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Web exclusive, September 30, 2010
Brooksville residents discuss cell tower moratorium options

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by Jonathan Thomas

A two-hour hearing on the contentious issue of cell tower moratorium ordinances closed on a harmonious note as various speakers began to see that they had a common interest.

The last person to speak at the September 23 hearing was Marcia Chapman, who said, “It’s a rare moment in our town when all the contentious issues, with Burma Shave signs and petitions, and everything else we’ve had, [that] all of a sudden we’re working [in] the same direction…And I think everybody should be commended, including the selectmen.” Her comment was received with the only applause of the evening, as moderator Robert Vaughn adjourned the hearing.

The common interest expressed in the hearing appeared to be in preventing additional cell towers from being built before a suitable regulatory ordinance is established. Various speakers asked questions designed to help them decide which of the two moratorium ordinances to be voted on would best meet that objective.

Approximately 60 people gathered in the Town House meeting room for a hearing on the moratorium and other articles to be voted on at special town meeting to be held on Monday, October 4, at 6 p.m. in the Brooksville Community Center. The text of the articles was printed in the September 23 issue of The Weekly Packet.

John Gray, chairman of the board of selectmen, began the hearing with a summary of the events leading to the two competing moratorium ordinances that will be voted on in the open town meeting.

The first ordinance (Article 2 on the warrant) “was drafted by the Town Selectmen and Patterson Law Office,” according to a note on the warrant. The second ordinance “was drafted as part of a voter petition.”

During the hearing, moderator Vaughn responded to several questions about the voting process at the special town meeting. He explained that the voting will be done separately on the two ordinances, and that the voting would likely be by written ballots.

Vaughn said that it would be possible to vote “yes” on both ordinances, or “no” on both, or vote in favor of one but not the other. A statement printed on the warrant says that if there is a majority vote for both ordinances, “the ordinance with the most yes votes will be enacted.”

Several speakers, including Gray and Kerry Brokaw, attempted to clarify the differences between the two ordinances. The first ordinance says that it is applicable “on all proceedings, applications and petitions pending as of August 4, 2010.” It also declares a moratorium for 180 days “on the permitting, approval, development, erection and construction of any Tower and supporting facilities…effective immediately upon passage by the Town.”

The second ordinance says that the moratorium would be effective “to the maximum extent permitted by law…to all Tower projects not completed and operating as of July 1, 2010.”

Lynne Williams, the attorney who drafted the second ordinance on behalf of the petitioners, was present at the meeting. She said that she had told her clients that although there is language in the second ordinance that was retroactive, it was highly unlikely that it would impact the two towers now under construction.

Various people, including Gray and Selectman Darrell Fowler, expressed concern that if passed, the wording in the second article would cause legal problems for the town by obligating its code enforcement officer to initiate action against the owners of the two towers under construction.

Williams, citing her experience both as a litigator in such matters and as chairman of the Bar Harbor Planning Board, said that it was her opinion that these concerns were not valid.

After there was general acceptance that nothing could or would be done about the two towers under construction, attention was directed toward a second issue. That was whether either moratorium ordinance would apply to the existing signed contracts that several unnamed residents were believed to have already entered into with tower companies. There was general agreement that the town should not have more towers than it really needs, and that some regulation may be desirable.

Several people asked for a clearer definition of the word “pending” that was used in a key phrase with the date August 4 in the first ordinance. That led to a discussion as to whether that ordinance could be amended from the floor at the town meeting. Gray was asked to check on this.

The legal staff of the Maine Municipal Association has given its opinion on this in the MMA’s Town Meeting and Elections Manual (July 2010 edition). It says, “because the statutory form of the question for adoption or amendment of ordinances asks a “yes/no” question (shall the ordinances be enacted?), it appears that no amendment can be made to a proposed ordinance or amendment from the floor of an open town meeting.”