Scanned Text of the Certified Decision in Case Number 98-40 (Nextel/WFAS) as filed with and date-stamped by the Town Clerk on Friday, April 2, 1999:
Certification of Decision
of
Zoning Board of Appeals
of
the Town of Greenburgh
For the meeting held at Town Hall, Town of Greenburgh, on the 25th Day of March, 1999.
MEMBERS PRESENT: Mr. Steven Belasco, Mr. Malcolm Baumgarten, Mr. Francis X. Sheehan, Mrs. Eve Bunting-Smith, Mr. Laurence J. Doyle, Mr. Rohan Harrison
MEMBERS ABSENT: -0-
NAME AND ADDRESS OF APPLICANT:
Nextel of New York, Inc., on behalf of: Westchester Radio, LLC
1 N. Broadway 365 Secor Road
White Plains, NY 10601 Hartsdale, New York 11530
PROPERTY LOCATION: 365 Secor Road, Hartsdale, New York 10530
VOLUME: 8 SHEET: 4 PARCEL: 10
PRESENT ZONING: R-7.5
NEWSPAPER AND PUBLICATION DATE: "Journal News", November 2,1998
RELIEF APPLIED FOR: A Special Permit to permit a personal wireless service facility on an existing non-conforming radio tower; area variances to increase the maximum height of antennas from 12 ft (permitted) to 125 ft (proposed) and to increase the number of non-conforming antennas on a lot from 3 (permitted) (21 existing) to 33 (proposed); and a use variance to permit 12 proposed antennas to be co-located on such non-conforming site and tower, under Sections 285-37(A) (2)(b), 9, 11 & 12 of the Zoning Ordinance. In the alternative, Applicant appeals form the determination of the Building Inspector that the above use and area variances are required.
ON MOTION DULY MADE BY: Steven Belasco
AND SECONDED BY:
Laurence J. Doyle
RESOLVED: That the Board DENIES the application in Case No. 98-40 for a Special Permit to permit a personal wireless service facility to be erected on an existing radio tower, area variances to increase the maximum height of an antenna from 12 ft. to 125 ft and to increase the number of antennas on a lot from 3 (permitted) (21 existing) to 33; a use variance to permit such antennas to be installed and co-located on the existing nonconforming tower and site; and the appeal from the determination of the Building Inspector that the above variances are required.
THE BOARD MADE THE FOLLOWING FINDINGS:
See Motion and Findings, attached.
VOTING AYE: Mr. Steven Belasco, Mrs. Eve Bunting-Smith, Mr. Laurence J. Doyle, Mr. Francis X. Sheehan, Mr. Rohan Harrison.
ABSTAINING: -0-
OPPOSED: Mr. Malcolm Baumgarten
THE ATTACHED MOTION AND FINDINGS FOLLOW:
DECISION
ZBA CASE NO. 98-40
WESTCHESTER RADIO, LLC
MOTION
I hereby move that the Zoning Board DENY the application in Case No. 98-40 for a special permit to permit a personal wireless service facility to be erected on an existing radio tower; area variances to increase the maximum height of an antenna from 12' to 125' and to increase the number of antennas on a lot from three (permitted) (21 existing) to 33; a use variance to permit such antennas to be installed and co-located on the existing non-conforming tower and site; and the appeal from the determination of the Building Inspector that the above variances are required.
Findings
Applicant has applied for a special permit and area and use variances to install 12 antennas on the existing non-conforming 450 ft. WFAS tower and construct an equipment shelter on the site, which already has 21 existing antennas. In the alternative, applicant appeals the determination of the Building Inspector that it requires the previously mentioned variances.
