DAYTON PLANNING BOARD
PUBLIC HEARING
PROPOSED CELL TOWER AT 34 TARDIFF LANE
MAY 6, 2004
Members Present: David Clark, Rose Hill, Nancy Harriman, Ron Wormwood
Members Absent: Jack Taylor, Heather Pinet
Others Present: Town Attorney Maxine Pouravelis, US Cellular Attorney Barry Hobbins, CEO Jim Roberts, residents of Dayton and representatives of LCC Int. (See attached list)
Handouts and papers presented to the Board at this Public Hearing, referenced in the minutes:
Review Procedure (Attorney Pouravelis)
Summary of Legal Points for Memorandum of Law (Attorney Hobbins)
Town of Dayton –Application for a Telecommunications Facility Located at 34 Tardiff Lane, bound booklet (Attorney Hobbins)
Petition of 49 Signatures indicating dissatisfaction with the Planning Board’s decision, signed by residents living near the north end of Rt. 5 to roughly the beginning of Gould Rd. (Mr. Miller)
“Guidelines for Facilities” (Mr. Miller)
Town of Dayton Planning Board, questions from residents (Mr. Miller)
Photos of existing cell phone towers and proposed tower superimposed on River Ridge landscape (Mr. Miller)
Tower Reanalysis Report (Attorney Hobbins)
US Cellular Site Maps and Project Summary (Attorney Hobbins)
Email to Dr. Potyk regarding tower on Simpson Rd., Saco (Dr. Potyk) (Please note: this is a reply email only, the Board did not receive the original inquiry)
Manila envelope of printouts from websites regarding cell tower construction at different sites in the United States (Mrs. Miller) (received by the Secretary after the Public Hearing on May 13, 2004)
Chairman David Clark called the Public Hearing to order at 7 p.m. and explained that the purpose was to correct procedural errors made by the Planning Board when granting a Conditional Use Permit to US Cellular for a cell phone tower on February 16, 2004. Attorney Pouravelis gave Board members a copy of the Review Procedure (1) and Attorney Hobbins distributed a handout entitled “Summary of Legal Points” (2) as well as a booklet entitled Town of Dayton- Application for a Telecommunications Facility Located at 34 Tardiff Lane (3). Before the Review Procedure started, comments were invited from those present.
Mr. Miller presented the Board with a Petition of 49 signatures indicating dissatisfaction with the Planning Board’s decision (4) and made the following observations and statements on behalf of those residents:
Residents’ concern was mainly with the height of the proposed tower, which was described as archaic
The residents’ purpose was not to deny the tower location, but to see if the height could be reduced
Residents feel that other tower configurations may be an alternative (i.e., towers on telephone poles, towers hidden in trees)
Residents objecting to the tower height had heard comments that made them feel like outsiders in the community
Mr. Miller then read from the “Guidelines for Facilities”(5) and commented that it was intended to help small communities so that they don’t feel that they have to “roll over for large companies” to avoid litigation. Mr. Miller reiterated that for many residents “the issue is mostly the height” and for him, personally, “the failure to explore other locations in town”. He realized that the proposed location was considered favorable because of factors such as elevation, access from an established driveway (additional fire access did not need to be constructed), and a willing landowner, but he thought that the town needed to look more closely at other options. He also volunteered his time to help with such situations, stating that he felt it is important
at this point to look at what the town will and will not accept, and to establish stringent guidelines. He again mentioned options to constructing towers and stated that he felt the town needed to get ordinances in place to deal specifically with cell phone towers. Mr. Miller then presented photos (7) of established cell phone towers, alternative towers, and the results of a “balloon test” that had been conducted that morning. On the photos of the balloon test he had superimposed a 190-ft tower to indicate the height above the tree line.
Mr. Miller also stated that he had talked with one person who indicated that “line of sight” was not a viable argument in determining tower height as wavelengths travel through things, such as car windows. He had also been told that the proposed 25-year lease was too long a time period and that 10 years would be more reasonable due to the rapid changes in the wireless industry. He concluded by saying that residents didn’t want to take the benefits of a tower away from anyone, but they felt that the town needed to educate itself on available options and could do better for antennae arrangements. He then submitted his papers and petitions to the Board.
Dr. Potyk referenced the Telecommunications Act of 1996, citing a passage that indicates that nothing shall affect the state or local government’s decision to modify towers, and that while municipalities cannot discriminate among providers they do have the power to make adjustments when making their decisions. Furthermore, municipalities shall act within a reasonable amount of time in making their decisions, which was determined in the report to be 180 days.
