Zoning Board of Appeals - November 25

Present:

Zoning Board of Appeals Minutes November 25, 2015

Robert Whitman, Chairman Douglas Hooper
Richard Nygren
Gary Starr

Tim Young

Also present: Candice Young, Dawn Calimeri, Don Carpenter, Daniel Brennan, Richard H. Fessenden, David Josephson, and Attorney Joel Seachrist

A public hearing before the Zoning Board of Appeals of the Town of Busti was held on Wednesday, November 25, 2015 at 7:00 p.m. at the Town of Busti Administration Building, 125 Chautauqua Avenue, Lakewood, New York, to consider the following applications:

Revisiting the application of Up State Tower Company, LLC, 4915 Auburn Avenue Suite 200, Bethesda, Maryland for an area variance and use variance for a telecommunications tower. Property is owned by Jeffrey Christie, 5659 Whitney Bay Club, Mayville, New York, located on Hunt Road, and known as Section 384.00, Block 3, Lot 23.2 of the official tax map of the Town of Busti. Property is in the Light Manufacturing/Research and Development District. Mr. Daniel Brennan, representing Up State Tower Company, and Mr. Don Carpenter, consultant, were in attendance. Robert Whitman welcomed discussion from any in attendance who were not at the prior hearing. None spoke, and Tim Young made a motion, seconded by Douglas Hooper, to close the public hearing.

Relative to this application, Robert Whitman noted receipt of a letter from the Chautauqua County Department of Planning and Economic Development dated November 23, 2015, finding that “…the proposed actions should have no significant county-wide or inter-community impact and that the proposal would be a matter of local concern.”

Tim Young moved the following resolution, which was duly seconded by Richard Nygren:

WHEREAS, Up State Tower Co., LLC (hereinafter, the “Applicant”) has submitted an application for an area variance and use variance to construct a 190’ tall telecommunications tower at 1287 Hunt Road, designated as tax map Section 384.00, Block 3, Lot 23.2, and

WHEREAS, the proposed use has been subject to environmental review pursuant to Article 8 of the New York State Environmental Conservation Law (State Environmental Quality Review Act), including the preparation and review of a short Environmental Assessment Form, and

WHEREAS, Part 617 of the implementing regulations pertaining to the State Environmental Quality Review Act requires this Board to determine and give notice of the environmental impact of the proposed use, and

WHEREAS, the Board has determined that the proposed use will not have a significant environmental impact,

NOW THEREFORE BE IT RESOLVED, that the Town Board hereby approves Parts I and II of the Environmental Assessment Form, issues the attached Notice of Determination of Non-Significance, also known as a Negative Declaration, for the proposed use, and authorizes the Chairman to complete and sign the Environmental Assessment Form accordingly.

Action of the Board:

To consider the application of Up State Tower Co., LLC for a special permit and use variance allowing it to construct and operate a telecommunications facility on land owned by Jeffery Christie off Hunt Road, designated on the Chautauqua County Tax Maps as Section 384.00, Block 3, Lot 23.2. The communications facility as proposed would consist of a 190’ steel lattice, self-supporting tower and structures and equipment appurtenant thereto.

Resolution moved by: Tim Young Seconded by: Gary Starr

WHEREAS the Zoning Board of Appeals makes the following recitals and findings of fact: Recitals

Under the Town of Busti Zoning Law, the Zoning Board of Appeals (“ZBA) is vested with the authority to issue a special permit authorizing the construction or modification of all telecommunications towers in the town, as well as to issue use and area variances therefor.
On or about October 9, 2015, the Town of Busti received an application from Up State Tower Co., LLC (hereinafter “the Applicant”) for a 190’ telecommunications tower to be located on property owned by Jeffery Christie off Hunt Road designated on the Chautauqua County Tax Map as Section 384.00, Block 3, Lot 23.2 (the “Premises”). The Premises are located in the Industrial (I) District. The Town Zoning Law permits telecommunications towers in the Industrial (I) District subject to a special permit issued by the ZBA. The proposed tower also would require an area variance because it does not meet a 500’ setback requirement.
The public hearing on the application was opened October 28, 2015 and continued over to November 25, 2015.
The ZBA conducted a concurrent SEQRA review and issued a Negative Declaration on November 25, 2015, finding that the proposed tower would not have a significant negative environmental impact.

