Regular Business Meeting
February 16, 2004
Members Present: Dave Clark, Rose Hill, Jack Taylor, Nancy Harriman, Heather Pinet
Absent: None
Also Present: Code Enforcement Officer Jim Roberts, Moe Poirier, Kim Miller, David E. Miller, Alan Potyk, Jerry Paradis Jr., Peter Merrill, Margaret Merrill, Elaine A Gibbons, P.J. Tangney, Giselle Tardiff, Mike Polakewich, Brad Meserve, Bill Fricke, Ed Shaw, Selectmen Ed LeBlanc, and Keith Harris
ADMINISTRATIVE BUSINESS:
Dave Clark called the meeting to order at 7:30 p.m.
The minutes for the January 19, 2004 Regular Meeting were read and approved.
OLD BUSINESS:
TARA ESTATES
No new information.
CUP FEES
Dave C. has not talked yet with the Selectmen about possibly changing Conditional Use Permit fees. No further action was taken.
FILING CABINETS
Jack reported that the company in Lewiston is still waiting for a set of master keys. He felt that other possible suppliers should be looked at, although the price may be higher.
MAPS
Ben Harris has indicated that he has a friend in Farmington who may be able to produce maps for the town.
MOE POIRIER
Mr. Poirier came before the board and explained that in 1999 he was granted a CUP to build an apartment in his barn. At that time the condition for obtaining the CUP stipulated that the three (3) acres adjacent to the barn would no longer be a separate lot, but would be considered part of the parcel on which the barn stands. Mr. Poirier has since decided not to build the apartment and would now like the CUP to be revoked so that the condition no longer applies and he has the option to build behind the barn in the future. The land is deeded as two pieces. After a discussion as to whether or not the road frontage was sufficient for two lots, Dave Clark stated that Mr. Poirier should have the land surveyed. CEO Jim Roberts pointed out that the Planning Board’s issue wasn’t
really the road frontage, but whether or not the land could revert back to the original deeds. Road frontage will be important if Mr. Poirier ever applies for a building permit. Dave Clark stated again that the land should be surveyed because it should be officially recorded. Mr. Poirier indicated that he had never hired anyone to survey the land and hadn’t done anything about having the previous change recorded. Dave Clark suggested that Mr. Poirier obtain copies of both deeds at the Registry of Deeds for the Board and then write a formal letter asking that the 1999 CUP be rescinded.
CELL PHONE TOWER
(At this point the Board members and the listed attendees with the exception of Mr. Poirier moved to the Selectmen’s meeting room downstairs. Selectmen Ed LeBlanc and Keith Harris joined the gathering.)
Dave Clark explained to the assembly that the Planning Board was in the process of making a decision on an application by United States Cellular for a cell phone tower. The tower, if approved, would be built by LCC International Inc. on property located at 34 Tardiff Lane. The Board members would review the application first while the public listened and then the public would be invited to express concerns. Citizens were asked to raise their hands when asking questions or making comments.
Ed Shaw and Bill Fricke of LCC International Inc. were introduced, as was Giselle Tardiff, representing the interests of her parents Louise and Richard Tardiff.
Dave Clark started by explaining that Dayton has no specific ordinance addressing towers in areas zoned as “farm”, and that areas zoned as “farm” are generally open and non-limited. Most of the town is zoned as “farm”. The job of the Planning Board is to interpret town ordinances, and in the absence of specific ordinances, to do “the best we can”. As an example Dave C. then read the conditions listed on the Conditional Use Permit for Mike Polakewich’s tower, approved in September 2002.
A valid copy of liability in the amount of $500,000 must be kept on file with the town and renewed every year.
No microwave dishes are allowed on the tower.
Interference caused by the tower must be rectified at the expense of the tower owner.
FAA approval must be filed with the Planning Board.
If the tower is unused for a period of twelve (12) months it shall be considered abandoned and must be removed within six (6) months at the owner’s expense.
Dave Clark noted that as an additional condition the Board would request space on the tower for fire and public safety communications.
Jack Taylor noted that the original location for the tower had changed to reduce the risk of the tower possibly falling into the power lines. Nancy Harriman noted that the possibility of a beacon had been mentioned during the site walk on February 14, 2004. Dave Clark asked if LCC Int. had received FAA approval at that time. Mr. Shaw replied that they had preliminary approval only and that it could take as long as six (6) weeks to get an answer, but they were 99% sure that they would receive approval.
