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HomeMy WebLinkAboutRobert Berg esq letter to the Town of IthacaLaw Office of Robert J. Berg PLLC 19 Carriage House Lane Mamaroneck, New York 10543 (914) 522-9455 robertbergesq@aol.com October 28, 2024 Members of the Planning Board Fred Wilcox, Chair Caitlin Cameron, Vice Chair William Arms Elizabeth Bageant Cindy Kaufman Sara Reynolds Gary Stewart Alternate member, Kelda McGurk Town of Ithaca 215 N. Tioga Street Ithaca, New York 14850 Attention: Christine Balestra, Senior Planner (cbalestra@town.ithaca.ny.us) Re: Bell Atlantic Mobile Systems, LLC, d/b/a Verizon Wireless - Application for Cell Tower Special Use Permit and Site Plan Approval on Property Located at 111 Wiedmaier Court (Tax Parcel No. 56.-4.1.22) in the Town of Ithaca ("Sunny View" Site) Dear Chairman Wilcox and Honorable Members of the Town of Ithaca Planning Commission: Introduction I am the attorney for Ithacans for Responsible Technology and certain Town of Ithaca residents and property owners, most of whom live in close proximity to 111 Wiedmaier Court, the so-called "Sunny View" site on which Bell Atlantic Mobile Systems, LLC, d/b/a Verizon Wireless ("Verizon"), proposes to construct and operate a 138-foot tall monopole cell tower (including a four-foot tall lightening rod, nine associated antennas and equipment) in a proposed 50 foot by 50 foot compound. This site is on a private lot owned by S Roberts WC Land LLC. This lot is located in a Medium Density Residential ("MDR") and Conservation ("C") zone. I have been retained to assist my clients in challenging Verizon Wireless' application. My clients are not opposed to cell towers generally speaking. Rather, they are opposed to the irresponsible siting of a tall, unsightly, uncamouflaged industrial cell tower immediately adjacent (400 feet) to a developed residential neighborhood in a conservation zone such as 2 Verizon is proposing. My letter demonstrates that Verizon has utterly failed to meet its burden of proof under the Section 270-219 of the Town Code, supported by controlling federal case law in the Second Circuit, that requires an applicant for a special use permit for a macro cell tower on private property to (a) establish a significant gap in coverage in its wireless network in the area where it proposes to site the cell tower; and (b) show that its proposed solution is the least intrusive technologically feasible means of solving the demonstrated significant gap in coverage. In summary, I show that Verizon's attorney misleadingly sets up a "straw man" "public necessity" test for this Planning Board to consider when that test only applies to a Zoning Board of Appeals' determination of an application for a "use variance," an iss ue which is outside of the Planning Board's statutory authority and is not even at issue in Verizon's application. Moreover, I explain that Verizon's RF expert fails to answer meaningfully the Planning Board's request that Verizon analyze whether two shorter cell towers or other technology could "solve" Verizon's purported significant coverage gap in place of Verizon's proposed single 138 -foot tall cell tower at the Sunny View site. Finally, I illustrate one example of Verizon's failure to meet its burden of proof in establishing that its application meets the criteria for site plan approval and issuance of a special use permit under Section 270-219 of the Town Code -- I demonstrate that Verizon's alternative site analysis is based upon a flawed, gerrymandered search area and a wholly unexplained 1,000' AMSL maximum elevation restriction, and Verizon has rejected the four alternative sites located therein without providing any detailed RF analysis for any of those sites. In particular, my clients have asked me to reply to the Response to Planning Board Comment 2 set forth in the letter from Jared C. Lusk, Esq., of the law firm Nixon Peabody, dated October 22, 2024, to the Planning Board and the Zoning Board of Appeals on behalf of his client Verizon. At the Planning Board's October 1, 2024 meeting on this application, the Planning Board issued two comments to Verizon, and requested that Verizon provide the Board with responses to those comments. Planning Board Comment 2 s tated: Please analyze whether reliable service to the Sunny View coverage area can be accomplished through two (2) shorter, less visible towers rather than the single 134' tower as proposed or other technology. In his October 22, 2024 letter, Mr. Lusk responds to Planning Board Comment 2 by referring to Exhibit GG, a supplemental report from Verizon's RF design engineer, which Mr. Lusk contends shows that neither two shorter cell towers nor the use of small cells are feasible to provide reliable coverage to the Sunny View coverage area. That