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Vermont Public Service Board Issues Order Regarding Petition of SBA Towers V, LLC and T-Mobile USA, Inc
[September 20, 2014]

Vermont Public Service Board Issues Order Regarding Petition of SBA Towers V, LLC and T-Mobile USA, Inc


(Targeted News Service Via Acquire Media NewsEdge) MONTPELIER, Vt., Sept. 18 -- The Vermont Public Service Board issued the following order: Docket No. 8338 Petition of SBA Towers V, LLC and T-Mobile USA, Inc., for a certificate of public good, pursuant to 30 V.S.A. Section 248a, for the installation of telecommunications equipment in Barton, Vermont Order entered: 9/18/2014 I. INTRODUCTION In this Order, the Vermont Public Service Board ("Board") approves the application filed by SBA Towers V, LLC and T-Mobile USA, Inc. (together, the "Petitioners"), pursuant to 30 V.S.A. Section 248a and the Board's Procedures Order ("Procedures Order"),1 and grants the Petitioners a certificate of public good ("CPG") authorizing the installation of a wireless telecommunications facility in Barton, Vermont (the proposed "Project").



II. BACKGROUND This case involves a petition and prefiled testimony filed by the Petitioners on August 4, 2014, requesting that the Board issue a CPG, pursuant to 30 V.S.A. Section 248a, authorizing the installation of a telecommunications facility in Barton.

On August 28, 2014, via e-mail, Vincent Illuzzi filed a motion to intervene in this proceeding on behalf of himself and Joseph Illuzzi (the "Illuzzis"). The Illuzzis seek permissive intervention with regard to collocation requirements in the Barton Town Zoning Ordinance. The Illuzzis have not requested a hearing in this matter.


On August 28, 2014, via email, the Town of Barton Planning Commission filed a letter with the Board in support of the Project and stating that the Project was in compliance with the Town Plan, although the plan has expired.2 On September 3, 2014, the Vermont Department of Public Service ("Department") filed a letter with the Board recommending that the Board issue an order approving the petition without additional hearings or investigation. The Department does not object to the Board granting the Illuzzis' motion. However, the Department notes that the motion is late filed, and that the petition adequately addresses collocation issues.

On September 12, 2014, the Petitioners filed a letter with the Board objecting to the Illuzzis' motion to intervene.

No other comments regarding the Project were filed with the Board.

The Board has determined that the petition and prefiled testimony have effectively addressed the substantive criteria of 30 V.S.A. Section 248a. Consequently, we find that the procedure authorized by Section 248a is sufficient to satisfy the public interest, and no hearings are required.

III. FINDINGS 1. The Project involves the installation of a wireless telecommunications facility located at 316 Country Club Lane in Barton, Vermont. The objective of the Project is to provide wireless coverage in the surrounding area. Project Narrative Section A.

2. The Project involves the installation of a new monopole telecommunications tower with antennas, an equipment cabinet, underground utilities, and associated operating equipment within a new fenced compound. The Project also includes the construction of a new access road. Project Narrative Section B.

3. The facilities include a new 140' tall monopole tower with nine panel antennas, each measuring 78" by 12", mounted at a centerline height of 136' on the tower. Three equipment cabinets, each measuring 83" by 52" by 28," will be mounted on a new 8' by 15' concrete pad at the base of the tower within the new 60' by 60' fenced gravel compound. The Project also includes the construction of a new access road, extending approximately 200' from Country Club Lane to the compound. Project Narrative Section B; exh. 2.

State Telecommunications Policy [30 V.S.A. Section 248a(a)] 4. The Project is consistent with the goal of directing the benefits of improved telecommunications technology to all Vermonters pursuant to 30 V.S.A. Section 202c(b). The Project will provide new wireless service in this area. Project Narrative Section C.

Aesthetics, Historic Sites, Air and Water Purity, the Natural Environment, and Public Health and Safety [30 V.S.A. Section 248a(c)(1)] 5. The Project will not have an undue adverse effect on aesthetics, historic sites, air and water purity, the natural environment, or the public health and safety. This finding is supported by findings 6 through 28, below.

Public Health and Safety [30 V.S.A. Section 248a(c)(1)] 6. The Project will not have an undue adverse impact on public health and safety. Project Narrative Section E.

Outstanding Resource Waters, Headwaters [10 V.S.A. Sections 1424a(d), 6086(a)(1)(A)] 7. The Project will not have an undue adverse effect on outstanding resource waters or headwaters. Project Narrative Section E.

Water and Air Pollution [10 V.S.A. Section 6086(a)(1)] 8. The Project will not result in undue water or air pollution. This finding is supported by findings 9-17, below. 9. The Project does not use or discharge any water and will not include a generator. Project Narrative Section E.

