DAYTON PLANNING BOARD
Regular Meeting
May 17, 2004
This is the continuation of the Public Hearing of May 6, 2004. The meeting was taped and recorded onto a CD. Those attending were advised of the recording before the meeting was called to order.
Present: Dave Clark, Rose Hill, Jack Taylor, Heather Pinet, Nancy Harrriman, Ron Wormwood,
Others Present: Town Attorney Maxine Pouravelis, US Cellular Attorney Barry Hobbins, LCC International representatives Ed Shaw and Prakesh Suman, Dayton residents (see attached list)
Handouts and Papers Received by the Planning Board:
12. Envelope containing articles and printouts from the internet of other cell tower disputes, photos, opinions on property value decline, alternative antennae structures, maps, etc. (Mrs. Miller) Please note: some of this is duplicate information. Some of the information is referenced previously in the May 6th minutes. The papers were given to the Secretary before the continuation of the meeting.
13. Petition signed by 63 residents favoring the proposed tower (Ms. Tardiff)
Chairman Dave Clark started the meeting at 7 p.m. by explaining that the discussion would continue on points left unfinished at the May 6, 2004 meeting. He asked for discussion or comments from the audience on the height issue.
Giselle Tardiff presented a petition (13) with 63 signatures of residents who are unopposed to the tower and believe that it would benefit the community by improving cell phone communications and providing space for local public safety communications. The petition also stated that the undersigned “feel that residents should be able to do with their land as they please; in accordance with the town laws for permits & ordinances withstanding.”
Dr. Potyk reported that he had talked with RF Engineers, although not in this area, about the signal strength at heights of 120 feet and 180 feet, and it was indicated that the strength was the same. He showed maps to support his statement (copies in #12). He also noted that the propagation maps provided by US Cellular were of different scales and felt that could be misleading. For those reasons he felt that an independent study was justifiable.
Mrs. Miller stated that she felt the 35-ft height restriction was in the ordinance for a reason and should not be violated without good reason, as there was the option of applying for a variance. She noted that there are towers that function at less than 35 feet and that perhaps they may work in Dayton. In her research she had found that 50% of the PCS towers located in California are less than 50 feet tall. She pointed out that LCC International and US Cellular hadn’t offered any options other than a 190-ft tower. The presence of power lines did not indicate compatible use, she felt, and noted that antennae could be located on power lines. She then cited an example in of a California town with no specific tower ordinance where two towers had been erected, one at
35 feet and one at 37 feet, which required a variance. She was unsure whether or not the terrain in Dayton would allow a similar situation, but felt that such an option should be explored.
Mr. Hobbins, Attorney for US Cellular, stated the need to look at the overall picture for clarity. He cited a case in Lincoln ME where the local 35-ft height restriction would have had the effect of prohibiting cellular service; the town’s ordinance was superseded by the Telecommunications Act. He pointed out that at the Tardiff location, a 35-ft tower would not clear the tree height and would be blocked by the power lines. He also noted that the Board had already approved a tower for more than 35 feet: the Polakewich tower is 180 feet.
Mr. Suman, RF engineer for US Cellular, stated that the maps provided by Dr. Potyk could not be correct as they go against the laws of physics: the signal strength at 120 feet would have to be different than the strength at 180 feet. He also noted that all the propagation maps created by US Cellular were properly scaled. He then briefly reviewed the US Cellular maps:
1. Exhibit A. 150-ft tower near the Saco exit on I-95
2. Exhibit B. 200-ft tower located on a building in downtown Biddeford
3. Exhibit C. 190-ft tower located on Andrews Rd in Biddeford
The propagation maps indicated that none of the above towers covered the Dayton/Rts. 5 and 112 area. Mr. Suman explained that the Simpson Rd. tower (Saco) and the Polakewich tower had been explored as options but neither was suitable. The Simpson Rd. tower failed a stress test and the Polakewich tower would provide double coverage without filling in the gap in the Rts. 5 and 112 area.