response, whatever its merits, doesn't fully answer the question posed by the Planning Board. The Planning Board actually asks a broader question -- whether any "other technology" or two shorter cell towers can provide reliable service to the Sunny View coverage area rather than the proposed 134 -foot tall cell tower (plus the four-foot high lightning rod). "Other technology" does exist, including the use of small cell wireless communications facilities. Indeed, in his Preliminary Report, dated September 20, 2024, William P. Johnson, the Town's independent RF Engineering Consultant, addressed the variety "of other approaches to deliver wireless communications that could avoid tall towers in a given area." See Johnson Preliminary Report at Appendix G. Among these "other" technologies, Mr. Johnson discusses Distributed Antenna Systems ("DAS"), micro cells, and 3 satellite-based systems. The use of these "other" technologies, especially small cell wireless facilities attached to existing utility poles in the public right of way or on existing buildings, are growing wildly. Elon Musk's satellite-based Starlink communications network is expanding explosively and is revolutionizing wireless communications in rural and remote regions. Tall, ugly, visually intrusive industrial cell towers are fast becoming albatrosses as rapidly developing less intrusive and effective technologies are being deployed. Verizon's RF designer fails to address the usability of such technologies, perhaps in conjunction with one or more shorter cell towers, to "solve" Verizon's purported "coverage gap." Turning to Verizon's Exhibit GG, the Supplemental Report, dated October 21, 2024, submitted by Wasif Sharif, Verizon's RF Design Engineer, the report utterly fails to live up to Mr. Lusk's billing. Mr. Sharif's analysis is entirely general and conclusory. He provides no specific analysis of any alternative technological means to provide similar RF coverage to the area purportedly to be served by Verizon's proposed 134-foot tall monopole cell tower at the Sunny View site. Notably, Mr. Sharif fails to model any scenarios using "two (2) shorter, less visible towers rather than the single 134' tower as proposed...," despite the Planning Board's request for such an analysis. Instead, Mr. Sharif summarily dismisses the Planning Board's perfectly reasonable request, stating: "When compared with a small cell site alternative (or a cluster of smaller cell sites) in a rural area like this which is subject to significant terrain, large geographic coverage area, and laced with foliage challenges the small cell coverage capability is unsuitable. Small cells or smaller macro tower sites would be blocked (shadowed) by terrain and foliage rendering them ineffective." That's a couple of conclusory statements. Mr. Sharif provides no detailed engineering or topographic analysis at all. Mr. Sharif performs no modeling of any possible small cell antenna deployments or of any other existing technologies. Verizon simply fails to answer the Board's question. Moreover, the RF engineer's thesis is actually implausible. I respectfully refer the Planning Board Members to Google Maps and ask that you take a look at the Sunny View site. Oddly, Verizon's selected site, the Sunny View site, sits at an elevation of only 824.4 feet AMSL (above mean sea level). Though Verizon touts the need for the tallest possible tower to close its purported network coverage gap (seeking the widest line of sight covereage), perhaps the chief problem is that Verizon has selected a site that is 400 feet lower in elevation than nearby sites north of Slaterville Road (Route 79) on the Eastern Heights or off of Snyder Hill Road. These sites, just a couple of thousand feet away from the Sunny View site, would offer Verizon tremendously enhanced line-of-sight coverage and would avoid the problematic, topographically challenged steep cliffs and gorges from the Ithaca Reservoir northwest to the Second Dam and towards Wells Falls. It's hard to believe that a cell tower at the Sunny View site will provide adequate coverage deep down by the creek bed in the twisty gorge leading to the reservoir. For some reason, as I discuss below, Verizon's RF engineer has artificially constrained the maximum AMSL elevation for the tower at 1,000'. There appears to be no Town Code requirement for 4 such an elevation limitation, and the Verizon RF engineer provides no explanation whatsoever -- which is highly suspicious. Moreover, looking at the satellite image of the area on Google Maps, one sees a vast higher elevation area north of Slaterville Road (Route 79) up to Snyder Hill Road which is mostly undeveloped forest or rural land. There is no developed residential neighborhood on those vast parcels. Further, the Finger Lakes Stone