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HomeMy WebLinkAbout1999-06-01TB 6-1 -99 TOWN OF DRYDEN 16 Special Town Board Meeting PUBLIC HEARING APPLICATION OF QKNIP0Dff JUNE 1, 1999 Supervisor Schug opened the meeting at 7:39 p.m. Members and guests participated in a moment of silence followed by the pledge of allegiance. Roll call by Town Clerk Bambi L. Hollenbeck proved the following in attendance: Cl Beck, C1 T Hatfield, Cl C Hatfield, Supv Schug, Atty Mahlon R. Perkins. Cl Grantham was absent. Supv Schug - We are going to first of all let our visitors from Omnipoint speak, and is there anybody here from Unisite? Atty Daniel Spitzer - We represent Unisite also. It is a joint application. Supv Schug - Well let our consultants speak if they so desire. If we get to that point, I will ask the neighbors with questions or comments or whatever to discuss it. There are two different sites, one is along Pinckney Road and the other is up near Simms Hill, just specify which one you are more interested in. Atty Spitzer - I presume, sir, that we could speak about both sites interchangeably in terms of questions, and also that people don't feel like they have to wait. is Supv Schug - All I ask people to do is say, for your information and ours, which site they are interested in, and who is speaking. Atty Spitzer - Thank you, Mr. Supervisor. My name is Daniel Spitzer, of Hodson Ross, the attorney for Omnipoint and Unisite in regard to these two applications. With me tonight are Richard Tarabula, the Project Manager and Regional Director of Construction, Mike Crosby, the senior RF Engineer, along with Bonnie Borke and Jean Conley from Omnipoint. We are here to present to you our applications for two telecommunication facilities, new towers, within the Town of Dryden. Omnipoint Communications is a personal communications service company. That means we operate on a wireless communications system, more advanced than cellular. It is a digital type system which operates in the 1900 megahertz range which is about twice the normal cellular. I use cellular as a comparison because that is what most people are used to, Cell One, Frontier, similar cellular type bands. We are also a wireless communications company, licensed by the Federal Communications Commission to service the Dryden and surrounding area. In the summer of 1998 we submitted two applications, one for a site on Simms Hill Road, the other for a site on Pinckney (Hill) Road in the Town of Dryden, in order to close significant gaps in our network. Omnipoint communications establishes a network by building transmitter and receiver sites, towers, or through co-location, the use of existing buildings, in order to provide wireless communication service to the public. Specifically, what we do is build a system so that there is complete coverage of each area along our target areas, our target audiences. In this area we have a site in the City of Cortland and we have a site in Ithaca. The Cortland site I believe is a co- location site. The Ithaca site I believe is a co- location site. Omnipoint Communications believes that first and foremost communication companies should follow co- location protocol whenever possible. Co- location simply means use of an Is existing structure as opposed to a new structure. Omnipoint has co- located more than any other carrier in the PCS or cellular industry and there is a very good reason why. Colocation � Page 1 of 31 TB 6 -1 -99 costs a lot less than new towers, so any time we can co- locate it is also a lot easier to get approvals because the structure is already in place. So any time we can co- locate we do. Unfortunately, in serving this area there were not co- location avenues available to us, for a number of reasons, some of which we'll go over. Mostly, I really want to ask anybody with any question (Why couldn't you use this? Why couldn't you use that ?) to please ask the question and make sure that all your questions are answered tonight in terms of why we are choosing these two sites. Omnipoint: Communications is choosing to close the significant gap in its coverage by using the fewest sites possible in the least intrusive manner, requiring the construction of two 150' towers in order to do so. I want to emphasize that even though Unisite is involved in this application that the height requested for the towers is the minimum height that Omnipoint can use to provide coverage. These towers are not constructed so that someone can come along at a higher height and provide different coverage. The height requested is the minimum that Omnipoint needs, as shown on the RF propagation studies that were submitted with our application and the additional propagation studies that we submitted to your consultant Mr. Comi. Omnipoint currently has a gap, a. very significant gap, in coverage. That means there is no signal available for someone to use our system for a very long space of time. Someone on Route 13, for example, who has our phone who had an emergency breakdown, would not be able to make a 911 call in the Town of Dryden. Therefore, what we set out to do, what the engineering of the network set out to do, is figure out a way to close that gap with the fewest sites possible. The first thing we turn to is existing sites. That led us for example to the Cell One tower on Simms Hill Road, and there is a tower already there. The first question that came up was, was that tower structurally sound. We wrote a letter to Cell One saying can we use your tower. That letter has been provided to the Town Board. We also called Cell One numerous times saying "Can we use your tower ?" Cell One has told us that we cannot use their tower. Cell One has a policy as I understand it, and I don't claim to speak for Cell One, but I can tell you what they have told us in conversations. Their policy is they only do "steel for steel" exchanges, meaning you can come on our tower if we go on your tower. Indeed we have done that with other Cell One franchisees around the State, however, we have no sites to trade for this Cell One site because their network is up and running and therefore we had no steel to offer them. They have therefore declined to allow us to use that tower. We have contacted them over and over again at the request of the Town and they simply have refused to provide us access to that tower. They also have refused to allow us to use their road. They built an access road and they maintain an exclusive right over that road. They have indicated that we cannot use that road. We would like to use that road. It would reduce the cost of plowing, of building a new road. We think that is the preferred alternative and we don't know the terms of their license. We don's: think the Town can force them to let us use their road without paying just compensation as it would for any other physical invasion of peoples' property. However, we would like to use that road. Unfortunately, we cannot. We have therefore suggested a new access road with the minimum. m ntrusion possible to get to the site. And since the time that we submitted our application we have received some comments from the County Planning Board suggesting some ways that we could either minimize that further. I want to let you know in terms of the comments that the County made about avoiding the stone wall and those kinds of things, we have to site plan aspects of this. We have no objection to what the County Planning Board has suggested. Anything we can do to min*nwe, and actually they also mention screening and vegetating around the base of both towers which we had already agreed to do. So we were happy to provide that. So their comments were quite in favor of. If the Town would like to condemn Cell One's interest or half interest in the road so we can get access to it, that's great. But until then, til somebody says • Page 2of31 TB fi -1 -99 you can come on our property, Cell One's like any other landowner who says you can't come on my property. We don't have condemnation powers. We can't force our way on. So we then started to look at other sites in the area, water towers. I want to give you an example. In March 1997, long before you passed your moratoriums, long before I got involved, we wrote a letter to Peter Meskell, the Chairman of Public Safety for the County, and said we would like to co- locate with you, we'd like to use your towers. Unfortunately, their towers did not provide coverage to our services areas. Indeed, I believe that the public safety individuals have informed the Town that for example Route 13 is not covered. We would have loved to co- locate with them. Unfortunately, it did not work. We cannot use their sites, but we would be happy to let them on our sites because they have indicated that they have two more sites that they want to build in the Town of Dryden. We always provide space for public service and so does Unisite. And so if they can use our towers, that's great. Unfortunately, we did the propagations on their sites, did propagations on water towers, we did propagations on buildings. We looked at buildings and said what if we go on the roof of this building. You don't have, unfortunately, very many tall buildings here. Roofs can't necessarily support a 100' tower on top of them and you don't really have very many buildings over 50' so you would be looking at putting a 100' tower on top of an existing building. But the water towers and the other sites did not work and we specifically have provided a list, attachment L, of the sites we checked, L referring to the exhibit in the application. We also have provided additional information to your consultant at his request, and there is no site other than these two that will allow us to provide coverage to the area in a least intrusive manner. Also, before I wind down and open it up to the public which is what I mostly wanted to do, I suggest that we cover some of the material in my recent letter to Mr. Perkins. For some time we have been saying that this application was complete, indeed it was acknowledged once the Town Board took a look at it as a Board that it was complete, and talk to you about a couple of issues. The Town has indicated its intention in comment 5 of Mr. Comi's letters to regulate interference between carriers. I was somewhat surprised to see this from an RF professional who should know that Unisite in particular is not only a leader in dealing with interference issues, but in fact Unisite's system for dealing with interference between carriers is patented, so it is well known. Indeed the interference certification, we want people to know in their town if they have interference they can come to Omnipoint, they can come to Unisite, and if it is a problem with us we'll shut down our system because we are not allowed to interfere with existing telecommunications devices. For our devices weVe submitted certification that shows they are non - interfering and they comply with all requirements. Mr. Comi also indicated the Town's intent to regulate the maintenance on the facilities in comment 3 of his letter. Specifically, he was requesting information on our inspection and maintenance systems. I thought therefore it might be helpful to generally give you an overview with Omnipoint and then some specifics about Unisite. Omnipoint monitors 24 hours a day 7 days a week. If the system goes off the air we are not making any money. It is electronically monitored. If there are any problems at all the technician comes from Syracuse and they are down here within an