Cell tower dispute flares in New Fairfield
Robert Miller, Staff WriterSunday, January 9, 2011
STATE OF CONNECTICUT
COURT OF PROBATE ESTATE OF GORDON MERRITT
November 8, 2010
ATTORNEY GENERAL’S MEMORANDUM IN OPPOSITION
TO TOWN OF NEW FAIRFIELD’S APPLICATION
FOR AN ORDER CONSTRUING
WILL CONTRARY TO CHARITABLE
INTENT EXPRESSED IN THE WILL
AND PROPOSED USE FOR
MUNICIPAL RADIO TOWER
Pursuant to his mandate under Conn. Gen. Stat. § 3-125 to represent the public interest in the protection of gifts, bequests, and devises intended for public or charitable purpose, the Attorney General submits this memorandum of law to show that the land leased to the Town of New Fairfield by the YMCA of Western Connecticut and Eastern Putnam County, Inc. (the “Leased Property,” leased to the “Town” by the “YMCA”) (1) is impressed in perpetuity with the charitable purposes stated in the Will of Walter Gordon Merritt (the “Merritt Will”), (2) that the the Property can be used only for those beneficial purposes expressed in the Merritt Will, and (3) that the overbroad construction of the Merritt Will sought by the Town and the proposed use of the land for a municipal radio tower and radio equipment shed are inconsistent with the express beneficial purposes of the Merritt Will and, therefore, contravene Connecticut law.
The case in the Connecticut courts
The owners sued the city in Connecticut courts, arguing that the city had misused its eminent domain power. The power of eminent domain is limited by the Fifth and FourteenthAmendments to the United States Constitution. The Fifth Amendment, which restricts the actions of the federal government, says in part that "private property [shall not] be taken for public use, without just compensation"; under Section 1 of the Fourteenth Amendment, this limitation is also imposed on the actions of U.S. state and local governments. Kelo and the other appellants argued that economic development, the stated purpose of the taking and subsequent transfer of the land to the New London Development Corporation, did not qualify as public use. The Connecticut Supreme Court heard arguments on Dec. 2, 2002. The state court issued its decision (268 Conn. 1, SC16742) on March 9, 2004, siding with the city in a 4-3 decision, with the majority opinion authored by Justice Flemming L. Norcott, Jr., joined by Justices David M. Borden, Richard N. Palmer and Christine Vertefeuille[8]. Justice Peter T. Zarella wrote the dissent, joined by Chief Justice William J. Sullivan and Justice Joette Katz[9].
NEW FAIRFIELD -- If you see bumper stickers in town with the legend WWWMD -- What Would Walter Merritt Do? -- don't be surprised.
For decades, Merritt bought land on the western side of town and in Sherman, calling the eventual 890 acres Great Hollow. [COULD THIS BE THE LOCATION FOR THE SHERMAN CELL TOWER, AFTER NEW FAIRFIELD BREECHES THE INTENT OF THE MERRITT WILL?]
In 1968, he gave the land to Wesleyan University with the express intent of creating a wildlife sanctuary.
Today, the town is leasing 26 acres of that land from its present owner, the Regional YMCA. First Selectman John Hodge insists it is the only logical place in town to build a 180-foot tower needed to fill serious gaps in this hilly town's emergency communications system.
"This is the spot,'' he said.
Opposing Hodge are a group of residents who believe building a tower in Great Hollow goes against Merritt's wishes. [PERHAPS SHERMAN RESIDENTS SHOULD BE COUNTED AS OPPOSING THE WISHES OF JOHN HODGE]
They also say the land -- part of the Quaker Brook and Haviland Hollow watershed area -- needs to be protected from development.
Once Merritt's will is broken, they contend, courts will allow more things to be built on the land he intended to be preserved as open space.
"He'll be able to do whatever he wants with it,'' town resident Steve Roe said of Hodge.
The dispute has entered the dueling litigation stage. In one of his last decisions as a probate court judge, Judge William DeFeo ruled Dec. 8 that the town could build the tower on the land without breaking the intent of Merritt's will, saying Merritt allowed use of the land deemed to be in the public interest.
The state attorney general's office disagrees.
