Due Diligence? (Letter to Valley News 9-25-12)

To the Editor:

Your Sunday editorial "Due Diligence - Norwich and the Cell Tower" oversimplifies what "irks" some residents about the "Fulton Tower" controversy in Norwich.

Since Norwich opted for a Town Manager more than a decade ago, we've struggled to make this administrative arrangement work.  To some degree, our first three town managers all succumbed to a Selectboard and political culture still rooted in the pre-town manager allocation of responsibilities.  To their credit, our current Selectboard has consciously set out to more clearly delineate the duties and authority delegated, by statute, to a town manager and last year hired a very promising new Town Manager in Neil Fulton.  This most recent kerfuffle over Fulton Tower is all the more surprising given the positive steps taken these past 18 months in finding a more mature relationship between Selectboard and Town Manager.

Again, to Neil Fulton's credit, since taking office he has moved quickly and decisively to prepare our public safety departments for the FCC "narrowbanding" deadline at the end of this year which prior regimes had either ignored or misunderstood.    Fulton is highly adept at the grant game and has already justified his salary increase many times over in securing hundreds of thousands of dollars in grants for police, fire and public works communications equipment this past year.  In the event, very few townspeople have seriously questioned the need for significant investment in emergency communications infrastructure.  Nevertheless, a major public safety infrastructure project which should have garnered broad public support has become a significant controversy.  Why?

If you ask me, it's a fairly straightforward -- cautionary -- tale of initial, understandable, oversights compounded by obstinance and a lack of public due diligence.

The controversy was there at the outset.  Fulton Tower is to be built in a valley along New Boston Road.  Due to the low base elevation in a hilly town, the structure needs to be very high to broadcast effectively.  The proposed height of 198 feet is a concession to avoid FAA regulations requiring a flashing red light on towers 200 feet or higher.   198 feet is the height of a 19 story building and about 140 feet above the surrounding tree line. 

This site and design were felt to be the most cost-effective solution to an acknowledged need.  But our Town Plan and zoning regulations don't rubber stamp towers -- even town-owned towers -- on the basis of cost-effectiveness.  Instead, they were drafted to steer developers towards siting towers where they can achieve their coverage objectives, if possible, no more than 20 feet above the surrounding tree line.  Adept tower developers -- like Verizon before they built their tower in Norwich back in 2006 -- research a number of possible sites to locate some with the topographical charcteristics that allow them to achieve their coverage objectives consistent with our height restrictions. 

Repeated public requests for an engineering study to look for sites that achieve our coverage needs in compliance with our own zoning regulations have been ignored.  Instead, we've been given a 2010 draft feasibility study which considers only this one site, suggesting no professional effort was ever made to look beyond this predetermined solution. 

Due diligence?   The initial oversight -- forgetting to consider our zoning regulations in designing a proposed tower -- is perhaps understandable, even for a Town Manager lauded for his engineering expertise.  I find it harder to grasp why our Selectboard felt no need to request siting options, especially once the zoning, height, and coverage concerns were raised last Spring. 

Unfortunately, the initial zoning compliance oversight has knock-on effects. 

Perhaps recognizing the zoning issue, the Town withdrew the original zoning application filed with our Development Review Board ("DRB") last July and decided, instead, to seek fast track review that would avoid local zoning and Act 250.  The Vermont Legislature created the fast-track option for tower developers through the Public Service Board under 30 VSA 248A several years ago in an effort to "juice" broadband infrastructure construction.  For those applicants wishing to avoid local and Act 250 review, 248A offers a cursory threshold to approval which includes a statement from either the town's Selectboard or Planning Commission that the proposed tower is consistent with the Town Plan. 

In our case, this means our Selectboard and Planning Commission will soon be asked to go on record that 198-foot towers are consistent with our Town Plan.  Inconveniently, more than a decade ago Norwich enacted detailed zoning regulations governing tower height consistent with our Town Plan.  In 2006, both our Development Review Board and the Act 250 District Commission, reviewing our Town Plan and zoning regulations, enforced these regulations to restrict Verizon's Norwich tower height to twenty feet above the surrounding tree line. 