Docket No. 8338 Page 4 10. The Radio Frequency Radiation associated with the Project will meet all standards prescribed by the Federal Communications Commission. Project Narrative Section F; exh. 13.

Discussion The Petitioners have not proposed construction hours for the Project. We conclude that the construction hours should be specified to limit adverse impacts from construction noise on any nearby residences. Therefore, we will add a condition to the CPG limiting construction activities between 7:00 a.m. and 7:00 p.m. on weekdays, between 8:00 a.m. and 5:00 p.m. on Saturdays, and prohibiting construction activities on Sundays and state and federal holidays.

Waste Disposal [10 V.S.A. Section 6086(a)(1)(B)] 11. The Project does not involve disposal of wastes or injection of any material into ground water or wells. Project Narrative Section E. Water Conservation, Sufficiency of Water, and Burden on Existing Water Supply [10 V.S.A. Sections 6086(a)(1), (a)(2) and (3)] 12. The Project will have minimal impact on water conservation measures, as the Project will not require water or sewer facilities. Project Narrative Section E.

Floodways [10 V.S.A. Section 6086(a)(1)(D)] 13. The Project is not located in a floodway. Project Narrative Section E.

Streams [10 V.S.A. Section 6086(a)(1)(E)] 14. The Project will not have an adverse impact on streams. Project Narrative Section E. Docket No. 8338 Page 5 Shorelines [10 V.S.A. Section 6086(a)(1)(F)] 15. The Project will not have an adverse impact on shorelines. Project Narrative Section E. Wetlands [10 V.S.A. Section 6086(a)(1)(G)] 16. The Project will not have an adverse impact on wetlands. Project Narrative Section E. Soil Erosion [10 V.S.A. Section 6086(a)(4)] 17. The Project will not cause unreasonable soil erosion or a reduction in the capacity of the land to hold water. All construction work will comply with Vermont standards and specifications for erosion and sediment control. Project Narrative Section E.

Transportation System [10 V.S.A. Section 6086(a)(5)] 18. The Project will not cause unreasonable congestion or unsafe conditions with respect to the use of highways, waterways, railways, airports or airways, or other means of transportation, whether existing or proposed. Traffic to the unstaffed site will be limited following construction. Project Narrative Section E. Educational Services [10 V.S.A. Section 6086(a)(6)] 19. The Project will not cause an unreasonable burden on the ability of a municipality to provide educational services. Educational services will not be affected by the Project. Project Narrative Section E.

Municipal Services [10 V.S.A. Section 6086(a)(7)] 20. The Project will not place an unreasonable burden on the ability of the local government to provide municipal or governmental services. The Project will not require any additional municipal or governmental services. Project Narrative Section E.

Aesthetics, Historic Sites, and Rare and Irreplaceable Natural Areas [10 V.S.A. Section 6086(a)(8)] 21. The Project will not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites, or rare and irreplaceable natural areas. This finding is supported by findings 22 through 28, below.

22. In order to demonstrate the aesthetic impact of the Project on the surrounding area, the Petitioners have submitted photo simulations depicting views of the Project based on a balloon test that took place on May 28, 2014. Project Narrative Section E; exh. 7.

23. Petitioners have taken generally available steps to mitigate the aesthetic impacts associated with the Project, including using a monopole tower design and locating the facility in a heavily wooded area where it will blend with a ridgeline or tree line backdrop from most vantage points. Project Narrative Section E.

24. The Project would not be considered shocking or offensive to the average viewer. Project Narrative Section E.

25. The Project does not violate any clearly identified community standards and is consistent with the goals contained in the 2008 Barton Town Plan and the Northeast Kingdom Regional Plan. Project Narrative Sections E, G.

26. The Project will not have an adverse impact on known historic sites. Project Narrative Section E; exh. 11.

27. The Project will not have an adverse impact on rare and irreplaceable natural areas. Project Narrative Section E; exh. 12.

28. The Project will not destroy or significantly imperil endangered species or necessary wildlife habitat. Project Narrative Section E; exh. 12.

Collocation [30 V.S.A. Section 248a(c)(3)] 29. The Project cannot be located on or at an existing telecommunications facility. There are no existing facilities in the area that would allow the Petitioners to satisfy their coverage objectives. Project Narrative Section C.

30. The radiofrequency coverage objectives for the Project are to provide coverage to residents and businesses in the Village of Orleans, and to Route I-91 and US Highway 5. Project Narrative Section C; exh. 3.

