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MINUTES
APPROVED
NDV 2:3 2000
Zoning Board of Appeals
Summarized Minutes October 10,2000
page 1
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MINUTES
Town of Wappinger Zoning Board of Appeals
MEETING DATE: October 17,2000
TIME: 7 :30 p.m.
Town Hall
20 Middlebush Road
Wappinger Falls, NY
Members Present:
Mr. Lehigh, Chairman
Mr. diPierno, Member
Mr. Fanuele, Vice Chairman
Mr. Warren, Member
Mr. Prager, Member
Others Present:
Ms. DiPaola, Secretary to Zoning Mr. Roberts, Attorney to Town
Mr. Wery, Planner to Town
SUMMARIZED
Discussions:
Zack's V-Twin Cycle
- Interpretation is granted for
Retail business
Public Hearing:
Cellular One
- Adjourned Public Hearing
until November 14,2000
DISCUSSION
1. Zack's V-Twin Cycle - Seeking an Interpretation for a commercial building. The property is located at
Route 376 in the Town of Wappinger.
Zack and Rita Agiovlasitis, the applicants are present for the meeting.
Mr. Lehigh: Is that a half of an acre?
Mr. Agiov1asitis: Yes.
Mr. Lehigh: Are you going to be purchasing the property next door?
Mr. Agiovlasitis: Weare considering purchasing the property next to it. We would like to do this on the one
parcel.
....... Mr. Lehigh: We have a letter from the Zoning Administrator asking us to do an interpretation, whether this is
Section 247-69 Motor Vehicle Sales or Section 240-70 Auto Repair Garage.
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Zoning Board of Appeals
Summarized Minutes October 17,2000
page 2
One requires 3 acres and the other one is 2 acres. Since you only have a half of acre, I do not
know how we can fit you into either category.
Mr. Agiovlasitis: As we stated at the last meeting we do not do any out door exhibits. All ours are inside.
When we close nothing is left outside. We are considering buying the property next door, but we do not want to
lock that piece of property for one use.
Mr. Lehigh: I realize that it is not used for cars, but it is still a vehicle there. To me it's not quite retail.
Mrs. Agiovlasitis: A good portion of our business is selling retail.
Mr. Lehigh: I realize that. You are still selling some kind of vehicles for people. It is kind of similar to a use
car lot. You also do repair.
Mr. Prager: Are you going to display any of these motorcycles outside?
Mr. Agiovlasitis: Occasionally one or two might be outside. Majority of the time the motorcycles are inside.
Mr. Prager: What would you do with the oil and things like that for repair?
Mr. Agiovlasitis: We have a company that comes down and gets the oil. There will be no storage or anything
for repair outside, that's why we have companies to come.
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Mrs. Agiovlasitis: The only thing outdoor will be the dumpster for the garbage.
Mr. Fanuele: You will have to get site plan approval from the Planning Board.
Mr. Agiovlasitis: Yes, I know.
Mr. Fanuele: You are saying that you are basically a retail store?
Mrs. Agiovlasitis: Large portion of our business is retail. We have sent papers stating how many motorcycles
we will be getting. Weare receiving about 16 which is not a lot.
Mr. Lehigh: The building evidently is non conforming even though it was destroyed by a fire. How long ago
was the fire? I wonder if it has been long enough for a non conforming use?
Mrs. Agiovlasitis: May of 1999.
Mr. Lehigh: It is not over its 2 years, but it is a different use than what was there. You will have to get a
Special Use Permit.
Mr. Fanuele: You do not need a Special Use Permit for a non conforming lot, just a site plan. The only thing
before us is the Interpretation.
Mr. diPierno: Made a motion that this Interpretation is a retail business.
'- Mr. Fanuele: Second the motion.
Roll Call: Mr. Prager, aye Mr. Fanuele, aye Mr. diPiemo, aye Mr. Warren, aye
Mr. Lehigh, nay
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Zoning Board of Appeals
Summarized Minutes October 17,2000
page 3
ADJOURNED PUBLIC HEARING
Appeal No. 00-7062:
Variance No.1 - requesting a 350 foot variance from Section 240-81G(4)( c )(1) of the Zoning
Law of the Town of Wappinger requiring that a cell tower to be 1500 feet from an educational institution.
Variance No.2 - requesting a 130 foot variance from Section 240-81G(4)( c )(2) of the Zoning
Law of the Town of Wappinger requiring that a cell tower be 750 feet from an existing dwelling.
Request for Interpretation - interpretation of the letter from the Zoning Administrator dated July
24,2000, which letter stated that the Planning Board did not have the authority to waive or modify setback
restrictions.
Appeal No. 00-7063:
Request for a 2 foot variance increasing the 6 foot maximum height of a fence around a cell
tower facility as set forth in Section 240-81G(5) of the Zoning Law of the Town of Wappinger. The property is
located at 20 Middlebush Road and is identified as Tax Grid No. 6157-01-353724 in the Town of Wappinger.
Chris Fisher the applicant's attorney and Kevin Brennan the applicant are present for the meeting.
Mr. Warren: Made a motion to open the adjourned public hearing.
Mr. diPiemo: Second the motion.
....... Vote: All present voted aye.
Refer to the Stenographer's minutes
Mr. Prager:
Mr. Warren:
Vote:
Made a motion to adjourn the meeting until November 14,2000.
Second the motion.
All present voted aye.
Mr. Prager: Made a motion to adjourn the meeting.
Mr. Fanuele: Second the motion.
V ote: All present voted aye.
MEETING ENDED
8:30 p.m.
Respectfully Submitted,
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Christina DiPaola, Secretary
Zoning Board of Appeals
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2 ORIGINAL'"
3 TOWN OF WAPPINGERS
ZONING BOARD OF APPEALS
4 _________________________________________________X
5 Transcript of proceedings Re:
6 Appeal No. 00-7062
Cellular One Proposal
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October 17th, 2000
7:45 p.m.
Wappingers Town Hall
20 Middlebush Road
Wappingers Falls, New York
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BOARD MEMBERS:
ALAN c. LEHIGH, Chairman
GERALD dipIERNO
DOUGLAS WARREN
J. HOWARD PRAGER
VICTOR L. FANUELE
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ALBERT ROBERTS, Town Attorney
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REPORTED BY:
Kimberly Burke
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SCHMIEDER & ASSOCIATES
Professional Shorthand Reporters
82 Washington Street, poughkeepsie NY 12601
(914) 452-1988
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CHAIRMAN LEHIGH: The next item of
business to come before the zoning Board of
Appeals will be cellular One's adjourned public
hearing.
Do I have a motion to reopen the public
hearing?
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MR. WARREN: So moved.
MR. PRAGER: Second.
CHAIRMAN LEHIGH: All in favor?
MR. diPIERNO: Aye.
MR. WARREN: Aye.
CHAIRMAN LEHIGH: Aye.
MR. PRAGER: Aye.
MR. FANUELE: Aye.
CHAIRMAN LEHIGH: Do you need a
minute?
MR. FISHER: I'm all set. Thank you.
CHAIRMAN LEHIGH: You're all set:
okay.
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MR. FISHER: There are a couple of
housekeeping items. I know that the town board
and the town attorney are looking for a copy of
the transcript from last month. Our
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transcriptionist is working on it. I believe a
draft will be available tomorrow.
MS. LIBOLT: It will be in final
tomorrow. The final will be available tomorrow.
CHAIRMAN LEHIGH: She just told us
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Friday.
MS. LIBOLT: We're putting the heat
on her.
MR. FISHER: I just saw the draft and
she is up to page 78 and I think we're just a few
pages shy. We are going to get that to you and
share that with you, of course, and we will get
tonight's transcript to you as well.
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CHAIRMAN LEHIGH: Okay.
MR. FISHER: I have a couple of other
pieces of information. At our last hearing you
had asked for the information that Mr. Copper had
asked the planning board for.
CHAIRMAN LEHIGH: We asked for a
little more information.
MR. FISHER: Yes, and I have that
this evening. It is a report by Mr. Graiff with
exhibits, which I will supply.
MR. ROBERTS: Can you paraphrase for
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the record what the report consists of?
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MR. FISHER: Sure. It is a three-
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page written report with exhibits 1 through 10
including a base map. Basically it responds in
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point by point fashion to a request for a
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justification of the minimum height that's needed
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by Cellular One, with the additional information
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that was requested with respect to our capacity
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problems within the network and why other
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surrounding sites like Holmes Mountain and the
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South Hills Mall could not be used and why new
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additional sites couldn't be added to remedy that
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problem, and it also deals with locational issues
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of why this site is in this place.
There are
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also some overlay maps that help on the base map
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to understand all of the answers to those
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questions.
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One of the things that Mr. Cooper does seem to
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agree with is the measurements that Mr. Graiff
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took.
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CHAIRMAN LEHIGH: Can we have it
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quiet in here. We have a recorder and we can't
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piCk everything up. Thank you.
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MR. FISHER: One of the things I want
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to highlight with respect to this report is that
Mr. Graiff -- as far as the minimum height
required he did three different coverage
analyses at 120 feet above grade, 150 feet above
grade and 180 feet above grade. In essence, the
coverage doesn't really change at anyone of those
three different heights, but one of the reasons
that Cellular One has said from the very beginning
that we need 150 feet is that due to the mall and
other things, you're not going to be able to see
this from, for example, 9D as it turns away. It
won't penetrate the trees.
If you recall Mr. Graiff's analysis in the
session at our last hearing, height does directly
correspond to what you can see from the Bell line
site technology. So the answer to what the
minimum is that we need, as far as the coverage
map and being able to pick it up -- and this is
something I had said last month in response to a
question -- it's not very neat and easy to
identify, but the RF Engineering Department at
Cellular One believes that when the control
signals don't work, we need the extra height to
make that work. It's a gray thing. It's not an
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exact science. It's engineering. So that, in
essence, details the report that you had asked
for, and this is something that we will be
transmitting under separate cover for the planning
board because that goes directly to the heart of
their issue on the special permit, but I have
three copies of it tonight.
CHAIRMAN LEHIGH: Thank you.
MR. FISHER: The other thing that we
received, as a courtesy from Attorney Bacon, was
some correspondence that was tranmitted to the
board. I did take an opportunity to respond very
briefly. So I have correspondence dated today
that I would like to submit to respond to those
issues.
In a nutshell, I think that he is really kind
of trying to compare apples and oranges. The
cases that he cited, one case, for example,
involved Bell Atlantic Mobile trying to build a
tower on a lot that was on less than a third of an
acre and trying to compare that to this proposal,
which is 34 acres with an existing tower and over
600 feet.
Even if you look at traditional analyses on
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the magnitude of the variance, we are only looking
at in the neighborhood of 15 to 20 percent of the
standard. We had discussion on what the standard
really means, but we are still within 15 to 20
percent of it. Even in the case that was cited,
they were talking about a variance in upwards of
300 percent of the standard, which is three or
four times what the requirement was. So it was
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clear in that case that the zoning board was right
in denyin9 the variance. And I think if you look
at it in reverse on this case and compare the
facts, I think that that board would say that this
board would be right to grant the variance under
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the circumstances.
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A couple of other things, he cited a case that
really isn't applicable at all. It was a lower
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court case in upstate New York that involved a use
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variance. This is not a use variance situation.
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The whole inquiry about alternative sites is not
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applicable, because we don't need a use variance
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from your board. And even if alternative sites
were in discussion recently at the planning board
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as part of a special permit, that's what the
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zoning code in the town has adopted, delegating it
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to that board to review.
The other thing that I wanted to discuss, and
I have outlined in my letter, is Mr. Bacon wrote
apparently on behalf of his client whose name is
Christopher Iverson. We did research into the
Dutchess County tax records and there is no real
property in Wappingers, let alone the county,
owned by Chris Iverson. So we doubt this
individual has any standing with respect to
comments on this application as is. I can't
confirm that they're a resident, but as far as
real property, there is no ownership of real
property in this area.
I think that pretty much responds to the
questions that were asked -- at least the
outstanding items. Obviously we are here to
answer any questions that you have.
MR. ROBERTS: Well, since you just
submitted these, does the board want to review
this?
CHAIRMAN LEHIGH: It's going to take
awhile to review that information.
MR. ROBERTS: Do you want to take a
ten or fifteen minute break to look at it and ask
SCHMIEDER & ASSOCIATES 914-452-1988
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any questions you have?
CHAIRMAN LEHIGH: I think we are
going to adjourn this for another week to get the
chance to go through that material. It looks
substantial to me and I want everybody to go
through it and not feel rushed or pushed or
anything else.
MR. FANUELE: I agree.
MR. FISHER: That's fine. The only
thing I would note is that the RF analysis again
is really something for the planning board, but
you asked for it so we are giving it to you. My
letter is really legal standards on the
application, but I understand that we are giving
it to you tonight and .you want time to look at it.
MR. PRAGER: So we are going to go to
the 11th and we will have everything.
CHAIRMAN LEHIGH: We're going to have
this this week: is that right?
THE COURT REPORTER: Tonight's or the
last hearing?
CHAIRMAN LEHIGH: Well, we need
tonight's and the last one.
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MS. LIBOLT: We'll have that to you
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tomorrow. We're going to have the previous
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meeting to you by tomorrow.
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CHAIRMAN LEHIGH: okay.
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MR. FISHER: Can you put a rush on
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tonight's?
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MR. ROBERTS: We don't know what the
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rest of the meeting is going to entail.
CHAIRMAN LEHIGH: Right. Basically
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we are right where we left off at the last
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meeting.
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MR. ROBERTS; Mr. Chairman, there are
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a few more housekeeping issues. In view of this
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material, I don't know how muoh additional time
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you're going to need to review all of this
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material, but we need an adjournment for the
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planning board to render its decision. I had
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originally asked for an additional two weeks, but
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I think the planning board is going to need more
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time, because by the time they get the transcript,
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digest the information and render a decision
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MR. FISHER: I faxed you
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correspondence yesterday.
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MR. ROBERTS: I did not see that and
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I looked through everything. I hope it didn't get
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misplaced.
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MR. FISHER: I will put on the record
yesterday I had my secretary fax but I will
check to make sure it went out -- a letter giving
the planning board until November 30th, which
should be sufficient, I believe.
MR. ROBERTS: That's fine, yes.
