Mount Desert Planning Board Minutes
June 5, 2013
Town Hall Meeting Room, Northeast Harbor
Public Present
Jean G. Fernald, Jean Travers, James Allen, Gary C. Hunt (Attorney for Larry Stabile), Blaine Hopkins, John Fehlauer, Ted Bromage, Michael Deletetsky, Robert R. Pyle, Jerry Miller, Dick Broom, Margot Woolley, Gerry Vasiska, Thomas L. Fernald, Carroll Fernald, Barbara Craighead, Bob Gashlin (AT&T), Owen Craighead, William C. Fernald, Ruth Brunetti, Andrew Hamilton, Joyce Ashley, James Collier, Esq. (Attorney for the Planning Board)
Board Members Present
Sandy Andrews; Lili Andrews, Secretary; Ellen Brawley, Chair; Bill Hanley; Dennis Kiley, alt.; and Joseph Tracy
Kim Keene, CEO; Claire Woolfolk, Recording Secretary, James Collier, Town Attorney
I. The meeting was re-opened at 5:10 p.m. by Ellen Brawley. It is a continuation of the May 28, 2013 meeting.
II. Public Hearings
Conditional Use Approval Application - Continuation
A. Conditional Use Approval Application #001-2013
PROPERTY OWNER(S): Global Tower Assets, LLC
AGENT(S): ATC Realty
P. Andrew Hamilton, Eaton Peabody, Esq.
PROPERTY LOCATION: Someshenge Way, formally a portion of 1049
Main Street, Somesville
TAX MAP: 010 Lot: 147-002 ZONE(S): Village Commercial District (VC)
PURPOSE: Continued review of Section 6B.17 Wireless Communication
Facility – Cell Tower.
Sandy Andrews, Lili Andrews, Ellen Brawley, Bill Hanley, Dennis Kiley and Joseph Tracy are the voting members for this hearing tonight. It was established that there is no conflict of interest.
A review of documentation requested in order to complete the application commenced. Mr. Hamilton provided the board with an index to documents submitted into the Public Record.
Chairman Brawley began by asking Mr. Hamilton to review the documentation of notice to the owners of existing communications towers for this application’s co-location requirements in order to satisfy the requirements of 6B.17.7.a.
Mr. Hamilton submitted documentation showing that notice was provided to the owners of the three towers in the area: Verizon Wireless in Bar Harbor and Trenton, and Frontier Operating Partners in Southwest Harbor; affidavit from Ernesto Chua stating that there are three existing towers in proximity to the Town of Mt. Desert and that AT&T is co-located on these towers; and an affidavit from Blaine Hopkins stating that he did provide notification to these owners and included copies of the notices sent as well as the Certified Mail Receipts.
The affidavit of Ernesto Chua also stated that AT&T’s coverage from the co-location on these three towers or the proposed tower in Pretty Marsh is insufficient to provide effective cell coverage for the Village of Somesville and surrounding areas. As a Radio Frequency Engineer, he further states in his affidavit that it is critical to site the tower in Somesville for AT&T to provide a signal to cover the area.
Mr. Hamilton concluded that these documents precluded the need for a waiver on the co-location requirements, and if they did not, then they were sufficient to qualify for a waiver.
Chairman Brawley invited public comment. The public had no comments.
A MOTION THAT THE BOARD HAS RECEIVED THE REQUESTED MATERIALS FROM THE COMPLETENESS REVIEW FOR CO-LOCATION REQUIREMENTS WAS MADE BY MR. TRACY; SECONDED BY MR. ANDREWS
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (6-0)
Other documentation requested by the board was the Cumulative Visual Impact under 6B.17.8.g. Mr. Hamilton proceeded to distribute a letter dated May 30, 2013 from A&D Klumb Environmental referring to earlier reports dated March 14, 2012 and May 23, 2013. The letter states that these studies show no existing telecommunications towers proximate to the proposed tower that would be visible in Mt. Desert, and that the proposed tower is designed to allow up to four (4) communications carriers. In conclusion, there would be no cumulative visual impacts attributable to existing towers and that other towers which might be located within Mt. Desert would not need to be situated where both towers would be visible locally.
