Planning Board Minutes March 2012

MINUTES OF March 13, 2012 Regular MEETING of the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.

Chairman Baden called the meeting to order at 7:00 PM and asked that after the Pledge to the Flag was said that everyone remain standing for a moment of silence for former Planning Board Chair, Anne Estroff who recently passed away.

Chairman Baden asked the Secretary for roll call attendance.

PRESENT: ABSENT:

Michael Baden, Chairman Melvyn I. Tapper Robert Rominger, Vice Chairman Fred O’Donnell

Anthony Ullman

Shane Ricks

Adam S. Paddock

Also present:

Secretary, Rebecca Paddock Stange. In the Audience was Robert Case, the newly appointed Planning Board Alternate.

ANNOUNCEMENTS

Chairman Baden noted that Adam Paddock was recently appointed by the Town Board and was now a full member of the Planning Board for a 7-year term. Rob Case was appointed as the new alternate who was appointed by the Town Board to fill out the remainder of Mr. Paddock’s term, which is through the end of this year. The Town Board also re-appointed Mr. Baden as the Chairman and has appointed Rob Rominger as the Vice Chairman.

The Town Board also approved and adopted the new fee schedule, which took effect as of March 12, 2012.

There is a notice from the UCPB from the Legislature and March is the month for Ag District inclusion. If anyone knows of anyone who might qualify, they should speak to the County about beginning the process to get their property into the County Ag District.

Reports were received from the Code Enforcement Office and they issued a Certificate of Occupancy for the Hillary Thing application and for the Belliman application.

Litigation Report- The Chairman announced that the Town has been on the winning side of two Court cases. First the Mombaccus Case against the Zoning Code- The Appellate Court would not hear the appeal- so it is finished. The Zoning Code is now in full effect- Court tested.

Town Attorney, Mary Lou Christiana and Simone Harari’s Attorney, John Cappella both filed to dismiss the Body of Truth Law Suit and the Judge agreed with them and it has been dismissed.

Supervisor Chipman was in the audience and he noted that Mr. Feldman filed an intent to appeal.

TRAININGS

There is a training at Ulster County Community College on March 22, 2012 on the Hudson Valley River Greenway Compact. The Chairman encouraged anyone who was able to attend.

On April 15-17^th the NY Planning Federation is having their annual conference in Saratoga Springs. It is a substantially expensive conference.

The Ulster County Planning Board is now keeping track of trainings in other counties. They have forwarded on a list of the different trainings in other counties

ACTION ON MINUTES

Chairman Baden noted that they were emailed around twice. The first time there was a mistake on a decision. The hard copy that is in the member files is the correct version.

Mr. Rominger motioned to approve the February 14, 2012 Regular Meeting Minutes. Seconded by Mr. Ricks. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes, 0 nays, 1 absent, 0 abstention

2012-01SUP Continued Review and Public Hearing

Jack, Daniel, and David Schoonmaker aka Saunderskill– Farm Market, for Special Use Permit and Site Plan review, for expansion of use of a retail farm market to include the additions of a 1,672 sq. ft. retail building addition, a 1,680 sq. ft. covered loading dock, and septic system, 5100 Route 209, Tax Map #76.2-5-4.210, ‘AB-3’ and ‘Floodplain Development Overlay’ zoning districts

Daniel Schoonmaker, Kathy Schoonmaker, and Barry Medenbach came forward to represent the application.

Chairman Baden reminded everyone that this was typed as a Type 2 Action under SEQRA at the last meeting. Since the last meeting the applicant submitted a revised site plan making the requested changes- they added in the added notation that the DEC is going to require because of being in a flood plain. They added in the notations for the TOR Flood Plain Law and they showed the existing space being the retail office, storage and what is proposed. They also supplied the requested elevations of the addition. The applicant also submitted certification from their engineer on the flood plain elevation and they are building out of the flood plain, so that will satisfy DEC and will enable them to get their flood plain insurance. Chairman Baden questioned if they would need new insurance for the addition?

Mr. Schoonmaker noted that they did have insurance and they did drop it, but they would have to do it again.

Chairman Baden noted that in the Town Code and the Flood Plain Code required a Flood Development Permit. Chairman Baden had spoken with the CEO who had never heard that terminology, but he found out that it’s the same as the insurance certification.

Unfortunately the Ulster County Planning Board did not have a quorum at the last meeting, so they issued comments, but they are unofficial comments at this point. They are given 30 days by NYS Law to respond. So, their comments are the same as a ‘no comment’ at this point, so the Planning Board will be unable to take action tonight. The 30 days is from the date that the UCPB received the referral.

2012-01SUP Continued Review and Public Hearing

Chairman Baden continued to note that the application was referred to the NYS DOT and a response was received via email on this date and they said that the existing driveway was in compliance with current standards and suitable for the expansion with no further review required. The NYS DEC did not respond, but the flood plain certification would answer any concerns that they have. UCHealth Department didn’t need to be referred to. The PB did notice them, but they already issued the approval. This was referred to the County Planning Board and received it and they received it on February 23, 2012. The approval will have to be put off until the next

meeting. There is no way around it. The County does issue ‘no comments’ and they compliment Saunderskill considerably for having the parking on the side of the building and they say that “with the back drop of the Catskill Mountains to the West and the Rondout Creek immediately to the East, Saunderskill Farm and Greenhouse property stands as one of the nicer looking properties along Route 209.” Chairman Baden wanted to really point that out that they were very complimentary of their property.

Because there was a current Special Use Permit that was approved in 1997, Chairman Baden asked the Board to take a minute and take a look at the existing conditions. Essentially what they are doing is amending that Special Use Permit. He wanted to see if anyone had any concerns over these or comments. They weren’t planning on changing the hours, no proposed changes to landscaping, the loading zone is staying the same. They would have to apply for a building permit for this any way. The on street-parking rule will carry over. He didn’t really see anything on there that was an issue. When he made the draft decision he would carry over the pertinent conditions and leave off the ones that don’t apply. The Chairman didn’t have any additional comments. They would have to get a new building permit and the Health Dept. Permit and the flood certification. The number of parking spaces was corrected.

