Cell tower complaints loud and clear

AMENIA — The Planning Board and the Zoning Board of Appeals (ZBA) held a joint meeting on Thursday, Dec. 1, for the public hearing regarding the application to renew the site plan, special use permit and height variance for the cell tower located on DeLavergne Hill leased by Sprint/Nextel.

Sprint/Nextel was represented by attorney Seth Mandelbaum of McCullough, Goldberger & Staudt of White Plains. Also present was David Hockey, the national zoning manager of TowerCo, a company that owns and leases telecommunications towers, including the cell tower on DeLavergne.

The tower’s history

The tower and its equipment shelter are located on a 10.5-acre parcel of land on Route 44, north of the DeLavergne curve.

The site plan, special use permit and height variance were first granted in early 2002 for a 10-year period. Sprint/Nextel has applied for a renewal of those three items for an additional 10-year period.

The Planning Board and ZBA previously held a joint meeting on Thursday, Oct. 19, to discuss several points that they wished the applicant to address before approval was granted.

Those items included determining the current necessity for the tower and/or the height variance, installing green permahedge slats onto the existing chain link fence (as was required by the original site plan approval) and installing additional landscaping to be used as screening of the tower and equipment shelter. These points were addressed during the beginning of the public hearing.

Although a Nextel engineer had previously submitted an affidavit to the boards stating that technology has not changed to eliminate the need for a 120-foot tower instead of the 70-foot towers that are allowed on the property by the current zoning, Attorney to the Town  Michael Hayes recommended during the Oct. 19 meeting that a town consultant independently verify that information.

The hearing opens

During the public hearing, Mandelbaum explained that the town’s consultant did confirm that the additional height was necessary to maintain reliable service. It was also determined that the town-owned tower on Depot Hill Road is not adequate for service for the entire area due to its lower altitude and the surrounding topography.

Mandelbaum said that TowerCo has agreed to fix the existing landscaping by replacing dead or dying plants to fill out the screening of the tower and the equipment shed from the road and the adjacent properties.

Mandelbaum said that the company would be willing to add green permahedge slats to the chain link fencing on the property, but ZBA member Leo Blackman noted that the green plastic would be more of a break in the landscape than the current state of the fence because the fence is see-through and therefore more camouflaging.

The board members subsequently agreed to remove the requirement of the permahedge, but added the requirement of additional natural screening.

Hockey said that TowerCo would consult with the town to ensure that the plants chosen for the natural screening would be robust enough to survive in the local conditions.

The public’s response

 During the public comments portion of the public hearing, one town resident spoke up against granting the renewal of the permits.

Don Rosendale, an Amenia resident whose property lies adjacent to the plot of land on which the tower sits, made several specific points opposing the renewal of the permits.

The first two points dealt with the building permit, which allegedly contains a forged signature and which was allegedly granted illegally because it fell outside of legal time limit requirements.

“The building permit,” he said, “bears an indecipherable signature. In a deposition before the federal court, Donald Smith, the code enforcement officer, said it is not his signature, and he did not sign it. If the building permit was forged, that is a crime.”

Rosendale also stated that the height variance was granted to the applicant on Jan. 14, 2002. It wasn’t until 17 months later, on June 24, 2003, that the building permit was issued.

Rosendale cited part of the Amenia Zoning Law that states, “Unless otherwise specified by the (ZBA), a decision on any appeal of request for a variance will expire if the applicant fails to obtain the necessary building permit ... within six months of the determination thereof.”

He also quoted two court cases — one from the Appellate Division in Wappingers Falls and one from a federal court — that deal with building permits granted against town zoning laws.

Rosendale said that his case regarding the legality of the building permits came before the United Stated Court of Appeals in 2007, and while the court believed that he had a case, he had not exhausted his state claims, which included bringing the matter before the town’s ZBA.

He explained that he did try to bring up the issues to the town, but was “ignored” by members of the town government, so he brought the issue back to court, where he was again turned away because his lower appeals claims had not been exhausted. He noted that he was speaking up during the pubic hearing as one way of exhausting his local claims.

Rosendale also took issue with the claim that the town’s tower cannot provide adequate service, thus creating the need for the DeLavergne tower.

He said that he receives “good Verizon coverage” at his house from the town’s cell tower.

He said that there is no evidence as to why Sprint/Nextel cannot co-locate on the town’s tower, calling the Nextel engineer’s affidavit that speaks to that concern “self-serving.”

Rosendale went on to say that signal strength studies cited in that affidavit included neither the year in which the studies were conducted nor the frequencies that were tested.

Those pieces of information are relevant because, Rosendale said, “in 2004, Nextel changed its radio frequencies to avoid interfering with emergency radio communications, and so data from 2002 [the year the permits were first granted] would be useless.”

