Wellfleet Planning Board
Minutes of Meeting of June 19, 2002
Town Hall Hearing Room
Present: Dennis O'Connell, Chair; Lisa Brown, Helen Miranda Wilson, David Wright, Alfred Pickard, Gerald Parent, Mark Berry; Rex Peterson, Assistant Town Administrator
Continuation of Sprint Hearing. Chair O'Connell opened the meeting at 7:09 p.m. and announced that the first order of business would be the continuation of the Public Hearing of May 15, 2002 on Sprint Spectrum's request for a special permit to co-locate on the Nextel Tower on Gross Hill Road (see minutes of 5/15). Sprint was again represented by Atty. Scott Lacy, Elizabeth Clouthier, and Yogesh Shah; the hearing was attended by abutters to the Gross Hill Road site and interested townspeople. Lacy recapped the earlier proceedings, commenting that Sprint wished to locate at 90 feet on the 140-foot tower on which antennas for Nextel, AT&T, and Verizon and whip antennas for Barnstable County and NStar are already planning to locate. Chair O'Connell ran through questions raised at the last
session and read the answers received from Town Counsel Barbara J. St. Andre of Kopelman and Paige (letter dated 6/12/02) and from Tana Watt, Project Planner for the Cape Cod Commission (letter dated 6/6/02). Board discussion of these issues followed the Chair's reading of portions of these letters into the record.
Helen Wilson, considering St. Andre's citation of the case of Omnipoint Communication v. Town of Lincoln, stated she wished to discuss this case further in regard to its decision concerning a "significant gap" in wireless services. Wilson asserted that this case was the first time the number of users as well as the distance was considered but that the judge did not give any physical sense of size or of how many people were affected. She stated that the distance where coverage was not seamless was 4-5 miles on Route 2 with the number of users being about 20,000 people per day, whereas Wellfleet's distance is 1-2 miles on the Wellfleet-Truro border with a traffic count at that border (March 1995) of 5200 per day and in the summer on Route 6 in North Wellfleet
of 26,000 cars daily. Scott Lacy stated that the break in Sprint's coverage was 1.6 miles.
On discussion of Watt's suggestions to the question of whether the Planning Board should require Nextel to construct and certify the structural integrity of the facility for the sixth carrier on the pole, David Wright pointed out that St. Andre had suggested that Board might condition that Spring's antenna not be installed "until the engineer's certification of the original monopole and five antenna array has been submitted."
Helen Wilson asked Gerry Parent, who owns a Sprint phone and had driven through the area to test his coverage, to describe his findings. He stated that he traveled north on Route 6 into Truro, losing service around Gross Hill Road and not picking it up again for about 4 miles (around Bayberry Gardens). He then continued two miles on strong service, turned around, lost service at Truro Center, picked it up but then lost it again until Gross Hill Road, giving him a total of 4 plus miles in both directions with absolutely no service--almost a two mile radius at Gross Hill Road. Scott Lacy noted that this was consistent with the gap shown on Sprint's coverage material. Helen Wilson stated that the map Planning Board saw from Sprint was a projection of the coverage
Sprint will gain when location is made at the Truro transfer station as well as on the Truro Police tower.
The Chair asked for further comment from the Board; there being none, he called for public comment.
Christopher Perez of 80 Gross Hill Lane, speaking in behalf of himself and Gross Hill Lane neighbors whose names he read into the record, asked permission to read aloud his letter to the Planning Board of June 16, 2002, the purpose of which was "to express our objections to the . . . application and to request the Wellfleet Planning Board to reject the application." He argued for testing of equipment for cumulative impact and emphasized that there should be no rush to approve co-locators.
David Wright asked Perez on what basis, if the Sprint application was denied, he based his opinion that the Nextel tower would not be built. Perez stated that Nextel was bumping up against the deadline date on which its special permit would expire, that it has lost five billion dollars in the last three years and was a company whose value has diminished. Wright asked whether the clock stopped on the permit if Sprint were to sue the Planning Board and was answered no. He then asked if the Sprint representative knew why Nextel had not begun building; Scott Lacy said he did not.
Helen Wilson stated that the Board could not prohibit licensed providers from building, that the Board did not want to thwart Sprint in any way and could not discriminate against them.
