A number of appeals have been filed by Stoddard residents contesting the Stoddard Zoning Board of Adjustment (ZBA) decision to grant AT&T a Special Exception to construct a cell tower on Melville Hill, overlooking Granite Lake and the village of Munsonville, NH. A group of Stoddard residents are also considering a lawsuit against the ZBA Chair.
Citing bias and conflict of interest on the part of ZBA Chair Beverly Power, an owner of Pitcher Mountain Realty in Stoddard, as well as other concerns, the residents' appeals have resulted in a special meeting being called by the ZBA on Thursday, July 21 at 7 p.m. in the Stoddard Town Hall to consider undertaking a rehearing of the cell tower case. This meeting is open to the public, although they will not be allowed to speak.
This was also the case at the last cell tower hearing on May 25 during which the ZBA voted 3-2 in AT&T's favor, ignoring the pleas and petitions of several dozen concerned residents that were voiced and put forth in hearings held over a period of seven months.
Now these residents are wondering why a town's land use authority is chaired by a party in the real estate business. The Chair's bias in favor of AT&T's application, they say, was evident from the opening sentence of the first session in Fall 2010 ("Let's turn to the business of our cell tower") to remarks leading the Board in the course of the meeting where the final vote was taken (May 25, 2011): "AT&T has done a good job."
According to residents, without qualification or provocation the Chair authoritatively pronounced that cell towers do not have a negative effect on property values--a statement, they say, that is so blatantly and conveniently refutable that, according to one source, "it would take all of five minutes on the internet to access the overwhelming body of evidence to the contrary throughout the United States."
Furthermore, they report, the animosity between certain members of the Board is "so outlandish as to undermine credibility concerning its capability for objective deliberation of anything at all." At one evening's Town Hall gathering of the Board the Chair's husband verbally assailed and cursed a ZBA member not in agreement with her, a "rant and rage of such vehemence," says one observer, "as to fall just short of physical assault."
During the decisive May 25 vote, in addition, the scorecard of check-points leading to a decision followed the wrong criteria, claim the appealing residents. The Board assessed the viability of AT&T's application on the basis of considerations in the Stoddard Community Planning Ordinance pertinent to, according to one witness, "the likes of a funeral parlor or a beauty salon," ignoring an entire section addressing Wireless Communication Facilities which deals specifically with cell towers.
In the opinion of these Stoddard residents, the Board's rush to judgment failed to clarify a pivotal issue concerning "alternate technology," an omission rendered altogether conspicuous by contradictory guidance from the Board's legal counsel.
A request for ZBA Chair Power to recuse herself was also filed last month. In the request it was stated that "It is clear that Beverly Power...has not acted in quasi-judicial fashion in the performance of her duties as Chair of the Stoddard Zoning Board of Adjustments. From the outset of hearings in this matter, Chairperson Power has been in a rush to judgment.... Moreover, it has been quite apparent that she has been motivated throughout by a fear of getting sued by AT&T should the applicant not prevail in the special exception it sought. Neutrality in hearing and assessing the facts in a quasi-judicial context is impaired by fear. If one is afraid of being sued by an aggrieved party, that fear is restrictive of exercising the kind of patience, prudence, and objectivity required to arrive at an impartial decision. The presence of fear as a factor in Chairperson Power's proceedings and leadings of the Board has been evident and prevalent throughout the attendant hearings.... We believe a failure of the Chairperson to recuse herself stands to jeopardize the integrity of the ZBA decision on appeal and might create further legal entanglements from other sources."
In one of the appeals, the residents stated that "Upon information and belief the Chairperson and her real estate agency had been engaged in a business dispute with some residents of Munsonville opposing such AT&T petition, the very community whose tranquility of lake view will be most adversely affected by AT&T's proposed cell tower on Melville Hill."
A further concern, from this appeal, regards the May 25 hearing "at which AT&T proposed a "monopole" or "unipole" (with internal antennae) and that such "pole" should be at a height of 110 feet on the proposed Melville Hill tower site, which had not been the subject of any significant prior consideration of the Board or of opportunity for public comment and discussion, the Chairperson on her own motion proposed an increase in height of such pole to 130 feet without any discussion at the meeting with other Board members and without an opportunity at the meeting for comment or discussion by members of the Munsonville community who were present at the meetings....The matter of a "pole" instead of a lattice tower proposed by AT&T has never been the subject of any meeting for which there was public notice never mind any public discussion as required by law. As a result the Board should grant this Motion and reopen hearings on the matter pursuant to public notice and opportunity to be heard as required by law."
So far, however, even though a meeting to consider undertaking a rehearing has been called, the public--as stated previously--will not be allowed to comment.
Another appeal states that on several occasions at meetings, members of the public with legitimate concerns were not allowed adequate time to speak because the allotted time (determined by the Chair) had run out. The Chair did not allow thorough give and take between AT&T's presenters and a concerned public so the citizens' concerns could be fully aired and be part of the public record.
Furthermore, on several occasions, the Chair told the public in attendance that deliberations had dragged on long enough, that they couldn't go on forever, and at a meeting in March 2011 actually stated that the upcoming scheduled May 2011 meeting would definitely be the last one on the issue "period." Related to this, the Chair indicated in remarks at the hearings that the Board needed to make a decision because of the Shot Clock limitations. However, with AT&T changing their proposal (to a unipole) after six months of hearings, there was no legitimate way that any Shot Clock would still be in effect and that AT&T could insist on a quick decision, especially by the quoted Shot Clock drop dead date 31 May 2011. Yet the Chair rushed to judgment nevertheless, using this faux deadline as the reason for rushing to a decision. This rush to judgment resulted in many issues not receiving their proper consideration.
Appeals also cite a bias regarding choosing the technical assistant to be hired by the ZBA, a person who was on a list of approved possible candidates submitted by AT&T. There was no recognition of the public's protest to selecting a technical assistant already approved by AT&T as acceptable. At the Chair's urging, the Board ignored the fact that the whole purpose for hiring a technical assistant was to verify technical data submitted by AT&T and that this expert should have been a totally neutral party with no previous ties to AT&T and with no obvious conflict of interest. Furthermore, the Chair refused to recognize the public’s plea to present the case for a highly qualified alternative candidate for the position of technical assistant or to allow the public to counter AT&T’s prepared and delivered negative account of this proposed candidate.
Residents appealing also contest that there was no well-considered comparison of the relative advantages and problems of the Melville Hill site versus other possible sites at the public hearings. Comparisons of the cell phone coverages and seamless connectivity with the existing Roxbury tower and the proposed Melville Hill site and other possible sites was only cursorily discussed by the Board, and without any careful comparisons of the maps by three members of the Board. The only useful cell phone coverage maps were made available from AT&T and only after most of the Board's deliberations were concluded.
The concerned residents are hopeful that the July 21 meeting to consider undertaking a rehearing of the case will end up with the ZBA deciding to reopen the hearings so these and other grievances can be aired and that there will be a reversal of the ZBA decision. However, even if the hearings are reopened, one has the feeling that this ongoing cell tower dispute may not end there and that the entire fight might end up in court.
The saga continues…
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