At 7:20PM Chairman Baden opened the Public Hearing.

The was no public comment.

Mr. Ricks motioned to close the Public Hearing at 7:20PM. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

Chairman Baden noted that they would take the decision up at the next meeting on April 10, 2012.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

T-Mobile Northeast LLC-applicant, for Global Tower LLC and Zeno C. Wicks, property owners, for Site Plan review, for the installation of 3 antennas co-located on an existing 120-foot monopole wireless communication facility and installation of associated equipment within an existing fenced compound, 82 City Hall Rd., Tax Map #68.3-2-47.110, ‘R-2’ zoning district.

Adam Moss, Esq. was present on behalf of the application.

Chairman Baden noted that the Planning Board held the initial review at the February 14, 2012 Meeting. The tower already exists. It was granted by the Ulster County Supreme Court. What happened was the Special Use Permit application was being reviewed by the Planning Board and during that time the Town Board put a Moratorium on cell towers. This was in 1997. A lawsuit ensued. Out of that came 2 things. One was a Telecommunications Law and the other was a court order that this had to be approved. It was essentially a compromise to end the lawsuit between the Town and the applicant and to move forward. It was finally granted in 1998. Since that time Sprint has co-located on the tower in 2001. This application is for T-Mobile to co-locate on the tower. The Town has a new Telecommunications section in the Code as of 2009. Based on that Code at the last meeting the Chairman requested that the applicant supply FCC licensing which the applicant has complied with. They have supplied FAA documentation that the tower does not require any safety lighting. The Chairman also requested that they supply a Visual EAF. He’d like to review that document later on. They requested a structural report from the applicant and they received a reply back. There is a letter in the PB’s packets from the applicant’s engineer. He questioned if the Board felt that the letter answered the question. Chairman Baden’s own feeling was that he would like to see the report earlier than the building permit process. Personally he would like to see it submitted to the PB so that they could verify that what they were being asked to approve could hold the weight of the additional antennas. He asked the Board what they thought.

Mr. Ricks questioned if there was any idea when the original tower was put up what it was designed to carry in the paper work they had previously?

Chairman Baden noted that unfortunately within the PB Office they have been unable to locate any of the original paperwork on this. His suspicion was that it never went through a full review process and stopped in the middle because of the lawsuit and it was granted a building permit and Special Use Permit by the Court. The Secretary and he have searched the Office and were unable to find it. The Town Clerk was unable to locate any documentation either. They didn’t need that answer at this moment, he just wanted to know if they found it acceptable for the report to come during the building permit process or they wanted to see if ahead of time.

Mr. Ricks noted that there were no buildings or houses near the tower anyway.

Chairman Baden noted that was correct. It was a considerable distance from the property line.

Mr. Moss noted that it was pretty typical for an application for a co-location to submit a letter like this from a licensed P.E. Again, obviously if the Board wants to condition this as a part of approval they would supply this. From their perspective the structural report isn’t necessarily one of the items that is required by the PB for Site Plan review, but certainly they want the Board to have peace of mind. They would be agreeable to provide that as a condition of approval.

Chairman Baden noted that would be another option- to require it as a condition of Final Approval and have the Town Engineer review it.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

T-Mobile Northeast LLC (cont’d)-applicant, for Global Tower LLC and Zeno C. Wicks, property owners, for Site Plan review, for the installation of 3 antennas co-located on an existing 120-foot monopole wireless communication facility and installation of associated equipment within an existing fenced compound, 82 City Hall Rd., Tax Map #68.3-2-47.110, ‘R-2’ zoning district.

Mr. Ricks questioned if on other projects that they have done- what were the total number of antennas that they put on these poles?

Mr. Moss noted that this application requires 3 antennas. A lot of applications he’s been involved with require more.

Mr. Ricks questioned what the total number was?

Mr. Moss noted that a lot of the poles are designed to handle up to 5 carriers and they often toss in emergency antennas. When they are built this tall they are built to house as many carriers as possible so that they don’t have an abundance of additional towers in the area and the Town’s Code encourages co-location. This is the design per the Code.

Chairman Baden noted that the only reason he had this concern was because this tower was built so long ago- and the second is because they do not have any documentation in the PB files that they are able to locate. They will continue to look, but they pretty much looked in all of the likely places it would be. Mrs. Paddock Stange was not the Secretary at the time.

Mr. Ricks was on the Board at that time and he recalled seeing piles and piles of paperwork.

The Secretary noted that she looked everywhere and didn’t see anything.

Chairman Baden’s suspicion was that because it was never a complete application process that it was filed somewhere. The only place they did not look was in the trailer behind the community center.

Chairman Baden noted that the color of the antennas would be blue gray as ordered by the Court Decision. The other thing he wanted to ask was to supply a copy of the lease so they could see in terms of maintenance issues.

Mr. Moss noted that there was typically someone that went out once per month to maintain their equipment from T-Mobile. He also knew that there is a term for removal if T-Mobile were to cease use of the antennas.

Chairman Baden noted that the reason that they ask is because it is covered in the Code. He asked if that could be submitted to send on to the Town Attorney to review in terms of removal. According to the Court Decision there is supposed to be a bond established for the tower, he has yet to be able to verify it.

Mr. Moss noted that they haven’t been able to locate it either. With respect to that- that is an issue the Town should take up with Global Tower and it is a separate issue than what they are here for.

