Town of Otisfield
Board of Appeals
Public Hearing Minutes
November 15, 2012
NOTES:
1. Tanya Taft – Secretary, absent the night of November 15, 2012 – TT transcribing these minutes on December 9, 2012 from a video cassette dated November 15, 2012 Board of Appeals Hearing. The tapes of this meeting will remain at the Town Office for Public Record.
2. The written decision of the BOA is submitted under a separate document and is part of the public record.
3. The following abbreviated outline minutes are for basic reference only. Due to the quality of the recording and the lack of correct usage (if any) of the microphone, the ability of the Secretary to attempt any transcription was severely hindered. The Otisfield Board of Selectmen agreed to allow the following outline to be used in conjunction with the audio recording of the hearing and the written decision of the BOA.
4. The Opening Statement below was provided to TT in writing by BOA Chair Anne Pastore.
Appellant: Kristen Roy on behalf of The Friends of Scribner Hill, Otisfield, Maine
Basis of Appeal: The Friends of Scribner Hill are appealing the August 21, 2012 Planning Board Findings Of Fact and Conclusions of Law approving the application of Maine RSA # 1 for a wireless telecommunications tower.
Standard of Review: Pursuant to Otisfield Board of Appeals Ordinance Section XI, the Board may reverse the decision of the Planning Board only upon a finding that the decision was clearly contrary to specific provisions of this ordinance or unsupported by substantial evidence in the record.
*FLAG SALUTE *Audience and Board members saluted the flag.
1. Call to Order: The Public Hearing was called to order at 7:15 PM at the Community Hall.
2. Attendance: Members present were: Chair- Anne Pastore, Vice Chair- Marianne Izzo-Morin , Recording Secretary & Alternate–Don Mixer, Sharon Matthews, Don Verrill & Janet Douglas
3. Quorum: Board had a quorum.
4. Secretary’s Report:
A. Meeting minutes from May 29, 2012 *Tabled until an upcoming meeting.
B. Meeting Minutes from July 10, 2012. *Tabled until an upcoming meeting.
Opening Statements: Anne Pastore: The purpose of tonight’s hearing is to hear the appeal of the Friends of Scribner Hill (FOSH) of the findings of fact and conclusions of law approving the application of Maine RSA#1, Inc. (US Cellular) for a wireless telecommunications tower issued by the Planning Board on August 21, 2012.
I will give you a quick summary of the procedural history of this case, so you all will understand the status. The PB held a hearing on USC’s application on January 17, 2012. John Poto appealed that decision to the BOA and by written decision on March 26, 2012, we denied the appeal. On May 4th, FOSH appealed the decision to the Superior Court. In July, the Court remanded the case to the Planning Board to make written findings of fact and conclusions of law, which they issued on August 21, 2012. The FOSH are appealing from the August 21st written decision of the PB. After we issue our decision tonight, this case will go back to the Superior Court, who will determine whether to uphold the PB’s decision. The Town’s Atty. Mary Costigan is here tonight because of the status of this
case and to assist in making sure that this hearing meets the legal requirements necessary to be presented to Justice Robert Clifford who is currently presiding over the law suit filed by FOSH against the Town of Otisfield in Superior Court.
The BOA has jurisdiction in this case pursuant to section V(5).C. of the BOA Ordinance and Section 10 of the Wireless Telecommunications Facility Siting Ordinance. The Board has limited jurisdiction in this case and will review the decision of the PB in an appellate capacity. We are not starting over from the beginning and conducting what’s called a “De Novo” or full review of this application process, nor the PB’s decision of approval. We will make our decision based upon the record that was before the PB.
The Board can only reverse the decision of the PB if it determines that the decision was clearly contrary to specific provisions of the Town’s ordinance or the decision is unsupported by substantial evidence in the record.
What that means is that this Board will not be taking any new evidence and will only be taking testimony related to whether the PB decision is contrary to the Town’s ordinance or the decision was unsupported by evidence in the record. This board may or may not consider any oral testimony that is opinion based, any documentation that lacks professional credentials or any position that lacks scientific evidence. We are not here tonight to decide whether the town is for or against a cell tower, we are here because the Appellants are (and I quote) “contesting the Findings of Fact and conclusions of law and associated permit for a telecommunications facility on Scribner Hill Map R2 lot 8A by the Town of Otisfield’s Planning Board on August 21, 2012” as stated on Page 1 of their administrative appeal.