Dave Clark then presented concerns about health that had previously been expressed to him by Mr. Miller. Mr. Fricke of LCC replied that the FCC has established health guidelines and that it had been determined that the electromagnetic emissions of an antenna decrease rapidly with distance. He stated that a 150-foot tower containing four carriers with the antennae aimed towards the ground would provide less than 1/100 of the maximum permissible emission levels advised by the FCC. Dave Clark noted that he hadn’t been able to find much information on the Internet about cell phone towers’ impact on health. Mrs. Miller stated her concerns that the government is still putting money into health studies and will not say that wireless communications towers are absolutely safe. She
added that people hadn’t realized the health problems associated with smoking, asbestos, or lead paint until many years had passed. Nancy Harriman mentioned sludge as something that could possibly have long-term negative health effects as well. Mr. Fricke replied that most studies are more concerned with cell phones as opposed to the towers, as the phone antenna is very close to the user’s brain. He also noted that other appliances, such as televisions, toasters, and microwave ovens typically emit more than cell phone towers, and that they are located inside homes. Mrs. Miller pointed out that owning the other appliances is a choice that people make, while having a cell phone tower in the neighborhood is not. Mr. Fricke replied that the 1996 Telecommunications Act forbids towns to deny licensing cell phone towers based on health concerns. At this point Dave C. read an excerpt from The Maine Townsmen stating that
“towns cannot deny towers based on health issues” because town officials are not considered experts on the issue.
Mrs. Miller expressed concern over the tower’s visual impact on the town and noted that towers have been delayed in other places until ordinances concerning towers could be put into effect. She asked if there were other options to lessen the visual impact. Mr. Fricke replied that the purpose of the meeting that night was to gather the input of the Board members and citizens and to address that issue. He then gave the following brief presentation on towers:
Cell phone towers generally propagate a signal over three miles. Here in Maine, the signal can be absorbed and reduced by buildings, topography, even leaves. The top of a hill is the best location because the further away the signal travels, the more it weakens and the easier it is to disrupt. Therefore, the tower must be above the treeline. Anything below 150 feet generally doesn’t have good dispersal. Other options to building a tower include putting a tower on existing buildings or watertanks, but Dayton doesn’t have that option. In locating potential sites for towers, engineers conduct a five mile search ring around existing towers. According to a propagation map of Saco and Biddeford encompassing Routes 5 and 112, this is the
best available site. (At this point Mr. Fricke showed a map of towers and propagation in the Saco/Biddeford area.)
Mrs. Miller asked if a shorter tower or a higher density of towers were options. Mr. Fricke replied that there are six licensed carriers in each county, and that all six have a legal obligation to provide coverage in their area. Building shorter towers leads to having a higher density of towers to accommodate all the carriers, and this is an option that some towns choose.
Mrs. Miller noted that the more visible a tower is, the more property is devalued. Mr. Fricke answered that in eight years of working this job, he had yet to see a licensed appraiser say that having a view of a tower will devalue a piece of property. Mrs. Miller replied that she had called Realtors who said that it will devalue property, as will being near power lines.
Mr. Merrill asked if it was a federal mandate that all towns must have poles for wireless communications. Mr. Fricke replied that was not the case if carriers can be co-located on other towers. He pointed out that Dayton, however, does not have coverage throughout the whole town, and does not have coverage currently for all six carriers.
Ms. Tardiff, representing her parents, stated that LCC International had approached her family about the possibility of building a tower on their land and that after discussing it with lawyers, her family felt that it would be a good endeavor and would be beneficial to the family.
Mr. Tangney asked if there was a map of current cell phone coverage in Dayton. Mr. Fricke replied no, that coverage could only be determined by testing with certain equipment, and that this was done by vans with GPS for each carrier. Mr. Tangney pointed out that the argument could be made that citizens are being told that the tower needs to be installed, but there is no map evidence indicating that coverage is needed. Mr. Fricke answered that United States Cellular is mandated to provide service and does not do so currently. Mr. Tangney pointed out that other carriers have coverage at this time. Mr. Fricke replied that this tower would produce a stronger, more robust signal with less interference. He added that carriers roam where they do not have towers.
