North Hampton debate: Should town take homeowner’s land to fix cell phone dead zone?

Angeljean Chiaramida

NORTH HAMPTON — Residents spoke out Monday night for and against a petition that would have the town take privately-owned land by eminent domain to improve cellular service in North Hampton.

The Select Board is weighing whether to take a slice of Ron and Lori Cotter’s land at 168 Mill Road, against their will, for an easement so the town can construct an access road to reach town-owned land to install a cell tower.

The easement would provide a 25-foot permanent access road, taking an additional ten feet over an existing 15-foot Aquarion water easement, to get to the town’s land-locked parcel behind the Cotter’s home.

The Select Board made no decision Monday and continued the hearing until Feb. 2 at 7 p.m.

The Cotters weren’t able to be at the meeting, sending their attorney, Chris Hilson, to speak. Hilson challenged the legality in this case of the town’s use of the state’s eminent domain statute for access to a cell tower.

Previous story:North Hampton dead zone: Town may use eminent domain on homeowners’ land to add cell tower

Eminent domain gives the government the power to take private property, or in this case an easement on private property, even if the owner doesn’t want to sell, for a “public use” as long as the owners receive “just compensation.”

Hilson said eminent domain is for public use, not so the town can access a piece of land it intends to lease to a private company to erect a cell tower and earn money. That’s the town entering into private commerce, Hilson said, not meeting a public need itself. According to Hilson, that would make the town a “landlord for private commerce to make money.”

“It’s not a local municipality’s obligation to provide cell coverage,” he said. “That’s a federal mandate for the (private cell phone) carrier as a condition of their licenses. Under New Hampshire law you cannot condemn property (take by eminent domain) for private business purposes.”

The public hearing came as a result of a petition from 11 residents calling for the town to take the land by eminent domain. The need for a cell tower in North Hampton is long-standing and well-known.

None of those who attended Monday night’s public hearing disputed there are significant cell dead zones along parts of Route 1, Atlantic Avenue and at the beach. In those dead zones, it’s difficult if not impossible to make a cell phone call, even in emergencies.

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According to Fire Chief Jason Lajoie and Police Lt. James Russell, the lack of cell phone coverage in those areas constantly results in dropped calls during emergencies to hospitals, doctors and other safety agencies, as it did during a recent fatal car accident. The lack of service causes risks to the public when minutes count, they told the Select Board, something they see as a significant safety risk. They encouraged the Select Board to proceed with the eminent domain process.

The town’s cell tower consultant, David Maxson, highly recommended the land behind the Cotter’s property as the best tower placement for a number of reasons, including its location, height and remoteness and projected cell signal coverage.

Residents speak in support of petition

Several residents spoke in favor of the eminent domain taking.

Dr. Brian Hyett said he loses calls from his home because of failing cell service. As a doctor often called to perform life-saving procedures, he frequently doesn’t get emergency pages, he said, and his calls to the hospital are sometimes dropped.

“I have to leave my home to get reception,” said Hyett.

Hyett added as a father he worries about lack of cell service should his daughter have an emergency while she jogs around their home.

Valerie Gamache, who lives in the Atlantic Avenue dead zone area, said she witnessed her neighbor with Alzheimer’s disease struggle during a recent power outage. Gamache said he was in the middle of the road trying to flag down cars asking for help.

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“I’m just trying to live in my neighborhood and feel safe,” said Gamache, adding she was “sorry for anyone who’ll have any pains” as a result of the land taking.

Joe Constagna discussed the general importance of cell reception in today’s world.

“In this day and age … it’s quite embarrassing that we cannot get cell reception,” he said. “I can’t tell you how many hours I sit in my village square parking lot taking phone calls from my family because I can’t get cell reception at my house on Atlantic. I trust you all in the easement approach … I believe it’s that significant an issue.”

Many object to eminent domain taking

By and large, however, most in the room came to express their distaste for eminent domain, if not by speaking then at least by their applause when others condemned it.

Jim Avallon said to him eminent domain is only for direct public use projects, like public roadways, water pipes etc., “not for cell service.” Avallon said he was “extremely wary” of eminent domain, finding it “frightening.”

“It’s a tool of the powerful and influential,” he said. “I urge you to vote against it.”

James Nash said he “gets it,” cell service is the norm. But he wanted to see the reports that stipulate taking the Cotter property is the only and best available option.

“This will affect the integrity of Lori Cotter’s mother’s home,” he said. “The public should be able to see the results.”

Arthur Nadeau told the board he remembered when as a child his home in Berlin was taken by eminent domain. He experienced the demolishment of his home as a crushing blow, he said, adding this taking will run right beside the Cotter’s pool.

