Town of Olive
County of Ulster
State of New York
June 6, 2000

Minutes of a public hearing of the Town Board of the Town of Olive held Tuesday, June 6, 2000, 7:30 pm at the Town Meeting Hall in Shokan, NY. The purpose of the public hearing as read in the legal notice was to hear all in favor of or those opposed to proposed Local Law #3 of 2000 A Local Law Regulating the Siting of Wireless Telecommunications Facilities.(Cassette Tape #51 & #52)

Members Present:

Supervisor Leifeld introduced Richard Comi, consultant and main architect on this law, and Peter Graham, Attorney for the Town. Supervisor Leifeld turned the meeting over to consultant Comi who presented information to the approximately ten people present.

Dick Comi stated he has met with the Town Board and has prepared this law to control the siting location of telecommunications facilities in Olive. He stated his firm consults nationwide only for municipalities. He further noted that all of his employees come from the cellular industry.

Mr. Zach Sklar asked if this is a boilerplate law given to a lot of governments. Mr. Comi said the general document is used in approximately 100 towns but in each community the law is revised to meet the community's specific needs. He stated that some municipalities want to utilize town property and some don't, some towns want co-locations for less towers and some want shorter towers. He stated it is a general ordinance but modifications are made to the draft. In response to Mr. Sklar, Mr. Comi noted that Olive opted to go with fewer towers with more co-locations. He also stated that Olive decided they are interested in siting wireless facilities on Town property and that sitings should be on tall structures, if possible. He stated that visual and environmental impact generated a great deal of concern and care was taken to see that environmental issues would be looked at very closely. He noted that Olive left the requirement of a public hearing for locations on a tall structure in this law. Mr. Sklar asked about alternatives to towers. Mr. Comi noted that an outcropping of rock on a hillside, a silo, or any number of ways can be utilized in siting wireless facilities.

Gary Alexander requested knowing when and how often are emission standards monitored. Mr. Comi noted this normally is done yearly.

Mrs. Sklar stated she is interested in knowing what towers Mr. Comi is erecting and how tall are the ones he is introducing. Mr. Comi stated his company is not putting any towers in. Mr. Comi stated an applicant must prove the minimum height necessary for service within the community. He stated that he will be reviewing the applications and the Town Board will have the final say in accepting the application. Mr. Sklar asked why the town needs Mr. Comi to review the application. Mr. Comi stated the law is just the tip of the iceberg. He stated his review would cost the community nothing since the applicant will be paying for the cost of professional services from those who understand the telecommunications business and technology. In response to Mr. Sklar's concerns, Mr. Comi stated the Town has contracted with him and reiterated he works for the municipality. He stated that any of the one hundred communities in the state would confirm that his firm is zealous advocates for the municipality. He stated it is a benefit to the town to have someone who understands the technological issue. Mr. Sklar stated he wants competition and would like to know if the Town Board checked with the other towns to see what they implemented. Supervisor Leifeld stated he spoke with some of the Towns and his concerns were satisfied. He stated that two other companies had been contacted and the Town Board approved the hiring of Mr. Comi's services. He further noted Mr. Comi has expertise in the field.

Sherret Chase stated the fees described in the ordinance are very high and wonders if they are comparable fees for other things in the Town. He wanted to know the justification for these higher fees. Mr. Comi stated the $5,000.00 application fee goes to the Town and the $7,500.00 escrow fee pays for the consultants. He stated these fees may be different than building fees but in leiu of the industry standards they are totally within line.

Sherret Chase asked what the limitation is for the consultant. Mr. Comi stated if the process costs $5,000.00 then the carrier is refunded the difference from the $7,500.00 escrow, however, the $5,000.00 application fee goes to the Town. Sherret Chase asked what other responses from the development would the town get, such as a tax base increase, and will the Town realize revenues from this. Supervisor Leifeld stated the Assessor will follow state guidelines on valuing property improvements.

Sherret Chase asked if any applications have been received. Mr. Comi said that no one has come specifically to the Town to request wireless service in the Town.

Sherret Chase asked if emergency services are exempt from this. Mr. Comi stated that space is reserved for them.

Anne Altshuler asked about conflict with other laws and read about lighting and asked where the weight will come from. Mr. Comi stated the only issue relative is that any structure over 200 feet must be lighted. He stated it would be extremely difficult for anyone to have a tower in this town over 200 feet.

Jim Ulrich asked Mr. Comi to explain the term "special use permit", which is also used in the Zoning Ordinance. He asked where does it stand in relation to other grants in the law. Why is this a "special use permit" and is it exactly the same? Mr. Comi stated it is not the same as any special use process in zoning. He stated this document is the one and only document for the siting of wireless facilities. He stated the applicant must adhere to everything in this document; there are no variances. Mr. Comi stated we could have called it anything we wanted to call it. Jim Ulrich asked since it is used in this document, does that influence the meaning of the term in our zoning ordinance? Mr. Comi responded, no. Jim Ulrich asked if the Town can deny a permit. Mr. Comi stated if the Town is to deny it, it must be based on documentation. The easiest reason to deny the application on is that the town doesn't need the service.