hour. That kind of a response is available because again, it doesn't do us any good to have a system that is not on the air. Unisite inspects its towers on a regular basis, no less than monthly. Omnipoint inspects its facilities a regular basis. Unisite is responsible for making sure that the tower is structurally sound. In accordance with normal procedures, the town is able to obtain the ability to search the tower if it wants to check with its own engineer, there is a method of doing that. Unisite regularly checks, including regular engineering checks, not only of the tower but also the installations of the various tenants to insure that the tower is safe. We recently up in a town near Utica had an installation where the town said to us "Could you go onto this other tower ?" We did a structural analysis and found out that it was already overloaded, 220% of Page 3 of 31 TB c -i -99 capacity. We said "No, we're sorry. That's not safe. We can't consider that tower'. So Unisite is not going to let itself be a problem in term of structural capacity, and neither is Oninipoint. • Other points that were in that letter.... I think I hit on the Simms Hill Road access road. In terms of the question about the sublease or assignment, as I pointed out, whether or not a structure is built for co- location, that is fairly easy to tell. You hire a licensed engineer and he looks at the tower and he or she can tell whether or not it is built for co- location. A licensed engineer would be able to help you there, or your building inspector. However, one thing we offered another town, and I would offer this to Mr. Perkins if it puts you more at ease, if there is any doubt about our ability to assign.... Atty Perkins - You don't have to please me. It is the Town Board and the citizens, not „. Atty Spitzer - You'll see why I mention your name in a second, sir. What we did in this other Town where Mr. Comi raised the same objection, was to basically provide a copy of our lease in camera review, meaning private review by the attorney. He keeps it confidential. it is not a public record, and he says `Yeah, there is no limitation on assignment, or no limitation on subtenants. They can co- locate.' So if there is any question on that issue I would be happy to send the leases to Mr. Perkins for his review. And that is the reason I mentioned you, sir. Well use your office as a member of the court. Supv Schug - Do you trust him? Atty Spitzer - Do I trust him? I trust him to be a zealous advocate for the town as required by his oath of office. Supv Schug - I have a question while you are zipping along here. With Simms Hill, you said you've talked to Cell One. 0 locate? Atty Spitzer - Absolutely. Supv Schug - Do you have anything in writing from them saying they won't let you co- Atty Spitzer - They have refused to answer our letters. Supv Schug - And how about the road? Atty Spitzer - They have refused to answer our letters or to allow us to use the road. They informed us that they had an exclusive on the road because we had originally planned to use the road and they informed us no, it's an exclusive, and the landlord confirmed that. Trust me, we would love to use that road. Supv Schug - Have your engineers looked at that tower? From afar of course, because I know that you guys would not trespass. Was that tower co- locatable? Atty Spitzer - We're not sure. We would have to get closer to find out. One of our employees in his former life built that tower and has serious concerns because it was not built for co- location for the kind of equipment that we have. I could not answer that question definitely without permission to go on their property and do a structural analysis. I don't have that permission. However, the gentlemen that built the tower says it was not built for co- loration. Supv Schug - Sounds like you don't have permission to do anything on that site. • Page 4 of 31 TB -1 -99 Atty Spitzer - Well, werre sent thence letters- We're called them. I have spoken to one of their attorneys. Mr. Ball has spoken to them. Mr. Kulik has spoken to theta, We went ahead with our application because they would not provide us access to their property. The Cell One situation is sort of like if there is a top of a hf7I that we would love to be on and the landlord says "No, you can't come here ". That's it, the answer is no and we can't use it- In this case in order to comply with the Town Law, we puk that in writing to Cell One. I sense that you have some concern on that iss�xe- Part of the problem that Ormupoint has ... - Supv Schug Now, I don't Mink that Ike seen anything from Cell One saying that you can't be there- Atty Spitzer - Well, I can't require my eotapetitor to write a letter, Supv Schug - You just when you were talking, you started to lead me to believe - . -- Atty Spitzer - The writings were ours, upv Schug - And they have never answered them, Atty Spitzer - We have never received a written answer- Now if they came in tomorrow and say you can use our road and you can use our tower, well certainly look at it, Why would we build a new towt!r if we didn't have to? Sulsv Schug - Because .people who arena represented here may want to have another Lower within 200 feet doesn't make sense. Atty Spitzer - First of all they are represented. I am Unisite's lawyer. I do Uni$ite's zoning work in Upstate New York, so �Tnisite %s represented here. upv Schug - You are going to build this tower so you can put four or five sets of antennas on it and Unisite can co-locate with live or six other carriers at that tower and they will Own it and they will generate more money. I am just think; of what I would do. If was a guy I'd want my own tower too. Follow the money. Atty Spitzer - But Onuupomt is not a tower owner and our deal with Urnsite says if we can co- locate we don't have any requirement to build you a tower or to help you build a tower, If Oronipoiut can go on Cell One, we would have gone on {fell One months ago. Why would we be here? Cmn.ipoixn in many locations co- locates and doesn't use Unisite as a result. Unisite would love to see new towers everywhere because that is revenue for them. Unisite, however, is not at public utility like OnorEpointr So, does than answer your question? Supv Schug - Yeah, Atty Spitzer - The answer is if we could go on Cell One then we would, but there is a limit, We have been held hostage by Cell One for a year now and than is not proper and there I s nothing we can do. They are a competitor of ours and your law is written to say you can't have a, tower uriless you prove another company won' let you use it. Well I can' prove to somebody what that company is up to. I can't answer for them. I can't speak for them and don't claim to- All I can do is answer inquiries 2nd expect fair treatment based on what I conduce. Supv Schug - Oo ahead, I'm sorry- Page 5 of 31 TB 6 -1 -99 Atty 'Spitzer - No, I don't want you to feel sorry. I want everybody to interrupt me, members of the public, your consultant, everybody. Please interrupt roe. 0 Atty Spitzer - Other questions that were asked in terms of some of the comments. It wasn't quite clear I think in some of the propagation studies of why e wa :sited the 1WT=Lxru height. I said it before and I want to make sure again. We need this height as the rnir,;mum height between towers and our exisbhg sites_ If we went lower we would have significant gaps not providing coverage to the public, so we cannot go lower. And we supplied propagation studies that demonstrated those gaps absent The height that we have asked far. This height, and this leads in also to the question that you asked a moment ago and I want to emphasize it again. We are not building this height fvr some carrier who is not here. Onimpoint needs this height. If some other carrier rents from Urusite and needs a higher level, they have to Dome back in and ask you for bat higber lever and prove they need it. The height retlu,ested, and based on the °record as I see it as shown. This is the InIM UM height needed to provide minimum Omnipoint service in tNs area. upv Schug - You're shown all that in the reports? Atty Spitzer - We Ve shown that in the reports, including the information that was submitted to Mr. Comi in the follow -up letter's, 'There was a lot of mfvrmation requested that wasn't part of the law and wasn't part of the zoning_ We provided it anyway. I guess at this point as I'm going on, it sounds like there are some other questions. I want to make everybody happy on the Cell One question or at least answer the question. I really want to step aside and let the public or your consultant provide their input into the record. I thank you for your time. upv Schug � This is the line of site towers, right? Is that what the idea is? They have to be in line of site? Michael Crosby - Line of site technology, Because of the frequency that we transmit is and receive at its in a. two gigahertz neighborEbood, as Dan mentioned around 1900 megahertz, about 1850 to 1950 megahertz is the up and down link lands. upv Schug - Why wouldn't you go to the tap of the highest hill we have in taws? Mchael Crosby - The top of the highest hill doesn't always provide the line of site to the target objectives. The target objectives in this case are the ]�pam corridors, wain roadways traveled throughout your town_ What happens is even on the tallest hill, there may be a smaller hill in between my site and my tet objective. What happens with line of site is the signal transmits and receives in a straight lice effectively towaxds the target objective. if that hill is in the way, the terrain or trees, foliage, all affects us, will block the signal, reflect the signal, cause mxklt1 -padth _ . _ 5upv Schug - That's why we took that into consideration with our law, that our highest trees are 80'. So therefore, 140, gives you plenty of room over the trees. Just a question, you're a mechanic, not one, m Crosby - That's an excellent question, I would prefer to have _ -I . Atty 'Spitzer - Don't feel defensive about any question. 