DERBY- The Vermont Electric Company (VELCO) sent only two representatives to the Derby Planning Commission meeting Monday evening, even though VELCO was not on the agenda, again. Prior to the meeting, Planning Commission Chairman Joe Profera said that he did not think VELCO officials would be attending this meeting.
However, VELCO attorney William Dodge of Downs Rachlin Martin was present along with VELCO senior project engineer Peter Lind.
Dodge asked the board again for a recommendation for VECLO to present to the Public Service Board (PSB) as it seeks a Certificate of Public Good for a new telecommunications tower on the Brown property on Nelson Hill. The recommendation, however, is supposed to come from the Derby Select Board, which passed the matter onto the planning commission for advice on how to proceed.
Profera said he did not understand VELCO's 136 page application for the certificate and felt he was not able to make a recommendation from his position.
Planner Richard DelFavero, an engineer himself, said he trusts what the experts say on the tower issues, referring to VELCO's engineer. He also said that he feels that Act 30, Sec. 248a was enacted to prevent the very debates and on-going controversy now going on in Derby over VELCO's proposed telecommunications tower.
VELCO used the company Giant Solutions to administer a power density study to measure all emissions from the site, taking readings at a number of locations. Readings were taken for three and a half hours. Lind said that last week he took additional reading which, when including what the VELCO tower would emit, is “well, well below” the FCC limits.
This information did not appease Sharon and Mark Tarbox, neighbors of the Browns, nor Bob Cooper of Holland, who lives 500 feet from the site. Cooper said the study was "inadequate" and noted that the report wasn't even signed. Cooper maintains that the power density study should be done over months. The Tarbox’s did not offer a specific suggesting, just noted their concerns.
Lind pointed out the industry standards for measuring emissions are done over a two hour period, noting that the measurements in Derby are more than double the acceptable amount. Doge said that Cooper was welcome to pay for a long term study, and hire an expert to provide testimony at the PSB hearing. He also noted that the PSB hold hearing with analysts, attorney, each of whom will testify under oath.
The meeting stretched on for more than two hours with Cooper debating jurisdictional issues, the application, concerns with the study and procedural discrepancies. Doge said any jurisdictional challenges, such as Act 250 or zoning by laws, will be resolved by the PSB.
The Act 250 commissioner, Kirsten Sultan, has already issued a jurisdictional opinion that Act 250 applies to thee of the towers that existed before a given date; she has not rendered an opinion on the later or new tower.
Cooper repeatedly challenged VELCO attorney Dodge while insisting that the board could not issue a recommendation without a long-term density study. He was also critical of zoning administrator Bob Kelley. Cooper said Kelley, who also serves as secretary for the planning commission, had an apparent conflict of interest and pointed out that in the annotations to Vermont Statutes 24: Municipal and County Government, "the zoning administrator should not serve on the planning commission." Cooper also said that Kelley had received VELCO's application 55 days before and not acted on it and had received a letter regarding the project from Mark and Sharon Tarbox 30 days before and never responded to them. Cooper essentially accused Kelley of failing to do his job. "He (Kelley) is the proverbial fly on the wall for the select board," Cooper argued later.
Planner Dave LaBelle said Cooper would not be allowed to criticize personnel. Earlier in the meeting, LaBelle told Cooper that they were extending him a courtesy to allow him to speak at a Derby meeting when he is not a resident of the town. Cooper lives in Holland.
Cooper argued that the VELCO issue, which was unwarned and came under “other business,” was a violation of open meeting laws, and continued to warn the board that they could face lawsuits if they were to make a decision at the meeting. VELCO has repeatedly shown up at unwarned meetings and made their pitch under "other business," when residents were unaware in advance that the company would be advocating before the boards. Cooper said later, "They are doing this as an attempt to circumvent public input. I, for one, want to know what they hell they are up to."
LaBelle said he did not want to continue going over the same issues late into the night and decided to suggest that the board agree to a recommendation but ask for a 14 day power density study. The board was ready to vote but many from the public said that it would be a huge mistake to make a decision when the public had not been notified that the issue was being discussed. The commission members said they will vote at their next meeting.
Cooper's understanding at the end of the meeting was that no recommendation would be made until, at least, the Aug. 29th meeting. He felt that Chair Joe Proferra prevented the discussion from turning into a "runaway meeting" by adhering to the rules and procedures of the open meeting law.
ACT 30, Sec. 248(a) allows for telecommunications towers to be erected without local zoning or going through the Act 250 process, Dodge argued. Applicants can apply directly to the PSB, but the towers are not supposed to violate local bylaws. Applicants want favorable recommendations form local governing bodies to present to the PSB. The recommendation can come with notes of concern attached. Meanwhile anyone can submit concerns to the PSB on the project.