Quarry, an industrial mining site, at an elevation of 1,200 feet, is present. What a perfect site for a cell tower! -- an existing industrial quarry at an elevation four hundred feet higher than the Sunny View site. Given the rural nature of the area -- and the paucity of residential properties in the area (other than the development immediately adjacent to the Sunny View site) -- the need for a macro cell tower at the Sunny View site seems dubious. The likely major need for better cell coverage in this area is for drivers on the two main roads -- Route 79 and Snyder Hill Road. The forests and fields in the area don't have much need for expanded cell phone coverage. This strikes me as the perfect situation for using a series of small cell wireless antennas attached to existing utility poles alongside the two main roads. That "solution" would provide fine cell coverage for drivers on these roads and to the few residences that exist close to those roads. Of course, Mr. Sharif never models such a solution. Mr. Sharif's summary conclusions, with no actual modeling of any other possible technologically feasible but less intrusive "solutions" to Verizon's putative coverage gap, are grossly inadequate to meet Verizon's burden of proof on this Application. Respe ctfully, this Planning Board should have its independent RF expert, Mr. Johnson, opine on this point. Verizon Misstates the Legal Framework Underlying the Planning Board's Consideration of the Application A General Warning to the Planning Board In the second part of Mr. Lusk's response to Planning Board Comment 2, he provides a highly misleading analysis of the applicable law which he contends governs the Planning Board's review of Verizon's permit application. Before I address Mr. Lusk's analysis, I respectfully offer the Planning Board the following comments. I represent clients across the country who are trying to protect their families, businesses, and communities from the uncontrolled and unsafe deployment of wireless communications facilities within their municipalities. The wireless industry is insatiable in its quest to blanket the entire nation in an endless, willy -nilly sprawl of cell towers and small cell facilities, and is deaf to the concerns of the residents who live and work near the industry's desired wireless communications facility sites . According to statistics published by the Wireless Infrastructure Association on April 16, 2024, at the end of 2023, 153,400 purpose-built macro cell towers were in operation in the United States. There were 244,800 macrocell sites, and 202,100 outdoor small cells in 5 operation, with 775,800 indoor small cell nodes in use. Verizon, as the largest wireless carrier, is one of the worst offenders I come across when it comes to the irresponsible siting of cell towers. Verizon simply doesn’t care what disruption its facilities cause to your community – the degradation of views, the destruction of property values, the desecration of neighborhood character, and the public safety dangers its towers pose to nearby persons and property from icefall, falling debris, fire, and tower collapse. You have been appointed to the Planning Board to safeguard the lives and properties of your fellow residents and to protect the future of your Town from development that is inconsistent with the Town’s Comprehensive Plan and Zoning Code. Your responsibilities under Section 270 of the Town Code to oversee development in the Town and to ensure that the Comprehensive Town Plan and Zoning Code are followed with respect to development projects are very broad and important. Residents of the Town are fortunate that the Town Board had the wisdom and foresight to enact a comprehensive wireless telecommunications code within the Town Code that encourages -- yet responsibly regulates -- the placement, design, and construction of wireless communications facilities within the Town of Ithaca, fully consistent with the federal Telecommunications Act of 1996 (the "TCA") and State and federal law. See Section 270-219. Personal wireless service facilities. As Members of the Planning Board, you have the critical duty and responsibility to ensure that Verizon has met its burden of proof in meeting the criteria set forth in Section 270- 219 of the Town Code. You sit as a regulatory board when reviewing a site plan and when considering an application for a special permit. You act as the trier of facts and make factual and legal determinations based on the evidence and legal arguments presented to you by the applicant, by the Town's independent consultant, and by residents and other members of the public, and their attorneys and/or witnesses. Your job is extremely important, and will greatly impact the lives of your fellow residents and the future development of