Cingular and Aquinnah clash in towering debate
Now before the MVC, the cell company argues MVC has no jurisdiction
By Janet Hefler - August 3, 2006
The static between Aquinnah and Cingular Wireless regarding a proposal to place wireless antennas in a church steeple continues tonight in a public hearing that opened July 20 before the Martha's Vineyard Commission (MVC), months after the town's Planning Board initially denied the project.
The project's roadblocks arose last October when Cingular Wireless, a national digital voice and data company with more than 50 million subscribers and $32 billion in annual revenue, made a request to place three wireless antennas inside a rebuilt replica of the existing steeple on the Community Baptist Church of Gay Head. Aquinnah's Planning Board denied the project based on the town's zoning bylaws.
During the first hearing session, the commissioners heard two hours of testimony from Cingular's attorney, Maurya Sullivan of Anderson and Kreiger, and Aquinnah town officials. Ms. Sullivan explained the rationale for placing the antennas in the church steeple, while Aquinnah officials argued against the project based on the town's setback requirements, the church's historical significance, and their preference for another type of antenna system.
Attorney Sullivan got right to the point, telling the commissioners, "Cingular contests the Martha's Vineyard Commission's jurisdiction in this matter at all." In addition to the DRI referral not being timely, she said, the project should not have triggered a referral in the first place.
A question of location
Aquinnah's Planning Board rejected Cingular's proposal last October on the grounds that it violated the town's zoning bylaws, which prohibit wireless communication facilities within 500 feet of any residence and within 1,500 feet of a playground or school. The church is located in close proximity to a playground and the Aquinnah library.
The town's selectmen referred it to the MVC as a development of regional impact (DRI). On Nov. 2, Cingular Wireless protested the denial as unlawful in two lawsuits filed against the town in state Land Court and the U.S. First District Court in Boston.
The company claimed that Aquinnah violated the Telecommunications Act (TCA) of 1996, a federal law that limits the obstacles towns may place in the way of wireless communication companies seeking to provide service where there is a lack of coverage.
Cingular argued that the project's denial was rooted in the supposed health effects of radio frequency emissions, and that the TCA expressly barred towns from rejecting a wireless facility site based on those grounds.
The district court judge stayed the proceedings until August 31, recommending that the MVC complete its DRI review by that time.
The hearing, round one
The project is a challenging one for the MVC to review, said Mark London, MVC Executive Director. "We cannot approve something that is in contradiction to the town's zoning bylaw, based on our mandate," he explained. Mr. London told the commissioners on July 20 that he would consult with MVC counsel about whether there were any aspects of Aquinnah's zoning bylaw that might be based on health considerations and could be overturned by the TCA.
Christina Brown, chairman of the MVC's Land Use Planning Committee (LUPC), ran the hearing in place of MVC Chairman Linda Sibley, who abstained from the proceedings because she sells Cingular phones at her store, Vineyard Electronics.
As Ms. Sullivan explained in her hearing testimony, the 1996 TCA covers everything dealing with the transmission of data through cell phones, including photos and text messaging. Since many people use their cell phones exclusively, Ms. Sullivan said they expect the clarity of those calls to be similar to ones made on landline phones. The primary need for the Aquinnah site is to provide seemingly "seamless" coverage by an overlap in transmission areas, she added.
Ms. Sullivan explained that Cingular evaluates cell phone coverage areas in need of improvement based on customers' complaints. In looking at Aquinnah's bylaw, Cingular was unable to identify any town-owned parcel that met the criteria for the antenna placement, so the church steeple was judged to be one of the best locations. This would not be the first church steeple on the Island to contain an antenna, as the Stone Church in Vineyard Haven already has one.
No Disney MV
The Baptist Church was established in Aquinnah in 1693 and is considered the oldest Native American Baptist Church in continuous ministry in the United States. Its congregation is down to about six year-round residents, who could use the $1,500 a month Cingular would pay to lease the steeple space to keep the church going.
"Our intention is not to replace the entire spire," Ms. Sullivan explained. "We would replace shingles where necessary, because the signal does not travel well through wood, up to the top of the spire. Structural support would be added to go up the spire on the inside, with fiberglass material replacing the section where the antenna will be housed."
Ms. Sullivan said Cingular and other cellular phone companies have located antennas in many buildings listed on the State Historical Register. When requested, the original materials are stored and maintained so they can be put back in place if a carrier withdraws from the site, she said. Ms. Sullivan also emphasized that Cingular Wireless is willing to have other carriers co-locate their antennas in the steeple as well, space permitting.
"The issue is whether this development in the steeple of a historic building is appropriate," said Camille Rose, an Aquinnah selectman and planning board member. Changing the church steeple "to something like a Disney World artificial structure" will only lead to a proliferation of these, she warned, "whether they are disguised as palm trees or flag-poles."
Weighing the options
Instead, Ms. Rose and planning board member Peter Temple made a case for an alternative, the distributed antenna system (DAS). Last December, Aquinnah voters approved changes in the town's zoning bylaws designed to pave the way for cellular phone companies willing to use a DAS. Less obtrusive, the DAS does not rely on high towers and instead uses fiber optic cable and a network of short antennas, which most often are placed on telephone poles in strategic locations.
"Our aim is to have coverage without having towers, and possibly benefit other parts of the Island, as well," Ms. Rose said. Doug Sederholm, MVC vice chairman and Chilmark commissioner, questioned why it was not possible to allow both the Cingular project and the DAS.
"The development of a DAS depends on regional impact," Ms. Rose said. "We need Chilmark and they need us. And there will be potential for all of the major carriers to be involved. It needs to have everything in place."
In response, Mr. Sederholm told her, "In a way, you're trying to kill this project, so you can go into DAS based on 'critical mass.'"
Ms. Rose denied that the planning board's original decision against Cingular's project was based on preference for the DAS alternative but rather on the zoning setbacks. The DAS, which uses a lower-strength signal, also offers a compromise to town residents who are not convinced that cell phone signals will not be harmful to their health, Ms. Rose said. She also believes the DAS would provide more coverage than a church-based wireless antenna system.
Jim Powell, West Tisbury commissioner, pointed out that the Gay Head Baptist Church members are trying to preserve their building through something that will financially benefit the church and wondered whether a DAS would provide them any income.
Ms. Rose said that although she could not answer his question accurately, it was the town's intention to make sure the church does benefit, perhaps as a location for one of the DAS nodes.
John Breckenridge, Oak Bluffs commissioner, asked whether the town would run the DAS. Ms. Rose said the town has several options, such as licensing a management company to run it or bonding it, constructing it, and selling it outright. The town also could rent space for a base station.
Mr. Breckenridge pointed out that Aquinnah's advocacy for DAS may be tied to its potential financial benefits.
With the commissioner's approval to continue the hearing, Ms. Brown said in conclusion, "We all have issues about good cell phone coverage and how best to provide it on the Island." She suggested it would be a good idea to hear from Chilmark and West Tisbury in addition to Aquinnah, as cell phone coverage is a regional issue.