From the archives:Cell tower ruled out on school property

Kathleen Kilgore said 33 percent of North Hampton is owned by the town. She wanted an explanation on why other properties wouldn’t work, and that taking the Cotter’s land is the only option the board is pursuing.

“This is life-altering to this family; I ask you to think about that,” she told the board. “The town’s people need to think about this, too. It could be our land next.”

Wally Kilgore added that although he doesn’t know the Cotters he considers them his neighbors as residents of North Hampton.

“If they don’t want it, that’s good enough for me,” he said. “This is not the will of the people.”

Kirsten Larsen Schultz said the eminent domain taking is not as “clear cut,” as it’s being laid out by the board.

“I want cell service like everyone else, but there are a lot of smart people in this room and there has to be a better way to do it than by eminent domain,” she said, adding it’s easy to say since North Hampton needs cell service it’s fine to take a neighbor’s land.

“And I challenge anyone,” Schultz continued, “if you agree to this then I’m going to assume that you’re OK with an easement on your property.”

Are there any other options?

Mill Road resident John Cannon asked why the Select Board were considering eminent domain, instead of the use of other town land.

Larson Schultz asked if town-owned parcels off Shiprock Road and Squier Drive were considered as possible cell sites. According to the petition, two of the residents who signed the petition to take the Cotter property live on Squier Drive.

Select Board Chairman James Sununu said the board investigated all options for siting a cell tower on town land. He believes the easement across the Cotter’s land is the best option.

“We’ve looked at the town’s other properties and possible ways,” Sununu said. “We think this is the most efficient way and the most accessible.”

Others in the audience seemed doubtful, however, wanting to see the surveys and written reports on the board’s investigations of other properties. Sununu said there are no such reports.

DTC Welcomes it’s Newest Member, Christopher Hawkins!

DTC is proud to announce Christopher Hawkins as the firm’s newest member.
Chris has been with DTC since 2021, bringing with him over 20 years of
experience. Since joining DTC, Chris continued his focus on representing clients
on issues of malpractice and professional liability, professional discipline and
licensing, construction, municipal law, environmental concerns and other issues.
Chris is involved in the firm’s technology committee, and is excited about
helping to drive the firm forward and be a part of its continued success. Please
join us in congratulating Chris on this achievement!

Attorney Chris Boldt is back on Stage in Shakespeare’s Twelfth Night

Chris rejoins Advice To The Players, Sandwich’s own Shakespeare company, for their 2021 season finale – Shakespeare’s Twelfth Night or What You Will, the Company’s 4th annual holiday production.  This year’s Twelfth Night will be performed by a 50+ cast of experienced professional and local actors, and will be filled with your favorite holiday songs between scenes.  Chris will be playing the “hopeless romantic” Count Orsino as well as the “drunk uncle” Toby Belch.  This production will be a hybrid.  Zoom performances will be on December 11th at 7:30 and 12th at 5:30 , while “live” performances will be on December 18th at 7:30 and the 19th at 5:30 at the Sandwich Town Hall Theater.  In-person performances will be masked, limited seating available.  The in-person performances will be performed in an oral interpretation style at music stands, to allow for distancing of actors.  Tickets to this production are available for reservation online at or by calling 603-284-7115.  The suggested donation for tickets is $15.

Attorney Robert Ciandella Retires After 40 Years of Service to his Client

After 40 years of practicing law, Rob Ciandella has retired effective July 1, 2020. Rob wrote in a letter to his clients:

“Practicing law has been consistently rewarding and interesting. Practicing law has also introduced me to people like you, who are “in the arena” and looking to make things happen in this world. Finally, practicing law here at the Firm has put me in the mix of a rich, collegial atmosphere. I am deeply grateful for it all.

Now is my time to turn to other pursuits. I will bring to what comes next all that I have learned from my experience practicing law and servicing clients. Thank you for helping to shape that experience.”

Please join all of us in wishing Rob and his wife Debbie the best in many years of a well-earned retirement ahead

How to Protect Your Healthcare Wishes During the COVID-19 Pandemic

With many people in isolation due to COVID-19, and those that are deemed “essential employees” being put at risk, you may wonder how you can create legal documents regarding your health care and best protect yourself and your family with proper “social distancing.” You may be surprised to find out that you can execute healthcare estate planning documents now while maintaining social distancing and without needing the formality of a notary. What are these healthcare documents and why are they so important at a time like this?

First is a New Hampshire Advanced Directive, which allows you to appoint an agent to handle medical decisions should you be incapacitated and unable to communicate on your own or are unable to make medical decisions. It is a two part document comprising of (1) a Durable Power of Attorney for Health Care in which you (the “principal”) appoint an agent to handle your medical decisions while honoring what you would want if you had capacity to make the decisions and (2) a “Living Will”, by which you may authorize two physicians or a physician and nurse practitioner to make end-of-life decisions.