Perez then mentioned his letter to the ZBA (June 15, 2002) in which he stated that the Consent Decree with Nextel required the posting of a surety bond with the town treasurer for removal of the tower. Also, he asserts that the height of the monopole is exceeded by the top antenna array by 2.5 feet. The Chair ruled that these statements were inappropriate to this particular hearing, as they related to the Nextel permit, not the Sprint application.
To Perez's contention that in the Notice of Decision and Consent Decree it appears that the intent was not to consider co-locaters, the Chair disagreed, pointing out a statement that others could be considered. Perez continued that pre-existing structures (for Sprint's colocation) were dismissed in a matter of four sentences in the application. He added that there had been no attempt to address any minimizing of incremental visual impact. Gerry Parent called a point of order, stating that the Board was rehearing the Nextel hearing. Chair O'Connell stated that Sprint had addressed visual impact in the bylaw 6.18.2.9. Perez stated that he wished to consider the cumulative visual impact of all of these service providers, referring the Board to the letter from
Richard Rigolo (dated 6/18/02). At this point, the Chair stated that Mr. Perez had used his available time, as the Chair had earlier requested that statements be concise and limited to 5 minutes.
Helen Wilson asked if it were possible that no analysis of electromagnetic radiation of all carriers had been done, and was answered that the Cape Cod Commission has done such an analysis. Wilson continued that she brought up this point because it is part of the commitment of all carriers on the tower and that she realized that she was referring not only to Sprint but to the earlier contract with Nextel. Rex Peterson then read to her the pertinent information from the DRI.
(At this point, the Chair, recognizing that other agenda items needed to be covered, suggested that the hearing recess. Helen Wilson moved and Lisa Brown seconded the motion that the hearing be recessed until completion of other agenda business; motion passed unanimously, 7-0. The recess lasted from 8:15 p.m. until 9:00 p.m. For purposes of consistency, however, this other agenda business will be reported further on in the minutes.)
Mr. Perez, summarizing, concluded that in his opinion Sprint had not complied with the bylaws of the town concerning alternate sites, radiation patterns, no contract pursuant to the bylaw, and he asked the Board to consider the cumulative impact of radio frequency radiation according to FCC limits. He further stated that Gerry Parent had interest in the Gross Hill area in his ownership of property and asked if that was a conflict of interest. Parent answered that he had tried to call the Ethics Committee concerning this and had gotten no reply, that this ownership was of a 40 foot by 120 foot road called Nowhere Way, that the road was neither a buildable lot nor did any part of it abut on the tower site, and that he felt that he would realize no gain whatsover from the
tower. Perez then asked whether the improvement of Parent's cell phone service because Sprint goes on the tower was an issue for Planning Board to consider. Chair O'Connell answered that it was use of a retail product and had no impact. Perez then stated that Nowhere Way was a "gateway to a land-locked property" of several acres and the only way to get in; Parent responded that the road dead-ends in land-locked property owned by 15 - 20 people and that it does not abut on Commonwealth Electric. He then explained the exact location of the road to the Board.
The Chair invited other public comment.
Brent Harold stated that he believed a lot of citizens would like to see this Board be as aggressive as possible, that Planning Board had turned down the Nextel proposition in the first place and that he wanted to see this Board "reverse the reversal."
The Chair suggested that the Board now close the Public Hearing to go to deliberations. Helen Wilson asked if the Board felt it had asked everything it wished from Sprint. Chair O'Connell moved and Mark Berry seconded to close the Public Hearing; the motion passed unanimously, 7-0. The Board began deliberations, moving through the bylaw (6.18.) as the basis for findings of fact. Results follow:
6.18.2.1 Satisfied
6.18.2.2 Not relevant--Sprint only being considered, not the whole tower
6.18.2.3 Satisfied
6.18.2.4 Satisfied
6.18.2.5 Gerry Parent moved, Mark Berry seconded, that the amount of the removal bond be $25,000. Chair O'Connell amended the motion by adding the words "adjusted for inflation" at the end. Amendment passed unanimously; motion passed unanimously; 7-0.