CHAIRMAN LEHIGH: Well, that being
the case, I would like to go to our next regular
meeting which would be December 12th.
MR. PRAGER~ Wait, I hope not.
CHAIRMAN LEHIGH: Excuse me,
November. I skipped a month there.
MR. FANUELE: How about next week?
CHAIRMAN LEHIGH: We have a regular
meeting next week, but I have a full agenda for
that.
MR. ROBERTS: Are you going to
adjourn the public hearing so that you can
question the applicant on the information he has
supplied? What are you going to do with the
adjourned date? This is a critical issue.
CHAIRMAN LEHIGH: What are we going
to do? We are going to pick it up from where we
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left it off right here.
MR. ROBERTS: So you're going to
adjourn this public hearing to the next time?
CHAIRMAN LEHIGH: Yes.
MR. FISHER: The only thing I would
ask is that you take consideration into actually
closing the public hearing if there is no
additional comment. We can certainly have
dialogue with the board based on what has been
submitted.
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CHAIRMAN LEHIGH: In a few minutes I
will open it up to the public.
MR. ROBERTS: I think the public
should have an opportunity to review that
information. In fairness, it just came in tonight
and it is detailed.
CHAIRMAN LEHIGH: Yes.
MR. ROBERTS: Mr. Chairman, could you
also direct Christina tomorrow to Federal Express
or fax a copy of this report to Mr. Cooper for his
comment. I think we should have that response in
time for the next meeting.
MR. FISHER: The only thing I do want
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to point out as well is that the applicant should
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have the opportunity to have the last comment on
whatever the public may submit, and I don't want
to get into a situation where we are going month
after month, because we want to have another month
for comment.
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CHAIRMAN LEHIGH: The only reason
that I had asked for the additional information
was our expert, Mr. Cooper, wanted some more
information. So we will submit this to him and
everybody else will take a look at it and we will
get back to you on the 14th and open up the pUblic
hearing and go from there.
MR. ROBERTS: On the 14th? You said
next week.
CHAIRMAN LEHIGH: No, I said on the
14th of November, because we've got a full agenda
on the 24th. We have about four or five other
cases here that we are putting off for this
because people don't want to be in here with a
five foot variance, you know, and wait all evening
for it. So if it's all right, I would like to
make it the 14th of November and we will reconvene
at that time.
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MR. PRAGER: Mr. Rob9rts, will we
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have enough time to do that by November 30th?
MR. ROBERTS: The planning board's
next meeting following that ~s November 20th, so
the meeting on November 6th let me just --
Chris are you going to be formally sUbmitting a
copy of this information to the planning board
tomorrow?
MR. FISHER: Tomorrow, yes.
CHAIRMAN LEHIGH: So you will be
making this part of the formal record.
MR. ROBERTS: You'll be submitting
that to the planning board tomorrow.
CHAIRMAN LEHIGH: So you'll have to
talk to Chairman DiNonno and make sure that that's
on the next planning board agenda so it can be
discussed.
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MR. ROBERTS: No, no, no.
MR. FISHER: We are supplying this to
complete the record for the planning board. We
will be submitting this to the planning board
tomorrow, so in one form or another it will get to
Mr. Cooper. This is something that really is
supposed to be submitted to the planning board,
but obviously you want to see that as well.
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My hope ~ould be that subject to an
opportunity to just see whatever else is remaining
on that issue we can wrap up the comments and
hopefully be in a position where we might be able
to close up the hearing at the next meeting on
this particular issue.
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MR. ROBERTS: I think they're going
to have to if they're going to comply with the
deadline.
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CHAIRMAN LEHIGH: On the 24th you're
talking about or the 14th?
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MR. ROBERTS: The 14th.
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CHAIRMAN LEHIGH: I think you're
better off on the 14th.
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MR. ROBERTS: I'm not disagreeing
with the applicant. They're saying the 14th.
MR. FISHER: That's fine. I just
don't want to have to go through the whole cycle
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again.
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CHAIRMAN LEHIGH: We have a meeting
on the 24th, which is next Tuesday, in which we
hope to handle a lot of small business and get
that done, but it's very hard to do both.
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MR. FISHER: No, agreed. We are not
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asking you to do that. I guess what we are asking
is if the 14th is an available meeting date.
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CHAIRMAN LEHIGH: It is.
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representation we will be making a formal
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submission of the same material tomorrow to the
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planning board and if Mr. Cooper has an
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opportunity to get his response back say by the
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7th, that will allow me a few days to at least
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wrap up any final matters, if any, and put you in
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a position to close the hearing.
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CHAIRMAN LEHIGH: Okay. I would
rather do that than rush this.
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Is there anybody in the audience who would
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like to say anything?
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MR. MILLER: I do. How are you
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doing? I'm Robert Miller. I'm looking at your
minutes from last week -- I'm sorry from september
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26th -- and you have seeking a 350-foot variance,
but didn't everybody say it was a SOD-foot
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variance to the Randolph School?
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CHAIRMAN LEHIGH: No.
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MR. MILLER: Didn't they say it was
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1000 feet from the Randolph School?
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CHAIRMAN LEHIGH: No.
MR. MILLER: I must have a hearing
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loss.
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CHAIRMAN LEHIGH: We had a question
on the Randolph School and we have just done a
remeasurement on that. I don't know whether it is
in that or not.
MR. MILLER: How many feet is it from
the Randolph School then?
MR. FISHER: Do you want me to
respond, Mr. chairman?
CHAIRMAN LEHIGH: Yes.
MR. FISHER: If you recall, there was
a question of whether the Randolph School
qualified as a school, and it does under your
definition. It's 1150 feet from the school, so
the variance would be for approximately 350 feet.
MR. MILLER: Okay.
MR. BACON: Good evening, Mr.
Chairman. I faxed over a letter along with a case
that I think is instructive, and it has to do with
a situation where a cell tower is proposed in an
area that already has coverage, because they
wanted to increase capacity. So I wanted to get
.......
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it to Mr. Roberts.
MR. ROBERTS: They have given me a
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copy.
MR. BACON: They did?
MR. ROBERTS: Yes.
MR. BACON: Hopefully the board will
take some time and look over that decision. I
look forward
--
CHAIRMAN LEHIGH: We have reviewed
the material that you have sent.
MR. BACON: It came in the afternoon
today. I'm sorry about the lateness with that.
CHAIRMAN LEHIGH: I don't know about
that one. We reviewed the other material.
MR. BACON: The other one I got to
you earlier on Tuesday. I look forward to looking
over the material that was submitted tonight by
the applicant.
MR. FISHER: Mr. Chairman, just for
the record, this case, so you know, we gave that
to you in our August 31st submission.
MR. BOLDON: I had brought up --
CHAIRMAN LEHIGH: Would you give us
......
your name, please? We are using a recording
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device.
MR. BOLDON: My name is Jeff Boldon.
At the last meeting I brought up a point and I
wasn't quite clear on the answer. Both the
Randolph School and the Wappingers Junior High
School over here have playing fields in front of
them, and I wanted to know if those playing fields
were taken into consideration in the variance
being requested?
CHAIRMAN LEHIGH: No, the variances
are requested from the buildings, not from the
playing fields.
MR. BOLDON: If it's for health
purposes, shouldn't it be considered?
CHAIRMAN LEHIGH: We are not here to
consider a health purpose. The federal government
has already taken care of that. This is not a
health coverage issue.
MR. BOLDON: Thank you.
MR. KALAKA: Should I come up?
CHAIRMAN LEHIGH: Yes, if you would,
please.
MR. KALAKA: Gentlemen, my name is
Art Ka1aka. I live on Pleasant Lane just down the
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CELLULAR ONE PROPOSAL
road here. I spoke at last month's hearing also,
and at that time I urged you to deny the variance
for Cellular one for known reasons and also
unknown reasons. Now this past week it was very
obvious in the paper that the Town of East
Fishkill had a catastrophe. All of a sudden for
thirty-five homes, because of the water level, all
of the wells were contaminated. The Town of East
Orange, New Jersey is considering banning the use
of cellular phones while you're driving for
whatever the reason may be. We have too many
communities right now that have abnormal
percentages of diseases that you can't explain:
lung cancer, breast cancer, premature abortions
CHAIRMAN LEHIGH: I'm really going to
have to ask you to stick to the point.
MR. KALAKA: I'm leading to my point.
I'm entitled to it. I'm entitled to make my
point, but I have to give you some background
information. I don't know what effect that this
cell tower is going to have on our children. The
president of the Board of Education last month
spoke to you and said, Please consider your
children, consider our children, consider your
,,-.
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neighbors, consider our neighbors. You're talking
about 1200 feet from the school. My God, the
whole character of the community is changing. We
are getting an influx of people from Westchester
and New York. The schools are going to have to be
expanded. They need more room.
I don't buy that the reason that the cell
tower is there is to handle the excess capacity.
I venture to say as the community grows and
everything grows and there are more homes here,
they are going to need an additional increased
capacity and you're going to have to grant them a
variance of either extending the tower or building
another tower on it.
So I urge you please consider this very
heavily. I don't buy the allegation that the only
real property available in this whole town is this
spot down here on Middlebush Road and 90. I have
got to believe that there is other places better
than that, so please gentlemen, consider all of
these things.
There are medical studies going on right now
on the affect of electromagneticism on the brain
from the continued use of cell phones. So there
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are a lot of unknown factors here. Please think
about what may happen down the road. Don't put
yourself in the position of five years from now
saying, We should have denied this variance,
because of some health effect or some effect on
the community and our children. So please give it
heavy thinking. It's on your shoulders right now.
You have the power to deny it.
I cannot believe based on what he and all the
.......
experts have said
the experts were never around
.......
when they had the problem at the nuclear plant.
They were never around at the Love Canal, they are
never around on what's happening in the Hudson
River. Please gentlemen, give this heavy
consideration. I know you are and I hope that
you're all in favor of denying the variance for
Cellular One.
........
MR. STINSON: Mr. Chairman --
CHAIRMAN LEHIGH: Go ahead, you
might just as well.
MR. STINSON: I don't need to.
CHAIRMAN LEHIGH: You're welcome to
speak; this is a pUblic hearing.
MR. STINSON: That's okay.
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MR. FRENCH: I just want to add that
if you look at last month's Time Magazine there
was a big article on radio frequency and cell
phones.
.'-
CHAIRMAN LEHIGH: Can I have your
name, please?
.......
MR. FRENCH: My name is John French.
I live on Pleasant Lane also. Time Magazine had a
great article last month on oell phones and cell
towers, everything you want to know. Thank you.
MR. IVERSON: Chris Iverson. I
wanted to clear up the fact about my residency in
the area. It's true that I don't own property in
the area. I have been looking for years for one.
I was supposed to have a closing date on a parcel
in the Town of Wappingers on September 20th. It
has been delayed and delayed, but it's going to
happen. So I don't know how critical that is. I
don't know how you could consider that all of the
people, the many people, who rent in the Town of
Wappingers wouldn't have a say in this cell tower.
Not to mention that I have worked in the Town of
wappingers for more than seven years.
Another thing I wanted to say is when I hear
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you talking about how you really can't do the next
public hearing next week because you have five
other cases, it gives me a new appreciation
knowing how much this is starting to drag me and
other people in the citizens group down who have
been active but they say, Well, I really have to
do this with my kid tonight. So I really
appreciate that you're taking the time not just
for those other cases, but to keep this public
hearing going so we know that we are getting the
best attention from you and you're taking our
needs and our hopes for the area seriously, so
thank you.
r was curious as far as the height of the
tower goes. I know that one thing you had asked
for was some kind of study to show that the height
that is being requested by Cellular One is the
height that's required for the service. I just
wanted to make sure that we don't have a height
that is the optimal height for the service in the
area, because the law states that the town is
obligated to find a site for them that gives them
the minimal coverage needed for the area. So it's
not as if Cellular One needs to find the absolute
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best site that they can find for their coverage.
What we need to do is provide a site that's
adequate, and as you know, it has been described
that the way these cell phone towers work is
usually after one tall one goes up there are
several other shorter ones that go up -- I don't
know if they're called repeaters or not, I'm not
exactly clear on that. So I'm just imagining
setting a precedent here by allowing the big one
or one of the first ones in the area to go against
two variances, to go too close to the schools,
which our town law says, means we are legally
setting a precedent for all of the other cell
towers that need to be put up to provide service
to break the variances also or to get variances
also. So it's kind of as if we are setting up
this pattern where we are just setting ourselves
up for uncontrolled cell tower control, and the
next cell tower provider that needs to set up a
tower or when Cellular One needs to put up another
one, they will point to this as a precedent and
say, Well, you let them do it, you have to let us
do it. It has to be equal. So I want to ask you
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to please be careful about this important
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precedent. It's critical, I think, for the
character of the area.
CHAIRMAN LEHIGH: Your attorney
submitted many cases with precedents in them and
we have read many cases from their attorney.
MR. IVERSON: Okay.
CHAIRMAN LEHIGH: So we are not just
doing this on the fly.
MR. IVERSON: Oh, I know that. I'm
not aware of what their attorney has just put in.
I haven't seen the new information that they have
sent in yet. I know what our attorney has sent
in.
I was wondering if it might be wise for the
zoning board to hire their own real estate
appraiser or expert to give some testimony about
whether or not property values in the area will
actually be degraded. I know that Cellular One
has provided some information about that and we
had a realtor here and have been in contact with
an appraiser who may be able to come in and give
you some information. But in the meantime, I
wonder if it wouldn't be something that the town
should take on too, because after all, the town
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has a big responsibility, and so I just wanted to
mention that for consideration and ask if the
board would consider it.
As far as the real estate goes -- though not
having a real estate appraiser here tonight -- I
just want to mention that if you have two
identical properties I think if you put away all
of the things that you need to prove -- you have
to prove this and prove that -- if you have two
identical houses one next to a cell tower and one
not, is there anyone in the room that would choose
the one that was next to the cell tower? I think
it's kind of obvious that the property value will
be somewhat affected by the tower.
I have already given testimony at length about
the quality of the area and the character of the
area as far as the natural history and the
historic value of the area. Those things will
also be affected. That's all, thank you.
MR. VALDATI: Good evening, I'm
Robert Valdati. Many of the things that the
residents have said have been stated very
eloquently in terms of the aesthetics of the town,
the quality of life, the property values, and
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people have touched on potential health hazards,
and I know that the federal government has said
that those are not to be considerations for such
deliberations.
