In 2015, Calais spent almost $100,000 on legal and other fees to fight what many residents saw as a poorly sited, intrusive telecom tower project. This week, two town officials went to Montpelier to register their displeasure with the process.
According to Calais Board Chair Denise Wheeler and Vice Chair John Brabant, who took seats at the House Energy and Technology Committee table on Tuesday morning, the project did not adhere to the town plan or zoning policies. They also argued that it threatened the community’s rural charm.
In December 2015, developer VTel withdrew its proposal to build a tower in Calais, located at the north end of town near the Woodbury townline, but not after damage to community relations between the Select Board and its residents had already been done.
“We asked that the PSB issue their decision with prejudice so that Vtel couldn’t come back to that same location because we cannot afford to do this again,” said Wheeler. “We absolutely cannot. So the PSB denied that request, and here we are and we don’t know if Vtel is coming back and we don’t know if somebody else is coming back.”
Now the House Energy and Technology Committee is considering H.50 which would extend Act 79, the law that enables telecommunications companies to forgo the Act 250 siting process, before it expires on June 30 of this year. This would make for Act 79’s fourth renewal since its enactment in 2007.
Act 250 typically requires strong adherence to town planning policies, whereas Act 79 allows firms, such as Vtel, to choose the more developer-friendly Section 248 process.
Brabant said that while developers can still choose Act 250, they clearly have a preference.
“(Section) 248 is built to provide greater advantage to the developer and less authority to the municipality and neighbors,” said Brabant. “It’s very telling that, to my knowledge since this law was passed in 2007, they’ve always opted to go the Public Service Board path.”
Wheeler told the board it was time for that to change.
“If you either make some changes to 248 or put it at the Act 250 level, that is more user-friendly and less costly to towns and residents, you are going to have a better process,” she said.
She added that if Montpelier wants towns to continue taking planning and zoning seriously, state government needs to respect their work.
“Why do we bother if we’re just going to be ignored? That’s the piece that’s really frustrating,” she said.
Wheeler said the big difference between the Section 248 process and the Act 250 process is with 248 what the PSB considers as “the greater public good” can basically override any violations to town plans and zoning bylaws.
Another complaint noted by Wheeler is that the town’s attorney during the discovery phase of the PSB process found email messages between Vtel and the Public Service Department (a separate entity from the Public Service Board) which she said was not transparent behavior.
“I mean that’s not OK, you don’t do that,” said Wheeler. “If you are trying a case, people are supposed to know what’s going on. You are not supposed to have these backdoor negotiations going on.”
She said what was found in these emails was also disturbing.
“At one point, one of the parties said that ‘this project is going to go down in flames'” said Wheeler. “Again this is DPS staff and Vtel staff behind the scenes, nothing that we knew about until our attorney did discovery. … If we knew this thing was on the ropes, we may not have spent so much money.”
On Thursday morning Gregg Faber, utility regulatory analyst for the PSB, testified to the committee that he worked on the Calais case and he said he was aware that Vtel had either overlooked or disregarded an opportunity to attach its infrastructure to an existing tower in neighboring Woodbury. Faber said this may have been a “fatal” fault in Vtel’s case which may have resulted in a negative vote from the PSB.
Wheeler said the town had asked the PSB to order Vtel to cover their legal costs, which the PSB denied. Faber said the PSB only will ask that legal costs to be covered if there is evidence that Vtel intentionally misled or deceived the community.
Rep. Robin Chesnut-Tangerman, P-Middletown Springs, expressed concern that some of his constituents have mentioned that the Act 250 process can take a long time, even decades in some extreme cases.
“So what I’m looking for,” he said, “is what is the balance between expediting public good and fair access?”
Wheeler said she has worked with the Act 250 process before and it’s relatively rare when cases get drawn out.
“The horror stories are always the ones you hear about,” she said.