Dr. Potyk also referenced the Dayton Zoning Ordinance, Article 1.2.E., “To balance the right of land-owners to use their land, with the corresponding right of abutting and neighboring land owners to live without undue disturbance from noise, smoke, fumes, dust, odor, glare, traffic, storm water run-off, and other nuisances” and stated that aesthetics should probably also be assumed in that passage. He felt that those basic requirements did not provide for a tall cell tower, although amendments could be made.
Mrs. Miller stated that Attorney John Turcotte, who has been advising the residents, had sent a letter to Attorney Barry Hobbins to try to work on the issue of height, but had not received a response. She said that she was aware of three vacant towers in Saco, and had spoken with three independent consultants who would be willing to work with the town to offer options and get ordinances in place quickly to deal with towers. She also referenced the FCC’s “reasonable amount of time” (180 days) and the possibility of placing a moratorium on cell tower applications in order to explore other options.
At this point David Clark reminded people that the purpose for the Hearing was basically fact finding. Attorney Pouravelis advised that the Planning Board did not have the authority to place a moratorium, which would have to be decided by the Selectmen.
Mrs. Miller continued, saying that it seemed to her that a variance would be required for a structure of that height. As companies expect to have gaps in cell phone service, they should have back-up locations as a site might not always meet the ideal. Applicants should pay for a study by an independent consultant to avoid the legitimate concern of conflict of interest. Emissions should also be measured by an independent contractor, and that could be beneficial in the future if health concerns ever become an issue.
Mr. Merrill introduced himself as a resident of River Ridge who is not an abutter to the Tardiff’s property, although he lives behind the Tardiffs. He stated that he had not been contacted directly by the Planning Board and also felt that he had been classified as an “outsider” in this issue. As a concerned taxpayer, he wants what is best for the town. He felt that anyone had the right to have junk cars and the like on their property, but a 190-ft cell tower is different, and that in his opinion no one has the right to intrude on another’s line of sight. He felt that “one person’s cell tower is basically everyone’s cell tower”, as it would be visible from many locations in town, especially River Ridge and Sokokis Drive. He also felt that property
values would be affected in that they would not appreciate in the same manner as other properties, although he had no evidence. He also stated that he did not have any comparative evidence in terms of property devaluation.
At this point Ms. Anton introduced herself as a Real Estate agent in Saco and stated that properties next to cell towers tend to become “default properties” and are viewed by potential buyers as “what I can afford”. She gave an example of a location in Falmouth where she felt the property had been affected by as much as $20,000 because of its proximity to a tower. In summary, she felt that shorter, less obtrusive towers were beneficial for everyone.
Attorney Barry Hobbins, representing US Cellular, introduced himself and spoke briefly of his background in representing cell phone companies and dealing with sites of alternative design. He gave out copies of Application for a Telecommunications Facility Located at 34 Tardiff Lane (3) as well as copies of the Site Maps and Project Summary (9) and briefly reviewed the contents (see booklet for details). He explained that a tower is needed at the Tardiff location because there are no other structures tall enough to propagate the coverage demanded by consumers. Likewise there are no other nearby towers on which US Cellular could reasonably co-locate. Although there is a 257-ft tower on Simpson Road in Saco, it is not viable because it failed a stress test and is not capable of carrying
the weight of another antenna. The Polakewich tower is not an option because it is beyond the area that needs coverage. There is not much “wiggle room” on the proposed tower, perhaps 10 feet. He stated that 130 communities in Maine have adopted some form of of wireless communications ordinance that encourages co-location and discourages multiple towers, but Dayton had not done so. He also explained that the site specialist had attempted to locate the proposed tower near the power lines to help minimize the negative visual impact. Mr. Hobbins pointed out that an RF engineer's statement (Tab 6 in the booklet) predicted that the power wave density would be 1.1619% of the permissible limit, and that power lines have more of an impact than that. In Tab 7, Mr. Hobbins presented a statement from Amidon Appraisal Company concluding that the proposed tower will have no measurable adverse impact on property values, and the site is in an appropriate
location for such a facility. Included with the statement was a copy of a survey done in York County that indicated that, other than in Ogunquit, no towns have seen any changes in property value due to towers, and that furthermore, no abatement requests have been received. Mr. Hobbins also handed out copies of the “Tower Reanalysis Report” (8) produced for the Simpson Rd. tower.
