Cape Elizabeth residents oppose plan to make old water tower a cell tower
CAPE ELIZABETH — The Zoning Board of Appeals next week will decide whether to uphold a decision denying building permits for cellular phone service antennas and communications equipment on and around the Portland Water District's decommissioned water tower on Avon Road.
"They're saying a federal law allows them to put up these antennas without regard for our zoning ordinance or a site plan review," Code Enforcement Officer Ben McDougal said. "I determined that wasn't the case."
Priscilla Armstrong, who can see the tower from her home, was one of several Avon Road residents to receive a letter from Verizon Wireless last September inviting her to a meeting at Town Hall.
She was told Verizon had approached the Portland Water District about placing an antenna atop the 80-foot-tall, nearly 70-year-old tower, which has been dry since 2007, but still supports an antenna to monitor water pressure and sewer pumping stations.
Residents were annoyed.
In emails to the town in the following months, they cited aesthetic qualms, concerns over the noise of the equipment's generators and HVAC systems, the unwelcome traffic of service vehicles on their dead-end street, and an overall negative impact on the neighborhood's quality of life.
Still, nothing appeared imminent.
"Everyone on the street thought the meeting was just the beginning of a process," Armstrong said. "The town had told us previously, should this ever raise its head, that the cell phone companies would have to request a zoning change. Next thing we know, Verizon — and subsequently, AT&T — have signed a lease and they're applying for a building permit and not a zoning change."
Verizon's attorney, Scott Anderson, submitted a building permit application to the town on Feb. 11. New Cingular Wireless, better known as AT&T Mobility, followed suit shortly thereafter. The companies' cases for bypassing the town's site review process were built in part on the federal Spectrum Act, a provision of the Middle Class Tax Relief and Job Creation Act of 2012.
"The whole purpose of the Spectrum Act is to eliminate local permitting barriers to expanding wireless coverage," Anderson said.
The Federal Communications Commission is currently determining the regulations of the Spectrum Act through the rule-making process.
"They may issue regulations, they may not," Anderson said. "But as with any state or federal statute, the statute is in effect now. The fact that there aren't additional regulations doesn't mean people wait to implement, or that it doesn't have the full force of the law."
McDougal sees the situation differently. He sent letters of denial to both companies, which promptly appealed.
"The section of the Spectrum Act that speaks to this is extremely brief," McDougal said. "The FCC is going to write 40 pages of rules that detail what's allowed under those three sentences of federal law. When those rules come out, then we can have a sound discussion as to whether the Spectrum Act applies to this proposal. It's possible, but I'm not convinced at this point."
After constituents voiced concerns about the project, state Sen. Rebecca Millett, D-Cape Elizabeth, attended a meeting with representatives from Verizon and the Portland Water District board.
"I think there's some federal rule making going on that (the cell phone companies) are trying to get out in front of, and that doesn't seem appropriate," Millett said. "You need to allow the federal government to work through its process and wait to see what happens."
Armstrong conceded that she's against the installation of the cell service infrastructure for personal reasons, but said she'd like to see the corporations play by the same rules as anyone else looking to build in the town.
"If they don't uphold the permit denial, they're really just saying these companies can come in and do anything they want," she said. "If they're going to try and do this, they shouldn't try to go around the correct procedure of how Cape Elizabeth would like to handle these things."
The Zoning Board of Appeals is expected to make a ruling Tuesday, May 27, in a 7 p.m. meeting at Town Hall. Its decision will likely take into account more than just the Spectrum Act, and include the water district antenna currently on the tower and the town's ordinance provisions for "alternative tower structures."
If the appeal fails, the cellular service providers could take the case to Cumberland County Superior Court, McDougal said.
Further complicating matters are the AT&T and Verizon site plans. Despite the fact the companies' cases will be heard in tandem, their conceptual drawings are distinct; neither drawing shows, for example, the two different equipment shelters the companies intend to build. That said, there appears to be room for both companies – and possibly others – on the half-acre lot.
If Verizon and AT&T eventually lease the land, the Portland Water District stands to make at least $2 million over the next 25 years, said Donna Katsiaficas, the water district's attorney. Some residents have accused the water district of a cash grab, a charge the quasi-municipal corporation hasn't exactly denied.
"Because the revenue from the lease goes toward water repairs, because we're public, it goes to the benefit of the ratepayer," said Katsiaficas, who added that the companies have offered to pay to repaint the rusty tower, which could cost $100,000.
Still, not everyone sees the arrangement as altruistic.
"One of the most troubling aspects of this thing is the role of the water district," said Cape Elizabeth resident Tony Armstrong, Priscilla's brother-in-law. "Publicly elected officials approaching all this the way they have – it's trouble."