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MINUTES
TOV Zoning Board of Appeals (ZBA) Special Meeting
August 19, 2024
Call to order: ZBA Chairman John Pavelock called the meeting to order at 6:28 pm with the Pledge of Allegiance.
Attendance:
ZBA Members: Amanda Hewitt, Michael Taylor, Nathan Juby, and John Pavelock. Joshua O’Kay was unable to attend.
Others: Secretary Kathy Pavelock, Liaison Mike Davis/Darrin Smith, applicant, and several residents.
Zoning/Codes Officer Reay Walker were unable to attend.
Following the call to order, Chairman Pavelock explained that the purpose of this public meeting is to learn about the new application VAR2024-02 submitted. The public will be able to speak at any future public hearings scheduled by the ZBA.
Minutes Approval:
Amanda Hewitt made a motion to approve the minutes for the April 17, 2024 ZBA Special Meeting. Seconded by Mike Taylor. No discussion. Poll Vote: Josh O’Kay – Absent, Amanda Hewitt
– Aye, John Pavelock – Aye, Mike Taylor - Aye, Nate Juby - Aye. Motion Carried.
Correspondence:
Secretary Pavelock summarized the correspondence since the last ZBA meeting including:
Prepared a letter related to Var2024-01 for the purpose of communicating the final action/decision related to this area variance. It was signed by the chairman and distributed to the Zoning/Codes Officer Reay Walker, property owner Mattthew Enwright and applicant Patrick Enwright. The Codes Officer has since issued a building permit.
Received a letter from Zoning/Codes Officer Reay Walker related to the denial of a building permit for a cell tower proposed for 2083 NYS Route 49. Cell towers are not allowed in Zone HC and the applicant is proposing to not meet setbacks for HC.
Received updated Var2024-02 application for a use variance and area variance for the proposed cell tower at 2083 NYS Route 49.
Public Hearings: None Unfinished Business:
VAR2024-01 Patrick Enwright requesting an area variance for Zoning Law Section 420 Schedule
A. Location: 1027 NYS Route 49. Zone: SR.
The ZBA stated they will keep the application open until the applicant has an approved building permit in case there are other issues requiring a variance. Since this is the first time the ZBA has met since April 17, 2024, Amanda Hewitt made a motion to close VAR2024-01. Seconded by Mike Taylor. No discussion. Poll Vote: Josh O’Kay – Absent, Amanda Hewitt – Aye, John Pavelock – Aye, Mike Taylor - Aye, Nate Juby - Aye. Motion Carried.
New Business:
VAR2024-02 Verizon Wireless (Scott Olson); 2083 NYS Route 49; Owner: Town of Vienna; 217.017-1-1; Zone Hamlet Center (HC); Use Variance (unallowed use in Zone HC) and Area Variance (not planning to meet setback of 1-1/2 times the height of the tower).
James LaValle representing the applicant and Nate Keenhan representing site acquisition provided an overview of the proposed project and the request to allow the use of a cell tower on this property in the HC zone. They are also requesting an area variance for an 80’ setback than the required set back of one and one-half times the height of the tower (240’). Highlights of the proposed plan include:
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The main purpose of this project is to fill in gaps where cell service coverage has diminished. The applicant has identified a couple of locations that meet their goals. One is the property at 2083 NYS Route 49 (titled “North Bay”) and the other is on Marsh Road (titled “Elpis Rd”). The Elpis Rd project is currently under review by the Planning Board since it is proposed to meet all Zoning Laws.
For the North Bay project, they are proposing a 160’ tower within 100’x100’ compound. The compound will have a 6’ fence with razor wire. The setback required is 240’. They are proposing an 80’ set back (33.3% of the requirement).
The ZBA asked several questions. Highlights of the questions and responses are as follows:
There is a tower currently located east of the proposed property at the Shamrock gravel pit on Route 49. Why is this tower not adequate? The towers work on a line of sight. They will investigate this tower to determine if they can co-locate. They will also investigate the McConnellsville Tower. It was pointed out that in most cases, co-location will cause the equipment to be below the tree line and ineffective for line of sight.
Why not use a larger search area rather than HC? They needed to focus on the North Bay area. There is a possibility of a third tower, titled “Camden.” This project is still in the development stage.
Asked about the Elpis Rd coverage. The Elpis Rd coverage does not overlap with the proposed tower coverage. The board asked if there could be changes to the Elpis Rd project to provide more coverage. The response was that they were too far along on that project.
The board asked about the maps provided (AD-1). Tax maps were used for these maps. A survey has been subsequently conducted. The survey will be provided to the ZBA.
The board questioned the size of the gate on C-2. The gate is large enough.
Looking at AD-1 the board asked for a radius showing the requested setback. They will provide this. The board is concerned about setbacks and safety. The applicant responded that the tower collapses on itself.
Is the tower necessary for first responders? In response, the applicant stated it was not necessary for first responders.
Has the applicant talked to the neighbors of the proposed tower? They have not gone door to door. They are expecting that the public hearing will allow neighbors to provide comments.
Correct all references to Vienna Road where it is supposed to be NYS Route 49. The proposed tower is nowhere near Vienna Road.
The board would like to see section 3 of the spiral notebook without redactions.
Has the town as owners of the property agreed to this? The applicant is currently working on a lease agreement with the town.
The board asked about the number of trees that would be cut. The response was no more than 100’ square around the tower would be cleared. The board asked that the applicant provide the canopy height.
The board asked questions on C-3. They are interested in the RF field. The response is that it is a 10th of the FCC requirements and they will provide the data.
Authorizations are blank and need to be filled in.
The ZBA went over the four proofs needed by applicants for a use variance:
Applicant cannot realize a reasonable return (competent financial evidence).
Alleged hardship is unique and does not apply to a substantial portion of zone area (neighborhood).
Use variance will not alter essential character of zone area (neighborhood).
Alleged hardship has not been self-created.
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The ZBA has a copy of the Rosenburg Decision, but in general they need more documented proof. Some of the information requested included more information on co-locations and other options. Note: The North Bay Fire department field was looked at, however it posed a risk to helicopters.
The board reviewed possible dates for the next meeting and assuming that all requested information is provided, how soon a public hearing can be scheduled. The board agreed that September 9 would be the next meeting. As soon as information is available from the applicant, the secretary will distribute it to the ZBA. Amanda Hewitt is unable to attend on September 9 and will provide her written questions/comments based on the new information prior to the meeting. Nate Juby made a motion to schedule the next ZBA meeting for September 9 at 6:30pm. Seconded by Mike Taylor. No discussion. Poll Vote: Josh O’Kay – Absent, Amanda Hewitt – Aye, John Pavelock – Aye, Mike Taylor - Aye, Nate Juby - Aye. Motion Carried.
Other:
Mike Davis commented that “co-habitation is in the works for first responders.
The ZBA discussed recommending ZBA application fee changes to the Town Council. Amanda Hewitt made a motion to recommend that the Town Council consider raising the fees for ZBA applications based on comparisons from other towns. Seconded by Mike Taylor. No discussion. Poll Vote: Josh O’Kay – Absent, Amanda Hewitt – Aye, John Pavelock – Aye, Mike Taylor - Aye, Nate Juby - Aye. Motion Carried.
Amanda Hewitt made a motion to adjourn, seconded by Nathan Juby. All in favor. Motion Carried at 7:30 pm.
Minutes Prepared by: Kathy M. Pavelock /s/ ZBA Secretary
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