Monterey Planning Board Public Hearing January 25, 2011
Minutes
Planning Board chair Maggie Leonard made sure that attendees have a copy of the bylaw and calls meeting to order. Leonard stated that the posters and charts displayed are not materials from, or the views of, the Planning Board, but that the board supports the airing of all views. Leonard begins with a request that a board member makes a motion to waive the reading of the bylaw (it’s 19 pages). Larry Klein makes a motion to waive the reading of the bylaw, which is seconded and unanimously approved.
Leonard provided a thumbnail sketch of the history of the current bylaw referring to the Telecommunications Act of 1996. First Monterey enacted a moratorium and then in 1998 Monterey finalized the telecommunications bylaw: Personal Wireless Service Facilities Towers and Repeaters. Leonard stated that the Planning Board worked with the Berkshire Regional Planning Commission (BRPC) on the bylaw (she was later corrected by Fred Chapman who reminded that in 1998 the board worked with Tony Blair as did most of the towns in Southern Berkshire County). Leonard also stated that at that time there was very little interest in wireless telecommunications for Monterey. The salient feature of the 1998 bylaw is the Wireless Telecommunications Overlay District (WTOD) of Mount Wilcox which is located in Beartown State Forest.
Since 1998 use of wireless telecommunications has greatly increased and that has put more pressure on the town to create a bylaw that would provide cell phone service. Essentially the message is that people in Monterey would like to be able to use their cell phones for reasons of convenience, health, and safety. It became apparent to the Planning Board that the WTOD of Mount Wilcox effectively prohibited cell phone service in Monterey. Also the board wanted to make sure that Monterey is in compliance with the 1996 Telecommunications Act with the understanding that not being in compliance would leave the town vulnerable to cell phone service providers enabled to circumvent our bylaw.
According to the 1996 Telecommunications Act, Monterey is able to choose where to put the towers. That is the control available to local governments. In March 2010 the Planning Board received at Local Technical Assistance grant from BRPC that provided the assistance of Brian Domina, a lawyer who specializes in community planning. The board reviewed the 1998 bylaw Personal Wireless Service Facilities Towers and Repeaters. The board discussed at length the siting of cell towers and the pro’s and cons of a site-specific overlay district and a town-wide overlay district. We looked at the telecommunications bylaws for other towns both in southern Berkshire County and the Commonwealth of Massachusetts. The Monterey Planning Board voted 4-2 in favor or pursuing the town-wide overlay district.
Why did the Planning Board decide to pursue the town-wide option? Firstly because of the varied terrain and topography of Monterey. We did not believe that as a volunteer citizen board that we had sufficient expertise to decide where cell towers would best be placed. Also the town-wide option provides for the possibility of 100% coverage. The town-wide overlay district still requires a Special Permit and the Planning Board believes that the Special Permit process provides the necessary oversight to protect the Town of Monterey.
Leonard outlined the what’s new in the bylaw revisions and compared and contrasted those to the current bylaw. The main change is the Wireless Telecommunications Overlay District (WTOD) is expanded from ¼ mile within the summit of Mt. Wilcox to include the entire town of Monterey. Also the proposed bylaw revisions add specific language requiring co-location of antenna on existing towers, include more restrictions for proximity to schools, playgrounds and athletic fields, and increases the distance for cell towers to residence to 600’. The proposed bylaw revisions also effects the Zoning Bylaw Section III. Districts. The Planning Board added the WTOD to “Types of Districts” and in Section III. C. Description of Districts.
Leonard asked if anyone from the Planning Board wanted to add anything before turning the floor over to the public. Planning Board member Larry Klein made a clarification regarding co-location on towers, stating “The bylaw requires that towers be able to carry up to six sets of antennas. If Verizon erects a tower they must allow AT&T, for instance, to use that tower. This negates the requirement for competing companies to seek different parcels of land for their own purpose. We believe that this is a great benefit to the residents of Monterey and restricts the number of towers that will be needed.”
Planning Board member Barry Karson wanted to clarify that the only kind of towers that are allowed in Monterey are monopole so residents should not fear a big lattice work tower. That reminded Planning Board chair Leonard that the bylaw draft under discussion had omitted under Section IV. F.4. that the definition would solely be a monopole. The board limited the bylaw to only monopoles because they can be camouflaged.
Planning Board member Stephen Enoch wanted folks to know that the bylaw revisions propose that any cell towers in Monterey must serve a majority of Monterey, that in order to construct a new tower companies must prove that no existing tower or repeaters can be used to provide service, and there are setbacks for wetlands.