141 Crosby - Qmnipoint, as Dare mentioned, has built different ways of building a network, What we have done is height required, maximum spaciM between towers. We try Dan mentioned. Unfortunately in this particular area there that would provide the necessary service to connect our sys Page 6 of 31 its network ... There are several we built ours to the bare minir gum to co- locate wherever possible, as aren't any co- locatable structures tem along the major corridors. TB 6 -1 -99 Supv Schug - Because the site on Pinckney load is kind of down M the valley, how in the hell do you get up over the hiV 1 live = the next hill over and you can shoat a cannon off and not hit our house, much less the line of site, M Crosby - It's a good question; it's a good example. That particular area has dictated a site in a low-lying area so that I don't have any shadowing because the terrain drops off so steep even though I'm up on the hill, Because that texrairx drops off so steep, I would actually be shooting into the dirt and I would actually miss my target objective. i would shoot right over it. X don't prefer to do that. I would prefer to have a h-M that 1 could co- locate on and get a bigger bang for the buck out of that particular site, lJnfarhurately, it is not feasible in that area n ainly because of FAA vestric�:6ons with the County Airport io that area. That is pan of the reason why we ended up dawn where we are at. Existing towers, Or ju st in areas where we could locate, are too far off the road_ They are too far back where it would shadows my service. Atty Spitzer - Why don't you explain what you inean by shadowing_ Most of us think of shadow as f dh-ng on something. Here it has I nd of a different neari ng, M Crosby - Here the tea is, because of line of site technology, our si m gnal can only travel in a straight line (line of sight technology, WS).. That straight Eme, if you have a tower and some terrain between that drops down and a, road nuns through that area, the actual hill provides a shadow over our target objective, so the signal will actually cross over the tap of the target objective. The hill actually shadows, meaning restricts the service area. SuPV Schug - The reason I ask is that we have an old tower that we use for our highway department, school buses, and Cornell University farm and I have a portable radio. It's a stonl€ing operation system, an old one. I can hear it all the 9Vay up and down Route 13 m the Town of Dryden - M Crosby - Thoz�e particular types of technoloa you refer to transmit and receive iti the 150 to 450 inegahertz rage, which is a much lower frequency relative to the transmit and receive frequencies we're restricted to use. Ommpoint has bought its licenses through the FCC, The particular licenses that were available to us were in that higher frequency_ The higher frequency offers many advant es that you can't achieve in the lower frequency such as band width and that sort of mature. The lower frequencies don't allow us to. Atty Spitzer - This is the way it was explained tic) me that I understood. Think about am and fin. Sometimes you get am stations froia clear across the country. The signal w ffl bounce and travel. But fm pretty much once you are outside your area ...you can't.pick tip the station. That is the difference between a lower frequency and a higher frequency. It is the same reason iu part why cellular travels further than PCS does. It is the higher frequency. There are also power aspects of it, ton. But basically that technology that you are using will deal with that terrain better than our technology would. Supv Schug - Poor technnolvgy. Atty Spitzer - It's tough to change the laws of nature, you know- You can do a lot with techrnn109y, but in terms of the frequency waves, its tough to change the lawns of natu e, upv Schug - Anybody else have any con iaerrts? John Bender - I line Off Pinckney road. Will the tower cause any shadowing for our present f a reception in that area, or reflections or anything else like this? Atty Spiner � Nn. Pago 7 of 31 TB 6 -1 -9} J Bender � Do you have a solid unifold construction instead of a truss makeup? Atty Spitzer - I think in this particular instance we have proposed a lattice -type construction, though a number of towns have said gee, they think the monopoles are less ugly or whatever. We generally don't care whether it is lattice or monopole. However, why don't you address the issue of interference fil general? J Bender - Excuse me, C Mink your illustrations, your drawings there, show a monopole_ Atty Spitzer � But we also could do this by a lattice -type, whichever the Tour prefers_ Some Towns prefer lattice -types to monopole because they think that they have less visibility against the skyline. The point I wanted to make was we will build whichever the Town wants._ Atty Perkins - So there are two questions. J lender - Present the first one and then we'll get iota the next one because that's a very, very important question. Poi Crosby - As far as interference goes, Omnipoint is licensed by the FCC which is a government regulator of the airways. e are regulated and restricted to such a nature that we are not allowed to interfere with any existing transmitting and receiving licenwd operators. Mean's that anything that you could think of pretty much, Emerge -ney q 11 services, other cellular, other pcs operators like ouzselves, and anything else that is licensed existing before we come on site, we turn on our transmitters and if there is a problem, Omnipoint wants to know about it. We need to know about the interference and rectify the situation as required by the federal regulations. And that has to do with obstructure .. , . {untelligible) . Atty Spitzer - The point I was referring to with the tower is that you were concerned about the shadow and one of the things that I want to point out is that if you don't like the monopole, if you like the lattice -type or the erecter set type version better, if that's what the Coven board would prefer. , . It seems like if we go i ato a town and propose a monopole they say "No, do the lattice. We like that better." If we. propose a lattice they prefer the monopole. The only point I want to make is if you don't like the monopole we'll build the lance. They are equally capable of supporting co- location and that frankly, in terms of the aesthetic, is your choice_ J Bender � I would certainly object to a lattice type construction within the area for the simple reason that we have a lot of C anadiarl geese that are usizig that particular creek bed and also a lot of other larger birds that are using that as a feeding grounds and I think it waukl be disruptive if you did have a truss with mtUtiple guy Wire.; coming out of it all over the place arid... Atty Spitzer - No gray wires. There are no guy wires on either tower. Lattice just means it's sort of like three sided or four sided with just poles in between. They are not guy wires. Think about a radio tower, this is not a guy tower, In terms of width, they are not that much wider. But again, if the Board t%irsks it is better for birds to have a monopole, we don't have an objection. That is what we proposed. If the Board thinks it is better for aesthetics to have a lattice, we don't have an objeaionL upv Schug - Well check with the lab of ornithology. Any other questions. Bill Dcwey, 88 SU6 1LMs Ilsll Road - How close would your tower have to he physically to the existing tower on Simyns Hill and in which direction. Page S of 31 TB 6 -1 -99 Mr. Dewey came forward and looked at the plan with Atty Spitzer, the Board, Supv ® Schug & ZO Slater. Atty Spitzer - It's about 300'. We measured it, in between it. In terms of Mr. Dewey's property, Mr. Dewey's property is here, the existing tower is here, and the other one is basically sort of on an are a little bit further away from his house, further to the northeast. Dick Comi - I have a couple of questions. They constantly are talking about needing two towers to fill in the gap. My question is relevant to the law that you have in your town. It says that they must justify the number of towers and the heights of the towers for service essentially within the Town of Dryden. When I look at the Simms Hill Road site, 40% or so, approximately of the coverage of that tower is outside of the town of Dryden. Now I am not saying that Omnipoint doesn't have a gap between there and the next community or the following community. But it is my understanding and it was just justified with a 2nd Circuit Court of Appeals Decision in Ontario less than a week ago, that you regulate within your community and you have the authority to do that. It is for them to say that they need two towers lets say, versus one in your community that could cover your community, or need additional height or coverage outside of the community is not a requirement of the Town. And my question is does the height of the tower on Simms Hill, is it justified for only coverage within your community, or primarily coverage within the community, or is it coverage outside of the community. Now the issue of whether or not what I'm saying versus their need for coverage is a whole other issue. My question is pure and simple: Is the height of the Simms Hill Road to essentially provide service coverage within the Town? The propagation study that you provided me shows a great deal of it outside. So I guess I'm asking your engineer.... Atty Spitzer - Well I'll answer the question because it is really more of a legal question. I'll tell you that the answer to your question... Do you want us to go one at a time, do you want 4 more comment... D Comi - I was looking for your engineer to answer my question regarding coverage.... Atty Spitzer - Well I'm gonna give you the easy answer for the engineer and he's going to say `Dan's right.' The answer to your question is the Simms Hill Tower covers the inside of the Town and out of the Town. Is that correct Mike? M Crosby - That is correct. Atty Spitzer - So that answers your question. That you are correct about what the coverage is in terms of the gap. Okay? D Comi - Most of the coverage for inside of Atty Spitzer - 401/6 I think is what you said is outside the town? I'm not gonna quibble. Here's my answer. First of all, I give Dick credit. 1 thought he would mention the Ontario case in the first sentence. He waited until about the third. He is also as I expected completely wrong about the holding. The Ontario case had nothing to do with a Town's ability to say you can only build a tower to a certain height because we refuse to allow you to serve the Town of Ithaca or the Town of Cortland, which is basically what has just been suggested. What Mr. Comi is suggesting if I understand correctly is: You can limit the height of ours so that it provides coverage solely to those target corridors within the community lines. D Comi - I'm saying that I believe that this municipality has the right to regulate the number, location, height, and type of towers to essentially provide service within its Ocommunity. Page 9 of 31 TB 6 -1 -99 Atty Spitzer - And by "within this community" are you referring to the political boundaries of the Town of Dryden? • D Comi - Yes. Atty Spitzer - Thank you. I think Mr. Monroe and Mr. Comi both said yes. It's a legal question is the reason 1 wanted to answer. We have a concept in this country called the commerce clause. Basically as one justice put it: We're in it together, we sink together, we swim together. If you want to suggest, especially after reading the Ontario case, and I have a copy with us, where the Court very clearly said that a community has a right to act to make sure ... Atty Perkins - I'm glad you brought a copy. I brought one for you in case you didn't have it. Atty Spitzer - I brought a copy. Because after all, the Court said there that a community can act to make sure that the fewest number of towers aren't built there. That was a case where Sprint wanted to build three towers and the Town said build one. We are not looking to build six. Mr. Comi is saying go over to Ithaca and build another tower there so that the tower here isn't as high. Go over to Cortland and build another tower there so that the tower there is not as high. With due respect to Mr. Comi's legal opinion, I don't believe that the Court addressed the issue of political boundaries in terms of regulation at all. I think what they addressed was whether or not level of service is a requirement. Mr. Comi has indicated to you there is a gap. We are closing the gap. If, however, the Town feels that it can give a permit for say, whatever your RF expert says, is the regular height to serve the Town, then I suggest that you pass a permit that said a permit is granted for 120' because you do not need more to serve the Town. And if a Court agrees, should Omnipoint and Unisite choose to challenge that, then well stay at 120', and if not, well go higher if we choose to challenge it, and win. But • what he is saying is the same thing that I said, there