your town. The applicant’s proposed 134-foot tall uncamouflaged, industrial cell tower will be a blight upon the surrounding long-established residential neighborhood. The soaring cell tower will be a glaring visual intrusion, destroying the rural residential viewshed of the immediate neighbors, and decimating their property values. The industrial cell tower will be an eyesore to travelers on adjacent Slaterville Road (Route 79). The cell tower will generate no revenues for the Town. To suggest, as Verizon does, that the tower presents just a “minimal intrusion” to the community, is a lie. You have to live here af ter Verizon moves on to desecrate the next residential neighborhood. I also warn you that Verizon may well try to intimidate this Board by threatening to bring an action against the Town of Ithaca in federal court for violation of the TCA should this Board deny Verizon's application for site plan approval and the special us e permit for its proposed cell tower at 111 Wiedmaier Court. Verizon makes this threat -- and, indeed, acts upon it -- frequently. Many municipalities and their municipal attorneys buckle under these malicious coercive efforts because they fail to understand the very broad powers that federal law provides local governments to control the siting and operation of wireless communications facilities within their boundaries. Moreover, they don't realize that a wireless carrier can never sue for and recover from a municipality monetary damages or attorneys' fees if the municipality refuses 6 to allow the carrier to build and operate a requested wireless communications facility, even if a court eventually decides the municipality actually has violated the TCA. As to the latter point, the United States Supreme Court has expressly held, in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005), that neither monetary damages nor attorneys' fees are available to a prevailing plaintiff in an action brought under the TCA. So even if Verizon does sue the Town in federal court for denying final site plan approval and a special use permit -- and the Town somehow loses that lawsuit -- the Town can never be liable for monetary damages or Verizon's attorneys' fees. The worst that could happen is that the Town would be required to grant final site plan approval and to issue the special use permit for the project. Any fears or implied threats that a wireless carrier will bankrupt the Town through litigation if the Town denies a permit for a wireless communications facility are completely baseless. Verizon's "Public Necessity" Legal Argument is Misplaced and Confusing Verizon's lawyer, Mr. Lusk, in his October 22, 2024 Letter, argues: "Even if a 'two (2) tower solution' were viable, however, applicable law prevents the Town from requiring Verizon multiple facilities, when a single 134' wireless telecommunications facility will pr ovide reliable coverage to the area." Mr. Lusk, invoking New York's "public utility" test, is attempting to mislead you about the law and your duties thereunder. While it is true that under New York case law (not the federal TCA), cell towers are deemed to be "public utilities," that is for the limited purpose of relaxing the legal standard to obtain a zoning "use" variance (not an "area" variance) from a zoning board. The New York case law cited by Mr. Lusk has nothing to do with a local Planning Board's determination as to whether a wireless communications facility applicant has met its burden of proof in meeting the criteria for approval for a special use permi t called for under a municipality's zoning code provisions for wireless communications facilities. Nor does that New York "public utility" state case law have anything to do with whether a local Planning Board's denial of an application for site plan approval and a special use permit for a cell tower constitutes a violation of the federal TCA. That determination is governed by the TCA itself and by federal case law interpreting the relevant provisions of the TCA. Mr. Lusk's goal appears to be to confuse you by inserting a legal test that simply doesn't apply to your consideration of the application before you. Let's unpack the "public utility" test for cell towers under New York case law accurately. Most significantly, the “public utility” legal standard does not apply to the Planning Board’s consideration of the applicant's request for site plan approval and a special use permit. Rather, the test applies only to requests for use variances under the zoning law. The Planning Board, of course, has no power or authority to consider requests for zoning variances. That power is reserved for the Town's Zoning Board of Appeals to which Verizon has already applied for an "area variance" for this proposed tower since the proposed 138-foot