PLANNING BOARD
TOWN OF ROCHESTER
ULSTER COUNTY
ACCORD, NEW YORK
(845) 626-2434
torpbzba@hvc.rr.com
MINUTES OF JANUARY 13, 2014 the Town of Rochester PLANNING BOARD, held at the Town Hall, Accord, NY.
Chairman Baden asked that everyone stand to say the Pledge to the Flag.
The Secretary did roll call attendance.
PRESENT: ABSENT: Michael Baden, Chairman Robert Rominger, Vice Chairman Fred O’Donnell Melvyn I. Tapper
Adam Paddock
Shane Ricks
John Dawson
Cindy Fornino, Alternate
Also present:
Rebecca Paddock Stange, Secretary. Town Attorney, Mary Lou Christiana was also present.
ANNOUNCEMENTS:
Chairman Baden welcomed new member, John Dawson. Mr. Dawson replaced Mr. Ullman, who chose not to seek reappointment. Mr. Dawson is appointed through 2020. He also welcomed Alternate Member, Cindy Fornino who took over Mr. Case’s term, which runs out at the end of 2014.
Chairman Baden wished a Happy Birthday to both Town Attorney Christiana, and new member John Dawson.
Chairman Baden noted that the Town Board met last week and Mr. Baden made a presentation on behalf of Mr. Rominger and himself requesting the TB form a committee on communications and they agreed. They will start meeting sometime this month. It will be a committee of 7 people. Mr. O’Donnell and Chairman Baden are going to represent the PB. Steve Fornal is going to represent the ZBA, and he is a newly appointed ZBA Member. The Town Board representative is Sherry Chachkin, who is also the PB’s new liaison. There will be a representative from the Code Enforcement Office and there will be two residents on the committee, Jennifer Birch and Jason Broome.
TRAININGS:
Chairman Baden hasn’t seen any trainings yet, with the exception of the Association of Towns, but it is a two day training and a significant expense.
As trainings become available he will let everyone know. For the two new members, 4 hours of training a year are required, two within the first 6 months.
MINUTES:
September 25th minutes were tabled.
Chairman Baden motioned to approve the corrected version of the December 16, 2013 Minutes. Seconded by Mr. Dawson. No discussion.
Vote:
Baden: Yes Tapper: Yes
O’Donnell: Absent Rominger: Absent
Ricks: Yes Dawson: Yes
Paddock: Yes
Motion carried. 5 ayes, 0 nays, 2 absent, 0 abstentions
PB 2013-10 LLI Continued Application
Lot Improvement
OSCAR SCHNIDER– for Lot Improvement conveying 2.15 acres from a +/- 5.3 acre parcel to a 1 acre parcel resulting in two 3.15 acre parcels, 7A and 7B Scenic Rd., S/B/L #77.9-1-38.210 and #77.9-1-55.100, ‘H’ and ‘FD Overlay’ zoning districts
Mr. Schnider was present on behalf of the application.
Chairman Baden noted that the property is over on Scenic Road over on the Rondout Creek. The Board did approve this lot line adjustment back in 2010, but the applicant never filed the map with the County in the time frame required. The Board has a question with the application submittal now stating that there currently are two lots of 5.3 and 1 acre and the Lot Improvement will result in two lots of 3.15, but the map shows slightly different acreages.
Mr. Schnider noted that the map had the correct acreages. He noted that he bought the property in 1981 and it consisted of +/-5 acres. Later on he acquired an adjoining acre. They have a stone house and a boarding house. They live in the boarding house and rent the stone house and he just rezoned it so they have 2 properties. It doesn’t make any sense to have it zoned how it currently is. The idea is that down the road they can be sold separately in the future. So, they have decided to rezone it into two approximately equal parts.
Mr. Ricks noted that when the applicant says, ‘rezone’, he means the lot line adjustment.
Chairman Baden noted that this was in the Hamlet District, which was a ½ acre minimum zoning and both lots comply with that. The setbacks all comply. The one lot now becomes much more usable.
