Limington Planning Board Minutes
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[Official agenda not available]

Approval for Mike White one lot subdivision on Route 117
Public Hearing on citizen petition for a cell tower ordinance
Planning Board workshop on ordinance changes.

These minutes were approved at the October 26, 2000 Planning Board meeting with the following changes:

Page 4, paragraph 2 - Change Mike White's to Mike York.



The meeting was called to order by Wendy Walker, Chairperson, at 9:00 A.M. on Saturday, September 9, 2000 at the Limington Municipal Building.

Members present: Wendy Walker, Chairperson; Kreg Rose, Vice-Chairperson; Stanley Blake, Jr.; Raymond Coffin; Diane Hubbard

Members absent: Chris Clark, Harold Jordan

Alternate members present: Ron Perkins

Also attending: Freeman Abbott

The meeting was videotaped by Richard Jarrett.

The first order of business was the application of White Brothers for a minor subdivision. Mr. White explained that the only reason it was a sub-division was because he is creating a third lot within five (5) years and under Maine law he must apply for a minor sub-division permit. The only reason it is a third lot is because when the Town advertised the land which was bought with the gravel pit on they forgot to keep the firebarn. Mr. White had to create a lot to give the firebarn back to the Town.

A home will be put in there but the land has to be cleared and the foundation must be completed. Ron Perkins wanted to know why the Board was putting Mr. White through this because he did the right thing and turned the property back to the Town. He has already done enough for the Town. I don't feel a sitewalk is necessary.

Mr. White said the Board has to make a decision. He will feel comfortable with any decision the Board makes. He wants to make sure everything is legal. The question is whether the sitewalk is necessary said Wendy Walker. We have several persons who have been to the property. There is a waiver for the contours and a soil study has been done that puts the contour issue to bed. The ordinances were checked to see if a sitewalk was required and there was nothing to indicate it was necessary only in the pre-application process.

Kreg Rose made the following motion:

MOTION: That a sitewalk review is not necessary because this is not a typical minor sub-division. It is due to a land gift to the Town.

The motion was seconded by Stanley Blake, Jr.

Planning Board Minutes
September 9, 2000
Page 2

Kreg Rose stated that he made the motion because the zoning ordinance does not provide for it and Freeman Abbott and Diane Hubbard have made a sitewalk.

Diane Hubbard added that this was not a typical sub-division where it is only one lot. It is only by a gift to the Town that it falls into this category.

The motion passed unanimously.

Mr. While requested three waivers. First the topographical survey which is required under a minor sub-division. Again we are looking at one lot. He would not be here if not for the reasons listed above.

Diane Hubbard made the following motion:

MOTION: To approve the request for waiver of the topographical survey.

The motion was seconded by Ron Perkins and carried unanimously.

The second request for waiver was on the wetland delineation to minimal impact. Minimal impact meaning, you are nowhere near wetlands. Michael White explained the wetlands were on the comer of the lot and nowhere near the proposed house. Wendy Walker requested that the wetlands be marked on the map. This will be a condition on the approval.

Diane Hubbard made the following motion:

MOTION: To approve the waiver requested for wetland delineation to minimal impact

The motion was seconded by Ron Perkins and carried unanimously.

The third request waiver is the on the emergency control plan for minimal impact meaning one house, one driveway.

The following motion was made by Ron Perkins:

MOTION: To approve the waiver requested for emergency control plan for minimal impact.

The motion was seconded by Stanley Blake, Jr. and carried unanimously.

Planning Board Minutes
September 9, 2000
Page 3

The following motion was made by Harold Jordan:

MOTION: To accept the application as complete.

The motion was seconded by Kreg Rose and carried unanimously.

Richard Jarrett expressed a couple of concerns. One was the sharing of the driveway. There is a requirement in the sub-division ordinance that says that on arterial streets such as Route 117 you can only have a driveway every thousand feet. If he is not sharing the driveway, this is something the Board should be looking at. The driveways are already one thousand feet apart stated Mr. White.

Secondly, he was concerned about the Resource Conservation District. A portion of the pit is in the District. He wants to make sure that there is enough acreage in the lot to exclude the Resource Conservation District portions of this and still have the three (3) acres. Mr. White stated that the lot is a little over three (3) acres. It was determined that the lot was not in the Resource Conservation District.

The following motion was made by Kreg Rose:

MOTION: To approve the application of White Brothers for a minor sub-division with the conditions stated.

The motion was seconded by Ron Perkins and carried unanimously.

All members of the Planning Board who were present had to sign the approval.

The next order of business was the Cell Tower Petition (see attached).

