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05-7267 . TOWN OF WAPPINGER ZONING BOARD OF APPEALS ~/- 7 O~-~Ae~I." /~~.. ..,~)"",\"" 1.i. ".'" -"'''~'.'\ !i~ "~\j Ie' . 's\~E.' ~r~::'.~..t-./;.. ~SS CO~~ ~~~ SUPERVISOR JOSEPH RUGGIERO , ZONING BOARD OF APPEALS 20 MIDDLEBUSH ROAD WAPPINGERS FALLS, NY 12590-0324 (845) 297-1373 TOWN COUNCIL VINCENT BETTINA CHRISTOPHER J. COLSEY JOSEPH P. PAOLONI ROBERT L. VALDATI June 30, 2005 RECEIVED JUL 0 6 2005 TOWN CLERK To: Chris Masterson Town Clerk From: Barbara Roberti, Secretary Town of Wappinger Zoning Board of Appeals Re: Nextel Communications Appeal No. 05-7267 ,,. . Attached you will find the original Application/Decision & Order for Nextel Communications, 14 Middlebush Road., Wappinger Falls, NY. I would appreciate it if you would file these documents. Attachments cc: Cuddy & Feder Attn: Mr. Daniel Leary Zoning Board Town File Town Attorney Building Inspector Zoning Administrator "WAPJ::I' ~~ o~<~,_If4t,,\ .~ ...., '<. '~~. .:\. /"0.,"- . \ \1, "f- I .. .. li>11 11"_~'i..11 '.0.. ~~'/.ie' C. '....~ . . ...../~.....> . .A .... r..... ../ (\,"",' ~ '... 'Y~SS'~ CO\},,""/ Town aT Wappinger P.O. Box 324 - 20 Midd I ebush Road Wappingers Fa II 5, NY 12590 Zoning Board of Appeals Office: 845.297.1373'" Fax: 845.297.4558 Zoning Enforcement Officer Office: 845.297.6257 www.townofwappinger.us Application for an Area Variance Appeal # 05 - 7207 Dated: June 9, 2005 TO THE ZONING BOARD OF APPEALS, TOWN OF WAPPINGER, NEW YORK: 1 .. located h I~), Nexte Commun1cat1ons ~at One Nort Broadway White Plains, New York 10601 , 973-276- 5722 (phone), hereby appeal to the Zoning Board of Appeals from the decision/action of the Zoning Administrator, dated June 3 , 200..5.., and do hereby apply for an area variance(s). Premises located at 14 Midd1ebusb Road Tax Grid # 1 CJ-61 ~7-01';:'3~3724-00 Zoning District R/20-40 1. Record Owner of Property Town of Address 20 Middlebush Road Phone Number ~m- 5771 Owner Consent: Dated: Wap,pinqer Signature: See Letter of Consent Printed: annexed nereto 2. Variance(s) Request: Variance No. 1 I(We) hereby apply to the Zoning Board of Appeals for a variance(s) of the following requirements of the Zoning Code. Schedule of Dimensional Regulations - Setbacks for Accessory Buildinqin R/20-40 Zone. (Indicate Article, Section, Subsection and Paragraph) Required: 10 feet Applicant(s) can provide: 5 feet Thus requesting: 5 foot variance TO,allow: The instal1a.:tion ~f a 10lx20' ~9Uipment shelter , TOW022.ZBA-AA V (4-03 Rev) I of 4 Town of Wappinger Zoning Board of Appeals Application for an Area Variance Appeal No. E. How did your need for an area variance(s) come about? Is your difficulty self-created? Please explain your answer in detail. See annexed cover letter~ F. Is your property unique in the neighborhood that is needs this type of variance? Please explain your answer in detail. See annexed cover letter. 4. List of attachments (Check applicable information) ( ) Survey Dated Prepared by ( ) Plot Pia n Dated at') Photos (X) Drawings Dated , Last Revised and April 8, 2005 (X) Letter of Communication which resulted in application to the ZBA. (e.g., recommendation from the Planning Board/Zoning Denial) Letter from Tatiana Lukianoff, Zoninq -Admin. Dated: June 3. 2005 Letter from Dated: ( ) Other (please list): See annexed cover letter. 5. Signature and Verification Please be advised that no application can be deemed complete unless signed below. The applicant her: o mation given is accurate as of the date of application. SIGNATURE DATED: June 9 , 2005 for Applicant Nextel DATED: SIGNATURE (If more than one Appellant) i TOW022.ZBA-AA V (4-03 Rev) 3 of 4 Town of Wappinger Zoning Board of Appeals Application for an Area Variance Appeal No. Variance No.2 I(We) hereby apply to the Zoning Board of Appeals for a variance(s) of the following requirements of the Zoning Code. RIA (Indicate Article, Section, Subsection and Paragraph) Required: Applicant(s) can provide: Thus requesting: To allow: 3. Reason For Appeal (Please substantiate the request by answering the following questions in detail. Use extra sheet, if necessary): A. If your variance(s) is(are) granted, how