Mr. Schnider noted that the red cross hatched area is where the road used to be and he did a land swap with the Town. Lot 2 has property on both sides of Scenic Road and extends into the Rondout Creek.
Chairman Baden noted that he understood that the acreages on the application and map don’t match up completely, but they would take care of that in the approval. It’s fairly insignificant. The map has the proper language that is required for a lot improvement, so everything on the map is appropriate and this is a Type II action under SEQRA by definition.
Mr. Ricks motioned to accept the lot line adjustment. Seconded by Mr. Paddock. No discussion.
Vote:
Baden: Yes Tapper: Yes
O’Donnell: Absent Rominger: Absent
Ricks: Yes Dawson: Yes
Paddock: Yes
Motion carried. 5 ayes, 0 nays, 2 absent, 0 abstentions
PB 2013-10 SPA Continued Application and Public Hearing
Site Plan Review
New Cingular Wireless PCS (AT&T) – applicant, Global Tower and Zeno Wicks – owners, for Site Plan approval for continued use as telecommunications facility, adding (3) new antennas (same height, appearance, size), (1) Microwave dish, (6) radio head units, (2) power cables, (1) fiber line, and associated appurtenances on an existing 120’ monopole wireless telecommunications facility and modifications to (2) existing racks within the existing 10’ x 20’ equipment shelter, 82 City Hall Rd., S/B/L #68.3-2-47.110, ‘R-2’ zoning district
Attorney, Don Ross, was present on behalf of the application.
Chairman Baden explained that this was an ongoing application. It was presented at the last meeting and a number of members, Chairman Baden included, were not present. He would encourage everyone on the Board to read the minutes from December to see what transpired at the last meeting. A number of questions were presented by Chairman Baden through Mr. Rominger at the last meeting and the Board has received a packet this afternoon with answer to those questions and additional information.
Mr. Ross noted that he was an Attorney with Phillips Lyttle in Albany, NY and they represented Cingular Wireless. As the Chairman said they have responded to the Chair’s questions from his letter dated December 16, 2013.
- Are there guy wires existing currently on the tower? If yes, are the proposed guy wires replacements or additions to existing? Answer: Yes. 3 guy wires have been installed by the tower’s owner, Global Towers Partners. They are new installation. GTP informed him that the work was complete and there wasn’t any further re-enforcement activity scheduled. He was just as surprised as the Board was that there was ongoing activity going on at the site prior to the meeting. The work was done by GTP on their own initiative. He certainly didn’t authorize it and he wasn’t asked about it. He obviously applied for it as it is necessary to do to complete his proposed project, but he certainly had no intention of having those done in violation of the court order or in advance of their application or without a building permit.
- Will the footprint of the proposed guy wire anchor placement exceed the perimeter of the compound as currently constructed? Answer: As per the construction drawing submitted with the application, 2 out of 3 of the guy wires are installed outside of the compound. He wasn’t sure how tall the fence is that will be installed around those wires.
Chairman Baden noted that having only received this information this afternoon, he hasn’t really had a good chance to look at this information. He did notice on the site plan D-3, it says that a fence will need to be constructed around each anchor per regulations, but there is no indication of height or type of fence.
Mr. Ross noted that if it is a part of the building permit that a fence be constructed per certain regulations, they would follow those regulations.
- The structural report is based on the addition of the proposed guy wires. Are these guy wires necessary to certify the structural integrity of the tower with the proposed equipment upgrade? Was a structural report conducted without the guy wire addition that was determined to be structurally unsafe? If so, please provide this document. Answer: Yes. The guy wires are necessary. They provided as part of today’s submittal a structural analysis that was done in May 2013, taking into account the current loading of the tower and taking into account AT&T’s proposal and the tower’s capacity would be exceeded. As a result of that as part of the application that he has submitted the proposed modification were the guy wires. As a result of the guy wires the way they are anchored and the force they exert on the tower, the tower would pass the structural analysis, which they submitted dated August 15, 2013.