I have listened at great length to the
presentations by the applicant's experts
corroborating how benign an industry this is in
terms of the effects on the community. The
engineer has expressed how few amounts of
radiation are dispersed, but again at the same
time, cell phones are a new accessory. It is now
no longer acceptable from a health standpoint to
use that phone on a lengthy basis holding it to
one's ear. People now use a wire connecting that
phone to their ear so that it is not pressed to
their head with the potential of causing damage.
There is a medical affiliation dealing with that.
However, the town board felt very comfortable in
selecting the perimeters of this law, which was
researched for over a period of a year, to put in
place what we felt would serve the interests of
the town and that would determine and safeguard
the quality of life, and we felt that this was
something that we could make happen in this
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6
community and make it fit according to the rules
that we the people deemed acceptable. They
weren't arbitrary in the sense that we just picked
any number out of the air. We looked at it from
the standpoint of what would make things
aesthetically pleasing, what would not diminish
property values as much as it was 500 feet to a
residence or 300 feet. We did this with great
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deliberation and from a serious point of view.
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All I would recommend is that if the zoning Board
of Appeals sees fit to apply the law -- and it is
always the applicant's choice to contest that law
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-- we have a law that we feel was done properly
and I think it represents the interests of the
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people. Thank you.
CHAIRMAN LEHIGH: Anybody else?
MR. FISHER: Mr. Chairman, I just
have one comment on that last point. New York
state statutes specifically provide for the Zoning
Board of Appeals to vary town board laws when
there are unique circumstances. All we have been
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saying from the very beginning, as far as this
town goes on this property is there are unique
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circumstances, and those are the wetlands, and
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that we shouldn't be going in that area, we should
stay out of it, and that's why these variances are
being asked for.
CHAIRMAN LEHIGH: All right. I would
like to close the public hearing until the
MR. ROBERTS: close or adjourn?
CHAIRMAN LEHIGH: Adjourn until the
14th.
MR. PRAGER: So moved.
MR. WARREN: Second.
CHAIRMAN LEHIGH: All in favor?
MR. diPIERNO: Aye.
MR. WARREN: Aye.
CHAIRMAN LEHIGH: Aye.
MR. PRAGER: Aye.
MR. FANUELE: Aye.
CHAIRMAN LEHIGH: Thank you.
(Whereupon the hearing adjourned
at 8:15 p.m.)
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C E R T I FIe A T ION
------------------
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I, KIMBERLY BURKE, a Court Reporter and
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Notary Public in and for the state of New York, do
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hereby certify that I recorded stenographically
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the proceedings herein at the time and place noted
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in the heading hereof, and that the foregoing is
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an accurate and complete transcript of same, to
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the best of my knowledge and belief.
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I' ~
_~ JJJ:Ly ~ __All ~--
KIMBERLY BURKE
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21 Dated: october 20th, 2000
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SCHMIEDER & ASSOCIATES 914-452-1988
** TOTAL PAGE.32 **
...
3
U L! l~) 2000
ZONING j},O\V\iNISTRATOR
TOWN OF WAPPINGER
TOWN OF WAPPINGERS
ZONING BOARD OF APPEALS
-------------------------------------------------X
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[ffi~t~G\w~[Q)
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OCT 1 9 2000
P L./\ ;"'.!
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"CO~Y
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5 Transcript of Proceedings Re:
6 Appeal No. 00-7062
Cellular One Proposal
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September 26th, 2000
7:45 p.m.
Wappingers Town Hall
20 Middlebush Road
Wappingers Falls, New York
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BOARD MEMBERS:
ALAN C. LEHIGH, Chairman
GERALD diPIERNO
DOUGLAS WARREN
J. HOWARD PRAGER
VICTOR L. FANUELE
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ALBERT ROBERTS, Town Attorney
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* * * * * * *
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REPORTED BY:
Kimberly Burke
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SCHMIEDER & ASSOCIATES
Professional Shorthand Reporters
82 Washington Street, Poughkeepsie NY 12601
(914) 452-1988
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CHAIRMAN LEHIGH: The next appeal is
Appeal No. 00-7062 for Cellular One. Variance
number one requests a three-foot variance from
section 240-81 (G) (4) (c) (1) of the zoning law of
the Town of Wappingers requiring that a cell tower
be 1500 feet from an educational institution.
variance number two requesting a 130-yard
variance from section 240-81 (G) (4) (c) (2) of the
zoning law of the Town of wappingers requiring
that a cell tower be 750 feet from an existing
dwelling. Request for interpretation,
interpretation of the letter from the zoning
administrator dated July 24, 2000, which letter
stated that the planning board did not have the
authority to waive or modify the setback
restrictions.
Appeal number 00-7063, request for a two foot
variance increasing the six-foot maximum height of
fence around a cell tower facility as set forth in
section 240-81(G) (5) of the zoning law of the Town
of Wappingers. The property is located at 250
Middlebush Road and is identified as tax grid
number 6157-01-353724 in the Town of Wappingers.
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Do we have the mailings back?
TOWN CLERK: Yes.
MR. ROBERTS: Mr. Chairman, can I
just clarify something. I believe you said a
three-foot variance for variance one; I think it's
350 feet. And for variance number two, you said
130 yards, and I believe it's asking for 130-foot
variance.
130-foot variance and
CHAIRMAN LEHIGH:
the other one was 350?
MR. ROBERTS: Correct.
CHAIRMAN LEHIGH:
I would like to
have a motion to open the public hearing.
MR. PRAGER: So moved.
MR. WARREN: Second.
CHAIRMAN LEHIGH: All in favor?
MR. diPIERNO: Aye.
MR. WARREN: Aye.
MR. PRAGER: Aye.
MR. FANUELE: Aye.
MR. FISHER: Good evening, Chairman
and members of the board. My name is Christopher
Fisher. I'm an attorney with Cuddy & Feder &
Worby and I'm here on behalf of the applicant.
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Also with me tonight is Kelly Libolt who is
with the Chazen companies, our engineers who
prepared the plan on this site. Also with me is
Ron Graiff, a professional engineer of the State
of New York who is here as our consulting
engineer.
If you bear with me, it probably benefits both
the board and the public to understand some of the
process that brings us here tonight to the public
hearing. Some time ago, probably well over a year
ago, Cellular One approached the Town of
Wappingers to talk about the potential for a
wireless facility in the town. And rather than
just simply seeking out privately owned property,
they were also seeking property, if there were
suitable locations, that were owned by the town,
which was a way in which there would be a
public/private partnership in this particular
application. I think this was the obvious answer
in that wireless industry carriers are here, there
are more carriers coming, everybody pretty much
has come to the realization that facilities are
needed to provide the service, so it ends up being
an exercise in where are good locations.
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with that dialogue in hand -- and in fact a
town law that addresses many of these issues -- I
want to discuss the potential for the town and the
property which we are here for tonight at the town
hall. Ultimately, after several months, a lease
was negotiated and the town board adopted
resolutions including a negative declaration
pursuant to SEQRA and approved the lease. The
lease is subject to zoning ordinances and the
zoning process.
At this point, we have been before the
planning board and there has been a public hearing
before the planning board, and a number of the
issues that are very kind of generic to the issue
of wireless facility sites are squarely the
planning board's issues: Need for the facility,
compliance with a number of various siting
criteria that are set forth in the town law, and
we have set forth additional information to the
planning board as to all the reasons why we
believe we meet all of those criteria.
At some point after the public hearing an
issue arose with respect to the interpretation of
the town code, and that is specifically whether or
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not a variance was required if a facility was
going to have to be within 1500 feet of a school
or 750 feet of a dwelling. Our position was that
in reviewing the town code and the language that
was utilized in that section, that it wasn't
actually a set requirement that would need a
variance from the zoning board, but really
something to be balanced by the planning board in
weighing all of the criteria that kind of is going
into the melting pot of whether a site meets the
criteria of the town code.
The request was made formally to the zoning
official as to the proper interpretation of the
code, and a determination was made that in fact
variances would be needed for those particular
provisions of the town code.
So before you tonight is Cellular One's
application one, which is an appeal. We are
asking that the zoning board effectively overturn
that decision and really say that the distances
are not requirements, they're objectives and
things that should be weighed by the planning
board in their deliberations.
If the zoning board disagrees with that
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request, we have alternatively asked for variances
from the specified distances in the code from any
school or dwellings. The process -- as you're
well aware of, to date this is our third
appearance and first public hearing, but we have
had two regular meetings which were very heavily
attended by the public, and we have presented you
with a number of materials in support of the
application. I don't want to take too much of
your time on that, but just for clarification, we
submitted the application in August. You had
asked for quite a bit of information, and I had
suggested that we needed to get you additional
information in support of the application, and we
provided that prior to your last meeting.
At our last meeting we did discuss, as well as
with the public, why this particular facility
meets the FDA emissions or FDA limits for wireless
facilities.
with respect to the various issues at hand,
they're fairly narrow. The question really is:
Why on this particular lot can't we build this
facility in a location that would "Comply with the
1500-foot setback from the school and 750-foot
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setback from the dwellings"?
In our materials that we supplied you with, we
have shown you that really the only location on
the lot that would be within those specified
distances is a local, state and federally
regulated wetland. On balance, certainly building
a road through a wetland area and the foundation
work and all of the disturbance that would be
associated with that, we don't believe was
warranted. And in fact, the most appropriate
location is an area behind the state police
barracks, near the existing tower on the premises,
in an area that really all around it has vacant
land, wetland, water forces or tree buffer areas,
and we can blend the facility into that area. So
we have presented all of that information and all
of the standards why we believe we do meet the
variance request.
I would ask just for purposes of the public,
if Chazen can briefly take you through that plan
to identify exactly where it is and what is
proposed.
MS. LIBOLT: Thank you, Mr.
Chairperson. Again, I'm Kelly Libolt with Chazen
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Engineering representing the applicant Cellular
One. Can everyone see this plan that was
submitted as part of the zoning application?
Chris Fisher summarized much of this
information, but I will just go through the
site-specific information. The applicant,
Cellular One, is proposing installing a
communication facility on town-owned property.
The site is located obviously on the same parcel
that the town hall is located on. More specific,
the site is to the south of the parking lot for
the state trooper barracks and Alamo Ambulance.
This portion of the site plan shows the larger
parcel which includes the town hall, the existing
trooper barracks and Alamo Ambulance. Middlebush
Road is down here on the bottom of the plan, north
is towards the bottom of the plan. This is a
blow-up here showing the specific area proposed
for the communication facility (indicating).
Again, the applicant is proposing the
installation of an equipment building and a
180-foot monopole tower. The equipment building
being proposed is a 12' X 20' one-story equipment
building. It is a prefabricated building. We are
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proposing that the monopole tower be enclosed by
an eight-foot-high chain-link fence. Access to
the site will be via the existing parking lot
that's utilized by the trooper barracks and Alamo
Ambulance. The site is in the R20-40 zone.
We did provide you with a picture that
summarizes the interpretation request and variance
request. Again, the variances are setbacks from
an existing school or educational facility where
1500 feet is suggested in your zoning code and the
applicant is illustrating that they're providing
1,150 feet, for a difference of 350 feet.
For the second request, the applicant is
proposing to locate the facility such that it is
620 feet away from the nearest habitable
structure, where 750 is suggested in your zoning
code, for a difference of 130 feet. And lastly,
your code suggests a height of six-foot high for
the fence, and for a variety of security measures,
the applicant is proposing in this particular
center an eight-foot-high chain-link fence for
obvious reasons.
We have provided you with a variety of
documentation; in addition to the documents that
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have been provided by Mr. Fisher's office, we
provided you with a visual analysis. And again, I
think we went through the methodology in selecting
the site, which were: the proximity to wetlands,
the site has some unique characteristics, there
are limited areas on the site which could be
developed, there is an existing tower at the
facility, and more importantly, there is quite a
bit of dense vegetation in the area. This
particular site was selected because of the
proximity of the water. There is limited removal
of vegetation that would be required in this
particular location. Much of that was outlined on
the visual analysis that was provided by this
applicant.
That gives you a brief summary of the project,
and I will turn it back to Mr. Fisher.
MR. FISHER: That's our presentation,
Chairman. Obviously we are here to answer any
questions you might have and the public.
There is one piece of house keeping that I
want to make sure I take care of. Mr. Roberts had
asked me for an extension of time, of the planning
board's time, within which they must mandatorily
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act, and I just wanted to make sure that I gave it
to him tonight.
record.
I just wanted to have that on the
MR. ROBERTS: Mr. Fisher, since Mr.
Graiff is present in the room, would you have him
give a statement summarizing his prior testimony
before this board.
MR. FISHER: Sure.
MR. GRAIFF: Good evening, my name is
Ronald Graiff.
I'm an electrical engineer, a
radio frequency consulting engineer and a licensed
professional engineer in New York State. I was
asked by Cellular One to evaluate the compliance
of the site with the FCC guidelines OET 65 in
compliance with the electromagnetic energy from
any type of transmitting environment, whether it
be AM/FM, TV, cellular or any radio frequency. I
performed that analysis in May and have submitted
it to the board previously.
The result of that analysis was, assuming that
every transmitter proposed at this site was
operating at its full maximum effective radiated
power at 150 feet above the ground, it would
result in a field, the strongest field, a distance
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of approximately 85 feet from the base of the
tower. I believe that 87 feet from base of the
tower would be 2.1 percent of the MPE, and that's
the maximum permitted exposure for
non-occupational environment.
That's for the
general public. This is, as far as a measurement
of the energy itself, is 11.5 micro watts per
square centimeter of radio frequency energy; that
equates to the 2.1 percent of the MPE.
This site is in complete compliance with all
of the requirements of OET 65, with the New York
State Department of Health, with the requirements
of the I Triple E, the NCRP, the National Council
of Radio Protection measurements, and all
international standards that we utilize in this
profession. This is clearly in complete
compliance. Just to further
all of my
assumptions were worst case analyses, that every
transmitter at the site was operating and that all
of the energy transmitted from the site was
directed at the same location, even though it's
not.
It's directed in three particular locations.
I also assumed that all of this energy that would
strike the ground is one hundred percent
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reflective.
