Alton Bay cell tower plan rejected by zoning board

The Zoning Board of Adjustment (ZBA) voted last night refused to permit the construction of a 120-foot cell phone tower on Miramichie Hill at 486 East Side Drive/Route 28A.

Industrial Communications and Electronics of Marshfield, Ma., in conjunction with companies representing the Unicel and U.S. Cellular cell phone companies, had petitioned for a waiver of the town’s telecommunications’ height restriction that would allow it to build the tower, which the company claims it needs to fill in “gaps” in cell phone service in the community.

But in an unanimous vote, the ZBA members turned down the company’s request, ruling that the petition did not meet the meet the board’s five specific qualifications: it was not in the public interest; it was not in harmony with the spirit of the zoning ordinance passed by voters in March; it would not grant substantial justice either to the town or the company; granting the variance would adversely impact the value of surrounding properties; and denying it would not cause undue hardship to the company.

The decision, coming shortly before 10 p.m. last night, concluded — at least for the moment — a process that has stretched over almost two years. That was when Industrial Communications first came to the town with plans to construct two 120-foot cell phone towers, one on Miramichie Hill, and another by Roberts Knoll at 1439 Wolfeboro Highway/Route 28.

The plans were originally presented under a previous zoning ordinance that restricted the areas of town where a telecommunications tower could be constructed. Then voters approved the new ordinance, which allowed towers to be put nearly anywhere in Alton as long as they were not more than 10-feet above the “tree canopy.”

The company could have continued to pursue their application under the old ordinance, since it was already submitted before the new measure was passed. But Director of Operations Don Cody decided to withdraw the first applications and submit two new ones under the new rules.

Then followed a series of hearings before both the ZBA and the Planning Board that sometimes got heated. Some residents charged the company with misleading people about the federal Telecommunications Act and trying to scare the town planners into granting permission for the towers’ construction. At one point, both Cody and his lead attorney, Early Duval, became frustrated with the town planners, saying their actions were “underhanded.”

Several weeks ago, the Planning Board officially ruled against the towers and passed five "findings" — the most significant referring to the towers’ heights — onto the ZBA members. Two weeks ago, the ZBA gave its support to the Roberts Knoll site, saying that it would serve the general public’s interest and confirming that a weather balloon test proved that the tower would be virtually invisible to the general community. (The site-plan now has to be considered by the Planning Board.)

But last night’s rejection of the Miramichie Hill site does not necessarily mean an end to the process. Several weeks ago, during a break in particularly tense Planning Board-ZBA meeting, Cody admitted that he did not ever expect to get approval from the town boards and predicted the issue would eventually wind up in Belknap County Superior Court.

After last night’s decision, attorney Duval said that he would study the language of the ZBA’s ruling before recommending any course of action to Cody’s company. Cody seemed to hint that he was willing to stick by his original prediction but he deferred to his attorney and did not elaborate on what actions Industrial Communications might next take.

The testimony at last night’s meeting may be difficult to refute. Long-time Planning Board Chairman Tom Hoopes, who chaired the Master Plan Committee, gave up his right to sit in on any future Planning Board decisions regarding Industrial Communications to speak against the proposed waiver. He charged the applicants’ representatives of giving “erroneous statements,” particularly by claiming that the new ordinance was “fatally flawed.” Hoopes said the ordinance was “very reasonable” but Industrial Communications wanted a taller tower so it would be able to put more cell phone company equipment on it in the future. “The whole purpose of he regulation was we wanted to improve cell phone service” without encouraging the building of large towers, he said. Instead, the idea was to encourage more and smaller towers that would provide the service people wanted without sacrificing the scenic views that are so valuable in a resort community like Alton.

Hoopes said that he could see granting a variance that would allow towers to be 20-feet above the tree canopy but he claimed that other cell tower companies around the region have proved that is a workable height.

Jeanne Crouse, another Planning Board member who also served as chairman of the Master Plan subcommittee that drafted the latest telecommunication ordinance, agreed that the purpose of the measure was to avoid having large towers that would disrupt the scenic views of Alton, which, she said, a tower on Miramichie Hill tower would clearly do. (Crouse has recused herself from all Planning Board discussions about the tower application since she is an abutter.)

About seven or eight other residents spoke against the tower at the meeting in Town Hall.

Only Roger Sample was in favor of the tower. He said that “most people don’t know what’s going on. I hope you (ZBA members) take the time to consider that. They’re doing what they’re doing and we want you to get us the (cell phone) service we need.”

In his brief concluding remarks, attorney Duval said that Industrial Communications had presented the town with reams of information that indicated that the tower was needed and the only way to properly service the area. “The town’s own expert (Mark Hutchins of Brattleboro, Vt.) has spoken” of the need for the tower, he added. “The record speaks for itself.”

Duval than added that even if the tower application did not meet all the variance requirements, denying it would be a violation of the federal Telecommunications Act, which disallows any town from forbidding cell phone service.

Cody asked the ZBA members to remember that only a relatively small group of people had been at the meetings adamantly opposing the Miramichie Hill tower. He again claimed that the zoning ordinance was “fatally flawed” because it did not a tower to be constructed in the only logical place for coverage of the Alton Bay area.

When the public hearing ended, the ZBA members made their decisions fairly quickly.

Acting Chairman Tim Kinnon said that the viewsheds of Alton were an important part of the town’s attraction to tourists and that it “readily needs to be protected.”

Stephen Hurst agreed, noting that he stood on the Mount Washington steamship dock the day of the balloon tests in September and could clearly see the weather balloons.

Member Tim Morgan said it was not the ZBA’s job to judge whether an ordinance was “fatally flawed.” Likewise, the board could not negotiate with the applicant. “It’s an up and down mater. We have to judge it as it’s come to us from the application.”

Morgan said he disagreed with any contention that Alton was trying to freeze out cell service and pointed to the most recent waiver approval for Roberts Knoll as proof. And he added that he did not think the Telecommunications Act indicated that no cell phone company was allowed to have any gaps in its service to a community. “The feeling is that this is one of the most protected, most restricted (areas of town) for a reason. I think that overshadows the value of cellular service in this case.”

After the final vote, Kinnon thanked Cody and his representatives, adding that they’d made a professional presentation. He also disagreed with the idea that Industrial Communications had tried to “scare” the community into giving its approval to its project.