Sherret Chase asked if a whole new permitting process is required for co-locations. Mr. Comi responded, yes; however, they would request certain relief and wavers, plus the fees are less--$2,000.00.

Mrs. Sklar asked if consideration was given to less obtrusive towers. Mr. Comi stated stealth technology such as locations on tall church steeples, tall flag poles, or creating the appearance of a tree could be used. However, with co-locations sticking up above the tree line and no movement this could be more obtrusive. He stated this law is very adamant about aesthetics and all of these issues must be handled as the application is received.

Mr. Sklar asked if he has surveyed our Town about existing sites. Mr. Comi stated the different kinds of technology require different types of site. He stated the applicant must provide a list of any and all structures within four miles of the proposed site that could be alternatives for wireless placement. He stated he would rely on our Zoning Officer during the pre-application process. He noted the federal government states that emission standards must meet FCC standards and certifications are required. He further noted his company will have consultants to check these certifications.

Gary Alexander stated the law says the carrier will be responsible for checking emission standards. Mr. Comi stated in section 6F #21, the carrier will do it and the consultants will also check them.

Sherret Chase asked how and why the Town would determine if a person is an acceptable engineer. Mr. Comi stated that on "rf" emissions they will go as far as the law will allow to protect the community. Sherret Chase questioned who would not be acceptable to the Town. Mr. Comi stated it is only on the emissions issue that the statement is in there.

Mr. Sklar noted that Supervisor Leifeld stated the town hoped to have only one tower. He stated that Mr. Comi is assuming that ambient tree height is 80 feet and they need 10 feet in between each co-location. He stated if an applicant is going to build a tower and can justify they need more then they could.

Sherret Chase asked if it wouldn't be better to have lesser towers that are not as high.

Mr. Comi stated that all wireless services are different and that's why once you put the law into place, you hand it over to a professional to handle it. He stated that legal interpretation is necessary and he will see that everything is done within the federal law.

Jay Braman asked what part of Town is covered now. Mr. Comi stated he is not aware but his cell phone does not work here. Jay Braman stated that not all residents in town can even get cable because it's not cost effective; so, are there really companies waiting to get in here. Mr. Comi responded that probably two to five companies could come in with applications within the next 6 to 24 months.

Mr. Sklar stated he is confused about tree height. He asked if Mr. Comi anticipates someone putting something on the ridgelines. Mr. Comi asked how far from Route 28, which is the gap to fill in for mobile phones, were the ridgelines. Being approximately 3 miles away, Mr. Comi stated they would not want to use ridgelines due to the distance encountered from as Route 28, which is their primary target.

Mr. Sklar stated there is a part of town not along Route 28. Mr. Comi stated he would assume there would be a company who would want to build there depending on the volume and depending on coverage already being received from adjoining towns.

Jay Braman asked if a company comes to erect a tower to provide service for another municipality, could the town deny that? Mr. Comi stated that the Town of Olive could only legislate within their community. He stated you cannot zone them out, you must allow them in your community but you do not have to approve them to serve outside of Olive.

Jim Ulrich stated the town could actually have the authority to dictate where wireless facilities are located. Mr. Comi stated the town, within reason, could ask them to look at other sites.

Sherret Chase asked the definition of "commercial impracticability". Mr. Comi stated it basically means the company cannot simply say they can't do it because it costs too much. He stated this was removed as a definition but it has been used throughout the document. It is to say to the carriers, don't tell me it's going to cost more to go somewhere else.

Anne Altshuler asked about discrimination among applicants. If more than one applicant comes in at one time, how does the town choose them and what criteria is used to select them. Mr. Comi stated when an applicant has completed their application then his company will provide a recommendation in writing to the Town Board and a public hearing will be scheduled. From the standpoint of which comes first, once a permit for a facility has been issued they will then use co-location.

Mr. Sklar asked if there is anything in the law to allow the town to build a tower where we want it. He stated there are different kinds of technology that would require the town to know where to build for each type of service. Mr. Comi stated this document is not a tower law; it is a wireless service law. Mr. Sklar asked if we have the right to decide who builds that facility. Mr. Comi responded no, you cannot tell an applicant who they can hire as a subcontractor. He stated you can say how you want to regulate where your service goes and stress minimizing aethestics, encourage placement of utilities underground, and request screening the base of facility, but you can't tell them who they must have to build it. Mr. Comi stated that someone just can't come in and build a tower without a carrier.

Jim Ulrich asked where it says in the proposed law that the town will use the services of an independent consultant. Mr. Comi stated as per the contract with the Town, his company would review all applications within three years.

