The objection to the reduction of the water department's easement at 100 Pleasant Street, their desire to relocate that easement to town-owned land off Reservoir Road, and the proposed cell antennas on the Bear Hill water tank may appear unreasonable. Let's take it step by step and see if this is simply another NIMBY issue.
1. Everyone agrees the Water Commissioners and the property owner had the right to relocate the original easement. What is in question is whether they had the right to reduce the easement from 30' to 12'. Some legal opinions differ with Town Counsel and view this is as an abandonment which cannot be done without the approval of a 2/3 vote of town meeting and is therefore an illegal contract. Since no one wants to negatively impact the property owners what the legal remedy would be presents a Gordian Knot.
2. The Water Commissioners stated the reduced width was sufficient for their use and would not negatively impact the use of the easement. This is disingenuous at best: they knew they needed to get large trucks up the easement periodically to clean out the water tanks and they were already in negotiations with ATT & Verizon which require a construction access greater than 12'.
3. The law allowing for the relocation prohibits it from (a) significantly lessening the utility of the easement, (b) increasing the the burdens on the town in its use and enjoyment of the easement, or (c) frustrating the purpose for which the easement was created. I think it does all three but you decide for yourself.
4. Did the WC use the need for a wider access for the cell carriers and dangle the carrot of $20,000 per carrier (as of now only ATT has a contract) as an incentive to have the BoS approve the new easement location? Proponents of #1 think the WC should live with their decision and its consequences. Certainly the reduction benefited only the developer.
5. We need better cell reception in Cohasset but at what impact to a neighborhood? It's not simply a matter of a few antennas on the water tank. It's accessory compounds (40' x 25' per carrier since they refuse to share) with transformers, propane gas tanks, high voltage electricity, HVAC systems and generators all surrounded by a 7'6" wire fence topped off by 1' of barbed wire and signs warning not to proceed closer as radio frequency fields may exceed FCC regulations. (see photo of compounds at TOD cell tower or better yet visit the site and listen to the constant hum of electricity and the recycling of the HVAC units) Just what we'd like next to our homes, right?
7. Why does this differ from the cell installation at the 1st parish? Everything is concealed within the building and has no visible impact on our Common or abutters. BTW I'm told that before ATT contracted with the WC they were in negotiations with St. Stephen's. Wonder why that deal fell apart.
6. ATT went before the ZBA in an informal hearing and convinced them it was okay to put this commercial installation smack dab in the middle of a residential area. In all fairness I haven't talked to the ZBA yet.
7. Some legal opinions again differ from TC and state the WC does not have the legal right to enter into a contract with ATT or Verizon as their authority is linked directly to the conveyance of water. They do have the right to manage structures as they deem in the best interest of the town but does that extend past maintaining and operating the structures? I believe the authority to enter into such a contract lies with the town.
8. The new WCs are working and succeeding at straightening out the water enterprise fund. It looks like the dry summer will result in a surplus. Is $20,000 a year worth so negatively impacting a neighborhood? The Scituate water tower is available. St. Stephens is still available. Options exist.
This is really a test of what we value more: the character of our community or cell phones.
9 comments:
I have no statement about the road, nor if it is legal for the water department to sign the contract with a cell service provider, I am not a lawyer.
As to the cell towers, if you are worried about equipment noise then maybe you should look at the Mass Noise ordnance as mentioned in the wind by-law, it’s a general state law not limited to wind turbines. As you stood next to the unit at the TOD the noise is ‘X’, what was it 50, 100+ feet back? That is the question. Lots of folks in town have placed A/C units next to their houses and that impacts their home and their neighbors so is your concern the size? How much noise is generated by the High Schools HVAC system? It runs all winter and summer. Maybe there is a location on Bear Hill that places the equipment on one side of the water tower so it shields the nearest houses from any new noise? Maybe they do not need propane tanks but can run a natural gas line to the location?
Fencing and some signs, is this going to be visible? If I recall my hike up to the water tower I could not see any homes while standing at the base. Is there not a fence around the tower already?
St Stephens may or may not be an option, depends if the church tower can be modified like UU tower was to allow a cell tower, maybe it cannot? Maybe the leadership of the church does not want the cell tower, the UU said no a few years back before changing their minds this year. Scituate Hill water tower might be an option but I would guess the Bear Hill tower is a better location for the signal to reach all of town as it centrally located. Bear Hill also addresses the ultra high use from students and parents at all of the schools and the sports fields.
Character of our community vs. cell phone: not sure what you mean here. We have cell towers in several locations in and around town, I do not see them as impacting our character other than to improve our access to a modern technology that we all use/need. There were people upset that the UU tower was being modified to accept a cell tower and that modification was going to impact the character of the common, I have not felt a difference. The character of our community is a moving target that changes with time. There was a time we needed only a single water tower, but now we have two. A single cell tower was fine back 15 years ago, now we need several.
My comments are number to correspond with the enumerated step-by-step list (there were two 7s, hence my 7a and 7b). Due to the length I am commenting in three parts.