Mrs. Gibbons introduced herself as an abutter to the tower site and stated that she has a sale pending on a lot on River Ridge, and that the sale was being held up and could fall through based on the cell phone tower decision.
At this point Dave Clark indicated that the Planning Board would start the review. (The following is a brief overview of the decisions made by Planning Board members during the review. For detail please see Review Procedure on file in the US Cellular folder.)
APPLICATION PROCESS
Plan drawn to scale? Yes
Appropriate place for Planning Board members signatures? Yes
Date, scale and arrow indicating due and magnetic north? Yes
Identification of zoning district in question? Yes
All existing and proposed setback dimensions? Yes
All landscaped areas, fencing, size and type of plants on premises? Yes
All proposed signs and size, location, direction of illumination? N/A
All existing and/or proposed buildings, with dimensions, showing grade elevations and parking areas as required? Yes
Contours, proposed finished grade elevations, drainage system? Yes (elevation of drainage system waived)
All fees paid? Yes
PERMISSABLE USE?
Is tower a utility or “use similar to permitted use” –permitted as conditional use in Farm and Forest District? Yes, - “use similar to permitted use”
DIMENSIONAL REQUIREMENTS
Minimum lot area of 3.03 acres? N/A (Parent lot qualifies)
Minimum frontage of 275 feet? N/A
Minimum setbacks? Yes (Footnote 1 applies, height of proposed tower is 190 feet and distance from nearest lot line is 195 feet)
Maximum lot coverage? Under 10% of parent lot
Maximum building height? (pending)
Does maximum building height prohibit or have the effect of prohibiting provision of wireless services? (Pending: it was noted that the tower is not a feature of the structure, it is the structure itself.)
At this point discussion continued about the height of the tower. Mr. Hobbins reminded people that the Telecommunications Act supersedes the Dayton Zoning Ordinance which allows a maximum building height of 35 feet. Tower height is based in part of elevation, so it could be possible to have a 35-foot tower at certain locations. Ms. Pouravelis asked if there were any locations in Dayton where a 35-foot was feasible. Mr. Hobbins called upon Prakash Suman, who introduced himself as a radio frequency engineer employed by US Cellular. He explained that US Cellular had already explored the possibility of co-locating, as well as using the Simpson Rd. tower and had looked at two other locations as well (KG1 and the Polakewich tower). There are no high peaks that would effectively cover Rts. 112 and 5, the
Simpson Rd. tower cannot pass a stress test, and according to computer generated propagation models, the other towers would not provide sufficient coverage or would provide duplicate coverage. The data for the computer models is collected on-site at various locations and heights and is considered to be 90% accurate, which is an accepted industry standard. Mr. Suman displayed several computer model maps indicating the location of “missed” coverage. He pointed out that a tower of 150 feet on the proposed location still had significant coverage holes and that companies weren’t interested in building towers that weren’t able to do the job. When asked by Mr. Hobbins if a 35-foot tower would provide coverage, Mr. Suman replied that it would take many 35foot towers to be effective, at a cost of approximately $1million each. He expressed his opinion that the proposed height was the optimum for coverage without putting up additional
towers.
Mr. Hobbins asked about the recommended spacing between antennae and Mr. Suman replied that it is normally 10 vertical feet. Board member Nancy Harriman asked about a hole in the coverage area over Rt. 5 as indicated on one of the maps and Mr. Suman explained that at 180 feet, the tower would cover the area, but at 150 feet, there would be gaps in the coverage. Ms. Pouravelis asked how many 35 foot towers would be needed to provide coverage and Mr. Suman answered that he couldn’t give an accurate number without running computer models. He also explained that the trees can affect coverage from low towers and for that reason towers are usually located on hills.
David Clark asked about the frequency for which the company is licensed and Mr. Suman replied that it is licensed for 1900 megahertz. He and Mr. Hobbins then explained that the FCC has assigned higher bands to reduce competition among carriers. 1900 megahertz is the highest issued by the FCC: carriers that are assigned higher frequencies require more height on towers to achieve the optimum 3-mile signal propagation.