will the character of the neighborhood or nearby properties change? Will any of those changes be negative? Please expla in your answer in detail. See annexed cover letter. B. Please explain why you need the variance(s). Is there any way to reach the same result without a variance(s)? Please be specific in your answer. See annexed cover letter. C. How big is the change from the standards set out in the zoning law? Is the requested area variance(s) substantial? If not, please explain, in detail, why it is not substantial. See annexed cover letter. D. If your variance(s) is(are) granted, will the physical environmental conditions in the neighborhood or district be impacted? Please explain, in detail, why or why not. See annexed cover letter. I TOW022.ZBA-AA V (4.Q3 Rev) 2 of 4 Town of Wappinger Zoning Board of Appeals Application for an Area Variance Appeal No. 05-7267 FOR OFFICE USE ONLY 1. The requested variance(s) ( ) WILL / (X) WILL NOT produce an undesirable change in the character of the neighborhood. ( ) YES / (X) NO, Substantial detriment will be created to nearby properties. 2. There ( ) IS(ARE) / ex ) IS(ARE) NO other feasible methods available for you to pursue to achieve the benefit you seek other than the requested variance(s). 3. The requested area variance(s) (X) IS(ARE) / ( ) IS(ARE) NOT substantial. 4. The proposed variance(s) ( ) WILL / QC ) WILL NOT have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district. 5. The alleged difficulty ex ) IS / ( ) IS NOT self-created. 6. The property ( ) IS / ex) IS NOT unique to the neighborhood. Conclusion: Therefore, it was determined the requested variance Be (X) GRANTED () DENIED. Conditions/Stipulations: The following conditions and/or stipulations were adopted by resolution of the Board as part of the action stated above: The ZBA has voted to gr~nr ~ 5 foot rear yard uariancQ where 10 feet ~~s required to allow for a 10' X 20' a~uipmant onad for a ccllulay co locator. (X) Findings & Facts Attached. DATED: June 30, 2005 ZONING BOARD OF APPEALS ::~G7;~ (Chairman) PRINT:-V/Q7;;,R ,. rANUfi LI3. TOW022.ZBA-AA V (4-03 Rev) 4 of 4 t . CUDDY & FEDER LLP 90 MAPLE AVENUE WHITE PLAINS, NEW YORK 10601-5196 WILLIAM V. CUDDY 1971.2000 NEIL J. ALEXANDER (also CTl THOMAS R. BEIRNE (also DC) STEPHANIE BORTNYK (also NJ) JOSEPH P. CARLUCCI LUCIA CHIOCCHIO (also CT) ROBERT DISIENA KENNETH J. DUBROFF ROBERT FEDER CHRISTOPHER B. FISHER (also CT) ANTHONY B. GIOFFRE III (also CT) KAREN G. GRANIK JOSHUA J. GRAUER KENNETH F. JURIST MICHAa L. KATZ (also NJ) JOSHUA E. KIMERLlNG (also CTl DANIEL F. LEARY (also Cn BARRY E. LONG (914) 761-1300 FACSIMILE (914) 761-5372/6405 ~.cudd~ede~oom 500 FIFTH AVENUE NEW YORK. NEWYORK 10110 (212) 944.2841 FACSIMILE (212) 944-2843 EON S. NICHOLS (also CTI WILLIAM S. NULL DAWN M. PORTNEY ELISABETH N. RADOW NEIL T. RIMSKY RUTH E. ROTH ANDREW P. SCHRIEVER (also MAl JENNIFER L. VAN TUYL CHAUNCEY L. WALKER (also CA) WESTAGE BUSINESS CENTER 300 WEST AGE BUSINESS CENTER, SUITE 380 FISHKILL, NEW YORK 12524 (845) 896-2229 FACSIMILE (845) 896-3672 01 Counsel ANDREW A. GLlCKSON (also CT) ROBERT L. OSAR (also TX) MARYANN M. PALERMO ROBERT C. SCHNEIDER NORWALK. CONNECTICUT June 9, 2005 BY HAND Ms. Tatiana Lukianoff, Zoning Administrator and Members of the Zoning Board of Appeals Town of Wappinger Town Hall 20 Middlebush Road Wappinger, New York 12590 JU~J U (1 i(.;5 ~_ ,"'_ /,,"'1 t- f \ f'.\ ~ \ C. -!. ,'""") T /.-" r-.,;; II i""1 N' '1 , "..' : '., h..c. " I .. L- .. I -\I ;. - '-,. _, J" t'"', ...._, I' : ,r-, 1""'"" -: TnW"l (H- \f\/;.w'il\j\'.-At:I' I '....,1 '''' '.'