Web exclusive, August 26, 2010
Brooksville cell tower opponents submit tighter moratorium proposal
Fire Chief Matt Dow (arm raised) discusses the communication needs of the fire department. Recused Selectman Richard Bakeman stands second from left.
by Jonathan Thomas
The ink used to print last week’s edition of The Weekly Packet had been dry only a few hours when the lead story about Brooksville’s upcoming vote on a cell tower moratorium was out of date. At a hearing on Thursday evening, August 19, many citizens expressed concern that the effective date in the proposed moratorium would not apply to a 190-foot tower planned for a site near the Town House Road. As the hearing was ending, the level of public concern convinced selectmen John Gray and Darrell Fowler to cancel the August 30 vote on the moratorium.
Just four days later, resident Henry Hilliard delivered a petition bearing the signatures of approximately 80 registered voters to the town clerk. The petition specified and contained a more inclusive ordinance that would apply to the tower proposed for the Town House Road, and any other communication tower “not completed and operating as of July 1, 2010.”
An earlier petition, submitted to the selectmen on August 4, asked only that there be a moratorium on the Town House Road tower until the town approved standards for such structures. Following receipt of that petition, the selectmen obtained a copy of a moratorium used in Blue Hill, modified it to fit Brooksville, and inserted the date of August 30 as the effective date.
Hilliard said that by delivering the new petition on Monday, August 23, he gave Town Clerk Amber Bakeman enough time to validate the signatures before the 9 a.m. selectmen’s meeting on Wednesday, August 25.
Hilliard declined to identify the attorney who had prepared the ordinance in his petition, except to say the person has offices in Bar Harbor and a “track record of successes” with cell tower moratoria.
The petition’s moratorium states specifically that it would be voted on in an open town meeting, rather than by referendum vote as the selectmen had planned for the moratorium they prepared.
In their August 25 meeting, with Selectman Richard Bakeman recusing himself, Selectmen John Gray and Darrell Fowler formally voted to cancel the August 30 referendum vote. Gray reported that the board had not yet received a response from its attorney on questions raised at the August 19 hearing, such as whether the effective date of the moratorium should be changed.
Gray then turned to the stack of petitions before him that contained the new proposed ordinance, which he had not previously seen. Hilliard was present to explain that this ordinance was intended to be more effective than the ordinance being revised by the selectmen because it would definitely apply to the Town House Road tower and any others not under discussion.
Gray and Fowler questioned the inclusiveness of the new ordinance’s wording and said that they would submit it to the town attorney as well. They expressed concern that the town might adopt an ordinance that was unenforceable and might lead to expensive litigation.
Gray agreed that because of the way the new moratorium had been presented, the selectmen could not change it, but were required to put it before the voters as prepared. Gray said that the board might decide to present a competing moratorium ordinance that would be voted on at the same time.
Asked whether the matter would be discussed at the September 1 selectmen’s meeting, Gray said that he was not sure, and said that it depends on how quickly the town’s lawyer can review the new material and respond.
Town Clerk Amber Bakeman said afterwards that 57 signatures were the minimum number needed to make the new petition effective. She said she had already validated 88 signatures, and that more signed petitions had been submitted that morning.
The August 19 hearing
The August 19 hearing had lasted two hours, with people standing along the sides and back of the packed meeting room much of the time. Many of them questioned the wording in section 8 of the selectmen’s proposed moratorium, which read that it would apply only to “proceedings, applications and petitions not pending…as of August 30, 2010.”
At issue was whether the Town House Road tower would be affected by the moratorium. The tower would be built on land owned by Selectman Richard Bakeman, who has recused himself from the proceedings (See August 5 and 12 issues of The Packet.)
Several people asked if the date could be pushed back to August 5, the date Blaine Hopkins, representing Global Tower Partners, came before the planning board to ask for a road entrance permit for access to the Bakeman lot.
During the discussion on August 19, Gray and moderator Robert Vaughn read from a letter the selectmen had just received from the town’s attorney, Diane O’Connell. She had written, “[I]f a property owner invested time and money on a project before any public or actual knowledge that a moratorium was being considered, he or she may be successful in a claim that the ordinance does not apply to them…[M]y recommendation is to use a date as far back as when the initiative of a moratorium first became public knowledge.”
