Planning Board Minutes 10/16/07

MINUTES OF October 16, 2007 REGULAR MEETING of the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.

Meeting was called to order at 7:00 PM by the Chairman, Steven L. Fornal.

PRESENT: ABSENT:

Steven L. Fornal, Chairman Shane Ricks Robert Godwin, Alternate (not required to attend) Robert Gaydos

Anthony Ullman

Melvyn I. Tapper

Nadine D. Carney, Vice Chair

Anthony Kawalchuk

Also present was Town Planner, Jan Johannessenn of The Chazen Companies.

Pledge to the Flag

PUBLIC HEARING

HOMELAND TOWERS, LLC– c/o Snyder and Snyder, Special Use Permits/ Site Plan Approvals for 100 Airport Road (Property owned by Town of Rochester, Tax Map #69.3- 2-37, R-1 District) and Route 209 (Property owned by Town of Rochester, Tax Map #76.1-3-17, R- 1 District), for wireless communication facilities consisting of 150’ monopole within 3,000 square foot compound on each site

Robert Gaudioso of Snyder and Snyder and Manny Vicente, President of Homeland Towers were present on behalf of the application. Also present on behalf of this application was Greg Leahy, their engineer from Tectonic.

Mr. Gaudioso gave a brief history and a presentation of the project. Essentially Homeland Towers has worked for some time with the Town of Rochester, Town Board, in particular, on creating a wireless infrastructure plan. They reviewed the existing signal levels. Wireless carriers throughout the Town confirmed that there was significant gaps in wireless service, specifically along the Route 209 corridor and they worked with the Town to identify potential locations and ultimately came to the conclusion to minimize the number of towers and locate them in alternative locations and minimize the overall impacts while being able to provide the infrastructure to wireless communication companies to come and co-locate on the towers. The Town Board did study the proposal and issued a Negative Declaration pursuant to the lease agreement and issued a lease agreement and signed off on certain waivers from the Zoning Ordinance that had been previously presented to the Planning Board. With that, Homeland Towers presented two (2) applications to the Planning Board. Each application for Site Plan Approval and Special Use Permit Approval for two (2) sites within the Town.

PUBLIC HEARING

HOMELAND TOWERS, LLC(cont’d)– c/o Snyder and Snyder, Special Use Permits/ Site Plan Approvals for 100 Airport Road (Property owned by Town of Rochester, Tax Map #69.3-2-37, R-1 District) and Route 209 (Property owned by Town of Rochester, Tax Map #76.1-3-17, R-1 District), for wireless communication facilities consisting of 150’ monopole within 3,000 square foot compound on each site

Mr. Gaudioso continued that the first site being at the northern portion of the Route 209 corridor, being at the Transfer Station off of 100 Airport Road. The second site was location off of Route 209 at the southern portion of the Town essentially on the sand and gravel mining property again owned by the Town. Each facility consists of a proposed 150’ monopole, which is a thin profile support structure for future co-location of antennas, together with a 3,000 sq ft. gravel, fence enclosed base for the future co-location of the accessory equipment. They did submit site plans on both of those items. They submitted numerous documents throughout the process, including the full site plan and the application forms, the Environmental Assessment Forms (EAF) as were revised a few times as based on the planner’s comments. A Visual EAF, confirmation that no FAA lighting was required at either facility, confirmation that even with the facilities fully built out that they would be in compliance with Federal requirements for Radio Frequency Emissions. And they were actually well below Federal standards. They also submitted Methodology for a proposed balloon test and did post public notice for these balloon tests over two (2) consecutive days. Since that time they have submitted visual renderings of proposed facilities at each site. What they did was render the facility with a full build out and they rendered it in different colors. The three (3) colors that they showed were essentially a standard galvanized color, a painted light blue and a painted brown color. The Planning Board Members had these in their packages.

Since the last time they met with the Board, they were answering more comments both the Planning Board and the consultants had. Just to go through those briefly: On the Route 209 Site as they previously indicated, they were able to relocate the access drive to be able to avoid the man made water body on the property. They will be crossing the non-regulated stream that is a man made drainage ditch of an indentation from the mining activities with a 24” pipe. They were able to submit to the Board the Phase 1 Archeological Studies which have been submitted from the State. Actually the consultants who reviewed the site said that it had a potential impact for Archeological sensitivity and they did both a background records research and actual test pits at the site. They did that for both the site and the relocated equipment access drive and submitted that as part of the package.

There were some comments at the last meeting specifically on the issue of the boundary survey. The surveyor went out to double check and see if the fence was on the property line and it was on the property line and they confirmed that and cleaned up the site plan in that instance.

On the Route 209 site this was required to go to the County (Planning Board). The County asked for addition information that they provided to them and they came back again and wanted some additional clarification, so they provided to the Planning Board some additional visual analyses and most importantly of a copy of the wireless infrastructure plan that had to be presented to the Town Board early when they started this whole process. So, that now has made the application complete with that.

On the Airport Road site, some of the comments were particularly concerning the access drive. Originally they tried to minimize the grading to the access drive and would have been in the range of a 20% slope. So, with that they re-engineered the proposed extension of the gravel access drive and were able to bring it down to a 15% slope and submitted a driveway access profile on that and actually revised that profile again to show the grading

PUBLIC HEARING

lines on the profile. So, they were able to happily report that they could make that change. They submitted the visual analysis as well on that site. They also submitted all of their filings with the NYS DEC because the Airport Road site is a closed landfill, so they did seek DEC approval of the location of the facility. It’s not on the landfill, it’s adjacent and they are using an existing access drive on the edge of the landfill. They submitted those materials to the DEC and he was happy to report that the DEC did sign off on that today. That is somewhat independent of the Planning Board, but he knew that the consultant had asked for that documentation and supplied a copy of that letter to the Planning Board.

So, essentially they made all the changes that were requested both by the Planning Board and throughout the comments of the Town’s Planner. They responded to the County Planning Board on the Route 209 Application and they submitted all the documentation to support that. He’d be happy to answer any questions that the Board or public may have and as he mentioned their engineer was also present for questions.

Chairman Fornal asked if the Board members had any questions.

Mr. Ricks had a couple. Regarding coverage— Mr. Ricks had CELL ONE service and he noted that when he comes down Route 209 he starts getting service by the A & G Furniture place and usually have it until he gets just passed Kerhonkson. Mr. Gaudioso said that there were gaps of coverage on the Route 209 corridor. So, what kind of gaps – would he now get service further north or south? Because he seems to get service all along Route 209.

Mr. Gaudioso noted that it was his understanding that AT&T had the only facility in the Town and that was located basically to the west of the proposed sites. It’s a very low tower…

Mr. Ricks stated that this was on Rochester Center or City Hall Road.

Mr. Gaydos confirmed that it was on City Hall Road.