tall tower greatly exceeds the height limit for structures at the site under the zoning code. The "public utility" legal standard was established by the New York Court of Appeals in Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598 (1978), and was extended to the siting of 7 cell towers by the Court of Appeals in Cellular Tel. Co. v. Rosenberg, 82 N.Y2d, 364, 372 (1993). In Consolidated Edison, the Court created a “public utility” exception to the traditional “unnecessary hardship” standard that zoning boards utilize in determining whether an applicant qualifies for a “use variance.” The traditional “unnecessary hardship” test sets forth the following factors that a zoning board must consider before finding unnecessary hardship warranting the granting of a use variance: (1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone; (2) the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and (3) the use to be authorized by the variance will not alter the essential character of the locality.” Rosenberg, 82 N.Y.2d at 372, quoting In Matter of Otto v. Steinhilber, 282 N.Y. 71, 76 (N.Y. 1939). The Rosenberg Court described the Consolidated Edison “public utility” exception test as follows: "Instead [of meeting the traditional unnecessary hardship test], the utility must show that modification is a public necessity in that it is required to render safe and adequate service, and that there are compelling reasons, economic or otherwise, which make it more feasible to modify the plant than to use alternative sources of power such as may be provided by other facilities" (Matter of Consolidated Edison,43 N.Y.2d 598, 611, supra). The Court stated further that "where the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced" (id., at 611). Matter of Consolidated Edison (supra), applies to all public utilities. It also applies to entirely new sitings of facilities, as well as the modification of existing facilities. The Rosenberg Court applied the test to the siting of cell towers. Rosenberg, 82 N.Y.2d at 372. The Rosenberg tri-partite test for considering use variance applications for cell towers under New York state law consists of the following: 1) have the applicants demonstrated the existence of a significant coverage gap? 2) will the proposed facility resolve the significant coverage gap? and 3) most importantly, will the proposed facility present a minimal intrusion upon the community? See Cellco P’ship v. Town of Clifton Park, 365 F.Supp.3d 248, 257 (N.D.N.Y. 2019); Omnipoint Communications, Inc. v. Town of LaGrange, 658 F.Supp.2d 539, 556 (S.D.N.Y. 2009). The state court cases Mr. Lusk then uses to illustrate his point only prove mine -- i.e., the "public utility" test applies only when the local zoning board considers an application for a use variance. In Nextel Partners, Inc. v. Town of Ft. Ann , 1 A.D.3d 89, 766 N.Y.S.2d 712 (3d Dep't. 2003), the appellate court simply affirmed the trial court's ruling annulling a Town Board's decision to deny Nextel's application for a zoning use variance to build a 110-foot tall cell tower as arbitrary and capricious under the Rosenberg test. In Sprint Spectrum, L.P. v. Zoning Bd. of Appeals for the Town of Guilderland, 173 Misc.2d 874, 662 N.Y.S.2d 717 (Sup. Ct. Albany 1997), the trial court ruled that the Town of Guilderland's decision to deny a zoning use variance to allow Sprint to construct a 100-foot tall cell tower in a residential neighborhood where such structures are banned was arbitrary and capricious under the Rosenberg public utility test. Indeed, the court made a point to emphasize that Rosenberg "established the current requirements for the approval of use variances with respect to telecommunications towers." 8 In the instant matter, the issue of a zoning use variance is completely outside the scope of the Planning Board's statutory duties. Moreover, even with respect to the Town's Zoning Board of Appeals, Verizon's application does not seek a zoning use variance. That's because the Town Code actually allows as a permitted use wireless communications facilities in all zoning districts in Town, provided that the Planning Board, upon consideration of all the evidence -- pro and con -- determines that the applicant successfully meets the criteria set forth in Section 270-219 of the Town Code for site plan approval and issuance of a special use permit for the proposed cell tower. Respectfully, you Members of the Planning Board need to stay focused on your responsibilities. Do not be misled by Mr. Lusk into a diversionary legal analysis that is not in your bailiwick. You do not need to worry about the "public necessity" test. Nor should you be distracted by Mr. Lusk's false suggestion that you are mandating that the applicant build two cell towers of lesser height