Mrs. Miller asked if US Cellular planned to co-locate on the Polakewich tower. Mr. Suman replied that they did not as it made more sense to try to cover most of the town with one tower. When asked by Mrs. Miller why they did not plan to co-locate, Mr. Suman pointed out that the it was more economical to put up one tower to cover a needed area than to co-locate on a tower that wouldn’t provide the coverage needed, and then have to put up another tower. Mr. Suman then continued with his presentation. He showed how the tower located on Andrews Rd. in Biddeford also doesn’t provide coverage in the Dayton area and does not provide a seamless connection with the existing network. Mr. Suman then turned the map board over and showed more maps of models he had created earlier
that day of propagation from theoretical 35-ft towers located at two different points in Dayton with elevations of 350+ feet. One point was on Southern View, off Hight Road, and the other was on Hollis Road. He pointed out that they were a long distance from the nearest existing tower and did not connect to the existing network. Mr. Hobbins asked if the sites had a use outside of the area and Mr. Suman replied that they didn’t because of the lack of connection, and referred to them as “isolated cells”. Mr. Hobbins then asked what coverage would be expected from a 35-ft tower at the Tardiff site; Mr. Suman indicated that it would be very little. He then referred to the “line of sight” comment made at the previous meeting (see May 6, 2004 minutes, page 2), explaining that “line of sight” is the criteria; it is the way that the signal is propagated and is a law of physics. The 1900 frequency assigned to
US Cellular is so high that “line of sight” is an important criterion. When the height decreases, the signal strength decreases faster.
Mrs. Miller asked if models had been created for heights other than 35 feet at the two high elevations. Mr. Hobbins replied that they hadn’t as 35 feet is the restriction stated in the Dayton ordinances. Ms. Pouravelis, attorney for the Town, pointed out that a variance could be obtained, but an inherent problem was that a variance was unlikely to be obtained without saying that the Telecommunications Act supersedes everything. While briefly explaining the state statute governing variances, she pointed out that while it was possible to receive another level of review by going before Zoning Board of Appeals, it made sense to resolve issues as much as possible before the current Board.
When asked, Mr. Suman said that his propagation maps took distance and vegetation into account. He briefly explained the technology used in making the maps and explained the “clutter” or interference that can occur from trees, houses, and other objects. He affirmed that at the Tardiff site, trees are a specific factor in clutter at a low height.
Mrs. Miller cited several examples where towers had been reduced in height because it was found that errors had been made in calculating the necessary height. One in Denmark, ME went from 300 feet to 190 feet. She asked how the Planning Board could review the case without getting independent counsel to confirm or correct calculations and asked also about the use of filler towers of shorter heights. Mr. Suman replied that the coverage could be accomplished with shorter towers but that it would require maybe 10 or 15 sites. Mr. Hobbins pointed out that if the town reinforced the 35-foot height limit than the other seven licensed carriers would have the right to apply and be approved for 35-foot towers if they can prove propagation-wise that they need it.
Mrs. Miller asked how many carriers were co-located on the Denmark tower. Mr. Hobbins replied that it is a unique case and that there are four towers on Pleasant Mountain. He then asked Mr. Suman if, on the maps shown by Dr. Potyk, an independent consultant would use the same methods. Mr. Suman replied that another study would produce pretty much the same results. He pointed out again that it is in the best interest of the town to have a single tower location than multiple short towers. While technically a town can have multiple towers, that is usually not the case in rural areas.
Dr. Potyk asked if there was a direct correlation between increased height and increased propagation; would doubling the height yield double the propagation? Mr. Suman replied that in an ideal case, such as on flat land, it would double the propagation, but he could not make that claim about the location in question. Dr. Potyk then approached the model maps and Mr. Suman explained them to him in more detail. Dr. Potyk asked about putting the tower on a different ridge and Mr. Hobbins explained to him that the purpose of the model maps was to prove the need to erect a tower higher than 35 feet, that even at two different locations of high elevation a 35-ft tower would not provide the coverage needed.
Nancy Harriman asked the height of the two elevations. Ed Shaw replied that the location on Southern View was 361 feet above sea level and the tree height was 50 feet, and the ridge on Hollis Road was similar. Dr. Potyk stated his opinion that a shorter tower at a higher elevation, specifically at one of these locations, should be sufficient. He and Mr. Hobbins then exchanged words as to the professionalism of his opinion and while they were doing so, Mr. Miller reiterated that he felt an independent study should be conducted. If the town would not or could not conduct such a study, he indicated the intention to appeal the decision. He then questioned the maps’ scale, and Mr. Suman replied that one inch represented one mile. Mr. Hobbins asked Mr. Suman if any
professional would use this same scale; Mr. Suman replied that it was typical, but differences could exist based on the computer program used.
The Millers asked if a computer was on-site while the tests were conducted and Mr. Suman explained that the data was gathered on site and then entered into the computer when back at the office.
