Town of Olive
County of Ulster
State of New York
March 27, 2001

Minutes of a special workshop meeting of the Town Board of the Town of Olive held Tuesday, March 27, 2001, 7:00 pm at the Town Meeting Hall in Shokan, NY. The purpose of the meeting was to meet with Town Wireless Consultant Richard Comi, Attorney for the Town Peter Graham, and Planner Dan Shuster regarding the Masterpage Wireless Telecommunications application.(Cassette # 59)

Members Present: Berndt Leifeld, Supervisor
Cindy Johansen, Council Member
Helen Chase, Council Member (7:25 pm)
Bruce La Monda, Council Member
Linda Burkhardt, Council Member
Recording Secretary: Sylvia Rozzelle, Town Clerk
Others Present: Paula Minew, William Barrett, Gerard Malak, Charles "Skip" Weidner, Olive Planning Board members; Everett Cook, ZBA member; and Anne Altshuler, Conservation Advisory Council

Supervisor Leifeld stated the main reason for the meeting is for the Town Board to clear up legal questions regarding the Masterpage application. He stated the Town Board needed to address issues regarding the Zoning Ordinance requirements versus the Town's wireless law and to discuss the applicant's request for a set back waiver. 

In response to Zoning Officer John Ingram's letter (#17-01), Attorney Peter Graham issued an opinion (#18-01) regarding the height issue stating which is the more restrictive or protective law of the Town and the public shall apply. Therefore, 35 feet is the maximum height for a structure in the Town of Olive and relief may be obtained by the procedure and criterion set forth in Section 29 of the Wireless Telecommunications Law. In response to Council Member La Monda, Attorney Graham stated the most stringent is in the Zoning Law; therefore it becomes a part of the Wireless Law. Attorney Graham noted that in his opinion the Town Board is the appropriate authority to grant height relief. 

Regarding the set back issue, Council Member La Monda noted the set back variance requested in this application does not satisfy either zoning or the wireless law. He noted the applicant keeps asking for a 10 ft. set back waiver when the waiver request is actually for 132 feet. Planner Dan Shuster stated the wireless law says the tower shall be set back equal to the height of the facility or the set backs in your zoning districts-whichever is greater; therefore, the wireless law prevails. Consultant Comi stated this is not a variance; it is a request for a waiver under the wireless law and he agreed that the Town Board is the one to rule over this. Mr. Comi noted that the set back request is 10 feet from the property line and stated that Council Member La Monda is correct in that the distance of relief would be 132 feet. 

Supervisor Leifeld stated the third issue regarding the set back waiver is the applicant getting permission or a release form from the adjoining property owner, NYS DEC. Mr. Comi stated the way they normally address the set back issue is for the applicant to approach the neighbor to come up with an agreement that is satisfactory. 

Council Member Chase entered the meeting at 7:25 pm.

Mr. Comi stated he met with Fred Gerty of the NYS DEC regarding the set back issue and Mr. Gerty stated he would have his engineers look at the structural analysis as the applicant has agreed to do one of two things--either to make the entire structure 125% of the standards or make up to 10 ft. from the top 125% of the standards. Mr. Comi noted that either way the structure has been over designed. From the issue of visual the consultant noted that Mr. Gerty did not issue any concerns but did express a concern about ice falling onto someone on state land. He stated the offer from the applicant was to include the state in the insurance. Mr. Comi noted that if the set back waiver is not granted there is no way to put a tower that will be above the tree line on that property. 

Council Member La Monda stated the set back issue has to resolved between the State of New York and the applicant and until that issue is resolved he doesn't see where we go. Mr. Comi agreed that if the state has a problem with the set back they should tell the board. He stated the question is whether or not the board will get an answer. He stated that based on federal law the Town could not sit on this issue. 