is a gap. He is also saying that you could require us to build multiple towers in other towns to close that gap, and legally we respectfully disagree. So I think that is the point of disagreement, but the point of agreement was that yes there is coverage and radio waves do not sense political boundaries. Atty Perkins - Does the Town's local law require or restrict the height of the tower to that which is necessary to render service in the gap area in the Town? Atty Spitzer - I did not read it that way, but I believe Mr. Comi does. I'll speak for Omnipoint and say I don't believe that it said that. Ill let Mr. Comi, since he wrote your law, give you his explanation. Atty Perkins - The la%v speaks for itself. D Comi - The other issue, and maybe I'm not being understood correctly, my question is not only the height as an issue, but we have had no documentation that says within the Town they might get away with only one tower instead of two within the Town. And that was very plain an issue in the Ontario decision because it 1vas one versus three and Sprint said they wanted three or nothing. So the issue isn't only the height, although it is a height issue because they are covering 40% outside, there is nothing as far as I'm concerned, that says they have in any way justified that they even need two versus one to cover the Town. Or perhaps they could go on another high structure somewhere else in the community that would not fill their entire gap, but would be sufficient to cover the Town of Dryden. Atty Spitzer - So which structure did you have in mind? D Comi - That is not my concern. That based on the law is what you have to provide... • Page 10 of 31 TB 6 -1-99 O Atty Spitzer - I might point out to you in the Ontario case they had another structure in mind and they actually gave an alternative. Do you, for the record, have an alternative? D Comi - Yeah, go on the Frontier tower and cover the whole town. Atty Spitzer - Will frontier let us on it? D Comi - Yes, sir. Atty Spitzer - Have you done a propagation study that says it could cover the whole town with Omnipoint? D Comi - Would you please do one for me? Atty Spitzer - No, I will not. I'm asking you for the record, since you are the Town's licensed expert that they have hired as an expert..... Atty Perkins - Would you address your comments to the Board. Let's not get into personal attacks here. Atty Spitzer - Were gone back and forth, sir. Atty Perkins - Address the Board. Atty Spitzer - I will tell you the same things that our propagation studies show. That one tower will not cover the Town. Am I correct, Michael? OM Crosby - Yes Atty Spitzer - Why is that? M Crosby - The problem is because of the radio equipment that we use, we are limited just like any other carrier would be limited. The communications that we deal with, cellular or PCs, we are limited with the height that we can transmit at because of the length of the co- axial cable, the diameter of the coaxial cable and the maximum power transmitted. If we were to go on a height that would provide a service, for instance a 700' tall tower, you'd have to have multiple lights up the side of it. You'd have to have over a 700' run of coaxial cable an inch and five - eighths. You'd have to go to a waive guide which is an air pressurized system. The coax would provide so much resistance with that link that the transmitted signal would be so minimal that you probably wouldn't even be able to make a call to the base of the tower. The systems are balanced at a certain height and we range in height from anywhere from 50' when you are in a downtown area up to 250'. Much above 250' we don't go above because of that line loss. Atty Perkins - How tall is the Frontier towe ?. Atty Spitzer - It's in our application. It's one of the ones we looked at. It didn't work for us in terms of providing gaps in our coverage. ZO Slater - 180 feet. D Comi - Again, Dan, and I don't want to argue with you personally. I'd like to address 0 the Board. Your comment again was "It didn't work for providing gaps in our coverage'. Did it Page 1 1 of 31 TB 6 -1 -99 work with the basis of constructing the right type of antenna configuration, the right power amplifiers, to only cover the Town of Dryden. We don't have that information. • Atty Spitzer - Well, I don't think you've asked for that information. D Comi - Because you didn't look at it. Atty Spitzer - Well excuse me. We've answered every letter you have sent us sir and we have answered every question long beyond legitimate concern and you have never asked that question. You have asked us about co - location on every structure. Mr. Slater provided us with an inventory of structures and he provided you that same inventory, and we looked at the Frontier tower. It does not meet our coverage objective. We provided you RF propagations showing you that it will not. The engineer is sitting here telling you that the Frontier tower will not provide coverage to the entire town. If it did why would we be sitting here if we didn't need to build the towers. M Crosby - It will not .... Atty Spitzer - Excuse me. Understand what Mr. Comi is saying. Mr. Comi is saying that Omnipoint wants to build two towers instead of one for what reason. I don't follow the logic. If we could build one tower we would. Atty Perkins - I think what Mr. Comi is saying is you need to justify building two towers and you haven't looked at whether the Frontier tower would solve the coverage gaps in the Town of Dryden. Is that a fair statement of your concern? D Comi - Yes, because his issue of why would they build two if they didn't have to. They want to build two and I am not denying that they need two locations to cover their gap. Their gap is not from the northeast end of Dryden to the southeast end of Dryden. Their gap is extends far beyond Dryden in both directions. They do most likely need two sites and locations to cover the gap. There has been no documentation provided that says any one location could provide service within this community and if so, what height would it have to be at that one location. And we have asked that question and it was again commented on just recently, and their response is to fill their gap. There is a legal issue, and I understand the interpretation of their need is to fill the gap. My interpretation is within the Town of Dryden. Atty Perkins - Is it possible to do, 1 don't know the correct term here, but a propagation study at: varying heights on the Frontier tower to determine whether the gap in the Town can be filled? D Comi - Yes, sir. Atty Perkins - And have you asked for that? D Comi - We have asked them to document. I didn't specifically ask the Frontier tower question. Atty Spitzer - So we have a complete application, and now we have a request for more information. Let me answer the question, sir. Because we can tell you whether the Frontier tower works. The Frontier tower (asked M Crosby to hold up the map so the people know where it is) is another 3/8 of a mile off the road from our tower. It is further back from our tower. It's signal is not, even at that higher height, going to reach across your town, sir. Atty Perkins - Isn't the issue whether it is going to reach the gap in the town? 0 Page 12 of 31 TB 6 -1 -99 M Crosby T Not only will the Frontier tower not provide service to the entire town, but I will have a gap in service directly in front of that FYontier location right on route 13, Atty Spritzer - Explain why though- M Crosby - The reason why is again because of the shadowing effect that we receive because of the terrain located r . even though it is a slight amount of terrain, it is just enough terraW that it is going to provide, because of line of sight technology, a gap very near to the site. And that is urmcceptahle, Atty Perkins - Is thmme any way that you can depict that area on this -.. are you going to make this map part of the record? Atty Spitzer - This is just a topo map showing you the location, but this is actually a blow up of the propagations that are already in the record, but we are happy to make it part of the record for you. Supv $chug � There are hm towers within 300' one way and 300' the other way. M Crosby - I think that the Frontier tower is , .. , Lawrence Morxoe - Perhaps I can simplify this, The issue appears to be, and this i.s.,- we don't care, this is so you can makme an informed decision. I go back to the Language that he is using- The company's coverage objective versus the Town's legal obligation. It is that Simpler D Domi -The issue may evert be this. I 1wep saayLV one tower, Frontier. You may be able to co- locate on Frontier and only build Pinckney road which in essense is saving a tower within the Town. Supv Schug - That was the questiaa I'm asking, We have a Frontier tower and we have a Cell One tower. They say Cell One won't answer them- And the Frontier tower is within 300' also right? Atty Spitzer - No. It's 3/8 of mile, about 2,000 teet. SuPV Schug - Its within spitting distance and you can sec, - Atty Spitzer - Yes and no, There's two different answers here. On the Cell One they won't let us on. On the Frontier, as the undisputed record sklows . , .. $upv Schug - They didn't say they wouldn't let you on. They just refuse to answer you. Airy Spitzer - Cell One? They told us verbally they would not let us on because we did not have policy. If you look at the statements in the recorcE that Mr. Ball transmitted to you and Mr. Kulikc transmitted to you, they told us verbally they wotAd not let us on. It waan t just a matter of their not ariswernig the letter, they -verbally told us that. Supv Schug - Did they tell us that? ZO Slater - They haven't told us anything, Atty Spitzer - Why would they. They are our competitor. It's to their benefit to keep dragging this out another six months. Pagr. 13 of 31 TB 6 -1 -99 O Slater - I'm just answering the question Supv Schug - OK go ahead. Atty Spitzer - Thank you Mr. Slater. The point I want to make is the issue of going on the existing tower with Cell One we still don't. understand. But with Frontier, what i1+Ir. Crosby said and which hasn't been refuted is, the site doesn't work. It doesn't because of where it is located allow coverage of Route 13- In other words it is not an issue of why we would not go on there. We're on lots of Frontier towers, We'd.go on there in a second if we could go on there and ]wild or go an Cell One. Those two as you put it are in spitting distance of each other. RF Y-s because of the small P S range, they are not within spitting distance of each other in terms of the Frontier and the Simms Hill, However, if we could co- locate we would have had these up 9 months ago. Why would we not do that? upv Schug - What part of Route 13 can't you hit? Atty Perkins - Do you have something that shows where this shadow is? Have you done a study using that - -- M Crosby - We have submitted the Frontier tower m the past. I know we have done a couple different sets of propagation maps and the Frontier tower was included in that, I didn't do a propagation on the Frontier tower tonight. I thought the issue was resolved. I apologize - But basically . IN Atty Perkins - Did you do those For the Town of Dryden? Atty Spitzer - I believe they were submitted to your consultant in terms of alternative site propagations. L Momoe W I don't recall thezn- Atty Nrkins - Maybe you could provide us with the date that you did that, Atty Spitzer -We will provide you with another copy of them, L Monroe - I'm not perfect. I make mistakes, but