[mcdude]

From the Baysider 10/08/09

October 06, 2009
ALTON — As far as East Side Drive resident David Slade knew, Alton's Board of Selectmen seemed to be holding all the cards in the Miramichie Hill cell tower case until this spring.

Everything seemed to be going so well, in fact, that when Slade and his fellow abutters heard the news over the summer that the selectmen had switched gears and chosen to pursue a settlement with the plaintiffs, they were dumbfounded.

"I'm just scratching my head, wondering why the board of selectmen are doing a 180," Slade (who has been granted intervener status in the lawsuit, along with his wife) said during a telephone interview late last month.

The origins of the lawsuit date back to 2004, when RCC Atlantic, Inc., a Minnesota-based cellular phone service provider associated with Unicel, began searching for a suitable site for a tower that could close what were described at the time as significant gaps in coverage along Route 28.

In September of 2005, after identifying the Miramichie Hill site on East Side Drive and another site on the Wolfeboro Highway as the two best options, RCC and its site developer, Industrial Communications & Electronics, Inc. (ICE), applied for a variance from the zoning board that would allow them to construct towers on the two properties (which were not located in one of the four overlay districts zoned for cell towers at that time).

With the town under an interim growth management ordinance at that time that placed a moratorium on new construction, the zoning board was prohibited from making any decisions on the proposal.

During the town elections in March of 2006, held in the midst of the ongoing public hearings, voters approved a change in the zoning ordinance allowing towers to be constructed throughout the entire town, but restricting their height to no more than 10 feet above the average tree line.

After granting a variance for the Wolfeboro Highway site, the zoning board, together with the planning board, ordered a second evaluation of the Miramichie Hill site by engineer Mark Hutchins in November of 2006.

Upon reviewing Hutchins' report, the two boards jointly decided to table further planning board hearings and remand the issue back to the zoning board.

With opposition to the proposal widespread among abutters and other concerned residents (including two members of the planning board), the zoning board voted in December of 2006 to deny the variance for the Miramichie Hill site.

After their request for a re-hearing was denied in March of 2007, RCC and ICE filed suit against the town in U.S. District Court on grounds that Alton's zoning regulations were hostile to cell towers.

According to the findings of a third-party engineer hired by RCC and ICE, cell towers must have a minimum of 15 to 20 feet of clearance above the tree line in order to provide effective service — nearly double the 10-foot limit imposed by the town's zoning ordinance.

After hearing oral arguments from both sides, the court found that the plaintiffs had not provided sufficient proof that they should be granted the variance.

The court made no ruling, however, on the plaintiffs' claim that the town's zoning ordinance was hostile to cellular service providers.

Over the plaintiffs' objections, the court granted the Slades' petition to be included in the case as interveners in June of 2007.

According to Slade, the next time he or his wife, Marilyn, heard anything about the case was in August of this year, when they received notice that attorneys for both the town and the plaintiffs had filed a joint status report stating that negotiations for a possible settlement were under way.

"An agreement in principle has been reached between the Applicants [or plaintiffs] and the Town with respect to certain issues, but the parties are unable to agree to all terms necessary to complete a settlement," the status report, filed on Aug. 14, reads.

According to the report, the major sticking point has been the fact that the town has asked RCC and ICE to limit the height of the tower to 100 feet.

The plaintiffs, however, have continued to argue that the tower would need to be at least 120 feet high in order to provide effective service.

"The Town wants the Applicant to agree that it will not seek to locate a wireless facility on the property greater than 100 feet in height, and seeks to enforce this by a restrictive covenant or other encumbrance to be placed upon the subject real property itself to provide finality and to avoid future litigation," the report states.

Town Administrator Russell Bailey and Selectman Pat Fuller confirmed last week that settlement negotiations are under way, but both said they could not comment on the case until a final agreement has been reached.

Explaining that his historic 18th Century home on East Side Drive has been in his family since the early 1950s, and that the proposed tower would be within 100 feet of the stone wall at the edge of his property, Slade said his chief concern about the possible settlement is the fact that the selectmen appeared, to him, to be overriding the authority of the zoning and planning boards.

Concerned that the zoning and planning boards might not have been notified about the settlement negotiations, Slade recently sent a letter to the planning office encouraging members of both boards to make their opinions known if they disagree with the selectmen's actions.

"Equally as troubling as the proposal [for a 100-foot tower] itself is the fact that the Selectmen are also apparently considering asking the Court to order that a permit be granted without returning this matter to either the Zoning Board or the Planning Board for further consideration or input," Slade wrote in the letter.

"These two Boards," he added, "are charged with the enforcement of local land use ordinances and regulations and also provide protection for the Town, its residents, land owners and visitors against improper or detrimental land uses. In my opinion, that would include the construction of the cell tower, and I assume that the Planning Board and Zoning Board members would agree, as demonstrated by their unanimous decision in opposing this matter."

"It's puzzling to me why all this is happening, given the circumstances," Slade said during the recent telephone interview, adding that the question on his mind is why the selectmen felt pressured into reversing their position on the case.

Given the fact that the zoning board granted RCC and ICE a variance for construction of the Wolfeboro Highway tower, he felt the plaintiffs would be hard pressed to demonstrate open hostility toward cell towers on the town's part.

Financial resources should also not be a concern for the selectmen, he said, since he has offered on several occasions to contribute money out of his own pocket toward the town's defense.

Voicing his belief that by settling with the plaintiffs, the town would simply be giving RCC and ICE what they want, Slade said the decision to pursue a settlement he did not feel was necessary had left him feeling "quite uneasy."

"I'm just very nervous, and feeling quite insecure," he said, adding that he was pinning his hopes on the dispute over the height of the tower as one final opportunity for the selectmen to "put things on the right track."

Brendan Berube