In practice, such calculations will
yield, if measurements were taken later, the
calculations will overstate by five to ten,
sometimes twenty, times the level that's actually
experienced at the site, but indeed to err on the
side of protection, the calculations assume always
the worst case analysis.
CHAIRMAN LEHIGH:
Let me ask you one
question.
Did you take the state troopers'
antenna into consideration when you figured this
worst case scenario out?
MR. GRAIFF: No, I didn't. We had no
information on the operation of the state
troopers' antennas that are on that tower. That
tower is, in my estimate between 100 and 150 feet
behind, to the west of the proposed installation.
It could be considered. The frequencies involved
there have different exposure levels. Those
exposure levels, you have to be aware, are already
existing at the site.
It is my opinion, however,
from doing numerous evaluations such as this, that
even with the maximum power that the Public Safety
-- which is the type of radio service, it's called
Public Safety Radio Service -- would not
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dramatically increase the maximum permitted
exposure of all fields at the site.
Thank you.
Does
CHAIRMAN LEHIGH:
anyone else have any questions?
MR. FANUELE:
The only question I
have is -- I have been asking around and I'm
having problems getting answers -- what happens
when I pick up the telephone and I start talking,
something comes out of that antenna? Can you take
us through a run of what happens to the signal,
where it goes and how it comes back.
MR. GRAIFF:
Sure. A cellular radio
telephone system operates in an unused portion of
the former UHF television band, the frequency
originally allocated to channels that are in the
high 60's and 70's where we no longer have UHF
televisions. So they're very similar to stations
that transmit today in that ban. A station in
Kingston, for example, transmits very near to the
cellular telephone frequency, although it is
removed enough so there is no interference. The
cellular frequency have taken all of these and
they're divided up into a number of channels that
the carrier uses to cover a specific geographic
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area, and these channels are reused over and over
again in the particular geographic area so that
you can have many conversations.
Assume for a moment that you have a portable
telephone in your hand and you dial a number into
the key pad and you press "send." That little
radio transmitter that's in that cellular
telephone -- which by the way transmits at a
maximum power, a maximum power, of 600 milliwatts,
which is 6/10th of a watt similar to what a
cordless phone might use or what a baby monitor in
a child's room might transmit.
It transmits a
signal on a data channel, a data overhead channel,
to a cell site that's constantly listening for any
traffic on this channel. A setup happens in which
the base station, the nearest base station,
measures the frequency and the signal of the
transmitted overhead message and a conversation
happens over this setup channel and a link is
established, a talking link, between the handheld
cellular telephone and the base station.
Once that the cellular telephone transmits its
data, its speech, to the cell site -- and that
cell site is connected by a telephone line to the
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public switch telephone network, to your regular
conventional dial telephone network -- and as they
say, the call goes through, you carryon a
conversation in a duplex mode, which is
transmitting and receiving at the same time, so
that you can hear someone speak when you're
talking.
As you drive throughout or walk throughout the
coverage area, there is a constant measurement
situation going on where all of the cell sites
that are surrounding you are measuring your signal
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strength.
As you get farther away from the cell
site, the signal of course decreases, and it
decreases relatively rapidly because of the
relatively small towers it's being transmitted by,
by both the handsets and by both of the cell
sites. As the measurement process is going on, it
is constantly looking for a better cell. When the
switch or the system controller finds a better
cell, it accomplishes a process called hand-off.
And in that hand-off, your cellular radio
telephone that you're holding, its frequency is
changed and it's reassigned to another channel of
an awaiting cell site and your conversation is, in
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a matter of milliseconds, transferred to that new
cell site. The telephone line connection that had
been working between the old cell site is changed
to the new cell site and you continue in your
conversation. That's the beauty of a hand-off,
that you have no idea really that it's happening.
When you're done with your call, you press the
end button that sends an overhead signal on the
data channel that says, I'm finished. The link is
dropped. Your transmitter stops transmitting its
analog for a digital signal that you have had your
conversation on, and the cell site stops
transmitting and goes silent on that channel that
you were on.
MR. FANUELE:
How does the antenna
come into all of this? I'm here with my phone and
I start talking and make a connection, where does
that go?
MR. GRAIFF: The antenna in your hand
set?
MR. FANUELE: Where does the signal
wind up going?
MR. GRAIFF: That signal is directed
to a cell site.
It's directed everywhere, but
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it's the closest cell site that picks it up. The
tower that the applicant is proposing here would
be known as a cell site and that energy is
directed actually it's directed everywhere.
It's directed omni-directionally pretty much and
it's received by the nearest cell site.
If you're further north, it might be received
by the cell site that they have at the mall. Or
if you're further south, it might be received at
the cell site that is on Holmness Mountain
(phonetic). If you're further to the east, it
might be received by the cell site that they have
in Pawling. It really depends on where you are
which cell site is required or is able to pick up
your small little tiny radio that you have.
MR. FANUELE: So now the cell site
picks it up. What does it do with it as far as
the transmission goes?
MR. GRAIFF: That cell site is
connected by telephone wires all the time, hard
wires, to a central office, and that central
office is connected to Verizon, this area's
telephone network. So it's always connected to
the cell site and always connected to the switch
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to the central switching office, and your
conversation is then carried from the cell site
where it is received over the telephone lines, to
the central office to whoever you're calling in
their home or business or wherever they might be.
MR. FANUELE:
So if I have a
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telephone wire coming into the cell site and the
tower is picking up the signal out of my antenna,
what else does the tower do? I mean, does the
tower just pick it up and there is no radiation?
MR. GRAIFF: Oh no, remember it's a
duplex conversation. You're not only transmitting
to the tower so you can talk, but the tower is
transmitting to you so you can hear the
conversation from the person that you're talking
to. It's called full duplex. Both conversations
are going on at the same time. Your cellular
transmitter is using actually two frequencies at
the same time. One to talk on and one to listen
on.
It transmits on the talk frequency and it
receives on the listen frequency. The receive
frequency that it listens on is the transmit
frequency of the cell site. They're reversed. Do
you follow that? If you transmit on one and
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receive on two, the cell site receives on one and
transmits on two.
MR. FANUELE: And if I'm calling
across the country, it goes to AT&T or whoever and
takes my signal from here to California?
MR. GRAIFF:
If you're making a long
distance call, that's up to Verizon or whoever you
subscribe to as your long-distance carrier how
that portion of the call is carried.
MR. FANUELE: All right.
Thank you.
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MR. GRAIFF: Thank you.
CHAIRMAN LEHIGH: Ms. Lukianoff.
MS. LUKIANOFF:
For the record, my
name is Tonia Lukianoff.
I am a zoning
administrator for the Town of wappingers.
I first
reviewed this file in late July at the time when
the applicant was right before the planning board.
Being new to the town, I was a little bit
concerned that there seemed to be a leap-frogging
of the process and that the ZBA was not involved
in some of the issues that I found. Upon review,
I found that there were really four zoning issues,
one of which -- only one of which -- was basically
under the jurisdiction of the planning board, and
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I wrote a letter to that effect to the town
planner, Mr. Wery and that was dated July 24th.
This was brought before the knowledge of the
board, the planning board, on August 7th and at
which point I restated that I thought that there
were three issues that should be addressed not by
the planning board, but by the ZBA. At this
point, there was a great deal of uncertainty as to
the precise measurements.
I kept hearing from the
engineering firm that there was "Approximately
plus or minus." And I waited until I was given a
more precise measurement, and then the variance
problems began. Recently new information supplied
by the applicant shows that one of the distances
is a distance to a barn. Now our code says that
it is the distance measured to a dwelling unit. A
barn, in my estimation, is not a dwelling unit.
Again, this is information that has been slowly
coming forward.
I have written a letter dated september 26th
addressed to you, the Board of Appeals, basically
restating what my position is.
CHAIRMAN LEHIGH:
Would you like to
read that letter into the minutes?
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MS. LUKIANOFF: Okay. It is dated
september 26th, 2000. (Reading) zoning Board of
Appeals, Town of Wappingers, Regarding Appeal
00-7062 and 00-7063 Cellular One Applicant, Tax
Grid number 6157-01-353724. Dear ZBA Members: You
have before you both an appeal for an
interpretation and an appeal for area variances.
After I first reviewed the file in the above-
referenced project in late July, I had indicated
that there were four zoning issues where the
applicant did not fall into the perimeters set
forth by the zoning ordinance. I referenced the
letter to Mr. Greer dated July 24th, 2000. The
issues were as follows: section 240-81
(G) (4) (c) (1) dealing with the 1500-foot setback
requirement from the cell tower to an educational
institution. Number two, section
240-81(G) (4) (c) (2) dealing with the 750-foot
setback requirement from the cell tower to an
existing dwelling unit. Three, section 240-81
(G) (5) dealing with the restriction of a height of
fencing, six feet. And item four, section
240-81(G) (9) stating that cell towers be located
at least one and one half times their maximum
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height from the outer boundary of the site.
During the planning board meeting on August
7th, 2000 I reiterated my position. However, I
also indicated that with respect to item four the
planning board did have the authority to waive or
modify the requirements of that particular
section. The other issues were to be addressed by
the ZBA. At that time, the applicant had not
provided the precise measurements to the school
and residences in the immediate area.
I did not
accept the initial application for variances until
the applicant's engineering firm was able to
verify and then provide more precise distances.
Since then, the applicant has submitted
documentation further defining the distances
involved. One of the structures mentioned was a
barn located southwest of the proposed cell tower
location.
Our code specifies "A dwelling unit,"
and a barn would not fall under this designation
and a variance would not be required for this
building.
If the cell tower is moved back further on the
property and its proximity to a barn is the only
distance that is under the 750-foot setback, and
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all dwelling units were further than 750 feet,
then that particular variance is no longer needed.
Very truly yours.
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CHAIRMAN LEHIGH:
So I would ask the
applicant if they measured to that barn or to
another dwelling unit to come up with the 750
feet?
MR. FISHER:
I can address these
issues, Mr. Chairman.
First in terms of timing,
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it is important to note that this zoning official
came on board right in the middle of an important
question for the planning board, and our primary
focus at that point in time was the interpretation
question: Do we or don't we need a variance;
regardless of whether it would be ten feet, is it
something that needs to be varied or not?
But as to the issue of this barn, I can tell
you if you look at your code section
240-81(G) (4) (c), which is on page 24109, there are
two provisions which are the two provisions that
we are here for tonight. The first one says that
a wireless facility shall not be located closer
than 1500 feet on a horizontal plane to any
structure existing at the time of application
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which is or is able to be occupied or habitable on
the property of any school. And the second
provision which deals with this zoning code talks
about closer than 750 feet from an existing
dwelling unit. We took a very conservative
approach in trying to ameliorate these two
positions and took the position that that
structure is part of a single-family residence
it's used by a single family from what we
understand -- and that we should run our
dimensions from that.
If your interpretation is that the barn is not
something that we would have to be 750 away from,
obviously with respect to this application it
would obviate the need for any variance from that
structure whatsoever. And certainly if you could
move it back slightly on the property, it would be
outside of the 750-foot radius from an existing
dwelling, it would -- at least with respect to the
dwelling in that particular provision -- be able
to be achieved and moot for any need for any
variance from that perspective. I think from our
existing location as proposed we would still need
a variance from the residence that is on
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Middlebush Avenue.
But I think that should give you a picture as
to where we were coming from to be most
conservative on that issue.
CHAIRMAN LEHIGH: Well, it doesn't help
me, because if I wish to grant you a variance, I
wish to do it accurately, so I would need a
measurement so that we know whether you're asking
for a variance that you don't need.
MR. FISHER: The question isn't so
much the distance from that barn or the distance
from any other structure.
The question is: Is
that barn a single-family dwelling for purposes of
this provision? And what I am just hearing from
the zoning official, it is not.
So in that case,
we don't need a variance from that particular
structure.
So we could put it five feet from
that structure, so the distance would be
irrelevant ultimately with respect to those
structures, and we believe they are barns.
They're barns that are used as part of a property
that's used for single-family purposes.
So,
ultimately if that's the interpretation, we would
not need a variance from that particular
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structure, and I think if you look at -- excuse me
just a minute.
I'm referencing --
CHAIRMAN LEHIGH:
If that was the
closest one and you don't need it, then you don't
need that variance.
MR. FISHER: Actually, it's not the
only one if you look at our Exhibit 7.
CHAIRMAN LEHIGH:
The house across
the street?
the street.
MR. FISHER: There are houses across
There are houses further west and a
couple of different structures, and it looks like
there are some single-family dwellings as well
that we would need a variance for.
CHAIRMAN LEHIGH: All right. You
have answered that question. Is that the end of
your presentation as of now?
MR. FISHER:
Yes, Chairman.
CHAIRMAN LEHIGH:
I would like to
hear from our expert now, Mr. Cooper.
MR. ROBERTS: Mr. Cooper is the
expert retained by the town in drafting the
original guidelines for the cell tower. And Mr.
Cooper, would you introduce yourself and give your
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professional address and state your professional
affiliation?
MR. COOPER: My name is Walter
Cooper. I am a principal of the firm of Flack &
Kurtz Consulting Engineers in New York city. I
handle the information technology in
telecommunication within the firm, a position I
have held for the last fourteen years.
I have
approximately thirty years experience in radio
frequency and engineering telecommunication
systems.
I have designed and built wireless
two-way radio telecommunications and cellular
systems around the world. About half of my
experience has been in the military system doing
strategic networks, and the last position I held
in the military was in support of the Joint Chiefs
of Staff, the command authority in the White House
strategic communications systems.
I have written and published and developed and
published software in the field of radio
propagation such as is used by AT&T on their
microwave radio engineering.
I guess that covers
my introduction.
I have been asked to review the application
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and the minutes of the previous meetings, and I
would like to start by saying I have not been
present at the previous hearings and I have only
been able to review what is in the written record
and it's quite possible that I have missed
something that was said in a hearing. And if so,
I apologize and I hope the applicant will correct
any information that's incomplete on my part. But
I would like to say that for the most part I agree
with the information that's in the application and
the subsequent submissions in answer to the
questions that were raised.
I looked particularly
at the radio frequency issues, and I know of no
major concerns that revolves around the issue of
maximum permissible exposure to an electromagnetic
field. Mr. Graiff has already submitted some data
on that and we have spoken about it. I must say
that I am in agreement with what he said. I
believe the method he used was a very conservative
method.