Chairman Baden understood this. He wanted to make sure that the addition of antennas would be covered under that bond. That’s why he’d like to see a copy of the lease.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

Chairman Baden noted that normally it has been his practice to do SEQRA before they open a Public Hearing. Under NYS Law in subdivision it is required. Under Site Plan/ Special Use Permit, there is nowhere that it is addressed. He noted that during the last 3 or 4 days there have been a lot of phone calls from concerned neighbors and he asked the Board to deviate from the normal procedure, and it is fully within the law. They would not do SEQRA until they hear from the Public, but they would do SEQRA before they closed the Public Hearing. On the same reasons as the last application on why the Board couldn’t close the Public Hearing tonight, the UCPB issued a referral. The referral says “No Decision- Local Determination”. As the Town’s representative, had there been a quorum it would have said “No County Impact”, but the Board needs to wait 30 days before they can act. They received those March 2^nd, so as of April 2^nd the PB could act on this application. He apologized for the County Planning Board. Before they opened the Public Hearing, the Chairman asked anyone who wanted to speak to raise their hand and if they wanted to give their name it would be appreciated. He further asked that the comments be kept brief, but as detailed as needed. If comments were in the form of a question, they would try and answer them. The Public Hearing is not a back and forth negotiation.

Mr. Ullman questioned if there was any possibility that the re-enforcements would impact the way the tower would end up looking.

Mr. Moss would try and get a better answer on that.

AT 7:36 PM Chairman Baden called the Public Hearing open.

Mr. Moss gave a quick overview of the project. The application was for 82 City Hall Road. Again, there is an existing 120’ tower at the site that has been up since 1998. There are already carriers who are on the pole. He knew that there was discussion as to whether the Fire Dept. would have antennas that were located on the tower. He thought that there were antennas on there already. He did know that Global Towers has reached out to the Fire Dept. and was now awaiting a response. When the tower was approved pursuant to a Court order in 1998, in addition to the carriers such as T-Mobile who are able to co-locate on that tower, there is room for emergency services as well.

Chairman Baden noted that on the site plan it does show several whip antennas, but they weren’t sure what they were for.

Mr. Moss continued to note that T-Mobile is proposing to co-locate 3 more antennas on this pole. The height of the tower is so that multiple carriers can put their antennas on the tower. The reason for this is so that multiple applications in the area for multiple towers won’t be required. There is a 2,500 sq ft compound that was designed to have space for the carriers to place their equipment. T-Mobile will have their equipment in that area. They have submitted a Visual EAF as well as a Short EAF and the conclusion, based on that is that there will be very little if any visual impact. The Board has discussed that as it is there is very little visibility of this tower as it sits now. The Chairman already alluded to some of the information that they have submitted to the Board pursuant to the Code- Site Plan, FCC Licenses and FAA Certification. T-Mobile believes that this application conforms to the Zoning Code- expressly permitted by Site Plan Approval, which is an easier

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

application process because it is co-location, which is easier and preferred by the Code. They respectfully submit that they have met all of the requirements for Site Plan Approval.

Chairman Baden opened the Hearing up for public comment. First to speak was Sarah Harris who lived on the corner of City Hall Road and Queens Highway. She is not against technology or cell towers, but she is for the Town reaping the benefits for towers and co-locating services on towers. There are two towers now that are on Town land and she didn’t see why these antennas couldn’t be put on existing towers so that not just one family, but all of the residents could reap the financial benefits that the leasing of the tower would bring from that. She lived in the same location as she does now when the City Hall Tower first applied to the Town. She and her neighbors spent 8 months fighting that tower. That is a residential area, it is not commercial. It is where people live, raise their kids and have their animals. They hired an environmental lawyer and hired a firm who just finished the engineering for the Australian Olympics. They hired a plane and flew over the area and he said that that site- even if it was a 200’ tower that it would never give good service. He gave 5 other sites that would bring much better service to people. Those missing papers say everything about who was on the Board before. They ignored this gentleman who was top of the line, they ignored all of the site plans that he offered and they ignored the environmental lawyer. She was hoping that this Board would not do the same and consider on financial basis alone for the Town how they everyone could benefit from this and not just one family. This is a residential area. She wasn’t even bringing in the idea of property values going down of up to 20%. She wasn’t bringing in the fact that in Germany, Greece, Scotland, and Australia, they are removing towers from residential areas and putting them into commercial areas because of health concerns and cancer. When that tower was put up in 1998 an outside person was supposed to check those emissions and report back to the Town. Did the Town have any records of those emissions? No they didn’t . These are real concerns that shouldn’t be pushed through. It would be better for a new Tower to be put in a commercial area owned by the Town and have the Town get the money from the whole thing.

Next to speak was Lynn Gollier. She had concerns regarding Health effects also. Her concerns were for the health effects for the families that live within a mile or 2 and the effects of the radiation increase. Her second concern was the decreased property values. They are grateful to live in this area and want the value of their house to increase to be able to sell their house at an appropriate value in the future. She also supports the idea that the Town has two towers, why couldn’t these antennas be put there- rather than increasing the health effects and decreasing the property values in a residential area.

Next to speak was Jason Broome. He questioned if the Board was going to respond to her question.

Chairman Baden noted that in terms of putting the antennas on the Town towers- that this requested use is an allowed use within the R-2 Zoning District. It is an existing tower and it is a co-location, which the Town Zoning Code does list as preferential. His own feeling is that the Board cannot tell the applicant, which is a better tower to put their services on. They have conducted the studies. The Board has to process this application as it was referred to them because it is an allowed use in that district. The Code dictates where it can be put in the Town and this is an allowed use.

Mr. Ullman noted that he was pretty sure that you couldn’t use Governmental Authority to deny a private application to give the Town a commercial opportunity to make money for the Town instead.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

Chairman Baden noted that Telecommunications falls under the Public Utility Code, which is much stricter. There has to be very substantial evidence in writing on why they would deny something like this. In the last few days he’s done a lot of research on existing Court cases.