Due diligence?  A decision by the Selectboard or Planning Commission to certify Fulton Tower's 198-foot height at the Public Service Board spurns these facts -- rejecting all the work done by townspeople in town plan discussion, Planning Commission review, and DRB adjudication of regulations we all naively thought reflected the conscious democratic will of the Town -- and creates a precedent that will be difficult to reverse. 

What basis will the town have to limit height for any future tower if we wink at this one? 

The only reason we now face this regrettable policy choice is because the original design for Fulton Tower never took into account our zoning regulations so never thought through how this tower would receive DRB and act 250 approval.  Every effort to flag these issues for the Town Manager and Selectboard have been met with dismissiveness and dissembling.

Then there's VTel. 

Whatever individuals may think of VTel's owner or the company itself, the proposed VTel contract is a questionable business deal for Norwich residents.  The idea behind this contract is, again. cost-effectiveness.  In exchange for building us a tower on town property to locate our emergency services transmitters, VTel will effectively own the tower for up to sixty years on this site rent-free. 

Due diligence?  At no time prior to approving the VTel Letter of Intent was the Selectboard or the public provided any information about typical lease rates, similar revenue share agreements, or co-location rates to help us judge the wisdom of this deal.  VTel will be using taxpayer grants to build a tower on town land it leases rent-free.  It will broadcast for-profit broadband signal to Norwich subscribers without paying any co-location rent or sharing any revenue from that service.  And it will keep 97 cents on every dollar any other broadcaster pays them in co-location rent potentially for the next sixty years.  When asked at a Selectboard meeting whether the 97/3 revenue share on colocation seemed reasonable, our Town Manager stated that he felt VTel saw this rate as non-negotiable.  I don't question our Town Manager's motives in trying to get a tower built cheap.  I question his business judgment in thinking a sixty year lease on these terms is cheap. 

As your editorial states, it is certainly within the authority of our Selectboard and Town Manager to act as they have.  However, the failure to do our homework up front has us, as a town, backpedaling into a series of really questionable business, regulatory, and policy decisions that are only being brought to light through the alarmed efforts of townspeople.  It may be "the cogs of local democracy are well-oiled in Norwich," but the administrative judgment of our town government -- and public due diligence made upon it -- is looking increasingly suspect. 

Embracing Fulton Tower (Norwich ListServ)

Well, it looks like Neil Fulton's finally got his tower. 

And make no mistake, this tower, Fulton Tower, will be built almost entirely due to his hard work and iron determination.  For both good and bad, I think it's fitting that his name should be attached to it.

To the good, Neil recognized a real public safety need and aggressively addressed the looming FCC narrowbanding deadline.  At nearly every meeting I've attended on this matter, his department chiefs have spoken honestly and forcefully about the anxious losses in emergency communications that a town of our resources need not tolerate.  As anyone who has experienced a real emergency understands, help either arrives in time or it does not.  Neil's confident this communications system can reach 95% of the town 95% of the time.  That's a real achievement and it's only a matter of time until the next real emergency puts that achievement in its proper context.

Neil's also a very, very effective grant-gleaner and has single-handedly coordinated an effort to retool our emergency communications infrastructure almost entirely through other folks money.  That's a real, practical skill -- with potential to greatly benefit the town and our tax bills -- that we've simply lacked until he took over. 

To the not so good, Fulton Tower has been, without question, a one-man show. 

Every decision about this tower -- from tower height to where it should be built; the how, the when and the where -- has been Neil's.  (Every decision save one -- the failed bond vote a couple weeks back.  For those who didn't attend this last Selectboard meeting, Neil's found a way to avoid risking another bond vote.)  Despite very substantial, sustained, and detailed public input seeking changes, Neil's original design and location for this tower have not changed in any significant way since first made public last December.  It begs the question how anyone with a different opinion was ever supposed to have input on the design and siting of this tower. 