At this point David Clark announced that proceedings were getting out of hand. Mrs. Starbird spoke up and said that she had been told that her property (located near Cook’s Brook) was a potential site. Rose Hill looked at the list of potential sites in US Cellular’s original application book, but no further discussion was had on Mrs. Starbird’s comment.
Mr. Shaw stated that LCC International had been hired by US Cellular to have 71 sites functional by May 10th, and that so far 59 sites were turned on. He indicated that Mr. Matt Boles, who had originally approached the Planning Board on behalf of US Cellular, had talked with the Saco CEO about the Simpson tower and that Mr. Shaw believed that the conversation he had with the CEO was similar. Mr. Hobbins clarified that, as stated in the May 6th minutes, he had talked with Bob Hamblen, Saco city planner, and that the only way to rebuild the Simpson tower was if it fell down on its own, and that the owners would have to go through this process with the city of Saco as Simpson Road is not in an area zoned for that use.
Jack Taylor asked Ms. Pouravelis if the Board should hire an independent consultant. She replied that there was provision to do so if it was deemed necessary, and the town could do so if the Board felt that it had inadequate information. Nancy Harriman asked how the Board should determine whether or not the Telecommunications Act applied. Ms. Pouravelis replied that the issues at hand were, 1) did the Board have enough evidence to make a decision, and 2) does the 35-ft height limit effectively prohibit personal wireless service in town? The town cannot allow just one tower if a substantial gap has been identified in the applicant’s service. The Board has to decide based on the evidence given.
Jack Taylor wondered if the tax dollar effect had been determined. Mr. Hobbins stated his opinion that it was improper for the town to discuss the tax effect at the current time. Ms. Pouravelis agreed, stating that the decision by the Board had to be based on the zoning ordinance as it stands currently and that the tax effect is beyond the Board’s consideration unless it is worked into the standards.
David Clark read point #17 on the Review Standards and asked if there was any discussion. (17. Does the maximum building height “prohibit or have the effect of prohibiting the provision of personal wireless services”? Federal Telecommunications Act, 47 U.S.C. 332©(7)(A), (B)(i)(ii) (Supp. 1998) Ms. Pouravelis cautioned that first the Board needed to determine whether or not there is a gap. Members felt that there was a gap. David Clark reread #17. Nancy Harriman said that she felt that she needed more evidence. Ms. Pouravelis pointed out that the that the decision was factually driven; did the Board have enough hard evidence as to whether or not the 35-ft height restriction would make it impossible- or nearly so- for any company, especially the
applicant, to conduct wireless communications? Was the evidence credible? If members felt they didn’t have enough evidence, the town has the option of requesting the applicant to pay for an independent study.
Jack Taylor stated that he felt that the 35-ft height would have that effect. Other Board members were unsure. David Clark asked for a show of hands for approving #17; all were in favor except for one abstention. David asked Ms. Pouravelis to clarify what would happen if the height limit did have a prohibiting effect and she replied that the Telecommunications Act would cancel out the 35-ft limit and override it because of the supremacy clause. David Clark asked again for a show of hands for a “yes” on question #17. All hands were raised except for one abstention.
David Clark then invited discussion on #26, Economic Effects. Mrs. Miller referred to Ms. Anton’s statement, given at the May 6th hearing, that the tower would affect more than just the neighbors as not only the neighbors see it. Ms. Anton had said also that towers can have a big impact on rural areas and the homes near towers tend to sell if they are considered to be “more of a bargain”. In her opinion, most realtors view towers as they view power lines, not in a favorable light. She cited one New York realtor who claimed that homes adjacent to towers sold for up to 25% less, but most realtors were not able to place such a figure. She felt also that the marketability of a home in Dayton would be more affected by a tower than one in Falmouth.
Mrs. Miller stated that there were ways to encourage less visible towers and discourage higher towers, such as the ease in having applications granted. Mr. Hobbins pointed out that Ms. Anton is not a certified real estate appraiser, a distinction that is looked at differently by lending institutes. He then referenced the letter by Amidon Appraisal (Tab 7, Handout #3) which summarized that the tower would not have an adverse effect on nearby property values. He explained that Ms. Amidon had visited the site and surrounding properties and photographed, and that she had surveyed other towns in York County, asking if any had seen negative impacts on property values or granted abatements. Only Ogunquit had seen any negative impact, possibly due to a recent lawsuit. None of the towns had received any requests for abatements.