Richard Jarrett said his name was not on the petition as he was not here but would have signed it.

These regulations, he said, are taken from model regulations from around the country. The regulations appear to fit well with Limington's character. Basically, they are to protect the rural character of Limington and protect the property values of people residing around the towers. He brought up the fact that when there is ice to form on the towers it can be a potential danger. He had started collecting information on this quite a while ago. This proposed amendment stays pretty much within the regulations of the FCC. One of the biggest concerns in the petition is the lighting of the towers. They are

Planning Board Minutes
September 9, 2000
Page 4

very detrimental to wildlife, migrating birds as they are confused by the lights. Addresses keeping the towers low enough so they do not require lighting. He said that Standish has prohibited towers in residential districts. In the rural area Standish limits the towers to 125 feet. There is a provision for monitoring the towers. There is a provision which states that if a tower is not used then it should be removed.

Kreg Rose said that there was a retroactive clause which would affect Michael White's [correction: Mike York] towers which were just approved. If it does affect them would this require him to take a cutting torch and remove the top.

Kreg Rose stated that Michael York had explained that when or if he adds onto the tower he would do so horizontally not vertically so the tower wouldn't get taller.

Freeman Abbott asked if this petition was going to he approved all or nothing the same as the gravel pit? Wendy Walker said it would be all or nothing. Richard Jarrett said like all petitions you can amend it later.

Michael York said that he was asked by Richard Jarrett to present the simple fact that what was drafted in the old thought. Richard Jarrett told him they could put the petition in and change it later on. Let's get this over with and get started on something that will help the Town, said Michael York.

Wendy Walker said that by law the Board has to read the whole petition. Wendy Walker then read the petition in whole.

Number one adds three definitions to Section 2.2, Definitions, of base station, personal wireless service facility, and repeater.

1. Add to Section 2.2 Definitions:
"Base Station: The primary sending and receiving site in a personal wireless service facility.
Personal Wireless Service Facility:. Facility for the provision of personal wireless services, as defined by the Telecommunications Act of 1996.
Repeater: A small receiver/relay transmitter of not more than 20 watts output designed to provide service to areas which are not able to receive adequate coverage directly from a Base Station."

Number 2 adds Section 8.19. Section A explains the purpose and intent.

Planning Board Minutes
September 9, 2000
Page 5

2. Add Section 8.19:
"A. Purpose and Intent.
It is the express purpose of this section to minimize the visual and environmental impacts of personal wireless service facilities. It is the intent of this section to be consistent with state and federal law, particularly the Telecommunications Act of 1996 in that:
It does not prohibit or have the effect of prohibiting the provision of personal wireless services
It is not intended to be used to unreasonably discriminate among providers of functionally equivalent services, and
They do not regulate personal wireless services on the basis of the environmental effect of radio frequency emissions to the extent that the regulated services and facilities comply with the regulations of the Federal Communications Commission concerning such emissions.

Michael York stated that he has issues with the whole petition. He said he will not take up the Board's time by piece mealing the petition. Ron Perkins stated that everyone, on both sides, will have a chance to speak.

Section B gives the dimensional requirements.

B. Dimensional Requirements.

Height: Personal wireless service facilities shall not project higher than ten feet above the average building height or, if there are no buildings within 300 feet, these facilities shall not project higher than ten feet above the average tree canopy height, measured from ground level (AGL). If there are no buildings within 300 feet of the proposed site of the facility, all ground-mounted personal wireless service facilities shall be surrounded by dense tree growth to screen views of the facility in all directions. These trees may be existing on the subject property or planted on site. The height shall be further limited such that Federal Aviation Administration lighting shall not be required.

Michael York stated that simply put that seems directly to having co-location. Wendy Walker said that this was having multiple providers on one tower. Co-location, Michael York stated is the key to having less towers.

Section C explains the setbacks.

C. Setbacks

New Personal wireless service facilities shall be set back:
at least one (1) times the height, plus 50 feet from all boundaries of the site on which the facility is located and
at least 750 feet horizontally from any existing dwelling units and
at least 1,500 feet horizontally from any historic district or property listed on the State or Federal Register of Historic Places.

Michael York said that this stops the availability of having a tower on your property if it is near a home. The towers are everywhere and are going to be everywhere. He has put them on schools, town halls and billboards.

Planning Board Minutes
September 9, 2000
Page 6

Section D deals with the Lighting of the tower.

D. Lighting
No external lighting is permitted, except for manually operated emergency lights for use only when operating personnel are on site.

Section E States the environmental standards.

E. Environmental Standards
Personal wireless service facilities shall not be located in wetlands, floodplains, or any resource conservation zone.

