2017-08-25 / Front Page

Board tunes out cell tower proposal

By Wm. Duke Harrington Staff Writer

KENNEBUNK — If Kennebunk selectmen agree to send a contract zone request to voters in November, enabling potential construction of a 140-foot-tall cell phone tower in an area North of Route 9 sandwiched between two sections of the Rachel Carson National Wildlife Refuge, it will so do over the objection of the town planning board.

At its Aug. 14 meeting, the board voted 2-1 to send a “negative recommendation” to selectmen. Although motions are generally in the positive according to Robert’s Rules of Order, in this case the two votes in favor of the motion mean the board is against the project.

Board members David Smith and Janice Vance cast the two yes votes. But even Robert Metcalf, who voted against the motion, stressed that he was not, by that no, in favor of the project.

“I am not trying to pass the buck to selectmen. In the end, this is up to the voters,” he said. “But I have wrestled with this now for six months and I haven’t been 100 percent convinced that this is a positive thing to happen in Kennebunk. So, I’ve got a difficult time voting in favor. But I also have a difficult time voting in the negative. So, from my determination, [my vote] is a neutral position.”

Board chairman Chris MacClinchy and vice chairman Richard Smith were absent from the meeting.

The planning board vote will go to selectmen with one caveat. It wants town attorney Natalie Burns, of Portland firm Jensen Baird Gardner & Henry, to weigh on whether documentation submitted by project applicant Timothy “Dutch” Dwight on where the proposed tower might fall if it were to collapse represents a sustentative enough change to his application to require a new public hearing, either before selectmen or the planning board. The board also asked for Burns’ legal opinion on whether it can even consider the new “fall zone” radius calculation once it finalizes Dwight’s site plan application.

If selectmen send the contract zone request to voters — moving the 33-acre lot owned by the L. Dwight Water Corp. from the rural conservation zone into its own special district specifically permitting construction of a cell phone tower — and that zone then gets approved by voters, the planning board would still have to OK Dwight’s site plan as a special exception use on the property. Metcalf said it’s unclear to him whether the board can accept two engineering reports submitted by Dwight which claim that if the tower were to topple, it would collapse in on itself, with the top landing no more than 87.5 feet from the base.

Town ordinances relating to cell towers demand a clear fall zone equal to 125 percent of the tower height — in this case 175 feet from the tower base, when counting both the 125 foot height of the main tower and the 15-foot-tall aerial whip that would sit at its top.

“We don’t have a standard that says the fall zone can be based on the tower falling in half. We have no standard like that,” said Town Planner Judy Bernstein, who also questioned the non-definitive language of the engineering reports.

“The wording is it is ‘likely’ to result in a portion falling in. It’s not a definite in the information you have presented,” she told Dwight.

Although there are no homes or other structures within the maximum fall zone, the radius is important as a discontinued portion of Hart’s Road, which Dwight plans to rebuild as an access road to the tower, reportedly lies just 120 feet from the proposed location of its base, and the water corporation of Dwight’s father, Larry, only owns up to that road.

Through several planning board meetings earlier this year, the status of the road had been in question. However, at the August 14 meeting, Tim Dwight submitted a professional survey showing the road to be discontinued, with his family owning up to the center- line. Dwight testified that his attorney, Alan Shepard, of Kennebunk firm Shepard and Read, has “won several cases” related to discontinued roads.

“According to him, I have full rights to improve that road,” he said. “Some abutters have tried to create a negative environment of fear and uncertainty in regards to the town’s judgment regarding rights to the road. But we have historically managed the road and maintained the road, and we should have that right going into the future, as well.”

However, Bernstein countered that while Dwight could improve the road with permission of the town if it was still town-owned, or even if it had reverted to a public easement, its abandonment means the abutting landowner also owns to the centerline. She questioned if Dwight could do any work to the road without the abutters’ express permission.

But Metcalf deemed that a moot point, which the board could address as part of any eventual special exception site plan review.

“If you don’t have the ability to build on the right side of the road, you do own everything on the left. So, you’d just have to build on the left side and deal with the engineering of that when the time comes [for board approval],” he said.