Mr. Broome showed on the map where he lived in relation to the tower with his wife and daughter and dog and cat. Basically the tower is in his back yard. It was well within the Town’s right to respectfully request T-mobile or anyone else to consider putting their antennas on the Town towers instead of in the residential area where it might have controversy and put a bad impression on T-Mobile. There is obviously a large outcry and they found out about this on March 8^th and it is March 13^th, so it was well within the Board’s right to request it. Where was the testing that was court ordered? Where was the original application that the Town can’t locate? The Town can find out how much radiation is coming out of that thing now- how much will come out? Is it going to meet the FCC requirements? They have a right to know before this is even considered. His understanding from the Court documents that if something were to happen to Cellular One or they were to disappear or they were to have no more use for the Towers that the Town had a $15,000 bond to remove the tower. Does anyone have Cellular One service? He didn’t think they existed anymore.

Chairman Baden noted that it was sold to AT&T and the conditions have carried over to whoever the new owner is. Whoever the new owner is still bound by the Court Order.

Mr. Broome continued to note that this was just a long line of unanswered questions. He’s spoken with anyone he could get a hold of in the Town. At the very least they contradict each other. No one can answer the questions. The Code Enforcement Officer has never been to the Tower. The Court Order specifies that the Town has a right to check out the Tower and use the Tower. The Court Order says that the Town has a free cell phone with 300 free minutes since 1997. Did they still have this? Its like this order has just disappeared. The simple fact that the Town was against this and it was just railroaded through- whatever happens with this, there is a lot more of this coming down the pike. Cell phones are only going to be more and more prevalent and the Town needs to look into the Code and see why is this okay in a residential neighborhood. They are taking down these towers in other countries. Does it harm your health- no one knows, but he could guarantee that no one would want to go up there and camp out up there for a night. It doesn’t do good things for you. There are a lot of unanswered questions. He tried to FOIL for things and he received it today and he barely understands this stuff. They have jobs and lives and needs some time and help with this stuff. This has effected property values. There is a 16-acre parcel that borders the Wick’s property that has been for sale for years and there was a potential buyer last year and found out about the tower and walked away. There is a lot of land for sale and there is a housing crisis and this does not help. He has a full time job and he’s gotten this envelope on March 8^th and he’s not saying that everything that he is saying is 100% true, but it’s mostly true and its enough of a question to delay this for a while. What he would like to do is to submit what he wrote up.

Chairman Baden noted that they couldn’t close the Public Hearing because of the County Planning Board’s lack of quorum at their last meeting. Anyone who would like to submit written comments, please do.

They will be copied and circulated to all Board Members and if they are new comments they will be read into the record.

Mr. Broome noted that they walked around the neighborhood with a petition and everyone but one neighbor signed it and that says something.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

Next to speak was Mavis Harris. She noted that she lived right at the end of Bee Hive Road and she was very stressed out about this. She noted that she was going to make this very personal and noted that she brought her daughter to the meeting. When she moved here she did her research and at that time the evidence was not clear on the effects of this particular type of radiation. Now in fact, it is and she isn’t talking about lightweight research- she was talking about John’s Hopkins, Harvard, United States Air force. Virtually every other country in the world including China has higher safety regulations that we do. Everyone here is going to heart the words, “You have cancer”. A family member or yourself or maybe you already have. Your life will change from that point on and you will wonder what you could have avoided to avoid this. This tower is something that we could actually have some control over. Its not the tower, it’s the antennas and the amount of radiation that each one emits. She could go on about radiation, but this is one that they could at least ask the corporation if they would consider putting it on the Town’s towers or somewhere else. It’s not that much to ask. She would like the Board to think about it and remember one thing. When the time comes when they will hear that maybe they will think back to today and question if they could have done something else.

Barbara Fornal was next to speak. Her question was why they were going to be allowed to go on this tower rather than on one of the Town towers where everyone in the Town would profit and it would not be in a residential Zone. She was under the understanding that the reason for getting the two Town towers was for future carriers to go on those towers to help quell the fear of them going in residential zones. After all of the work that was recently done on that Code, it is a shame that they have to be in this position where they were15 years ago- trying to keep a cell tower out of residential zones. When she thinks back to all of that work on the Code, this shouldn’t be happening. It is also alarming to hear that previous documentation on this tower cannot be located and she would hope that the PB would then put this through a thorough review as if it were a new application. From her understanding they are already up there doing site work.

Supervisor Chipman was recognized to speak. He was happy to see that the process is working. There are people here that have addressed the Board with concerns and he thinks that some of the concerns area valid. Some of them he questions. He appreciated everyone coming here because it means that the process does work. He has fielded quite a few phone calls over the past couple of days asking what he and the Board were going to do about it. Quite honestly the Planning Board has its own authority in this granted by State Law and Local Law. The Town Board has absolutely no control over this decision. The Board Members have been appointed to a term and they will do there job and there are some questions here that he believes need to be answered. He’ll be honest that they can’t find some things from 15 years ago. There are some statements about the Town towers that area totally untrue though. Whoever said that they weren’t in residential areas? He remembers the fight against them 5 years ago- and he fought against those towers. He didn’t think they were in the right places and he didn’t think they would provide the Town with the best cell coverage and he heard the neighbors screaming about it. He doesn’t have a short-term memory. There are people that live by those towers. He remembers the view sheds and they aren’t in commercial zones- there are neighbors there. So don’t think not in your own back yard because it’s someone else’s back yard too. And everyone that has a cell phone- just remember that- and some of the calls that he’s received have been on cell phones. Someone had to have a tower somewhere for that cell phone to work, so he wanted them all to remember that. There is a process in place and some mentioned about health concerns. He knows about cancer, he’s missing half of a lung- as much as he worries about those things, by law they are forbidden to address those things. July 1^st1996 your congress passed a law that said municipalities can’t use health risks associated with cell towers to deny them. That is the law. So it’s only because its going in your backyard that you want to say something about it. Where were you to talk with

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

Maurice Hinchey or someone else? This is a multifaceted problem. He has complete confidence in the Board, but there concern is whether the law is being followed. Would he like to see those antennas on the Town- yes, they could use the money. Do they have a need for cell towers? It’s a double edge sword- he can tell about Hurricane Irene. He had his cell number plastered all over the place. It saved lives. He had a 90-year-old woman that had to be saved by the fire dept. because the bridge went out on Lawrence Hill Road. He could tell you numerous things because that was the form of contact. They didn’t have phone, they didn’t have broadband, even the County’s radio towers went out during the Hurricane, but the cell phones worked. There’s cost and benefits. He just wants to see the process go through and that pertinent questions be answered. He thanked the Board for their hard work. He also thanked Lynn Archer for her hard work as Liaison.