Mr. Gaudioso noted that AT&T was really the only major carrier. And just to take a step back as way of a background to answer Mr. Ricks’ question fully. What the FCC did in the telecommunications act was to say that all the carriers that have licenses are permitted to provide coverage and municipalities can direct them and they can have Zoning Regulations to pick the locations, but essentially at the end of the day there needs to be wireless service and in Congress’s mind that’s a good thing. So, with that background the Town looked to provide infrastructure for more carriers. AT&T already has that site to the south; the idea is that the two (2) site on Route 209 would be able to provide that particular coverage throughout most of the Town except for one small area.

Mr. Ricks believed it was somewhere in the Samsonville area. A lot of people have been asking him about that because they’ve seen the Public Hearing and they asked if they’d get coverage and he said he didn’t think so.

PUBLIC HEARING

Mr. Gaudioso responded that the topography and the report they submitted talks about that. So they decided to put these facilities in and provide the coverage and then try and provide something specific to that area if it’s warranted. Rather than overbuild the system, lets build what we know is necessary and see what it says. To answer Mr. Rick’s specific question, he didn’t mean to beat around the bush—he just wanted to give the background—is that if they put AT&T on that northern site, it should be able to provide coverage further up. That’s the idea and why the sites are spaced out like they are, to be able to provide seamless coverage throughout.

Mr. Ricks questioned how much further south of Kerhonkson would it cover?

Mr. Vicente noted that both sites will cover from one end of the Town all the way to the other end of Route 209. They did drive tests on both sites that will show that’s what will be covered. It’s going to cover most of the Town. There was an area in Samsonville north of that.

Mr. Ricks wanted to know how far south on Route 209 it would cover.

Mr. Vicente replied it would go all the way down in the hand off site in the next Town of Ellenville.

Mr. Ricks noted that right now there is a bout a 4-5 mile dead spot through there.

Mr. Vicente commented that this was one of the flaws of the existing tower site in the Town. Because it doesn’t cover that area because it’s too far off of Route 209. The idea behind the planning and the goal in working with the Town is to provide a maximum amount of coverage with a minimal amount of structures and to locate them in places that wouldn’t be obtrusive. He felt that they were lucky in this case to find properties where they could do this. They are spaced apart perfectly. They are 6-7 miles apart which is exactly what you want. And it will cover Route 209 from one end of Town all the way to the other, reliably and seamlessly. As they get into the ridge area—they are in the center of a valley, which is a good thing because the signal propagates off of both sides of the ridges west and south. Once they get into the terrain on the other side of those ridges where it dips down, that’s where the signal starts to deplete and have problems. Not knowing how the impact of that area of Town would be in, they decided in their recommendation to the Town that it would be wise to build two (2) sites to provide maximum coverage first, understanding that they still may have a problem in that area, but not planning a third site immediately because they aren’t sure the difference it will make. The coverage shows that that area does get covered, but their question is how reliable that coverage will be in that area.

Mr. Ullman questioned if the applicant had contract with carriers now?

Mr. Vicente stated that they can’t negotiate contracts with carriers until they have approval from the Town. They executed leases this summer with the Town and started working with carriers and have commitments from Verizon and they’ve and Dobson Cell One, which is AT&T. They’ve had discussions for AT&T to go on both sites as well.

PUBLIC HEARING

Mr. Ullman questioned if it was anticipated that those would be the two (2) carriers?

Mr. Vicente noted that they have also been in discussion with T Mobile and they are in a funding decision for next year and they are also in discussion with Sprint/Nextel. Sprint/Nextel has said that this year they don’t’ have any funding for the site, and they are currently thinking about next year. Homeland Towers can’t make the decisions for those companies, but by making the infrastructure available, they are giving them a place to go when they are ready. Right now AT&T and Verizon have made decisions to move forward. The other two (2) aren’t there yet.

Mr. Ullman questioned if everything goes accordingly, when did they expect to have the towers up and running?

Mr. Vicente stated that should they get approval from the Planning Board, they would be working to put together a building permit application and once they get the building permit, they’d have to order the pole and try and get local contractors. Construction time frame of once they get their building permit would be about three (3) months.

Mr. Ricks questioned if they would be addressing the Ulster County PB recommendation?

Mr. Gaudioso noted that he did touch on that and the recommendation was just for the Route 209 site. The materials they requested they just did present to the Board. They just received the UCPB recommendation yesterday. They presented the additional analysis on the sections they noted and as far as the alternative analysis, although they had a disagreement on the applicability of the analysis, they did submit that.

Mr. Tapper questioned if the poles shown in the visual analysis were completely filled up?

Mr. Gaudioso stated yes. They did them with all of the antennas five (5) carriers and full build outs. To hit on that point—it’s obviously to the Board’s discretion—but to pick the colors. They provided the different colors in the visuals. These are things to think about. Route 209—the Town Board and consultants dictated locations for them, but they tried to pick locations (for the visual renderings) where they’d get a good view. If you look at a lot of those locations, Route 209’s are either silhouetted or looked down upon from a higher elevation. And therefore they think the brown in practicality would work better. It’s just the opposite on Airport Road. It’s on a little bit of a knoll and the most visible view points look up on it and therefore they think a galvanized color would be the better alternative. That is just the applicant’s perspective and they don’t care one way or the other, but having gone over the alternative and going over the analysis and having the balloon test and having some experience in this area, that’s just the applicant’s opinion.

Mr. Tapper questioned if whether they would have different colors to choose from for each pole?

PUBLIC HEARING

Mr. Gaudioso noted that they could do brown on Route 209 and galvanized on Airport Road. What he has seen done and it looks terrible is a multi-colored pole. It doesn’t work the way you might think.

Mr. Tapper agrees with the colors that the applicant suggested.

Mr. Gaudioso noted that when there is essentially a brown/green or a dark background, darker poles look better and its not 100% of the time, but it’s just a majority of viewpoints. And on the other site the background is generally the sky, so something like the Navy does—when they paint they’re ships gray to disappear. So, that’s the theory there.

At this time Chairman Fornal opened the hearing to the public.

Francis Gray of Kerhonkson was recognized to speak. He noted that he wanted to address this as a Town Board member, a member of the Town and as a member of the communications sub-committee. They worked very hard on the committee to get Time Warner to provide much more coverage. They actually went out and did there marketing and that didn’t work, so what they did was started to look for other alternatives. And they did check several other alternatives and some would require individual homes would have to have a receiving mechanism—some kind of antenna. And they went to some tower manufacturers and talked to Benders and they weren’t interested. They could not move them. They finally were in touch with Homeland Towers and they’ve done a tremendous job in Mr. Gray’s opinion of putting together a package that accommodates most, if not the entire Town. And he would urge the Planning Board to expedite this anyway they could. There is the safety factor and folks up back who will never qualify for the Time Warner service and its just not fair, so he’s asking the Board to expedite this as rapidly as they could. He thanked the Board.