I doxt"t recall them, Atty Spitzer - Well then well get you a copy of them to the extent that its an issue- Atty Perkins - Is there anything on this wcl bit which shows th.e gap in coverage for using the Frontier tower? M Crosby - I can show you a very similar propagation that ❑cis done for this Walker Road site, which is very close in location. I did bring a study that shows that. This study shows propagation at various levels of degradation- This Walker Road site is the site that I have. I have shown the coverage for Waller Road and Mt. Pleasant combined. Those are both shown on this particular prop. Orr this prop the coverage from Walker Road as it relaties to our existing coverage of existi tg sites in Cortland shows a gap in coverage through the South Cortland area and also a gap on Route 13, according to this propagation map- The propagation map also has a gap in cover a right in front of the Simms Hill. location, just a little bit west gourg on 13. It is not shown on here. Unfortunately a propagation tool can only show so much detail, We are zoomed out far enough that you are not going to see that. But there clearly is a hale here, a hale here, and this large hale up here. Page 14 of 31 TB 6 -1 -99 Atty Perkins - Now the large hole that you just pointed to, is that in the Town of is Dryden? M Crosby - That I can't tell. C Hatfield - No. M Crosby - No? Unfortunately and I understand that the issue is going towards the Town of Dryden, political issues, but we do need to connect our network together with the least number of sites necessary and that is what we are doing here. Atty Perkins - Is it your statement that that large gap that you pointed to last is outside of the Town of Dryden. Atty Spitzer - Where is the gap? Show me the gap and I'll show you if it is in the Town. The Town lines are on there. OK, just keep you finger on there. That gap is in South Cortland. I believe that is actually over the Cortland County line. I assume your town line starts at the Town. So the particular gap that is demonstrated as covered by the tower that is missing that you are referring to is not in the Town of Dryden. Atty Perkins - Now you said that this propagation study that you are exhibiting now was done in connection with Walker Road and Mt Pleasant. M Crosby - Walker Road and Mt Pleasant. The Walker Road is 170'.... Atty Perkins - Are those both existing towers? O M Crosby - Both existing. The Walker Road is 170' which would be a suitable co- location height on the Frontier tower if Nextel wasn't co- located on that one as well. Nextel is also an 800 megahertz carrier which was able to co- locate at a lower height yet provide service for the same target areas we're shooting. Atty Perkins - But is there any reason you couldn't locate on that tower? M Crosby - I believe there would be a number of issues if we looked into it in detail. I believe you would have structural issues, not to mention the fact that the RF coverage simply does not work. Atty Perkins - But you haven't looked into those details. Is that right? Atty Spitzer - I think he said that he did look into ... M Crosby - The details have been looked into, quite a long time ago. They haven't changed. Atty Spitzer - ... structural analysis and whether they would let us on. Is that what you mean by the details? Atty Perkins - I want to know if you provided to the Town of Dryden or to its consultants that information. Atty Spitzer - We have basically ... OAtty Perkins - No, not basically. That is ayes or no question. Page 15 of 31 TB 6 -1 -99 Atty Spitzer - In my opinion, yes. Atty Perkins - OK. • Atty Spitzer - If you think it is massing .... Atty Perkins - Would you furnish us the date that you did that and a copy of the transmittal County Route 107? letter or other memorandum which ... Atty Spitzer - Or well provide you a copy of it. Atty Perkins - That's fine, that's all I'm asking. Now, with respect to the other gaps in coverage that you just referred to. Would you point those out again? M Crosby - One of them is just to the north on Route 13, just north of the proposed site. That is shown here. I apologize. Just before the map was a little bit off center and it didn't show it. The other one is just east of the Town of Dryden which would show a hole right where we are now, there would be no service. Atty Perkins - Excuse me, what Town is that in? Atty Spitzer - Why don't you put your finger on the gap, Mike. M Crosby - Right here, right in the Town of Dryden. Atty Perkins - It looks like the Town Hall, Atty Spitzer - pointed out a gap on Route 392. So there are significant gaps in the 0 Town. Atty Perkins - Well, your interpretation of significant and my looking at the colors, which I assume mean areas which you can cover, would appear to be quite different. It appears to me to be a diminumus area that you cannot cover if you co4ocate on those two sites. One of those areas is in the Town on 392 and the other are looks to be very close to the Town boundary on the north. Would that be correct? Atty Spitzer - I don't know where the Town boundary is on the north, so I can't answer it on the north. Is it County Route 107? Is it above Sweetland Road? C Hatfield - Sweetland Road is the boundary. Atty Spitzer - The gap includes the Town boundary then. By the way, your statement is incorrect. You should not assume that all the colored portions are diminimus coverage. Some of the colored portions are below diminimus coverage. Atty Perkins - No. My statement was that the areas that are not colored are areas where you cannot reach. Is that correct? Atty Spitzer - That is correct. My point I am making is that that's not the only areas that we cannot reach. This is one of the two. We also use drive tests to show more specifically where there are gaps. Atty Perkins - Now, this document which you are exhibiting now, what is this called? Page 16 of 31 TR 5 -1 -99 M Crosby - This is just called simply a propWtion study as created by a computer program. Atty Perkins. - Is that something, again I'm going to repeat my request. Have you submitted this snap or this study to the Town? Crosby - To the best of my recollection we have submitted all .. , . Atty Spitzer - Yes. Atty Perkins - If we cannot find it or if you have not done that, would you be willing to submit that to the 'Town. M Crosby - I would be happy to as long as that's feasible by the process involved- Atty Spitzer - I thick that a version of this is included as Exhibit H of the original applications in both cases. D Corm - 1?xhibit FI? Atty Spritzer - Yes. In terms of how these fill the gap - D Corm - Exhibit H of the existing application covered existing coverage Sir=s Hill, Pincknty Road and overall coverage? Atty Spitzer - That was the question you asked, right r- Perkins? 10 Atty Perkins - Na. 17 Comi - He asked whether or not the Frontier site, or this, was included and it Was not included in Exhibit H. Atty Spitzer - No, its not included in Exhibit H. I flunk it was included in one of the letters, but either waxy as you say, we will get you a copy if we have not. How's that? boas that answer the question? Atty Perkins - That answers the question and I appreciate that very much. Now, can You tel us what the area in red represents? Crosby -'The coverAp areas with respect to the sites, the different colors show the degradation of the s4pal as you travelled away from the site or as you encounter Wn&ain, obstacles, foliage, ravines, whatever it happens to be. The red shows a coverage from negative 20 to negative 72 dbm- Att Perk= - Can you tell us what that means? M Crosby - The pink and red, I apologize. You Migb as weU 1=lude the pink and the red together, nee 20 to Mg 72 and then nag 72 to neg 85. Those two show a high quality of service area. Omnipoi er ut is dedicated to providing high quality service to its customers which will allow a customer in any of its area to be able to provide 911 service, things of that nature- Supv Schug - So the ik and the red are goad? M Crosby - Fink and red are good. Green and blue show s*ntficant degradation of the signal. Because this is a computer model, the computer model can't take into account the Page 17 of 31 TB 6 =1 -99 millions and millions of variables that the actual signal will encounter in real life. That is why those show, the further away from the site also shows a degradation of signals a significant; distance from the sites. This is that 40" /o that was being referred to. 6 Atty Perkins - And what does the blue represent? M Crosby - Blue is extreme fringe coverage. That would be if you are up on the top of a hall somewhere outside of a car you would be able to make a phone call, but it really is not what we design our network to perform to. Atty Perkins - So what you are really looking for is the red and the pink and you can live with the green? Atty Spitzer -The green is there is a proper level of signal to line of site, we are not talking abo towers seeing the car and the car with, what we call the handoff area where the two towers meet, so allow handoff between tower to tower. When we talk about ut the towers seeing each other. We're talking about the seeing the next tower, so the green area is an area we can live Cl Beck - Where's Route 13? M Crosby - (pointed it out on the map) Route 13 comes down out of Cortland, falls right down into the Town of Dryden, takes a 90 degree and heads out... Atty Perkins - Well then it goes northwest where you left off with your finger and goes up by the airport. All of that is in the red area. Is that correct? Atty Spitzer - yes. Well, Route 366 is the one that is not in the red area. This is the • other site here where it says Fall Creek. M Crosby - Some of that service does come from the existing Ithaca site that we have. Atty Perkins - Have you done a study, a propagation study, that would utilize the existing tower on Walker Road and the Fall Creek tower, the proposed tower on Fall Creek? M Crosby - I didn't put the two of those together. I didn't deem it necessary only because of the combination of ... I don't think that you'd see a problem with interconnection but you would still have coverage issues within that site's primary objective. Atty Spitzer - The answer to your question is no. (Tape change) Areas not covered within the town were pointed out. The West Dryden area of the Town is not covered, as well as other smaller areas within the Town boundaries. L Monroe - For the record, our job is to make sure that the Board has all the information it needs to make a fully informed decision. Atty Spitzer - I think we're defined that legal issue. Supv Schug - I have a quick question. When you guys were putting a tower up in Ithaca and you put a tower up in Cortland, did you take into consideration the whole in the middle being Dryden, and did you move the Cortland County tower as far out as you could to reach into the Town of Dryden. And did you do the Ithaca tower as close to Dryden as you could to reach into the Town of Dryden? If you had done that, could you have gotten away with one tower in the Town of Dryden? 