The floor was opened to members of the public and Leonard recognized Jon Sylbert. Jon thought that the bylaw stated that a tower must provide service to a majority of Monterey. Klein corrected him and clarified that a majority of the service provided must be to Monterey, and not, for instance, New Marlborough. Fred Chapman clarified that the initial bylaw was not in conjunction with BRPC but with Tony Blair, and that the Monterey Planning Board had worked with an engineering firm that showed propagation studies that demonstrated that a tower on Butternut would be cover 80% of Monterey.
Karen Shreefter thanked the Planning Board of its hard work. Joe Baker wanted to know what would happen if the town does not pass this bylaw revision? Leonard responded that this is a matter of debate. Some people believe that our current bylaw is so out of compliance with the Federal mandate that Monterey could be vulnerable to lawsuits, and others opine that the bylaw was created in good faith and that Mount Wilcox is a viable site for a tower and that protects the town. Fred Chapman again made the case for Mount Wilcox as a viable tower location. Klein responded that in discussions with engineers from AT&T he was told that Mount Wilcox would cover the areas they want to cover.
Monica Webb said cell companies don’t want to wait. She said there are tons of antennas on Mount Wilcox so it must “work.” Webb also alerted folks that the towers are not limited to cell phone service and that the towers include fixed wireless broadband. These kinds of towers have a much higher requirement for proximity to user and a clear shot for the signal (zero foliage). Webb stated that a company that provides this service had already made a presentation to the Town and that it would require a minimum of 8 towers to serve Monterey. Webb is a representative to Wired West and said that Monterey is a charter town and that people will need to presubscribe to finance the system. Webb thinks that the proposed bylaw revisions will undercut the efforts of the Wired West collective.
Kate Ryan said that some people are sensitive to wireless communications, that she is one of them, and that it is a terrible illness. Kate stated that she knows the 1996 Telecommunications Act prohibits people from opposing cell towers for health reasons, however she said she has a right to be healthy. Ryan said that school systems across the country are taking wireless out and installing fiber optic systems.
Wayne Burkhart said that Monterey needs to decide, “What does the town want to do with this issue? Where do we want to go with this?.” Burkhart stated that he doesn’t want people to get bogged down in technical issues without addressing this first.
Joe Baker expressed environmental concerns and wanted to know what kind of power the town would have over things like road construction, and how we would monitor the environmental effects of the towers, and if the radiation would effect the local wildlife and plant life. Baker requested that an Environmental Impact Statement be required. Board member Enoch replied with the setback requirements of the proposed bylaw, said that the utility poles to the installation must be buried, and that there must be 100’ of vegetated buffer. Enoch also enumerated the boards that have input in the Special Permit process. Baker wondered if there could be a requirement for an EIS.
Bob Lazzarini thought the bylaw was good in that it shows where towers are prohibited, and he wanted to know what regions of the town are viable for cell towers? Leonard responded that at this point the technology requires that the antenna be an elevation, and the best way to view properties in Monterey that are above 1500’ is to look at the Scenic Mtns Act. Nancy Marcus stated that the Scenic Mtns Act would prohibit a cell tower and Leonard stated that she thought the 1996 Telecommunications Act would trump the Scenic Mtns Act. Marcus went on to say that we should be looking at the health and well-being of the town and she didn’t understand why we can’t use Mt Wilcox. Marcus stated that there are “tons and tons of studies” that show that non-thermal radiation has a deleterious effect on the
DNA of life on earth. She said that the FCC was not in the business of insuring the public health and perhaps Monterey would be best served by going into Federal Court because the whole 1996 Telecommunications Act is unconstitutional.
Karen Shreefter pointed out that it’s the cell phones themselves that are associated with cancer and not the cell towers.
David Dempsey, who was instrumental in creating and implementing the Scenic Mts Act in Monterey, recalled when the public hearing for that and how controversial it was. At that time many people objected to what they believed to be an incursion by government on their personal property rights. He also mentioned the Special Permit process and the oversight of the ZBA and all the town boards that are involved.