- Will the proposed guy wires have any impact on existing equipment located either on the tower, to equipment cabinets, or within the compound proper necessitating either relocation, removal, or change? Answer: An inspection report confirms that nothing needs to be relocated in terms of equipment in result of the installation of the guy wires.
- What will be the visual impact of the guy wires? From what distance will they be visually “invisible”? Answer: He provided the post modification inspection report which included photographs. They were taken from within the perimeter of the compound and the only thing he could say was that guy wires were less than an inch in diameter, so logically speaking they would probably be difficult to see beyond a few hundred feet away- that was his subjective view.
Chairman Baden noted that there was some discussion in December about the guy wires being 3 cables per location?
Mr. Ross noted that there are 3 guy wires, 1 per anchor, anchored in a 30’ radius away from the tower. The drawing that they had submitted last month was a construction drawing that was trying to demonstrate how the wire would be grounded. There was a disclaimer in there that said that this should be used for purposes of grounding, labeled “D-GD2” in last month’s and this month’s submittal. There is only 1 guy wire per anchor at 7/8” thick.
Mr. Ricks questioned that the turn buckles where it hooks to shows that there are 5 holes for wires, but he was saying they were only using 1?
Mr. Ross turned back to page GW-1. This page shows the detail and labels the remaining 4 holes on the turn buckles as being ‘empty’ and it shows the center one as having the cable. There was also some confusion regarding the address saying ’73 City Hall Road’ in places in the application. That has been corrected to reflect the correct location of the tower, which is 82 City Hall Road.
Chairman Baden noted that the initial Zoning Permit is incorrectly labeled with the wrong address and parcel ID number. He noted that some of the construction drawings still reflect 73 City Hall Road, so at some point that needs to be corrected as well before the PB could sign off on those drawings.
Mr. Ricks questioned that as they poured these concrete anchors already with rebar and what not and everything is all poured and done and they can’t be inspected – what is the status on that?
Town Attorney Christiana noted that would be a Building Dept. issue. The applicant is going to need to get their approvals for that and apply for a building permit for that. The CEO may say dig it up, he needs to make sure that it’s done properly, but that isn’t something that the PB has any authority over and will be a building dept. decision.
Chairman Baden noted that the PB made Mr. Davis, CEO aware of the situation and Mr. Davis sent a letter to Global Tower, the tower owner, requesting a reply and they have not heard anything back.
Mr. Ross noted that Global Tower never received the letter. There needs to be a better address for the landlord on file.
Chairman Baden didn’t know this for a fact, but he believed the notice from the Building Dept. had gotten returned to sender.
Mr. Ross noted that once the PB Secretary had alerted him that the letter had been kicked back, they provided it to GTP. For better or worse, the onus is on this application. If the application includes those, the landlord (GTP took it upon themselves to do this without anyone’s authorization) but it is Cingular’s project, so he needs to make sure that it’s done properly.
Chairman Baden noted that without filing a Zoning Permit themselves, the guy wires may or may not have needed PB approval, but because the CEO didn’t review it, the PB can’t predict that. The fact that they did choose to do it on their own, because the PB isn’t an enforcement board, they can’t issue any penalties for this. The PB can’t issue building permits or take away. The PB can’t do anything about that except to notify Mr. Davis, CEO of what they are aware of and now that the PB has received this new information he will be forwarding this on to the CEO. The Board did only receive this information at 1pm this afternoon and Mr. Davis was not in his office today. He can’t predict what the CEO will do and the Chairman doesn’t even know what his options are.
Mr. Dawson noted that he needs to verify what’s inside—he could rip it apart to see that or they can X-ray it. They do it on bridges that way, but it needs to be done.