These do not kick in unless a physician determines that you do not have the capacity to make health care decisions or to communicate. Once the Durable Power of Attorney for Health Care has been activated, your agent takes over and makes decisions that you have authorized your agent to make.

It is important to have a Durable Power of Attorney for Health Care in place because the general rule is that physicians and nurses must treat unless told otherwise. There may be situations in which you would not want to be kept alive. An agent, if authorized, may agree to a “Do Not Resuscitate” Order. If the patient is near death or in a persistent vegetative state, an agent may, if authorized, decline artificial feeding and hydration, can make decisions not to start medical treatment or, if it has been started, to discontinue it. Your agent will have all of the powers that you have to make medical decisions, including continuing care, if that is appropriate.

The “Living Will” is a separate part of the Advance Directive. It allows you to authorize two physicians, or one physician and a nurse practitioner, to make end-of-life decisions for you. You may like having this option; it is like an additional backup, in case the agents that you name cannot make decisions for you. Or, you may decline to execute the Living Will, preferring instead to leave your health care decisions to the agents you appoint. Either choice is fine, but taking steps to execute at least one part of this document is important.

A statute, effective January 1, 2014, made minor changes to the Advance Directive form. If you do not have an Advance Directive, or if you have not updated your Health Care Advance Directive within the past six years, you should consider executing the updated form.

The second important document is a HIPAA Release, named after the 1996 Health Insurance Portability and Accountability Act, which allows you to name people that you trust with your health information to talk with healthcare providers, even before the Advanced Directive kicks in. If you are in the hospital and want family members or trusted friends to be able to find out how you are doing, sometimes the hospital may require those people to be named in your HIPAA Release before disclosing information about your medical condition. A HIPAA Release will protect your health information from disclosure to people that you do not want to have it. It also enables the people you name to be able to help with follow-up care, appointments, etc.

Now, you may be wondering how to execute these healthcare documents while taking precautions in the middle of the COVID-19 pandemic. The New Hampshire Advanced Directive can be executed without a notary and with just two disinterested witnesses, meaning two people that are not named in the document to act as your health care agents. Those two witnesses can watch you sign the New Hampshire Advance Directive, and then sign themselves, at least six-feet-apart with proper sanitization measures in place to limit exposure.  Our practice during the pandemic is to have clients sign in the comfort of their car while we watch them sign through the windows and then our witnesses sanitize their hands and sign the documents outside, or, if inclement weather, sign across from each other while wearing masks at a large, disinfected conference table.

The HIPAA Release does not require witnesses or a notary to sign. If you have to go to a hospital or doctor’s office, you can fill out and sign the “in-house” HIPAA Releases there. Many hospitals and medical practices make their HIPAA “Authorizations” available directly on their websites to fill out and return by mail or fax, and others may enable you to download their HIPAA Release form through a “Patient Portal”.

With proper social distancing and proper sanitization, you can protect your healthcare wishes during this uncertain time with an Advanced Directive and HIPAA Release.

By Elaina Hoeppner, Esq. and Katherine B. Miller, Esq.

COVID-19 Message from Donahue, Tucker & Ciandella, PLLC to Firm Clients and Visitors

As the COVID-19 (Coronavirus) situation evolves daily, Donahue, Tucker & Ciandella, PLLC continues to take every measure possible to protect the well-being of our employees, clients and visitors. We have developed a plan and are working to ensure that we will continue to meet our clients’ legal and business needs. The firm has secure technology to enable our attorneys to work remotely and both attorneys and staff to remain accessible to you throughout this challenging time. We are monitoring the situation daily and will adhere to recommendations from WHO, CDC and our local health organizations and government officials.

Your emails and calls will be responded to in a timely manner as we continue to conduct our business. We recommend if emailing, you include both the attorney and the staff person you have been working with.

Please do not hesitate to reach out if we can be of assistance or if you have any questions. You can reach all our offices through our main line at 603-778-0686.

DTC Lawyers – Dedicated To Clients.

Attorney Kate Miller to Give Presentation on Federal Law Risk Management and Telecommunication Law Update

DTC Partner Katherine B. Miller will be speaking on November 14, 2019, at the conference of the Northern New England chapter of the American Planning Association, at the Mount Washington Hotel, in Bretton Woods, NH. Kate will be on a panel with New Hampshire planners, discussing updates to federal laws that planners should know about. Kate will be covering telecommunications law, including recent changes in federal rules on permitting wireless communications facilities, including granting them access to public rights of way. Her Power Point Presentation is included here.

Kate is the Chair of the Telecommunications and Utilities Practice Groups at DTC.