rather than the single 134-foot tall cell tower (plus the 4-foot tall lightning rod) which Mr. Lusk claims is beyond the scope of your authority. Your "mandate" is only to vote "yea" or "nay" on the Verizon's application for site plan approval and a special use permit, with or without conditions. You can't require the applicant do anything, but you do have the power to approve or disapprove of its application. Please don't fall into Mr. Lusk's trap. You should be aware that the Town of Ithaca Town Code provisions regarding wireless telecommunications facilities were carefully drafted to comply with the federal TCA and with the controlling federal Second Circuit Court of Appeals decisions interpreting the TCA. As such, Section 270-219 of the Town Code closely follows the guidance and legal tests of the Second Circuit. The TCA limits to some degree state and local regulation 'of the placement, construction, and modification of personal wireless service facilities.' Omnipoint Commc'ns, Inc. v. City of White Plains, 430 F.3d 529, 531 (2d Cir. 2005) (quoting 47 U.S.C. §332(c)(7)). Such regulation '(I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.' 47 U.S.C. §332(c)(7)(B)(i). "The Second Circuit has clearly stated that this subclause 'precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land lines.'' Verizon Wireless of E. LP v. Town of Wappinger, 2022 WL 282552 (S.D.N.Y. Jan. 31, 2022), at *12 (quoting Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999)). "If an applicant's proposal is not the least intrusive means of closing a significant gap in coverage, a local government may reject [the] application ... without thereby prohibiting personal wireless services." T-Mobile Ne. LLC. v. Town of Ramapo, 701 F.Supp.2d 446, 456-57 (S.D.N.Y. 2009) (internal quotations omitted); ExteNet Sys., Inc. v. Village of Plandome, 2021 WL 4449453 (E.D.N.Y. Sept. 29, 2021), at *20 ("[T]o be sure, [a] local government may reject an application for construction of a wireless service facility ... without thereby prohibiting personal wireless services if the service gap can be closed by less intrusive means." (Internal quotations omitted"). Section 270-219 of the Town Code expressly requires the Planning Board to consider the evidentiary record while following these controlling federal legal standards. Section 270- 9 219(G)(2)(r) provides for the applicant to conduct an alternative site analysis; Section 270- 219(G)(2)(s) requires the applicant to conduct a significant gap analysis; and Section 270 - 219(G)(2)(t) provides for the applicant to demonstrate that its proposed wireless facility is the least intrusive means of addressing the significant gap in coverage. To meet its evidentiary burden of proof with respect to each of these subsections, the applicant cannot simply make conclusory statements. The subsections each require the applicant to provide evidentiary substantiation. While I was only very recently retained by my clients, I have reviewed Verizon's submissions, and they fall woefully short of meeting Verizon's burden of proof. Due to time and other constraints, I will focus on Verizon's alternative site analysis -- required under Section 270-219(G)(2)(r) -- and point out a number of glaring deficiencies in its submission. In my considerable experience representing clients in these matters, I find that all tower developers tend to play the same phony game with respect to alternative site selection, but Verizon tends to be the worst player. The game goes as follows: the tower developer's RF engineer defines an extremely narrow search radius -- often 1/2 mile or less -- arguing that topographical peculiarities and foliage considerations require that the cell tower be sited with in the resulting small search zone. The reality is that the RF engineer typically locates the best site for the carrier's RF needs using a computer software package, and the RF engineer has no personal familiarity with the site; the search zone is gerrymandered to fall within the RF engineer's narrow "best choice" area, and then the area is provided to a third party site acquisition team whose mandate is to find a property owner who is willing to lease a portion of his property very cheaply to the carrier and who doesn't give a damn about his neighbors. If the site acquisition specialist is successful, then that "winning" site instantly becomes the only technologically feasible site for the tower, and the other few alternative sites within the small search zone are quickly discarded on pretextual grounds. While I say this slightly "tongue-in- cheek," the sad truth is that this is really how the telecoms act. Verizon's own alternate site analysis in the instant application proves my point. In its application at Exhibit I, Verizon provides a "Sunny