by Annette Smith

The case was a travesty from beginning to its recent end, when the Vermont Supreme Court upheld a poorly reasoned decision with significant errors the Public Utility Commission chose to ignore.  

Lake Willoughby, recognized for more than a century as one of the most beautiful places in New England with a National Natural Landmark designation, was failed by everyone except the local residents who fought valiantly to protect the scenic beauty of an extraordinary place.

It started with the three-member select board, one of whom was the tower leasing landowner, who stormed out of an early meeting after the issue of conflict of interest was raised.  The select board then expanded to five, but the topic of the tower was uncomfortable and led to silence.

Then came the planning commission, and the balloon test.  The developer, Industrial Tower and Wireless, a privately owned company from Massachusetts that intends to cover the state of Vermont with its ugly lattice towers (Fairfax, Eden, and Ira are built, Waterville and Chester are approved, Tinmouth and Enosburgh are before the PUC)  intent on renting them out to the major carriers, had already conducted its own balloon test without public notice.  

The Public Utility Commission does not require balloon tests for the benefit of the public.  Or site visits, or public hearings.  In Enosburgh and Ira, ITW refused to do a balloon test. The landowners said no.  So, rely on the developer’s photos where they choose the vantage points.  Trust their accuracy.  

In Westmore, ITW did conduct a public balloon test after it was requested by the planning commission.  But the balloon was not monitored and people observed that it quickly lost height.  That explains why the chair of the planning commission failed to verify the visual impact, because in driving around he couldn’t see the balloon. 

Adding to the problem, these telecom companies use ridiculously small 3-foot wide party balloons that greatly minimize the visual impact of a tower that will be more than 10 feet wide when operational.  

Vermont’s legislature has established an absurd, arduous and highly legalistic process that defies common sense and is almost incomprehensible to the average person.  Good luck participating in the Public Utility Commission’s Section 248a process for siting towers.  The law requires the PUC to give “substantial deference” to the recommendations of the municipal select board, planning commission and regional planning commission, and is supposed to find no undue adverse effect on aesthetics and historic resources.  In reality, aesthetics and historic resources are not relevant.  

What matters is what the town boards say, and what they say has to be based on specific requirements in town plans and by-laws.  And they have to understand the process well enough to know that those recommendations have to be made no later than Day 30 after the Petition is deemed complete.  How many towns can do that kind of work holding meetings, understanding their plans and what matters, and getting it all in writing by the 30^th day?  And find money to hire a lawyer.

“Recommendations” are evidence and filed as “public comment” but that is different from “public comment” that is not evidence.

In Westmore, the select board was silent.  The planning commission submitted a public comment that served as the only recommendation that mattered, by Day 30.  Then they began to discuss what happened, that the balloon test was faulty but formed the basis for what the PUC considered to be its “recommendation” to be given substantial deference.  

The planning commission filed a motion to intervene and was denied.  Too late.  The planning commission filed a supplemental comment after evaluating non-compliance with the town plan and by-law.  The select board finally filed a public comment recommending denial of the tower due to lack of compliance with the town plan and by-law.  The latter two letters were submitted  before the deadline for pre-filed testimony of the intervening residents of Westmore.

ITW’s lawyer moved to strike all the public comment, which the PUC granted, eliminating everything except the initial planning commission letter filed by Day 30.

The same PUC hearing officer hears all tower cases.  In his proposal for decision he noted that the change in the planning commission’s position was likely based on the change in members, and a new chair.  Except the chair has been the same for 25 years and did not change.  After oral argument, the PUC’s final decision  contained the same error.  A motion for reconsideration to correct the error was filed one morning.  Later that day it was denied.  Did the PUC even read it?

The Vermont Supreme Court deferred to the PUC, upholding a poorly written decision that ignored credible testimony and the town’s well-reasoned recommendations.  The case cost local residents thousands of dollars to consult an attorney and do the appeal.  

ITW’s tower will be visible from many places, including the eastern shore and Mt. Pisgah scenic overlook.  The Agency of Natural Resources was silent, even though they are designated to protect the National Natural Landmark.  ITW has no contracts for cell carriers.  Build it and they will come, that’s the plan.  

The only thing that is guaranteed is that an ugly tower is going to visually pollute one of the most beautiful places in New England.  The Legislature, PUC and Vermont Supreme Court have failed Vermont.

Annete Smith is Executive Director for Vermonters for a Clean Environment