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HomeMy WebLinkAbout1998-01-14 - BZA • Ulysses Zoning Board of Appeals, January 14, 1998 Page 1 Ulysses Zoning Board of Appeals January 14, 1998 Present : Chair George Tselekis, Carl Maim, Ken Christianson, Russ Carpenter, James Hickey . Also present : Code Enforcement Officer Alex Rachun. Recording minutes : Deb Austic Public present : Peter Penniman, Don Sola, Dave Gell , Bob Burgdorf, Barbara Fisher, Rich Jacobson, Elizabeth Thomas, Catherine Stover, Meredith Kwiatkowski , Bob Howarth, Peter Demjanec, Dave Tyler, Mark Scibilia-Carver, Tom Reitz, Andy Hillman, Suzanne Hillman, Norman Foley , Wayne Titterington, Orson Ledger, Lauren George called the meeting to order at 7 : 35 p . m . George, Ken, Carl , and Russ were present. The Board considered the application from Robert and Elizabeth Thomas to build an 8 ft porch on the front of their home on Gorge Road to restore it to a 1869 photo . George noted a letter from the NYS Office of Parks, Recreation, and Historic Preservation stating no impact on the park. Stover Farms was notified and no comment. Carl made a motion to approve the variance . Russ seconded the motion . The Board voted . Carl — AYE Russ — AYE George — AYE Ken — AYE The resolution passed . Jim Hickey arrived at 7 : 40 p .m . The Board took a break to read materials submitted by Bob Howarth and Meredith Kwiatkowski . The Board resumed at 7 : 50 p . m . to consider an application for an area variance by NY RSA No . 4 Cellular Limited Partnership for a cellular tower. Bob Burgdorf spoke for the applicant and explained the need for a cellular tower. Burgdorf described the process the tower application had gone through with the Planning Board and stated the setback would be required to place the tower in the treeline for visual buffering . Burgdorf showed the site plan and aerial photo and described the project. Burgdorf said they went into further detail of the 5 standards in the application. Burgdorf submitted a letter from Midstate Communications, the tower manufacturer. Burgdorf described the structural stability of the tower and how the guyed tower is designed to collapse . Jim pointed out that the special permit issued by the Planning Board was conditioned on the setback variance approval and discussed whether Burgdorf' s description of the measure of the variance was appropriate . Carl asked whether the power lines would be underground or above . Burgdorf stated they would be underground unless the power company required otherwise . Bob Howarth stated the application for a variance was flawed and the approval by the Planning Board was flawed. Howarth suggested the application met none of the 5 criteria listed in section 267-B (3 ) of the Town Law. Howarth explained how the application did not meet the criteria. Howarth suggested there would be safety concerns from falldown of the tower. Howarth mentioned the legislation proposed by Bragman and Luster. Howarth said he and his wife felt the variance should be denied . Andy Hillman said his occupation was as a city forester and he measured the trees near the site as 20 to 40 ft tall . Hillman also noted a model zoning ordinance from Orleans County, which suggested a fall zone equal to tower height and mentioned falling ice . Hillman submitted the copy of the ordinance . Hillman mentioned the 12/31 /97 amendment from Burgdorf to Alex and disagreed with a number of the applicant' s statements . Hillman suggested there has been an effort to keep information from the public . Wayne Titterington said that Frontier lied to him about the effect on his view. Orson Ledger objected to the tower being 80- 85 ft from his property . Ledger stated he had not been contacted about the tower. Meredith Kwiatkowski stated that the tower would create an undesirable change in the neighborhood. Kwiatkowski said the Town should stick to the zoning and tower ordinance . Kwiatkowski showed a photo of a Waterloo cellular tower and suggested the tower would be much taller than anything else in the area. Kwiatkowski and Bob Howarth said they did not know the height of the tower in the photo . Dave Tyler spoke as chair of the Planning Board . Tyler explained the long process the Planning Board went through and noted the conditions attached to the special permit . 1rm Ulysses Zoning Board of Appeals, January 14, 1998 Page 2 Jim asked whether the Planning Board had not considered any arguments brought before the ZBA . Dave spoke about the need for the variance and treeline for visual buffer. Andy Hillman spoke as a Town Board member about the draft resolution and noted the it said ` the neighbor not objecting . ' Members of the Board said that the resolution mentioned was a suggested draft to work from and the Board would make the resolution as it chooses . Hillman reported that the Town attorney was not reappointed on the previous evening . George asked Tyler what was in the mind of the Planning Board when the issue was passed to the Zoning Board of Appeals . Tyler explained the process for site selection and documentation provided by the applicant. Don Sola recounted the history of the Planning Board process and mentioned the possibility of the decision being questioned by the Ulysses Citizens for Responsible Technology lawyer unless the Board denied the variance . Sola mentioned a number of questions he had about the variance application and whether the setback would be sufficient for safety . Ken questioned the implication on safety . Alex Rachun clarified that the answer on the SEQR regarding safety was determined by the Planning Board and his role was the file the papers . Alex also noted that the conversation referred to in the applicant ' s 12/31 /97 supplement was regarding the variance application . Bob Howarth stated the Zoning Board hearing was the first opportunity for public comment since the site was chosen on December 18 , 1997 and the choice did not reflect the preference of the neighborhood . Mark Scibilia-Carver reviewed the Planning Board process and the implications of the lawsuit. Norman Foley expressed concern about the characterization of the public opposition being based on aesthetic concerns . Foley stated his main concern has been adherence to the ordinance . Foley suggested the Board needed to consider the variance in relation to the application process . Burgdorf responded to the public comments . Burgdorf stated the tower would be designed to