Town of Bolton
3045 Theodore Roosevelt
Highway
Bolton VT 05676
802-434-5075
Development Review Board members present: Nancy Peck – Chair, Randy Couch, Mike Rainville, Shirley Zundell
Bolton
Zoning Administrator: Dick Ward
Clerk: Amy Grover
Also
present: Fred Jordan – The Green
Mountain Club, Joe Papa – Nextel, Alex McEwing – land owner, Wayne Lukacher –
Verizon Wireless, Arthur Dreher – DuBois and King, Brian Sullivan – attorney
for Alex McEwing, Ray Atwood, Rob Heimbuch, Scott Fishman – Verizon Wireless,
Sandy Carter – Verizon Wireless
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Nancy Peck called the hearing to order at 7:05
p.m.
Public Hearing
All of the above listed under “Also present” with the
exception of Fred Jordan, Ray Atwood, and Rob Heimbuch appeared on behalf of
the application.
Ms. Peck swore in all of the parties who would be giving testimony.
Development
Review Board Report
Ms. Peck reviewed the application of Alex McEwing, and asked Mr. McEwing to provide the Board with additional information about the proposed project.
Applicant
Comment
Mr. McEwing deferred the giving of additional information to the Board by his lawyer, Brian Sullivan. Mr. Sullivan gave a brief synopsis of the communications tower history. In the 1940’s the tower was a beacon for the FAA, and went out of service. In the mid 1980’s Mr. McEwing saw its potential for a communications tower, and purchased the site where the tower is located. Mr. Sullivan directed the Board to three photos of the tower taken from the Bolton Store, the Bolton Fire Department, and in Jonesville as the tower looks today. Mr. Sullivan added that the tower is at the two thousand foot level, and is very unobtrusive, stating that the mast majority does not notice the tower. He added that the tower had been there for fifty-five years, and that people are used to seeing it there.
Mr. Sullivan then stated that the tower now has maxed out its capacity, its’ load has increased from multiple users, and not only is the tower at its maximum load with users, it is maxed out structurally as well. Mr. Sullivan went to add that a meeting was convened last month with five cellular carriers; Cell One, Devon, Verizon, Nextel, and Sprint. Their effort was to try to figure out a way to have all five carriers fit on one tower with the least amount of increase in height. The present tower is forty five (45) feet with the a twenty (20) foot pole on top, which affords no possible way to accommodate all five cellular carriers because of the separation needed between their antennas. The proposed new tower would be sixty-nine (69) feet with a fifteen (15) foot pole on top, for a total height of eighty-four feet (84), a net increase of nineteen (19) feet. Mr. Sullivan noted that the pole on the new tower would be five (5) feet shorter than the pole on the current tower. Mr. Sullivan added that the new tower would be structurally stronger and would accommodate; two TV stations, two FM stations, Richmond Rescue, and the five wireless carriers. Mr. Sullivan noted that it went without saying that the level of cooperation displayed by the five cellular carriers is what everyone should work to achieve in the industry. They devised a way to accommodate all of the carriers with a tower only nineteen (19) feet higher.
Mr. Sullivan added to not interrupt service, the new tower with the antennae would be built while the existing tower was there. There would be a period of three weeks to one month that two towers would be on the site. Mr. Sullivan stated that the two towers would not remain, that the old one would go. Mr. Sullivan then directed the Board to the pictures of the towers. Digital technology was used to photographically simulate what the new tower would look like from the three areas photographed. He added that the new tower would be barely noticeable, that it is away from roads, and setback. Mr. Sullivan stated that in the scheme of things the tower was relatively short, adding that towers today are running from 120 to 150 to 180 feet.
Mr. Sullivan stated that all construction would be done by helicopter. The proposed building for Nextel and the pad for Sprint next to it would require that the fence around the area be pushed out to accommodate the building and pad, but that no trees would be cut.
Mr. Sullivan closed by stating that Mr. McEwing had “salvaged” the old tower, and had gotten maximum use out of it, and that in the Bolton Town Plan, Robbins Mountain and Ricker Mountain are specifically referenced for tower locations. He added the new tower affords maximum co-location with minimum height.
Ms. Peck asked if the tower was wider. Mr. Sullivan stated that the tower width is the same at the base, follows the same taper, but that there is an added segment between the tower and the pole for the antennae platforms. He stated that these platforms make the tower look wider. He added that it is a three-sided platform on the four-sided tower.
Mike Rainville asked if this was the minimum height for what is proposed. Mr. Sullivan stated yes, that the group that convened had really wrestled with it. They worked to achieve enough space for all five cellular carriers on three platforms, instead of on five platforms. Because of the center of radiation, the antennas must have ten feet between the platforms. The platforms would be at 47 feet, 57 feet, and 67 feet. Mr. McEwing added that this was a considerable compromise between the cellular carriers, usually they each would require their own platforms. He noted that they had mutually worked together to keep the tower to a minimum height.