Planning Board member Bridget Krans said that the Planning Board had checked with Town Cousel Jeremia Pollard and that in his opinion if a service provider took Monterey to court—if they did not receive a variance—that Monterey would lose. Laura Catullo said that with all respect to Jeremia she’s not so sure that that’s true. Laura said in litigation for the first five years the cases are “about evenly split” with municipalities winning 50% of the time. Barry Karson said “Yes but they have a bylaw and we don’t.” Catullo suggested that the Board hire an expert. Leonard added that Monterey is in a unique position with no cell towers. Kate Ryan said it would be nice to have more details from the carriers about why Mt Wilcox won’t work then we could make a decision
if we really need to change the bylaw.
Barbara Swann stated that the Attorney General’s office will give an opinion on a bylaw prior to its adoption. In the event that the board would like to have the bylaw “vetted” prior to town meeting.
Ian Jenkins concerned that the people raising questions are “essentially just throwing out obstacles.” He thought that the bigger question is do we want cell service and, if so, how do we then make it appropriate to Monterey?
Micky Jervas said that cell phone service is a health issue. She said she’s sorry that some folks have health issues from the technology, but that by and large most people do not. Whereas if she takes a walk and twists her ankle she has no way of being helped. She said if one is driving on Route 23 towards Otis (as she does every day for work) there is about a mile with no homes. If your car breaks down you are really stuck; plus many homes are empty in the winter.
Ian Jenkins said that New York city “has thousands of cell antennas and millions of cell phone users” and there has not been an increase in disease. Jenkins said that as a physician he has not heard of any public health boards even raising concerns.
Fred Chapman recalls that the State was encouraging towns to use state lands. Chapman also said that if the ZBA needs very clear guidelines to decide cases, and that the bylaw needs to be very specific.
Cliff Weiss said we are here to discuss the proposed changes to the bylaw. We are not here to debate the health effects or anything else. The question is, is this bylaw better for the town than the existing law and that should be the nature of the discussion. Anything else is a separate topic.
Jon Sylbert said he believes that the application that was currently rejected by the Building Inspector was the first one, and that in the past 15 years no one has even asked for a permit. He said Monterey should not be worried about lawsuits. Sylbert also wanted to clarify the Special Permit process and asked how many on the ZBA have to vote in favor for a special permit to be granted? Bob Lazzarini answered 4 out of 5. Lazzarini said that in deliberating cases one of the primary things the ZBA looks at is how it effects the neighborhood, will it be detrimental? He noted that these towers are large and since Monterey has nothing even resembling an industrial district, how will the ZBA decide which place is the most harmonious? What about the aesthetic component? That is going to be very hard for the ZBA to decide. Enoch
noted that the balloon test might help the ZBA in that regard.
There were questions about the height of the towers. The proposed bylaw requires that towers be under 199’ so as not to conflict with FAA regulations and to avoid lighting the towers. Mark Arone from AT&T said that for the tower proposed for the New England Keswick they would need about 150’ tower.
Jon Sylbert wanted to know if there is wording in the bylaw that would allow the ZBA to reject a permit request? He said if the ZBA doesn’t have that it doesn’t matter if there is a balloon test or not. Enoch cited the bylaw section that would help the ZBA. Rob Hoogs cited page 14 of the bylaw as further support for the ZBA and as safeguards for the town and as comparable to other towns in south county.
Nancy Marcus said that it is well documented that cell towers reduce property values. Marcus called for the town to perform a health study that would be re-done every five years to see if people are getting sick. Marcus also stated that the town should find out if these companies offer liability insurance in case of health effects, sickness, accidents, and lower property values.
Kate Ryan said that realtors would be the best people to know what the effect on property values would be, and that in a court case (she read about online) when a town rejected a tower the information submitted by the realtors was taken very seriously.
Laura Catullo said that the towers generate a certain amount of noise, and that they give off a low frequency noise—a pure tone. Catullo said that she is concerned about noise not just in the proximity of the town but also “radiating around town.” Mark Arone (AT&T) said that the equipment makes a low noise no louder than a normal conversation. Plus their equipment is housed in a shed further mitigating the noise.
Barbara Swann said that if research in the future demonstrates deleterious health effects and/or regulations change, can it be written in the bylaw that the vendor and the landowner must comply to the new standards within 6 months?
Jon Sylbert requested that the Planning Board outline the process moving forward with the bylaw. Leonard explained the process.
Monica Webb asked if the board would delete the words “wireless broadband” from the bylaw? Leonard said they would discuss it at the next Planning Board meeting. Klein said that removing the broadband provision would probably not work. Ian Jenkins said how we can’t anticipate future technology? Hoogs said that to his knowledge our bylaw cannot restrict certain kinds of service.
Submitted by,
Maggie Leonard
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