Findings

These findings are based on the written record, which includes, but is not limited to, the application and all subsequent submissions by the Applicant, minutes and transcripts of hearings before the ZBA, all documents prepared in the course of the environmental review of the action, and written correspondence with the ZBA.
The Applicant has shown a coverage and service gap in its network that would be filled by a telecommunications tower in the location for which it has applied, that cannot be adequately filled by locating a tower in just the CAMP District.
The Applicant has also shown that the gap cannot be filled by co-locating antennas on existing tall structures or other telecommunications towers.
Pursuant to Cellular Telephone Company v. Rosenberg, 82 N.Y.2d 364 (1993), the siting of a telecommunications tower of this sort is to be considered under the public utility use variance exception established in Matter of Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598 (1978). This same standard has been applied to area variances in the Fourth Department pursuant to Lloyd v. Town of Greece Zoning Board of Appeals, 292 A.D.2d 818 (4th Dept. 2002). Under this standard, in order to obtain a use and/or area variance, a public utility must show only that (a) the site is necessary to provide safe and adequate coverage, and (b) there are compelling reasons for the variance to be granted, which has been interpreted to mean that a coverage gap would still exist if the tower were placed at alternative sites. The record shows that the Applicant has met both these requirements.
An area variance is required because the proposed tower cannot meet the minimum setback of five hundred (500) feet required by Town of Busti Zoning Code §405-28(H)(9). As depicted on the site plan map submitted by the Applicant, the tower cannot meet the 500’ minimum setback on the west, south, and east boundary lines. However, the parcel to the west is approximately 10 acres in size with no improvements, the parcel to the south is a railroad corridor, and the parcel to the east belongs to a company owned by Mr. Christie. The minimum setback would be observed from all buildings, neighboring improved properties under separate ownership, and public roads.

NOW, THEREFORE, BE IT RESOLVED

A special permit is hereby granted to allow the Applicant to construct a telecommunications tower no taller than 190’, with attachments, antennas, equipment cabinets, and other appurtenant amenities (the “Facility”), on the Premises, with the following conditions:

a. Before the Applicant operates the Facility, all development and construction on the site shall comply with the original site plans submitted with the application, unless modified herein.

b. The Applicant shall enclose the Facility with a locked fence at least 6 feet in height, topped with at least three strands of barbed wire, for a total height of at least 7 feet.

c. The Facility shall be designed to minimize the amount of noise introduced to the neighborhood by the Facility.

d. The Facility shall be inspected and maintained in accordance with the applicable standards for towers published by the Electronic Industries Association, as amended from time to time.

e. The Applicant shall comply at all times with the current applicable standards and regulations of the FCC and FAA, and of all other agencies of the federal government with authority to regulate such facilities.

f. The terms, conditions, and requirements of this variance bind and obligate the Applicant, its successors, and assigns.

g. The Applicant shall notify the Town in writing 30 days in advance of any change in ownership or operation of the Facility.

h. This variance shall expire automatically if the Facility is not operational by January 1, 2017.

i. The Facility shall be subject to the Inspections and Removal provisions of Town of Busti Code §405-28H)(17).

2. An area variance is hereby granted as to the Zoning Law requirement that the tower be set back from any adjacent line by at least five hundred (500) feet. For the reasons stated above, the ZBA finds that that there is little or no detriment to any neighbor caused by the variance, and what detriment there might be is far outweighed by the benefit to the applicant.

3. The special permit and variance granted herein shall become effective after the Applicant approves each and every provision hereof and agree to be bound by all of the terms herein contained in consideration of the granting of these variances.

Dated: November 25,2015

Vote:

AYE:

Robert Whitman
Douglas Hooper
Richard Nygren
Gary Starr
Tim Young

The Applicant, Up State Tower Co., LLC, agrees to abide by all the terms and conditions herein contained.

Dated: ______________, 2015

Up State Tower Co., LLC

By: ______________________________

Title

Revisiting the application of Up State Tower Company, LLC, 4915 Auburn Avenue Suite 200, Bethesda, Maryland for an area variance and use variance for a telecommunications tower. Property is owned by Joseph Casel, 1422 Forest Avenue, Jamestown, New York and known as Section 421.00, Block 1, Lot 3 of the official tax map of the Town of Busti. Property is in the Conservation/Agricultural District. Mr. Daniel Brennan, representing Up State Tower Company, and Mr. Don Carpenter, consultant, were in attendance. Robert Whitman welcomed discussion from any in attendance who were not at the prior hearing. None spoke, and Richard Nygren made a motion, seconded by Tim Young, to close the public hearing.