Sarah Harris was recognized to speak again. She noted that she wasn’t against technology or cell towers, but yes people live everywhere, but there are places that are more commercial. Of course people live everywhere. This is not a commercial area. You can’t imagine how crazy things were in 1997 over this. That tower shouldn’t even be there and the fact that its becoming more of a mega tower and no one has checked it in 15 years- it’s a disaster. If anything thing the tower should be taken down.

Barbara Fornal was recognized to speak again. She just wanted to say that she does not own a cell phone and she would never own a cell phone and anyone who does has no room to talk.

Next to speak was a resident of City Hall road who lived right below the tower. She felt that cell phones serve a valuable purpose and she’s not opposed to the technology, but she has always been concerned about the location of this tower and that it is being added to and that the electromagnetic radiation being emitted from it being increased concerns here. She doesn’t understand why T-Mobile couldn’t use the two Town towers which are located in a residential area. There are no other commercial ventures surrounded by this City Hall tower. It is zoned for residential. She is also concerned about the value of her property. The value has plummeted since she purchased this property.

Chairman Baden read two letters into the record. The first was from Wally Nicholls who requested the Public Hearing be held open for 6 months to review health concerns and property devaluation.

The second letter from Steve Fornal dated March 13, 2012 requested several items to be provided by T-Mobile.

Mr. Broome noted that in the Court documents it does specify that there are plans and drawings that were revised than the first ones given to the Town in 1997. They modify the tower from 180’ to 120’. From what he could tell those don’t exist either.

Chairman Baden noted that they are included as appendices to the Court Order.

Mr. Broome noted that the CEO wanted some directive from the Planning Board on how to proceed.

Chairman Baden noted that as far as the existing tower and antennas that is not the Planning Board. They are reviewing the application that is before them for T-Mobile. The CEO will get the Decision when it is rendered and it goes back to his hands.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

Mr. Broome noted that he doesn’t think a lot of the public understands the process. Mr. Davis, CEO gave him a different answer than the Planning Board did. He appreciated Mr. Chipman’s comments.

Chairman Baden noted that the Planning Board has no enforcement powers. We review what is referred to us and make sure that it goes by the Code. We have very limited power in terms of denial ability. It’s outlined in the Code.

Mr. Ricks noted that he was on the Board back in 1997 and 1998 and there were piles of paperwork on these. They had big meetings that had to take place in the fire house and he was suggesting that whatever Attorney the Town had could possibly have the records because the whole thing was taken from the PB and they had a new Town Board that came in at the same time. As far as a few years back when the Town got the two towers brought in it was brought up that the City Hall tower and because of the height of it gives more coverage than the two lower towers, which are down along 209. They are lacking the elevation. He believed if you drew a circle around the Town towers- especially the one by the Rainbow Diner that there are more people that live around that tower in a radius than the one on City Hall Road and they are all residential homes. It’s the same as up there. He has been trying to read up on the cell towers and the electronic frequencies relating to health. He hasn’t read anything where a government agency has put out hard solid proof. Anything he reads contradicts each other.

A member of the public worked at a library and could give materials on health concerns.

Chairman Baden noted that anyone who wanted to submit any documentation, please do, they would be submitted to the Town’s consultants for review. The PB members are volunteers. They do go through some trainings, but they are not scientists or engineers. They know the Code and Law as far as reviewing technical data, they have consultants and that’s why they do that. They have a Planner on retainer with the Town and they have reviewed the preliminary materials so far and anything submitted to the Board will be forwarded onto them for review.

Councilwoman Lynn Archer was recognized to speak. She noted that she thought that the good news here is that there are a number of questions that need to be answered and any discrepancies that happen from time to time about whose role is what, the Town Board has always taken steps to improve the communication lines across departments and these things happen. When they surface they like the address them and move forward with them. Its good that these things have surfaced and she appreciated everyone voicing their opinions. They can’t always satisfy everything, but the opportunity to put all of the issues on the table and to have the dialogue is moving in the right direction.

Mr. Moss noted that the original tower is irrelevant to this application. Everything dealing with the existing tower or anything on the tower is irrelevant to this application. This application isn’t about should that tower be taken down or with respect to the Court order- what documentation the Town has or doesn’t have. T-Mobile’s application is for Site Plan Approval pursuant to the Town’s Code. When the Town Board enacts legislation, which he understands is recent, Special Permit and Site Plan Approval are required for different types of applications. A new tower would require both. When Special Use Permit is triggered a lot more submittals are required of an applicant such as maps that show coverage. This type of application, both in the eyes of the Federal Law and in the eyes of the Town Code is what is encouraged. It’s a co-location, which is a

