Zoning Board of Appeals
Meeting
April 15, 2003
Members present:
Mike Brosnan, Chairperson
Pat Wall, Member
Wendy Graves, Member
Omer Martratt, Member
Don Uveges, Member
Pat Payst, Recording Secretary
This regular meeting was called to order at 7:33 pm. The agenda for tonight will be the reading of the minutes of the previous meeting, a public hearing for the application 03-06 of Arthur E. Wright of 651 Darby Hill Road, seeking approval for a rear yard setback variance for the purpose of constructing a pole barn, application 03-07 from AT&T WIRELESS PCS, LLC, seeking the approval to co-locate up to six communications panel antennas and related equipment on an existing 250 +/- foot communications tower at 539 Mott Road, new business from Robert Noviczski of 22 Concord Street, Scotia, NY applying for a rear yard setback variance of 20 feet for the purpose of new construction on Duanesburg Road, and old business of Robert Warner returning with a variance application for an undersized lot at 1046 Creek Road, and anything else the Board wishes feels appropriate.
The minutes of the March 18th, 2003 meeting were read. Pat Wall made a motion to accept the minutes with the one type noted. Omer Martratt seconded. Member Wall, aye; Member Martratt, aye; Chairperson Brosnan, aye; Member Graves, aye; Member Payst, aye; Member Uveges, aye.
The first order of business will be a public hearing for the application of Arthur Wright. The notice as advertised in the Daily Gazette on April 7, 2003, was read. Pat Payst and Don Uveges did drive bys of the property and agreed the proposed structure is consistent with the neighborhood. The Board received a letter last week from abutting neighbors, David and Barbara Remling, stating they have no reservations on the proposed variance. The floor was opened for comment. Leo Shaw, a neighbor across the street, stated he supported the proposed variance. Floor closed. This is a Type II action and all the requirements of the SEQRA are met. The Board reviewed the application. Mr. Wright in formed the Board the adjoining wells and septic systems were more than 100 feet from the property lines. His septic system covers a sizeable portion of his side yard. Pat Wall made a motion to grant a fifty (50) foot rear yard setback variance to Arthur E. Wright of 651 Darby Hill Road, Delanson, SBL # 81.00-3-1.1, on a pre-existing undersized lot, which does not change the character of the neighborhood due the practical difficulties of this being the only area the proposed structure will fit on this lot and providing a building permit be obtained within six months and all other aspects of the Ordinance be followed. Wendy Graves seconded. Member Wall, aye; Member Graves, aye; Chairperson Brosnan, aye; Member Uveges, aye; Member Martratt, aye; Member Payst, aye.
The Board reviewed application 03-08 from Robert Noviczski for the property (presently under a purchase contract) on Duanesburg Road, SBL #66.00-6-28. Mr. Noviczski is requesting a 20 foot rear yard variance to build a new dwelling on a pre-existing undersized lot. The original dwelling burned down several years ago. The Board asked Mr. Noziczski to bring a location map and the locations of all wells and septic systems within 100 feet of the property lines. A copy of the deed dated February 17, 1969 was attached to the application. Wendy Graves made a motion to set a public hearing on this application on Tuesday, May 20, 2003, at 7:30 p.m. in the Town Hall. Pat Payst seconded. Member Graves, aye; Member Payst, aye; Chairperson Brosnan, aye; Member Wall, aye; Member Uveges, aye; Member Martratt, aye.
The application 13-02 from Robert Warner of 3868 Western Turnpike, Duanesburg for the property at 1046 Creek Road, SBL #63.00-1-4, for an area variance was reviewed by the Board for completeness. This is a pre-existing undersized lot. The Board returned the application at the November 2002 meeting because it was incomplete. Mr. Warner presented the Board with one copy of the proposed plot plan and it was determined an 11 foot side yard was also needed. Mr. Warner was asked to supply the Board with additional copies. Wendy Graves made a motion to set a public hearing on this application 03-09 on Tuesday May 20, 2003, at 7:30 p.m. in the Town Hall. Pat Wall seconded. Member Graves, aye; Member Wall, aye; Chairperson Brosnan, aye; Member Payst, aye; Member Uveges, aye; Member Martratt, aye.
Matthew Carter was not at present and his application (03-05) was tabled until next regular meeting.
The notice of a public hearing for application 03-07 from AT&T Wireless PCS, LLC for a variance to locate equipment at an existing tower site as advertised in the Daily Gazette on April 7, 2003, was read. This tower was completed prior to the adoption of Local Law 4 (Cell Tower Ordinance), which requires a 500 foot distance to the nearest residence. This distance is approximately 270 feet. Douglas Dimitroff, representing AT&T Wireless PCS, LLC, spoke on co-locating an antenna array on an existing tower instead of erecting a new tower at some other location in the area. He also reminded the Board that Local Law 4 encourages co-location instead of siting a new tower. AT&T Wireless PCS, LLC is currently applying to the Princetown Zoning Board of Appeals for a cell tower near the Duanesburg Town Line. Scott Heffernan, a radio frequency engineer for AT&T Wireless, spoke in detail on the antenna output being well within FCC guidelines. This antenna will be mostly used as a repeater rather than serving many stationary sites such as one located in a city. He stated the antenna would probably never approach 100% of rated output and AT&T Wireless wants to establish coverage west of Albany.