A MOTION THAT THE DOCUMENT COMPLETES THE REQUIREMENT FOR 6B.17.8.g. WAS MADE BY MR. ANDREWS; SECONDED BY MR. HANLEY.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (6-0)
For the record, Chariman Brawley stated that the application is now complete with the submission of these documents for 6B 17.7.a and 6B17.8.g and that the review of the LUZO standards could continue.
The Standards of Section 6 of the LUZO, as amended May 8, 2012 continued under review with Attorney Andrew Hamilton walking the board through the application submissions addressing each Section 6 requirement, beginning where they left off with Section 6B.17.7a (See attached checklist for CUA # 001-2013 for Findings of Fact and Conclusion of Law.)
Public Discussion
The public was invited to comment after each motion of the Conclusion of Law. The public commented only on Sections 6B.17.9, 6B.17.11, and 6A.1:
Section 6B.17.9 Design Standards: James Allen, who lives on Whales Back Lane across from Mt Desert Campground, commented on the visual effect of a mono-pole vs. a “disguised” tree. He asked the board if they had any discussions on using a disguise for the tower. Mr. Hamilton responded by addressing the tower as a disguised “monopine” by saying the branches are subject to breaking and that they look worse than a natural tree; people aren’t fooled by the “disguise”; and that they are a maintenance nightmare with safety risks of falling broken branches due to wind and snow. He would like to stick to the functional considerations of the tower.
Mr. Blaine Hopkins, representing the applicant – Global Tower Assets, LLC & At&T Mobility, noted that the branches must be replaced frequently and that the towers look hideous until the branches are replaced. Further, the falling branches cause damage to the antenna arrays on the way down. Mr. Bob Goshlin of AT&T discussed the significant difference in the profiles of a mono-pole vs. a mono-pine.
More comments were made to the effect that it is worse to try and make something look like something it is not, and that like telephone poles, people tend to not notice them after a while. It was noted by Mr. Hamilton that Acadia National Park’s representative, the Maine Historic Preservation Office, and two visual consultants have all said based on the proposed design in the application that the tower meets the analysis requirements for the view of the tower in the Section 106 Review and in the NEPA Review.
Mr. Andrews stated that he thought that it was a good point that neither Acadia National Park nor the Historic Preservation Office had raised any concerns with the design of the tower in the application. He concludes that everyone finds the design acceptable because the public was invited to comment at the first meeting and no-one has responded except for Mr. Allen’s remark tonight. Mr. Allen said he is completely in favor of the tower; he just wanted to discuss how to make it stand out less and, as a tourist driven business owner, to make it as attractive as possible for tourists. He also noted that it was important to address the safety and functionality of the tower.
Mr. Kiley asked Mr. Hamilton to explain the safety issues of a mono-pine. Mr. Hamilton outlined possible damage and safety consequences of falling branches to workers in the area and to the highway if the wind were to carry the branches there. It was noted that winds of that intensity are unusual is this area.
Chairman Brawley invited comments from Mr. Gary Hunt, attorney for Larry Stabile. Mr. Hunt stated that he didn’t have any comment from Mr. Stabile on this issue, they hadn’t discussed it.
Mr. Hamilton asked that the board refer to where design alternatives were addressed in the application’s Exhibit C pg. 19-21 and that some deference be given to the applicant’s experience base with the number of towers sited, which are 217 in Maine. Mr. Hopkins spoke about their experience with mono-pines and the breakage of the branches. He spoke of his visual observations from recent travel from Florida to Maine and that there were many “stumps” where poles had lost their branches and were not replaced.
Joyce Ashley shared her observations from a recent trip to the Rocky Mountains; cell towers are very common and that they are not disguised. She said you don’t even notice them because you are focusing on the surrounding natural beauty.
A discussion regarding the color of the tower ensued and Mr. Hamilton asked that the record show that an exception to above ground utilities under Section 6B.17.9.c. has been made. See Conclusion of Law for Section 6B.17.9 for the inclusion of the exception.
6B.17.11 Standards.