Richard Nygren moved the following resolution, which was duly seconded by Douglas Hooper:

WHEREAS, Up State Tower Co., LLC (hereinafter, the “Applicant”) has submitted an application for an area variance and use variance to construct a 190’ tall telecommunications tower at 1422 Forest Avenue, designated as tax map Section 421.00, Block 1, Lot 3, and

WHEREAS, the Board has determined that the proposed use will not have a significant environmental impact,

Action of the Board:

To consider the application of Up State Tower Co., LLC for a special permit and use variance allowing it to construct and operate a telecommunications facility on land owned by Joseph Casel off Forest Avenue, designated on the Chautauqua County Tax Maps as Section 421.00, Block 1, Lot 3. The communications facility as proposed would consist of a 190’ steel lattice, self-supporting tower and structures and equipment appurtenant thereto.

Resolution moved by: Tim Young Seconded by: Richard Nygren

WHEREAS the Zoning Board of Appeals makes the following recitals and findings of fact: Recitals

Under the Town of Busti Zoning Law, the Zoning Board of Appeals (“ZBA) is vested with the authority to issue a special permit authorizing the construction or modification of all telecommunications towers in the town, as well as to issue use and area variances therefor.
On or about October 9, 2015, the Town of Busti received an application from Up State Tower Co., LLC (hereinafter “the Applicant”) for a 190’ telecommunications tower to be located on property owned by Joseph Casel off Forest Avenue, designated on the Chautauqua County Tax Map as Section 421.00, Block 1, Lots 3 (the “Premises”). The Premises are located in a Conservation/Agricultural (CA) District. The Town Zoning Law prohibits telecommunications towers in all but the Conservation/Agricultural/Mobile Home Park (CAMP) and Industrial (I) Districts and the restrictions placed on telecommunications towers apply only to towers applied for and constructed in those two districts. Since the tower applied for would be located in the Conservation/Agricultural (CA) District, the application is for a use variance rather than for a special permit. The applicant also seeks an area variance to the setback requirements.
The public hearing on the application was opened October 28, 2015 and continued over to November 25, 2015.
The ZBA conducted a concurrent SEQRA review and issued a Negative Declaration on November 25, 2015, finding that the proposed tower would not have a significant negative environmental impact.

Findings

These findings are based on the written record, which includes, but is not limited to, the application and all subsequent submissions by the Applicant, minutes and transcripts of hearings before the ZBA, all documents prepared in the course of the environmental review of the action, and written correspondence with the ZBA.
The Applicant has shown a coverage and service gap in its network that would be filled by a telecommunications tower in the location for which it has applied, that cannot be adequately filled by locating a tower in the CAMP District and Industrial Districts.
The Applicant has shown that the gap cannot be filled by co-locating antennas on existing tall structures or other telecommunications towers.
Pursuant to Cellular Telephone Company v. Rosenberg, 82 N.Y.2d 364 (1993), the siting of a telecommunications tower of this sort is to be considered under the public utility use variance exception established in Matter of Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598 (1978). This same standard has been applied to area variances in the Fourth Department pursuant to Lloyd v. Town of Greece Zoning Board of Appeals, 292 A.D.2d 818 (4th Dept. 2002). Under this standard, in order to obtain a use and/or area variance, a public utility must show only that (a) the site is necessary to provide safe and adequate coverage, and (b) there are compelling reasons for the variance to be granted, which has been interpreted to mean that a coverage gap would still exist if the tower were placed at alternative sites. The record shows that the Applicant has met both those requirements.
An area variance is required because the proposed tower cannot meet the minimum setback of five hundred (500) feet required by Town of Busti Zoning Code §405-28(H)(9). The setback can be observed for all properties not in common ownership with Joseph Casel, however, and it would be observed from all buildings and public roads.

NOW, THEREFORE, BE IT RESOLVED

1. A use variance is hereby granted to allow the Applicant to construct a telecommunications tower no taller than 190’, with attachments, antennas, equipment cabinets, and other appurtenant amenities (the “Facility”), on the Premises, with the following conditions: