacted the Massachusetts Department of Environmental Protection (DEP) to describe the request for reconsideration and was advised that they (the ConsCom) should take no further action, since the ten-day appeal period had long since passed.
When Willard commented that site visits had pretty much convinced her that construction of a water detention basin as part of the Canterbury Court project had caused the small pool to dry up, rather than willful mischief, Stimpson's wife Patricia went on the offensive. She charged that "the job the commission did in its decision a year and a-half ago was not thorough" because the flagging was done at the wrong time of year, and no one checked to see if the new and old plans matched. Predicting that "the town will end up in court," she advised the commission to "consult with town counsel about covering your bases."
Responding calmly, commissioner John Lee reminded Patricia Stimpson that when the matter was before the board in 2000, there was due notice of the hearing, and no questions were raised by the people involved. "Your criticisms are harsh, but they've been heard," he told her. Stimpson added that the proposed cell tower construction would come right up to the edge of the wetland buffer zone, and thus the accuracy of the delineation could be very important. Lee and his colleagues agreed, although they subsequently voted to follow the DEP's advice not to revisit their decision of August 2000.
Issue of jurisdiction
Despite this action the commission continued to probe the lingering question of who had jurisdiction over the disappearing pond. Chair Tom Brownrigg pointed out that the Canterbury Court development was approved before there was a WPA or a town bylaw to support it. Thus the old zoning bylaw was the only one that could apply to the pool, and that would appear to be a matter for the zoning board. Reminding the commission that although there was no WPA in 1982, there was a ConsCom, commissioner Lee suggested there might be a question as to its jurisdiction over the pool either then or now. The commission asked for a continuation until January 24 to allow them to explore the issue.
In a follow-up interview with Willard, the administrator noted that, although the wetland boundary was indeed flagged in January, it was rechecked by the wetland delineation expert in July preceding the board's decision. Also, according to the DEP, the decision was properly made on "existing conditions," which is their criterion in such cases.
Perhaps more to the point, the AT&T permit will expire in August of 2003, and if the project is not completed by that date, they will have to reapply to the commission. That might not seem an impossible goal until one considers the ramifications and impediments still facing the cell tower applicants in their attempt to get three or more variances approved by the zoning board of appeals. Add to that the strong probability that, if their opponents are successful in blocking them, they may decide to go to court under the Telecommunications Act of 1996, charging the town with obstructing cell companies from providing "seamless coverage" for their customers. Whatever town bodies decide in the short term, a prolonged court scenario may be in everyone's future.
© 2002 The Carlisle Mosquito