Since the current zoning laws in the town require the applicant to prove that co-locating on an existing tower is impossible, Rosendale believes that it would not be unreasonable to require Sprint/Nextel to relocate to the town’s tower.

He also noted that the new scenic protection overlay map, which was designed to protect the innate beauty of the town, would not allow a new tower to be built in that location. “I find it rather frustrating that I cannot cut trees or build a house on that part of my land overlooking DeLavergne Hill, and yet, the biggest eyesore in town sits 100 feet from my property.”

The distance between the tower and his property was another item of contention for Rosendale. He said that the site plan shows the tower to be 152 feet from his property, which exceeds the 130-foot minimum for there to be a “safe fall zone.” But the site plan, Rosendale noted, has a scale of 1 inch to each 100 feet, which would make it difficult to calculate the difference between 152 feet and the shorter amount that he believes to be more accurate.

“An affidavit was submitted in federal court, and undisputed, that and ‘eyeball to eyeball’ reading of the distance between my property line and the tower measured by a calibrated rangefinder is less than 120 feet, and so there is no safe fall zone,” he read from his statement.

Hayes, Mandelbaum and members of the boards were quick to note that the property surveyor would have put his license on the line by giving approval on a survey with inaccurate information. Hayes said it is reasonable to rely on the survey map for accurate distances.

Rosendale’s last issue with the cell tower dealt with the screening of the tower and the equipment shelter.

“I have previously submitted pictures to this court showing that the promised ‘shrubbery’ in the direction of the road and the Murphy project is a joke, and there is absolutely no screening between the tower station and my property line,” he said.

When asked by ZBA member Kevin Cassone about why he is pursuing these issues against the cell tower, Rosendale explained that his property value has gone down and he has had two large property sales fall through because the potential buyers were not keen on the presence of the tower so close to the property.

Town responds

In response to Rosendale’s statements, Hayes explained that  Rosendale has made three lawsuits before his case was dismissed, so he no longer has the possibility to pursue these issues in court. He said that Rosendale’s issue with the lack of screening would be addressed.

The generator

Members of the board had their own issues that they wanted to address further before granting the renewal.

Planning Board member Tony Robustelli stressed that he believes the applicant should be required to install a generator on the location before approval is granted for the permit renewals.

He said that since the majority of people rely on cell phones for their communication, it is unsafe for people to go without cell phone service for an extended period of time, especially during a state of emergency like the ones caused this year due to severe weather occurrences.

He noted that since many landline users have switched to digital landline service, cell phones become the only viable phone option for the times when the electricity is knocked out.

Cassone agreed and explained how isolated the townspeople feel when they are cut off from their cell phone service, which acts as a connection to “the outside world.”

Hockey confirmed that Sprint/Nextel has generators on several locations throughout the country, but said that he does not think there is a generator on the tower on DeLavergne. He explained that the generators used by the company are large commercial-grade models with 2,000 gallon gas or propane tanks.

Several members of both the Planning Board and the ZBA agreed with Robustelli’s recommendation to make the installation of a large generator a requirement for the permit renewals.

Hayes said that it would be reasonable to make that a requirement, especially because of the current climate changes that are making severe storms and extreme weather patterns more frequent. He also said that the requirement would not be considered cost-prohibitive.

Hockey said that the ability to add a generator to the site depends on the availability of capital. He explained that Sprint/Nextel has most likely already earmarked its funds and determined which sites it wishes to add generators to in 2012.

He also explained that his position does not give him the power to require Sprint/Nextel to install a generator and noted that if Sprint/Nextel does install a generator, it would increase the rent the company pays to TowerCo.

Once it became apparent that the majority of the board members were in agreement on making the generator a requirement, Mandelbaum requested that Sprint/Nextel be given extra time to install the generator so that the company would be able to address other aspects, including amending leases and contracts and ordering the generator, which can take a long time because of back orders.

The two boards voted to adopt the requirement of the generator as a condition for the permit renewals. They gave the applicant 12 months from the date of the approval to install the generator. The applicant was also given three months from the date of the approval to confirm that the generator would be installed within the 12-month period.

If the confirmation is not given or if the generator is not installed in the granted amount of time, the renewal approvals would be revoked, Hayes said.

Other issues

Speaking about the issue she had with the application, Planning Board member Nina Peek said that the reclamation estimate is from 2002. She questioned whether those numbers were still valid and requested that those numbers be updated to include the impact of the installation of the generator.

Hockey said he would also provide an updated landscape plan that would include new plantings to be used as screening of the facility from the road and from the neighboring properties.

The Planning Board and ZBA will hold a special meeting to further discuss the permit renewals for the Sprint/Nextel cell tower on Thursday, Dec. 8, at 6 p.m. at the Amenia Town Hall. The public is welcome to attend.