Next to speak was Gene Dutka speaking on behalf of his family who owned property at 6050 Route 209. The thing that he didn’t love and he was actually surprised was that the process was much further along than he anticipated. They received a notice two (2) weeks ago about this meeting. They knew that sites were up to being considered for tower service. But it seemed that two (2) of the sites that just happen to be acceptable just happen to be owned by the Town, and this gentleman says that they were dictated by the Town as far as location. Most municipalities are avoiding these types of Towers. No one wants these in their back yards or at adjoining properties. It does have negative effect on property values. Usually every effort is made to exhaust the use of existing structures and buildings like the Hudson Valley Resort and water towers, church steeples. It makes the tower less evasive and obtrusive. Has every possibility of using existing structures been used throughout this area? Again, both sites have to be owned by the Town. He didn’t feel comfortable with that in relation to the legitimacy of the process. His parents’ own 73 acres adjacent to the (Town’s) mining operation. Where could they tell them as far as setback how far that would be away from his property line? It was hard from him to tell from the map that was displayed for the Public Hearing, but it seemed very close.

Mr. Gaudioso wanted to take a step back to answer Mr. Lufeild’s question. The issue about the site selection, that was something that was decided about the Town Board and that is something that they were responsible for

PUBLIC HEARING

and took action on. Not to argue their point, but it made sense. The wireless carriers have the right to come in. there is a Federal Law that says they will come, they can come and they can site facilities. Instead of dealing by a site by site selection, the Town took a pro-active approach to reduce the proliferation of towers and encourage co-location by building the infrastructure to support the towers. As far as the setbacks, it is shown on the site plan and is shown that its 41’ to the compound to the wooded edge of the property and the tower is within that 3,000 sq ft compound.

Mr. Dutka felt that 41’ was outrageous. He knew that years ago there were laws that were set up as far as application process for communication towers. He couldn’t imagine that what was set out was a 41’ or even a 100’ setback. He questioned what the setback was in the law?

Mr. Gaudioso noted that the previous setback had been something that was included in the exemptions passed by the Town Board through the Monroe Balancing Test. There were certain aspects of the Zoning Code that were relieved. They came to the Planning Board first and then to the Town Board and they were passed.

Mr. Dutka reiterated that the first notice that they received as property owners came 2 weeks ago. They should have been included in that information as bounding property owners. He questioned what the setback was supposed to be?

At this time Councilman Gray spoke up and noted that the Town Board had a Public Hearing some time back. They put notices in all of the papers. They did not send notices to each individual land owners like the Planning Board does. They advertised it throughout the Town and in all of the local papers. He was surprised that Mr. Lufeild wasn’t aware of it. There was a lot of talk in Town.

Mr. Dutka questioned again what the setback that was required in the Law?

Mr. Ricks noted that it was supposed to be two (2) times the height, which in this case would be 300’.

Mr. Dutka stated that this was outrageous and he was certainly opposed to anything like that. A regular Variance process would require the notification of bounding property owners of what’s potentially the variance reduction is. A hardship has to be shown and usually the request can’t be substantial. That is overwhelming and was done without their knowledge.

Chairman Fornal noted that this wasn’t a variance, this was done through a different process.

Mr. Ricks questioned if the Board was sure under Town Law that they didn’t need a variance to vary that?

Chairman Fornal noted that it was done through the Monroe Balancing Test.

PUBLIC HEARING

Mr. Gaudioso noted that it was a whole separate process called the Monroe Balancing Test. But, again, going to the point of locating the facility compound in that corner—number one (1): take it out of the populational area out of the sand and mine pit and move it adjacent to the tree line to supply that better buffer.

Mr. Dutka stated that he was opposed to any tower without exhausting every effort to use it on an existing structure, because it does have a negative impact on property value no matter where you are. As a last resort you put up a tower, you could put it on a silo.

Mr. Gray got up to speak again.

Board members didn’t think that Mr. Gray should be speaking freely at this meeting as it was a Public Hearing and he wasn’t on the Planning Board. He should be recognized to speak and address the Board.

Chairman Fornal asked Mr. Gray to address the Board and noted that he shouldn’t respond to the public comment.

Mr. Dutka noted that Mr. Gray said that the Town doesn’t have any water towers. Well, the Town of Wawarsing does and is a short step away. And again, how do you get to 41’ from 300’ without making them part of the process? He didn’t understand how a Town Law could be set and changed without any consideration or any type of process?

Chairman Fornal noted that there was a process and there were public notices and during the balloon test also.

Mr. Gaydos questioned what process was it other than the Town Board giving a waiver?

Mr. Gaudioso noted that there was a Public Hearing that was heavily attended. It was at the other building and it was full. And there is a legal process and nine (9) criteria for the Town Board to go through and weigh.

Mr. Gaydos noted that apparently not everyone in Town new about it.

Mr. Vicente was sorry that Mr. Dutka wasn’t aware about any of this until now. And noted that one goal was to minimize the impact on neighbors and Homeland Towers was fine with putting the tower location in the middle of the site, but that would have interfered with the operations of the property and it was preferable to put it in a place where the natural site had the maximum amount of screening. There were other factors as well. As far as the process goes, he started talking with the Town back in February of 2006. He came to a dozen public meetings that were attended by many people—50-60 people from Town. They had a notice of Public Hearing for the Town to make the final decision for the lease agreement for those two (2) sites. They started the Planning Board process and this is their third meeting with this Board. They have gone through a lot of meetings and processing and planning information. They have done everything that has been asked of them and he apologized that Mr. Dutka was just finding out about this now, but this didn’t just happen over night.

PUBLIC HEARING

Mr. Dutka questioned if Town property was the only property that was explored for these tower sites?

Chairman Fornal noted that the current code does suggest that the top of the list—priority is for Town owned property for location.

Mrs. Carney wanted to noted that there were other people that wanted to speak tonight, and the Board would definitely note Mr. Dutka’s comments about site selection and not using existing structures and about how the waivers came about and they would get a response and get that out for the Board’s next meeting. The dialogue back and forth isn’t really part of the Public Hearing process.

Mr. Dutka noted that he and his family were pretty devastated to find out that it was proposed to be 41’ away from their property line. They didn’t like it to begin with, but where it should be 300’ and now its 41’? That’s not acceptable to him. They were completely against that and will do whatever he needed to in order to fight that.

Mrs. Carney reiterated that they would try and get the answers to address that.

Next to speak was Dave Bendell of 6120 Route 209. He also received notification two (2) weeks ago and although there were undertones that this was something that was going to happen, he thought it was nice to take the time to do the certified mailing to make people aware and he was as shocked as Mr. Dutka at how far along they were in the process. He just wanted to say that maybe a little more time for the public to gather their information and assist the Planning Board in making a sound decision. He wanted to see the alternative sites available. He didn’t want to be redundant, but didn’t realize how far along in the process this was and he wanted to agree with what Mr. Dutka had to say. Homeland could forward their apologies to him as well.

Adam Paddock of 4783 Route 209 was next to speak. He wanted to talk about the Airport Road site. He wanted to know what the distance was from the tower to the next property line.

Mr. Gaudioso went to the map and showed him to the closest rear property line it was about 48’. They were all delineated on the plan.

Mr. Paddock assumed that this site had the same variance that the other site had that was supposed to be 300’ (setback)?