0 Page 18 of 31 TB 6 -1 -99 Atty Spitzer -The answer to your question is, when we dosrgn the system we start in areas where there is co- location available. So we start in a place like Ithaca=' this area because there's higher structures that make it passible to co- locate. In terms of briu&lg those facilities further out, our goal was to use the Cell One tower because we thought that was a perfect co- location site. And so the system was desed to use the Cell One tower. They have said no. The same thing in terms of them. Once you place towers, a have a system that goes along Route 81 - Once you start putting things together it i.s like a jigsaw. You have basically search rungs. In the center of the search rings are areas where you can place a tower and cover the gap- You have same leeway. In answer to your question, if you look at the difference between the Cortland line (here) and the eastern end of the Town, and you look at Ithaca lines here, or Cayuga Heights, whatever the tovm name is at the other end of your Town, what Mr. Crosby has said is that one tower even placed geographically in the center of the Town would not provide coverage to the whole Toum. upv Schug - Because of where the other two outlying towers are. Atty Spitzer - He's not tall g about the gap. Mr. Corm was quite clear to say that he did not care about the gaps. He was trying to say that you should look at the informatim so you have an informed decision Based on the community. What we were sayir is, is based on if you put the one tower because of the terrain, because of the shadowing, because of the other factors, that you could not cover this town with one tower. That is our position.- S-apv Schug - My question was if the Ithaca tower had been closer to Dryden and the Cortland tower had been closer to Dryden, could you have covered the Town with one tower? Can you show us where those two towers are and can you prove to us that they were co- located towers? Atty Spitzer - Well we could certainly take you to prove that they are co- located towers. We could show you them. upv Schug - I don't want to go to them. Atty Spitzer - Well, I don't know how else to prove it to you. Do you want me to bring you a picture of them? upv Schug - Just tell us where they are- Atty Perlans - Can you show us on the map? Atty Spitzer - Yeah, go ahead. M Crosby - All of the sites that we are tang about tornight, the Ithaca site, the Cortland site arxd the two Dryden sites were all designed in the same time frame. We were looking for existing structures on an those search rings. We were for=ate enough to find an existing tower, the Fish tower in Ithaca, the JPJ tower in Cortland. We were fortunate enough to have had those, What those existing structures do, and because we raxely get those up and on the air, to get our system up and mmaning. Obviously we try to get these things on the air as fast as possible because that is revenue stream, service to our customers, a trriiiion different things- It does dictate the to Lion and height of the existing towers required to fill in the gap that were been referring to. These sites are all spaced- at the maximum distance, and I put a lot of tinge, a lot of due diligence into ma]flng sure that I have done everything that I can to help to reduce tower proliferation in the communities- I don't want to get any more than anybody else's- I am in the industry, no question about it, but I don't like to see any more towers than anybody else. Page 19 of 31 TB 6 -1,99 D Corm - Let me ask oae other question, if you would, And Dan keeps taVdng about you can't cover the entire Town of Dryden with one tower, artd I don't know if you cazi or can't, But you've gat a Pinckney Road tower, and let's just say for the sake of talking that it's a requm "e ent_ You 've got several high, structures in the neighborhood of Simms Hill Road, that if any one of those could be used in conjunction with Pinckney Road and another tower, a second one now, outside the Town of Dryden, 'n the case of the number of towters you would have better coverage outside, better coverage inside, and still only have one tower in your community. Orne new towt!r, and one co-location- So my issue is not that you only may be able to cover it only with one tower, you may be able to cover it with one new tower and one co- location within your community. Atty Perkins � Let me ask this question then, isn't that what I asked earlier? Has there been a study that shows whether you could use an exiting tower and get cover; %e, although it wouldn't be exactly what you want, it %Auld be most of the area you are tallcLng about and you'd limit it to one new tower_ _ , , D Comi - You asked specifically for Pinckney load and one location. There are about four, if I'm correct, three or four high structures, near Simms hill. There's the Walden, there's the Frontier, there's the Cellular One which they can't use, btit there's two or three locations so it shouldn't include 1 xckngy and just one, it should include Pinckney ..,. Atty Spiu&i - Excuse me, ikkT would not have an objection to an approval that sags go build Pinckney and then tell us that you looked at all these other things on. Simms c Mill Road and come back to us in thirty clays and show us that you really looked; prove that you couldn't use the Frontier since you don't have a combination. We have proven to you we can't use e11 Oae and provided you documented evidence_ In terms of Frontier , Atty Perkdns - No you haven't. Atty Spitzer - 1?xcuse me. We provided you a letter. We provided you our written statement saying that we can' use those. if you d.on*t want to trust us then I guess we haven't provided you documented evidence, but, you know , , . upv Schug - As long as we agree.. , Atty Spitzer - In terms of what people want to swear to in CoLM, we have provided documented evidence, The point I am trying to make is if you approve this and you wart us to go search this further, we don't have an objection to that. We don't want to build any towers that we don't have to build. It is a waste of money. So if that's what you are asses us, go ahead and do this, but we're really concerned about this. Go look at Fronttier, go look next to the Town because we think there may be some sites out of the Town and we want to see if you can cover it without following our law, following the neighbor's law- We will go and do that due diligence for you on top of what we have clone_ On the other hand, we cannot continue to fight this moving target that bablcafly says yes, there's a gap and we're going to tell you what you can aid can't cover. I don't even have a response to that, $upv chug - Let me ask Sing Crosby a question. Sing, when you're sm6png from Pinclaiey Road, you're way dawn m a hole when you're going to site that tower. V&y wouldn't you want to be up on the water tanks or up on top of NYSEG's building. Crosby - Simply because of the degradation of the signal due to terrain. Because of the terr a. It's a question that comes up again and again, site by site and I dont blame you a bit for asking. The terrain is my worst enemy, 0 Page 20 of 31 TB 6.1.99 Supv S chug -It just doesn't seem to snake aqv sense, M Crosby - It's just like not having a white Christmas, Atty Spitzer - 1 went out and Ionked at it and asked him the same question. Why are we down here? Supv Schug - Why would you put a tower in a hole? Atty Spitzer - It is because of the terrain. That is the same reasoix that he is telling you that one tower can't cover your tower Because your town is not like Buffalo, where Rich and I live, where everything is flat ; .nd one tower can cover a wide area without worxyi about terrain, Your know, or out in the great plains where these big TV towers-cover the whole state. This is a rolling hill area. D Comi - Aaairi the issue, I don't believe, and I may he wrong, but i don' believe mete ever received a propagation study for the wafer tower near Pinckney Road, : C Hatfield � Why couldn't you have it on one of NYSEO's high utility poles right cruet to you? Crosby - Terrain. Terrain issue. height. Hatfield - It's right beside the site, across the road. Atty Perkins - Did you look at the West Dryden church as a possible site? Atty Spitzer - Was it on the inventory that I�ir. Slater provided us? O Slater - The study that I provided to you was developed in early 1998 and your application was filed iii August of 1998, so they may not have been included. Supv $chug - Henry, was the West Dryden church orl the list of sites you gave them? .O Slater - I'd have to look, I believe it .vas, but I cannot tell you without looking. I'll be happy to do that right now. upv Schug - Thank you. Because that site you can see from Ithaca College, Crosby - According to where that West Dryden Church was pointed out to me, it's en extremely significant distance from my target objective, and unless that was a 700' tall existing structure that I was able to mount my equipment at the top of without having any of the Une losses we tallmd about, it wouldn't even he a feasible structure to even look at. And I'd be happy to point out .. _ Atty Perkins - It's a relatively high spot in the TOWJU actually, Crosby - But it is so far from the target objective and the hole that you mention that the tower i$ in is the same hole that I wouldn't be able to cover with the site. Atty Perkins - OK, Did you do a study of that church? Crosby � I don't recall that cliurch, I have looped at a sigtvfcant number of structures in the town and I don't remember all of those. Page 21 of 31 TB 6 -1 -99 Atty Spitzer - But you dan't have a problem providing a study. M Crosby - Absolutely not_ I have -no problem_ Whatever you guys need, we're happy to provide, Atty Spitzer - We've provided everything tbat's been asked for. If we're being told, not- withstanding the board's action, that the application is not complete because the consultant and the Town Board didn't ask for things, just aak us. J Bender - The site that was shown on your map illustrates that it is very near to a drainage source for Fall Greek. How do you plan to develop that and what effect would it have on the ]~all Creek area. Because just apposite us from the one that comes down alongm Pinckney, it comes down off of NY EG dawn past your site, parallel to Pinckney Road and directly into Fall reek- How does your particular building Mite, and it's the edge of your site, how do you plan on developing that site so that you protect that waterway because that's a fish and wildlife feeder for Fall Greek. Atty Spitzer - The site, including the access road, does not cross the waterway and we have a site plan that I believe demonstrates that, J Bender - It does cross the waterway. Atty Spitzer - Are you sure? Can you sh.aw me? J Bender pointed out the area he is wnoerned with. J Bender - Right along Puck aey Road, because there is a gravel drive, and I think this shows three of the pipes, very flimsy pipes and everything else they have put in because NYSEG has now developed a portion of this site over here at this time. Petry Spitzer - By the high tension wires? J Bender - Right here_ They put a structure in right here, NY°EG has. or I believe it is NYSEG- Tt hnsn t been labelled. Thera is a waterway that runs directly down through here and dumps into Fall Greek. Atty Spitzer - The waterway is right here ? J Bender - No, its right along the road, Atty Spitzer - What we've shov n is a culvert underneath the gravel drive to carry the water from one side of the gravel drive to the other. Obviously Mr. Slater would have to sign off m terms of whaWver the Uniform Building Code and the Town's Code to make sine that that culvert was of adequste sizes to carry the, I a;s. urne the high water flow. J Bender - Right. Atty Spitzer - That's the answer to your question. J Bender - Yeah because there's a. ca crete revetment on this side of the railroad grade which isn't in all of that good shape and everything else like this. I don't know if they