-' Re: General Dynamics Network Services, Inc., as agent for Nextel of New York, Inc. d/b/a Nextel Communications Variance Application Premises: 14 Middlebush Road, Wappinger, New York Tax Map ill #:19-6157-01-353724-00 Dear Ms. Lukianoff and Members of the Zoning Board of Appeals: This letter is respectfully submitted on behalf of General Dynamics Network Services, Inc., as agent for Nextel of New York, Inc., d/b/a Nextel Communications ("Nextel") in connection with the above-referenced application. On April 18, 2005 we submitted an application for Special Permit/Site Plan approval to the Planning Board and subsequently, appeared before the Planning Board on June 6,2005. At this meeting, the Planning Board referred the application to the Zoning Board of Appeals. As discussed herein, Nextel is seeking an area variance from the Zoning Board of Appeals. Nextel is a Federal Communications Commission ("FCC") licensed provider of next generation, digital wireless services. Nextel provides specialized mobile radio services ("SMR Service") by combining traditional mobile telephone, paging, messaging and dispatch services into a single user handset. Through this handset, customers communicate across a network of wireless facilities operated by Nextel. Nextel's SMR service is an alternative to and the C&F: 513539.1 CUDDY & FEDER LLP June 9, 2005 Page 2 functional equivalent of cellular telephone and personal communications services ("PCS Services"). Nextel has obtained an owner consent form from American Cellular Corporation, the owner of the existing 150' tall telecommunications tower located at 14 Middlebush Road in the Town of Wappinger, New York ("Premises") and is hereby applying for a variance from the Zoning Board of Appeals to co-locate a wireless telecommunications facility on the existing tower on the Premises. Please be advised that Dobson Cellular and Cingular Wireless are currently operating wireless telecommunications facilities on the tower at this location. See Site Plans, prepared by APT Engineering, dated March 28,2005, last revised April 8, 2005 annexed hereto. Further, the site plans provide the location for "pending" T -Mobile antennas and equipment. We ate informed that T-Mobile currently has an application before the Town to install a wireless facility at this location. By co-locating a wireless facility on the existing tower on the Premises, Nextel seeks to provide wireless service coverage along a substantial portion of U.S. Highway 9, State Highway 9D, County Highway 93, County Highway 28 and the surrounding local roads in the Town in the vicinity of the proposal. Nextel's Proposed Facility The Premises is an approximately 34.91 acre parcel that is currently improved with municipal buildings, associated parking and a 150' tall telecommunications tower and associated equipment compound currently providing wireless telecommunications facilities of Dobson and Cingular. Nextel's proposed wireless telecommunications facility consists of mounting twelve (12) panel antennas to the existing one hundred and fifty foot (150') tall tower at a centerline height of approximately one-hundred and thirty feet (130') above grade level ("AGL"). The dimensions of the panel antennas are forty-eight inches (48") in height, six and one-half inches (6.5") in width and eight inches (8") in depth. In addition, Nextel proposes to install an associated unmanned equipment shelter necessary to operate its facility at the base of the tower consistent with the existing facilities of others. The dimensions for the shelter are ten feet (10') wide by twenty feet (20') long by eleven feet (11 ') high. Nextel' s proposed equipment shelter is being designed to match the existing shelters of others. Additionally, Nextel proposes to install three (3) Global Positioning Satellite ("GPS") antennas on the existing tower at approximately eighty feet (80') AGL. The GPS antennas will be used not only to operate the wireless facility, but also to enable Nextel to comply with the FCC's regulations governing the implementation of wireless Enhanced 911 Phase II automatic location identification. C&F: 513539.1 CUDDY & FEDER LLP June 9, 2005 Page 3 Nextel's FCC License Nextel is licensed by the Federal Communications Commissions ("FCC") to provide wireless telephone services throughout the State of New York including Dutchess County. Nextel's FCC license requires it to complete the construction and build-out of its wireless network in its federally licensed service areas, which includes the Town of Wappinger. There is a public need for wireless telecommunication services, as evidenced by the granting of a license to Nextel by the FCC. This grant constitutes a finding that the public interest will be served by Nextel's services and is consistent with the public policy ofthe United States "to make available so far as possible, to all people of the United States... a rapid, efficient, nationwide and worldwide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication." 