Get used to it Norwich.  Public forums are planned for the new fire/police station at the Agway property.  We, the taxpayers, haven't technically bought the Agway property -- yet -- but the last Selectboard packet includes detailed architectural drawings of the new station on this site, right down to the placement of bicycle racks and wall lights. 

Maybe Neil will let us choose the color? 
Of the bike rack?

The real problem with a one-man show is that no one man or woman can have all the right answers.  The best leaders I've known all possessed the humility to understand better decisions come from active engagement with opposing points of view on the off-chance -- surprisingly common -- one might learn something important by really listening. 

Based on these past nine months, I'd say Neil has little time for our planning and zoning efforts, for the uniquely Vermont principle of institutionalizing the competing public and private interests at play in any land development through citizen-based review. 

Based on my legal experience, both the VTel and Clem/Agway proposals suggest to me Neil may also be out of his depth in development contracts.  Mr Guite and Mr Clem probably didn't achieve their respective business success by accommodating an easy mark. 

In my opinion, these are the inevitable blind spots that come with great talent in the zero-sum world of human intelligence.  A confident, assertive Selectboard might counter-balance these shortcomings without impairing Neil's real talents.  Maybe.  But as I've just learned in spades, Neil's greatest talent is in knowing how to get his way.  That, to me, has ominous implications when we're talking about town administrative staff meant to advise and support our town's legislative body.  Which is really my point. 

This town has an elected legislative body accountable to the voters.  Like it or not, the 3-2 vote to proceed with Fulton Tower, sponsored by VTel, showed tremendous political courage by each of our elected Selectboard members.  To their immense credit, each of the five has spoken openly, honestly, and bravely about why they voted as they did. Those they represent can ask no more than that.  It's our prerogative as voters to choose whether they serve.  It's their right and duty, once elected, to serve as they see fit. 

This town also has a town manager accountable directly to the Selectboard.  In the eleven years we've had a town manager, we're already on our fourth, so it's obvious the relationship between an elected Selectboard and their professional staff is not an easy one.  From where I sit - - and I'll do my best to get used to an eighteen-story albatross out the window across from me - - Fulton Tower represents a new reality in the evolution of our town manager form of government.  With respect to Fulton Tower, my role, as a town resident, has been reduced to a decision whether to sue the town in an attempt to force them (us?) to enforce our zoning regulations upon our own public infrastructure projects.  Whatever other role I imagined I had has been negated, sandbagged, side-stepped or dissembled away. 

I've been on the losing side of many battles, but this one has really gutted me.  Most of it I have to put down to my own unrealistic expectations. 

The reality is three Selectboard members patiently listened to every argument I, and many others, have made against Fulton Tower -- and everything it represents -- yet they were not persuaded. 

The reality is I've personally spent an inordinate amount of time these past two decades hand-wringing over planning, zoning, and how small town democracy "is supposed to work" largely naive to how calculated power actually holds sway.

The reality is I have a day job and the late nights pontificating here and elsewhere -- particularly these last nine months -- have finally caught up to me.

The reality is when we adopted a Town Manager eleven years ago, we created a bureaucracy.  We put in place a paid official who has more time and greater resources to shape town policy than either residents or the Selectboard/citizens who oversee that Town Manager can bring to bear. 

I feel very fortunate to have lived through that transition from an older Vermont to our Town Manager-led town government because, despite the deep sense of loss, I was there to witness the necessity of the change.  Maybe it's the greying hair and our kids beginning to leave the nest, but that sense of loss; the sense that the place we call home exists more and more in the past, has become inescapable for me. 

A friend told me a while back what a relief she felt when she finally unsubscribed from this listserv and let town politics go on without her.  I'm going to try that for a while.

Thanks for reading.

Third Tower Mistake - Subverting Local Planning and Zoning (Norwich ListServ)

Ten days ago, Steve Flanders wrote a lengthy defense of his rationale for supporting the proposed VTel tower.  At the time, I responded with two posts. 

The first asked Steve to make public the engineering and propagation studies that might substantiate his claims that this is the best site for a tower in town.  Of course, that was a rhetorical question as no such study was ever done.