Supervisor Leifeld reintroduced correspondence #13-01 of 2/15/01 from Mr. Gerty of the NYS DEC stating "the waiver should not be granted, and that the applicant be held to the town standards in the installation this tower." And introduced correspondence #19-01 of 3/13/01 from Mr. Gerty stating "the town has the final decision, but that the standards in the town's ordinance should be followed". Mr. Comi stated the meeting with Mr. Gerty was held after the February 15th letter. He stated Mr. Gerty would not give any additional comments but he did agree to have the engineers take a look at the structural design. Council Member Chase asked if they met with Mr. Gerty and his successor since Mr. Gerty retired on March 22nd. Mr. Comi stated they met only with Mr. Gerty and the best thing now is to go back and talk to his successor. Mr. Comi agreed that something more or something written needs to be received from the state regarding the set back issue. 

In response to questions from Council Member La Monda regarding a reasonable length of time, Attorney Graham stated if the Town does not get a response from the DEC then the Town Board should act that it can not be determined how the adjoining landowner feels and move on with the issue. Mr. Graham stated the Town Board should then base their decision on the applicant's meeting the clear and convincing evidence standard. Council Member Johansen stated the Town Board can't take a stand for the state if they can't take one for themselves. Attorney Graham stated the Town Board has to act reasonably under all circumstances and the applicant cannot force the board to move any faster than necessary as long as the board is acting in good faith and has a reason for delay such as waiting to hear a response. 
Mr. Comi stated this is a technology that must be above the tree line and the trees are 80 feet at that site, the antennae are 20 ft. whip antennae, the facility requires 10 ft. in between antennae, bringing the tower to 120 ft., the base is 2 ft., so what is in front of the Town Board is a 142 ft. structure. He stated this is the minimum height necessary. Mr. Comi stated that the cellular companies could not use this facility for access to Route 28, it's too far away, so the town will probably not see cellular on this facility. He stated the applicant will get additional coverage beyond this community but the height issue is to address the Town of Olive and only the Town of Olive. He stated if the applicant went any less in height it would not cover the community. In response to questions from Council Member La Monda regarding what this facility will do, Mr. Comi stated the facility will provide Masterpage with a paging service essentially within this community noting the applicant will obviously get some overlap in other communities. He stated this tower has nothing to do with cellular and it will be strictly for Masterpage service unless they come back with another applicant.

Council Member Chase stated under the regulations the town does not have to provide service to the entire town, noting it is preferred, but is not required. She noted there are some pockets that 10 feet higher might still not reach but 10 feet lower would make the tower less obtrusive. She stated it might be to the town's benefit to request a lower tower and not cover certain pockets of the town. Mr. Comi stated that depending on where the pockets are he might agree with her; however, in this particular case if the applicant went 10 feet less then the antenna are under the tree line at 82 feet and you would be blocking close to half the transmit antennae. Council Member Chase stated that would be on three sides of the lot and that the one side is open to most of the Town. Mr. Comi stated that would be creating significant holes if they went 10 feet less, but he could go back to the applicant and request them do another study at 10 feet less.

Dan Shuster stated it would be very useful to have the comparable coverage diagrams for a number of lower heights so the board and public can understand what the different coverages are based on different heights. He stated you can see the ground so why do you need the facility higher. Mr. Comi stated the information is in the application and the information with a lesser height has been provided already. Mr. Shuster stated that seeing this information would be helpful in assisting the Town Board in making a decision. 

Council Member La Monda stated the Town Board should be fair with Masterpage in that every time we ask them for another study they have to pay someone to do this; however, until the applicant and the Town Board can get past these serious issues then the board shouldn't ask them to spend more money. Supervisor Leifeld stated that has been his position from the very beginning.

Mr. Shuster stated the height relief is a significant one and the need for that relief would be demonstrated by showing what reduced height would have on the coverage. He stated that language in the zoning law states that relief is when it is demonstrated to be necessary and not have an adverse effect and the only way the Town Board will know that is to look at those alternatives. Mr. Comi stated the applicant provided the information at a lesser height and a lesser height will not provide coverage within all of the community noting it does start showing significant gaps. Relative to the height issue, Mr. Comi stated he feels the Town Board should address in the aesthetics and environmental standpoint that the applicant has the minimum structure necessary. He stated he had forgotten that the applicant had provided that information but they have provided that. Council Member Chase asked why the 2 ft. base of the tower is not a part of the facility. Mr. Comi responded it is a part of the facility. Council Member Chase asked then why is the facility 142 ft. instead of 140 ft. which is the maximum height. Mr. Comi stated the law allows 140 ft. without a waiver but the law says more stringently it has to be the minimum height necessary to provide the coverage. Council Member Chase asked if the 2 ft. makes that much difference. Mr. Comi stated the 2 ft. makes no difference, the whole structure will be 142 ft. from the bottom of the ground. He stated the 2 ft. less would be totally insignificant. Council Member Chase stated it is interesting the applicant came in at 142 ft. when the law clearly says 140 ft. 