Dwight, who first presented his proposal for the cell phone tower more than three years ago, says it fulfills a need for more and better data coverage in that area of town, not far from Parsons Beach. But it is also his preferred development use for the property. After all, he noted, the site is large enough to contain five house lots.

“The value of that far exceeds the value of this cell tower,” he said. “But I did this because I am very concerned about the environment. I am not interested in putting up houses in this spot. I am interested in seeing that the environment remain clean and whole in that area. So, compared to tearing down trees to put up house lots, this is a much better investment.”

Dwight has also said the project was born out of his own data issues when trying to conduct work when visiting Kennebunk. He is vice president of sales and business development for Medullan, of Cambridge, Mass., described on his LinkedIn profile as a “digital health innovation firm.”

“I started this project because as a businessman I get dropped calls all the time and it’s frustrating,” he said.

The cell tower would be owned and operated by Dwight’s own company, Hehl Enterprises, based in Amesbury, Massachusetts.

Dwight has faced stiff opposition to his proposal, particularly at a July 10 joint meeting of selectmen and the planning board, when dozens spoke against the concept, citing visual and environmental concerns, as well as the lack of a true need.

Planning board members Smith and Vance both seemed to fund credence in that line of reasoning.

“What I kept coming back to was the rural nature of that area,” Vance said. “The comprehensive plan does not envision a lot of heavy development in this area. So, even in the future there will not be a lot of demand that we will need to address.

Although Dwight had previously presented third-party charts demonstrating limited call and data coverage in the area, Vance, along with other members of the board, questioned why Dwight has been unable to present an unqualified letter of interest from any carrier in placing equipment atop his proposed tower. Dwight has said no carrier can commit to the project until after the contract zone is approved by voters. However, Vance said that explanation conflicts with past cell tower projects in town.

“At no time did a private landowner apply to us,” she said. “It was always the service provider, because they know where they need the coverage. That’s what I keep coming back to here. They do not seem to have any issues, otherwise they would be coming back to us for a new tower.”

Dwight countered that having a carrier signed up and committed to the project should not be grounds for approval by the planning board.

“Do you ask a painter if he has business in town to open up a paint shop?” he asked.

But even with that question left hanging, Vance noted that the project does not score well on the town’s matrix of reasons to support a contract zone that sets up special use allowances for a very limited area, in this case a single property.

“This comes in dead last,” she said. “It’s the lowest priority for us according to our regulations.”

“The potential growth of the town is not going to be in this area, nor is the bulk of the existing population of Kennebunk here,” Smith agreed. “And the tourists who only want to go to Lower Village are only going to benefit in a very marginal way, if at all. So, I’m just not convinced that this, as part of a plan for townwide coverage, is something that is cogent. After looking at this as objectively as I can, the gain that I see is very marginal. I can’t support this in terms of a positive recommendation. I can’t do it.”

“I know you spent a lot of your time and money bringing this forward, but we as a board have to look at the best positive welfare of the community in terms of this happening,” Metcalf told Dwight. “It’s not an extensive population that is gaining in terms of a tower at this location.”

In the end, Dwight disagreed. Not only would the tower improve high speed data coverage in that coastal area of town, he said, but it will benefit the town as a whole. Dwight said he planned to donate “net proceeds” from tower revenue to the Kennebunk Free Library, and to the Parsons Health Fund, set up by the Parsons family to help Kennebunk residents with medical bills.

“This [cell tower] business will donate to the town in a major way,” Dwight said.

“And keep in mind, we’re not talking voice [coverage] here,” he added. “We’re talking data. And data needs to be high speed and always on. It’s almost terrible in my opinion that the town’s strategic [comprehensive] plan does not mention telecommunications whatsoever. It seems in regards to that, the town is almost anti-business.”

Dwight’s contract zone proposal was not on the agenda for the selectboard’s August 21 meeting. Town Manager Michael Pardue has cited September 12 as the latest the board could vote to place an item on the warrant in time to make the November ballot.

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

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