Mr. Hamilton reviewed the documents addressing the visual impact studies and mitigation measures. He stated that first you try to avoid impacts and then you try to mitigate impacts. Mr. Hamilton read into the record the letter to Mr. Hopkins from Audra Klumb dated June 4, 2013 with respect to visibility from the Stabile property. The applicant has tried to mitigate visual impact by choosing this location. Regret that even one property owner has a visual impact associated with this tower was expressed. The applicant has tried to site the tower with respect to the Bangor Hydro Electric (BHE) substation facility (adjacent to another industrial facility) on that end of the driveway and away from residential structures, as opposed to being closer to the road. By nature of the tower itself, it cannot be made
less visible and still function; the height is a functional necessity.
Mr. Hunt asked if the wording for the Conclusion of Law for 6B.17.11.a could be that the applicant has taken such mitigation measures as technologically possible. Since the overall purpose of this standard is to preserve and protect quality of life and character of the area, and that despite best efforts, it may not be possible to achieve that goal.
Mr. Collier, attorney for the Town, suggested that the Conclusion of Law be simple: That based on the Findings of Fact as stated, the standards of 6B.17.11.a have been met. He said arguments as to whether they have been met satisfactorily or are good enough would be appropriately determined under Section 6.A.1.
A short recess was requested at 7:25pm. The meeting resumed at 7:39pm.
6A.1: Compatibility
Mr. Hamilton read into the record the statement by Ernesto Chua that siting the tower at an alternate location would require the tower to be significantly taller or that multiple towers would have to be constructed in residential zones to avoid coverage gaps. He referenced the Town’s Comprehensive Plan and pg. 21 of the supplement that speaks to compatibility and alternative sites. He also referenced the Klumb Viewshed report of March 2012 in respect of the Somesville Historic District which shows no visual impact on historic resources. Ms. Klumb had several photos showing the results of a balloon test with no view of the balloon from public areas of the resources. Mr. Hamilton also cited a lack of utility services in some of the rural areas making it necessary for a telecommunications tower. Collectively,
these factors made alternative tower sites infeasible or less desirable than the proposed site. Finally, Mr. Hamilton directed the board’s attention to the fact that Bangor Hydro has constructed a significant substation in the village commercial district that is adjacent to the proposed tower location (approximately 400’ away). He also mentioned the numerous comments of residents supporting cell coverage not only for themselves, but for their customers and visitors as well.
Mr. Collier advised the board that the Finding of Facts for 6A.1 should reference Section 6.B.17 where each of the documents submitted supporting the compatibility have been thoroughly reviewed and not challenged, and that these standards have been adequately met. He also suggested that the Comprehensive Plan be referenced for what it says about cell towers. Additionally, he pointed out that the Pretty Marsh cell tower has been upheld by the court. Mr. Collier also stated that the board should take into account what the ordinance provides for (125’ cell tower) which was approved in a Town Meeting.
Mr. Collier further advised that nothing else was submitted by anyone to counter what the applicant has submitted and that therefore, they could only consider what is before them.
Mr. Hunt stated that Mr. Stabile is trying to engage the services of an appraiser and would like the board to give him the time to get those results before presenting to the board. Mr. Hunt was asked which standard of the ordinance addresses the effect on real estate values. He said he couldn’t reference one, but that the ordinance does speak to preserving character and aesthetic quality of a property. Mr. Hunt said he realizes that Mr. Stabile’s property is only one property adversely affected by the tower. Mr. Andrews said that unfortunately when something like a public utility is put in where the community gains as a whole, there is almost always some individual who loses. The board asked Mr. Hunt if Mr. Stabile had opposed the substation. Mr. Hunt did not think so, that he even may have given an
easement for it.
Addressing the issue of the cell tower, Mr. Hunt questioned how essential the service is; not everyone uses a cell phone. Mr. Hamilton countered with a case citing of Friends of Lincoln Lake where the board of appeals found wind turbines to be an essential service. He said that the town’s own ordinance defines a public utility in section 8-11 (which includes communications facilities) as essential services, and that there is no question that if the tower meets the conditions in the LUZO of 6.B.17, it is permitted and can be sited. Further, he has looked at the entire ordinance and has found no provisions where the planning board can take into consideration evidence of the impact on real estate values. Therefore, the appraisal would have no relevance to any ordinance standard.