This is not the opportunity to put on a case and present new evidence. Our decision will be based upon the record that was before the PB when they made their decision.
One important item to note is that many of the arguments we have heard from those that oppose the PB’s decision regarding the cell tower can only be addressed by amending the ordinance. That is something this Board has no control over. We are reviewing the PB’s decision to determine whether it was proper under the current ordinance. For those of you who are interested in discussing possible amendments to the current ordinance, the Town will be holding a public meeting in the next few months to receive your input on how you would like to see the ordinance amended. We are not going to discuss that tonight, but we wanted you to be aware that there will be a forum for you to be able to discuss possible ordinance amendments, again not the subject of tonight’s hearing. We will post more information as soon as
a date for the meeting is decided.
The Board has read the PB record and decision and has read the written appeal submitted by FOSH, so we are all familiar with their arguments regarding the PB decision.
The appellant in this case is Friends of Scribner Hill, a citizen group consisting of the following people: James Gregory, Katherine Brunette, John Poto, Kristin Roy, Kevin Cook, Cathy Dixon, Joseph Brown, G.E. Mary Williams, Michelle Huckins, Corey Huckins, Kim Gregory and Patricia Gregory. The majority of those individuals live on Scribner Hill Rd and claim to be aggrieved by the decision of the PB and are appealing pursuant to section 10 of the Wireless Telecommunications Facility Siting Ordinance.
In the interest of making sure everyone who wishes to speak gets a chance we will conduct the testimony in the following manner:
a. First, the FOSH will have 30 minutes to present its arguments. Time will be monitored by our Board and we will give you notice when you have 2 minutes left so you can wrap up your case.
b. The Board of Appeals, Town Officials and US Cellular may then ask questions of FOSH through the Chair.
c. Then USCellular will have 30 minutes to provide comments on the appeal.
d. The Board of Appeals, Town Officials and FOSH may then ask questions of USCellular through the Chair.
e. Members of the public who would like to provide comments will then be given 3 minutes each to speak.
f. Each person may speak only once.
g. At the conclusion of public comments, FOSH and USCellular will each be given an additional 3 minutes if they would like to add anything further.
h. If you are a member of FOSH, and do not get a chance to speak during the 30 minutes allotted to your group and wish to, you will be given 3 minutes to speak as a member of the general public.
i. To give your testimony, first raise your hand, wait to be recognized by the chair, then state your name and address for the record.
j. Please try not to be repetitive. If you agree with a previous speaker, please just state that you agree.
k. The Board may exclude irrelevant, immaterial or unduly repetitious testimony.
At the close of all the comments, the Board will begin its deliberations. There will be no additional comments from the public during deliberations unless the Board asks a question of a member of the public.
Finally, we ask that you treat the Board members and each other with respect this evening and keep your comments to the relevant questions that the board may consider tonight:
Whether the Planning Board’s decision was clearly contrary to specific provisions of the ordinance, and
Whether the Planning Board’s decision was unsupported by substantial evidence in the record.
5. ADMINISTRATIVE APPEAL:
Request for Reconsideration of the 08.07.12 Planning Board Findings of Fact (F.O.F.) regarding the cell tower. Anne Pastore: Kristin Roy as a signatory of the Appeals Application, you have the floor. Please stay on track and prove your case tonight by only providing evidence surrounding “which PB FOF and Conclusion of Law you are challenging and exactly what you’re contesting regarding the issuance of the associated permit.”
NOTE: It was determined by the FOSH that John Poto would speak first and Kristen Roy would then follow. Please now refer to the audio recordings for specifics of their testimony, testimony from US Cellular, testimony of the public and the BOA questions, comments, deliberations and decision.
6. Appeal for a Variance:
A. None.
7. Discussion & Comments from Board:
A. None.
8. Miscellaneous:
A. None.
9. Upcoming Dates:
A. On an as needed basis.
10. Adjournment: With no further business, the meeting was adjourned at 9:30 PM.
Respectfully submitted
Tanya Taft, Secretary
Approved by:
Anne Pastore, Chair
Approved on: December 13, 2012
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