would take out that entire grade or not. liigh water comes in and floods that entire area.. It goes up to the railroad tracks when you have high water. • Page 22 of 31 TB 6 =1 -99 Atty Spitzer - I assume that your town has adopted the Uniform Building Code, I also assume that your building inspector looks at specific building puns for roads and other things to make sure that there is adequate coverage for drainage. What they have shown oxi their site plan is a specific euilvert designed based on the flow, that's how they size the culvert, to cam that water across, So the answer to your question is that we would build a culvert. We are certainly not planning on damn ing the stream or ignoring the stream. We are going to basically use a culvert to get the water across from one side to the other, J Bender - Okay_ I didn't see any site development there as far as revetments or anything like this ,so improve that ditch, which is now being back filled and thhip like this. Airy Spitzer - It is not being back filled by us, sir. Maybe by NYSEG or something, but we certainly are not doing anything up there_ J Bender - No, no, you are not doing it. Atty Spitzer - If the site condition has changed in the, virtually a year, and that requires us to redesign the road so to deal with a higher water condition created by NY E , then we would revise the site plan to deal with the existing condition. So the answer to your question is that there will be a culvert in plane, which again Mr. Slater has to sign off on, adequate to carry the water from one side of the gravel road to the other. And main, while you were out, the question I asked rhetorically was I assume the Town has a manner for making sure a culvert is of adequate size, O Slater - It's a Town, road. Atty Spitler - Well Mi this case it's a gravel ditch arld the gentlemen is conce=ed that we riot dam it up or otherwise act to degradate the quality of the water. We have said they we are going to put a culvert in to carry it across, and we assume that would sign of on the adequacy of that culvert, O dater - Is this culvert in the ditch that is adjaoent to Pinckney Road_ Atty Spitzer � Right, correct. ZO Slater - They we have specifications, and our Highway Superintendent would be involved in. Atty Perldns - Have the engineers, TG Millers, looked at the site plan at all? O Slater - No, Millers have not been involved in this, upv $chug - Dick, Rusty, do you have any other things you'd like to point up, L Mnnree - Nu, sir, D Comi - Not at this time. And they're really not issues relevant to I l . l Things like the interference, we're not trying to regulate them or anything like that. Were just asking for informajtion. By the way, the same information that we are asking for has been provided by their company elsewhere in the state. Atty Spitzer - Sometimes under protest and sometimes. under law suit. 139"t t in n terms of interference, our position is that you do not have the right to regulate it. As I 've gold you Mr, chug, and I've told r_ Perkins, and as I ve told this board in a letter, we believe your law is illegal as a regulatory act, page 23 of 31 76 6 -I -99 L Monroe - I had no comments, but now I have to say and sometimes with no objec�on whatsoever. Supv Schug - Sometimes what? L Monroe - Sometimes by Omnipoint with no objection whatsoever .., D Comi - Whatsoever they 've provided the information. Atty Spitzer - No objection that they are aware of, but I U il* that that's incorrect, with due respect, And I don't know how that's relevant. What did we have in mind here, sir? Did you want to adjourn the heart ng to 1[eep the record open, or did you want to close the record and make a decision? i don't know what your battle plan, so to speak, was. We haven't really heard much from anyone on the board- Supv Schug � What we'd like to do is do what we discussed to see if we have everything, to sec if Mike is going to get us some more in.fornaabon, axid well let you know from that point. Attar Spitzer - When wUl the board be reviewing this matter again? A.t(Y Perkins - When can Milne give us the information about other tall structures and the feasibility of using them and only one new tower in the town? Attar Spitzer - Let me suggest the fallowing in answer to that. That Mr. o77ui and/or Mr. Slater provide a list of each of the maps or propagations that they're concerned about by say, Friday, and that we wM get those to you, including a copy to r. orm by the following Friday- ,O dater - I don't believe the regulation calls for us to give you a list. I believe that it asks you to exhaust all possibilities in a pecking order and provide it to the town, not - - - Atty Spitzer - The problem is we have a complete application and we're being aclmd for more information. We don't to do that .... Atty Perkins - Let's address the issue of complete application. The only person that I have heard mention that youVe got a complete application is you. I havenl' heard any resolution of this board. I haven't heard any of the consultants say it's complete. I haven't certairAy said it's complete. I'm not in a position to say it's complete. It seems to me if you want the board to make a decision on the record that it Has before it right now, it is probably willing to do that, On the other hand, in an effort to comply with the law, if you want to submit additional propagation studies which would aid the Town in reviewing.your applications, either with or without a new tower or two new towers or three new towera or whatever, the Town certainly would like to take a look at it and comment on them. Atty Spitzer - What i am suggesting is that we do that in tandem so that we don't have tlxis kind of questions ad iz>finitum in terms of the potential things. Now if Mr. dater and Mr, omi don't want to give us the structures that they have in mind, we have his inventory, 'bat's what we went from when we did our studies when we went back in January and we provided additional studies we used this study. I'm just trying to make sure that next time we come back there isn't, "Well, what about Bill's faxm ?" and that . - - Supv Schug - But in 1997 you had written and agreed to use one of the towers. That letter to ... P%age.24 of 31 TB 6 -1 =99 Atty Spitzer - That is right. We wanted to use that. Unfortunately the coverage did not work. When we tested the coverage we couldn't use it. Supv Schug - But you alleed that you would pay them so much to be on that tower. Why would you do that until you knew it was going to work? Atty Spitzer - The TEA Group is the individuals that wrote that. That organization is hired to get leases for us. They bring back the potential lease sites. They go out and they find out who is willing to rent space to us so that you don't do tests, for example if you go to a NYSEG tower and NYSEG says to you "I won't rent to you', like Cell One did here, then you don't spend your time testing sites that are not available. If a farmer says I own at the top of the hill, but I don't want to rent my hill to you, then you don't waste your time doing studies that don't work. You set up a network based on search rings and then you look for sites within the search rings. So that's why you look for a lease commitment before you do the propagation study. All I'm trying to do is limit the universe and I do believe, for the record, that your law says a public hearing will be held after a complete application and that the act therefore of holding a public hearing speaks for itself. Atty Perkins - You were the one who requested that we hold a public hearing notwith- standing a determination whether the application was complete. We are holding the hearing at your specific request without regard to whether we have received everything. Now, why don't we tick off some of these things that you'd like to see. There is a tower on Walker Road, is that correct? Who owns that? ZO Slater - There are actually two towers on Walker Road, D Comi - And I think I can address it easier. Although the law says that it is their O responsibility to do everything within four miles or a different distance if they can so prove it is not reasonable. I have no problem talking to Henry. He and I will go through unless you have ... I am more than willing to sit down again with Henry and say `Henry let's talk about existing structures and give them the information', realizing on the record that it is not the responsibility of this community to do, but to expedite the issues and not continue to proliferate sites in areas. I don't have a problem doing that if you'd like us to do that. Atty Spitzer - I'm glad you mentioned expedite because that is the town's responsibility and that hasn't happened. Atty Perkins - Is that what you want? Cl Beck - Sounds like it to me. Cl T Hatfield - It seems like a reasonable approach. D Comi - It is their responsibility to sit down and go through the list. Atty Perkins - Can you get that list to Mr. Spitzer by fax by Friday? D Comi - Yes, sir, I can. Atty Perkins - And how much time to do you need to respond to that? M Crosby - A couple of days to do them and get them back to Dan. I think a week would be a feasible time frame for us to return them. Page 25 of 31 TB 6=1 -99 Atty Perkins - Can I make a request. I don't know if this is feasible. Can you do them on a scale like that that you've presented here? 0 Atty Spitzer - How many are you going to ask for? If you ask for two or three, sure. If you ask for 30 or 40, this is the problem with ad infinitum requests and why I suggested that you might tell us what else you wanted them to look at. And if you're looking at a couple of major ones like the Pinckney Road and the Frontier Towner, sure. Because that has clearly been a question tonight. If you want to look at the big ones, fine. But if we get a list three pages long, that's expensive. It takes a long time. It takes 20 minutes for each one of those things to print out. Atty Perkins - Do you anticipate that there will be more than five or six sites? D Comi - I would ask the same question, if I might, in a different way. Instead of that size, could I get the copy on hard copy plus get it on the vellum at the small size. Because then I can take and overlay one on top of another.,. Atty Spitzer - Same scale. D Comi - Same scale on vellum so I can take Pinckney and put it on top of A and B, and B and C, and D and E. and do that. Atty Perkins - Can you make that specific request of Mr. Spitzer so he can pass it on? Atty Spitzer - Does that make sense? My concern is that we can't do the big ones if we M Crosby - Just spell it out and I'll do whatever ... 