Chairman Baden noted that at this point, it’s all a supposition on the PB’s part and as sad as it is to hear that this has happened there is actually very little the PB can do. They can’t stop the review of this application because of actions taken on this property that are against code. There have been many times where the Board has reviewed an application where the applicant has already done the work and the PB knows about it. It’s not in the Board’s purview. The Board has a set time in which to review applications, especially in regards to cell tower review. The Federal shot clock is ticking and the PB has to follow it. The Supreme Court in 2013 declared that the FCC Shot Clock is valid, so they need to continue. That being said, this application was filed under Section 6409 as an “eligible facilities request”. The Chairman has conferred with the Town Attorney and now that the guy wires are being brought into the discussion and they are showing that they intersect with the ground at 30’ outside of the tower, this no longer falls under the FCC’s Public Notice. Section #3 where they say the mounting of the proposed antennae would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20’ or more than the width of the tower at the level of the appurtenance- whichever is greater, excepting the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable. The Chairman agreed that if it was just the antenna proposed that it would certainly meet those requirements, but because the Board now has evidence presented by the applicant that without the additional guy wires the antenna are not able to go on the tower.
The Town Attorney agreed with this.
Mr. Ross understood that the Board was taking this under careful consideration, but he believes the interpretation of Section 6409 includes this as an eligible facility. In #3 of page 2 of the Public Notice. This is a Public Notice that was provided by the FCC in January of 2013. For now it serves as the interpretive document of Section 6409 of the Middle Class Tax Relief Act. Section 1 (C) of the Nationwide Collocation Agreement that’s another interpretive case that the FCC uses to determine what’s a substantial increase in the size of the tower. There is a 4 part test. He is going to skip to parts 3 & 4.
3) [t]he mounting of the proposed antenna would involve adding an appurtenance to the
body of the tower that would protrude from the edge of the tower more than twenty feet, or
more than the width of the tower structure at the level of the appurtenance, whichever is
greater, except that the mounting of the proposed antenna may exceed the size limits set
forth in this paragraph if necessary to shelter the antenna from inclement weather or to
connect the antenna to the tower via cable; or
4) [t]he mounting of the proposed antenna would involve excavation outside the current
tower site, defined as the current boundaries of the leased or owned property surrounding the
tower and any access or utility easements currently related to the site.
Mr. Ross continued to note that the Board’s position was that the guy wire was an appurtenance and he would respectfully disagree with that. The appurtenance would be an antenna or a microwave dish.
Chairman Baden noted that he would agree if it were only an antenna, because obviously it wouldn’t be outside the 20’. To him the structural report is indicating without the guy wires the tower would fail the structural report test. So, the antenna cannot be mounted without the guy wire. He admits that it is a literal reading, but being that this is a new document he thinks that they could only take a literal reading. The FCC went to great pains to follow what they were told to do with the Middle Class Tax Act of 2012 legislation which was left very vague. The FCC took it to the next step by preparing this document, and they are the authority on telecommunications and they can only follow with what they’ve said. As far as #4, the Chairman does agree with Mr. Ross and he is not contesting that. He does understand that two of the pads are outside of the current fenced area, but they are not outside of the current leased area. He does agree with that. The leased area is 100’ x 100’ and the fenced area is significantly less than that, but there is no requirement that the fence cover the entire leased area. As long as the guy wire points that are outside of the fenced area are appropriately fenced, you have now covered the federal regulations for safety. It’s only #3 that is the issue, but the Chairman feels strongly about this and at this point he is not sure what else to do other than to say that it really is not a change in the application, although what he believes it does is allows the PB to do a little more review and because he doesn’t believe that they fall under Section 6409 now and as the language of Section 6409 no longer applies in his opinion.
Town Attorney Christiana noted that it’s not yet interpreted.
Mr. Tapper questioned what happens if the applicant feels that it does?
Town Attorney Christiana noted that this has not yet been tested by the Courts.