To begin with, our review of this application is governed by considerations which are different from those which would guide our review of applications seeking similar relief by other applicants. Because applicant provides telecommunications services, it is considered a public utility under New York State law and is further governed by the Federal Telecommunications Act of 1996 ("TCA"), which preempts our consideration of many factors which we usually include in our review of similar applications, such as the health impacts of the proposed variances and special permit. The Telecommunications Act also limits our ability to deny an application where doing so would "prohibit or have the effect of prohibiting the provision of personal wireless services in a municipality. Critical to our determination, however, is what the TCA does not preempt. Congress, in enacting the TCA, specifically provided that the Act does not "limit or affect the authority of a ... local government ... over decisions regarding the placement ... of personal wireless services facilities," so long as any such decision does not, as stated previously, "have the effect of prohibiting the provision of" such services. More specifically, the Conference Report to the TCA states that it was intended to "prevent Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters except in limited circumstances. ..."
Thus, pursuant to the Telecommunications Act and Town law, we
are faced with two issues:
(1) Is the site selected by the applicant acceptable under the Town's law with respect to
placement in the community?; and,
(2) If the site selected is not acceptable, is there a more acceptable alternative site which would enable a wireless service provider to provide adequate coverage to the area? (If there are no acceptable alternative sites, denial of a selected site could effectively prohibit the provision of services ... a result which would be unacceptable under the TCA).
In this case, our decision has been somewhat complicated by the fact that the Town Board has recently enacted amendments to the Antenna Ordinance which could impact on our site selection criteria. Although we are advised that such amendments do not technically become effective until 30 days after they are enacted, and therefore are not technically effective yet, as a practical matter the application herein is subject to site plan approval and subsequent review of the application for a building permit. Thus, there is no question but that the amendments will be effective long before any building permit can be issued for the antennas sought herein. In light of this fact, we wrote to the applicant's counsel last week, offering to reopen the hearing to permit the applicant to advise us if, or how, the new amendments would impact on its application. Applicant has responded by contending that we are bound by the "old" law because the Town has allegedly delayed its consideration of this application. Although for the reasons we will discuss in a minute our decision would be the same whether we apply the existing law or the law as amended, we do want to briefly address the applicant's contention that we are bound by the "old" law "due to the previous processing delays.": We, the Zoning Board, are an independent Board of the Town. We are not institutionally involved with any application until a complete application has been filed with our secretary, which, in this case, was not until October 15, 1998, the filing deadline for placement of an application on the agenda for our November 1998 meeting. Thereafter, at least until February 1999, we reviewed this matter in its proper order and in the same manner with which we review any other application, in accordance with the Conference Report to the TCA, which provides: "If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decisions." Nevertheless, in January 1999, the Federal Court ordered us to have up to three special meetings in four nights devoted solely to this application. Not only was this contrary to the TCA, but the procedure was, we believe, inherently unfair, since we had to receive and respond to new information overnight without having the usual benefit of transcripts or adequate time to prepare. Indeed, tonight's meeting is the first meeting we have had since receipt of all the transcripts, and, because under State law we are required to render a decision within 62 days after the close of the hearing, we are unable to follow our usual procedure of conducting a straw vote at one meeting and then having a month to prepare a formal decision for announcement at the following meeting. We will do the best we can, while fully complying with the Federal Court Order.
Going back to the two issues before us, the first question we must answer is whether the site selected by the applicant is acceptable under the Town's zoning ordinance as to its placement. In determining this matter, we are guided by the Town's Antenna Law, set forth in §285-37 of the Zoning Ordinance. Under this law, there are three type of sites: as of right; those requiring special permits; and sites which, if there are acceptable alternative sites, are prohibited. In our opinion, the WFAS site is prohibited. Not only is the site situated in a residential zone and surrounded on three sides by residences, but the site and tower are non-conforming because there are already 21 other antennas on the site and the tower is not free-standing. Thus, in addition to requiring a special permit, the Building Inspector has determined, and we agree, that the site would require not only area variances as to height and number of antennas, but also a use variance to co-locate its antennas on a nonconforming site and tower already servicing other antenna users. We therefore deny Applicant's appeal from the decision of the Building Inspector that area and use variances are required.
This is not dispositive of the issue, however, because if there are no alternatives which could provide coverage in areas not presently "covered" by the provider, we could be required to approve this site, even if otherwise prohibited, because not to permit placement anywhere would result in a prohibition of such services, a result which would be contrary to the TCA.