Mr. Gaudioso noted that it wasn’t a variance it was technically the Town Board has the Legislative Body has the authority under a very specific case law under the highest court in New York State a Court of Appeals—called the Monroe Balancing Test. They are able to waive certain aspects of Zoning on Municipal property.

PUBLIC HEARING

Mr. Paddock wanted to voice his disappointment in what was going on here. The first time they get anything—they heard rumors about cell towers and what not, but this is 48’ off of his property line. He has two (2) small children at his house, he didn’t know who thought this was a good idea, but if this thing were to fall it would land in his yard.

Mr. Gaudioso apologized and noted that the back property line was also owned by the Town.

Mr. Paddock noted that it was owned by the Town, but there was a small easement between the site and his property line. He appreciated all the other people that this was the first time they were hearing about this. He’d heard some rumors, but this was right on his property and was too close.

John Post of 104 Airport Road wanted to find out about alternate sites as well. He was very much opposed to the project.

Carol Kelly of 19 Anna Street wanted to see if there was something that would show her where the Route 209 Tower was to be located on that property? She was here once before when the storage units were going up. She has the property right next to the storage units.

Mr. Gaudioso displayed where her property was in relation to the project.

Mrs. Kelly continued that when the storage units were going in, she had a concern based upon how she dealt with that at that time. One of the things that she was promised at that time was maintenance between that fence line between her house and the storage units. She doesn’t know what’s involved in this sort of maintenance, but she wondered if there was a long range look at this? She wanted to make sure that maintenance of the site was in the plans as well.

Mr. Gaudioso noted that Homeland Towers is responsible for the Tower, not the Town. There is a bonding provision for the requirements of maintenance.

Mrs. Carney had a question from the last meeting where the Board talked about the responsibility of the maintenance of the drive. Homeland Towers was going to be responsible for that?

Mr. Gaudioso noted that they originally understood that the Town would take responsibility. They were comfortable with the responsibility of maintenance being up to Homeland Towers as a condition of approval.

Mr. Johannessen questioned if there would be a yearly inspection of the structure?

Mr. Gaudioso noted that there was a provision in the code that required it every three (3) years and he believed that the National standard was every five (5) years. Again, if that is something that the Town wanted to put in as a condition of approval they would accept that.

PUBLIC HEARING

Mr. Johannessen questioned if those inspection reports would be provided to the Town.

Mr. Gaudioso responded that they would.

Mr. Ricks noted that he had asked at the last meeting Mr. Dukas’ concern that the tower being close to the property line. The Tower was to be located all the way at the rear of the Route 209 property?

Mr. Gaudioso noted that there was a zig zag.

Mr. Ricks’ asked this question last time. If it was moved directly south 250’ or so to give the property owners correct setbacks, on the site plan the whole field up there was level, so it wouldn’t affect reception at all.

Mr. Gaudioso didn’t think it would affect reception. That area was relatively flat as opposed to the Airport Road site.

Mr. Ricks questioned if their only valid reason for siting the tower in that location was to put it closer to a tree line?

Mr. Gaudioso noted that there were really three (3) reasons. The issue was decided by the Town Board. The Town Board exemptions specifically said this location.

Mr. Ricks wanted to know with just with that exemption they just wanted to arbitrarily put it right next to the property line.

Mr. Gaudioso noted that it wasn’t arbitrary.

This is what Mr. Ricks was trying to find out.

Mr. Gaudioso noted that the reason behind that theory was what they discussed before. He could even show him on the plan. Mr. Gaudioso displayed on the map of the Route 209 site where they were discussing. He showed Mr. Ricks that if they pulled the towers back away from that property line they would pull it away from the tree line.

Mr. Ricks noted that the tree line there wasn’t really screening—it’s down in a valley.

Mr. Gaudioso noted that by bringing it closer to the tree line it does screen it based on the angles.

Mr. Ricks noted that the location of that isn’t going to make a difference visually from Route 209.

PUBLIC HEARING

Mr. Gaudioso used Suburban Propane as an example and agreed with Mr. Ricks. He didn’t think that would make a difference either no matter what you do.

Mr. Ricks stated that if you were at the same elevation, but further away—

Mr. Gaudioso noted that the operation of the sand mine were the other reason.

Mr. Ricks understood that, but it’s quite away from where the sand mine operates.

Chairman Fornal noted that Highway Superintendent, Wayne Kelder definitely weighed in on that in terms of not wanting it to cut in to the mining operation.

Mr. Dutka was not recognized to speak but stated that Mr. Kelder was able to weigh in on that, but they weren’t as property owners and tax payers.

Mr. Gaudioso noted that again, there was a Public Hearing on that whole issue and there was a very thorough analysis and detailed resolution passed by the Town Board. It wasn’t arbitrary.

Mr. Ricks stated that they also brought the waivers to the Planning Board, which he didn’t vote for and that was one of the main reasons. He couldn’t see putting it to someone’s property like that. It just wasn’t right. It’s trampling on the man’s property rights. It wasn’t right.

Mr. Kawalchuk questioned why the Town couldn’t purchase the property that they needed to make the proper setback? Why isn’t there a taking to have the proper setbacks?

Chairman Fornal noted that it wouldn’t happen. Especially in the new code, there were no takings.

Mr. Ricks felt it was interesting that the new Telecommunications Law came into effect after the last cell tower went up. A lot of people were against it. Those people got together and the Town Board said, ‘hey you guys are against this, so why don’t you get together and write a new law?’. So they got together and they wrote the new law and now all of a sudden the new law is presented in front of the same people, and they don’t like the law that they wrote all of a sudden.

Chairman Fornal noted that that was completely anecdotal. He wanted to know who Mr. Ricks was talking about in particular.

Mr. Ricks wasn’t going to start using names.

Chairman Fornal reiterated that this was why he thought it was anecdotal.

PUBLIC HEARING

Mr. Ricks stated that it wasn’t right to waive those things. Especially against someone’s property rights.

Just so everyone was clear, Chairman Fornal noted that the process is it went through the Town Board, it went through the Monroe Balancing—that has been done and the Planning Board is to do what they have to do now and that has been done.

Jeff Davis of Whitfield Road noted that his property is not affected by this. To reiterate he was concerned with property owners that live adjacent to the properties in question. He appreciated the number of postings and Public Hearings, but felt that the adjacent property owners should have been notified sooner. He then also wanted to know if part of the process was to consider existing structures for tower locations.

Mr. Vicente noted that in answer to looking at existing structures. It was brought up and they looked to see if there were any in the Town that would allow them to co-locate and were suitable height. The Code encourages looking at Municipal properties, Fire Dept. property, non-profit properties. In the course of looking at these properties they found these two (2) that were well suited for what they wanted to do. They were the proper distance away from each other. They are large parcels and Municipal properties. It was almost the luck of the draw that they would have two (2) large properties like this exactly the distance apart that they needed. So, in a way they lucked out to have these types of properties at this distance apart to accommodate not just one (1) carrier, but to accommodate industry and public safety. They did go through a course of looking at existing structures—other than the existing tower in the Town, which is really situated up the hill too far in proportion to Route 209, there weren’t any. He wanted to make sure that people understood that they didn’t come to these properties arbitrarily.