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

relatively simple application to put antennas where there are current antennas in the Town. The goal of the Code is to decrease the amount of towers in the area. A Town isn’t permitted by Federal Law to prohibit service into an area. As the Supervisor was saying and as Mr. Ricks noted was that often towers are built far enough from each other so that service can be provided and sites can hand off from each other. The Code for a Site Plan application doesn’t require the carrier to submit maps to show coverage because this type of application is encouraged. That being said, a carrier has to provide service to all areas and can’t be prohibited from doing so. Because T-Mobile is going on one tower doesn’t mean that they won’t need coverage on another tower as well. He didn’t know the exact outline of the other towers, but it’s possible that other carriers are on all 3 towers. With respect to whether it’s a Town tower or whether it’s a private owner who has a tower. Both because of the law and because its based on the Town’s Code there is no discrimination in the Code whether or not the Town is able to get the funds or if it should go to a private individual. It wouldn’t be legal and further more the Code doesn’t provide for that. There also is no demarcation in the Code for any kind of preference between residential or commercial areas. They are going by the Code requirements. So for this application, which is encouraged, only a Site Plan Approval is required. He believes that they have submitted all of the documentation to prove that they meet the site plan requirements. With respect to the health concerns a local municipality is not permitted to take health concerns in to consideration as long as a facility complies with the FCC regulations. The carriers are required to comply with the FCC requirements for emissions. In this type of application the FCC has released a check list and it states that as long as an application for co-location is over 10 meters, and this one is about 30 meters, but as long as it is over 10 meters it is considered categorically excluded and what that means is that there is a presumption by the FCC that when you have a co-location this high up that it will meet the requirements. The Town’s Code doesn’t require any demonstration with respect to emissions and there are many Codes that do require that. As long as FCC requirements are met the Board doesn’t have any ability to deny the application and that is pursuant to Federal Law. In terms of a time table for this application there is an FCC order that requires 90 days for this type of application from submission of materials.

Chairman Baden motioned to hold the Public Hearing open to be continued on April 10, 2012, which is the Board’s regular monthly meeting. Seconded by Mr. Ricks. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

Chairman Baden noted that what Mr. Moss said was correct. Chairman Baden read a section from the Telecommunications Act from 1996 where it precludes the Board from taking health concerns into consideration. The FCC has sole authority over it. Since they do have 3 separate antennas, could the applicant provide them with the cumulative of the 3 antennas showing that it does meet FCC Standards?

Mr. Moss would be happy to submit documentation with respect to emissions.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

Chairman Baden noted that because of the cumulative effect he’d like to see that. They couldn’t deny the application based on it, but they could at least confirm that it meets the FCC standards. They could submit the documentation to the Town Planner for them to confirm it. He didn’t believe it would be difficult for the applicant to obtain.

Mr. Ricks questioned if there were 3 different antennas put on the pole, they would be pointing in 3 different directions- correct?

Mr. Moss confirmed this.

Mr. Ricks noted that certain places would only be getting emissions from certain antennas and other places would be getting emissions from the direction of other antennas.

Mr. Moss noted that this was more or less correct.

Chairman Baden was noting to have a cumulative reading from all 3 carriers.

Mr. Ullman agreed and noted that there are certain ways that they measure these things.

Chairman Baden was looking at this from the Town’s and Board’s standpoint to look at this from every standpoint that they were able to. They are precluded from denying this application on health issues. There is court case after court case after court case confirming where you can’t do that. But he does believe that the Board can ask to see that it does meet FCC Standards. Beyond that they aren’t asking for anything more. Just for the Board’s knowledge, he read through a significant amount of court cases about this today. The most recent one was from March 2011 where it confirmed the health concerns. Aesthetics of the tower itself can be a valid concern for the Board, however as they discussed at the last meeting that this tower is short in comparison to a lot of other towers. It is visually screened throughout most of the Town. He still has only found one place in this whole Town that he could see it. He is sure that there are other places.

Mr. Moss wanted to point out once again that the tower is already existing and they were here tonight for antennas for T-Mobile.

Chairman Baden noted that they are being presented at 105’ on a 120’ tower.

Mr. Ullman noted that he could see the tower from his house on Boice Mill Road. He can’t see any of the antennas on it.

Chairman Baden noted that property values have been considered in the past, but there needs to be substantial evidence presented and that’s the court’s language. The Board can’t discriminate among providers. The fact that the Town has already allowed 2 carriers on this tower, they can’t discriminate against a 3^rd one unless it was for something like the tower can’t physically support it. They couldn’t just say no.

Mr. Rominger confirmed that they were asking that they meet the FCC requirements or were they asking for specific radiation output.

2012-02SPA Continued Review, SEQRA Determination, and Public Hearing

Chairman Baden felt that they should leave that up to the applicant on how they want to answer the question.

Mr. O’Donnell felt that they should ask what the parameter is and if they were within that.

Chairman Baden confirmed that they would be providing a section of the deed for the Town Attorney to review on the discontinuance clause. That is allowed in the Code and the Attorney should review it to verify that the Town is covered. Did the Board want to see an engineer’s certification of a structural report? Did they want to condition this?

Mr. Ullman thought that the only issue where the reinforcements would be relevant would be if they impacted one of the things that the Board could consider.

Chairman Baden agreed and if they could verify that no additional supports would be necessary to the integrity to the tower and confirming that the existing tower has the capability to support what is being proposed on it. This is not the applicant’s responsibility because the Town doesn’t have the existing tower documentation. He did want to be sure that when another set of antennas goes on that the tower doesn’t fall over.

Mr. Moss re-iterated that it may not be the Planning Board jurisdiction, but maybe during the building permit process.

Chairman Baden confirmed that the Board would be comfortable with that as a condition of approval.

2012-03SUP New Application Presentation and Review

T-Mobile Northeast LLC-applicant, for Everyday Logistics LLC aka Hudson Valley Resort and Spa, property owners, for Special Use Permit and Site Plan review, for the installation of 3 wireless communication panel antennas to be co-located on the penthouse of an existing hotel structure and the installation of associated equipment on the rooftop of the structure, applicant to lease a 300 sq. ft. area from the owners, 400 Granite Rd., Tax Map #76.4-1-56.1, ‘R-5’ zoning district.

Chairman Baden noted that this application was adjourned by the applicant’s request. Chairman Baden began his own cursory review. Since they have requested to adjourn, all review has stopped.

Mr. Ricks questioned with the application on City Hall Road and now this one, do both need to exist to get the correct coverage or could one exist on its own.

