2017-09-22 / Front Page

Town topples tower talk

Selectmen won’t send cell tower question to voters
By Wm. Duke Harrington Staff Writer

KENNEBUNK — Although some cited fears they were exercising too much power doing so, Kennebunk selectmen have nonetheless voted unanimously to keep a cell phone tower proposal from going before voters.

Timothy “Dutch” Dwight, a member of the family that owns Parsons Beach and resides in that area of town, has worked for more than three years to gain a planning board nod for a 140-foot-tall cell phone tower on a 33-acre plot of family land, owned by the L. Dwight Water Corp, in an area North of Route 9, sandwiched between two sections of the Rachel Carson National Wildlife Refuge.

The trick, however, is that this area of town is in a rural conservation zoning district. In order to clear the way or the project, Dwight needed approval to put the lot in a special “contract zone” that would allow an exception for a cell phone tower where one would not normally be permitted.

In Kennebunk, that type of permission has to come from voters, and only selectmen have the power to create a warrant calling for a vote.

At an 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 meant the board was against the project.

Board members David Smith and Janice Vance cast the two negative recommendation votes. But even acting chairman Robert Metcalf, who voted against the motion, stressed that he was not, by that vote, in favor of the project. While he favored appropriate business development, Metcalf said, Dwight had presented a strong enough case for creating a special single-lot zone to enable construction.

“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.”

Although they expressed some angst about doing so, selectmen ultimately had less trouble picking a side. Recognizing proper parliamentary procedure, the motion at the Sept. 12 selectmen’s meeting was to put the tower question on the Nov. 7 ballot, but when it came time for a show of hands, the tally was a resounding and unanimous 7-0 no vote.

Referring to a July 10 joint hearing on the project with the planning board, Selectman Shiloh Schulte said he had anticipated the lack of enthusiasm for the proposal.

“I was not impressed at all during that meeting, on multiple levels, with this idea,” he said. “From what I heard of the process the planning board went through, it did not strike me as something that was going to get a positive recommendation. I was sort of surprised we did not get a negative recommendation that night.”

Although all selectmen expressed similar views — in light of strong opposition from abutting landowners and no overt testimony from cell phone carriers claiming a tower on Dwight land would solve known coverage hole in the area — some felt the board might be exercising too much power in taking the decision out of the public’s hands.

“If there is a drop of Libertarian blood in my body, it would be in the area of real property rights,” Selectman Blake Baldwin said. “So, my original inclination was to try to support this. But it seems to me if we have a zoning law that states it’s for rural conservation, there must be an overwhelmingly powerful, compelling argument to overcome that existing zoning. It seems to me it really has to establish need and do something that would serve our entire community.

“If we can’t trust our planning board, I think we ought to address that issue separately. But if they have been working on this now for three years and can’t get around to approving it, then I don’t see any compelling reason why we would overturn that, “ Baldwin said.

“But we are increasingly moving in the direction of a city council form of government, which I would regret because I think what we have here in Kennebunk is one of the last forms of pure democracy,” Baldwin said. “And that [town council form of government] will only invite special interest groups, lobbyists, and money, into our decision-making process, and I don’t think any of us what that. We need to protect the jewel that we have in Kennebunk.”

Selectman Ed Karytko agreed, but openly questioned if voters would have understood the question, had it gone to them.

“How many people even know what a contract zone is?” he asked.

Still, Karytko said he would normally default to the will of the voters, and would ordinarily come down in favor of positive business development.

“I am more than uncomfortable with this [vote], but our planning board, they’re good people. To go against what they voted on, that’s tough,” he said.

Selectman Christopher Cluff, meanwhile, questioned if the rationale for the decision — lack of demonstrated need, or that a cell phone tower in that area would improve data signals for enough people, given the relative low population in that area of town — was the kind of ruling the board should even be empowered to make.

“My concern is that they [the planning board] made their recommendation based on need and is that our jurisdiction, so to speak, to say that,” Cluff said. “Who’s to say we do or do not need another restaurant, for example.”

Larry Dwight raised the same point while arguing in favor of allowing a public vote, adding that the tower was not the environmental catastrophe predicted by some, including Rachel Carson officials, who wrote a letter to the town opposing the project.

“It will not make a sound, it will not be visible. It will not hurt the birds,” he said.

But more to the point of “need,” Larry Dwight claimed, as did Dutch, that no carrier had signed on as of yet only because the town vote requirement for a contract zone meant the process was still in a very early stage of gestation. Even if the contract zone vote had gone to voters, and the ballot count had gone Dwight’s way, the project would still have to go before the planning board for an actual site plan approval. It would not be until that point, Larry Dwight said, that the carriers would flock to the tower.

“Build it and they will come,” he said.

Still, Rachel Phipps, a member of the RSU 21 school board, said the restaurant analogy raised by Dwight and Cluff — with its moral equivalency question of whether selectmen, rather than the market, should be the final arbiter of need for business development — was a fatuous one.

“If you want to build a restaurant in a zone that does not allow it, you had better demonstrate a need for it,” she said. “Yes, for this, need is one of the primary considerations.”

“My husband and I have never had any issues with coverage. We strongly oppose this,” said abutting landowner Sheri White.

“No service provider has stepped forward to say that there is a need, despite repeated requests from the planning board,” Crescent Surf Drive resident Rudy Hutz said. “There are coverage maps from the carriers that say there is no deficiency in this area. There is only one person, Mr. Dwight, who would like to put up a tower and rent it if he can. What we have here, it’s called greed, not need.”

Hutz also predicted that allowing the zone change would only serve to create a precedent, leading to “a cascade of requests for rezoning” from other would-be developers.

But there also were other factors to consider. Dwight had promised to rebuild an abandoned section of Hart’s Road to access the area of the lot where the tower would go. However, abutting landowner Jim Klemarczyk said that if the road is truly abandoned, then he and his wife own to the centerline of the old road on their side, and they would not allow Dwight to rebuild their half of the road.

“I don’t know why he is saying the abutters approve of this project, we don’t approve of this project at all,” he said.

For his part, Dutch Dwight, though a Massachusetts resident himself, argued that most of the abutters opposing the project are “not even town voters.”

Dwight has said the idea was sown in his own frustration with getting a decent data signal when staying in town and trying to conduct business online. Still, he said, the real need for a cell phone tower in the area of Parsons Beach is to guard against a dropped signal during a call to 911, or the failure of a GPS unit in an ambulance or police car on the way to an emergency call.

“This is a safety factor for the town,” he said. “The question is, are you going to help people try and save their lives, or not?”

On that argument, Baldwin, in least, was willing to concede the point.

“I think it’s safe to say coverage in this town is poor, and 70 percent of all 911 calls these days are made from cell phones,” he said.

According to Town Clerk Merton Brown, Dwight has two options following the selectboard vote.

He can repeat the process by re-applying to the planning board, or he can circulate a petition and, with enough signatures, effectively bypass selectboard approval of his proposal warrant article.

There is not time enough left for that to happen in time to make the November ballot, Brown said, but that course could put the issue before voters on the annual town meeting ballot in June.

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

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