6.18.2.6 Satisfied
6.18.2.7 Condition: Lighting must be shielded from all abutting properties.
6.18.2.8 Satisfied
6.18.2.9 Satisfied
6.18.2.10 Satisfied
6.18.2.11 Hazardous waste discharge (6.18.2.11.1) is Condition 10 in DRI
Finding on Noise Study (6.18.2.11.3): Sprint's report (Cavanaugh and Tocci, Inc.) states the noise level will be acceptable; Sprint has an obligation to live up to this or be in violation of the law.
6.18.2.12 Satisfied
6.18.2.13 Satisfied
6.18.2.14 Certification--Will test this against 6.18.2.15 and 6.18.2.16.
6.18.2.15 (A) Redacted copy of executed contract/lease is not adequate; Board asks for complete copy. (B) Satisfied (C) Satisfied (D) Applies to Nextel
6.18.2.16 Not applicable
6.18.2.17 Satisfied
6.18.2.18 Satisfied
6.18.3 Satisfied
6.18.4 Satisfied
6.18.5 Satisfied with conditions specified in Lisa Brown's motion (below).
At the conclusion of deliberations, several discussion points had been noted. The Board agreed that it was not necessary to refer the Sprint application to the BOH, ConsCom, or Seashore for review (6.18.2.17), since all had been apprized of the original Nextel tower decision and the Cape Cod Commission had been completely involved. The Board felt that having on file a complete contract (less financial agreements) was necessary (6.18.2.15.(A); it agreed that a removal bond should be posted; it requested that abutting properties be shielded from light (6.18.2.7); and it asked that the tower's ability to hold six carriers safely be certified before Sprint's antenna went on the pole.
Helen Wilson, who saw targeting Route 6 as a direct contradiction between non-discrimination between carriers in Massachusetts and the state traffic safety laws, posed the questions: (1) Is the Board supposed to be considering the gap in coverage in Truro or just in Wellfleet? (2) Is the Board considering non-resident transients in summertime as well as residents in non-peak seasons? The Chair asked if she meant to ask if the Board had the right to say that this facility was not needed. Wilson referred again to the Omnipoint v. Town of Lincoln decision to explain her understanding of significant gaps, stating that she would really like to substantiate Sprint's need.
Lisa Brown moved that the Board accept the Sprint application with the following conditions:
that Sprint, working with Nextel, certifies within 90 days of the tower completion and before it attaches its antenna that the newly constructed tower is strong enough to hold the 6 carriers.
that the lighting be shielded to protect abutting properties.
that Sprint post a removal bond of $25,000, which is required to be adjusted for inflation (CPI).
that Sprint submit to the Planning Board a complete copy of the contract with Nextel with confidential information blocked out.
Mark Berry seconded the motion; it passed, 5-1-0. Helen Wilson explained that she voted in the negative because she needed answers to her questions about whether the Board should consider regular commuters on Route 6 or solely Wellfleet residents and whether the Board should consider Truro's coverage also; she added that these questions were not answered.
Release of Covenant--85 Whitetail Lane. Richard Lay appeared representing the owners of the Whitetail Lane property, part of a subdivision of Lot 5, LCP 29786-B (March 1979) and Lot 30 LCP 29786-G (Barnstable County Land Registry documents #253648 and #433859). Helen Wilson, who had done a site visit of the property, stated that all Board members should do so. Mr. Lay stated that Chet Lay had earlier come before the Board to discuss this subdivision for which the Board had suggested road repairs. Gerry Parent asked if this was the last lot in the subdivision to be released; it was determined by Rex Peterson that this lot, Lot 30, was the last one. Chair O'Connell asked whether there were outstanding issues; Helen Wilson stated that all of Whitetail
Lane is completely driveable. Parent suggested that the Board, if satisfied, could release the lot from covenant, or if unsure, could release it with the condition of a $10,000 bond. Attorney Ben Zehnder, who represented the party in interest (an individual who had bought the land from the developer and wished to convey it to a buyer), stated that the sale of this lot had been supposed to close a month ago but could not because the covenant had not been released. Mr. Lay explained that this lot was the last of a smaller development (High Toss View) created from the last lot in an older development. At this point, Lisa Brown, stating that she had had an interest in the first development, recused herself from discussion. Gerry Parent moved to approve the release of covenant for Lot 30 only (as noted in Document #433859 and Document #253648) because it had passed through the Land Court and it was never the intent of the Planning Board to place the road
expense on the owner rather than the developer of the land. Mark Berry seconded. Ms. Wilson reported that from her site visit it appeared that everything had been done; Dick Lay reiterated that the 1979 covenant was standard, that the roads and underground utilities had been completed. The motion passed unanimously, 6-0.