47 U.S.c. ~ 151. Nextel's other existing sites in and around Wappinger are unable to provide service coverage in this portion of the Town, particularly in the area along U.S. Highway 9, State Highway 9D, County Highway 93, County Highway 28 and the surrounding local roads in the Town in the vicinity of the proposal. See Radio Frequency Affidavit annexed hereto as Exhibit D. The proposed Facility will allow Nextel to provide service to its customers living in and traveling through this area ofthe Town of Wappinger, thereby complying with its FCC license requirements as well as other FCC rules and regulations governing wireless facilities. Conformance with the Town of Wappinger Zoning Ordinance and the Federal Communications Commission's Reeulatorv Scheme The Town of Wappinger Zoning Ordinance (the "Zoning Ordinance") classifies the Premises in the R 20/40 (One Family Residence) Zoning District. Pursuant to Section 240-81 of the Zoning Ordinance (the "Wireless Law"), personal wireless facilities such as the one proposed by Nextel, are permitted in the R 20/40 Zoning District subject to special permit/site plan approval from thePlanning Board. Nextel's proposed co-location on the existing 150' tall tower, with the existing facilities of Dobson and Cingular, constitutes the most preferred location for siting a wireless facility in the Town as set forth in the Wireless Law. As noted above, an application was submitted to the Planning Board on April 18, 2005 and was subsequently referred to the Zoning Board of Appeals for an area variance. N extel' s proposed 10 foot by 20 foot equipment shelter will require a variance from the rear yard setback requirement set forth in the Schedule of Dimensional Regulations for the underlying R 20/40 zoning district which provides that accessory buildings <15 feet high and <200 square feet shall have a rear yard setback often (10) feet. The dimensions for Nextel's proposed equipment shelter are ten feet (10') wide by twenty feet (20') long by eleven feet (11') high and <200 square feet. Due to the limited space on site, locations of other existing and C&F: 513539.1 " CUDDY & FEDER LLP June 9, 2005 Page 4 proposed equipment of others, Nextel's proposed equipment shelter can only be located at the base of the tower such that it does not meet the required rear yard setback for accessory buildings located in the R 20/40 zoning district. Accordingly, and upon recommendation by the Zoning Administrator in correspondence dated June 3, 2005 and referral by the Planning Board to the Zoning Board of Appeals at its June 6 meeting, Nextel respectfully requests a five (5) foot variance from the required ten (10) foot rear yard setback requirement for accessory buildings in an R 20/40 zone. With regard to the area variance being requested, Nextel's equipment shelter is being located in the best possible location with the least amount of disturbance and is consistent with the existing shelters of other carriers on site. Furthermore, the equipment shelter will be designed to match the existing shelters of others to minimize visual impacts. As is evidenced on the accompanying site plans, there is no other feasible location on site for Nextel's equipment that would comply with the applicable bulk requirements. Variance Standard Of Review The ZBA's review ofNextel's variance application is governed by several legal standards set forth in Section 704 ofthe Telecommunications Act of 1996, Sections of the New York State Town Law and case law attendant thereto. A brief discussion of these standards is set forth below. Nextel is one of only a handful of wireless carriers licensed by the FCC to provide wireless service in Orange County. Pursuant to FCC orders and regulations, Nextel must provide safe, reliable and readily available wireless telephone service to the public. Given the foregoing and since at least 