View Site" Site Selection Analysis, dated September 19, 2023. The Site Selection Analysis was prepared by Brett Morgan of Airosmith Development, a consultant to Verizon Wireless. The critical "search ring" was determined by Tim Zarneke, a Verizon Wireless RF engineer, who describes its creation in his "Engineering Necessity Case - 'Sunny View,'" submitted as an exhibit to Verizon's Application. According to Mr. Zarneke, on page 14 of his report, "[a] Search Area is the geographical area within which a new site is targeted to solve a coverage or capacity deficiency. Three of the factors taken into consideration when defining a search area are topography, user density, and the existing network." Mr. Zarneke imposes a very odd elevation constraint into his search area algorithm. He states on the bottom of page 15: "The site needs to be located within the search area but also at a ground elevation below the ridge of 1,150' or below [sic] to keep the site contained. The proposed site is located at 824' AMSL which meets this requirement and is strategically located within the ring to allow for Line of Sight (LOS) to the coverage objective area." At the top of page 15, Mr. Zarneke states: "The below image is absent any coverage to help the viewer with area orientation as well as visualizing the need for the below 1,000' AMSL (maximum ground elevation requirement)." 10 Mr. Zarneke provides no explanation for the purported need to keep the proposed cell tower site at an AMSL below 1,000' or below the ridge of 1,150'. The Town Code does not appear to contain any restrictions on locating otherwise conforming cell towers or wireless communications facilities at AMSLs of 1,000' or greater. The 1,000' AMSL maximum ground elevation requirement has enormous ramifications -- it grossly limits the possible search radius to the absurdly narrow radius defined by Mr. Zarneke. As I stated above, vast areas of land on the Eastern Heights and along Snyder Hill Road are 400 feet higher in elevation than Verizon's proposed Sunny View site. Yet Mr. Zarneke excludes them entirely from his search radius because of his completely unexplained 1,000' AMSL maximum elevation constraint "to keep the site contained" (whatever that means). The Planning Board needs to question Verizon extensively about this apparently artificial constraint which I strongly suspect is intended to gerrymander the boundaries of the search area in order to support the Sunny View site. In my experience, if the Planning Board charges Mr. Johnson, its own independent consultant, to come up with an appropriate search radius for a possible cell tower site, he will determine one that is far more expansive than Mr. Zarneke's and one which opens up scores of potentially feasible alternative sites. I respectfully urge the Planning Board to do so or to simply to reject Mr. Zarneke's artificially narrow and seemingly unjustified search area. Unsurprisingly, given the gerrymandered tiny search area concocted by Mr. Zarneke, Verizon's site acquisition consultant found no existing towers or tall structures within the search area, nor any municipally-owned properties in the search area. Mr. Morgan, the site acquisition consultant, purportedly conducted a "comprehensive investigation of the Sunny View Search Area" and found five private properties to analyze as potential sites for the proposed tower. Interestingly, when Mr. Morgan reached out to the five property owners, each was initially interested in leasing his property to Verizon for use as the cell tower site. (Often, some landowners are not interested in tying up a portion of their land for 30 years or more -- and/or restricting the development potential of their property -- for the small revenue stream offered by a cell tower developer). But despite all the landowners' interest, after Mr. Morgan forwarded the site information for each of the parcels to Verizon's RF engineer, Verizon's RF engineer determined that none of the locations except for the Sunny View site would be adequate, as those locations "would have not adequately covered the intended coverage area in the same capacity as the selected location." That incomprehensible "word salad" is the entirety of the explanation Mr. Morgan provides for the rejection of the four alternative sites. Verizon provides no RF analyses for each rejected site demonstrating the veracity of the explanation. Simply put, the explanation is completely inadequate to meet Verizon's burden of proof under the Town Code. The foregoing represents just a taste of the litany of well-founded reasons why the Planning Board should deny Verizon application for site plan approval and for a special use permit. Please give me a call to discuss any questions you may have. Best regards, Robert J. Berg /s/ Robert J. Berg