The floor was opened for comment. Janice Cornice, a teacher, who lives across the street from the tower on Mott Road, made reference to the increase in asthma and ADHD in the students she taught. She also noted she has not felt well since the tower was installed. She and her neighbors are not pleased with the esthetics of the tower and the landscaping that was not completed. Also more health data should be gathered before any resolution of this variance.
Arlene Lent of Suits Road spoke about the rudeness from the Town Supervisor at a past meeting and the health impact on her neighbors. She referred to a meeting among doctors who stated this tower placement was the worst in the US. She stated that no one from the FCC lives in any of these homes. She suggested that no antennas be added and the tower be moved to a location with fewer homes.
Pat Wall informed the audience that the Zoning Board has no authority to grant permission to the applicant to add antennas, as that is the duty of the Planning Board.
Susan Stankovitch of Darrow Road referenced Local Law 4 concerning the Town protecting the health and safety of the residents and having proof of liability insurance by the telecommunication company. She referred to a pending lawsuit in Indiana concerning health issues of people living close to a cell tower. She stressed the loss of property values by the nearby cell tower. She made reference to a book – (Cell Towers by B. Blake Levitt)- that describes this cell tower, its’ health issues and other topics.
Steve Rutkowski of 1966 Darrow Road agrees with his neighbors and sees no need to repeat their views. He questions the need for more antennas as other phone carriers use roaming to keep calls connected.
Larry Stankovitch of Darrow Road also made reference to the book "Cell Towers" and recommended it be read. Dr Bill Curry, an expert participant in the previously mentioned Indiana suit, came to his home and proceeded to take radio frequency readings with a calibrated measuring device and suggested he leave immediately. Mr. Stankovitch made many references to the health problems he and his wife suffer from. He mentioned a meeting on cell towers in Salzburg, Austria and the lowering of an emission standard and suggested a complete radio frequency study before siting a cell tower.
Michelle Proctor of 319 Mott Road expressed concern about the health of her family and her neighbors.
Pat Maclaughlin of 706 Suits Road, expressed concern about any health effects on his pregnant wife and their child. He is also concerned about the welfare of the local children.
Susan Stankovitch read about the health effects from cell towers from the book "Cell Towers".
Linda Vanier of 181 Suits Road asked the Board to take a far-sighted view of the possibilities of health problems from cell towers and protect the residents of the Town.
Larry Stankovitch talked about his health problems and the effects of radio frequency on people. He reinforced previous concerns of his neighbors and stressed the Board has the power to do the right thing.
Mr. Dimitroff said this is the first site for AT&T Wireless in Duanesburg and by law is entitled to locate or co-locate transmission equipment in the Town. He referred to Local Law 4 that states co-location is preferred to a new tower. Also case law states co-location application is held to a lower standard than a new cell tower application. Federal guidelines prohibit the Zoning Board from considering any health effects if the antenna transmits below FCC limits.
Pat Wall was at a conference on cell towers and was informed of the same prohibition.
Wendy Graves asked Mr. Heffernan for a clarification of the antenna emissions and he explained more about it. Omar Martratt asked Mr. Heffernan if this was a safe system and he replied it was.
The floor was closed.
Chairman Brosnan read section 14.5.2 B) of the Ordinance which defines the application of area variances.
Town Attorney Jeffrey Siegel spoke on the reasoning behind the application of the proposed variance. As this tower was grand-fathered in, the applicant decided to apply for an area variance just in case. Also, the Board has discretion to consider health aspects but cannot deny this variance for that reason. Local Law 4 states that co-location is preferred to a new tower. Case law holds the variance applicant to a lower standard of review than the Ordinance.
The Board took a short break.