Supervisor Leifeld stated that getting something from the state either for or against the set back waiver is something Masterpage should address as the board could not move further on that issue at this point. Supervisor Leifeld stated another issue of proper right of way or access to the site was received this morning. He introduced correspondence #20-01 from Attorney Dale Hughes representing his clients that are adjoining property owners to the proposed wireless facility. Mr. Hughes notes that the "proposed access road to the proposed tower site crosses a significant portion of property owned by my client. There does not appear to be any deeded right by the applicant to use my clients' property for such access purposes. Furthermore, my clients will not consent to any such access for the purpose of building a tower." Attorney Graham agreed with Supervisor Leifeld that this issue, whether it has merit or doesn't have merit, must be addressed. Attorney Graham stated if the applicant doesn't have access to the site then the issue is certainly done. 

Council Member La Monda moved to request proof of access to the property and for any signed agreements be sent to Attorney Graham for his review. Council Member Chase stated she asked at an earlier meeting, though it did not appear in the minutes, if the applicant owned the access to the site and the answer was "yes". Attorney Graham stated that the applicant could have legal access; however, now it is being disputed for the first time and before the board can go any further this must be resolved between the property owner and the applicant. Council Member Burkhardt seconded the motion. Supervisor Leifeld stated he would like to change Council Member La Monda's motion a bit and moved that Attorney Graham send a letter to the applicants noting two points that have to be resolved before taking any further action--the set back issue with NY State and the right of way issue with the neighbor. Council Member Johansen seconded the motion and it was passed unanimously. 

Planning Board Member Gerard Malak stated when the land was subdivided before the Planning Board for the City of New York purchase, the right of way was cleared. In response to Council Member La Monda's question on who cleared the right of way, Mr. Malak responded the Planning Board. Council Member La Monda asked if the Planning Board saw and read the right of way. He stated the Planning Board has the paperwork on the right of way when the City of New York bought the land. 

Mr. Comi stated that probably the right of way issue is being challenged strictly for a monetary reason. Council Member La Monda stated the reason doesn't matter, the issue is whether they have good access or don't have good access. Mr. Comi stated they may have access for certain things and not access for a wireless site but agreed it must be reviewed and looked at. Attorney Graham confirmed with the Town Board that he would be writing and sending a letter regarding these issues to the applicant and their attorney. 

Council Member Johansen asked if everyone says it's fine then is the Town Board ready to make a decision on this issue. Council Member La Monda stated he is ready to make a decision but reiterated that he has said all along that if the adjoining property owner has no objection to a tower being close to their property line then that is their business, not his business. However, if the property owner has an objection to it then it is his business as a board member.

The Town Board reviewed and addressed Mr. Shuster's letter (#22-01) and concerns. Mr. Comi stated that a lesser height tower showing a significant loss in coverage is already in their application. Mr. Shuster stated the Town Board should have something they can refer to where the applicant shows that they can only serve what and why. 

Supervisor Leifeld introduced Town of Woodstock Planning Board correspondence #21-01 stating the "site appears to be extremely visible from one of our area's main access corridors to the Catskill Park." 

Mr. Shuster presented the visual analysis from the January 13th balloon testing. He noted the simulations will show what various alternatives the tower will look like from different locations with this information necessary to come to a decision in the SEQR determination. 

Supervisor Leifeld stated this information will also be presented when the public hearing is held. 

All business pertinent having been discussed the Town Board adjourned on a Leifeld/La Monda motion at 8:50 pm.

Sylvia Rozzelle, Town Clerk