In this matter, however, we believe that an adequate alternative site has been identified, which, although not presently as of right, is less objectionable, under both the existing law and the new amendments, than the WFAS site. This alternative is the K-45 Con Edison Tower. We note that Con Edison has stated in writing that this tower (K-45) has been reserved for use by the applicant. Furthermore, it has been testified that it is the policy of Con Edison not to permit any of its transmission towers to be used by more than one wireless service provider, thereby avoiding or minimizing the potential for creating "antenna farms," of the sort exemplified by the WFAS site, requiring variances for the number of antennas on a given site. Although the K-45 tower is within 350' of a public park, and is located in the same Critical Environmental Area as the WFAS tower, it is located at a lower elevation therein and is better screened than is the WFAS site. Moreover, the K-45 tower does not require either the number or height variances required by the WFAS Tower, nor does it require a use variance. In addition, although the Con Edison Tower is close to some residences, it is not almost encircled by 17 residences, as is the WFAS site. Although it is true that one of the objectives of the antenna law is to protect residences and parks, another key objective of the law is to avoid, if possible, so-called "antenna farms", especially on a tower which we find to be of questionable stability, which is virtually surrounded by residences, and which is located at the highest elevation within a Critical Environmental Area, Hilltop Preservation Zone.
Moreover, we find that the Con Edison Tower would provide coverage to a substantially equal area required by the applicant, albeit in a slightly different location than desired. In this regard, the applicant bears the burden under the Telecommunications Act and the Antenna Law to establish that it has a gap in coverage which requires one or more additional antennas to fill. Unfortunately, as this application has amply demonstrated, there are no objective standards for evaluating quality of service. The FCC and TCA do not require optimal service, nor do they mandate land-line quality reception. The applicant has submitted maps purporting to show gaps in coverage within the Town; however, these maps were created using computer models based upon a self-imposed signal strength standard which is not reflected in any law. Moreover, these coverage maps were controverted by graphic evidence that superior service presently exists in areas shown as having no coverage on the maps. In response, Applicant's expert conceded that under certain circumstances and at certain times it is always possible for a call to go through, even in areas shown as not having service on its coverage maps. Tellingly, although applicant claims that its maps were confirmed by drive tests, it did not see fit to provide such drive test data to the Board, even though the subject was raised at each of the three hearings in February.
However, even if we were to accept the applicant's claims that a coverage gap or gaps presently exist, the applicant's expert has conceded that the WFAS site would not, by itself, fill all gaps within the Town; that other sites will be needed. Although applicant claims that WFAS would give the best coverage to the west of the Town, its experts conceded that gaps would still exist to the east of the Town, where the environmentally sensitive Ridge Road County Park and Gaisman Estate (which is being purchased jointly by the Town, County and State for preservation as a passive park) are located. At the same time, applicant's expert conceded that the alternative K-45 site would provide coverage to these sensitive areas (which the WFAS site would NOT cover), but contended that K-45 would not provide as good coverage to the more commercialized 9A corridor in the west of the Town. Given the fact that the applicant will need additional sites no matter which site is ultimately used, and that the applicant provided no information about how coverage from the other needed sites may impact the WFAS location, the applicant has not established that adequate coverage can only be provided by the WFAS site. Indeed, Applicant stated several times during the hearings that one of the principal reasons it selected the WFAS site is that it has never erected a tower or monopole in this community, a statement which could be interpreted to mean that its primary concern in looking for a site was cost, rather than coverage, especially in view of that fact that it has conceded that it will be requiring additional sites no matter where these antennas are ultimately sited. We therefore find that, both aesthetically and under the existing law, the antennas requested by Applicant should be placed on Tower K-45, which would provide coverage to the environmentally sensitive areas previously mentioned.
When we apply these findings to the criteria required by law for the relief requested, we further find:
A. Special Permit:
Because a more acceptable site exists which provides adequate coverage, the WFAS site is not required to provide adequate coverage in an area of the Town which currently has inadequate coverage. Moreover, the WFAS site does not provide the minimum height and aesthetic intrusion to provide such needed coverage, especially when compared with the identified alternative site.