Mike Brosnan made a motion that:
WHEREAS, AT&T Wireless PCS, LLC (the "Applicant") desires to co-locate up to six (6) panel antennas, consisting of three (3) sectors with two (2) panels per sector (the "Antenna") on the existing telecommunications tower located at 627 Mott Road, Duanesburg, New York (Tax Parcel No. 68-3-29)(the "Property") and to construct certain accessory facilities on the property; and
WHEREAS, on September 13, 2001, the Town of Duanesburg adopted Local Law No. 4 of the year 2001, known as the Telecommunications Facilities Law, regulating the location, construction and operation of telecommunications facilities, as more particularly set for the therein; and
WHEREAS, pursuant to Section 5.0(a)(3) of the Telecommunications Facilities Law, an applicant proposing to share use of an existing telecommunication tower is required to submit a special use permit application and site plan documentation; and
WHEREAS, pursuant to Section 5.0(a)(3) of the Telecommunications Facilities Law, the site plan is required to demonstrate, among other things, that the antenna shall not be closer than 500 feet from the nearest residence; and
WHEREAS, the existing telecommunications tower on the Property is located approximately 270 feet from the nearest residence, thereby requiring the Applicant to obtain an area variance for the Antenna with respect to the set back requirement of Section 5.0(a)(3) of the Telecommunications Facilities Law; and
WHEREAS, on February 21, 2003, the Applicant submitted to the Town an Application for Variance and an Application for Special Use Permit, together with exhibits setting forth construction drawings, a proposed site plan, the Applicant’s license from the Federal Communications Commission, radio frequency propagation plots, the site lease agreement, a Full Environmental Assessment Form with Visual Addendum, a structural evaluation of the existing telecommunications tower, a calculated radio frequency emissions study, and other information as more particularly set forth in the Application; and
WHEREAS, at a meeting of the Town of Duanesburg Zoning Board of Appeals held at the Duanesburg Town Hall on March 18, 2003, the Zoning Board of Appeals resolved to hold a public hearing on April 15, 2003 at 7:30 p.m. concerning the Application for Variance; and
WHEREAS, notice of the public hearing was duly published in the Daily
Gazette, the official newspaper designated by the own, on April 7, 2003, and
notice of the public hearing was duly posted on the designated Town sign board
located in the first floor lobby of the Duanesburg Town Hall; and
WHEREAS, at least ten days prior to the date of the public hearing, the
Town Clerk notified all property owners within 500 feet of the Property of the
proposed area variance, setting forth the nature of the proposed variance and the
place, date ands time of the public hearing; and
WHEREAS, a public hearing was held at the Duanesburg Town Hall on
April 15, 2003 at 7:30 p.m. at which time the public was given the opportunity to
provide input concerning the Application; and
WHEREAS, the Zoning Board of Appeals has reviewed the Application, the
Applicant’s presentation, the Telecommunications Facilities Law, The State
Environmental Quality Review Act under Article 8 of the Environmental
Conservation Law and its implementing regulations and the Town of Duanesburg
Zoning Ordinance, and has considered input from the public; and
WHEREAS, after due deliberation, the Zoning Board of Appeals has recognized that:
companies are public utilities, entitled to diminished standards of review
for area variances;
will not cause an undesirable change in the character of the neighborhood. The telecommunications tower currently exists on the Property, and the addition of the Antenna to the existing tower will neither change the character of the neighborhood nor be a detriment to nearby properties;
its service and coverage needs, can be achieved by construction of a new telecommunications tower on property that does not require a variance, this alternative is contrary to the Town’s Telecommunications Facilities Law and is not in the Best interests of the Town;
or district, in that the Applicant has demonstrated that the Antenna would be in compliance with applicable federal, state, and local regulations;
telecommunications tower is in existence, and the Applicant simply desires to co-locate the Antenna with the Telecommunications Facilities Law;
granting the variance will have significantly less impact on the neighborhood, nearby properties and the Town than would construction of another telecommunication tower;
NOW, THEREFORE, IT IS RESOLVED that a Negative Declaration
pursuant to the State Environmental Quality Review Act be issued and the Chairman of the Town of Duanesburg Zoning Board of Appeals is hereby authorized to execute the same in the form annexed hereto and to file the same as required by applicable law; and
IT IS FURTHER RESOLVED that the variance from the 500 foot set back requirement of Section 5.0(a)(3) of the Telecommunications Facilities Law is hereby granted to enable the Applicant to co-locate the Antenna on the existing telecommunication tower of the Property, subject to the issuance of a Special Use Permit by the Town of Duanesburg Planning Board for the Project.
STATE ENVIRONMENTAL QUALITY REVIEW ACT
DETERMINATION OF SIGNIFICANCE
This notice is issued by the Zoning Board of Appeals of the Town of Duanesburg ("Board"), acting as lead agency, in an environmental impact review, pursuant to and in accordance with Article 8 of the New York Environmental Conservation Law and the regulations promulgated under Article 8 and set forth at Part 617 of Title 6 of the New York State Code of Rules and Regulations (collectively referred to as "SEQR").
The Board has determined that the proposed installation of telecommunications antennae at a centerline height of 200+/- feet on an existing 250 +/- foot lattice tower ("Tower") and the installation of related equipment at the base thereof (collectively "Project"), will not have a significant adverse impact upon the environment and that a negative declaration pursuant to SEQR may be issued. Reasons supporting the determination are fully explained below.
Applicant: AT&T Wireless PCS, LLC
Project Name: CO-location of PCS Antennae on Existing Tower
SEQR Status Type____ Unlisted XX
Project Description: The Project consists of the installation of telecommunications antennae at a centerline height of 200+/- feet on an existing 250+/- foot Tower and the installation of related equipment at the base thereof.
Location: S.B.L. No. 68-3-29, Mott Road, Town of Duanesburg, State of New York (the "Project Site")
Omer Martratt seconded. Chairman Brosnan, nay; Member Martratt, aye; Member
Graves, nay; Member Uveges, nay; Member Wall, aye; Member Payst, aye. Member Graves stated she did not believe that it has been proven that it cannot be accomplished by using another tower and that it meet the requirement in our Town of being within 500 feet of a residence. The application did not carry.
Omer Martratt did some research on the application 03-05 submitted by Matthew Carter. Omer and Don Uveges found only a cleared path thru the property, no type of road was evident as was shown on the plot plan.
Meeting adjourned at 10.50 p.m.