Some in the hearing asked that the effective date of the selectmen’s proposed ordinance be pushed back even further, to the date of the previous planning board meeting in early July, when the topic of tower moratoria had come up. However, planning board chairman Don Condon said he recalled that the discussion took place after the meeting adjourned, and was probably not noted in the minutes.
Planning board member Chris Raphael came to the August 25 selectmen’s meeting to say that it was his recollection that a discussion about towers took place before the planning board adjourned. He said there were one or two others who would support that. A copy of the July planning board minutes was not on file at the town office at the time of the August 25 selectmen’s meeting to see what that record showed.
Not everyone present on August 19 spoke in favor of a moratorium. Some cited the need for improved cell phone service and the wireless broadband service that would accompany it. Others talked about the need to respect private property and the right to use one’s land with minimal restrictions.
Fire Chief Matt Dow said Global Tower Partners has agreed to place a needed fire department communications antenna at the top of the cell tower. Dow said the department would need a new tower by the fall of 2011 to meet a federal requirement to use narrow band radio.
Location, location, location
Immediate attention has been on the proposed Bakeman lot tower because the site is plainly visible from the Town House Road and is not far from residences and the athletic field.
Hopkins had previously told The Packet that the distance from the tower’s triangular base to the edge of the right-of-way of the Town House Road—opposite from the athletic field—is 226 feet. Hopkins did not have the distances to the nearby residences. The tower itself would be 190 feet tall.
Some nearby residents expressed concern about the effect the tower might have on their property values.
Another concern was the alleged health risks from proximity to towers, and the radio frequency radiation that they emit. Several residents have sent The Packet Internet links to studies that indicate an association between proximity to cell phone transmitters and the incidence of cancer.
One study, done for the International Association of Fire Fighters and adopted by the IAFF in 2004, recommended against locating such towers or antennas on fire department facilities until “it is proven” in a qualified study “that such sitings are not hazardous to the health of our members.”
The Packet sent Chief Dow an Internet link to the IAFF study several days after the hearing. Dow noted later that no new tower is planned for the fire station anyway. He said that it would be a lot better if the Town House Road tower were moved away from the residences but still placed where it can meet the increasing communications needs of the fire department.
The Packet also asked Global Towers representative Blaine Hopkins about these health studies. Hopkins said he personally is not qualified to comment on them, but said that generally he feels the issue to be a “red herring.” He said in the past he’s used a qualified scientist from MIT as a consultant.
Hopkins also repeated a comment made in the hearing: that prolonged use of a cell phone held close to the ear is a greater health hazard than proximity to cell towers.
During the hearing, some residents asked if the tower could be moved to another location on Bakeman’s land that would be further from existing homes. Bakeman and Hopkins agreed to meet and discuss a possible change.
Hopkins said on August 24 that an engineering crew is studying an area of the Bakeman lot back of some trees, about 175 to 200 feet from the original site, to see if that location can be used. He said the initial inspection found it to be part of a wetland, and near a brook.
The Packet was unable to confirm reports that construction is already underway at another site in town, or that there are other property owners with signed contracts for cell towers.
In the last hour of the August 19 hearing, several speakers addressed more general concerns that the cell tower issue has uncovered.
T.J. Pascal asked where the distinction between being a private citizen and being a selectman began and ended when Gray and Bakeman were approached by cell companies and learned that companies were looking for sites to place cell towers. “They must have realized that this was a very important town matter. I think they should honestly have brought this up as selectmen so the town knew what was going on,” he said.
Following comments by another speaker and by the moderator, Selectman Gray said it was “kind of a slur on both Richard [Bakeman] and me.” Gray said he had openly told people that he had been approached by tower companies, “but I didn’t realize I had to put it in the paper or anything…I was just asked. [A company representative] looked at my property, and that was the last I heard of it. I see nothing wrong with it.”
The moderator then commented about the problems a person may have in being a private citizen some of the time, and at other times being a selectman. Pascal raised his hand and said, “I meant no slur personally against John or Richard.”
Selectman Darrell Fowler then spoke in defense of his fellow selectmen, saying that he has heard rumors, and that it is “underhanded” to accuse “John or Richard” of anything. He said selectmen’s meetings are open and the minutes are available.
“To tell people what they can do with their own property is going down an awfully narrow road,” Fowler said.
As the discussion about property rights continued, Nigel Chase said cell towers are a “huge deal” and that they need to be looked at differently than other structures.
Edson Blodgett said that although he has long understood the word “zone” was a four-letter word, the town should maybe start to look at comprehensive zoning.