Pam Duke, Town Supervisor, was recognized to speak. She noted that four (4) years ago when she came into office, the number of people who came in requesting internet access was just incredible. The Board didn’t know how to figure this out and so they started from the very beginning and Mr. Gray had already articulated exactly what the Board went through. Its not a very easy decision and nor did they want a cell tower to be near someone’s property, but no matter where they put it or where its located, it will still be near someone’s property. As Mr. Vicente just said that they did an extensive study and they have the book of all the places they looked and to their delightful surprise it was on Town property. This Board’s goal is to have service for the entire Town of Rochester and this is something that they know that these two (2) towers may not be able to go the distance that they want them to go, but this is something that the Town Board wants very seriously to have. They weren’t just talking about cell service. They were talking about internet access and safety. All of us who know when we are driving along these roads and can’t get cell service and there is an accident or whatever—it’s very difficult. She felt badly for the properties next door, but this is very needed.

Mr. Dutka questioned who had the right to use the Monroe Balancing Act? He wondered would it be such a quick stroke of the pen if a private property owner wanted to do this.

Chairman Fornal answered that it was for Municipal only.

PUBLIC HEARING

Mr. Gaudioso stated that the Monroe Balancing Test—previously to this case the courts would look at whether there was a governmental interest that the municipality was proposing or a proprietary interest. So if they wanted to build an ice skating rink for people to have fun, it was probably a proprietor interest. If it was for public safety or governmental process, and therefore it was exempt from zoning. That got very difficult because the lines became cloudy. Other states and other locations had used a different test, a balancing test. So the Courts said that there were certain properties under this law that were absolutely exempt from Local Zoning. Things like that are school districts and Federal Government. There are other entities like Counties and Municipalities and water districts and fire districts that depending on balancing tests, they may or may not be exempt from Local Zoning and there’s criteria in the balancing test. There are nine (9) criteria. So a Municipality that is proposing something on its own property, whether its in its own Town or an neighboring Town. Sometimes there is a County project that is within a Town. Sometimes there is a Town Project that’s within a neighboring village. The host Municipality, this time the Town of Rochester, its Board can undergo an analysis. The Board can undergo the analysis and it can say that lo and behold this type of facility if it meets this criteria, can be exempt from Zoning, because of the owner of the property being a municipality. So, to answer the question, a private land owner would not be subject to that test. Rochester wireless also had exemptions for a public utility infrastructure. The facilities have also been designed and the lease agreements have been formed that public service entities also be allowed on this tower as well. So, theoretically there was a strong argument that these towers were exempt because of that in and of itself, but never the less the Town Board held the Public Hearing and went through the rigorous Monroe Balancing Test and passed a very detailed resolution of those criteria.

Mr. Dutka then asked, if you knew a Town had available property and they are preserving the usage of the mining, they get to preserve that, but a tax payer has to suffer the negative effects of that waiver.

Mr. Gaudioso noted that Town Board’s are the legislative body in the Town and they pass regulations. They pass Zoning Regulations and when its their property, they have the power to waive those regulations. They can change a private properties’ Zoning and change the Zoning Code. That is a similar type of effect. Its not the Monroe Balancing test, it’s a different process. And in this case, there is a process and that’s what was followed. Again, it wasn’t arbitrary. It was after considerable amount of review, analysis, and documentation.

Mr. Ricks noted that what Mr. Gaudioso was talking about was the same thing that came back in the UCPB Referral. They questioned the Monroe Balancing Test because in this instance the Town owned the land, but Homeland Towers owned the tower and facility, therefore the County Planner raised the question if the Town had the ability to waive the requirements under the Monroe Act?

Mr. Gaudioso stated that this was a good question. Certainly outside the scope of this referral, this has been an issue to be raised with the Town Board. Also, the Planner has the Law completely wrong. There is case law directly on the point. Recently again, the Court of Appeals, the highest Court in NY STATE, there was a battle with a tower company in New Rochelle. They built towers on State property. The Town brought them to Court and the Court said, “no, no, no—they’re exempt from Zoning.” The Town went back to Court and the Town

PUBLIC HEARING

said, “what about the private antennas?” The Court said, “No, even the private antennas. That exemption is to the land owner and it extends.”. This is nothing new. There is cases on the Monroe Balancing Tests—there’s a case down in Elmsford where a homeless shelter was sued by the Village of Elmsford and they won. Even though it was a private entity, it received funds from the County and was on County property and the Court did the test and said that the homeless shelter, a purely private function was exempt from Local Zoning. Industrial Development Agencies where they give developers money to build very undesirable things like asphalt plants and things of that nature have been held to also be entitled to that exemption. So, the County Planner, unfortunately, his legal analysis is completely off base, not only with respect to its applicability here, but on the underlying basis.

Chairman Fornal stated that the Town Attorney also said the same thing.

Mr. Ricks didn’t see anything from the Town Attorney in all the papers.

Mr. Dutka noted that it seems to appear self serving where they will sacrifice the safety of a property owner, but Town isn’t making the sacrifice for public safety, the property owners are. The property owners are getting the burden of the Negative Impacts. He didn’t like what he was hearing today.

Don Dunn was recognized to speak. He had a cell phone that he paid good money for. If this building caught on fire, he couldn’t call the Fire Dept. He’s also paying $175 per month to Time Warner, for his cable, internet, and telephone. Verizon has the same package for $75 cheaper, but there is no competition here because Verizon doesn’t have a tower.

Pam Duke was recognized to speak again. She noted that the other aspect that the Town Board looked at and that she’d like to mention is that there are a lot of businesses that are in homes and a lot of folks can’t work out of their homes because they don’t have internet access, so this was another basis for economic development in the Town.

Chairman Fornal requested a motion to close the Public Hearings.

Mrs. Carney wanted to know if the Board was going to provide a response?

Chairman Fornal noted that the response is that the fact of the matter is that Monroe Balancing that they Town Board went through, is completed.

Mr. Ricks wanted to discuss the remainder of the County Referral before they closed the Public Hearings. The things regarding the recommendation on the visual impact analysis. Did the County see that?

Mrs. Carney noted that it wasn’t completed when the County did their comments, but it is completed now. Mrs. Carney wanted to leave the Public Hearing open if only to see if there is at all an option to increase the distances

PUBLIC HEARING

to the property lines to see if its still an option that’s viable. And to see if there is any way the Planning Board can address these concerns. If it comes back ‘no’, at least they left the opportunity available because that is something that was just brought to the applicants attention and to the Town Board’s attention tonight.

Chairman Fornal noted that we’ve known about that 41’ setback for a while.

Mr. Ullman questioned what additional analysis was left to be done?

Mrs. Carney wasn’t asking for analysis, she was just asking to bring it up as an option.