I believe from my own experience if you
do a calculation such as this and then go into the
field and take measurements, you're going to get
lower readings in the field in actual practice,
because the method is quite conservative.
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I believe it was done in compliance with the
FCC bulletins which is supposed to be used for
this purpose, and just to be certain, I did some
calculations of my own, which not only confirmed
what I saw, but I did something that you might
call an inconceivably worst case calculation in
which I assumed that you could mount the antennas
in such a way that every antenna was focused
directly at the foot of the tower, pointing
straight down, which would never be done in
practice, and every antenna was focused on one
spot. And I found that even if you did that,
which would be inconceivable, the amount of
radio-frequency energy that you would develop
would still be well within the permissible
exposure limits.
So I'm quite confident that if
this facility is built in the way that it is
described in the application, that it would fall
well within the guidelines.
Mr. Chairman, you have raised a question of
the contribution of the state police tower. The
OET Bulletin 65 addresses multiple sources and
requires that if another source will provide a
significant contribution, that that must be taken
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into consideration. The question is what is
significant? And without knowing I certainly
don't know the perimeters of what is being
transmitted from that tower -- my experience
suggests that it would not be significant, given
the distance between the two towers and the
typical installation that you would see in Public
Safety Radio systems. I don't believe it would be
significant, but I can't state that with certainty
without knowing the numbers. The OET Bulletin 65
gives an alternative method of determining that,
which is to take a field measurement, and the
applicant may want to do that. I don't know.
CHAIRMAN LEHIGH: I missed that last
part.
MR. COOPER: It's impossible to
simply go out in the field and take a measurement
and find out what that contribution is. As I
said, I suspect it would be insignificant, but I
can't state that with any certainty.
I also had some concern about the Federal
Aviation Aeronautical study and what the results
would be. The last time I reviewed the record,
that hadn't come back, and I believe it is back
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now, and I have looked at that and it states that
the structure would not be a hazard or an
obstruction in terms of the FAA classifications.
So I believe that area is satisfied and would not
require lighting of any sort unless it was done
voluntarily, and I think that covers that issue.
That was not clear from the beginning, but I
believe that's taken care of now.
There is also a question as to need for the
facility, and I know that the applicant states
that in effect this site is needed for capacity,
which means that there are other existing sites
that provide service in this area, but those sites
don't have enough capacity to handle all of the
calls that are being generated, so another site is
needed to alleviate that traffic jam of calls.
The applicant submitted data which supports
that conclusion and showed that the three nearest
sites, during significant parts of the day, are
essentially beyond capacity; they can't handle all
of the calls that are being attempted. We call
this the grade of service, and they're achieving
during certain hours a very low, very poor grade
of service.
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There is also a statement in the application
that those sites cannot be enhanced to improve
their capacity, and that is a requirement in the
zoning regulation, that any existing sites have to
be optimized before a need can be given for a new
site. The only concern I have there is there are
no specifies with that statement that I can find.
So I don't know why those sites can't be enhanced.
Looking at the data, I believe it's reasonable
that they probably cannot.
I believe one is a
flagpole type antenna, so the number of physical
antennas and size of those antennas that you can
put inside that fake flagpole is very limited, but
I would like, if there is something in the record,
to see more specifics about why those other sites
can't be enhanced to improve their capacity.
There are a number of reasons that are quite
possible and feasible as to why that is so.
Those were the only areas that I would
consider as areas of clarification.
I feel that
the application is relatively complete and I agree
with the majority of what it says, but I think
those areas deserve some clarification.
CHAIRMAN LEHIGH:
Thank you, Mr.
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Cooper. Would you like to address those
questions?
MR. FISHER: Absolutely. The issue
of the state police tower and doing the
measurement, certainly as a condition of any
approval that the board may grant, we could do
that. And in fact I think at our last meeting,
which Mr. Cooper wasn't able to be at, Ron Graiff
talked about that he in fact had done that
previously not too far away from the village and
measurements did corne back much lower. We would
be happy to do that as a condition of any approval
that might be granted.
On the issue of the additional data that was
requested, as I said before, that's a planning
board issue, and we have received a memo from Mr.
cooper's office and we do intend to respond to
that and provide the planning board with the
information that addresses why those other sites
are really at capacity and can't be altered.
So
we intended to present that information to the
planning board at a future date.
MR. COOPER:
I'm sorry, I missed one
point which I intended to make and you just
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"--
reminded me.
CHAIRMAN LEHIGH:
Go ahead.
MR. COOPER: That is the minimum
height requirement. I believe you're aware of
that. It falls within the same category of
enhancing the other sites, I believe.
In other
"-"
words, the town zoning law requires that any
structure that's built be built at a minimum
height that's necessary to meet the need, and I
don't feel that that's been clearly demonstrated
in the propagation plot and the other evidence
that's in the material that I have seen where that
has been addressed.
MR. FISHER: Again, that's a planning
board issue and not an issue for the zoning board
to resolve, but just in addressing that, if we had
a situation where we were dealing with a coverage
issue, it would be easy to show on a plot how much
it's filled in and what the difference in height
is. When you're dealing with a capacity issue,
it's not necessary to be graphically depicted in
that manner, but we will be able to give you that
information.
As we said from the very beginning of this
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entire project, the application that you have
before you is for 180-foot monopole, but we are
not in need of that for just Cellular One. We
proposed 150 as our height to address our needs.
The idea behind the added height was for future
carriers, PCA carriers and cellular carriers, who
needed additional height and similar coverage.
It was mentioned at our last meeting about the
potential for a shorter tower of 150 feet that
could be expanded in the future, and we had said
that we had done that in the past and would
consent obviously to any condition that was worded
that way, but we will address that issue before
the planning board.
CHAIRMAN LEHIGH: Mr. Roberts?
MR. ROBERTS:
I have nothing else.
Mr. Chairman, do you want to reference the
documents that are to be considered as part of
this application?
CHAIRMAN LEHIGH:
You want those in
now?
MR. ROBERTS: Yes, I think it would
be important to make that part of the record.
CHAIRMAN LEHIGH: All right. The
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application for Cellular One dated 8/8/00, the
site map, visual study and report, the short form
EAF, the engineering report, undated, by Robert E.
Graiff received 8/9/00 by the zoning
administrator, the site analysis report, undated,
by Cellular One received by the zoning
administrator on 9/1, a determination of "No
Hazard to Air and Navigation" by the FAA dated
7/13, a curriculum vitae of Robert E. Graiff, town
board recommendation 8/21, planning board
recommendation 8/8 and the letter of 7/24 to
Daniel Wery, a memorandum dated 8/31 prepared by
Cuddy & Feder & Worby, a local government guide to
transmitter antennas RF emissions safety dated 6/2
issued by the FCC, and the letter that was just
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'-"
read by the zoning administrator.
the evidence.
Now we are going to go to the public comment
That is all of
stage. I'm going to need a motion to open this up
to the public.
MR. diPIERNO: So moved.
MR. WARREN: Second.
CHAIRPERSON LEHIGH: The first name
is Art Kalaka.
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MR. KALAKA: How are you? I attended
the planning board --
."-'"
CHAIRPERSON LEHIGH:
come up here and speak.
Do you want to
MR. KALAKA:
I'm sure you can hear me.
CHAIRPERSON LEHIGH:
I'm sure I can
hear you too, but there is a microphone up here.
MR. KALAKA:
I attended the planning
........
board meeting and listened to the so-called
experts speak and everything, and I'm attending
this meeting tonight. I came here with a very
open mind and I really didn't know how I was going
to feel towards the building or the
recommendations for this antenna until I read
these appeals.
Appeal number 00-7062 requesting a 350-foot
variance from the junior high school. You have
answered the question on variance number two
requesting 130 feet from a dwelling, so that's no
longer a problem, but nobody has said anything
about the first variance, 350 feet from the
existing educational institution, the junior high
school. I listened to Mr. Cooper and I listened
to the experts -- the same experts that said ten
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years ago that the discharge from the General
Electric plant would not affect anything in the
Hudson River.
Mr. Cooper said the reason for this cell tower
is to handle the additional capacity. Well, I
venture to say that these gentlemen will be before
you, if you grant this variance, in the near
future asking for additional capacity on that
additional capacity.
Nobody has addressed the 350 feet from the
junior high school. That's a tremendous concern.
The school systems is getting larger. What
happens if we have to build additional buildings
there to handle the capacity of the kids that are
coming into the town? So gentlemen, I have been
on the zoning Board of Appeals, I have granted
variances and I disgranted variances, but I have
got to tell you when you talk about 350 feet,
that's not a violation, that's a gross violation.
You're not talking about ten, twenty or thirty
feet. When these experts speak it always sounds
very nice and everything, but nobody has ever
brought up the fact that the continuous use of a
cellular phone can cause additional medical
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problems.
There are a lot of unknowns here.
There are a lot of unknowns here, and I say to
you gentlemen, think about it, think about the
concerns of the residents. I also just question
I just question in my mind why this happened to
be the best site? I don't know what other
property there is in the town, but I understand
that the town had recommended to Cellular One some
other additional sites, but they didn't find it
suitable. I can think of a great site. I can
think of the property on Wheeler Road. I can
think of Mount Alvernia. There are a lot of other
places too, and I think this is just a convenience
for them. And I venture to say, gentlemen, that
that tower may be 150 feet or it may be 200 feet,
but you're definitely going to get additional
requests to increase that capacity. Thank you.
CHAIRMAN LEHIGH: Thank you. Robert
Valdati.
MR. VALDATI:
Good evening.
I have
attended meetings before on this issue and I would
just like to restate some of the things I have
said and perhaps add something new.
The law is the hallmark of an ordered society
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and the people of the Town of Wappingers have
taken it upon themselves to protect their
community with various zoning laws. We have
setbacks that have been set for yards, we have
setbacks for signage in front of buildings. We
determine these as a community, as the people. We
the people here determine that. We have decided
certain establishments, adult establishments,
cannot be located near schools or churches. We
have decided that gas stations cannot be in close
proximity to one another, because of the
aesthetics or the potential of hazard. Now we
have a law on the books that we have spent a great
deal of time researching, and we came up with what
we thought would be perimeters for you to utilize
to safeguard and continue to protect the people in
the town. These people are not here to subvert
the law. These people want the law adhered to.
The law is how we govern ourselves, the law is how
we order ourselves. We are not here to change the
law. We are here just to state that the law is to
be followed.
There is another very large site in the Town
of wappingers, a 99-acre parcel, that would
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certainly satisfy all setback requirements and
then some. Here, if it would satisfy the law, I
think the people's arguments would be put to rest.
however, gentlemen, it does not and we are
concerned as to the aesthetics and safety of our
community. We put that law in place not to have
the very first application of it subvert it. I
appeal to you on behalf of the people to let the
law stand.
CHAIRMAN LEHIGH:
Tom stinson.
MR. STINSON:
I want to know if
anyone on the zoning board knows what a 48-channe1
antenna looks like, because that's all they're
requesting, a 48-channel antenna.
MR. diPIERNO:
You're not here to
question us. We are here to ask questions.
(Disruption from the audience)
MR. STINSON:
I'm just asking if you
know what a 48-channel antenna looks like.
They're asking for 150 feet with a 48-channel
antenna on top of it. We are here tonight to get
some kind of opinion on the aesthetics of that
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pole. I think it's important that you know what a
48-channel antenna looks like.
CHAIRMAN LEHIGH: We have a picture
of it in the brochure.
MR. STINSON: Okay. One other thing,
is the Galleria site acceptable and where is the
documentation that says that it is or it isn't? I
have looked in the file and I can't find it
that is zoning law number 240-81 (f) (3) (a). Where
is the written documentation that they do not have
already existing capacity
page three -- do they
have it? Is it written? Where is it? I haven't
seen it in the file. How can we continue this
meeting? We can't continue this meeting until
that documentation exists. 240-81 (f) (3) (a),
written documentation that all sites within five
miles have been looked at and are deemed
unacceptable. Does that exist? I haven't found
it. I know that the expert from Cellular One has
said -- and I have said this for two months --
that the existing antenna height of 2000 feet or
3000 feet is acceptable for a 48-channel antenna.
If you know the size of it.
Radial plots of all the sites. I haven't seen
"-'"
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a radial plot in the file yet -- these are all
from 240-81 (f) (3) (b). I asked two weeks ago that
the board look into the reason they rejected the
site up on Route 9. I made a mistake; I said it
was Cellular One, it was Bell Atlantic. The
balloon was up for three days and it's 2000 feet
away from where we are now, why did they reject
it?
CHAIRMAN LEHIGH: Why did who reject
it?
MR. STINSON: They.
CHAIRMAN LEHIGH:
I don't know.
MR. STINSON:
It's very important,
because nobody found out why. It ought to be
understood why it was rejected. Was it
aesthetics? You people are going to make a
decision concerning the aesthetics of this pole in
the back. Wouldn't it be interesting to know why
they rejected one up there 2000 feet away? I
think I know, but I'm not sure and I'm not going
to make that statement, but it didn't look good.
Last week or two weeks ago, I asked the origin
of the 750 and 1500 feet. Mr. Roberts told me it
was Great Barrington. Has anyone talked to Great
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Barrington to find out why 750 and 1500 feet
exists? Can you tell me why?
CHAIRMAN LEHIGH: Can I tell you why?
It was an arbitrary figure that was picked out, as
far as I understand it.
MR. STINSON: Wasn't there an expert
there?
CHAIRMAN LEHIGH: One of the experts
was there, but that doesn't make any difference.
MR. STINSON:
I talked to Tony Blair
and he said that the 750 feet is there because
they felt that that was a distance that would
protect the aesthetics of the area of the homes
and it would maintain the real estate value.
That's no out-of-the-air, that's a judgment. And
that's what we are asking you people tonight to do
is give us your judgment.
CHAIRMAN LEHIGH: You're quite a bit
over your three minutes.
MR. STINSON: Three minutes?
CHAIRMAN LEHIGH: That's what I said
when we started. We have a lot of people that
want to talk.
UNIDENTIFIED SPEAKER: I will pass my
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time to him.
MR. STINSON: Good. Did I hear
correctly in the back that we waived the variance
for the 750 feet, but we are considering the
variance for 750 feet not to be necessary because
of a barn?