B. Area Variances:
1) Because of the provisions of the TCA prohibiting discrimination between providers of functionally equivalent telecommunications services, if we were to grant the variances requested herein we might be required to grant similar relief to other providers to use the WFAS site -- a site which is already non-conforming with respect to the number, height and type of facilities -- and which is situated in residential area virtually encircled by single family residences. Thus, granting the relief requested herein would increase the nonconformity of the site and engender an adverse impact on the character of this residential neighborhood.
2) The variances requested, to increase the number of antennas from 3 to 33, and to increase the permitted height of such antennas from 12 ft. to 125 ft., are substantial by any definition of the term;
3) The need for the area variances requested can be avoided by siting the antennas on Tower K-45, which does not require these area variances;
4) For the reasons stated above, and the fact that the WFAS site is located at the highest elevation in the Hilltop Preservation Zone, we find that the requested relief will engender adverse impacts on the physical and environmental conditions in the area; and
5) It is clear that the applicant's need for the variances requested is self-created in that it could have chosen to site its antennas on the K-45 Tower, which does not require the area variances requested, and, further, its total intransigence in refusing to even consider placing its antennas thereon
C. Use Variance:
Although as a public utility applicant need not satisfy the usual use variance criteria under zoning law, even under the relaxed standard applicable to such utilities, the applicant must show that the site selected is a "public necessity" which is "required to render safe and adequate service." Given the existence of the alternate site and questionable "gap" in coverage, Applicant has not established that it requires the WFAS site to provide adequate coverage in areas not presently receiving such coverage. Moreover, were we to grant permission to use the WFAS site we would be increasing the nonconformity of the site, in violation of one of the purposes of zoning law: the gradual elimination of nonconforming uses.
We, therefore, DENY the special permit and variances requested. We also note that we have been advised that when the new amendments take effect, Con Edison towers will become as-of-right sites, while towers which are taller than their distance from property lines (fall zones) will be illegal, thus making it clear that while K-45 is the preferred site for the antennas which the applicant seeks to erect under the existing Antenna Law, such conclusion will only be strengthened when the amendments to the Ordinance become effective.
CONCURRING OPINION BY MR. FRANCIS X. SHEEHAN (as transcribed from the videotape since the concurring opinion was not included as part of the official decision filed with the Town Clerk):
I concur with my colleagues that the application in Case No. 98-40 be denied. I believe:
1. The applicant has failed to prove that the proposed site is necessary to enable the applicant to render safe and adequate service and has failed to show that no alternative sites are available which could be used with less disruption of the Town's zoning plan;
2. The applicant requires the use variance and each of the area variances identified by the Building Inspector before a building permit can be issued for the proposed installation;
3. Applicant has failed to demonstrate the need for such variances even under the reduced threshold for review afforded personal wireless services providers (PWSP) in New York State;
4. The applicant has failed to meet the conditions for the required Special Use Permit by failing to prove that another site lower on the Town's tier system of siting preferences cannot provide adequate coverage;
5. The applicant's alleged public necessity to fill a gap in service in the vicinity of the proposed site is questionable, in that audio-visual evidence and the applicant's website indicates that adequate coverage exists;
6. Notwithstanding the questionable coverage gap, the Board's hands were tied by the applicant's repeated declaration of an "all or nothing" position and refused the Board's offer to allow the application to be amended to situate the installation on a nearby tower providing substantially comparable coverage;
7. Even after the Board elicited from the applicant's experts during the hearing that the application, if approved, would not be sufficient, as originally suggested, to fill the alleged gap in coverage, and that at least two more sites will be needed, the applicant still refused to demonstrate any siting flexibility.
8. The applicant's "all or nothing" approach deprives the Town of the limited siting control afforded by the Telecommunications Act of 1996.
9. Any gap in service in the area of the proposed facility is due solely to the applicant's failure to consider alternate sites.
