From: Watt Alexander
Sent: Saturday, March 23, 2013 4:57 PM
To: Norwich ListServ
Cc: Nancy Kramer; Tom Gray; Steve Flanders
Subject: Open Letter to Planning Commission and Selectboard
To the Norwich Selectboard and Norwich Planning Commission:
All the debate over who would build our tower has obscured another important aspect of our tower decision that
has not received the attention it deserves. If, as planned, the town files a permit application for this tower with
the Public Service Board ("PSB") under 30 VSA 248A, it's important for the Planning Commission,
Selectboard, and townspeople to understand and manage the risks that route entails.
As an effort to fast track tower systems, 248A is designed to bypass local land use permitting by asking our
Selectboard and/or Planning Commission to "certify" that the proposed complies with our town plan and land
Unless there is good cause to find otherwise, substantial deference has been given to the land conservation measures in the plans of the affected
municipalities and the recommendations of the municipal legislative bodies and the municipal and regional planning commissions regarding the
municipal and regional plans, respectively. Nothing in this section or other provision of law shall prevent a municipal body from basing its
recommendations on an ordinance adopted under 24 V.S.A. § 2291(19) or bylaw adopted under 24 V.S.A. chapter 117 by the municipality in which
the facility is located. A rebuttable presumption respecting compliance with the applicable plan shall be created by a letter from an affected
municipal legislative body or municipal planning commission concerning compliance with the municipal plan and by a letter from a regional
planning commission concerning compliance with the regional plan. - 30 VSA 248A (c)(2)
In plain English:
Letters from our Selectboard and Planning Commission certifying that a proposed tower complies with our
town plan and land use regs create a "rebuttable presumption" that the tower indeed complies. A rebuttable
presumption means the PSB will officially assume the tower complies unless persuasive evidence to the
contrary is presented by other parties.
So here's the problem.
Once our SB and PC certify that a 198' tower complies with our town plan and land use regs, it's going to be
very difficult -- perhaps impossible -- to deny the same certification for any other tower built in this town up to
that height. If this tower complies with our regs, then -- unless we change our regs -- the next tower of similar
or lower height will too. And any future tower applicant will certainly use this certification letter to highlight
our duplicity if we, as a town, aren't fans of the next tower application. We need to be very careful and
conscious of the risks before we put such a broad and potentially negative precedent on the books.
And here's the other problem.
It's a real stretch to suggest a 198' tower complies with our regs.
Back in the 1990's when towers started proliferating, state and federal agencies began drafting model "wireless
communication facility" regulations to help towns and states regulate tower placement decisions without
forbidding towers altogether. A decade ago, the Planning Commission adopted portions of the model
regulations recommended by the VLCT and they now comprise Section 4.13 of our Norwich Zoning
Regulations. Eight years ago, when I was on our Development Review Board, we reviewed and permitted a
Verizon cell tower under these same regs. Our decision, concurring with the Act 250 District Commission,
restricted Verizon's tower to twenty feet above the surrounding tree line, as provided for in our regs. No one
complained about our decision, appealed it, or suggested we needed to revise our regulations to alter these
Yet the proposed tower is 125 feet above the surrounding tree line.
Now it's far too late in the game to revisit the site decision that resulted in this obscene tower height. So I'm
really just talking about harm mitigation to our tower regs and our ability to regulate future towers in town.
In my opinion, the best outcome (also the cheapest and quickest in my estimation) would be for the town to
seek a permit for this tower as a public facility (NZR 4.11) through our DRB and Act 250 instead of the 248A
route. This would allow the town expedited review but also means the town builds this tower solely for our
own emergency services communications use and eschews renting tower space to any commercial enterprise.
This would leave our existing tower height and siting restrictions intact any for future commercial tower
applications and avoids the risk of establishing a negative precedent under 248A.
A less-good option would be to seek a permit through the PSB under 248A but have both the SB and Planning
Commission explicitly and carefully certify this tower as a public facility restricted to non-commercial use so
we still have some hope of distinguishing this tower from future commercial tower applications in town.
The worst option, in my opinion, is the one currently on the table which would allow commercial use of a 198'
tower -- eviscerating both our existing and proven tower regs and giving any future tower applicants a clear path
to approval of any tower of equal or lesser size through 248A.
I hope both the SB and Planning Commission will consider and discuss these options before proceeding any
further. As always, I'm happy to discuss these matters further at one of your meetings upon your invitation.