At this point Mr. Polakewich introduced himself as a former Code Enforcement Officer for Dayton and a former site specialist in wireless communications, with experience at over 250 tower sites. He mentioned that he has worked with Mr. Fricke in that capacity. He stated that the tower he owns on Route 35 has some dead spots near Route 5 and near the Saco River, and that putting a pole any closer to his would result in double coverage. He expressed the opinion that a monopole is the preferred form for the proposed tower, and that in time it will gray and become less noticeable. Mr. Paradis asked how close the proposed tower is to the river and the Board replied that it is outside of the Saco River Corridor. At that point Mr. Polakewich indicated that he had to leave, and stated in parting that
he felt the tower would provide decent coverage, that U. S. Cellular was a good company to work with, and he asked people present not to be concerned about electromagnetic frequency emissions.
Selectman Ed LeBlanc stated that he viewed this as a case of two retirement-aged people who were trying to find options to pay their 40% increases in property tax. They could have subdivided their land, but preferred to try this option instead. He stated that the selectmen would not try to block them. Mrs. Miller noted that a tax ceiling could be created for people in that age bracket. Mr. LeBlanc responded that the Comprehensive Planning Committee was working on tax issues, but Tardiffs’ offer needed to be acted upon now. Mrs. Miller raised the concern of the tower’s appearance and asked for options that weren’t so tall and gaudy. Mr. LeBlanc replied that the Tardiffs have the option to do what they would like with their land. When asked by Mrs. Gibbons if
he would want the tower in his cornfield, Mr. LeBlanc replied yes, as it would help pay the property taxes. He encouraged those present to get more involved in town functions, such as the annual town meeting. (During the discussion someone asked how much the tower would pay to the town in taxes, but the answer won’t be known until the tower is assessed.)
Mrs. Miller stated again that the citizens present wanted more options as to the tower’s visibility and that she was not comfortable with the health risks. Mr. LeBlanc said that “we can’t do anything because we don’t have anything in the ordinances”. Mrs. Miller pointed out again that it is legal to delay a decision on the tower until an ordinance is in place. At this point, Mr. Meserve pointed out that, having lived in Dayton his whole life, he felt that it is Tardiffs’ land and they should be able to do what they want with it. Mr. LeBlanc then indicated that he had to leave and encouraged everyone present to attend the town meeting on Friday evening, June 11th, and to get involved in the town.
Dr. Potyk said that it seemed reasonable to try to delay the tower. Mr. Miller stated that he couldn’t believe that the tower needed to be so tall, and Mrs. Miller wondered why it did have to be so tall. She asked about the feasibility of having two shorter towers. Dave Clark replied that, as a Planning Board member, he didn’t want to see towers all over town. Mrs. Miller asked if it was possible to camouflage the tower and pointed out that some towns restrict the height of towers. Mr. Fricke replied that two towers were inadvisable because of possible horizontal interference and fall zone concerns. Mrs. Miller asked again for something less visually offensive to the community, and Mr. Fricke answered that the tower was as aesthetically pleasing as possible.
Mrs. Miller asked what would happen if an ordinance was in place prohibiting towers over 100 feet tall. Mr. Fricke replied that a variance would be needed to erect taller towers or towers would have to be erected much closer, depending on the terrain and real estate involved. He pointed out that LCC International does have aesthetic sensibilities and tries to minimize the impact of towers. Mrs. Miller asked how tall the powerlines were and, upon being told that they are 80 feet tall, noted that they are above the treeline.
Dr. Potyk asked if there was a need to make the towers taller than 150 feet. Mr. Fricke replied that the technology may change eventually, but currently it was a question of economics. Towers cost approximately $250,000 dollars to build, while co-locating on an existing tower costs $50,000-$60,000. Other carriers will want to co-locate on the tower because it is cheaper than building a new tower. The proposed tower will very likely have 3 to 4 other carriers on it within a year or two. For the carriers it is “first come, first served” as far as the height at which they can co-locate. Dr. Potyk asked also if alternative sites had been considered. Mr. Shaw said that two had been considered in Saco, one on Simpson Road, but that one would need to have repairs made in order
to accommodate more equipment and the owners were not interested in doing so.
