DERBY - VELCO's lawyers are arguing that a request by the Derby Select Board for a public hearing before the Public Service Board (PSB) is essentially invalid because, although the request was made during a meeting of the Derby board, the issue of the VELCO permit was not officially on the agenda and therefore could not be acted upon under the state's Open Meeting Law.
Yet attorneys and engineers for VELCO, for weeks, continued to appear without warning before the Derby Select Board and Planning Board, where they discussed their plans in detail and with extensive public input, under "other business" rather than as a warned item, despite objections from community members.
William Dodge and Kane Smart, attorneys with Downs Rachlin and Martin PLLC, stated in a written response to the Derby Select Board that the board has no basis for requesting a hearing.
"The boardâ€™s Procedures Order makes clear that finding a significant issue with respects to a project under the Section 248a criteria is a precondition to holding a hearing,â€ť they wrote. VELCO's attorneys conclude that the project, planned for Nelson Hill, is critical for the communication needs for VELCO as well as for utility companies, and that a hearing is not necessary.
â€śTo date, no party has articulated a valid basis for challenging the evidence submitted by VELCO, or for opposing the project on the grounds set forth in 30 V.S.A. 248a, the Town Plan, or the Regional Plan,â€ť the attorneys wrote.
Selectman Karen Jenne, Derby residents Sharon and Mark Tarbox, Holland resident Bob Cooper, and Derby resident Scott Warthin told the select board that they wanted the PSB to hold an official public hearing in the area for residents to ask questions and state concerns. The select board agreed to sign the letter, but noted that it was for residents, not for the board, as the board has already submitted a letter on the issue.
The hearing request was made as Jenne and others felt that many questions and concerns pertaining to health and safety went unanswered and because an official hearing was never held by the select board nor the Derby Planning Commission.
VELCO sought a positive recommendation from the town regarding the project, which is part of a statewide project to convert to narrow banding to allow for better communication. The project is mandated by the Federal Communications Commission (FCC), and the project must be complete by January 1, 2013, as set by the FCC.
The select board in a letter to the PSB stated that it supports the project but wanted a long-term power density study by an independent firm prior to the PSB issuing a Certificate of Public Good.
This study would ensure that the radio frequency emissions from the project are within FCC limits.
VELCO attorneys said that an additional study would delay the project.
VELCO hired a firm to take readings for four and a half hours on two different days and the readings showed that the total emissions would be approximately 35 percent of what the FCC safety limits are. Estimates for the proposed tower were factored in.
In response to a letter submitted by Cooper and the Tarboxes, VELCO attorneys state that no facts are provided by opponents of the project, only allegations of possible adverse effects.
A long term study without any set duration would only end up costing rate payers and would likely have the same result as before, the attorneys wrote.
If the PSB determines a long term study is necessary, then VELCO would like to perform the study once the tower is already built. â€śA post construction survey with reasonable duration would provide the most accurate means of measuring the actual emissions at the site, but without delaying he critical implementation of the statewide radio project.â€ť