Mr. Moss noted that with respect to this application it isn’t going forward at this time. As all carriers do as per their FCC licenses are charged with building out their national network and that means providing service every where that service is required. In this case multiple sites are needed to fill their gaps. The applications are indicative of the fact that there are gaps in both of these areas and they would co-exist.

Chairman Baden noted that this application would be for a Special Use Permit and Site Plan review because it is an existing structure, but not an existing wireless communication facility. Because of the letter for adjournment the time clock has stopped in terms of SEQRA.

2012-03SBD New Application Presentation and Review

Hillary Briley and Gloria Mattox-Minor Subdivision, for a 2 lot subdivision of a 16.612 acre parcel with access from a private road, 50 Cliff Road, Tax Map #68.2-2-16.2, ‘R-2’ zoning district.

Bill Eggers, Land Surveyor was present on behalf of the application.

Chairman Baden noted that the Tax Map # was incorrect on the application. He asked that Mr. Eggers correct it and initial it.

Mr. Eggers noted that this is +/- 16.5 acres on Cliff Road. The lower portion of Cliff Road is maintained by the Town- about the first 100’ of roadway. Beyond that area is private and there are numerous existing homes some of them are seasonal some of them are year round. There is currently a mobile home and a house on the property. They have separate wells and septics. Hillary Briley is the daughter and the mother, Gloria Mattox is the mother who has life residency here. There is an existing driveway passing through the property, which has an existing right of way that goes to lands of Chamberlain/ Ruger on the North side. There would be a reservation of the use and continue to use that although they would also have a 50’ strip coming down onto the side to provide frontage on the road, which they could put a driveway in. He didn’t see any physical constraints with that.

Chairman Baden questioned what the purpose was of the subdivision.

Mr. Eggers believed that she is in contract to convey lot 1 with the mobile home to Ruger as a separate stand-alone parcel.

Chairman Baden noted that he referred this to the Town Attorney because Cliff Road is a very controversial road that is not up to Town standards and Mr. Kelder, Highway Superintendent, has not given approval for more than several building permits along this road. The Town Attorney’s opinion is in the packet. Because it’s not on a road that meets Town standards, the Board needs a waiver request to waive the requirement. She wanted a note on the map relieving the Town from liability. Normally when we get a subdivision request the Board refers the application to whatever roadway entity has jurisdiction. They will refer this to Mr. Kelder, but Mr. Baden was pretty confident that his response would be consistent with his past responses. The easement that is existing goes into the other lot and were they proposing a new easement to get to the back house?

Mr. Eggers noted that the driveway going from lot 1 to lot 2 was existing, but they would supply a new easement for that.

Chairman Baden noted that in that easement language they would need a statement noting that the Town wasn’t responsible for that.

Mr. Ricks questioned what happened to the utility line- it just ends to the trailer.

Mr. Eggers noted that it went underground.

Chairman Baden noted that the Town Attorney’s feeling is that because the two structures are existing that the subdivision is valid, but the Board should put a condition on that it may not be further subdivided for building purposes because it does not front on a road that meets Town standards. She also says that the Board should say that no new residential dwelling building permits shall be issued until such time that the road is certified for safety precautions. These lots are big enough that they could be subdivided again.

2012-03SBD New Application Presentation and Review

Hillary Briley and Gloria Mattox (cont’d)-Minor Subdivision, for a 2 lot subdivision of a 16.612 acre parcel with access from a private road, 50 Cliff Road, Tax Map #68.2-2-16.2, ‘R-2’ zoning district.

Mr. O’Donnell noted that it needs to be added that if they do bring the road up to specs that they could do it.

Chairman Baden noted that they would get the language from the Town Attorney. He questioned if they were going to put in a driveway on the 50’ strip back to the home?

Mr. Eggers would check with the current owner.

Chairman Baden motioned for an Unlisted Action under SEQRA. Seconded by Mr. Ullman. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

Chairman Baden motioned to forward this application to the Highway Superintendent for review. Seconded by Mr. Rominger. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

Chairman Baden noted that there are no other agencies that need to be contacted for this application.

Mr. Rominger motioned to schedule the Public Hearing for the April 10, 2012 Meeting. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

2012-01SBD Decision

Beth and Leon Smith– Minor Subdivision, for a 2 lot subdivision of a 30.806 acre parcel with access from a private road, Trotter Lane, Tax Map #76.2-2-27.13, ‘AR-3’ and ‘Floodplain Development Overlay’ zoning districts.

Chairman Baden noted that the Public Hearing has been closed and the action has been typed as Unlisted and Uncoordinated Review. A Negative Declaration was rendered on January 10, 2012.

This is the same application that was approved in 2011. Mr. Smith missed his filing date by one day and he had to start the process over.

At this time Chairman Baden read through the Draft Findings as follows:

Findings of the Planning Board

This application is a new review of the plat previously approved with decision #2011-03SBD.
The conditions of decision #2011-03SBD were satisfied and Final Approval was granted on Oct. 31, 2011.
The applicant failed to file the signed plat with the County Clerk within 62 days of signature, as required by NYS Town Law, which invalidated that approval.
The Town Attorney advised a new application must be submitted and a new review conducted. The applicant complied and no amendments to the application have been proposed or are required.
The new application was referred to the Ulster County Planning Board which issued a comment of “No County Impact”.
Mr. Smith was a member of the Planning Board during the review of the application. He recused himself and did not participate in any deliberations or vote.
Mr. Smith’s term of office has expired and he is no longer a member of the Planning Board as of 3/1/2012.

Mr. Ullman motioned to accept the Findings as read into the record. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

At this time Chairman Baden read through the Draft Resolution and Conditions as follows:

RESOLVED,

The Town of Rochester Planning Board decision #2011-03SBD was made invalid due to failure to file with the Ulster County Clerk within the prescribed number of days. Beth and Leon Smith have submitted a re-application for Minor Subdivision approval.

