Ordinances irrelevant to tower construction

OTISFIELD —  The board of selectmen at its meeting November 21 gave an update about the proposal to construct a 180-foot high telecommunications tower on Scribner Hill.

They said that by expert opinion, the town's telecommunications ordinance and the comprehensive plan "are not really germane to having a cell tower in town." 

John Maloney, senior land use planner from Androscoggin Valley Council of Governments, worked with the town on its comprehensive plan and getting it approved through the state, said Chairman Hal Ferguson. 

"He's very knowledgeable on what's in the comprehensive plan," said Ferguson. The plan was adopted on June 25, 2011, updating the 2004 plan.

"Based upon having the appeals with the cell tower, we asked him [Maloney] what he thought as far as whether the other ordinances in town were germane to the siting of a wireless facility," Ferguson explained. 

Appellants to the cell tower, the Friends of Scribner Hill, have complained to the appeals board that the town did not follow the comprehensive plan or the telecommunications ordinance before approving the permit for U.S. Cellular.  

Since the planning board approved the permit for the tower nearly a year ago, the Friends of Scribner Hill and others have filed four appeals – three with the appeals board and one with Oxford County Superior Court. 

Their other complaints included a lack of proper notification of abutters, the planning board's failure to meet criteria in the telecommunications ordinance and the board's failure to address concerns by citizens. 

Not applicable

A four-page document sent to the town from Maloney says that on April 11, 2011, the State Planning Office found the 2011 comprehensive plan to be consistent with the Maine Growth Management Law. 

According to Maloney, this means the plan complies with the law and standards of the Comprehensive Plan Review Criteria Rule. 

Selectmen said they also asked Maloney about his opinion of the applicability of the Site Plan Review Ordinance and the siting of telecommunications wireless facilities. 

"He [Maloney] reviewed all of our ordinances," said Selectman Rick Micklon, "specifically the site plan review and the cell tower [ordinance] and came up with the conclusion that the site plan review ordinance is not applicable." 

"The planning board, from day one, and the code enforcement officer said a site plan review has nothing to do with a cell tower," Micklon added. 

In short, Maloney writes, the comprehensive plan is a policy guide in that it helps the town make future decisions – it is not a land use ordinance simply because "it does not include specific standards that development must comply with, including wireless telecommunications facilities." 

In other words, state law does not require that a telecommunications facility be related to or be consistent with a comprehensive plan, he writes. 

He concluded that the town's Wireless Telecommunications Siting Facility Ordinance is a stand-alone ordinance, prepared solely for the siting and review of cell tower facilities. 

"Neither the Site Plan Review Ordinance nor the Wireless Telecommunications Facility Siting Ordinance instructs the planning board to consider the other ordinance in their review," Maloney writes. 

No vista

In addition, selectmen said there's been debate about the definition of a "scenic vista," as noted in the town's comprehensive plan. 

One policy in the comprehensive plan is "that development and other activities in significant scenic areas be undertaken in such a manner as to minimize any obstruction of views and interruption of scenic vistas." 

According to selectmen, however, Scribner Hill is not a scenic vista. 

"There are many scenic vistas from [the top of] Scribner Hill, but Scribner Hill [itself] is not one of them," said Ferguson. 

To read Maloney's letter to selectmen, go to www.otisfieldme.gov and look under news and announcements.