Mrs. Miller asked if Ms. Amidon had driven down River Ridge, pointing out that utility wires on that road are underground because residents are concerned about the road’s appearance. Mr. Shaw said that he had driven Ms. Amidon around, including River Ridge. Mrs. Miller asked if Ms. Amidon had witnessed the balloon test. Mr. Shaw said that she had not, and said also that he had tried to conduct the balloon test seven times. Mr. Miller stated his opinion that if he were buying a house with a cell tower in the backyard, he would offer “a lot less money”.
Jack Taylor noted that, as a Realtor, he had seen properties located adjacent to towers that had sold for large sums. In his opinion he did not see the potential for devaluation.
Ms. Pouravelis referenced the Dayton Zoning Ordinance (Article 6.8.F.2) (the Planning Board shall make written findings…certifying that satisfactory provision and arrangement has been made concerning the following) and that because economic effect was one of the concerns, the Board would have to make a judgment. The question to consider was: is the economic effect sufficient basis to deny the application? Considering that cell towers will need to be dealt with in the town as they cannot be outlawed, there will need to be a method of acceptance at some point.
Nancy Harriman noted that there was some kind of economic effect but not enough to prohibit the tower.
Ms. Pouravelis then cautioned the Board against resting its decision on comments made by a Board member, such as Jack’s comments made from first-hand knowledge of real estate. She didn’t feel that the members should be the ones giving evidence.
Nancy noted that the Board has determined economic effects in other cases and had been unable to deny the application.
Ms. Pouravelis explained that the process can be stopped if there is significant evidence; it becomes a case of expert testimony vs. opinion. The Board needs to consider whether or not the economic effect is detrimental enough to form the basis for a denial.
Nancy asked if the Board has to follow the Telecommunications Act. Ms. Pouravelis replied that the TCA does not prohibit denying a tower based on economic effect and that it does intend for communities to take in towers, even though some negative effects are expected. The question becomes, is the negative effect more than should be expected?
David Clark asked if there were any more comments. Rose Hill than made a motion on Review question #26 that the tower would not affect property values significantly. Heather Pinet seconded the motion, all voted in favor.
David Clark asked if fencing should be a condition. Nancy Harriman pointed out that the plans call for a fence to be built and maintained around the base facility. Ms. Pouravelis reminded the members that it had been discussed at the May 6th hearing as a condition to be maintained for the duration of the term of use. Mr. Hobbins and Mr. Shaw indicated that they had no contentions with that as a condition. Ms. Pouravelis felt that it should be in the Conditional Use Permit. Mr. Shaw asked what the Board would like to see for a fence. Jack motioned for a 60’ X 60’ chain link fence surrounding the base facility, 6 feet in height, with barbed wire on the top. Members voted in favor.
David Clark reviewed question #18 on the Review, “Compatible with adjacent land uses and other property in the district”. Members felt that it was compatible with the nearby power lines. With no further discussion, Rose Hill voted to accept #18, Jack seconded the motion, all voted in favor.
Ms. Pouravelis advised that the findings needed to be officially adopted and approved by the Board. Nancy motioned to do so, Jack seconded the motion, all members voted in favor. David Clark then called for a motion on approving the complete application. Rose read the application cover and the twelve conditions and motioned to accept. Jack seconded her motion. Ms. Pouravelis pointed out that the previous Conditional Use Permit should be rescinded and replaced with the current one. Rose amended her motion, Jack seconded again and all members voted in favor.
Mrs. Tarbox asked if anyone would be checking emissions from the tower other than the builders. David explained that emissions would be checked as required by the FCC and that information would be on file with the town. He then suggested a five-minute recess before continuing other business.
When the meeting resumed at 8:55 p.m. only Board members were in attendance. The tape recorder was turned off at that point.
OLD BUSINESS:
SDI Apparently no CUP was ever issued for SDI. The secretary was asked to check the files at the Town Hall to be sure. A letter should be drafted to the bank to verify the required bond.
NEW BUSINESS:
OMER GAGNON: Members read a letter written by Mr. Gagnon to the Selectmen regarding the Buda Road/Hollis Road intersection. No further action.
DANIEL GODBOUT: Members read a letter written by Mr. Godbout of Simpson Road in Saco to CEO Jim Roberts, concerning loud and excessive gunfire coming from the Gibbons property on River Ridge. Members felt that this is a police matter and that they should not take any action.
The meeting adjourned at 8:30. The next regular meeting is scheduled for Monday, June 21st, 2004 at 7:30 p.m. at the Town Hall.
________________________________________________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.
| 