In November, it issued a 16-page opinion opposing the tower plan. On Friday, it appealed DeFeo's decision, calling it "overly narrow,'' "incomplete'' and "erroneous.'' Hodge claims the town was blindsided by the attorney general's office, which encouraged the town to seek a decision from the probate court, then opposed it when it got there.
An appeal of DeFeo's ruling could take months, even years, to resolve, he said.
"It's putting all our responders at a disadvantage,'' he said, adding that town's emergency communications system reliably covers about 60 percent of the town.
Hodge said the town has looked at every possible alternative site for a tower, going through two consultants and two vendors. Other sites, he said, are inaccessible or would sit atop scenic ridge lines.
No one in town opposes the fire, police and emergency services getting a better communications system.
"I regret the delay in emergency communications to our town responders, most of whom I know personally,'' said Dr. Peter Rostenberg, leader of the Friends of the Quaker Brook Haviland Hollow Watershed and a committed opponent of the tower.
Rostenberg says things can be improved without breaking Merritt's will.
Donald Graiff, who has been a consistent critic of Hodge's plan to build the tower, said a tower already exists at the northern end of Putnam Lake, just over the New York line.
Graiff, a radio frequency consultant who works on cell phone projects, said that tower has space available for New Fairfield's emergency system.
It would be higher than the tower the town plans to build, giving the town more coverage. It would save the town the cost of building a new tower, while providing similar service to the western side of town.
"There's space at the top,'' he said. "It's ready to go."
However, Hodge said Motorola Inc., which is supplying the town with the new communications equipment, has studied the Putnam Lake site.
"They said it does absolutely nothing for us,'' Hodge said. "Believe me, if it did, the town would be there.''
Other critics say the real reason Hodge wants to build a 180-foot emergency communications tower in Great Hollow is to rent space on the tower to cell phone companies.
That way, they said, Hodge can avoid dealing with the state Siting Council, which controls where cell towers can be built in the state.
"That's what he's wanted to do there (at Great Hollow) since 2004,'' Roe said. "He wants to put a cell tower there.''
Hodge acknowledges that getting cell companies to pay for space on a town communications tower isn't a new idea to him.
New Fairfield already does that with an existing emergency communications tower near the firehouse, which earns the town about $140,000 a year.
Hodge said has spoken to the YMCA about the town buying the rest of the Great Hollow land. His plan, he said, was to build the tower, lease space on it to cell companies, and use the revenue to finance the purchase of the open space.
But, he said, if people are bothered about leases to cell companies, he'll gladly forego them to get the tower built.
"I'm willing to given them up,'' he said.
However, critics like Roe are skeptical.
"That's his spin,'' Roe said.
Rostenberg said an emergency communications tower at Great Hollow is still a violation of the way Walter Merritt wanted his land used.
"This is at heart an effort to develop this land,'' Rostenberg said. "It's developed as far as it needs to go right now. It's preserved land.'' [NOW ANOTHER QUESTION COMES TO MIND REGARDING ASSESSMENT AND TAXES ON SUCH LAND, ESPECIALLY WHEN THE PROPERTY TAKES ON A COMMERCIAL CHARACTER. OH BUT THAT'S NOT A PROBLEM ... BOGUS HILL GIRL SCOUT CAMP HAS A CELL TOWER ... THE POINT IS THAT MAKING SAUSAGE IS AN UGLY MATTER. ]
Contact Robert Miller
at bmiller@newstimes.com
or at 203-731-3345.
Read more: http://www.newstimes.com/default/article/Cell-tower-dispute-flares-in-New-Fairfield-947458.php#ixzz1Af1YO7uW
For decades, Merritt bought land on the western side of town and in Sherman, calling the eventual 890 acres Great Hollow. [COULD THIS BE THE LOCATION FOR THE SHERMAN CELL TOWER, AFTER NEW FAIRFIELD BREECHES THE INTENT OF THE MERRITT WILL?]
In 1968, he gave the land to Wesleyan University with the express intent of creating a wildlife sanctuary.
Today, the town is leasing 26 acres of that land from its present owner, the Regional YMCA. First Selectman John Hodge insists it is the only logical place in town to build a 180-foot tower needed to fill serious gaps in this hilly town's emergency communications system.
"This is the spot,'' he said.