1. Whether one categorizes the reduction as an abandonment or something else, the bottom line is that the town gave up 60% of the beneficial interest in property rights it had enjoyed for over 120 years and go nothing in return of it. Granted, the town did get new pipes as a result of the relocation of the easement at the expense of the developer, but obviously that was needed anyway to be able to shoe-horn the new homes onto the development site. Relative to the other use of the easement, that of a 30-foot wide access driveway, the town appears to have received absolutely nothing in return for what is in essence a conveyance of 60% of its land rights. Is it a common practice of the town to return 60% of its land to a landowner without any remuneration? That would seem overly generous. In any event, the Water Commissioners knowingly executed the Relocation Agreement; they’re the ones who tied the knot, and now they need to live with it.
2. The Water Commissioners’ actions don’t seem to pass the smell test, do they?
3. This applies if the property owner (the dominant estate) unilaterally relocates the easement. What’s troubling here is that the Water Commissioners knowingly, voluntarily entered into an agreement that, nevertheless, seems to fail each of these elements. As you accurately state in your item 7[b], by law (Chapter 128 of the Acts of 1886, as amended), the Water Commissioners are required to manage, improve, and control the works, buildings, and other structures that make up the water distribution system “in such manner as they shall deem for the best interest of the town.” How can the Water Commissioners seriously argue that they were acting in the town’s best interest in agreeing to reduce the width of the easement to 12 feet--and including a 90-degree turn at the end--when they knew, as you state in item 2, that they needed to have large trucks periodically access the easement and were in negotiations with AT&T and Verizon to install cell phone antennae which would also require access by large trucks?
The Water Commissioners state that they cannot use the relocated easement for large trucks. Well, then, perhaps the Commissioners should not have agreed to the relocation of the easement as currently configured. The 12-foot wide road with a 90-degree turn obviously: a) lessens the utility of the easement (being able to access the tank to clean it is a significant need); b) increases the town’s burden in its use and enjoyment of the easement (now an alternate, currently-non-existent route may be necessary); and c) frustrates the purpose of the easement (cannot freely access the tank to clean it as it had in the past). If the Water Commissioners did not fully appreciate/understand this when they negotiated and executed the Relocation Agreement, then they were nothing short of negligent.
Part 2
4 and 7a. The timeline of events doesn’t logically add up. If RFPs to place cell antennae on the Bear Hill tank were sent to wireless carriers in July 2008, why was there no mention of this use of the tank in the then-Article 5 of the Warrant for the Special Town Meeting of Nov. 17, 2008 (which was promptly pulled by the Water Commissioners after meeting with concerned residents) or the Water Commissioners’ description of the Article? Why was this use of the Bear Hill tank not mentioned at the Board of Selectmen meeting of Sept. 21, 2009? Each time the issue of the Water Commissioners wanting to use the land off of Reservoir Road instead of the Pleasant Street easement was raised, the Water Commissioners reasoned that is was due to the Stevens Development projects on Pleasant Street. At that Sept. 21st meeting, Mr. Stevens indicated that he was OK with having the access road on his property, but both Commissioners Pratt and Palmer stated that they wanted to move it to the Reservoir Road location.
Did the Commissioners purposefully reduce the width of the easement to 12 feet so they could subsequently argue that it was now too narrow in an attempt to try to force a move to the Reservoir Road location? If AT&T was already in negotiations with St. Stephen’s, why did the Water Commissioners interfere? Did they see it as an opportunity to further argue that they needed to use the Reservoir Road location because the Pleasant Street easement is not sufficient? Whatever the answers are, it sure seems like certain Water Commissioners have been hell-bent on not having an access driveway on Pleasant Street and assumed that they could use the Reservoir Road location without resistance. Not sure who promised whom what and when about getting the Pleasant Street easement removed, but it seems like the only logical conclusion.
6. It’s rather disturbing how an “informal discussion” can lead to a lengthy review and an important decision. The following is from the Zoning Board of Appeal's Dec. 2009 meeting minutes: Informal Discussion with AT&T Engineer, Martin Cohen – Mr. Cohen and Mr. Dan Bilezikian of Anderson & Kreiger, addressed the Board. They explained that the Water Commission put out an RFP to build a cell tower up on top of Bear Hill Water Tank. They then reviewed the plans for the Board. After a lengthy review, the Board agreed that this was an allowed use and that AT&T could seek a building permit for the project.
Part 3
7b and 8. Reiterating the law as described in my comments to item 3 above, in order to act in the best interest of the town, the management, improvement and control by the Water Commissioner of the Water Department’s works, buildings and other structures ought to directly relate to the purpose of supplying water to Cohasset; the only purpose for which the Cohasset Water Company was granted corporation status by St. 1886, c. 128, as amended. The Water Commissioners’ contracting with cell phone companies to erect antennae on the Bear Hill Tank--or any other town property, for that matter--has nothing to do with supplying water to Cohasset and everything to do with supplying telecommunications infrastructure to Cohasset, something for which the Water Commission has absolutely no authority to undertake. Since it has nothing to do with supplying water to Cohasset, I’d argue that the Water Commissioners’ contracting to erect, or otherwise erecting, cell phone antennae on the Bear Hill tank cannot be deemed managing and controlling the Bear Hill tank in the best interest of the town.