Mr. Ricks stated that the thing that surprised him is that they’ve seen the application and things are on super high speed. They have all the impacts here, and everything has already been printed out and already done before they even held the Public Hearing which is usually they go from the Public Hearing and that’s where they hear from the public what the impacts are and then Part 3 (supplied from the applicant) would be written up after that. He was a little surprised to have that ahead of time, even before the Public Hearing.

Mr. Johannessen (Town Planner) noted that he liked to have those documents prepared ahead of time so that the public can comment on this material and then they can be amended.

Mr. Ricks noted that never in the past has the Board had this ahead of time.

Mrs. Carney noted that this is just a draft and nothing that they’ve accepted or voted on yet on the Part 2 or Part 3.

Mr. Ricks noted that he’s all for having the cell towers, but his biggest concern is the property rights of the adjacent owners.

Chairman Fornal noted that this was good to hear.

Chairman Fornal read letter dated October 4, 2007. The name was not able to be made out, but it was located at 173 Airport Road. This person was against the towers for health and safety reasons along with the potential for land value decreasing as a direct result.

Mr. Gaudioso wanted to comment on Mr. Ricks request to go over the County Recommendation. He noted that this was in a report that was just submitted. That report has been previously submitted to the Town Board where they looked at different locations and to confirm the signal level throughout the Town and to basically create an infrastructure based on different alternatives. That was a big part of the Town’s record for well over a year now. The County for the first time—previously the County had comments from the first month, which didn’t include this, then Homeland submitted the Visual Analysis that they had requested and now they came back with an additional thing and they submitted that as well. That analysis is part of the Town’s record. What the County

PUBLIC HEARING

said is that should be submitted to the Planning Board and that is this Board’s jurisdiction. That was the County’s recommendation.

Mr. Ricks noted that the County’s Recommendation’s last sentence states that “The Town’s Planning Board has the responsibility to address alternative’s analysis under SEQRA.”.

Mr. Gaudioso thought again that the County Planner was a little misplaced in the law. The alternatives become relevant at a completely different stage in the process. Never the less it’s a moot issue because the alternatives have all been looked at just to get to this point. That was the whole infrastructure. That’s different. Working to create a plan as opposed to having an application come before the Board, like the AT&T application that happened that created a stir because there was no plan involved. It was proposed by a cell phone carrier where they came in and essentially jammed a site down the Municipality’s neck. Whereas here the Town Board worked to create a plan and looked at the alternatives and worked to create a plan and looked at the existing infrastructure and lack of signal and worked to create a plan which resulted in these two (2) applications.

Mrs. Carney noted that basically the Town Board did their own SEQRA. They gave it a Negative Declaration. When you do that alternatives aren’t required. If you give a project a Positive Declaration, alternatives are required as part of that process.

Chairman Fornal read letter dated October 9, 2007 from Alice Cross, Chairperson of the Town of Rochester Historical Preservation Commission. She noted that the Town would certainly benefit from these towers as a community resource. She thanked the Planning Board for the careful research in this matter. Their opinion is that the two (2) locations were suitable and would not have negative impacts on the visual environment of the Town in general and the historic properties in particular.

The Chairman requested a motion to close the Public Hearings.

Mr. Ullman motioned to close those Public Hearings. Seconded by Chairman Fornal.

Vote:

Fornal- Yes Ullman- Yes

Gaydos- No Carney- No

Ricks- No Tapper- No

Kawalchuk- No Godwin (alt.)-not required to participate

Vote: 5 opposed and 2 ayes

Mrs. Carney noted that she would like a response from Homeland Towers if it would be possible to move the towers any further away from the property owners to at least meet the tower height. If they can’t… it is something that the Board should at least address and give them a chance to address to the public.

PUBLIC HEARING

Mr. Gaudioso questioned if there was anything else?

Mrs. Carney stated that she was happy to see the driveway grade improved.

Mr. Ricks questioned to have Mr. Paddock’s instance explained to him? He sees where the tower backs up to another Town property. Does he have a right-of-way to that other property?

Mr. Paddock noted that there is an easement between his property and the other. Its access from Route 209 for the Town. He’d actually like to take a look at the survey to find out exactly how close it is to the property. By looking at it- it looks to be 60-70’ from his back yard.

Mr. Ricks felt that there was some confusion there.

Mr. Paddock hoped so.

Mr. Gaudioso displayed the properties and the proposed tower’s location to Mr. Paddock’s property. It was actually 400’-500’ from his property.

Mr. Ricks didn’t think so.

Mr. Gaudioso noted that he felt the issue was really the Route 209 site. Could they then have the Public Hearing closed for the Airport Road site? They were separate Public Hearings. This would give them an opportunity to speak to Mr. Kelder and the Town Board regarding the Route 209 Site.

Mrs. Carney didn’t have a problem with that as long as they were within the setback from adjoining property owners on the other site.

Mr. Gaudioso noted that they had this previous discussion regarding Airport Road. The whole landfill surrounded that tower site. He requested that hey close the Public Hearing on that site.

Mrs. Carney motioned to close the Public Hearing for Airport Road. Mr. Ricks seconded the motion. No discussion.

Vote:

Fornal- Yes Ullman- Yes

Gaydos- Yes Carney- Yes

Ricks- Yes Tapper- Yes

Kawalchuk- Yes Godwin (alt.)-not required to participate

Mr. Gaudioso requested a decision on Airport Road just given an impending winter and time frames and construction schedules.

PUBLIC HEARING

Mrs. Carney motioned to adjourn the Route 209 Public Hearing until the November 20^th meeting. Seconded by Chairman Fornal.

Vote:

Fornal- Yes Ullman- Yes

Gaydos- Yes Carney- Yes

Ricks- Yes Tapper- Yes

Kawalchuk- Yes Godwin (alt.)-not required to participate

Mrs. Carney noted to the audience that Public Notices are not sent out for a continued Public Hearing. It will be noticed in the Freeman.

The Planning Board went over Part 2 of the EAF as prepared by Chazen for the Airport Road site.

IMPACT ON LAND

1. Will the proposed action result in a physical change to the

Project Site? YES

Any construction on slopes of 15% or greater, (15 foot rise per 100

foot length), or where the general slopes in the project area exceed

10%. Potentially Large Impact. Can not be mitigated by project change.

IMPACT ON AESTHETIC RESOURCES

11. Will Proposed Action affect aesthetic resources? YES

Proposed land uses, or project components obviously different from

or in sharp contrast to current surrounding land use patterns,

whether man-made or natural. Potentially Large Impact. Can not be mitigated by project change.

Chairman Fornal noted that Part 3 for Airport Road has been submitted by the applicant, is acceptable and is on file with the Draft Negative Declaration.

Mrs. Carney motioned for a Negative Declaration for the Homeland Towers Airport Road site. Seconded by Chairman Fornal.

Vote:

Fornal- Yes Ullman- Yes

Gaydos- Yes Carney- Yes

Ricks- Yes Tapper- Yes

Kawalchuk- Yes Godwin (alt.)-not required to participate

At this time Chairman Fornal read a draft Conditional Approval for the Airport Road site into the record as follows:

PUBLIC HEARING

Conditional Approval for Special Use Permit/Site Plan Review for the construction of a 150-foot tall tower to provide service to municipal and private sector antennas on a 3,000 sq.ft. leasehold parcel, located on Airport Road on a 30 (+/-) acre parcel owned by the Town of Rochester.