Chairman Baden noted that Section 6409 was passed last February of 2012. It’s a section of the Middle Class Tax Act of 2012, which basically said any co-location that fell within the guidelines that they prescribed, must be approved and cannot be denied. There has not been a single court challenge to this yet. There are several decisions in ongoing court challenges where the courts briefly mentioned it, but did not delve into it because their challenges started before Section 6409 was passed. So, he can only assume they didn’t believe it was appropriate to cite it although it was mentioned in some court decisions. There is not a single case that has been taken up on this yet. He is hoping that Mr. Ross will not make this a first, but he feels strongly that the PB needs to be fair to the residents of the Town, to be fair to the people, especially in light of the situation. The Board would not even know about some of the activity that is going on if it weren’t for the public hearing on a previous application by another applicant where it came to light that there was work being done on the tower. The PB alerted the CEO and he thinks that the Board owes it to the residents to do as thorough of a review as they can. He doesn’t know what that means at the end of the day. It certainly doesn’t necessarily mean a denial. It means that the Board does a little more thorough review because they are now talking structural. They weren’t just talking about adding an antenna on an existing tower. His opinion was that when this law was written he didn’t think it was ever intended for infinite antennas to be added on to towers. He thinks it was meant to increase broadband, it was meant to when you hit the structural limitation that then it needed to be looked at. Again, he was voicing his own personal opinion, but he thinks they have to take this to a review. Which, further leads him to something else, because he knows the applicant will probably cite the FCC Shot Clock on the Board. This application has been somewhat flawed since the beginning. He’s gone back through the history of it. It was initially a Building Permit application and a Zoning Permit was filed with the CEO on September 5, 2013. The CEO reviewed the Zoning Permit, did not review the Building Permit Application and returned that along with the building permit check because he referred it as requiring Site Plan Approval to the Planning Board. That initial application had not only the wrong address, it had the wrong parcel ID number andthe wrong Zoning District. If it wasn’t for the fact that there is only one cell tower on City Hall Road, he would not have known what property the applicant was talking about. Someone in the Code Enforcement Office corrected the Zoning Permit Application to the proper information and forwarded it onto the Planning Board and we received it September 25, 2013. The PB didn’t receive an actual application from the applicant until November 25, 2013 for Site Plan Approval. That application did have the correct Zoning District and Tax ID Number, the correct address. However all of the detail information provided has incorrect information on it. He understood that it was somewhat semantics, but 73 City Hall Road is not 82 City Hall Road. In this case it is a very unique situation in that the property is ‘U’ shaped and there is a center portion of it that is one parcel and the ‘U’ shape is the other. The one in the center is 73 City Hall. None of those original applications mention the guy wires. All that is mentioned are the additional antennas. The construction drawings submitted did go very much into detail, which is what caught the Chairman’s attention. In what was submitted by the applicant today, there is another new Zoning Permit Application dated 1/7/14, which does now include the guy wires. The Chairman went to the CEO and asked if there was a new Zoning Permit submitted to their office and they said, that was the first they had seen it. The PB received it as part of the exhibit, but it was never submitted by the applicant to the Building Dept. It’s just a little frustrating for the PB that this has come along haphazardly. If the applicant submitted this new Zoning Permit, properly filled out, to the CEO, let him make a determination, it will help everyone because now everyone will be reviewing the same application. Will it put the applicant a few months behind? Yes, but in the long run there will be a better, cleaner review.
Town Attorney Christina emphasized that it would be a less challengeable review. She’d like to see the application cleaned up and this would do that.
Mr. Ricks agreed. In a few years this file the way it is will be hard to decipher.
Chairman Baden suggested that the applicant withdraw the existing application in front of the PB and present a new one with the current documentation that was submitted at this meeting. The Board will roll over the fees to the new application as that has been the history with applications in the past in similar circumstances. He thinks that they need a clean application with the correct information, which the Board has a majority of, they just need to start over.
Town Attorney Christiana Agreed.
Mr. Ross apologized. It was not their intent to mislead the Board.
Chairman Baden understood. He further noted that they would not be opening the Public Hearing tonight as the Board did not receive all of the submitted information until late this afternoon. He wants a good review and he’s taking the neighbor’s concerns into account and he wants it to be done legally and correctly.