Opposing Hodge are a group of residents who believe building a tower in Great Hollow goes against Merritt's wishes. [PERHAPS SHERMAN RESIDENTS SHOULD BE COUNTED AS OPPOSING THE WISHES OF JOHN HODGE]
They also say the land -- part of the Quaker Brook and Haviland Hollow watershed area -- needs to be protected from development.
Once Merritt's will is broken, they contend, courts will allow more things to be built on the land he intended to be preserved as open space.
"He'll be able to do whatever he wants with it,'' town resident Steve Roe said of Hodge.
The dispute has entered the dueling litigation stage. In one of his last decisions as a probate court judge, Judge William DeFeo ruled Dec. 8 that the town could build the tower on the land without breaking the intent of Merritt's will, saying Merritt allowed use of the land deemed to be in the public interest.
The state attorney general's office disagrees.
In November, it issued a 16-page opinion opposing the tower plan. On Friday, it appealed DeFeo's decision, calling it "overly narrow,'' "incomplete'' and "erroneous.'' Hodge claims the town was blindsided by the attorney general's office, which encouraged the town to seek a decision from the probate court, then opposed it when it got there.
An appeal of DeFeo's ruling could take months, even years, to resolve, he said.
"It's putting all our responders at a disadvantage,'' he said, adding that town's emergency communications system reliably covers about 60 percent of the town.
Hodge said the town has looked at every possible alternative site for a tower, going through two consultants and two vendors. Other sites, he said, are inaccessible or would sit atop scenic ridge lines.
No one in town opposes the fire, police and emergency services getting a better communications system.
"I regret the delay in emergency communications to our town responders, most of whom I know personally,'' said Dr. Peter Rostenberg, leader of the Friends of the Quaker Brook Haviland Hollow Watershed and a committed opponent of the tower.
Rostenberg says things can be improved without breaking Merritt's will.
Donald Graiff, who has been a consistent critic of Hodge's plan to build the tower, said a tower already exists at the northern end of Putnam Lake, just over the New York line.
Graiff, a radio frequency consultant who works on cell phone projects, said that tower has space available for New Fairfield's emergency system.
It would be higher than the tower the town plans to build, giving the town more coverage. It would save the town the cost of building a new tower, while providing similar service to the western side of town.
"There's space at the top,'' he said. "It's ready to go."
However, Hodge said Motorola Inc., which is supplying the town with the new communications equipment, has studied the Putnam Lake site.
"They said it does absolutely nothing for us,'' Hodge said. "Believe me, if it did, the town would be there.''
Other critics say the real reason Hodge wants to build a 180-foot emergency communications tower in Great Hollow is to rent space on the tower to cell phone companies.
That way, they said, Hodge can avoid dealing with the state Siting Council, which controls where cell towers can be built in the state.
"That's what he's wanted to do there (at Great Hollow) since 2004,'' Roe said. "He wants to put a cell tower there.''
Hodge acknowledges that getting cell companies to pay for space on a town communications tower isn't a new idea to him.
New Fairfield already does that with an existing emergency communications tower near the firehouse, which earns the town about $140,000 a year.
Hodge said has spoken to the YMCA about the town buying the rest of the Great Hollow land. His plan, he said, was to build the tower, lease space on it to cell companies, and use the revenue to finance the purchase of the open space.
But, he said, if people are bothered about leases to cell companies, he'll gladly forego them to get the tower built.
"I'm willing to given them up,'' he said.
However, critics like Roe are skeptical.
"That's his spin,'' Roe said.
Rostenberg said an emergency communications tower at Great Hollow is still a violation of the way Walter Merritt wanted his land used.
"This is at heart an effort to develop this land,'' Rostenberg said. "It's developed as far as it needs to go right now. It's preserved land.'' [NOW ANOTHER QUESTION COMES TO MIND REGARDING ASSESSMENT AND TAXES ON SUCH LAND, ESPECIALLY WHEN THE PROPERTY TAKES ON A COMMERCIAL CHARACTER. OH BUT THAT'S NOT A PROBLEM ... BOGUS HILL GIRL SCOUT CAMP HAS A CELL TOWER ... THE POINT IS THAT MAKING SAUSAGE IS AN UGLY MATTER. ]
Contact Robert Miller
at bmiller@newstimes.com
or at 203-731-3345.
Read more: http://www.newstimes.com/default/article/Cell-tower-dispute-flares-in-New-Fairfield-947458.php#ixzz1Af1YO7uW