Homeland Towers, LLC shall forward driveway profile, structural drawings and structural engineering report to Chazen Companies at the building permit stage for Chazen approval of same.

Homeland Towers, LLC shall be responsible for all maintenance and upkeep of new access drive from the graded 15 degree portion to compound.

The 3,000 sq.ft. compound shall be gravel surfaced; floor plans for actual facility will be provided at the co-location stage with Site Plan review required for each co-location of new antenna.

Homeland Towers, LLC shall construct grass swale to prevent any runoff of water into landfill site.

Homeland Towers, LLC shall pay for an independent consultant (a licensed professional structural engineer), hired by the town, to conduct inspections of the tower’s structural integrity and safety. Guyed towers, monopoles and/or nonguyed towers shall be inspected every three years. A report of the inspection results shall be prepared by the independent consultant and submitted to the Town Board, the Planning Board, the Building Inspector and the Town Clerk.

Within 10 business days of notification of an unsafe structure, the owner(s) of the tower shall submit a plan to remediate the structural defect(s). This plan shall be initiated within 10 days of the submission of the remediation plan and completed as soon as reasonably possible

The area around the tower and communication equipment shelter(s) shall be completely fenced for security to a height of eight feet and gated. Use of razor wire is not permitted. A sign no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone number shall be posted adjacent to the entry gate. In addition, “No Trespassing” or other warning signs may be posted on the fence.

The color of the tower shall be ____________.

Discussion on Draft Conditional Approval:

Chairman Fornal stated that the Board would have to discuss the color. He believed that was recommended to be galvanized?

Mrs. Carney was fine with that, but did have two (2) other questions.

Mr. Johannessen also had a question. He didn’t know if the Board wanted to be more specific on the portion kept and maintained by Homeland Towers. To give a linear distance from a certain point to another certain point. He also didn’t know if the Board needed easement documentation to be reviewed by the Town Attorney.

Mr. Gaudioso pointed out that this was already part of the lease agreement and so was the bond for the removal of the towers.

Mrs. Carney questioned if they resubmitted the driveway profile, if it could then be taken out as part of the submittal to the building dept. for review?

Mr. Johannessen noted that he would reference the last revision date of the drawings somewhere in the resolution.

PUBLIC HEARING

Mr. Gaudioso thought it might be cleaner to leave the driveway profile in rather than take it out.

Mrs. Carney just didn’t want it there to be any change in that the Board didn’t already approve a driveway profile, because they did approve one. She didn’t want something else submitted to the Building Dept. to have to be reviewed.

Chairman Fornal noted that these were good. They would exclude the driveway profile mentioned in condition #1. And they would add the last revision date as well.

Mrs. Carney reiterated that the driveway profile should not be submitted to the Building Dept. at that stage. The Board has already reviewed it and approved it. The structural drawings will be submitted to the Building Dept. and she thinks that’s all that should be addressed in that statement.

Mr. Tapper noted that they had to have something to see that the building is according to the plans that the Board has approved?

Mrs. Carney noted that the site plans will be submitted with everything, but this makes it sounds like the driveway profiles will be submitted to the Building Dept. for review later, but it was already submitted to the Board for review.

The Secretary noted that the Board forwards a copy of the approved plans to the Building Dept. once they have been signed by the Chairman.

Mr. Gaudioso felt that Mrs. Carney was right because the condition is implying that the Building Dept. needs to review the driveway profile and that’s not the case. They will get a copy to see.

Mr. Gaydos noted that there was a gentleman in the audience who joined the meeting late, but has his hand raised to speak.

Chairman Fornal noted that the Board has kept the Route 209 site Public Hearing open. The Airport Road Public Hearing has been closed.

Mr. Carl Baker from the audience apologized for his tardiness. He was in Albany all day at a conference. Was this a done deal for the Airport Road Tower that is behind his house that he got a certified letter for?

Chairman Fornal noted that the Board is in the process of approving the Airport Road Tower.

Mr. Carl Baker wanted to know if it was a done deal? The public input mattered or didn’t matter? The Board just listened to it and did what they were going to do anyway?

PUBLIC HEARING

Chairman Fornal noted that it does matter, but the fact of the matter is that public opinion in of itself is not grounds.

Mr. Johannessen thought that there was only one comment for Airport Road.

Mr. Baker apologized again for his tardiness, but asked the Board to afford him a moment. He pretty much grew up within walking distance to that and they had a Town Board member who got involved with the Mob and got paid money to dump toxic waste in there. There are test wells all over the place that are not tested and absolutely not looked at. They’ve been dumped on by that. They have the Airport Road airport which unbeknownst to him, the owner used to open his tanks and let the pesticides go all over the ground…and now a cell tower that he got a certified letter for saying to come to this meeting, which a whole bunch of other residence got as well who unfortunately didn’t come here, but it sounds like it’s a done deal. He was just curious why he got the letter. Was it just a formality?

Chairman Fornal stated that this was off topic and the Public Hearing was closed.

Mr. Baker interrupted again. The Board obviously didn’t consider input for people. Did anyone speak up and say ‘oh yeah, we want this’?

Mrs. Carney noted that they did have comments from people who had concerns about tower locations and alternate sites and the process. Most of the people here had comments on the site on Route 209. She thought that one of the comments on the Airport Road site was addressed and as the Board continues with their discussion they have to move on with the meeting.

Mr. Baker interrupted and questioned if the Town Hall property was looked at for a tower site? Because this was Town property going back to the dump back there that most people don’t remember. Having lived here all of his life he remembers. Was it ever looked at? So it could be right under the people who want the cell tower?

Chairman Fornal noted that everyone wants the cell tower. Everyone is going to have use of it. Its not just for use for certain individuals. The Public Hearing is closed on this matter, he apologized but stated that the Board needed to move on. If Mr. Baker wanted to stay after the meeting, Chairman Fornal would listen to his concerns.

Mr. Baker wanted to know if Chairman Fornal would listen to his concerns or if he would just nod and smile and do what ever he was going to do? Because obviously its been done.

Chairman Fornal noted that it is in the process of being approved.

Mr. Baker continued to speak out of turn and wanted to know if this Town Hall site was ever looked at for a tower location?

PUBLIC HEARING

Again, Chairman Fornal stated that the Public Hearing was closed and that he would have to move on.

Mr. Baker still spoke out of turn. Chairman Fornal couldn’t answer that question or he wouldn’t?

Chairman Fornal stated that the Public Hearing is closed.

Mr. Baker stated that he wasn’t a fly at a picnic. He wasn’t leaving.

Chairman Fornal thought this was good and he would answer him after the meeting.

Mrs. Carney had one more concern about something brought up at the Public Hearing tonight. The woman on Anna Street who had concerns with maintenance and most important the safety inspection of the structure, but was there any way they could either refer to language in the lease about maintenance or fencing or put it in the approval as well?