Dr. Potyk asked why such a tall tower should be erected if there was no need for it to be so tall. Mr. Fricke replied that having one tall tower lessens the chances of having another tower go up in the vicinity. He reiterated that carriers don’t really want to own towers if they can co-locate.
When asked if the Board would be voting on this issue that night, members indicated that they intended to do so and that they couldn’t delay the issue without having to do more advertising and posting. Mrs. Miller and Mrs. Gibbons both expressed concern that the issue was hurried and Mr. Merrill asked why the tower couldn’t be placed on River Road. Dave Clark replied that the Board can’t say where the tower can go. He pointed out that federal law mandates that towers must be built, and that there were not many options. If the tower is shortened, it increases the chances that more towers will be built. There are no conveniently located church steeples in which to hide antennae.
CEO Roberts noted that even if the town wrote an ordinance concerning cell phone towers, it cannot be made retroactive. Furthermore, the application is already on file.
Mrs. Miller noted that another town had delayed their decision in order to obtain more information. Dave Clark replied that he didn’t see any better solution at that point. Mr. Paradis asked if the vote could be delayed until the next meeting and was told by Dave Clark that it would not be.
Ms. Tardiff noted that the tower won’t affect the peace and quiet of the area as it makes no humming noises, and would not be noticeable after a while. Mr. Meserve asked how bright the light would be if the tower requires a beacon, and whether or not it would light up the area. Mr. Fricke answered that if a light were required it would be either a red light or a white strobe. The strobes are set on a day/night timer and can be bright if the schedule gets disrupted. The FAA determines the beacon that shall be used if needed.
Nancy Harriman asked if the Board needed to have final approval from the FAA in order to approve the application. Dave Clark replied yes, and that the Board will not approve the application without FAA approval. Mr. Fricke noted that the Board could vote that night to approve the application contingent upon the FAA’s final approval.
Mrs. Miller submitted a request for conditions based on a print-out entitled “Model Telecommunications Tower Ordinance”. The first was, “Prior to commencing regular operation of the facility, all facility owners and operators must submit a certificate of compliance with all current Federal Communications Commission regulations concerning electromagnetic radiation and other electronic emissions applicable to the facility.” The second request was “All facility operators and owners must sign an agreement, to be maintained by the city, agreeing to bring facilities into compliance with any new federal, state, or local laws of regulations concerning electromagnetic radiation and other electronic emissions applicable to the facility within 120 days of the effective date of the
regulations.” It was also suggested that, as one of the conditions, the tower cannot be lighted.
Mr. Shaw noted that there are 63 sites to install in southern Maine on existing towers, with another 4 or 5 towers to be built. U.S. Cellular does not want to have to find tower sites, and previously he had looked at two sites that were unsuitable. He stated that a tower has to be built; this site provided the best available coverage.
Dr. Potyk wondered if was possible to cloak the tower, and Mr. Fricke replied that he felt it made the tower more obvious in a negative way. Mrs. Miller asked if LCC International had considered any other options, how many towers are around and how far apart they are. Mr. Fricke replied that the Exit 5 tower is too far away to provide coverage and that the nearby towers can only cover small parts of the town. Mrs. Miller then asked if the worst case scenario is that people lose coverage in certain areas.
Mr. Meserve asked if the towers will come down in the future as coverage improves. Mr. Fricke replied that with current technology, even with satellite phones, there will be a need for cell phone towers. Ultimately maybe some towers will come down but there will still probably be a need along highways. He pointed out that the lease on the proposed tower is 25 years, which is standard in the industry.
At this point Dave Clark indicated that the discussion would be ending. Rose Hill asked if it was necessary to have the application approved tonight. Mr. Shaw replied that it was, as United States Cellular will be offering service in this area by May 10th or May 31st of this year. Nancy Harriman pointed out that U.S. Cellular’s deadline is not the Planning Board’s concern. She asked if there was any reason to wait, and Rose replied that the FAA approval may be in hand at a later date.
Mr. Miller expressed concern over the possibility that something may be erected that wasn’t right. Dave Clark answered that Planning Board approval is based on the plans presented. Rose Hill noted that if the application was approved that night, it would be with a list of conditions. The conditions Mike Polakewich’s tower were then re-read:
A valid copy of liability in the amount of $500,000 must be kept on file with the town and renewed every year.
No microwave dishes are allowed on the tower.
