Re: Montpelier Broadcasting, Inc., #5W0396-2-EB (Revocation), Memorandum of Decision April 5, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Montpelier Broadcasting, Inc. #5W0396-2-EB (Revocation) MEMORANDUM OF DECISION This decision pertains to motions filed by Montpelier Broadcasting, Inc. (MBI) and Contel Cellular of Vermont, Inc. as general partner of Vermont RSA Limited Partnership (Contel) filed with the Environmental Board concerning the Board's decision dated February 17, 1994 that revoked Land Use Permit #5W0396-2-EB. For the reasons explained below, the Board has determined 1) to deny Contel's motion to intervene and 2) to allow use of the access road by foot, snow machine, and all-terrain vehicle to service the tower and associated equipment. I. BACKGROUND On June 18, 1992, MBI was issued Land Use Permit #5W0396-2-EB (the Permit). The Permit authorized MBI to replace an existing 110-foot high broadcast tower for its radio operations; to construct a 12- by 28-foot, one-story equipment building; and to construct minor improvements to the existing trail that provided access to the tower site. On February 17, 1994, the Board issued a decision revoking the Permit. In summary, the Board found that grounds for revocation existed, pursuant to Board Rule 38(A), because MBI had submitted inaccurate and incomplete information to the District Commission in connection with its permit application, and that the failure to disclose the following was either willful or grossly negligent, or both: a) MBI's lease arrangement with Contel; b) Contel's ownership of the equipment building; c) that the purpose of the building at the tower site was to house Contel's equipment; d) the existence of cooling and dehumidifying equipment and compressors in the building; e) the scope and extent of the road improvements; and f) a reasonably accurate estimate of the costs of the proposed road improvements. The Board also found that MBI violated the Permit by not obtaining a permit amendment prior to making unauthorized changes in the project, and that MBI violated the rules of the Board by not disclosing its lease with Contel. In its February 17 decision, the Board revoked the Permit and prohibited any further use of the access road or the equipment building until MBI receives a permit amendment authorizing such use. The Board also ordered MBI either to apply for a permit amendment authorizing construction of improvements to its right-of-way, along with a plan for stabilizing the road, or submit a plan to the District Commission to stabilize and restore the road to allow for its return to its condition prior to the recent improvements. On March 11, 1994, the Board received a letter from Michael Marks, attorney for Tina Mueller and Rocco Deleonardis, the Petitioners in this proceeding, stating that the Petitioners are selling their property, which adjoins the tower access road, to Contel, and are therefore no longer parties to these proceedings. II. DECISION On February 25, 1994, Contel filed a Request for Clarification and in the Alternative Motion for Stay. On March 16, MBI filed two Motions for Stay and Clarification with respect to the Board's order concerning the equipment building and the access road. On March 28, Contel filed a Motion to Intervene. The Board deliberated on March 29, 1994 by conference call. A. Contel's Request for Clarification and Motion to Intervene Contel was not a party to the Permit or to the revocation proceedings and accordingly has no standing to file a motion with or be heard by the Board. Subsequent to filing the request for clarification, on March 28 Contel filed a motion to intervene and be granted party status. The Board recessed the hearings in this matter on October 7, 1993 at the close of the hearings. Subsequently, parties filed proposed findings of fact and conclusions of law, and the Petitioners filed several motions. The decision was issued on February 17, 1994. Attorneys for Contel attended the prehearing conference and several of the hearings in this proceeding. When asked if Contel wished to seek party status, they stated they were there "only as an observer" and did not seek party status on behalf of Contel. The Board believes that Contel had ample opportunity to seek party status in this proceeding and that Contel's request, coming more than five months after the hearings were completed, is too late. Accordingly, we deny Contel's motion to intervene. We note that the concerns stated in Contel's motion to intervene were also raised in MBI's motions and are addressed in this decision. B. MBI's Motion for Stay and for Clarification On March 16, 1994, MBI filed two motions seeking clarification of the Board's decision with respect to the equipment building and the access road to the tower. The Board treats these motions as motions to alter under Board Rule 31(A). 1. Access Road In its revocation decision, the Board found that due to the steep grades and compacted surface of the access road, surface runoff has caused serious erosion of the road. MBI contends that it should be able to use the access road to the tower by foot, snow machine, or all terrain vehicle, as those were the historical means used to reach the tower prior to improvement of the road. MBI submitted an affidavit from its engineer stating that "use of the improved access road by foot, snowmobile, or all terrain vehicle at the intensity of use required for servicing of the tower will not pose a threat or risk to the environment nor cause any undue erosion." The Board believes that MBI's request to use the access road by lower-impact vehicles is reasonable, provided that the road is not used while it is muddy this spring. Accordingly, we will allow use of the road for maintenance and monitoring of the tower and associated equipment at the tower site by foot, snow machine, or all terrain vehicle, except during the time that the road becomes muddy from spring thaw. 2. Equipment Building MBI contends that Contel uses the equipment building to house extensive electronic equipment, and it is concerned that shutting the climate control equipment will result in extensive damage to the communications equipment. Although it could shut down the equipment altogether, that would result in the loss of mobile communications in Montpelier as well as the Interstate 89 corridor from Waterbury to Barre. Contel argues that the equipment building poses no threat of immediate irreparable environmental harm. While the Board is perplexed as to why Contel did not seek to raise these issues during the proceedings, it agrees with MBI that use of the building poses no threat of environmental harm, especially now that the Petitioners have sold their property to Contel and any noise emanating from the building will not be heard by anyone off-site. In light of this and our ruling allowing use of the access road by low impact vehicles to maintain the tower and associated equipment, we will allow use of the equipment building. III. ORDER 1. Contel's motion to intervene is denied. 2. Paragraph 4 of the Board's revocation order dated February 17, 1994 is modified to read as follows: 4. Land Use Permit #5W0396-2-EB is hereby revoked. Any further use of the road constructed under that permit is prohibited, except as follows: As long as snowpack covers the road, use by foot or by snow machine is allowed. Once the snowpack sufficient for travel by snow machine is gone, any use of the road is prohibited until the frost is out of the road and the road is no longer muddy or May 1, whichever comes first. Thereafter, use only by foot or all terrain vehicle is allowed on the road for access to the tower site for servicing the tower and related equipment. All terrain vehicles must have large tires with low inflation, and may have a trailer attached. Dated at Montpelier, Vermont this 5th day of April, 1994. ENVIRONMENTAL BOARD /s/s/ Robert Opel _________________________ Robert Opel, Acting Chair Ferdinand Bongartz* Lixi Fortna Arthur Gibb Steve E. Wright * Former member Ferdinand Bongartz participated in this decision pursuant to 3 V.S.A. § 849. a:mbi.dec (S8)