2017-07-14 / Front Page

Poor reception for cell tower proposal

By Wm. Duke Harrington Staff Writer

KENNEBUNK — After three hours of testimony at a public hearing Monday, a cell phone tower first proposed three years ago for an area off Route 9 in Kennebunk is facing an uphill battle to make the November ballot vote for a required zone change.

According to Town Planner Bernstein, the 33-acre lot owned by L. Dwight Water Corp. currently sits in the town’s rural conservation zoning district.

In order to facilitate construction of a 225-foot tall cell phone tower, developer Tim Dwight of Amesbury, Massachusetts based, Hehl Enterprises, has asked the town to place the entire parcel in a new contract zone that would specifically permit the project. The structure would be 240 feet tall when counting a thin 15-foot aerial whip antennae at its peak.

In a February telephone interview, Dwight explained that as a health care executive who is in the area often — he’s part of the family that owns Parsons Beach — he felt there is a need in the area of better cell coverage.

“I’m up there on a regular basis and while I’m on the eastern side of the Parsons Beach area I have a very poor signal. So, I took a personal interest because as a businessperson I need to be online all the time for both voice and data communications,” he said. “This is pure entrepreneurism, really. It strikes a balance between the people’s needs and personal needs.”

However, apart from family member Larry Dwight, all those who spoke at a July 10 joint meeting of the Kennebunk Board of Selectmen and the town planning board opposed the idea.

Abutting property owner Wayne White of Del Rio Drive submitted a one-inch thick packet of information to town officials disputing Dwight’s claim that a new cell tower in the are would have much of an impact on cell phone reception.

“If there truly is a need, there are areas in close proximity to Mr. Dwight’s property that are already zoned for this purpose,” said Sheri White. “Mr. Dwight seeks this request to provide for his own personal financial gain to the detriment of everyone who lives n the area. He doesn’t even live here. His home is in Massachusetts. His home is not threatened by this.”

“We are very familiar with cell phone reception in that area. We have had no problems. In fact, we do not have a land line. We rely solely on cell phones, “said Crescent Surf Drive resident Rudy Hutz. “This is not needed because there is already sufficient cell tower coverage to meet the present and future needs.

“There is nothing wrong with making money, we all want to do it,” Hutz said. “But it is wrong to inflict a 140-foot industrial tower on the neighbors and the adjoining wildlife. That is not proper.”

In his testimony, Hutz also quoted from a June 7 letter from Ward Feurt, manager of the Rachel Carson Wildlife Preserve in Wells, which owns land abutting the Dwight lot, opposing the project.

“The extent of development and disturbance associated with building, operating, and maintaining the tower is detrimental to wildlife, and for that reason the U.S. Fish and Wildlife Service opposes the contract zoning request,” Feurt wrote. “The town itself will without doubt kill birds and bats, due mostly to nocturnal and migratory strikes. The access road will fragment habitats and maintenance will disturb resident wildlife and nesting and migratory birds.”

Selectman Shiloh Schulte observed that, according to Dwight’s maps of improved cellphone reception, the greatest gains will be in area’s where, at least in theory, few people would be tromping around looking for a signal.

“The Rachel Carson Wildlife Refuge is going to have amazing coverage,” he said.

Wayne White also questioned the discontinued portion of Hart Road on the North Side of Route 9 (Western Avenue) which runs the length of the Dwight lot and would provide access to the quarter-acre were the cell tower base and equipment would be located.

Under questioning from Bernstein on the exact status of that road, Dwight’s attorney, Alan Shepard, of Kennebunk firm Shepard and Reed, said that although the past town meeting vote to discontinue that section of Hart Road had questionable legal status, the town had not done work on it for more than 30 years, meaning that by state law it had a “presumption of abandonment.”

“When it’s deemed abandoned, the rule is that it’s treated as if the road is discontinued, which means the ownership of the road [by abutters] goes to the centerline of the road,” Shepard said.

That being the case, White argued Dwight could not make the “significant” improvements needed to the road in order to facilitate fire trucks, should an emergency at the tower base arise. He would have to move the road, currently 10-15 feet wide, fully onto his property, putting it closer to the wetlands and vernal pools that blanket much of the lot between the proposed tower site and Route 9.

The relevant state law, adopted in 1976, says a presumption of abandonment due to lack of anything but incidental maintenance only downgrades a road to the status of a public easement. That would allow use of the road as is, and absolves the town from paying for upgrades, but it does call into question a private citizen putting up a gate to block vehicle access on a public easement, as Dwight did three years ago to frustrate camping by vagrants.

Selectmen betrayed no hint of how they might act if and when a zoning change request comes to them as a warrant item to go before voters. However, several planning board members indicated they are likely at present to vote against recommending the change.

In large part that was based on the fact that Dwight is essentially requesting the change on spec, with no cell carriers yet committed to leasing space on the tower, or having come forward to attest to the need for additional towers in the area.

“I’ve got a real hesitation to support this right now because you haven’t demonstrated to me that there is a defined need for it,” board member Robert Metcalf said. “If we were to vote on it tonight, my recommendation would be no.”

“I haven’t been convinced that a need has been demonstrated,” board member David Smith agreed. “It hasn’t been demonstrated to me that other areas where cell towers are currently allowed in wouldn’t solve the problem. And we haven’t heard from any cell companies saying, ‘Gee, we really need this.’”

“I tend to agree,” board chairman Chris MacClinchy. “We’ve continually asked for information and it has not been provided and when it is provided, it’s just what they feel is enough.”

Dwight said he would return to the next board meeting Aug. 14 with answers to outstanding questions proving the need for the project, and the status of the road.

“Sure, I’ve been at this for three years. Why should I stop now,” he said.

Road status could be an important factor due to the distance required for a safe “fall zone” should the tower ever come down. Current ordinances say the fall zone must be 125 percent of the tower height, and Dwight said, as is, the 15-foot aerial whip would fall across the road, if that is counted as part of the tower height. However, Dwight also said the tower would not fall in a straight “timber-like” fashion, but would crumble in on itself should it ever topple, meaning the full distance called for would not be required. The planning board asked for some engineering data to prove that claim.

If the planning board does vote in favor of the zone change, it would have to go before selectmen at their Aug. 22 meeting in order to meet filing deadlines to make the November vote.

One planning board member said there’s a good reason to block the project from ever getting before voters, if all the details are not fully squared away.

“No offense to the voters in this community,” Metcalf said, “but if this goes to voters, like everything else, if they don’t read it and don’t understand it, they just check sure, I’m in favor of it.”

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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