Know Your Options When It Comes to Siting on Ski Areas in Vermont
Telecommunications infrastructure is critical for ski areas, both to ensure service to resort customers increasingly reliant on mobile devices, to support business operations at the mountain, and because of the strategic value of installing a wireless site at a high altitude overlooking dense residential areas and heavily-travelled roads. The constant demands of changing infrastructure can create both opportunities and challenges for the ski area industry.
Is the ski resort required by law to accommodate telecommunications towers at ski area summits?
In Vermont, four mountaintops are designated by law as requiring access for communications uses by public and private entities: Mt. Ascutney, Burke Mountain, Okemo Mountain, and Killington Mountain. 10 V.S.A. § 2606a. Although not designated by statute, a series of long-term lease arrangements with University of Vermont resulted in several towers being situated atop Mt. Mansfield. Ski areas in the Green Mountain National Forest managed by the United States Forest Service also have designated areas requiring access to communications providers, usually pursuant to a federal special use permit that can be tied to a subagreement among multiple communications users.
Where a ski area is subject to a long term lease with the State of Vermont, state statutes and policy documents authorize and encourage the ski area to sublease space for telecommunications infrastructure as long as (i) a consent to sublease and/or access agreement is obtained from the Vermont Department of Information and Innovation (which is typically reviewed by the Vermont Department of Forest, Parks and Recreation, as well as other agencies); and (ii) the sublease must not be inconsistent with the terms of the existing ski area ground lease. If the infrastructure is to be situated on private ski area property, there is no requirement to make the land available.
If the ski area installs or upgrades its own communications system on the mountain, does its Act 250 permit need to be amended?
Generally speaking, Act 250 permits encumber most ski areas in the State. Act 250 Rule 34 provides that no material or substantial change may take place to an approved project plan without prior approval from the District Environmental Commission. A general exception exists for repair or routine maintenance of telecommunications, or for a tower replacement project where such replacement does not constitute a substantial change (for towers built prior to 1997 that did not require a permit), or for a substantial / material change if the tower was subject to an Act 250 permit and built after 1997. 10 VSA 6086(m) and (n). The Commissions have differed on exactly what constitutes a substantial or material change to a communications system.
As to a new communications system at a ski area (including outdoor Distributed Antenna Systems or DAS starting to be installed out west), Act 250 jurisdiction will apply if the infrastructure involves new antenna support structures of at least 50 feet (or antenna extensions 20 feet or higher from existing structures), and any infrastructure situated above 2,500 AMSL, independent of amendment jurisdiction under Act 250 Rule 34. Excluded from the definition of “construction of improvements” (i.e., the general trigger for jurisdiction) is a system where the owner / operator can demonstrate that an exception is “de minimis” and “will have no potential for significant adverse impact” under the Act 250 criteria. Act 250 Rule 2(C)(3)(c). “De minimis” is nowhere defined in the Act 250 rules, but provisions of municipal zoning law allow “de minimis” determinations to be made by zoning administrators for communications projects on a case by case basis.
A wireless provider wants to install antennas atop a gondola building at the summit – does that create safety concerns?
The owner/operator should approach this issue very cautiously with the communications provider. The Vermont Passenger Tramway Board (“Board”) is responsible for making safe the operation of ski tows, ski lifts, and passenger tramways, including through reasonable design and construction. 31 V.S.A. 701. Under the Board’s regulations, any modifications or changes to the design or specifications of a chairlift needs to be submitted for Board review three weeks prior to making the changes. Vt. Admin. Code 13-4-10:1004. From past experience, the Board may approve the antenna design, but will want to first receive assurances that the applicable standards for tramways are not compromised, and that any warranty on the equipment is not voided through the infrastructure attachment. The operator may want to split or require full payment of the communications provider for any cost of inspection by the Board, for after the attachment is approved.
A long term communications lease at the ski resort is being renegotiated. What provisions should be included to make sure the tower does not disrupt area operations?
- A renegotiation can be a perfect opportunity to ensure that old leases or licenses take ski area operations and requirements into account. Key provisions to consider include:
- Procedures for winter / non-winter access (including charges for use of snowcats and chairlifts)
- Approval rights for laying new underground or above-ground fiber or electrical cables so as to avoid problems with trail grooming
- Ensuring that permit restrictions relating to wildlife habitat are observed by communications crews
- Reserving space on the support structure for ski area antennas or equipment
Providing guarantees for removal of obsolete infrastructure
- Aesthetic or safety (fencing / locking) changes to mountaintop compounds where feasible
- Notice and rent sharing provisions for future collocations
A new tower being proposed in the area is going to be visible from several slopeside condominiums – how will that affect property values?
The answer to this issue can be counterintuitive. Neither of the two state permitting process for communications towers — Act 250 and Section 248a – will typically consider property values as a valid criteria to deny a project. Moreover, in case after case brought by infrastructure providers in the federal courts following denials of permits, judges have found that the presence of communications towers tend to cause no diminution to property values in surrounding areas. These expert opinions are borne out to a large degree by the fact that assessors’ offices in VT have not reduced values on the tax rolls solely based on a the presence of a tower nearby. And the Vermont Supreme Court very recently reaffirmed that something that might be an eyesore to some does not give rise to a private action for nuisance.
With that said, there are always opportunities to work with infrastructure providers to improve the aesthetic impacts of a project, including through landscaping, repositioning projects on a particular parcel where feasible, and even stealth technologies in some cases. Since providers are trying to improve service for customers visiting or living near recreational areas, providing input at public hearings or through the public comment process can result in better overall siting for all involved.
A wind developer built a meteorological tower at the summit – can the ski patrol use the tower for a microwave link to the base lodge?
Meteorological or “met” towers are structures used for anemometers and other weather-measuring equipment, often situated at mountain peaks or other areas suitable for wind. Under current statute, a met tower must be removed after three years absent an extension. 30 V.S.A. 246. However, a met tower can be converted to communications uses if an antenna installation is made within one year of the conversion, and all anemometers removed. This can be a useful way to allow for additional vertical real estate and concentration of uses where a summit becomes crowded. Once converted, the met tower can be used for communications indefinitely—including by commercial carriers, wireless internet service providers, and the ski patrol — but the anemometers must be removed.