Interference caused by the tower must be rectified at the expense of the tower owner.
FAA approval must be filed with the Planning Board.
If the tower is unused for a period of twelve (12) months it shall be considered abandoned and must be removed within six (6) months at the owner’s expense.
The following conditions were added:
Space shall be provided on the tower for use by the local fire department and other public services in the interest of public safety.
The tower cannot be lighted.
Prior to commencing regular operation of the facility, all facility owners and operators must submit a certificate of compliance with all current Federal Communications Commission regulations concerning electromagnetic radiation and other electronic emissions applicable to the facility.
All facility operators and owners must sign an agreement, to be maintained by the town, agreeing to bring facilities into compliance with any new federal, state, or local laws of regulations concerning electromagnetic radiation and other electronic emissions applicable to the facility within 120 days of the effective date of the regulations.
Mr. Fricke asked if other carriers would be required to come before the Board in order to co-locate on the tower. Dave Clark replied that he felt that all would need to come before the Board, certainly until a comprehensive plan and new ordinances are in effect.
Mr. Fricke suggested that Condition 5 be amended to include any equipment that is unused for twelve months. Dave Clark asked if six months would be better than twelve but Mr. Fricke felt that twelve months would be more reasonable. He also suggested that Condition 6 be amended to read that space shall be provided at the base of the tower as well as on the tower.
Selectman Keith Harris asked if there would be an escrow account to pay for removal in the event that the tower was abandoned. Mr. Fricke replied that typically a bond would be set up for that purpose in the amount of $20,000-$30,000. Dave Clark suggested that the bond be in the amount of $50,000 and be payable to the town, with a copy to be filed every year with the town. That would cover the tower and U.S. Cellular, other carriers would be expected to put up similar bonds. It was suggested also that the liability in Condition 1 be amended to $1,000,000.
Jack Taylor made a motion to grant the application with the proposed conditions. Mr. Fricke pointed out that, regarding Condition 8, there is no such certificate provided by the FCC, but that an RF engineer could provide a letter stating that the site complies with current FCC standards. Keith Harris then suggested that Condition 3 be amended to read “upon written complaint”. The conditions were then read again and are as follows:
A valid copy of liability insurance for the tower in the amount of $1,000,000.00 (one million dollars) shall be filed with the Planning Board.
No microwave dishes may be located on the tower.
Any electronic interference caused by the tower or other structure within the compound will be rectified by the tower operator upon written complaint.
A copy of the FAA approval shall be provided and kept on file with the Planning Board.
If the tower is unused for a period of twelve (12) consecutive months, it will be considered abandoned and will be removed at the owner’s expense within six (6) months’ time.
If any equipment located on the tower is unused for a period of twelve (12) consecutive months, it will be considered abandoned and will be removed at the owner’s expense within six (6) months’ time.
A $50,000.00 (fifty thousand dollar) bond shall be established for the purpose of removing the tower in the event that it is abandoned and the owner does not remove it. The bond shall be payable to the Town of Dayton. A copy of the bond shall be filed every year with the Planning Board.
Space shall be provided on the tower and at the base for use by the local fire department and other public services in the interest of public safety.
The tower cannot be lighted.
Prior to commencing regular operation of the facility, all facility owners and operators must submit a letter from an RF engineer certifying that the site complies with current FCC regulations concerning electromagnetic radiation and other electronic emissions applicable to the facility. This letter shall be kept on file with the Planning Board.
All facility owners and operators must sign an agreement to bring facilities into compliance with any new federal, state, or local laws or regulations concerning electromagnetic radiation and other electronic emissions applicable to the facility within 120 days of the effective date of the regulations. This agreement shall be kept on file with the Planning Board.
Rose Hill then seconded the motion to approve the application with the accompanying conditions. The motion passed.
NEW BUSINESS
No new business was discussed.
Dave Clark adjourned the meeting at 9:50. The next meeting is scheduled for Monday, March 15, 2004.
________________________________________________Date:_________
Valerie Cole, Secretary
________________________________________________Date:_________
Dave Clark, Chairperson
COPIES TO: Jim Roberts, Code Enforcement Officer and Town Selectmen
THESE MINUTES MAY NOT BE TRANSCRIBED VERBATIM. SECTIONS MAY BE PARAPHRASED FOR CLARITY.
| 