Section F states the co-location.

F. Co-location
Licensed carriers shall share personal wireless service facilities and sites where feasible and appropriate, thereby

Wendy Walker said she was confused because one section prohibits co-location and here, in fact, we say co-location is the way to go.

Richard Jarrett explained that they want to limit the tower to seventy-five (75) feet unless there is more than one carrier then it would be ninety (90) feet.

Section G explains the radlofrequency radiation (RFR) Monitoring.

G. Radiofrequency Radiation (RFR) Monitoring
After the personal wireless service facility is operational, the applicant shall submit, within 90 days of beginning operations, and at annual intervals from the date of issuance of the permit, existing measurements of RFR from the personal wireless service facility. Such measurements shall be signed and certified by a Radio Frequency engineer, stating that RFR measurements are accurate and meet Federal Communications Commission Guidelines.

Section H explained the removal of the tower.

H. Removal
Any Personal wireless service facility which ceases to operate for a period of one year shall be removed at the expense of the applicant.

Section I involves the access roads and above ground utilities.

I. Access Roads and Above Ground Utilities:
Where new personal wireless service facilities require construction of or improvement to access roads, to the extent practicable, roads shall follow the contour of the land, and be constructed or improved within existing forest or forest fringe areas, and not in open fields.

Michael York spoke on this. He said these are very unique structures and facilities and the only thing briefly is don't build a road if you don't have to. If you build the tower without building a road if you will affect the environment less. These sites do not all need roads.

Planning Board Minutes
September 9, 2000
Page 7

Number three was not part of the ordinance amendment but affects any personal wireless service facilities. It refers to 1 M.R.S.A. 302.

Notwithstanding the presumption of prospectivity in 1 M.R.S.A. 302, the above Amendments shall apply to all pending proceedings which did not receive final approval prior to the date when the Petition initiating this ordinance was filed with the municipal officers regardless of when the above Amendments are actually approved by the voters of the Town of Limington, so that these Amendments shall apply retroactively to any personal wireless service facilities.

Mr. Smith, who was on behalf of York Construction, and is with Pierce, Atwood in Portland, said that what M.R.S.A. does is it is a State law that says if you pass a law or ordinance that it applies prospectively unless it specifies otherwise. That is to say that normally if you pass this tower ordinance without this provision it would apply on the day it became effective and going forward. You have the option and what this petition is doing is applying it retroactively. Usually it is seen in tax situations.

Mr. Smith said that there were bombs in the petition. Ms objective is to cover the points briefly and point out some of the problems with the ordinance. The most serious legal problem with the ordinance is the proposed retroactivity. That problem is when you take an ordinance and try to apply it to someone who has permits and undo the authority to build towers, you start to take away his constitutional property rights by taking from his interest without compensation. On this point seems to have been pointed specifically at Mr. York.

The second problem is that the act begins to run afoul of the Telecommunications Act of 1996. That was an act of Congress which recognized the Towns, such as yours, coming to grips with the fact that these wireless facilities are being added. It is not only cellular communication, it is a broad range of services. They passed an act that said this industry is so important to the people of the country that municipalities are within their bounds to regulate them but we are not going to allow them to prohibit them. The problem with the ordinance provisions are that they have been cherry picked by the drafters of the petition is that they start to run afoul. What I mean is if you go to the model ordinance and pick it up not knowing which one you went to, these may be consistent but when you take provisions from different ones and start putting them all together you can run into problems. There are at least three problems that I saw with it that I would point out to you.

First, is the 10 foot limitation of clear air. You have already pointed out inconsistency with co-location which is generally desirable to limit the number of towers but the problem with that the 10 foot limit is it causes you to build more and more towers. Mr. Smith said that Richard Jarrett had mentioned that this is how Cape Cod had done it but Cape Cod is flat and Limington is not.

Planning Board Minutes
September 9, 2000
Page 8

Second problem is the notion of discrimination against towers and lights saying you will not have towers with lights is kind of do same thing as saying the towers can only have 10 feet of clear air. This runs afoul of the Telecommunication Act because it limits, the height of the towers, it multiplies the number of towers and will end up to be so expensive to put towers up in the region that you cannot do it at all.

Finally, there is a prohibition in the Telecommunications Act that states that Towns cannot regulate RFR emissions. The provisions requiring reporting to the Town of emissions runs afoul of the language.

In addition to the legal failings of the proposed ordinance, it is not right or good planning to take an ordinance and direct it against a particular individual. It is not fair and it is not good planning. Because there are manifest and numerous legal faults with this document, it is not good public policy to take something that is flawed that will cause problems in understanding the ordinance, problems in enforcing the ordinance and give it to the voters of the Town and say here let's adopt this and see what happens.