Release of covenant, L. D. Baker Estates, 580 Old King's Highway, Lot #166, Assessor's Map #23. Attorney Arthur Croce, trustee of the Land Court Case No. 41903 Nominee Trust, joined Mr. Lay as a representative for the development and stated his request for release of covenant for all remaining unreleased lots (see minutes of 2/20/02 for earlier release). Croce stated that the covenant contained a waiver of 18 feet plus 1 foot berms for Dow Drive, with lots 1, 2 and 14 having sufficient frontage on Old King's Highway not to be subject to these terms. Lay noted that there was approximately a 600-foot line of sight; the Chair noted his concern with the line of sight, stating that one cannot see south from Back Drive. Alfred Pickard noted that there were no
berms on half the road; Dick Lay stated that they were not put in a design plan on a road due to low grades. Gerry Parent asked the number of lots under covenant; 3 had been released in 2/2002, leaving 11. A member of the audience, Kevin Sexton, had questions about an unnumbered lot belonging to Laurie Chellise Sexton; Parent explained to him that that lot was never part of this covenant. Parent stated that there was a problem with a left-hand turn blind spot where the trees to the north were not trimmed, which he stated was a safety issue. If the covenant was completely released, he added, there would be no recourse for this. Helen Wilson commented that she hoped that the Board was not suggesting clear-cutting trees but only cutting them to get a line of sight. Mr. Croce expressed his willingness to have Dennis Murphy cut trees and was willing to put up a bond to satisfy the Planning Board's sight requirement. Mark Berry moved and
Lisa Brown seconded that Planning Board release the covenant for all lots in Capt. L. D. Baker Estates with a surety bond of $25,000 and that by the next meeting the Board would instruct the applicant as to improvements to be made. The motion passed unanimously, 7-0. The Board scheduled a site visit to the subdivision for Saturday, June 22, at 9:30 a.m.
Signing of Plans and Covenants for Chavchavadze SD #01-03. Helen Wilson recused herself from this process. The four Board members who had been present and voting (minutes of 5/29/02) at the subdivision approval, Lisa Brown, Alfred Pickard, David Wright, and Gerald Parent, signed the plan and covenant presented by Dick Lay and Ben Zehnder.
Naming of Fred Bell Way. Helen Wilson recused herself from these proceedings. The Board considered the request of Steve Durkee, Chairman of the Wellfleet Housing Authority, to give the name of "Fred Bell Way" to the street serving the four buildings of affordable housing being constructed at 324 Old King's Highway. Mr. Durkee included with his application a biographical sketch of Fred S. Bell of South Wellfleet (1906-2001) written by Norma Simon. David Wright moved and Lisa Brown seconded that the Planning Board approved the request to name the above-mentioned road "Fred Bell Way." Unanimously approved, 6-0.
Minutes of Meeting of May 29, 2002. Chair O'Connell moved and Gerry Parent seconded that the minutes of 5/29/02 be approved as amended. Passed, 5-0-2.
Other Business. The Chair reviewed the mail, asking Rex Peterson to be prepared to comment on a communication asking the Board's support to objections to elements of 40B before the Board decides to sign off on it. He also announced that an appreciation breakfast for Wellfleet board, committee, and commission members would be held on June 27 at the Senior Center from 8 to 10 a.m. The Chair and the Board congratulated Rex Peterson on receiving almost $14,000 in planning grant money, some of which will be used to redo Wellfleet's subdivision control regulations and some to work on affordable accessory dwelling implementation issues. The Chair announced that at the next meeting, July 3, election of officers would be held. Helen Wilson announced a Catch
Basin workshop. Chair O'Connell advised the Board that the BOS would be considering Gerry Parent's reappointment to the Planning Board at its Monday, June 24th meeting and that members might be interested in attending to state their opinions.
Alfred Pickard moved and Lisa Brown seconded adjournment; unanimously adjourned at 11:20 p.m.
Respectfully submitted,
_______________________________ ______________________________
Frances J. Castillo, Assistant to the R. Dennis O'Connell, Chair
Committee Secretary _________________________Date
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