By Suzanne Hodgson

Staff Writer

 There’s long been music in the air over Lower Village in Kennebunk, but a new 10-story telecommunications tower disguised as a  flagpole has neighbors singing a different tune.

 “The noise is close to unbearable,” said Lower Village resident Tera Khalsa. Residents and commercial property owners are upset over the sight and constant noise from the flag and think the town pushed the tower through without adequate notification.

The new tower went up over one week in the middle of July, much to the dismay of residents and commercial property owners in Kennebunk’s Lower Village business district – including WBACH, a classical radio station that has been told it will use the tower to transmit its signal.

Khalsa says neighbors on either side of him received abutter’s notices in December that a new flagpole was being erected in the village. Khalsa is not an abutter, but can still see the flagpole from most windows in his house.

Khalsa said he and his neighbors thought nothing of the flagpole notice because an average flagpole is about 20 feet high.

“It’s an American flag flying and I have a lot of respect for the American flag,” Khalsa said.

A few months later town officials notified the public that the flagpole was going to be more than 100 feet, but didn’t require a public hearing.

“Now there’s a 125-foot white elephant in the room. We continue to be told they’re in their full right, they meet zoning regulations,” said Bonnie Clement, owner of H.P. Provisions in the Lower Village and a member of the Lower Village Committee.

 “We are looking to change the ordinance, but in the meantime we have to follow what’s in the books,” said Caroline Segalla, Kennebunk’s planning and codes director.

The new telecommunication tower, located at 169 Port Road, has antennas for the radio station, Kennebunk’s public safety communication needs and three places for wireless service providers.

The tower stands on property owned by Village Marketplace LLC, managed by Maureen LeClair. Village Marketplace LLC leased the property to Navigator Properties, also known as Mariner Tower, an independent developer and manager of telecommunications towers headquartered in Lower Village and owned by Louis Vitali.

Since reaching the lease agreement in April 2009, Mariner has offered free space on the antenna to the town and donated $10,000 to purchase outdoor equipment to house the town communications equipment.

Mariner Tower also has three contracts with cell phone providers to use the tower: ATT Mobility paid $38,000, T-Mobil paid $45,000 and Verizon Wireless paid $68,000 for leases. Money from these contracts was used for the $280,000 construction costs of the flagpole.

Vitali could not be reached for comment on the tower and residents’ complaints.

The town’s land use ordinance specifies that telecommunication towers less than 125 feet tall are allowed in the Lower Village, must be used as an accessory to principal use of the lot and be used by a neighboring business for private use.

The new flagpole has a diameter of 2 1/2 feet and just shy of 125 feet high.

An overview prepared by the Mariner Tower says the single pole tower was constructed to replace a pre-existing multiple-use communications tower that carries the radio station’s studio-transmitter link, which has been in operation since 1991.

Anthony Gervasi Jr., senior vice president of engineering and technology for Nassau Broadcasting, WBACH’s owner, said he “just found out” about the tower and was “surprised and taken aback” by the devlopment.

WBACH’s current tower is 55 feet high and located on the back of its building.

Gervasi said the station is conducting an internal investigation into the episode.

“No one from Nassau Communications signed any permits. I know because I would have been the one signing it,” Gervasi said.

Gervasi said he only became aware of the new tower recently when he received a letter from the station’s landlord that WBACH would be required to move its signal from the old tower to the new tower.

“It doesn’t improve the signal. [There] is no need for it,” Gervasi said.

Chris Smith, owner of Ocean Exposure in the Lower Village, said he sent code enforcement officer Paul Demers an e-mail asking for an explanation why the tower was less than 100 feet from his home.

Smith said Demers told him the tower was being zoned as a flagpole in the Lower Village Business district and setbacks were required for 5 feet in front of the pole, 10 feet on the sides and 20 feet at the rear.

 “The town engineer said it can’t fall. I was told it could withstand 100 mile-per-hour winds for up to five minutes straight. But my question is what happens if it blows for 10 minute straight. You know how bad the winters can be up here when we get those Nor’easters and whatnot,” Khalsa said.

Khalsa said a playground is less than 50 feet from the base of the pole and it gets very busy in the spring and fall.

“I think there are some problems with the ordinance but currently the town hasn’t gotten me answers to satisfy my questions. Personally I feel a little obligated to dig into this,” said Smith.

 “This is not an issue of ‘not in my backyard.’ It felt like bait and switch. That tower is not a replacement for a 50-foot tower, fact is it was bait and switch,” said Clement.

Segalla said there is little the town can do now that the tower has been completed. She said she is working with its owner to define when the flag will be raised and to reduce some of the noise. The flag makes a constant flapping noise and when the flag is not up, the rope bangs against the hollow pole and sounds like a bass drum.

“Take it to a wooded area with a drop zone, that’s what we’d want to see done,” Khalsa said.