Michael York said that he would like to add that I don't want to cheat myself but I really think that the letter should be read publicly so that the full impact of what is touched on would be seen.

Wendy Walker than read the letter from Pierce, Atwood by Mr. Smith dated September 9th which recommended that the ordinance not be recommended and listed the reasons for this request.

Richard Jarrett responded to these comments. First the Telecommunications Act does not apply here. Telecommunication Act applies to the carriers, such as Cellular One who actually provide services. York Construction provides a service to carriers. Many ordinance prohibits speculators to build towers. They only allow carriers to build towers. If this particular proposal was really targeted at Mr. York it would have a provision against speculators. It was not targeted against Mr. York. In fact, I suggested to the Planning Board when we talked about towers that we get something in on the November ballot. The process was actually started before then because I collected information. It would have been nicer to have more public input but in some ways Mr. York did force us to go forward. The Planning Board was quite busy at the time and I don't fault them for not taking this up. if someone doesn't act then these things will never happen.

Emission testing I think is an extreme legal thing of not regulating emissions you are just guaranteeing that you follow the FCC Guidelines.

Planning Board Minutes
September 9, 2000
Page 9

We don't want to adopt something that is someone else's ordinance because that vas made for another town. Each ordinance should fit the town.

Finally, the regarding the retroactivity, the Planning Board had the opportunity to add to the condition of approval which would alleviate the legal problems. This petition was in before the information for the application was complete. I would like to reiterate this was started much before the four applications came in.

Nancy Bozenhart asked if it coincidental, not really targeted against Mike York that this petition was circulated in between the first tower and the four.

Wendy Walker did not feel this was relevant but Richard Jarrett. responded that he was working on the cell tower ordinance and did not get it completed. They had no idea that Mike was going to go for four more towers.

An unidentified individual stated that if Mr. Jarrett or anyone else would advance the legal argument that the Telecommunications Act does not apply to independent individuals building towers for the purpose of putting telecommunication facilities on them, I would enjoy litigating that.

Wendy Walker requested the opinion of each of the Board members.

Kreg Rose stated that he thought there were some go d things in the petition, however, he did not see how the retroactivity could be done. I would lean toward not recommending.

Ron Perkins stated that these petitions have to be accepted as they are, you can't change them. There a few things in there that are beneficial to the Town of Limington but I find it a little eerie that after Mike got his permits to put his towers up, this petition came into play. I have a hard time believing that people didn't know Mike was going to put the towers up. To make Mike go through all he went through to get his towers up and tell him within a year after that he must make changes is not only undemocratic, I think it is illegal. I think there would be a lot of repercussions. At this time there is no way I will accept this petition. I recommend that we do not recommend this petition.

Stanley Blake, Jr. said that his problem was dollars and cents. If this is enacted with proposal number three (3), it could possibly cost the town a lot of money. Mike has the right to build his towers right now. If he gets a contract with a carrier, say for $500 a month for a five year contract, who is going to pay that bill. The Town of Limington is going to have to pay that bill. The Town people do not need that cost. I cannot approve this.

Planning Board Minutes
September 9, 2000
Page 10

Raymond Coffin stated that he would vote not to recommend the petition because there are to many conflicting items. Should not have had so much public input and had a little more legal input. It would be hard to enforce.

Diane Hubbard said she felt there were some good points and there again we are going back to the legalities of retroactive. She commended the people for trying to get something in place because we do need to have something in place. We need to be more careful of what we are putting in place here, about stepping on people rights and the legalities. I would not recommend this petition.

Wendy Walker said that Mr. & Mrs. Richards, who were co-conspirators of the petition, are not here. They don't have any issue with the petition. If they are having second thoughts then it compounds the issues I had on my mind. We have to decide whether to recommend or not.

Freeman Abbott said that he felt the town does need an ordinance on towers but he would like to see one that controlled all towers not just wireless. This petition only relates to wireless phone.

Ron Perkins made the following motion:

MOTION: The Planning Board does not recommend the petition.

Stanley Blake, Jr. seconded the motion and it carried unanimously.

Amendments to the ordinance were then discussed. Nancy Bozenhart distributed a proposed draft wireless ordinance. Each item was reviewed.

Mike York said he would like to see some type of ordinance that would address the development over the next five to ten years. His biggest recommendation would be to keep it simple and the impact minimal.. If the town over-ordinances then they close the door to multiple things that are good for us. Wendy Walker said she agreed with the principle of keeping it simple but she also wanted to make sure it was thorough.

There was no further information available on the meeting tapes.

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