Mr. Collier pointed out that it’s up to the planning board whether to allow the submission of additional evidence. There are submission standards in the organizational ordinance and rules of procedure that provide that submissions of additional evidence be submitted well ahead of time (5 days) of any meeting and for exclusion of additional evidence at the meeting unless they knew it was coming and exactly what it is (as in the case with the submissions from Mr. Hamilton earlier). He advised the board that they would be very safe on appeal not to consider the appraisal (if there was one) because it’s too late to introduce it.
Owen Craighead objected to the board considering this additional evidence that had not been submitted until now and that they did not, in fact, have before them.
Public discussion after the Conclusion of Law began. Mr. Collier stated that in the Pretty Marsh case the judge said that the court found implicit in the amended checklist prepared on June 25, 2012 that the town acknowledges the obvious impact the height of the tower at 125’ visually, culturally, historically and aesthetically on the abutting property owners and balanced it against the more significant town interest to determine the overall consequence.
Mr. Collier then invited Mr. Hunt to make an argument on behalf of Mr. Stabile. Mr. Hunt did not argue with the findings of the prior court case or any other findings from the current checklist. It was noted that the Chair had invited public comments several times throughout the hearing.
6A.9 & 10: Preserving the Town’s Character and Nuisances
To help the board clarify how the courts have ruled on the Planning Board findings of 6A.9 and 6A.10 recently, Mr. Collier reviewed the findings on two court cases:
1) Janet and Eugene Aubry vs. The Town of Mt. Desert etal. 2010 court case. The court finds that the standards set out in sections 6A.9 and 6A.10 of the LUZO of the Town of Mt. Desert are unconstitutionally vague such that it would not be possible for a person of common intelligence to reasonably understand what conduct is required and they are declared void. (decision from Justice Cuddy)
2) Three years later, Justice Cuddy goes on record saying in Reed, Miller and Miller vs. The Town of Mt. Desert etal and AT&T 2013 court case (Pretty Marsh Cell Tower) in footnote 1 – Town’s counsel in reference to Aubry vs. Town of Mt. Desert is inapplicable. That what the Aubry case dealt with was standards on nuisances (6A.10) as they flowed from preservation of the Town’s character (6A.9). It was only in that narrow context that they were found to be unconstitutional.
Both attorneys Hamilton and Collier advised the board to get findings on the merits of each standard to the extent possible, rather than simply finding them Not Applicable (Nuisances). The board agreed.
There was no public comment rebutting the findings or conclusion of law.
The board completed their review of the Section 6 Checklist. A withdrawal of the original motion to approve (see minutes dated May 28, 2013) was made in order to approve the application with conditions.
A MOTION TO RETRACT THE ORIGIONAL APPROVAL MOTION WAS MADE BY MR. ANDREWS; SECONDED BY MR. KILEY
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (6-0)
The application was approved with the following motion:
A MOTION THAT BASED UPON ALL THE FOREGOING FINDINGS OF FACT AND CONCLUSIONS OF LAW THE BOARD HEREBY APPROVES THE CONDITIONAL USE APPLICATION SUBJECT TO THE FOLLOWING CONDITIONS WAS MADE BY MR. TRACY; SECONDED BY MR. ANDREWS.
PERMIT CONDITIONS
1. Removal Performance Bonds must be submitted in a form and an amount acceptable to the Town Manager.
2. Self-testing function of generator shall occur only between the hours of 8am – 5pm
3. Monopole tower shall remain unpainted galvanized steel.
A VOTE WAS CALLED AND THE MOTION TO APPROVE WITH THE STATED PERMIT CONDITIONS CARRIED UNANIMOUSLY (6-0).
III. A MOTION TO ADJOURN WAS MADE BY MRS. ANDREWS; SECONDED BY MRS. BRAWLEY.
A VOTE WAS CALLED AND THE MOTION CARRIED UNANIMOUSLY. (6-0)
Meeting adjourned at 9:35 p.m. The next scheduled meeting/public hearing(s) is at 6:00 p.m., Monday, June 10, 2013 in the Meeting Room, Town Hall, Northeast Harbor.
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