I do agree that such contracting authority lies with the Board of Selectmen, but since the contract with AT&T was apparently already executed by the Water Commissioners, let’s continue to analyze the matter from that perspective. What exactly is the Water Commissioner’s reasoning that this is in the best interest of the town? I don’t believe I have heard the reasoning behind this. Is it mostly because it may bring in $20,000 per carrier, per year? If that’s the main criterion, then that’s a rather slippery slope by which to judge the benefit of a given proposal/project to the town’s interest.
Best is a superlative. In simple terms, it means there is no as good or better alternative. If the goal is to have increased cell phone coverage in town, am I to believe that the Water Commissioners, prior to entering into the contract, have studied the cell phone coverage in Cohasset and reached the informed conclusion that there is no other site within Cohasset where antennae could be erected that will provide as good, if not better, cell coverage? Am I also to believe that in reaching this conclusion the Water Commissioners fully studied the impact of the cost of ongoing maintenance to the Bear Hill tank, the effects of compounded electromagnetic field, radiofrequency wave and microwave radiation on the immediate neighborhood and the middle/high school, the potential loss to homeowner property values, potential drainage and storm water run-off problems for Pleasant Street residents, and the safety implications of having a turn-off from Reservoir Rd., to name a few? Not to mention the issue with asbestos cement pipes running under the Reservoir Road location? Speaking of which, am I to assume that, as part of their deeming their proposal is in the best interest of the town, the Water Commissioners have fully studied the potential hazard of releasing asbestos fibers into the water supply and have a coherent plan in place to fully mitigate the risks? Since, if I understand correctly, Commissioner Pratt used to own an asbestos abatement business he ought to have full appreciation of the significant costs and strict regulations involved in dealing with asbestos material.
Part 4 (of 4)
(7b and 8 cont'd)
Yet, somehow, even though all of the concerns addressed above are real, the Water Commissioners seem to believe that their proposal will cost the town only $4,500 (for the construction of a “road”). Sorry, but I seriously doubt that. The Board of Selectmen need to fully understand that there invariably will be greater costs--continuing, foreseeable, and unforeseeable--involved for this project. As we are all painfully aware, the Water Commissioners--at least the previous regimes--have a bad track record of anticipating, projecting, and managing costs. Why should we expect this to be any different? Why isn’t having the Water Commissioners calling the shots on this just another fiasco in the making?
If I’m to believe all of this, then am I also to believe that, in weighing the totality of the above, it’s still in the best interest of the town? There are no alternative sites anywhere else in Cohasset? The Scituate tank? St. Stephen’s? The Water Treatment Plant? How about a less-invasive distributed antenna system (which is basically a mini-repeater system utilizing telephone polls)? Is the Bear Hill tank the be-all-and-end-all location for cell antennae as the Water Commissions would lead us to believe?
Quite frankly, if the Water Commissioners are truly interested in acting in a manner that is in the best interest of the town, then I think the town would be much better--dare I say best--served by having them concentrate their collective energy on removing the many miles (12?) of known hazardous asbestos cement pipes in the water distribution system (known to be in the Fair Oaks., Ledgewood Dr., Linden Dr., and Reservoir Rd. areas, among others) like many other towns on the South Shore and the Cape are doing. According to the Massachusetts Infrastructure Investment Coalition, asbestos cement pipes generally have a useful life of about 50 years (see report here: www.engineers.org/?pk=download&pid=0&id=10447). Assuming these pipes were installed on or about 1960, according to the Coalition these pipes are ripe for replacement. Simply put, given the current sad state of affairs--what with the dire financial straits, the incessant brown water, and the miles of aged asbestos cement pipe--the Water Commissioners' diverting any energy, effort, and/or money to anything but improving the drinking water quality is an unacceptable disservice to the rate-paying citizens of Cohasset. The rates that we pay for the sub-par product we are basically forced to receive is an abomination.
The Board of Selectmen need to immediately take control of this situation so that the Water Commissioners aren’t distracted by anything other than improving the water quality and getting their financial house in order.
Let's remember that 1. It is not "their financial house" but "Ours" and 2. that this issue of the easement dates back to the previous water commmission consisting of John McNabb, Nathaniel Palmer and Glenn Pratt not the two new commissioners who have been volunteers for less than 6 months. Hats off to them for trying to figure this whole mess out.
I couldn't agree with you more in that we are dealing with an issue initiated by the previous Commissioners and that both Chris Seebeck and Peter DeCaprio have and continue to do an outstanding job in restructuring the enterprise budget and identifying and implementing cost saving measures. I originally named the post "Applying Business Methodology..." "Kudos to our New Water Commissioners!" The former better titles my main theme but the latter is none the less valid.
Yes Chris and peter are doing a good job but the damage is done and it's going to take a lot more than two people to figure things out and get back on track. Let's not forget it's still the Glenn Pratt show until the spring.
Anonymous, I invite you to identify yourself. I've just been chastised for passing along 'unattributed, petty complaints'.
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