The second asked Steve where he -- and the rest of those who voted for the VTel contract -- got the idea we would need to purchase any land, let alone "multiple acres," to build a tower on a non-town-owned site.  It's common practice to lease the land beneath telecommunications towers and, even then, those leases often extend no more than a 100 foot square around the tower base.  Verizon did this when they built on Four Wheel Drive Road.  VTel is proposing to lease land above our Transfer Station in the same manner.  Why keep trooping out this red herring of a costly land acquisition (Steve quotes $100,000 per acre as a potential price) when leases are the industry practice?

Then I got tired. 

So now I want to turn to Steve's "What about the Development Review Board process?" (Steve's entire paragraph is quoted in full at the bottom of this post)

First, Steve announces, "Vermont law exempts both municipal communication facilities and cellular/broadband facilities from local review." 

This is simply untrue. 

30 VSA 248a does not exempt these towers from local review; it simply allows applicants to choose between Public Service Board review or to seek permits through local zoning and Act 250 review.  That choice is up to the applicant. 

When the applicant is a town you might think the town would submit to the local review the town's voters (and Planning Commission and Selectboard) enacted? 

In fact, the Town did initially file an application to proceed before the Norwich Development Review Board.  The initial public hearing was warned for early July and some abutters even received legal notice of the DRB hearing.  That public hearing was then suddenly cancelled and our Zoning Administrator submitted a written recommendation that the town proceed, instead, through the 248a process before the Public Service Board.  The only reason I can see to back out of DRB review and choose instead the Public Service Board process was a determination by someone in Tracy Hall that 248a would be an easier process to get a 198' tower approved. 

So let's rephrase Steve's first pronouncement:  In truth, "Upon recommendation of our Zoning Administrator and Town Manager, a majority of our Selectboard decided to avoid local review."

Steve's second sentence glides over another whopper:

"Even so, they are subject to review by the Public Services Board, which will seek input from the Norwich Planning Commission and Norwich Selectboard."  As far as this goes, Steve is factually correct, 30 VSA 248a gives "substantial deference" to the recommendations of the local Selectboard and Planning Commission.  But consider for a moment what that means in this context. 

The Selectboard has already chosen to avoid local review via 248a.  Presumably, the Selectboard will recommend the Public Service Board ("PSB") approve this 198' tower as consistent with our Town Plan, despite the fact we enacted detailed height restrictions in our zoning regulations pursuant to that Plan.  If the PSB then approves a tower of this height as consistent with our Town Plan, how can this town ever again challenge any other tower developer who wants to build a huge tower somewhere else in town?  We can't because our Selectboard will already be on record stating that a 198' tower is no problem. 

So much for "input from the Norwich Planning Commission and Norwich Selectboard." 

Steve's third sentence also sticks in the craw, stating, "[The PSB] weighs the same factors that the Norwich Zoning Regulations would have done . . ." 

Two problems. 

First, Steve's contention is just plain not true.  248a spells out a clearly abbreviated set of required findings that is far shorter than those required under NZR 4.13, including our zoning requirement that these criteria be reviewed and testimony taken in public hearings.  Why else cancel the warned DRB hearing in July unless you're trying to avoid review under the Norwich Zoning Regulations?  Why avoid local review unless you think you're getting an easier ride from the PSB?

Second, of course, Steve's contention makes no sense.  If Steve were right about the process, why go all the way to the Public Service Board in Montpelier when we could do it all here in Norwich?  Our DRB has already permitted the Verizon tower in town, so we know our regulations work and compliant towers survive review.  The problem is, if this tower had to go through local review, it would be apparent that our Town Plan and zoning regulations don't rubber stamp 198' towers anywhere in town. 

So, Steve, if you really mean what you've said here, please vote tomorrow to submit this tower application to our Development Review Board. 

Let Tracy Hall go through the same review process we required Verizon to undergo six years ago. 

Let the rules and regulations our voters adopted to govern the development of telecommunications towers in Norwich govern this tower too.

Protect those regulations so we still have some local review authority when the next tower is proposed.