CHAIRMAN LEHIGH: Nobody has made
that statement.
MR. STINSON: I think Art mentioned
that -- how many houses are involved in that 750
feet?
CHAIRMAN LEHIGH: How many houses are
involved?
MR. STINSON; Yes, how many
residences come into that range?
CHAIRMAN LEHIGH: There were a couple
of others. That's why they didn't waive it.
MR. STINSON: Do you know how many?
CHAIRMAN LEHIGH: There is one across
the street.
MR. STINSON: There is Mr. Wilson,
Mr. Bosworth (phonetic) and a couple others here.
Are there any more?
CHAIRMAN LEHIGH:
I don't know. I
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don't have memorized all of those houses.
Do you?
MR. STINSON:
That should be a
significant input to make the decision concerning
the aesthetics of this thing, you have to know
those numbers.
MR. KALAKA: Torn, I made reference to
the barn.
MR. STINSON:
You don't need a
variance for the barn, but you certainly need it
for at least two, maybe three or four other
houses.
Four and a half times? Is that still an
issue or has that been solved or what is the
status of that? This thing is now within 50 feet,
I understand, of the property next to the tower.
It's 48.2 feet, if I look at the map, the map
shows 48.2 and I believe this line is cappillino's
property (indicating). It's 48.2 feet. That's
an issue. Has anybody addressed that?
I think this meeting ought to continue. I
think it has to be looked at. I think there is a
lot of issues. Mr. Cooper has some issues
concerning frequency, concerning minimum height of
the tower. I don't think anybody is ready to make
a decision. I think that there are significant
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things that have to be looked at before we
continue.
CHAIRMAN LEHIGH:
Robert Miller.
MR. MILLER: Gentlemen, I have two
questions. I will be brief. Where is the
environmental impact study that we asked for from
Cellular One?
CHAIRMAN LEHIGH:
That concerns the
planning board, not us. Their board asks for the
EAF.
MR. MILLER:
I'm sorry?
CHAIRMAN LEHIGH:
They ask for the
environmental statement.
It's called a short-form
EAF.
MR. MILLER: Do you, for all of the
residences that are involved in that 750
perimeter, need a separate variance for each
house?
CHAIRMAN LEHIGH:
Do you need a
separate variance for each house?
MR. MILLER:
Do you have to grant
them a separate variance for each dwelling?
CHAIRMAN LEHIGH: No. It's just one
general variance.
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MR. MILLER: And how many houses are
there specifically?
CHAIRMAN LEHIGH: It's on the map. I
believe there are three.
MR. MILLER: I don't have a ruler.
CHAIRMAN LEHIGH: I believe there are
three.
MR. MILLER: Thank you.
CHAIRMAN LEHIGH: I can't read all of
the writing here. Tim Stinson.
MR. STINSON: Just a couple of quick
things. I just got off the phone maybe about 3:00
with the Prudential people that are selling the
property over there, and I guess you guys are
aware that that's a pretty much done deal. There
will be thirty-two houses going over by Hopewell.
CHAIRMAN LEHIGH: I don't have any
information on that.
MR. STINSON: Well, I thought you
should know that. Also for ten or fifteen years I
used to drive on the Ohio Turnpike every year and
it was a nice ride -- there was farmland and silos
and this year was the first time I noticed that
every hundred feet was a cell tower. Do you know
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what that looks like? It looks like Coney Island
on the parachute ride. That's all.
CHAIRMAN LEHIGH: Jim Bacon.
MR. BACON: Good evening, Mr.
Chairman. My name is Jim Bacon and I am an
attorney. I was asked to come here to talk about
this subject.
Specifically, Mr. Chairman, I would like to
talk about Town Law 257 B and some of the
requirements. As you know, your job under that
section under area variances is to weigh the
benefits of this project on the community. That's
a fairly high burden, Mr. Chairman, and there are
five specific factors that the board needs to
consider. The first is whether an undesirable
change is going to be produced by this project to
the character of the neighborhood or the detriment
of the neighbors. I think the factors under this
heading is that there is going to be an 180-foot
tower that's going to be three or four times as
high as the neighboring trees and it's going to be
very visible.
It's really an industrial type use
in a residential area.
Mr. Chairman, one of the most important factors
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under this heading is also that there is going to
be a property devaluation to the neighbors. There
have been some studies done specifically in Orange
County that show that there is a fifteen percent
drop in value to the neighboring houses. This
study was done by Property Valuation Advisors and
I would be happy to get the board a copy of that
study.
MR. ROBERTS: Are you going to submit
a copy?
MR. BACON: Yes. I was going to ask
if you can keep the public comment or written
comment period over for at least fifteen days so I
can get the board some materials for them to
consider? That would be it.
CHAIRMAN LEHIGH:
I don't know if we
can do fifteen days.
MR. BACON: Mr. Chairman, the
neighbors who own property here, many of them have
made this an investment for retirement.
Some of
these people used their life savings to buy these
homes and they're depending on the resale of these
houses for their retirement, and I think that they
could not reasonably foresee that a cell tower
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could be placed so close to their homes. If this
was an industrial zone, then you could make that
argument, but it is a residential zone, so they
could not foresee that this was going to happen.
Also, Mr. Chairman, concerning the undesirable
change to the neighborhood, I think the board
should note the comments by the town from August
14th suggesting that this board uphold the
requirements of the town code specifically with
regard to the area variance and the requirement
that there should be at least 1500 feet from an
educational institution.
Also, Mr. Chairman, specifically with regard
to property devaluation, it is the legislative
intent of that law to preserve property value. I
think it would be very difficult to say that
putting a cell tower here is going to preserve the
property values of those neighbors. I think there
is a realtor here tonight that's going to also
speak on that subject.
Mr. Chairman, the second factor out of the
five under 267 B is whether the benefits of the
applicant can be achieved by an alternate method
that's feasible to the applicant. This subject
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strikes right to the heart of what Mr. Cooper was
discussing with the applicant and whether or not
there are any other sites in the town that could
meet the applicant's needs.
Case law is very
specific on this, Mr. Chairman; you must show by
specific evidence that there is absolutely no
other way to accomplish their goals but to put
this tower on the site that they're proposing.
From the material that I have read and from what I
am hearing tonight, it doesn't appear that they
have looked at putting two flagpoles where that
flagpole is or some of the other measures of
sharing space on other towers or buildings or
another tower next to an existing one. That is
the kind of information that is required, and I
believe that it would be unsupportable for the ZBA
to grant this variance without that evidence on
the record.
I would just like to say that you may believe
that that's going to be evidence that the planning
board will look at and that there is already SEQRA
information, but under this section of 267 B it is
the zoning board's responsibility to look at the
alternative sites and how this does or does not
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support the applicant's argument. I think
especially here it is one thing if the grade of
service cannot include a section, but I think it
is an altogether different scenario where we are
just talking about capacity, because if the area
is being served by the cellular towers, then the
capacity requirements of the applicant can be met
by not adding another tower in a place where there
are no towers, but it should be able to be met by
increasing the capacity of the existing towers.
Mr. Chairman, the third of the five factors is
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whether this variance is substantial or not.
I
would just like to cite a case over in the Town of
Hurley that involved a cell tower where they were
looking for a combined 82 feet of setbacks, and
the court held that there was no substantial,
dispute that the variance setbacks were
substantial and we're here, Mr. Chairman, and we
have at least 350 feet. Just for the record, the
cite of that case is 2628 2nd 849. I would be
glad to send over a copy of that case.
Mr. Chairman, the fourth factor is adverse
effect on environmental conditions.
I think in
this case we are not talking about the health and
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safety, but we are talking about the aesthetic
impacts to a neighborhood and the introduction of
an industrial use that is not here at the present
time. I know that the planning board will have to
deal with that under SEQRA, but this is an impact,
whereas in the Town of Hurley case there was a
negative declaration made under SEQRA, but the
zoning board still denied the use, because it was
a substantial impact to the character of the
community. And I think that's the same case here.
The final factor, Mr. Chairman, is whether the
difficulty has been self-created.
In this case,
as the board knows, it was the applicant that
approached the town board. The applicant doesn't
own the property. They decided to approach the
town board to see if the town board would accept
the tower on this site. I think they would have
to show evidence that they have tried just about
every other site they could in the town and have
rejected it for one reason or another, and there
would have to be substantial evidence to support
that.
So I think that all of these factors combined
can only lead to one conclusion: That the
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applicant has not met their burden to date of
showing that they're entitled to an area variance,
and I would ask that the public hearing be
continued or at least that we can be given the
chance to submit written comments to substantiate
these arguments. I think that's it. I appreciate
the time to present that argument.
MR. IVERSON:
Mr. Chairman, my name
is on the list too. I guess maybe my writing
wasn't too good, it's Chris Iverson. Do you see
it on there?
CHAIRMAN LEHIGH: Yes, I do.
MR. IVERSON: May I come up?
CHAIRMAN LEHIGH: Yes.
MR. IVERSON: Thank you. First I
wanted to say that it was kind of comforting to
see you struggling with a lot of the same issues
that we have been for the last several months.
You know, asking questions about how the cell
phone works? There is a huge amount of
information that we have tried to take in. It's
good to know that our neighbors are experiencing
it with us and listening to our concerns, and
thank you very much.
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Also, I realize that sometimes our emotions
get the better of us when we are worried about our
homes and our schools and our children, so please
forgive us if this town gets a little hot. I
think we are very excited about the welcome we
have been given by this committee so far.
I wanted to say, first of all, that ~ince
Cellular One is not requesting these variances
because there is no other properties-in the five
or six-mile radius that are suitable, if you just
look very quickly at the topographic map here
(indicating) you can see the main feature is the
Hudson River. This is our site and down here is
Beacon (indicating). Just to give you an idea of
the scale, a five or six-mile radius is going to
go all the way down into Beacon and all the way
out here to the Town of Poughkeepsie, Newburgh,
Marlboro (indicating). It's just a large, large
area that we are talking about on the other side
of the Hudson River. There are a lot of areas
that are isolated enough where this tower could be
placed besides right in a residential area close
to schools, and I just wanted to point that out.
I was wondering if you will be sending this
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message to our children, the future leaders of our
community: When we needed to find a place to put
an ugly industrial-looking, possibly unhealthy
tower that nobody wanted in their backyard, we
chose to ignore our good town's laws and put it
next to your schools. I just would like to try
not to send that message to our kids.
I actually have some letters written from
students and I'm just going to read two of them;
they're both very short. One is from an eleven-
year-old. (Reading) To the Town of Wappingers
Zoning Board. I think that tower has to go
somewhere, but I do not think that this is a good
place. I understand that the town law says that
it has to be at least 1500 feet away from any
school and 750 away from any house, so I think
that you should find somewhere else to put your
tower and make it a location not too close to
schools or houses. From the mouths of children.
The other one is from a twelve-year-old.
(Reading) To the Town of Wappingers Zoning Board,
Would you sacrifice health for convenience? This
is the decision that you have to make on Tuesday
night, a decision that will affect the entire
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community.
As I look around the marshlands of Wappingers,
I cannot imagine such an ugly figure dwarfing the
environment -- this student has a better
vocabulary that I do. Not knowing the health
risks that are involved with a cell tower, do we
really want one right next to the school that we
send our children to five times a week? Are you,
the wappingers Zoning Board, going t~ grant the
Cellular One's the right to place their cell tower
so close to the schools? Cellular One doesn't
care about the citizens of Wappingers. They care
about one thing, money, in the way only some
industrial businesses can fathom. Tell Cellular
One that they are not exempt from the zoning laws.
You have the power to make our community a better
place. Don't waste your chance.
The Randolph School is one of the schools that
is closer than 1500 feet and I'm never hearing it
mentioned in the figures. I keep hearing about
Wappingers Junior High, but Randolph is even
closer. In fact, our students estimated that the
distance is approximately 1000 feet, possibly
less. So I just wondered if that slipped by
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somehow or if Cellular One has actually looked at
the distance from the site to the school, because
if not, I wish that someone would check it out,
because the students calculated it by using the
pantheon theorem and it was 1000 feet
approximately or less.
MR. dipIERNO: You happen to be
right. We did ask for that.
MR. IVERSON: We haven't heard that
yet, but the students were right. Nice job, guys.
So that would mean that even if the variance is
granted, there is still a school too close; yes?
It sounds like it. I only have a few more short
things here.
Will the folks who live in the older historic
buildings in view of the tower be as likely to
give as much energy to maintaining their historic
homes? Do you think the kind of people who value
historic preservation will be likely to stay in
these homes or to buy them if the tower goes up?
The next point, the local Greenway Trail is a
multi-municipal effort to promote the natural,
cultural, historic and economic interests of our
area. The tower will be an eyesore on many parts
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of this trail. Will the trail be as likely to
promote the things intended if the tower goes up?
As people drive along the Dutchess County Historic
Driving Tour, which goes right down 9D between
Wappingers Falls and Hughsonville, they will see
this tower often. Is this something we want?
I know of several local teachers that use the
wetlands less than 70 feet from the tower site,
because it is the only wetland of its- kind in
walking distance from local schools. I suspect
that one of the most important aspects of these
wetlands is educating tomorrow's conservationists
and scientists. It is a real community asset.
The tower will be an undesirable in that outdoor
classroom. And lastly, the public is more and
more aware and concerned about living near power
lines, cell towers, etc. The trend indicates that
people will be even more cautious about this in
the future.
The tower will clearly affect the value of our
homes and should be put in an area far from them.
If you were looking at two houses, one in a lovely
neighborhood like ours is now, and one is in a
neighborhood with a cell tower, which would you
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choose? It's obvious that the tower will lower
the salability of our homes.
And just because I happen to know that another
person signed the list and maybe you couldn't read
her handwriting, may she speak?
CHAIRMAN LEHIGH: What's your name?
MS. VOLPE: Adrienne Volpe. May I
speak?
CHAIRMAN LEHIGH: We have got one
more person before you. Ved Shravah.
MR. SHRAVAH: Mr. Chairman, my name
is Ved Shravah and I am the president of the
Wappingers Board of Education. I am not standing
here in that capacity. I am standing here as a
parent and as a community person and somebody who
cares. I was wondering what responsibility you
had for the cell tower that is already there?