Mr. Gaudioso noted that it was in the lease.

Mrs. Carney wondered if they could have a line in the condition to see any notes or conditions set forth by the lease?

Mr. Ricks thought that there would be a copy of it.

Mr. Johannessen felt that a copy of it could be attached to the decision.

Mr. Gaudioso noted that its mentioned in the approval.

The Board discussed the language to be used for this.

The Board discussed the color of the antenna being galvanized as recommended by the applicant. Mr. Johannessen recommended dictating to each antenna when they came in for approval the colors.

PUBLIC HEARING

With those changes to read as follows, Mrs. Carney motioned for Conditional Approval of the Homeland Towers Airport Road site. Seconded by Chairman Fornal.

Conditional Approval for Special Use Permit/Site Plan Review for the construction of a 150-foot tall tower to provide service to municipal and private sector antennas on a 3,000 sq.ft. leasehold parcel, located on Airport Road on a 30 (+/-) acre parcel owned by the Town of Rochester.

1. Homeland Towers, LLC shall forward structural drawings and structural engineering report to Chazen Companies at the building permit stage for Chazen approval of same.

2. Homeland Towers, LLC shall be responsible for all maintenance and upkeep of new access drive from the graded 15 degree portion to compound.

3. The 3,000 sq.ft. compound shall be gravel surfaced; floor plans for actual facility will be provided at the co-location stage with Site Plan review required for each co-location of new antenna.

4. Homeland Towers, LLC shall construct grass swale to prevent any runoff of water into landfill site.

5. Homeland Towers, LLC shall pay for an independent consultant (a licensed professional structural engineer), hired by the town, to conduct inspections of the tower’s structural integrity and safety. Guyed towers, monopoles and/or nonguyed towers shall be inspected every three years. A report of the inspection results shall be prepared by the independent consultant and submitted to the Town Board, the Planning Board, the Building Inspector and the Town Clerk.

6. Within 10 business days of notification of an unsafe structure, the owner(s) of the tower shall submit a plan to remediate the structural defect(s). This plan shall be initiated within 10 days of the submission of the remediation plan and completed as soon as reasonably possible

7. The area around the tower and communication equipment shelter(s) shall be completely fenced for security to a height of eight feet and gated. Use of razor wire is not permitted. A sign no greater than two square feet indicating the name of the facility owner(s) and a twenty-four-hour emergency telephone number shall be posted adjacent to the entry gate. In addition, “No Trespassing” or other warning signs may be posted on the fence.

8. The color of the tower shall be galvanized.

9. All maintenance shall be required according to lease agreement.

Vote:

Fornal- Yes Ullman- Yes

Gaydos- No Carney- Yes

Ricks- No Tapper- Yes

Kawalchuk- Yes Godwin (alt.)-not required to participate

The Homeland Tower Airport Road site was passed by a 5 in favor – 2 opposed vote.

NEW APPLICATION PRESENTATION

ALEXA GRACE– retail business use in existing 24’ x 12’ storage shed 5791 Route 209, Kerhonkson, Tax Map #76.2-2-36, ‘B’ District

Mrs. Grace was present on behalf of her application.

The Chairman stated that the Code Enforcement Office cited Mrs. Grace for having continual yard sales that appear to be a business use. If the applicant wants to proceed with this, she’d need a site plan, curb cuts…

Mrs. Carney noted that this application was really incomplete. The Board couldn’t submit this to the County or State in the condition it is in.

Mrs. Grace stated that she just wanted to get rid of stuff. This was really a yard sale. She’s a collector who just wants to get rid of stuff and she’s really an artist. She really wanted that space so she could just work. There was a woman who lived next door who was wonderful and she sold a lot of her stuff there. And she put the ugly cones there because Pam Duke said it was dangerous and she didn’t like the color of the cones or of the balls (for helicopter landing). She was just getting rid of used things and wasn’t making a profit.

Mrs. Carney explained that there were safety concerns for people pulling in and out of this area. And if this is something that was going to be done on a regular basis—

Mrs. Grace interrupted and noted that it would have to do with the sun shine—not on a regular basis.

Mrs. Carney stated that if this was something that was going to happen from the months of May to October whenever the sun shined on a Saturday that was a regular basis. It is comparable to a flea market—they only operate on nice days too. So, the concern is safety and the use and to plan for the use. If the use is an outdoor sale, then she needed to determine what the area was that she would be using, so then it can be planned on how many people could potentially come there, based on the Town Code for parking for that type of use. Also because she is on a State Highway, any new use especially a change of use, it would have to get submitted to the State DOT for them to review the access and the safety of that access. So, it may entail improvements to that access on the applicant’s part in regards to curbing and so on.

Mrs. Grace thought this. This is just a Mickey Mouse tag sale. That’s all it is. She wants to get rid of stuff. She’s been doing this for 4 years. And every publication, she’s up here temporarily now.

Mr. Ricks thought that the Board was looking to see if it was a yard sale that happened every once and a while, she probably wouldn’t be here, but if it occurred all of the time, then it was considered a business.

Mr. Tapper felt that if she put up a building specifically to house the stuff that she’s going to use on her “part time yard sale”, then it doesn’t make it a yard sale any more.

Mrs. Grace wanted to know if that land was zoned commercially.

Mrs. Carney agreed, but noted that she would still need to come for Site Plan Approval. Someone can’t just open a commercial business without going through the proper approval process, which has to be circulated to different agencies that are involved, the State, the County—its quite a process.

ALEXA GRACE(cont’d)– retail business use in existing 24’ x 12’ storage shed 5791 Route 209, Kerhonkson, Tax Map #76.2-2-36, ‘B’ District

Mrs. Grace noted that this was temporary; she didn’t even go to stores anymore.

Mr. Ricks felt that if she had a sign and a yard sale down by her house, it would be a whole other story then.

Chairman Fornal believed that that was suggested to her.

Mrs. Grace stated that her road is a mess, and they got sued from the EMS people, who fell into a hole, so they say. They are just holding their breath. She just wants to do this temporarily. She doesn’t want to have a curb.

The Board further discussed this with Mrs. Grace. Her position remained the same that she just wanted to sell junk and didn’t feel that this was fair and that she was being singled out. The Board urged her that they didn’t not want to see her do this, but she needed to follow the proper procedures.

Mr. Ullman stated that the Planning Board was not giving approval for one yard sale a month being okay; it was just their opinion from people’s experience.

After much discussion, the Chairman encouraged the applicant to go back and discuss this with the Code Enforcement Office, or withdraw her application in writing from the Planning Board and the office would try and get her money back.

Mrs. Carney motioned to accept the September 18, 2007 minutes, seconded by Mr. Gaydos. No discussion. All in favor.

Mr. Gaydos motioned to adjourn the meeting. Seconded by Chairman Fornal. All members present in favor.

As there was no further business to discuss, at 8:30 PM Chairman Fornal adjourned the meeting.

Respectfully submitted,

Rebecca Paddock Stange, Secretary