Respect the institutions -- and the hundreds and hundreds of volunteer hours that went into drafting and reviewing our Town Plan and zoning regulations -- that Norwich voters chose to adopt to govern land use development in our community. 

This local review process is the proper forum for our town government and townspeople to engage in the difficult work of building essential infrastructure consistent with local values.

- Watt Alexander


19. [Norwich] A towering question
From: Stephen Flanders
Date: Fri, 31 Aug 2012 13:57:30 -0400

What about the Development Review Board process?
Vermont law exempts both municipal communication facilities and
cellular/broadband facilities from local review. Even so, they are subject
to review by the Public Services Board, which will seek input from the
Norwich Planning Commission and Norwich Selectboard. That Board weighs the
same factors that the Norwich Zoning Regulations would have done, before
being superseded by state law, i.e. the public good achieved by the facility
versus the visual and other impacts on the public at large‹not abutters.
This state review process is the proper forum for concerned citizens to make
their case.

There are Options (Norwich ListServ)

Chipper Ashley's post of late last night does an excellent job summarizing the thinking behind Tracy Hall's efforts to place a 198' tower at the Transfer Station.  A brief reply.

There's a reason our zoning regulations on tower heights begins:

"The height of towers, antenna, and tower related fixtures in all districts shall not exceed the minimum height necessary to achieve the coverage objective and, in any case, be no greater than 20 feet above the average height of the tree line within 100 feet of the base of the tower."  (NZR 4.13(C)(b))

This regulation is meant to strongly encourage developers -- including towns building towers -- to look for sites where a tower reaching just 20' above the surrounding tree line can provide the signal coverage it is designed for.  There's really no other purpose for this statement except to encourage tower developers to do their homework before proposing a tower site and design.  The proof is in the next sentence which authorizes our Development Review Board to allow higher towers where it's shown a tower just 20' above the treeline won't do the job. 

There's no reason to say tower height SHALL NOT EXCEED X and then say the DRB may make exceptions where necessary, unless the regulations meant to push tower developers to look for sites where a shorter tower would suffice. 

The town never did its homework on this site. 

The engineer's feasibility study only discusses this one site and never mentions why it needs to be 198' -- that's about 130' above the surrounding treeline. 

Every time I've raised this height concern, beginning last December, I've been told there's no reason to look at other sites. 

I'm told the engineer's study justifies the height, but that's simply not true. 

Steve Flander's recent post trooped out another favorite, that any other site would be prohibitively expensive, but his own basis for that assumption has nothing to do with typical tower leases. 

Our Town Manager has stated, publicly, that he will not consider other sites where a more compliant tower could work because he thinks it would be a waste of time. 

I understand the desire to keep this simple:  We have an FCC deadline -- we haven't yet filed for an extension of that deadline -- and we want to get this tower built as cheaply as possible. 

But for those who take our town plan and zoning regulations seriously; for those who recognize these regulations attempt to balance telecommunications needs with the visual impacts of building towers the first place it occurs to someone to build them; for those who held Verizon to these very height restrictions when they built their tower five years ago; it's incomprehensible that the town government would feel above the rules. 

A lot of assumptions were made to meet the year-end FCC deadline.  As the bond vote last week demonstrates, at least some of those assumptions are in question. 

We need to make the time to take the time to do this right:

It's time to file for an FCC extension to get this December 31st deadline off our backs.

It's time to authorize a proper engineering study that looks for site options in town where we can achieve our coverage goals without building a twenty-story tower.

It's time to suspend VTel negotiations until we are comfortable with tower site, height and ownership.

We're talking about fundamental town infrastructure that will outlast most everyone reading this post.  Let's do it right.



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16. [Norwich] My take on the tower
From: Christopher Ashley
Date: Mon, 3 Sep 2012 22:13:51 -0400

Recent postings on the Norwich listserve have raised questions and
contained numerous comments regarding the decision making process and the
decisions by the Selectboard to place a radio tower near the transfer
station to accommodate the town’s fire, EMS, police, and public works
departments’ communication signals.