With this completed review of reapplication, the Planning Board grants Minor Subdivision-Conditional Final Approval to Beth and Leon Smith permitting the subdivision of lands situate at Trotter Lane, SBL 76.2-2-27.13, and in the ‘AR-3’ and ‘FD Overlay’ zoning districts of the T/ Rochester. The plat dated Oct. 12, 2011 is approved with the following conditions and modifications.

CONDITIONS of APPROVAL:

An amended plat removing the approval signatures of decision #2011-03SBD shall be presented to the Planning Board.
All easements identified on the plat shall be recorded as deed covenants and filed with the Ulster County Clerk simultaneously with the plat.
Any and all fees due to the Town of Rochester involving this application shall be paid in full prior to the Chairman’s signature on the plat.
All Local, County, State, and Federal Laws or Codes shall be complied with and all required Local, County, State, or Federal permits shall be secured for the use of these lands.
Ulster County Health Department (UCHD) approval for the proposed septic area shall be secured prior to the issuance of any residential building permits. All provisions of the UCHD approval shall be made a part of this approval. Should any provisions of the UCHD approval cause alteration of the lot metes and bounds, the application shall be re-submitted to the Planning Board for review.
The agreement established by the Easement and Road Maintenance Agreement, as filed with the Ulster County Clerk on 2/8/2006, shall continue in effect and shall be further recognized in deed covenants for the approved Lots 3 and 4.

Any construction or disturbance within the FEMA designated 100-year floodplain shall adhere to the Code of the Town of Rochester Chapter 81, Flood Damage Prevention, or its successors.

There shall be no regulated activity as defined by Article 15 of the Environmental Conservation Law on this property within the bed or banks of the Rondout Creek at any time without having first secured the necessary permission and permit required from the NYS Department of Environmental Conservation.

This Conditional Final Approval shall expire 180 days from this approval date unless conditions #1 through #3 are satisfied by the applicant and a plat is presented and certified as complete by the Chairman. This period may be extended for two additional 90 day periods upon application to and resolution by the T/ Rochester Planning Board.

The Town of Rochester Planning Board further grants Minor Subdivision-Final Approvalupon the satisfactory completion of conditions #1 through #3 and presentation of the plat. Conditions #4 through #8 shall remain in effect. The Planning Board grants the authority to the Chairman to certify the conditions have been completed and to sign and date the plat at such time. Should any of these conditions be unable to be fulfilled or should the fulfilment cause a change to the metes and bounds of the proposed parcels, the applicant shall present an amended plan to the Planning Board for review.

The owner shall file in the office of the Ulster County Clerk such approved plat bearing the Chairman’s signature within 62 days from the date of signature or such approval shall be deemed to expire in accordance with NYS Town Law §276. The owner shall have the responsibility to return three (3) Ulster County Clerk certified copies of the plat and easements to the Town of Rochester Planning Board within 30 days of filing.

Mr. Paddock motioned to approve the application as read into the record above. Seconded by Mr. Rominger. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

OTHER MATTERS

SEQRA-

Chairman Baden noted that the SEQRA Forms have been updated and will be put into effect on October 1, 2012. He has sent everyone the link to the web page to view the new forms. At the Association of Towns meeting they held a round table discussion and they are possibly going to make changes to Type 1 Actions and Type 2 Action and they are currently looking for suggestions and additions.

POSSIBLE MEETING PLACE CHANGE

Chairman Baden questioned what the Board thought about holding meetings at the Community Center as it is in the same building as the PB Office and it would be easier for the Secretary instead of carting piles and piles of files and maps to the Town Hall for each meeting. He could approach the Town Board about this and he wondered what the members thought?

OTHER MATTERS (CONT’D):

REFERRALS TO CEO

Mr. Ricks knew that the PB wasn’t an enforcement agency, but a lot of times he’ll notice that conditions and site plans that the Board approves aren’t complied with.

Chairman Baden noted that a Board member could do it as individuals or they can contact the Chairman and he’ll write a memo to the CEO to see if the property has fulfilled its conditions.

Mr. Ricks recalled that the Board used to do it.

Mr. Ricks was personally interested in having the logging place checked for compliance with the PB Decision.

Mr. Ricks motioned to send a letter to the CEO to check the logging operation on Route 209 for compliance to their PB Decision. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

At 9:28PM Chairman Baden motioned for executive session to discuss the Town Planner and he invited the Secretary and Alternate to stay for the discussion. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

At 9:33PM Mr. O’Donnell motioned to come out of executive session. Seconded by Mr. O’Donnell. No votes were taken and no monies expended. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

OTHER MATTERS (CONT’D):

Mr. Rominger motioned for Chairman Baden to contact the Town Board to explore the possibility to change the Town’s Planner and Engineer. Seconded by Mr. O’Donnell. No discussion.

Vote:

Baden: Yes Tapper: Absent

O’Donnell: Yes Rominger: Yes

Ullman: Yes Ricks: Yes

Paddock: Yes

Motion carried. 6 ayes , 0 nays, 1 absent, 0 abstention

CONTINUED DISCUSSION ON T-Mobile 82 CITY HALL ROAD

Mr. Ullman questioned that the rule that Mr. Moss stated was that there was a presumption that was whatever was above 10 meters was in compliance. Under SEQRA if it is a presumption does the Board have a valid concern to explore that?

Mr. O’Donnell noted that they requested what the parameters were, and if they fell within those parameters.

Chairman Baden agreed. They couldn’t review the effect of the RF readings, but just whether or not it was in compliance.

ADJOURNMENT

Mr. Ricks motioned to adjourn the meeting. Seconded by Mr. O’Donnell. No discussion. All members present in favor.

As there was no further business to discuss Chairman Baden adjourned the meeting at 9:35 pm.

Respectfully submitted,

Rebecca Paddock Stange, Secretary

As Approved at the May 8, 2012 PB Meeting