withstand 70 mile per hour sustained winds while being coated with '/ inch of radial ice . Burgdorf said any further antennas would require additional permits . He said using two existing tower were not technically or economically feasible . Burgdorf suggested the tower would be a small part of the view. Meredith Kwiatkowski questioned Burgdorf on the possibility of disguising the tower as a tree . Burgdorf said he did not think it was available at 200 ft, would need to be self- supporting , and looked best in topography out west . Mark Scibilia-Carver, Bob Howarth, and Wayne Titterington reiterated their statements . Don Sola pointed out that the Planning Board SEQR determined the tower to be a potential large impact on future precedents and small to moderate impact on property values . Orson Ledger asked Burgdorf for a response to his concern about closeness to the property . Burgdorf mentioned safety and aesthetic issues . Andy Hillman said that the tower would be designed to fall only 15 feet from the property boundary . Jim made a motion to close the public comment, seconded by Ken, passed unanimously . George asked whether the Board would reconsider the Planning Board decision or the location in relation to property boundary . Jim said the scope of the Board was much narrower. Carl noted that he discussed the possibility of moving the tower further down the treeline to be farther from the boundary but since the elevation drops the tower would need to be taller and perhaps lit. Ken suggested no one would want lights . Russ said he was concerned about the proximity to boundary but that the trees surrounding would give some protection . Jim suggested that the decision was not between the variance as applied for and locating the tower in the middle of the field, but that a denial would be asking the Planning Board to start over. Jim mentioned the fear of litigation and stated that the Board needed to act within what is circumscribed by the law . Ken suggested that if the application was turned down a different group would be in with the same objections . Jim noted his previous comments regarding the litigation and the variance . Jim noted that the consideration of the company ' s action regarding other sites was not before the Board and it was not the place to second-guess the Planning Board . Jim said that decisions could not be planned based on catastrophic weather . Jim made a motion : Ulysses Zoning Board of Appeals, January 14, 1998 Page 3 Whereas , the Board of Zoning Appeals for the Town of Ulysses has before it a duly filed application requesting an area variance for the setback from the adjacent property for its cellular tower under the tower ordinance zoning regulation ; and Whereas, the Planning Board for the Town of Ulysses has previously granted a special permit to the applicant for construction of a cellular tower facility and passed on all site requirements including tower height with the exception of the setback from the neighboring property which would require this Board to approve same as an area variance ; and Whereas, the Ulysses Town Planning Board has already issued a negative declaration pursuant to the New York State Environmental Quality Review Act and the town' s tower ordinance environmental review as well as done a visual impact statement; and Whereas, the Town of Ulysses Board of Zoning Appeals has also independently taken a hard look at any potential environmental impacts and found them to be without significance for purposes of SEQR; and Whereas, the applicant is a public utility under the provisions of the Federal Communications Act of 1996 ; and Whereas , a public hearing was held this evening, after due legal notice and after due deliberation pursuant to town law section 267-b(3 ) and article 2 , section 6 of our own zoning law, and this Board has duly considered the benefit to the applicant as weighed against the detriment to the health, safety and welfare of the neighbor or community ; and in making such determination has considered the effects on the character of the neighborhood or the detriment to nearby properties ; whether the benefit might be achieved by some other feasible method; discussed the area variance as to whether it is substantial or insubstantial ; discussed whether this area variance would adversely effect the environment or physical conditions in the neighborhood ; and whether the alleged difficulty was self created by the applicant. The Board has also considered what would be the minimum variance that would be necessary to preserve the character of the neighborhood, the health, safety and community variance of the area and what if any minimizing conditions could be set to reduce the impact of such variance on the neighborhood (in reference to previous comments by Carl Mann) . The Board makes the following findings : 1 . That the Planning Board of the Town of Ulysses has already done extensive visual impact reviews relative to the environment and the effect on the community . 2 . That the issue before this Board, the Board of Zoning Appeals is solely setback requirements, there having been previously (pursuant to the underlining cellular ordinance) approval of the height issue, which issue in not before this Board. 3 . That the setback issue was created solely for the protection of the immediate neighbor from a falling tower. 4 . That considering the issue being solely one of setback of the structure of the tower from the neighbor' s boundary, and that neighbor objecting, but his objection having been considered by the Board and having been determined to be not sufficient in view of all the considerations to deny the application, and the tower site proposed by the applicant to this Board having been recommended by the Town Planning Board (as opposed to placing the tower in a different location, and other issues of visual impact to the town as a whole having been previously decided pursuant to the authority of the Town Planning Board) . Based on those findings of fact be it resolved, that the Board of Zoning Appeals hereby grants an area variance to the applicant as set forth in the application to allow that applicant an area variance for setback as set forth in the application. Russ seconded the motion . The Board voted . Jim — AYE Ken — AYE Russ — AYE George — AYE Carl — NAY The resolution passed . Jim made a motion to, adjourn, seconded by Russ, passed unanimously . The meeting ended at 9 : 40 p . m .