Cell tower appeal denied in Union
Union — It took nearly four hours for the Union Zoning Board of Appeals to wade through testimony, review documentation, hear rebuttals, and make a final decision Oct. 17 to deny an appeal of the planning board's approval of Bay Communications cell tower application.
More than 60 people attended the meeting, including attorneys from both the town and Bay Communications, as well as Planning Board Chairman Maria Pease.
The Union Committee for Protective Ordinances or UCPO filed an application for administrative appeal with the town Aug. 24, which was within the required 30 days following the planning board's approval for Bay Communications to erect the much debated cell tower on Mt. Pleasant Road.
The planning board completed its fact finding and approved the application by Bay Communication on July 29.
"This is not a new hearing," said Zoning Board Chairman William Pagnano.
Pagnano explained that the zoning board's role was to look at the planning board's decision, and determine if it was in conformance with the telecommunications ordinance — set forth by voters in November 2007.
"The appeal process limits us," said Pagnano, adding that the board must find the decision was "clearly contrary" to the requirements and standards of the ordinance to remand the matter back to the planning board for further proceedings.
The appeal was based on a document, which outlined six arguments. The zoning board referenced the planning board's finding of facts documented July 25, the Wireless Telecommunications Facility Ordinance of the town, and several other documents in its response to the arguments.
The first stated there was no record that Bay Communications inquired about co-locating on an existing tower on Ragged Mountain.
Pagnano noted on June 6 former Code Enforcement Officer Barry Norris had submitted emails to the planning board documenting his conversation with the town of Rockport to verify that there was no application pending for the Ragged Mountain location and that the site would not provide an alternate location.
It was brought to the zoning board's attention by the UCPO that on Oct. 10 Rockport voted to approve a pre-application for an additional cell tower on Ragged Mountain.
This being new information following the finding of facts by the planning board, Pagnano indicated it was not within the zoning board's parameters to consider it an option.
The second argument on the appeal was the planning board did not do a feasibility study on the option of using the existing tower on Ragged Mountain, if that tower was reinforced to support additional co-locators.
The planning board determined the proposed site was the most appropriate location to fill the existing gap in services and an investigation of other available sites in the area did not provide adequate coverage.
Pagnano also stated that the telecommunications ordinance does not stipulate that a feasibility study was required.
The third issue questioned the lack of serious research available regarding the consequences on the environment and wetlands of building such a tower.
"This one speaks for itself," said UCPO member Susan Hammill. "This was not carefully examined," she said.
Pagnano cited several items in the fact finding report, which spoke against Hammill's belief. It noted there are no emissions of dust, dirt, fly ash fumes, vapors or gasses from the development site, nor are there water issues relating to the site development.
The zoning board voted unanimously 5-0 to deny the first three appeal of arguments "based on the fact that the planning board's decision was not clearly contrary to the requirements and standards of the ordinance."
The fourth argued property values will decrease with the installation of a 190-foot tower, since property in Union is assessed — among other things — by its scenic value.
"For some of us, our property is our only form of retirement," said Sharon Osborne, UCPO member.
"It's the elephant in the room," said Pagnano, discussing the topic of property value. "There is no criteria that the project will have any impact on one's real estate, and it is not part of the ordinance," he stated.
Zoning board member Abraham Knight disagreed. "We have to protect the scenic character of our town," he said.
Knight, therefore, voted to support argument four, stating, "I think there is just cause to look into the impact of the affects this tower will have."
However, the argument was denied by a 4-1 vote.
The fifth argument stated "a cell tower of the proposed dimensions will not fit the desired rural character" according to the town's Comprehensive Plan.
UCPO member Gerald Brooks Jr. cited the planning board's decision to forgo language in the town's Comprehensive Plan. "Their decision was not consistent with what is in the Comprehensive Plan — in our (UCPO) view," said Brooks. He noted the current zoning map is out of date and asked for a review of the Comprehensive Plan.
Zoning board member Sarah Gilbert pointed out that in the planning board minutes of July 11 it motioned to waive the use of the Comprehensive Plan, and in minutes of its July 25 meeting it noted "therefore, we can say it is met or not required."
"You have to go by the ordinance," said Town Attorney Roger Terrio, with regards to this type of use.
Pease stated that the Comprehensive Plan was enacted in 2006, while the Telecommunications Ordinance went into effect in 2007 — thereby, making the latter the governing body for decision-making purposes.
This argument was denied, however by a 3-2 vote — with Gilbert and Knight supporting the UCPO.
And the final point argued the ordinances used in the review of the application were illegal, based on a letter to the editor from resident John Gibbons in April.
"Selectmen, acting in secrecy in executive session, overturned the latest three revisions of the town's land use ordinance," Gibbons said in the letter.
It goes on to say that "While the actions of the selectmen may have been for the purpose of improving efficiency and in good will, they were — nonetheless — illegal."
"The zoning board does not have the authority to determine if an action or adoption of an ordinance is legal or illegal," clarified Pagnano.
This argument was also unanimously denied by a 5-0 vote.
The zoning board will send out written notification of its decision and another appeal can be applied for within 45 days.
"So much for democracy," Osborne said following the decision.
UCPO member Steve Burke said the committee will need to have another meeting to determine what the next steps will be.
"This is not over by a long shot," said Burke in an email Oct. 18.
"We have quite a few interesting options to discuss — among them would be filing another appeal with the Supreme Court and/or mounting a Constitutional challenge to the Federal Telecommunications Act," Burke stated.
Members of the UCPO are Steve Burke, Elizabeth Burke, Jennifer Langley, Douglas Hammill, Susan Hammill, Brian Hilt, Sharon Osborne, Theodore Keller, Jennifer Brooks, Gerald Brooks Jr., and Hank Walker.
Courier Publications reporter Beth A. Birmingham can be reached at 594-4401 ext. 125 or via email at email@example.com.
594-4401 ext. 125
Beth rejoined Courier Publications' news staff in February 2013. She previously worked at The Courier-Gazette from 1981 to 1990.
Her coverage area includes Warren, Union, Friendship, Waldoboro, Washington, and Thomaston and RSU40.
Beth has a passion for photography, and a degree from the University of Maine at Augusta, in affiliation with the Maine Photographic Workshop in Rockport.
Aside from photography, Beth enjoys running and walks along the waterfront, as well as other outdoor activities. She has a daughter, Claire, who is 13.
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