Mrs. Miller read from a printout regarding the viability of a 35-ft tower (11). Mr. Hobbins requested information from Mr. Suman as to the shortest tower in the 71 sites to be built by US Cellular. Mr. Suman replied that the shortest one was 100-ft tall, and that it consisted of a 77-ft structure on a church steeple. Mrs. Miller pointed out that according to her research a 35-ft height limit would not prohibit a carrier from building a tower, and Mr. Hobbins argued that it would. Mr. Hobbins stated his desire to go on record as reminding everyone again that the FCC Telecommunications Act supersedes local restrictions. He pointed out that some coverage comes from towers that are even higher than 200 feet, as it can spill over from other areas. He noted too that power lines are not required to
carry antennae, although they do in three places in Maine. When asked by Nancy Harriman why that isn’t more widespread, he cited liability, degradation of electric fields, and the fact that antennas need to be re-tuned more frequently because of the high intensity from the power lines.
Dr. Potyk questioned the cost of a tower, adding that he had been told it cost $250,000 to erect. Mr. Hobbins explained that $250,000 would build a tower but with the interfacing and all the other components, the cost of a facility was closer to $1 million. Dr. Potyk then asked about the potential of erecting a 35-foot tower on the southeast side of Hollis Road, at an area of high elevation, and David Clark asked if other elevations in town had been explored. Mr. Hobbins replied that other elevations and structures had been investigated but didn’t fit the coverage pattern or the licensed coverage objectives. David Clark pointed out that the Hollis Road site mentioned was about three-quarters of a mile from the proposed site and asked if it had been looked at. Mr. Hobbins didn’t
know.
Nancy Harriman asked if the Saco tower was being used at all. Mr. Hobbins replied that the Simpson Rd. tower, which is 27 years old, was designated as a non-conforming structure and that Saco only allows towers in areas of commercial use. He reiterated that Dayton had no ordinance to deal with this issue. Mr. Shaw of LCC International Inc. pointed out that the Simpson Rd. tower had failed a structural analysis test but according to the Code Enforcement Officer of Saco, the only way it could come down was if it fell down of natural causes. Dr. Potyk read from an email (10) that he had received from Bob Hamblen of Saco regarding the Simpson Rd. tower. Mr. Hamblen made the following points: (Please note that only the reply portion of the email was received by the Board, not the original
inquiry.)
The Simpson Rd. tower is for radio signals and is not strong enough for cell phone hardware
The tower, which is at least a couple decades old, is in the C-1 zone, in which cell phone towers are not allowed
The last three towers approved in Saco are also not allowed by existing zoning but were achieved by contract zoning
Whether or not the Dayton Zoning Board could have requested more info is dependent on the Dayton Zoning Ordinance
Saco has a 440-ft tower off Boom Rd, it is unknown whether or not its capactiy has been reached.
It was indicated that Mrs. Miller had talked with the Simpson Rd. tower owners, who were willing to consider modifications and repairs. Mr. Hobbins stated that under Saco’s new ordinance the tower could be considered abandoned because it had been unused for two years. David Clark reminded people that an abandonment clause was part of the conditional use permit issued to US Cellular.
Board members agreed that Question 18 on the Review needed more discussion and that both Questions 17 and 18 would be on hold for the time being. The review then continued.
FACTORS APPLICABLE TO CONDITIONAL USES
Compatible with adjacent land uses and other properties in the district? (pending)
Need of a particular location for the proposed use? Yes
Impact on transportation facilities? N/A
Maintenance of safe and healthful conditions? (FCC regulations help ensure this. Health concerns cannot serve as a basis for denial.)
Existing topographic and drainage features and vegetative cover? No concerns
Prevention and control of water pollution? N/A
Location of site with respect to floodplain? N/A
ADDITIONAL FACTORS
Ingress and egress concerns? N/A
Off street parking, noise, glare, odor, safety and traffic flow? N/A
Economic effect?
Dr. Potyk recalled Ms. Anton’s comment that she felt people didn’t look at certain houses for sale because of their proximity to towers. Mrs. Miller commented on the problem Mrs. Gibbons was having with selling her property on River Ridge. Mrs. Austin of Saco stated that the effect on people other than those present should be considered, such as those living on the other side of the Saco River. Mr. Hobbins pointed out that the study done by Amidon Appraisal Company (3, Tab 7) differed from that of a Real Estate agent doing a market analysis, and would have a greater impact with a bank or financial institution. Mr. Merrill mentioned that he took exception to the remark that “in time people won’t notice towers”, as he felt that he noticed them a lot. When asked by Mr. Hobbins if he had seen many less than 190 feet, Mr. Merrill replied that he had, but the majority were 190 feet or higher. Mrs. Miller mentioned again the possibility of reducing tower height and concealing
antennae in trees.