0 Atty Perkins - Can we make a request that when you do these that you show the Town boundaries and the County boundaries? M Crosby - I can show County boundaries. Town boundaries, I don't know if I can do that, only because the computer program that I use doesn't.... I don't think it has that in its data base. Atty Spitzer - That's our problem is we print these out using a computer and the computer doesn't have the data base. However, if I understand what Mr. Comi has suggested, he is talking about taking a background scale model which he would be able to draw the Town boundaries on and then he can overlay them showing the Town boundaries. D Comi - I am even thinking of the fact that there is a County map that shows your Town of relatively six or eight inches in size and if you use that scale of the County map, its done by I believe JMAPCO, and use that same scale, I can simply overlay the Town and draw it, or any body could. As long as it is the same scale. Atty Spitzer - Now you've confused me. Is that the same scale you got the stuff before? D Comi - I don't know. Atty Spitzer - OK, which scale do you want it in? D Comi - What we are looking for is the ability to put the Town's boundary on ... Page 26 of 31 TB 6-1 -99 Atty Spitzer - You know in terms of six to eight inches it's going to be like one blob... Maybe what we can do is print out the 8 'A by 11 base sheet without the boundaries and send that to Henry also. He can draw in the Town lines. Notwithstanding our previous objection that you can use Town boundaries as limits on radio waves. D Comi - We will take care of giving you the list. Supv Schug - Are we through? Atty Spitzer - Adjourned right, not end. Supv Schug - Well adjourn, we still have discussion. Atty Spitzer - Till when? Supv Schug - When we get the information and have a chance to look at it, well be in touch with you and let you know. Atty Spitzer - When will you be discussing this as a board? Supv Schug - Well you're not going to have it back to us until some time the week of the 21 et. Atty Spitzer - I think we can have it back to you on the 11 If. You're getting your information to us on the 4th, we're getting our information to you on the 11th. Supt/ Schug - All that stub', can you do that Mike? OM Crosby - Ill stay up 24 hours if I have to to get it done. We'd love to move it right along. Atty Spitzer - Well bring in our little RF elves to help overnight. Supv Schug - Our next meeting is July 13. Arty Spitzer - July 13 or June 13? Why would we wait another month? Supv Schug - June 8 is our Town Board meeting. This is a special meeting for you that we did in a hurry. The next Town Board meeting is on the 131h. If things are really clear and you have a good project and we accept it as a complete application, then we can have the final hearing at the end of this month. If it's that good. Atty Spitzer - I don't know what the answer to that is. Again, I think we are mixing up completion issues with approval issues. R Tarabula - Will there be any more meetings this month? Supv Schug - Yes, the 8th, next week. R Tarabula - For us. Atty Perkins - I think that depends on how complete the information is that you furnish us and how readable it is. If you want to say this is what we want, this, this, the record is complete ... Page 27 of 31 TB 6 -1 -99 R Tarabula - Would it be possible to shoot for a meeting the 30th of June if everything is complete to the board? Supv Schug - If everything is fine. Or the other alternative is to go to Court and that will take six months to ayear just to get on the calendar. You don't want to do that. Atty Spitzer - The last time I did this with a Town it took about two weeks because we do it by TRO, but ... Supv Schug - What's TRO? Atty Spitzer - Temporary flestrai u g Order, but certainly the appeals will take that long. But we're not here to go to Court, unless we need to. There is a couple of ways we could speed this up. We could ask you to delegate the responsibility to a committee of the board to look at it and say "Yeah this looks complete enough to come back to the board" and we can meet with that group say on the 1SLh or the 16 "t and go over it with them line by line. Well come in any time that week, any time the following week and go over it with you. Since you are taking the opinion, which obviously we don't agree with, that the application is not complete you can always send us back again. It is certainly going to be readable. You can read the things. The question here doesn't seem to be readability, it seems to be what it means. days... Supv Schug - That would be up to... If you can get through all that stuff in a few Atty Spitzer - In Dryden he said he had a 48 hour turn around, in Danube, excuse me. D Comi - And again, we don't have it here. Assuming that Jim and I can come to an agreement by Friday and he knows what he's got, I get back the propagation studies, I can • within two or three days, on propagation studies, if that is the only additional information that Omnipoint is saying after this evening that they are going to be providing, and then they will consider their application complete. Supv Schug - But will we ... Atty Spitzer - How many questions are you going to ask? Ask them. Supv Schug - If we don't call it complete... He's already calling it complete. Atty Spitzer - Well you already had a public hearing which your law says can only be done on a complete application. You tell me whether it is complete. The point I am trying to make sir, is if you have questions, ask them. We are not going to just continually come back. It is not what your late provides for, it's not what anyone's law provides for. So if you have questions, I assume we're going to have them by Friday like we said. As to whether we think it is complete, we 've already given our opinion. Atty Perkins - We may have questions after we get what you are going to furnish us. Atty Spitzer - That's why we should meet as soon as possible to go through it. Atty Perkins - It's OK with me. Supv Schug - Sure, so he can make his decision. D Comi - I will get back to you within a few days early in the week after, assuming I have it in my hands on the 11111. Page 28 of 31 TB 6 =1 -99 Atty Spitzer - And you have Mike's phone number and you can call him and say "What does this mean?". So can we pick a date on the week of the 21 ill as a tentative date? D Comi - What if I call him back and say "Mike, what does this mean?" and he says "Oops, I didn't give you what you were looking for and I've got to give you a change. It's gonna take me three more days ". Do you want a meeting scheduled now before that happens? Atty Spitzer - I expect you to call him up and say we're going to cancel that meeting, but in the interim let's get a meeting scheduled to show that we're moving expeditiously. Dick is telling us that he is going to keep asking questions again and again and again. I'm just trying to shorten the period between the questions. Supv Schug - OK. Atty Spitzer - I'm not hearing that there is any end to this application process. There is just questions and questions and questions. Atty Perkins - We're trying to decide a date. If you'll be quiet long enough for us to reach a concensus on that well probably try to move you along a little bit, but we're just hearing the same stuff over and over. Supv Schug - Thursday, the 24th? Atty Spitzer - That's fine. Supv Schug III, well do that by just a committee of the board, with you. OAtty Spitzer - That's just a suggestion as a way to move it along. D Comi - Can you do it earlier in the evening? I've got to go to Cedar Rapids early the next morning. Supv Schug - We can do it during the day if you care to do that? D Comi - That would be fine. That would be much better for me. Atty Spitzer - What time? D Comi - Any time during the day so that I can get back at a reasonable time. Supv Schug - Charlie, Tom, Ron, what time can you be here? Atty Perkins - If you are going to do this as a committee you can only have two members. Cl C Hatfield - I think we should have the whole Town Board. After discussion it was decided to meet again regarding this at 10:00 a.m. on June 24, 1999 at the Town Mall. Supv Schug - Well contact you and well coordinate the meeting with you. If it needs to be held off, well talk with you. 18 Cl Beck - This will be a continuation of the public hearing. Page 29 of 31 TB 6 =1 -99 Atty Perkins - It will be a continuation and a Special Town Board meeting, so if the Board wants to take action it can. Atty Spitzer - If you are uncomfortable about one and you want to tell us to try one and tell us come back on the other, well work with you. But we can't hit a moving target. Supv Schug inquired if any of the other neighbors had any questions or concerns. Bill Dewey - Not specific to this but, how many more towers can you put up for different companies over the next ten or twenty years as telecommunications continues to increase before there is either health concerns or property values go down? My third item of concern is sooner or later all this stuff is going to be obsolete, it may not be for another 100 years, but is there any plan or anything in the paper work that says how they will eventually dismantle it or take it down. If the company goes bankrupt is going to stay there till it falls down? Supv Schug - Indicated Mr. Dewey could read the Town's law. The Town's law is covering that. That's why we had the co - location situation and that's why these gentlemen worked so hard on it. That's why we work hard on it. That's why the law was written the way it is. We have provision in the law to allow for the taking down of a tower if its abandoned. (Mr. Dewey took a copy of the law to read.) Atty Spitzer - Thank you very much. Cl Beck - Michael, you made the statement that the objective area is not covered by the tower, is not acceptable, even though it is a minute area that is close to the tower, it's in a category that is totally unacceptable. M Crosby - There is an area in my design that will result in a dropped call for a customer. (More was said but with other conversation going on, it was not possible to understand.) Public hearing adjourned at 9:15 a.m. Supv Schug inquired if there was any Town Board business that needed to be taken care of. Cl T Hatfield - When we were interviewing the candidates for an assistant for Jack Bush the question of benefits cause up with Mark Sutton and several others. Ultimately Mr. Sutton asked if it included health benefits, etc., the same as full time people get and because it w-as a condition of employment we said yes. So I guess we need to accommodate that in some formal way. Supv Schug - You should do a resolution without prejudice for other part time people. You can do that, make an exception for this temporary position. That ensures that in the future we can hire someone for a temporary position and not have to give them benefits. RESOLUTION # 133 - FULL TIME BENEFITS FOR MARK SUTTON Cl T Hatfield offered the following resolution and asked for its adoption: RESOLVED that this Town Board offer Mark Sutton the same benefits, health insurance, etc., without prejudice, in his temporary position as a full time permanent employee would receive, effective as of the date of his employment. Page 30 of 31 • 2nd CI Beck Roll call vote Cl Beck Yes Cl T Hatfield Yes Cl C Hatfield Yes TB 6 -1 -99 Cl T Hatfield - distributed draft copies of a proposed Franchise Agreement with Time Varner. Explained that it represents where they have gotten to so far. This is a first draft. He would like input from the Board by July 8, and would like to have the Time Warner representative at the July 13 Board meeting to present a final document. Mr. Comi and Mr. Monroe have agreed to read it and give us their feedback. Supv Schug - I spoke with them before the meeting and they have agreed to do it for an hourly rate, not to exceed $1,000.00. B Hollenbeck - A Youth Commission group is coming out on the 3r' to spruce up the flower beds around the Town Hall. Would it be ok if they used our account at Agway if there are any supplies they need? Supv Schug - Sure. Cl Beck - I thought that Jack did a nice job on Hunt Hill Road the other night. He handled the questions that were presented well. Supv Schug - I agree. He did a nice job. On motion made, seconded and unanimously carried, the meeting was adjourned at 9:30 p.m. Respectfiilly submitted, Bambi L. Hollenbeck Page 31 of 31