CHAIRMAN LEHIGH: There is a cell
tower, is there not, on that water tower over the
school?
MR. SHRAVAH: I don't think so.
UNIDENTIFIED SPEAKER: I thought you
were here to listen.
CHAIRMAN LEHIGH: Go ahead.
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MR. SHRAVAH: Mr. Chairman, I did not
come here prepared tonight. I was just motivated
from my heart, because I think that there is
something that is going to happen which may affect
the health of our children in this school, and I
am not only talking about Wappingers Junior High
School, there is also the Evans School next to us
and the Randolph School right across the street.
We are all parents and we are grandparents. And
Cellular One is a business corporation. They
don't live here. They don't send their children
to our schools. And I am hearing some hired
experts here. I don't believe that they live in
the area either or that their children go to these
schools.
The question here, gentlemen, is: If there is
a slight risk, even the slightest risk, to the
health of our children, will we take that risk?
The question is: If that is going to happen -_ and
suppose we do not know, we don't have enough
information, but there is a slight chance -- that
slight chance is the factor that we are all
worried about. Most of the people sitting here in
this hall, in this auditorium, are very concerned.
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They are not hired people. Nobody is paying them
to be here. They are here because they care and
we all care about our children. Those people will
not be here for a very long time. But you people
are from this area and you have children and
grandchildren in this area and going to these
schools. Your neighbors' children and
grandchildren are going to these schools. You
have a great responsibility. This responsibility
is not going to end tonight by your decision and
voting or granting a variance. This
responsibility will continue until later on, like
five years from now or four years from now or ten
years from now, when we find out that our
children's health was affected. I think if that
happens you will never be able to forgive
yourselves. Your conscience will haunt you if you
make a wrong decision. I ask you, therefore, not
to grant that variance. I don't even think that
you have enough evidence tonight to make a
decision. And my question is that if there is an
alternative available and the town is giving it to
them, why is it so important to build that tower
where all of that radiation is right there in the
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heart of the town affecting our children? Our
children's health is most important. This is not
just a school board's responsibility. It is the
responsibility of every citizen and everybody in
country. Our country has shown that they care
about the children, and I'm sure the Zoning Board
of Appeals also cares about the children, and if
even the slightest risk exists, then I don't think
that this board should grant any variance for this
application. Thank you.
CHAIRMAN LEHIGH: Adrienne Volpe.
MS. VOLPE: Hi. I am a lifelong
resident of Wappingers Falls and a parent at the
Randolph School and would like to state that I am
strongly opposed to this tower being placed where
you're proposing it be placed.
As a licensed realtor for the past fifteen
years, I have had experience in evaluating the
effect of these types of structures located near
residential properties. I also functioned as a
mortgage lender from 1992 through 1999 for General
Motors Mortgage Corporation located in Wappingers
Falls. And what happens to properties when a
structure like this is erected in the immediate
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area is that homeowners who presently own these
homes, when they apply for future financing __
such as a home equity, home improvement or a
college loan for their children -- they are
sometimes denied the ability to have these extra
funds, because the impact of a tower like this
aesthetically is negative. An underwriter, the
person who approves a mortgage loan in a bank, has
the right to deny or significantly slash the value
of the property as they see fit, because this
structure is located near the property; values as
high as fifteen to thirty percent reductions I
have seen in my experience in the real estate and
mortgage lending industry. Also prospective
buyers, if someone wants to sell their property
located near this tower, a new homeowner may want
to corne in and get financing and may not be able
to get the maximum amount of financing that a
lender would normally make allowable, because of
the negative impact of this on the surrounding
real estate. I just wanted to let you know that.
Thank you.
CHAIRMAN LEHIGH: We have a couple
more. Jeff Boldon.
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MR. BOLDON: All of my concerns have
already been raised, so there is no sense in
wasting your time further.
CHAIRMAN LEHIGH: Bill McConnell.
MR. MCCONNELL: I would echo that
sentiment and just simply say that we don't want
it there. We have a choice whether or not we want
to use a cell phone and expose ourselves to cancer
or other health hazards related with our cell
phones, but we feel like we don't have any choice
whether or not a tower goes in our back yards. I
just want to communicate that. We don't want it.
If you're representing us, we would ask you to
share that feeling.
CHAIRMAN LEHIGH: Susan Berliner.
(No response)
MS. VOLPE: Can I just mention one
more thing, Mr. Chairman?
CHAIRMAN LEHIGH: In place of Susan.
MS. VOLPE: I just wanted to also let
you know that recently I spoke with a homeowner in
Hyde Park who owns a property where there is a
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structure like this located nearby, and he's
actually considering donating the property to the
local fire department, because he had it on the
market for four years and can't sell it.
I also wanted to just mention that I have done
some research today through the Internet and some
other attorneys that I know who informed me that
other towns, especially in Westchester County,
such as the Town of Greenburg, use a site like the
site that Cellular One is proposing only as the
absolute last resort, after every other site out
of the residential areas and educational
facilities has been considered and rejected.
CHAIRMAN LEHIGH: I would like to
have a motion to close the public hearing.
MR. FISHER: Mr. Chairman, can I
respond?
MR. ROBERTS: Do you want him to
respond?
MR. FISHER: I would like to take the
opportunity to respond to a number of these issues
tonight.
CHAIRMAN LEHIGH: We will let him
respond.
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MR. FISHER: There were a number of
comments made and obviously there is a lot of
community emotion here. The one thing I do want
to point out is that a lot of the comments that
were made are not relevant factually or legally to
what you have to pass on. They're relevant to the
concerns of the community, and they may be
relevant in terms of comment that would likely be
made and shared in a public forum; that's
generally where there is the opportunity for the
pUblic to comment. I respect the fact that people
want their opinions known, but we have given you
actual facts and the law that applies, because it
is your jOb as the board to sit and objectively
weigh the evidence, which I know you will do.
A comment was made that we are a community of
laws, and we are a community of laws. I am a
lawyer and part of my jOb is to represent my
client within the boundaries of the law. The
question that was raised was this town code
provision. You know that the town code has to be
subject to not just what the town board desires or
would want, but the laws in the State of New York
and the laws of our government. We have had laws
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to deal specifically with those issues, and I
think it would be premature to say that the town
board has the authority to come up with an
arbitrary number that has no basis in fact or no
meaning in law and to say that towers should be
set back from the schools these distances.
(Disruption from the aUdience)
CHAIRMAN LEHIGH: Let's let the
gentleman finish. Everybody has had their say.
UNIDENTIFIED AUDIENCE MEMBER: So has
he.
CHAIRMAN LEHIGH: I will determine
that.
MR. FISHER: Thank you. Everybody
seems to be overlooking that there is an existing
tower on the property that transmits radio
frequency probably more powerful than Cellular One
-- I don't know, we can confirm that as part of
our measurement -- and that is closer to the
junior high school, closer to the Randolph School
and closer to the dwellings than the proposed
facility. We are set back further than that
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existing tower, and part of the law that was
adopted by the town said: We want to cluster
facilities specifically near existing towers.
That was part of the entire objective of this
application on a large 34 or 35-acre parcel
developed for the town hall, the police barracks
and the ambulance corps that has a historical use
that is not residential, and that was part of the
objective in this particular case.
A question was raised with respect to these
distances, and I want to clarify for the record
that at our first meeting, I believe it was Board
Member DiPierno, on the end, who raised the
question of the Randolph School. We went back and
specifically looked at it, and in our initial
analysis we couldn't find a special permit on
record on the town for that school, but what we
did find is that it's in fact a private school for
children from the age of kindergarten to, I think,
8th grade, so we included those distances. That
is the 350-foot distance that we are requesting
the variance for. The distance as to the junior
high school is 250 feet, as we had also said, and
as we had identified for both the planning board
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and you.
There were a lot of comments and citations to
the town code about information that hadn't been
submitted, coverage plots that aren't in the file.
It seems to be a mystery. All of that
information, number one, has been submitted to the
planning board and, two, that is the appropriate
agency that would review that information. Your
board does not have application submission
requirements that require that information, but we
wanted to make sure that you had that information
so we provided it to you, not only in our initial
submission but in response to additional requests,
so that you would be able to see everything that
the planning board has seen even though it's not
necessarily relevant to what you have to rule on
in this case.
Regarding the comments about Great Barrington
and the issues that were involved in that
particular site, the facts in Great Barrington
don't necessarily apply to Wappingers. Each case
is reviewed on its own merits. The fact that
somebody spoke to somebody in Great Barrington who
said X, Y, Z really means nothing in this
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particular proceeding.
A question was raised with respect to the side
yard setbacks. As we said before, and as the
zoning administrator very succinctly said this
evening, that is an issue for the planning board.
There are good reasons why we believe that that
should be waived, because as I said before, there
is an existing wetland, an existing DEC-regulated
stream on the adjacent property, and there is no
reason to believe that the tower as manufactured
will fall. There is no evidence of one ever
falling. It's required that it be in an area of
the property where it's wooded, and we can set the
tower in an area that meets really the objectives
of town code. But again, that's an issue for the
planning board. That's not an issue that you have
to concern yourselves with.
For clarification, the issue with respect to
the adjacent single-family residences. There was
a determination which was made that a barn is not
applicable to those distances, but we still need a
variance. If you look at Exhibit 7, there are two
houses that are about in a 620-foot range of the
proposed facility which is further away from the
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existing state police barracks from those homes,
but we still need a variance from those particular
requirements. There is a third home that just
slightly comes into the parcel at 750 feet, so we
have included that, but as was mentioned, the
closest standing house was the number we used in
the variance that was applied for.
I'm not aware of what development proposals
mayor may not be on the adjacent parcels. Those
would be subject to zoning and would have to corne
before the relevant boards in the Town of
Wappingers.
One thing I do know from looking at the
information that's been prepared by Chazen and
submitted to you is that the immediately adjacent
parcel is encumbered by the DEC stream which has a
very sizable setback and buffers which is state
protected. When you look at those distances, I
believe we are talking in the neighborhood of at
least 300 feet from the proposed facility, at
least from where any development can even occur
for usage of the property. So that certainly
doesn't present a problem for this application.
with respect to the law, there was an attorney
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-- and I apologize, I didn't catch his name -- who
had a fairly detailed analysis under section 267 B
of the town law. That doesn't apply.
It doesn't
apply. There was a memorandum that was provided
in detail explaining why we are not an industrial
use, we are not a manufacturing use, we are not a
commercial use; we are a public utility in New
York. Those standards really cannot be applied in
a very checklist type situation; they're good
guidelines. And I think when you look at those
issues on the particular site, because of the
existing tower and all the various screening and
trees that are around it, that even under that
test we would meet the requirement for the
granting of this variance from the school and from
any dwelling.
An issue was raised at the last meeting and it
has been raised again with respect to property
values.
I have with me a short letter that I
would like to submit for the record that includes
correspondence from three appraisers, not real
estate brokers -- who really are not qualified to
testify on these issues -- and in fact those
appraisers were involved in the Orange County case
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that was cited, and I was involved specifically in
that case. I want to tell you about it.
It involved the Town of Goshen and it involved
a long-standing power line dispute in that town
and an effort by my client, Cellular One who is
here tonight, to find a suitable location to meet
not just the technical objective but obviously the
setback objectives of the community. After about
three or four years and a couple of applications,
we found an 18-acre parcel of property that had
previously been used commercially, and it had a
high-tension power line running through the
property, and we ended up finding a site not too
far from that existing high-tension power line and
surrounded by some trees, but actually probably
more visible -- and Chazen can address this
because they did the visual shed on this site
it was more visible than that proposed site. We
supplied to the Town of Goshen Planning Board two
different appraisals, which went through the
factual site-specific objective material when you
appraise property, and looked at the high tension
power lines that existed, and there was very
minimal use, and it was determined that there
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would be no impact on the property values.
Those reports which were not sufficient in the
eyes of the Town of Goshen Planning Board were
sent to an outside appraiser they retained and
that outside appraiser came back and said, I
concur, I agree, there is no impact on the
property value here.
UNIDENTIFIED SPEAKER:
The power line
was already there; come on, now.
MR. FISHER: The point is that you
already have an existing communications tower
here. If there was any stigma -- which we don't
think there is -- on any property value I haven't
heard any testimony about people having problems
selling their homes and I haven't heard any
problems with people getting financing. I haven't
heard any issues involving real estate or any real
or perceived impact from the existing
communication tower on the properties in this
area.
There is not going to be any added effect by
this communication tower, because the town board
wants to preserve property values and that was one
of the objectives.
You preserve property by
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having communication towers in the same place, not
by putting them allover the place.
For the record, in response to the
correspondence dated September 26th, I have the
three correspondences that were prepared by
appraisers that are licensed, including MAl, which
include the American Property Counselors,
Valuation Consultants and Certified Appraisal
Service, and I would be happy to supply you with
other appraisals that came in after the litigation
that addressed comments raised by the town.
MS. VOLPE: And I will be happy to
bring appraisals in to offset that.
CHAIRMAN LEHIGH: Let him finish.
MR. FISHER: There were a couple of
other issues with respect to the Greenway and
other kinds of harmonious questions. I don't
think there is any question that wireless
communication serves a role in that capacity. In
fact, with respect to Greenway, if you look at
what the federal government has been doing,
specifically the Department of Interior and the
Federal Park Service, they have been opening up
park land for cellularized communication because
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there is a safety issue here. People who travel
the Appalachian Trail and people who travel the
mountains and lodges benefit from public cellular
access which demonstrates the public safety aspect
of this and that's why ultimately in the State of
New York we are considered a public utility.
There is an inherent beneficial community purpose
behind the service we are providing.
(Disruption from the audience)
CHAIRMAN LEHIGH: Do you want to hold
it down so we can hear this gentleman, please?
MR. FISHER: When we talk about
capacity, it's very easy for people to say, Well,
that's no big deal, so I can't make a phone call.
Well, I suspect if people were in their homes and
they had the same experience with Verizon, that
there would be any number of complaints. And in
fact, Verizon in the past has had poor service,
and as touched on previously, has been fined by
the Public Service commission. There is a
regulatory response that is very real for the
cellular servers through the FCC with respect to
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how they operate their business. This is not
something where we are providing the service of
simply when you come in order your sandwich and
leave, we are not only subject to the laws in the
Town of wappingers, we are regulated by the FCC on
the federal level and this service has been
mandated both by the federal and state level to be
provided to the community.