David Clark asked the Tardiffs if they would like to respond to the issue of economic impact. Ms. Tardiff introduced herself as the daughter of the property owners and stated that she would allow more short towers to be built if necessary to provide service needed by residents and others in the area.
Board members continued with the review.
Refuse and service areas? N/A
Utilities? N/A, as minimal power will be required
Screening and buffering with reference to type, dimensions, character? Building is OK, tower questionable at this point.
Signage? N/A
Required yards and other open space? N/A
CONDITIONS
On the advice of Ms. Pouravelis, because the Board had already drawn up a list of conditions, this section was marked mostly as N/A with the exception of “Professional inspection and maintenance”. When asked if the FCC conducts inspections Mr. Hobbins replied that they do only if a site is in non-compliance. He explained further that monthly monitoring takes place and the FCC has access to this data due to its licensing requirements. Mrs. Miller pointed out that some towns require a surcharge to fund independent consultants. Mr. Hobbins referenced a report of ordinances in New Hampshire that require independent RF engineering companies to verify height needed.
GENERAL PERFORMANCE STANDARDS APPLICABLE TO ALL NEW OR EXPANDED USES:
32-34: no discussion
35. Setbacks and screening? Planning Board members decided to add another condition to the CUP, stating that the facility would be surrounded by a chain-link fence, 6 feet in height, as specified in US Cellular’s plans.
36. Explosive materials? N/A
37. Water quality? N/A
38. Flood protection? N/A
39-42 No discussion
David Clark stated his opinion that this is an aesthetics issue Page 8 of 1May6, 2004 Public HearingBoard Members had received much information and many opinions and needed to do more research.
Mr. Hobbins repeated that the tower only had about 10 feet of “wiggle room” and if it went lower than another carrier would soon be before the Planning Board, undergoing the same process. He emphasized again that communities in Maine encourage higher towers to increase chances for co-location and to limit the quantity of towers. Again he pointed out that Dayton’s problem was a lack of an ordinance to deal with towers. He advised that any ordinance dealing with towers should say that carriers must negotiate in good faith for co-location.
David Clark pointed out that it seems that US Cellular has been assigned the highest frequency, so they want a high tower, but other carriers with lower frequency may not need such height. Dr. Potyk mentioned at this point that other carriers have coverage. David Clark continued by saying that in Saco, the process for co-location has been simplified so that applicants do not need to go through the Planning Board but only need to apply for a building permit. Mr. Hobbins stated that to his knowledge Nextel was interested in co-locating, and T-Mobile had also expressed interest.
At 9:30 p.m. David Clark called for a motion to adjourn the meeting, stating that Board members had a lot of homework to do before the next meeting. Nancy Harriman motioned to adjourn; Rose Hill seconded the motion. Dr. Potyk asked to comment, and said that while talking with people in the cell phone industry, someone had suggested to him that a peer review study might be beneficial. Some of the options that had been suggested to him included having taller towers outside of town and shorter towers near residences. Some sources felt that 190-ft was archaic, and that a tower could be lower if the trees were only 70-80 ft. Some carriers can use a tower as low as 130 ft., and apparently having as few as two co-locators can make a tower economically viable for those installing it. Dr. Potyk
gave the opinion also that it wasn’t clear if this tower would provide the coverage needed, or if it would serve to complement the Polakewich tower. He wondered if 2/3 of maximum coverage possible was adequate. He felt that it would be worthwhile for the town to continue to look into the matter, perhaps through the use of independent studies, and perhaps impose a moratorium while doing so.
Mr. Hobbins commented that carriers have not done a good job in educating consumers about the cell phone industry, and that due to the increasing number of cell phones, demand for coverage has outstripped coverage areas. The density of cell phones in an area impacts the capacity of a tower to handle calls in a rural area, and if there is insufficient coverage, there is even less capacity. He stated that the need for a 190-ft tower was for the coverage, not just the capacity.
David Clark adjourned the meeting at 9:40 p.m. It was decided and announced that the matter would continue at the next regularly scheduled Planning Board meeting on May 17th, 2004. In order to accommodate as many potential attendees as possible, the meeting time will be changed to 7:00 p.m. and the meeting will take place in the Dayton School Gym. Board members were instructed to due more research before the next meeting.
After the meeting was adjourned Mr. Miller gave the Secretary a printout (6) of specific questions that concerned residents hoped to have the Planning Board answer.
________________________________________________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.
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