Mike Rainville asked if the new tower would already be at maximum capacity when built. Mr. McEwing answered that it would be. There would only be room below the 25-foot level, which would be in the treeline and is not a workable area.
Randy Couch asked if there was room on the old tower for Devon, noting that Devon had just received a variance sought for adding antennae to the old tower. Mr. McEwing stated that Devon needed to get on the tower to preserve their license with the FCC. Devon is putting up half of their antennae as a stop gap measure. He added that the antennae couldn’t go on the bottom of the tower, but must be above the FM antennae because of interference issues.
Mike Rainville asked if there would be a beacon on top. Mr. McEwing relied no, because the tower is under the 200-foot level, one is not needed.
Mike Rainville asked Mr. McEwing to address the tree “scar” issue, noting that Robbins Mountain can be picked out from many miles away because of this feature. Mr. Rainville asked if the “scar” would be getting bigger. Mr. McEwing replied they had done their best at the time to minimize visual impact, but that there would be no changes in the high power line running up the mountain. Mr. Rainville asked if the line could be on the ground, noting the recent change in Mallets Bay where the lines were installed under the water. Mr. McEwing replied that because of the high voltage the line would have to be in an armored carrier. Arthur Droler added that because the line would have to be buried 30 inches, there would be a problem with rock and ledge, necessitating blasting. Mr. McEwing added that it would also require a change in easements, which are for poles, but he would be glad to look into it. Mr. Sullivan added that the “scar” would not be made any worse, and they would look into making it better.
Nancy Peck asked if hypothetically there could be two shorter towers. Mr. Sullivan stated that it might be possible, but that vertical separation would still be needed. Mr. McEwing stated that problems with FM interference would render the channels on the second tower unusable. He stated that might be done in areas of low power usage, but there were two radio stations of significant power on the tower.
Mike Rainville asked if there would be any new devices to make noise. Mr. McEwing answered no.
Randy Couch asked if the proposed outbuildings would be higher than the current buildings. Mr. McEwing answered no.
Nancy Peck noted that Devon had stated that their people would be accessing the area on land, and asked if this would be the case with the new tower. Mr. McEwing stated that everything, including transporting work crews, would be done exclusively by helicopter.
Shirley Zundell asked if they old tower would be removed. Mr. McEwing replied yes, that this was an opportunity to clean up the area. He stated that there would be a marker pin placed at the center of the old tower location, as his owned parcel is a circle ninety (90) feet out from this center.
Nancy Peck asked who the abutters were. Mr. McEwing replied Villennue.
Mike Rainville stated that with respect to the photographs it is not the height seen, but the platforms. He asked if there was another tower like this in Vermont. Mr. Sullivan stated that this tower would be unique, that he had not heard of a tower with this many carriers at this low a height. He noted that only two of the five carriers are currently offering service. He stated that this is one of the first towers with all of the carriers together. Mr. McEwing stated that he is trying to encourage co-location, that a lot can be accomplished by it.
Nancy Peck asked if there were any others who would like to make a statement. Fred Jordan stated that “the existing tower on Robbins Mountain can be seen by many hikers on the Long Trail from Camel’s Hump to Bolton Mountain, a distance of 20.1 miles. This detracts from the Long Trail experience. A new tower would make the intrusion on the Long Trail hikers greater. There fore we must protest the construction of a new tower”. Mr. Jordan also gave a statement from the Green Mountain Club; “it is the position of the Green Mountain Club that incremental changes like this led to the frightful mess we now have on Mount Mansfield”. Mr. Jordon noted for Mike Rainville that the Long Trail had been moved one and a half miles from Robbins Mountain, and would be moving toward Pinneo Brook in the future. Mr. McEwing interjected that this was because of a landowner at the bottom of Robbins Mountain, and that the relocation had nothing to do with the tower. Mr. McEwing added when this news had hit the newspapers, it was accompanied by a picture of the tower, and not by a picture of the landowners fence.
Mr. Sullivan stated that he wanted to respond to the statement from Mr. Jordan. Mr. Sullivan stated that there are high EMF emissions on Mount Mansfield because there are several TV and FM antennae located there. Mr. McEwing interjected that the TV and FM on Robbins Mountain are much lower power than the ones on Mount Mansfield. Mr. Sullivan stated that the EMF emissions from the Bolton site would be much lower than on Mansfield, adding that in the worst case scenario of standing right under the tower, the emissions would only be at 60% of the limit. Mr. Sullivan stated that most of the EMF emissions in Bolton come from the TV and FM antennae that currently exist. He added that the EMF contributions from the additional proposed wireless carriers would be slight, at only 2 – 3 %. He stated that the antennae on Mansfield are closer to the ground, the ones on Robbins are moved up so that there is less radiation.