The question ultimately comes down to
facilities, and obviously, appearances like
tonight before your board which generates a
tremendous amount of community input. That's
good. That's the democratic process.
We did not look at this site as the only site.
As noted before, we worked for several months, if
not a year, with the town board and the
representatives of the town board. We looked at
how we could fit something in within our network
that technically operated and also complied with
the town code provisions that we could. For this
particular site it really comes full circle. The
only issue you have to look at is, Why is this
property unique, or Is there a hardship in
locating a tower on this property at a distance
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that complies with 1500 feet and 750 feet? We
have gone through all of that and nobody from the
public has really said, We disagree, you should
put it in the wetland. That's really the only
issue. The height of the tower really is not an
issue. It complies with the town code provisions.
The other provisions that have been cited are
really something that the planning board needs to
deal with. Your board has to look at what is
unique about the property, and Why does the tower
have to be located in the place that it is
located, or Is there another place on the property
that we could locate it that would be the least
impact and mitigate that variance that's being
requested.
A question was asked with respect to the Town
of Greenburg. I practice in the Town of
Greenburg. I was involved when they adopted their
law. I know the individual on the town review
board and routinely appear before them, and I will
tell you to say that the Town of Greenburg
addressed this appropriately and would never
approve something like this and only as a last
resort, quite honestly is inaccurate. If the
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board requests it, I will certainly be able to
provide them with proof.
When that law was adopted because they
tried to give incentives to find particular
locations -- it had a horrible and unintended
effect. They were exploited, quite frankly, by
Cellular One's competitors. There were building
permits issued for 120 foot monopoles that were 50
feet from a house. That was not something that
the Town of Greenburg intended to do, and they
have changed their laws to reflect that. So that
law most certainly has been a work in progress and
not one and I would cite as a guideline on
wireless tower issues.
As for Hyde Park, I don't know why people
donate property. I don't know why people sell
property. I don't know why they have a problem
selling property. There could be any number of
reasons. This is conjecture and speculation and
not something that you can rely on to say that's
applicable to the case in hand. In fact, it could
be something completely different.
CHAIRMAN LEHIGH: We realize that I
think.
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MR. FISHER: And the other thing I
wanted to point out, with all due respect to the
president of the Board of Education, as we had
mentioned previously, there are antennas on the
state police barracks that are closer and on the
building of the school itself.
As was said in our submission, in the State of
New York school boards can enter into an agreement
with a cellular carrier and have a site on their
school property and not be subject to local zoning
whatsoever. There are locations on schools
throughout the State of New York. So to say that
there is some magic number of 1500 feet, is not
accurate when in fact in this state there are
sites right on school buildings.
UNIDENTIFIED AUDIENCE MEMBER: That's
not us.
MR. FISHER: A number of other
comments were raised, but obviously subject to
your board's discretion. We certainly would want
to respond to any additional information that
would be submitted.
I thank you for your patience in hearing all
of our responses.
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MR. VALDATI: Mr. Chairman, as a town
board member, you made reference to an action of
the town board and I would just like to respond to
that quickly.
CHAIRMAN LEHIGH: I will let you
respond, and you'll be the last one.
MR. KALAKA: You haven't cl~sed the
public hearing, and I would request an opportunity
to speak.
CHAIRMAN LEHIGH: You have had the
opportunity to speak.
MR. KALAKA: It's still a public
hearing. You haven't closed it. You gave him the
opportunity, and I would like to have the
opportunity to respond to his response.
CHAIRMAN LEHIGH: I don't want to sit
here and go through the whole evening with one
response after another.
UNIDENTIFIED AUDIENCE MEMBER: You
gave him more than three minutes.
CHAIRMAN LEHIGH: All I have to do is
listen to the pertinent information on this case.
I have listened -- we have listened and I have
given this gentleman a chance to talk. I'll give
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one more, but I won't give any more than that.
We are not going to sit here and argue this
whole case out. You will be given the opportunity
to come up and speak and put some pertinent
information in, not just an argument, not just
because you disagree with what this gentleman had
to say. I want some pertinent information. I
don't consider personal argument, pertinent
information.
UNIDENTIFIED AUDIENCE MEMBER: He was
talking about other schools. This is our town;
this is for us.
CHAIRMAN LEHIGH: Mr. Valdati has
been recognized.
MR. VALDATI: Mr. Chairman, I would
just like to briefly say a couple of words in
rebuttal to what Mr. Fisher has alleged to the
Zoning Board of Appeals.
MR. diPIERNO: We just need to change
the tape.
MR. VALDATI: I'm sure you can just
write a synopsis of what I have to say.
I think
that Mr. Fisher, who is obviously on retainer for
this company, has made some very clever points.
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The best one he made, to me, was saying that
whatever requirements are set forth in the town
zone are arbitrary, are subjective, and for all
intents and purposes capricious and you gentlemen
should not consider them as valid points of law.
Therefore, that countermands the very reason why
you are in existence.
As you are all aware, to have two unregistered
cars in your driveway as opposed to one -- that is
the basis of a decision made by people who sit in
positions like yours and mine. That is not
arbitrary. That is determined by a judgment that
is necessary for the quality of life in the
community. Is the setback to a home from a road,
the rear yard setbacks, the size of the sign for a
business, the color of the business, the style,
the architecture set forth in stone? Do we look
that up in some tome that tells us how to do that?
No, we make a judgment on that. We make a
judgment based on our understanding of what our
community is all about and the needs required to
maintain that status. I resent the fact that it's
made to appear that what we place in our laws are
made simply by a whimsical determination that's
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flippant, that's irrelevant and that is not to be
taken seriously when it's from the other side of
the aisle when you're working now on the end of a
retainer. And I dare say that this gentleman has
fought and used those very setbacks and those very
arbitrary and whimsical requirements in his
arguments when it was on the other side for a
retainer coming his way. Thank you.
MR. KALAKA: Well, it's not a
personal attack or anything, but I want to say
that this gentleman echoed eighty percent of what
I was going to say in response to the response
(Addressing Mr. Valdati). He mentioned the town
hall and he mentioned the antenna on the state
police barracks. Mr. Cooper, when he made his
report, he didn't really know the value or the
affect of having that antenna with the cell tower.
He just said, I guess it would be okay. But I
don't think there were any specific studies.
I drive down 90 almost every day, and when I
pass that transformer my radio goes ploomp (making
a sound effect) and my hair stands up. I don't
know what effect it's going to have when I drive
down Middlebush Road and have two antennas there,
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both from the state police and Cellular One.
Of all of the compelling arguments that we
heard, again the effect on the real estate value,
the zoning ordinance and the aesthetic effect that
it has on the community -- and the reason for your
existence is to maintain that aesthetic quality
the effect that it has on our kids, Mr.Shravah
made the most compelling argument that I heard,
and yet it was just passed over very-lightly, the
effect that it's going to have on our future
generations. It's very obvious that our community
is growing by leaps and bounds. Look at the
problems that the Board of Education has with
space. More space may be needed here. What are
we going to do then if we have a cell tower? We
cannot build any other school. There isn't any
other space here on the junior high school ground.
Thank you, you echoed exactly what I was going
to say in answer to him (Addressing Mr. Valdati).
It's very nice when you have a retainer and you
can be very powerful and say things, but I tell
you, I was on the Zoning Boards of Appeals and I
was very concerned just like you gentlemen are, in
maintaining the integrity of our community. Why
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do you only allow one gas station on the corner;
why do you only allow this; why do you only allow
that and why do you disallow this? You have it in
your power to either grant or deny this variance.
Please take into consideration all of the
arguments of the people of the community. They're
your people and this is your community.
Someone also made a good point that this is a
business and nobody from this company has anything
to do with anything in our community other than
putting up a tower and paying the Town of
Wappingers money.
Thank you for the time, I appreciate it. I
hope that there was enough value in what I had to
say and that it wasn't wasting your time or the
time of anybody in the room.
MR. BACON: Mr. Chairman, if I may.
I have a very, very brief response to counsel.
They have been battling the subject in different
municipalities many times over, but I have a very
quick statement to make. I know that the
applicant is a public utility. Courts have found
that Cellular One is a public utility, but I would
like the board and counsel to remember that the
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Court of Appeals in Consolidated Edison versus
Hoffman specifically said that public utilities
such as Cellular One must show modifications as a
public necessity required to render safe and
adequate service. An applicant must prove
compelling reasons, economic or otherwise,
explaining why the proposed request is more
feasible than the alternative options.
MR. ROBERTS: Can I have the cite on
that case?
MR. BACON: Sure. It's 43 NY 2nd
598. There is another case 82 NY 2nd 364 and this
is a case out of the fourth department and dealt
specifically with Cellular One on this issue and I
think it's very pertinent. I would be glad to
send those cases over as well. Thank you.
MR. SHRAVAH: Can I just take a
minute, Mr. Chairman. I do not wish to respond to
this gentleman, but I just want to tell him only
one thing perhaps he is doing a very good job for
the company who has hired him, but I would like to
say that safety and children are very important to
us. Thank you.
MR. BOLDON: Excuse me, I just had
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CELLULAR ONE PROPOSAL
one question. In the measurements that were
taken, the 1150 feet, was that from the playground
on Middlebush Road or the actual physical
building? There is a place in front of the road
where the kids are always playing, was it taken
from that area or was it taken from the physical
building?
CHAIRMAN LEHIGH: I imagine from the
building.
MR. BOLDON: So that would probably
be 400 or 500 feet short then.
CHAIRMAN LEHIGH: Do we need any more
information?
MR. ROBERTS: I think the record
could be more clear on the ability of the
applicant to increase or not increase capacity at
his existing site. And secondly, I would like
both attorneys to supply me with any legal
memoranda they may have that might be applicable
to section 267 B of the town law for this
particular application. It is my understanding
that there have been some recent cases on this
issue and I would invite both of them to supply me
with whatever information they have.
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CHAIRMAN LEHIGH: Why don't we
adjourn this until the 17th until you get the
information?
MR. ROBERTS: If that's the board's
pleasure.
MR. FISHER: Just solely in response
to the request for additional information. The
first point being other sites, that's a planning
board issue, so it's not relevant to-your board.
I don't think it should be a reason for holding
this up here.
The second issue is the request for legal
memoranda, our August 31st memoranda that was
submitted had all of the relevant legal standards.
Just to address the Consolidated Edison case, it
is a Court of Appeals case that goes back to 1971,
it dealt with a use variance and the public
utility in that case was electrical. The
Rosenberg case, which was decided by the Court of
Appeals in 1993, which I have given you, is
directly on point. Though both of those dealt
with use variances there is a little bit of a
different standard, given the public utility, than
the one that is before this board.
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CELLULAR ONE PROPOSAL
I don't think there is any additional
information that you would need to render a fair
and accurate decision on this application.
CHAIRMAN LEHIGH: Do you want to take
a break for five minutes?
MR. ROBERTS: It's up to you.
CHAIRMAN LEHIGH: Let's take a break
for five minutes and have a little executive
session in the hallway.
(Break in the proceeding)
CHAIRMAN LEHIGH: Can I have a
motion?
MR. PRAGER: I make the motion that
we come out of executive session.
MR. WARREN: Second.
CHAIRMAN LEHIGH: All in favor.
MR. dipIERNO: Aye.
MR. WARREN: Aye.
CHAIRMAN LEHIGH: Aye.
MR. PRAGER: Aye.
MR. FANUELE: Aye.
CHAIRMAN LEHIGH: We have three
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questions for Cellular One. For the height on the
tower we would like a little more proof on that
for the minimum height you can get away with or if
you have to have that 150; that you can't increase
the capacity in any other place to take care of
this, and the need for this specific location
right here.
Now I would like to adjourn this until the
17th to give you time to provide that information.
MR. FISHER: Can you just give me one
moment, Mr. Chairman?
CHAIRMAN LEHIGH: Yes. And you can
submit anything you want to the town attorney.
MR. BACON: Thank you, Mr. Chairman.
MR. FISHER: Mr. Chairman, just in
response to the information requests, let me just
for my purposes
and please don't take this the
wrong way -- place an objection, simply because I
don't believe that any of that information is
relevant to your deliberations on the request at
hand. That being said, we know that we have to
give some of this information to the planning
board so we will be preparing that information for
the planning board, and obviously, we would be
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willing to share it with you. Obviously it is
your discretion to hold the hearing over, that's a
decision that's up to you. I don't think it's
necessary, but that's a decision that's up to you.
One more thing, there is going to be an
opportunity -- a limited opportunity from what I
understand -- for legal memoranda to be ~rovided
on the question of the Consolidated Edison case, I
would simply request that that information be
provided at least a week in advance of the October
date, so I would have an opportunity to give a
response to that.
MR. ROBERTS: That's fine.
MR. BACON: That's fine, but I'm not
going to limit it to Consolidated Edison though,
because there are other cases that apply as well.
MR. ROBERTS: Get his card and why
don't you share it with me and him simultaneously?
MR. BACON: I certainly will.
MR. PRAGER: I move we adjourn the
public hearing until October 17th.
MR. dipIERNO: Second.
CHAIRMAN LEHIGH: All in favor?
MR. dipIERNO: Aye.
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MR. WARREN: Aye.
CHAIRMAN LEHIGH: Aye.
MR. PRAGER: Aye.
MR. FANUELE: Aye.
MR. FISHER: Mr. Chairman, Mr. Graiff
who will be helping us respond to information,
would like some qualifications from Mr. Cooper.
We can do it on the record or move on with your
permission to talk with him.
CHAIRMAN LEHIGH: Move on. We have
three more cases here to go over.
Can you do that, Mr. Cooper?
MR. COOPER: Yes.
MR. FISHER: Thank you very much.
That it.
(Whereupon the hearing adjourned at
10:00 p.m.)
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C E R T I F I CAT ION
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I, KIMBERLY BURKE, a Court Reporter and
Notary Public in and for the state of New York, do
hereby certify that I recorded stenographically
the proceedings herein at the time and place noted
in the heading hereof, and that the foregoing is
an accurate and complete transcript of same, to
the best of my knowledge and belief.
I .":). ,,,'
--=~~~---
KIMBERLY BURKE
Dated: October 18th, 2000
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