Town Attorney Christiana suggested that the applicant agree to not open the Public Hearing for the evening.
Mr. Ross agreed with not opening the Public Hearing.
Chairman Baden noted that as a PB they don’t need to know the why’s of what happened, but everyone is a little shocked as to the significant amount of work that went on to the tower. Again, this does not factor into the Board’s decision and it is not legally allowed to. It still sets a bad light for everyone.
Mr. Ross asked what the Board wanted to see.
Chairman Baden noted that if they took Exhibit E—the Zoning Permit that was revised and submitted to the PB—submit it to the CEO. The CEO will make his determination, then he will refer it to the PB and decide if it is for Site Plan Review. They would ask for a site plan application again and officially withdraw the original. They don’t have to happen simultaneously. The fee will be rolled over to the new application and then the PB will go from there. This is not a Section 6409 Review. It will be a full review. More information would be if they could supply the radio emotions statement than they comply with the FCC’s standards. He realizes that the PB can’t look at emissions, but the applicant can certify that they meet their standards.
Mr. Ross noted in regards to structural analysis in 6409 any time they would file an application with any Town and say that this is an eligible facility, but they would always provide a structural report. The difference of opinion is what constitutes an appurtenance is it comes to a point where every other application is going to need some sort of modification to the tower.
Chairman Baden didn’t disagree on that, but argued that the addition of the guy wires made the application fall outside of 6409.
Town Attorney Christiana noted that this was the about the 9th cell related application and this is the first that has required a modification to the tower.
Chairman Baden noted that 8 of them were co-location. This wasn’t just a matter of shirring the tower up by adding splints or splices or anything like that. When you get to the point of adding guy wires, you’ve reached the limitations of the tower as it was originally constructed or they wouldn’t be putting the guy wires up. To him it warrants a little more careful review. He wasn’t predicting any outcomes and he wasn’t being antagonistic, but he felt it warranted a more careful review.
Mr. Ricks questioned if interpretations of 6409 of the PB and Global Towers differ, how is it looked at ultimately?
Town Attorney Christiana noted that the PB looks at their interpretation and if the applicant disagrees to the extent where they don’t want to agree with that, then they could take it to court and the court could interpret the section for the Board.
Mr. Tapper noted that they could do that midstream in the middle of the application process.
Chairman Baden noted that until a final determination is made—
Town Attorney Christiana didn’t know how the courts would approach this as it is brand new. It would tend to make the process take longer. She questioned what the applicant would like to do with the Public Hearing? What if the applicant went back to his client and the client doesn’t want to withdraw? Did the Board want to tentatively schedule the Public Hearing for February? They couldn’t just leave it sitting out there forever.
Mr. Ross noted that he would consult with his client and get back to the Board with an answer.
Mr. Ricks motioned to tentatively schedule the Public Hearing for February 10, 2014, unless the current application is withdrawn. Seconded by Mr. Dawson. No discussion.
Vote:
Baden: Yes Tapper: Yes
O’Donnell: Absent Rominger: Absent
Ricks: Yes Dawson: Yes
Paddock: Yes
Motion carried. 5 ayes, 0 nays, 2 absent, 0 abstentions
Mr. Tapper questioned if this would reset the Shot Clock?
Chairman Baden noted that the ‘Clock’ goes from when the actual correct application is submitted. Right now the Board has to wait and see what the applicant chooses to do.
OTHER MATTERS
Mr. Ricks thought he saw a training over in New Paltz at the diner.
Chairman Baden noted that there was a diner training this week, but it was about the climate in Greenland and he didn’t think it was pertinent to the Board.
ADJOURNMENT
Mr. Paddock motioned to adjourn the meeting. Seconded by Mr. Dawson. No discussion. All members present in favor.
Chairman Baden adjourned the meeting at 8:05PM.
Respectfully submitted,
Rebecca Paddock Stange, Secretary