Nancy Peck noted that since the Robbins Mountain area is posted and no trespassing is allowed, EMF emissions are not the issue. She stated that the issue is visual, and asked if the antennae could be moved down, therefore making a shorter tower. Mr. Sullivan stated that no; it is line of sight technology with the ten feet of vertical separation needed. He added that the TV antennae would also cause interference if the wireless antennae were moved down, and only if the TV antennae were not there, could the wireless antennae be brought down.
Nancy Peck asked if there were photographs of the tower available from the French Hill perspective. Mr. McEwing stated no, and that while on French Hill in Williston you would have to look off to the right to see the tower anyway. Nancy Peck stated that she begged to differ on that point, but just wanted to know if there was a photograph from that area available.
Shirley Zundell asked if there was another area within the ninety-foot radius of the current tower that was lower, and would reduce the visual height of the tower. Mr. Sullivan said no, there would be no perceptible difference anywhere else in the area.
Mr. Sullivan stated that he had come before the Board in 1998 with Bell Atlantic Mobile when they became a carrier on the tower. He stated that it wad natural progression, trying to get as many carriers as are active in the market. He stated that in perspective, what is an additional nineteen feet in height from a mile or two away, and that he didn’t believe that was much height. Mr. Jordan interjected that it was not the height of the tower, it was the bulk of the tower. Joe Papa stated that Robbins Mountain was the only sight in Bolton that would work, and that he and the others carrier representatives attending the hearing strongly supported this proposed project.
Nancy Peck asked if there were any additional questions or comments. There were none. She stated that the Board had forty-five (45) days to reach their decision, and that Mr. McEwing would be notified of the decision.
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The hearing closed at 7:45 p.m.
Nancy Peck asked Ray Atwood if he was waiting to speak with the Board, and noted that he was not on the agenda for that evening. Mr. Atwood stated he was waiting to speak with the Board, and added that he had sent the Board a letter, and that he did not agree with the decision that the Board made for him to stop selling vehicles.
Nancy Peck asked if he had appealed his decision. Mr. Atwood asked to whom he would appeal. Ms. Peck stated he would appeal directly to the environmental court. Mr. Atwood responded that he would not do that, and that the Board do what they have to do, he would do what he had to do.
Randy Couch noted that on the decision in granting his variance there was a stipulation to not sell unregistered cars on the lot. Mr. Atwood stated that in the past he could sell anything, now he could sell nothing. Nancy Peck noted that the Board did not want to see a lot of items for sale out front. Mike Rainville asked if Mr. Atwood was going back to the old use of having an auto shop and selling cars. Mr. Atwood stated that he had looked at Anderson Concrete as a tenant and didn’t want them. Now his son is there as a tenant with his auto body shop and sales business, and that he has kept an office in front for himself. Amy Grover noted that in Mr. Atwood’s sworn testimony from the hearing, he stated that he did not want another auto body shop there as a tenant because it would be too loud to enable the office space to be rented out to another tenant.
Shirley Zundell stated that the Board was concerned about junk vehicles, and that was why the limitations were set, adding that the Board believed Mr. Atwood was getting out of the auto body business. She added that the Board was hesitant for an open multi-use permit; the Board knew and trusted Mr. Atwood, but if Mr. Atwood sold his property, the permit goes with the building, and the next person might not be as co-operative, understanding, and as moral as Mr. Atwood. She then stated that Mr. Atwood was asking the Board to give him free rein, and although the Board wants him to keep doing business, and didn’t want to restrict him and make him unhappy, there must be areas that are permissible for use. Mr. Atwood noted the difficulty in finding tenants, and added that there were buildings in Burlington and areas north of Bolton that were offering free rent.
Nancy Peck stated that the Board couldn’t take an appeal on the decision, that Mr. Atwood would have to reapply for another variance. Dick Ward added that Mr. Atwood had reverted back to the use that was there, and noted that one can’t keep piling use upon use upon use. He added that if the Board applies a stipulation after the vote, then the appellant needs to have a forum.
Dick Ward then noted that the vehicles for sale at the business had nothing to do with an auto body shop, stating first there was a Bobcat for sale, then a police cruiser, and now there were two trucks. Mr. Atwood responded that he had had two separate businesses, Ray’s Autobody, and Ray’s Auto Sales. He added that he did not know what his son Mark was going to do with the space he was renting from him. Nancy Peck stated that it appeared that vehicles not going into the body shop were being sold. Mr. Atwood stated that one must sell twelve cars a year before having to get a car dealership license, and that consignment sales didn’t count. Mr. Ward stated that a license holder must also be able to put five cars under cover, and that if Mr. Atwood or Mark want to apply for a car dealership license that changes the use.
