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Web exclusive, September 2, 2010
Second cell tower underway in Brooksville while moratorium is pending

Cell Tower Archive
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by Jonathan Thomas

There may be two cell towers under construction in Brooksville before the town votes on whether to impose a moratorium on such construction. The Weekly Packet has recently been able to confirm that U.S. Cellular Corporation has begun work on a 250-foot cell tower on a ridge east of the Ferry Road.

This tower has been the subject of local speculation for some time, and was a major topic at the 9 a.m. September 1 selectmen’s meeting.

The other tower, planned by Global Tower Partners, would be 190 feet tall and located near the Town House Road on land owned by Selectman Richard Bakeman. During the September 1 meeting, which lasted more than two hours, approximately 15 people actively discussed with the selectmen how to proceed. Some had differing opinions regarding how inclusive a moratorium should be, and whether the wording in the moratorium included in a recent petition would stand a legal challenge. Selectman John Gray said he could support an earlier draft moratorium, but not the one recently submitted as part of the petition.

Joanne Kimball, Joan Holmberg, Robert Shetterly and others revisited the issue of possible health hazards during the meeting. Someone asked why the U.S. Cellular tower has to be 250 feet tall on one of the town’s prime ridges, and probably operating at a high power level. Someone suggested that several smaller towers in different locations, operating at a lower power output, would be better for the town, even though it might be less profitable for the company.

As the meeting was ending, Gray and Selectman Darrell Fowler said they would take the matter up again at their evening meeting on September 2, and schedule dates for a hearing and town meeting vote then, after consulting further with the town attorney.

As reported in last week’s issue, the petition to the selectmen was delivered to the town office on August 23. It had more than enough signatures to direct the selectmen to call a special town meeting to enact a moratorium ordinance prepared by an attorney representing the initiators of the petition. During their August 26 meeting, the selectmen were hesitant to proceed with the petition before consulting with the town’s attorney. As Bakeman recused himself, selectmen Gray and Fowler were particularly concerned with the ordinance’s retroactive clause, which says that it would apply “to all [Global] Tower projects not completed and operating as of July 1, 2010.”

//The legal basis for retroactivity//

The petition ordinance was drafted by attorney Lynne Williams of Bar Harbor.

In a telephone interview, Williams said she has prepared ordinances with similar provisions for Tremont, Mt. Desert, and two other towns, and that they were not challenged.

Williams cited a 2003 Maine Superior Court case upheld the following year by the Maine Supreme Judicial Court. In Kittery Retail Ventures, LLC v. the Town of Kittery, the courts upheld changes made to the town’s zoning ordinance—while an application was before the planning board—that had the effect of preventing a large retail development that faced growing public opposition.

The superior court’s decision, which upheld the actions by the Town of Kittery, began, “This case tests when persistence will be rewarded, versus when it is too late to change the rules.”

In his conclusion the judge wrote, “The actions of the Town of Kittery are legal despite initially appearing to be unfair. Whether they are wise is not the question before the Court.”

Williams was asked how applicable this decision would be if Brooksville were to enact the proposed moratorium ordinance as she had written it, and if it were challenged by either of the companies with work underway. She responded by e-mailing the following statement to The Weekly Packet:

“I cannot predict how a retroactive moratorium would impact a cell tower project that did not require a permit, and is already under construction. The controlling case law on this issue uses the term ‘pending proceedings,’ and states that a town can apply an ordinance retroactively even to ‘pending proceedings,’ although not to a project where the developer had gotten a permit and had vested in that permit, commonly defined as having broken ground. However, since Brooksville does not require a cell tower developer to apply to the town for a permit and/or a variance, there are no ‘pending proceedings,’ and no way to assess whether vesting has occurred. This is all new territory.”

//The location issue//

In her conversation with The Weekly Packet, Kerry Brokaw said she is not against cell towers, but just wants them to be in safe locations. “If there is a potential risk to our community’s health and well-being in living near a tower, then the towers should be placed far enough away to avoid any question of risk,” she said. “Our neighborhoods are here to stay. The siting of the towers is the variable.”

The health effects from proximity to a source of radio frequency radiation were a major concern at an August 19 public hearing. The purpose of that hearing was to discuss the first version of a cell tower moratorium that had been prepared by the selectmen in response to a petition asking for a moratorium on the building of the Town House Road tower. However, much of the discussion focused on the proposed location of that tower, which is 226 feet from the near edge of the road, and not far from the athletic field and several residences.

During that hearing, Global Towers representative Blaine Hopkins said he would consider relocating the tower further from the road on the other side of the Bakeman lot. However, on August 31 Hopkins told The Weekly Packet that the alternate site was too wet and that the soils would not support a tower foundation without shifting.

Hopkins said he would be at the September 7 planning board with the document needed for approval of the driveway entrance permit. The planning board turned back the driveway application last month because Hopkins did not have a signed agreement with Basil Ladd, whose land Global Tower needed to cross to get to the Bakeman lot.

Hopkins said his company plans to start work on the tower the following morning, September 8.

When asked if he was concerned about Williams’ moratorium, Hopkins said he and his company attorneys had read it, and had determined that the ordinance would be “easy” to defeat if his company were taken to court.

Hopkins also said the U.S. Cellular’s Ferry Road tower will not have an effect on his company’s plans for the Town House Road tower because the two towers would have different coverage areas.

//The Ferry Road tower//

The Weekly Packet has requested detailed information from U.S. Cellular about its Ferry Road tower, but only some of it arrived by press time.

The tower is to be on property owned by Jerry and Edna Andrews. The Andrewses have not responded to requests for an interview.

The town office recently received a plot plan showing the areas in which U.S. Cellular is either leasing or obtaining an easement to erect towers. U.S. Cellular’s spokeswoman, Kelly Cioe, has confirmed that the 250-foot tower has been designed to provide service to areas in Castine as well as Brooksville.

Two abutters have confirmed that blasting began on August 31. Brooksville Code Enforcement Officer Lew Hutchins said he saw a blasting company truck when he went part way up the access road on September 1. Cioe said the tower has been approved for a total of six carriers, so that other companies will be able to use it. She said the tower is scheduled to be completed by the end of October.

According to Cioe, the tower is 400 feet from the nearest property line.