1993, courts in the State of New York, including the New York State Court of Appeals, have consistently held that FCC licensed wireless carriers are public utilities for zoning purposes because, of among other things the existence of, "logistic problems, such as the fact that '[t]he product ofthe utility must be piped, wired, or otherwise served to each user ***[,] the supply must be maintained at a constant level to meet minute-by-minute need[, and] [t]he user has no alternative source [and] the supplier commonly has no alternative means of delivery. ", Cellular Tele. Co.v. Rosenberg, 82 N.Y.2d 364 (1993) (citation omitted). As the ZBA is aware, generally the issuance of a variance by a Zoning Board of Appeals is governed by the standards set forth in New York State Town Law Section 267-b, which requires some showing of "unnecessary hardship." However, when a Zoning Board of Appeals reviews an application for a variance by an entity providing public utility services, the law in the State of New York requires that the Board apply the less restrictive standard of "public necessity." See, Rosenberg, 82 N.Y.2d 364 (compelling the issuance of a variance for a cellular facility on a water tank in a residential zoning district). Indeed, as set forth by the New York State Court of Appeals in the Rosenberg decision, the public necessity standard requires that: C&F: 513539.1 CUDDY & FEDER LLP June 9, 2005 Page 5 ". . . a balance must be maintained between those interests of the locality which can be expressed by zoning ordinances and the needs of the community which must be served by the utility. .. not only is it within the power of the Respondent to grant a Variance but the fact the applicant is a utility calls for the balancing interest. " Thus, Nextel's variance application must be reviewed pursuant to a lesser standard of review as a public utility. Nextel respectfully submits that its proposed wireless telecommunication facility complies with all of the conditions for the granting of special permit/site plan and variance approval and conforms to the purpose and intent of the Wireless Law and the Zoning Ordinance of the Town of Wappinger but for area variance requested herein. It is also respectfully submitted that approval ofNextel's wireless facility is consistent with the procedural and substantive requirements set forth in the Communications Act of 1934, as amended by the Telecommunications Act of 1996, and the FCC's rules and regulations. Nextel's proposed co-location on the existing 150' tall tower, with the existing facilities of Dobson and Cingular, constitutes the most preferred location for siting a wireless facility in the Town and is consistent with the intent of the Wireless Law. Nextel's proposed wireless facility will have minimal visual impact to the surrounding area because the panel antennas will be mounted to the existing 150' tall tower on the Premises and will not exceed the height of the tower. Further, Nextel's associated equipment shelter will be located at the base of the tower and will be designed to match the existing shelters of others. As such, it will have minimal visual impact, if any. See Exhibit H, Visual Resource Evaluation/photosimulations of the existing tower and Nextel's proposed wireless facility. It is noteworthy that Nextel's proposed Facility will not generate adverse traffic because it is unmanned and only requires monthly maintenance visits by a service technician that generally last for an hour. During these infrequent visits, the technician will use the existing access and parking. In addition to these maintenance visits, the wireless facility will be monitored by Nextel24 hours a day, 7 days a week from a remote location. Therefore, the wireless facility will have no impact on pedestrian or vehicular traffic. Nextel's proposed Facility does not and will not emanate any discemable smoke, gas, dust or other air contaminants, noise, odors or vibrations. No commercial signs are proposed and the Facility will not create additional storm water runoff or require outdoor storage and/or solid waste receptacles, nor does it require any outdoor lighting. C&F: 513539.1 CUDDY & FEDER LLP June 9, 2005 Page 6 Moreover, Nextel has submitted with this application a Radio Frequency Compliance Assessment and Report, prepared by Pinnacle Telecom Group, RF Engineer for Nextel, dated April 13, 2005, in order to certify that the cumulative radio frequency emissions associated with this wireless facility will not exceed federal or state regulations. See Radio Frequency Compliance Assessment and Report attached hereto as Exhibit E. Based on the materials submitted herewith, Nextel respectfully submits that its proposed wireless facility will be unobtrusive and will have a minimal impact, if any, on the existing character of the surrounding neighborhood. Further, it is respectfully submitted that by providing the safety of enhanced wireless communications, Nextel's proposed Facility will benefit the public health, safety, and general welfare. Materials Submitted in Support of Nextel's Application In support of its variance application, Nextel respectfully submits seven (7) copies of the instant cover letter bound with the following exhibits: (A) Completed Town of Wappinger Zoning Board of Appeals Checklist and Area Variance Application Forms. (B) Letter from the Town of Wappinger Zoning Administrator, dated June 3, 2005. (C) Letter of Consent giving Nextel the authority to file this application. (D) Radio Frequency Affidavit prepared by Yvan Joseph, a Radio Frequency Engineer, dated April 5, 2005, with the following sub-exhibits: Exhibit (1): Exhibit (2): A copy ofNextel's FCC License; Signal Propagation Map depicting Nextel's existing coverage in and adjacent to the Town without the proposed Facility; Signal Propagation Map depicting Nextel's proposed coverage from the proposed Facility; Signal Propagation Map depicting Nextel's composite coverage in and adjacent to the Town from the proposed Facility as well as coverage from other existing and proposed sites; and Table of other existing Nextel sites in the area. Exhibit (3): Exhibit (4): Exhibit (5): (E) Radio Frequency Compliance Assessment and Report, prepared by Pinnacle Telecom Group, dated April 13, 2005, with a certification that the proposed C&F: 513539.1 . . CUDDY & FEDER LLP June 9, 2005 Page 7 facility complies with all applicable emissions standards promulgated by Federal and State law. (F) Certification that the proposed facility will not cause Radio Frequency Interference, prepared by Yvan Joseph, dated March 22,2005. (G) Structural Letter prepared by David B. Granger, P.E. of GPD Associates, dated February 22,2005, certifying that the existing tower has the structural capability to accommodate Nextel's proposed facility. (H) Visual Resource Evaluation Report, prepared by Vanasse Hangen Brustlin, Inc., dated April 2005. (1) Short Environmental Assessment Form. (J) Nextel's Wireless Service and the Mandate of the Telecommunications Act of 1996. Please also find enclosed seven (7) sets of signed, sealed site plans consisting of sheets T- 1, SP-I, A-I, C-Iand Z-I, prepared by APT Engineering, dated March 28,2005, last revised April 8, 2005. Additionally, we have enclosed a certified check made payable to the Town of Wappinger in the amount of$250.00, representing the area variance application filing fee. Conclusion For the reasons set forth herein and those that will be established before the Zoning Board of Appeals on this application, it is respectfully submitted that a variance is warranted for Nextel's proposed wireless telecommunication facility. We look forward to appearing before the Zoning Board of Appeals and respectfully request that this matter be placed on the Zoning Board's June 14,2005 agenda. Should the Board or Town Staff have any questions or comments in the interim, please feel free to contact me. Thank you in advance for your cooperation and consideration in this matter. C&F: 513539.1 " .. CUDDY & FEDER LLP June 9, 2005 Page 8 Enclosures cc: Chairman Philip DiNonno and Members of the Planning Board (w/out enclosures) Mark Nidle, General Dynamics (w/out enclosures) Tara Basley, General Dynamics (w/enclosures) Scott Chasse, AlE (w/out enclosures) Yvan Joseph, RF Engineer (w/out enclosures) C&F: 513539.1