Nancy Peck stated that the shop down the road from Mr. Atwood’s had had horrid things out front, which greatly detracted from the Town. She added as Shirley had mentioned “it’s not you, it’s the permit, which stays with the property.” She then added that the Board needed Mr. Atwood’s help in understanding what it was he wanted to do. Mr. Atwood stated that he didn’t want to lose his tenant. Ms. Peck noted the stipulation called for no vehicles allowed in front, and asked if the vehicles for sale could be put in the back. Mr. Atwood responded that that went against everything he had ever learned. Ms. Peck asked if the side of the building could be used. Mr. Atwood suggested limiting the area of car sales to where blacktop was. Ms. Peck added that there would be nothing to stop the next person from blacktopping the whole property. Dick Ward suggested on blacktop only, and not to alter the existing greenway. Mr. Atwood stated that the area of blacktop is forward from the building, with space for fifteen to twenty cars. Ms. Peck noted that currently some vehicles are parked on Town property. Mr. Atwood responded that the driveway area had always been shared.
Mr. Atwood stated that the Board was trying to regulate how to live, and mentioned other business owners in Bolton. Shirley Zundell responded that the Board was only dealing with Mr. Atwood and his business, and not how to live. She asked if there had been a limit on the number of vehicles before. Mr. Atwood stated no; there was no zoning before.
Randy Couch stated that it sounded as if Mr. Atwood needed to come back to the Board to be a car dealership, that the Board would discuss the situation with Dick Ward, and get back in touch with Mr. Atwood.
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The unscheduled meeting with Mr. Atwood closed at 8:25 p.m.
Other Business
Randy Couch introduced Rob Heimbuch to the Board members. Rob is a new resident in Bolton, and lives on the Bolton Valley Access Road. Mr. Heimbuch stated that he was very interested in serving the Bolton community, and would like to take Randy Couch’s seat on the Board. Mr. Couch is resigning, as he and his family are moving to New Hampshire. Nancy Peck noted that the Board could not appoint Mr. Heimbuch, but that she would forward the recommendation for his appointment on to the Bolton Select Board. Dick Ward noted that it was very advantageous that Mr. Heimbuch had attended the McEwing hearing, and the unscheduled meeting with Ray Atwood, and had received all of the information that the Board had received, and heard all of the testimony.
Nancy Peck told the Board members that she also was moving from Bolton, and that she sadly would be leaving the Chair seat on the Board vacant. Ms. Peck stated she would not be available for any hearings after the first part of September.
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Deliberation and
Decision
1. With respect to the unscheduled meeting with Mr. Atwood;
Dick Ward stated that the Board could not just give a blanket permit, that Mr. Atwood needed to be called back because of misrepresentation. He also noted that if there were tighter mixed use in the by-law, it would go on the record. Mr. Ward stated that the record should be clear, Mr. Atwood needs to spell out what exactly tenants he would like, and that his original use “went away.” He added that if the Board continued to allow what was happening, today there would be a Bobcat for sale, tomorrow there would be a backhoe for sale.
Nancy Peck stated that everyone wanted to do right for Mr. Atwood, but that he also could be gone from Bolton tomorrow. Mike Rainville added that Mr. Atwood doesn’t know what he wants a permit for, and doesn’t want to be restricted.
Dick Ward suggested that Mr. Atwood be called back to present a list of ten specific uses to the Board. Nancy Peck noted that there was an error in addressing the decision; “Design Review Board,” and that this matter would also be rectified. Dick Ward stated he would notify Mr. Atwood that he needs to come back to the Board and go on record for ten uses.
2. Alex McEwing Hearing;
Nancy Peck stated that McEwing is asking to change use in a non-permitted use area, and alter the character of the district. Randy Couch stated that McEwing is asking the Board to give up criteria number four. Mike Rainville added that his point was aesthetics, the tower is huge, and that there must be other options. He added that he could not get by the bulk of the tower. Shirley Zundell countered that because of changing technology, the tower needs to go somewhere, and the Board needs to face that fact. She added that cell towers are facing resistance everywhere they go, and that here in Bolton they have worked together to come up with a plan, and that of all the places in Bolton, this is the least obtrusive.
Dick Ward stated that this is a business, and that the Board needs to decide how many carriers they will allow in Bolton, adding that there could be three more looking for tower space next month. He added that it appeared that the majority of the Board supports replacing the tower, but not the height increase. Mr. Ward suggested that since the Board was having a difficult time with the five (5) variance criteria and could not reach a decision after deliberation, that the hearing be continued, and Mr. McEwing be called back for more evidence, and stated that he would contact Mr. McEwing.
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The minutes of July 18, 2001 were accepted.
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Continuance of the McEwing Hearing was set for Wednesday, August 29, 2001, 7:00 p.m. at the Town Office.
The meeting adjourned at 9:15 p.m.