York board declines to vote for cell tower. Vertex argues federal law overrules town.

YORK, Maine — Vertex Towers could not convince the town's Planning Board last week to consider an application for a 120-foot cell tower in York Village, where towers are not permitted.

Planning Board Chairman Wayne Boardman said the ordinance against cell towers in York Village might be a “show-stopper” for the board to do anything but reject an application for a tower in the woods behind First Parish Church. The board ended the Sept. 22 meeting without a vote, instead simply saying the application was incomplete in lacking a license from the Federal Communications Commission.

Vertex representative Francis Parisi told board members Vertex knew the application was incomplete. He said he was there rather to discuss “big picture issues” about whether any town board had the right to stop the project at all.

“The federal law preempts the board’s ability, the Zoning Board’s ability, and this board’s ability, to say no,” Parisi told the board, citing the Federal Telecommunications Act of 1996.

York resident James Kences is seen outside York Town Hall on Friday, Sept. 24, 2021, protesting a proposal to build a cell antenna array atop the Roots Rock Road water tower. Thursday he spoke against another cell project before the Planning Board being proposed in York Village.
York resident James Kences is seen outside York Town Hall on Friday, Sept. 24, 2021, protesting a proposal to build a cell antenna array atop the Roots Rock Road water tower. Thursday he spoke against another cell project before the Planning Board being proposed in York Village.

More York news: Rat-infested home sold for $300K with promise to remove remaining vermin

The law was intended to strengthen the nation’s telecommunications and encourage the spread of cellular service. Parisi has argued the law overrides local ordinances and state law in locations where cell coverage is lacking, and he has said the town’s refusal to permit the project will lead to action in federal court.

“We’ll just have to pursue these remedies under federal law,” Parisi told the Planning Board.

Vertex makes push for cell tower

York’s Wireless Telecommunications Facilities Ordinance, enacted in 2002, allows cell towers in two overlay districts, one located between Route 1 and Interstate 95, the other further west. Despite this, Vertex has worked with the First Parish Church for the last year, Parisi said, on planning the site of a new monopole tower outside the overlay districts in the woods at 162 York St. The tower would be available for use by multiple cellular companies, Parisi said, and greatly enhance coverage in the village where it can be difficult to get a signal.

Plans for a cellphone monopole that Vertex Towers is looking to build in the woods behind First Parish Church in York, Maine.
Plans for a cellphone monopole that Vertex Towers is looking to build in the woods behind First Parish Church in York, Maine.

Name may be revealed: Who is mystery homeowner of burned historic York Beach house?

Vertex approached the town Planning Department with preliminary questions about the application earlier this year, according to DeCarlo Brown, a land use planner in the office. He said he advised Vertex at the time that towers were not permitted in the village, and said they replied they were confident they could still get a variance. They then simultaneously submitted applications with the Planning Board and Board of Appeals, according to Brown.

Vertex first went before the Board of Appeals in August requesting a use variance. The board delayed their vote until September to get advice from town counsel, then rejected the variance Sept. 14 based on town ordinance and state law.

Board of Appeals members said town ordinance did not allow them to grant a variance for a use otherwise prohibited in a given zone, such as towers in the village. They also found the request did not meet criteria in state law that the variance could not result in the altering of “the essential character of the locality.”

The following week, Planning Board members said they were similarly inclined to reject the project because the cell towers are prohibited in the village. They also insisted Vertex needed the FCC permit, which they said has never been an issue for a wireless facility application in York.

“I don’t see how it can go forward,” said board member Ian Shaw referring to the FCC permit.

Parisi said Vertex is in talks with tenants who are interested, but he also said those relationships tend to develop more as the process moves forward. He asked the board to waive the application, noting town ordinance gives the board the authority to waive application submission requirements.

More: York town manager search results in no ‘tremendous’ candidates. Here’s board’s next move

“That’s a submission requirement,” Parisi said of the FCC permit.

“But I think that’s a huge requirement to this,” Shaw replied. Other board members agreed the permit was important as a matter of process.

“We are the defenders and the keeper of our ordinance,” said Planning Board Vice Chair Kathleen Kluger. “We have a duty to respond in this way.”

Board member, residents mull changing York's ordinance

The plan for the tower was given support by the York Village Fire Chief Chris Balentine. The chief submitted a letter to the Planning Department June 22 saying he supported the Vertex project and that better service was something firefighters “sorely need for coverage in York Village and York Harbor areas.”

Parisi also pointed out information about the town’s comprehensive plan on the walls of the meeting room that cited cellular coverage as a priority.

“The number one concern in this town, as you try to develop a comprehensive plan, is improving telecommunications,” Parisi said. “That’s really what we’re trying to do here.”

Boardman, the Planning Board chairman, suggested Vertex look at ways to have the ordinance changed. Kluger said such a petition on referendum day can only be brought forth by a citizen initiative. One resident, Democratic state Rep. Patricia Hymanson, told board members in public comment she was open to amending the ordinance.

“If we want to change something then we change the ordinance, and start there,” Hymanson said. “I would respectfully request that that process be opened up, if that’s the intent, and we go through an ordinance review.”

Others like First Parish Church historian James Kences spoke against the project in public comment because of its impact on the village. Resident Martha Fenn King said she has enjoyed living with a view of the woods behind the church and dreads the day a cell tower is built there to block her view.

“The woods have been my refuge,” Fenn King said. “This will affect my life in an aesthetically negative manner.”

This article originally appeared on Portsmouth Herald: York, ME, Vertex disagree over 120-foot cell tower in dead zone