31. The Petitioners reviewed the surrounding area to determine whether any existing towers or other structures could be used for collocation and determined that the proposed site was the most appropriate to address the existing wireless coverage gap. Project Narrative Section E; exh. 3.

32. During the review of alternative sites, the Petitioners considered and rejected a site two and a half miles from the Project site on Barton Mountain that is owned by Vincent Illuzzi. The site was rejected for several reasons, including being located too far from the target coverage area, not being structurally capable of supporting the Petitioners' equipment, and unreliable access.

IV. DISCUSSION Motion to Intervene Pursuant to Section VIII of the Procedures Order, "[i]f any person wishes to submit comments or motions to intervene to the Board concerning an application filed pursuant to Section 248a or request a hearing for projects other than de minimis modifications, such correspondence is due at the Board within 21 calendar days of the date that the application was submitted to the Board and all required recipients." In this case, the application was filed with the Board on August 4, 2014. The Iluzzis filed their motion to intervene on August 28, 2014, three days after the deadline for motions to intervene. Therefore, the motion is rejected as late filed .

However, even if the Board had considered the motion on its merits, we would not have granted the intervention sought in the motion. The Illuzzis, in their motion, argue that they have a substantial interest in this proceeding because they own an existing telecommunications facility capable of providing collocation for the Project. The Illuzzis contends that in siting this facility they relied on the "Barton telecommunications ordinance" which "requires colocation [sic] of telecommunications facilities."3 Further, the Illuzzis maintain that the Project "does not meet the requirements" of the Barton Zoning Ordinance, "which is a significant issue under Section 248a."4 The motion does not contain any citations to the Barton Zoning Ordinance.

Section 248a(h) specifically provides that "[o]rdinances adopted pursuant to 24 V.S.A. Section 2291(19) or a municipal charter that would otherwise apply to the construction or installation of facilities subject to this section are preempted." Accordingly, the Illuzzis' reliance on the Project's compliance with the Barton Zoning Ordinance as a basis for intervention is misplaced because the ordinance is statutorily preempted. Pursuant to Section 248a(c)(2), a municipality may base its recommendation regarding a facility "on an ordinance adopted under 24 V.S.A. Section 2291(19) or bylaw adopted under 24 V.S.A. chapter 117." However, in this case, the Town of Barton has made no such recommendation. Instead, the Barton Planning Commission has expressed support for the Project and stated that the Project complies with the Town Plan. In addition, as we found above, the Petitioners have performed the necessary due diligence in exploring potential sites for collocation. The Petitioners specifically reviewed the facility owned by the Illuzzis, among others, for collocation opportunities and found the site inadequate to fulfill their coverage objectives. As a result, the Petitioners ultimately determined that the Illuzzis' site is inadequate for collocation. Therefore, even if we had granted intervention status to the Illuzzis, we would have concluded that they have not shown that the Project raises a significant issue with respect to the matter of collocation.

V. CONCLUSION Based upon all of the above evidence, the petition does not raise a significant issue with respect to the relevant substantive criteria of 30 V.S.A. Section 248a, the public interest is satisfied by the procedures authorized in 30 V.S.A. Section 248a, and the proposed Project will promote the general good of the State.

VI. ORDER IT IS HEREBY ORDERED, ADJUDGED AND DECREED by the Public Service Board of the State of Vermont that: 1. The installation and operation of communications facilities at the location specified in the above findings, by SBA Towers V, LLC and T-Mobile USA, Inc., in accordance with the evidence and plans submitted in this proceeding, will promote the general good of the State of Vermont in accordance with 30 V.S.A. Section 248a(a), and a certificate of public good to that effect shall be issued in this matter.

2. Construction activities related to the Project shall occur between the hours of 7:00 a.m. and 7:00 p.m. on weekdays and between the hours of 8:00 a.m. and 5:00 p.m. on Saturdays. Construction activities are prohibited on Sundays and state and federal holidays.

Dated at Montpelier, Vermont, this 18th day September , 2014.

s/James Volz PUBLIC SERVICE BOARD OF VERMONT s/John D. Burke s/Margaret Cheney OFFICE OF THE CLERK FILED: September 18, 2014 ATTEST: s/Susan M. Hudson Clerk of the Board 1. Second Amended order implementing standards and procedures for issuance of a certificate of public good for communications facilities pursuant to 30 V.S.A. Section 248a, Order issued September 5, 2014.

2. The Barton Town Plan was adopted in 2008 and has not been renewed.

3. Illuzzi Motion at 1.

4. Id. at 2.

CC AutoTriage10PkS-140920-30FurigayJane-4869008 30FurigayJane (c) 2014 Targeted News Service

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