Sherret Chase asked Mr. Comi if he works for any wireless companies. Mr. Comi stated, absolutely not. He stated they work independently and require that any of their engineers not be involved with cellular telecommunications companies.

Jim Ulrich said that as people come and go, new technology develops, and new guys come in, the Town might decide not to hire outside experts. Mr. Sklar says he still hasn't understood why we have only one consultant.

Supervisor Leifeld stated that years ago with major development going on the Planning Board stated they didn't have the expertise to handle proper reviews because the Town was progressing at such a rapid pace. He noted that quite frankly he doesn't know a thing about wireless technology nor does anyone else who volunteers or is elected to this position. He stated you don't come off the farm, get elected, and become a genius. He stated the Town Board took this route in an effort to obtain the right advice and not repeat previous mistakes. He stated he's not knocking the Planning Board but to set there and deal with the Bell Atlantic and their experts would take some expertise on our part.

Council Member La Monda stated that for subdivision applications the town has a surveyor and engineer on the Planning Board; however, there is no member well versed in the legalities of wireless telecommunications facilities.

Supervisor Leifeld stated the town can't expect part time volunteers to know all this technical information; therefore, we have to rely on the experts and, hopefully, we've made the right choice.

Mr. Sklar stated he doesn't understand why we have to be tied to one consultant.

Attorney Peter Graham stated that we also have other town laws and SEQR reviews which give us the authority to engage other individuals under these laws. Jim Ulrich stated that SEQR does allow this but doesn't require anything noting that the town may not necessarily do that.

Attorney Peter Graham stated the draft law has been sent to the Ulster County Planning Board for their input and feels that their review will be extensive.

Sherret Chase stated the town has a zoning code which limits structures to 35 feet and asked what enables this document to allow anything above 35 feet. Mr. Comi stated this is a line of sight technology so it has to be above the tree line and federal law says you must allow them in your community.

Anne Altshuler stated that Europe has more mobile phones and asked how Europeans have handled siting of towers. Mr. Comi stated they are handling it very poorly. He stated you want to minimize the number of sites, you do not want a pincushion effect.

Rich Hochman stated that the site plan review is going to be reserved for the Town Board or is it the intent to run this by the Planning Board. Mr. Comi stated the Town Board has the right to ask other boards to issue their non-binding opinions.

Bob Wilkins asked if he came in with an application what would the process be. Mr. Comi stated there would be a pre-application meeting, a visit to the site with the Code Enforcement Officer, a review of the application, a public hearing held, and a recommendation made to the Town Board with the Town Board acting on the application.

Jim Ulrich stated that he senses from things said that there is opposition to this law and stated the rule of reason really applies. He stated if there is a conflict between the town and a service provider and if they take us to court, he's concerned about the language in the ordinance. He stated the purpose of legislative intent stated is inconsistent with our land use policy. He stated it doesn't say much about aesthetics and there is not one place in the ordinance where the purpose is specifically clear. Attorney Graham pointed out page 17. Jim Ulrich stated in cases of lawsuits clarity of the ordinance should be there. He stated there is nothing in this document that says this is specific to aesthetic qualities and visual protection of our town.

Mr. Comi stated that through the application process these things can be evaluated since at one location they might be reasonable; however, at another location it may be totally different. Jim Ulrich stated we should make it the general purpose and legislative intent to preserve aesthetic value of the Town and with a great specificity in relative terms to the Town of Olive.

Rich Hochman stated he's read the Town Zoning Ordinance more than once and it is not always clear, but that is for a reason noting that when you are specific then you are tied to those specifics.

Mr. Comi stated his object is to provide an ordinance that doesn't have to go to court.

Bruce Kanvin stated that this law is 26 pages. He stated he has attended many meetings, has seen five page laws and 40 page laws. He stated the Town is doing the best it can do with our part time Town Board to hire consultants to use their knowledge. He stated this law can be amended but if this law isn't passed then we're going to be in the situation we don't want to be in. This is not a perfect world but he urged the Town Board to pass this law or we will be subject to abuse from carriers. He stated he wouldn't want to see a tower put on our mountain views just as he wouldn't want to see areas clear cut for homes to be erected, but that has already happened.

Supervisor Leifeld stated this ordinance favors a tower on town property and we have talked about the transfer station site, but it might not service the western corridor of Route 28, though it may be feasible.

In response to questions, Mr. Comi stated the Town would be better off leasing the town property rather than getting into site management. He stated the town could rent and also receive an assessment on the structure.

Supervisor Leifeld stated that the boilerplate aspect of this proposed law was brought up by Council Member Chase. He stated they've had heated meetings and heated moments, but they've hung in there a long time to bring this proposed law to public hearing.

All persons present having been heard the Town Board adjourned the public hearing at 9:50 pm on a Leifeld/La Monda motion.


Sylvia Rozzelle