Compliance with the Telecommunications Act of 1996:
The authority of the Telecommunications Act of 1996 regarding the siting of cellular installations is codified in Section 704(c)(7) of the Telecommunications Act of 1996, entitled "Preservation of Local Zoning Authority" and provides in relevant parts as follows:
A. General Authority:
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a state or local government or instrumentality thereof over decisions regarding the placement, construction and modification of personal wireless service facilities.
B. Limitations:
(i): The regulation of the placement, construction and modification of personal wireless service facilities by any State or local government or instrumentality thereof--
(I) Shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) Shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
As explained during the public hearing, the Town of Greenburgh has established procedures for processing antenna-related applications to ensure that all applicants are treated equivalently and fairly. As part of the established procedure, the Antenna Advisory Board (now called the Antenna Review Board), acting at the request of the Building Inspector, reviews the applications to ensure that entries are provided for each provision listed in Section 285-37A(16) of the Zoning Ordinance. The Building Inspector then processes the application, sending it to the Zoning Board if variances are required. This procedure has resulted in no fewer than 17 applications being approved in the last two and a half years. Until this decision, no application for a personal wireless service facility has been denied.
Brief Overview of the Nextel Application Procedure:
As repeatedly stated in the testimony before us, Nextel is the only personal wireless service provider in the Town which has refused to meet with the Town's Antenna Board and attempt to work out their siting needs. Instead, the applicant petitioned the Court to oversee the processing of the application.
After Nextel petitioned the Court to order the Zoning Board to issue a case number, which was not issued because the applicant refused to fully comply with the filing requirements of 285-37A(16), the Court ordered the applicant to comply with the filing requirements. The missing data was supplied on October 15, 1998 and the application was deemed complete and a Zoning Board case number issued the same day. The application was then placed on the Zoning Board calendar and heard in case-number order. The Board treated the application no differently than any other zoning application pursuant to the January 31, 1996 House Conference Report on the Telecommunications Act, which states in pertinent part: "It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests or to subject their requests to any but the generally applicable time frames for zoning decision.
Nevertheless, the judge overseeing the case at the applicant's request ordered the application to be heard out of order if the public hearing was not closed by January 28, 1999. Due to the number of persons wishing to be heard and the extensive amount of relevant testimony presented at the January 28, 1999 meeting, the hearing did not close on January 28, so the Zoning Board held three special meetings, on February 8, February 9 and February 11, consistent with the judge's orders, for the sole purpose of hearing and deciding the subject application. At the end of the February 11 hearing, the Board closed the record for decision only.
Failure to Consider Alternate Sites:
During the course of the hearings, we elicited from the applicant's radiofrequency expert that at least two more sites will be required to provide coverage in the unincorporated area of the Town of Greenburgh (the "Town") and that use of the WFAS tower would provide better coverage to portions of Route 9A and to the westerly villages, while leaving substantial gaps on 9A and to the east, in the unincorporated area of Greenburgh. The applicant admitted during questioning at the hearing that additional applications for personal wireless facilities will be filed to fill those gaps.
An alternative site was propose to the applicant, Con Edison Tower K-45, which abuts the Sprain Brook Parkway. K-45 is lower on the Town's tier system of siting preferences and provides better coverage than the WFAS site to the east (to the unincorporated area of Greenburgh), including coverage of the 135 acre Gaisman Estate, which is of critical environmental significance to the Town and currently subject to state, county and local agreements to preserve as a passive park.
Therefore, if the application were to be granted, the applicant would have a gap in service to the east (in the vicinity of the Gaisman Estate), and if the Con Edison Tower was used, another site would be needed to the west.
During the hearing, the applicant was asked to work with the Town to determine all needed locations at one time, in an attempt to minimize the impact of the installations on the community. The offer was not accepted.
Having established that an alternate site exists, I now turn to the Town's tier system of siting preferences to show that the applicant is required to pursue the alternate site. Pursuant to the siting control granted local governments, the Town of Greenburgh created a "tier system." There are three main categories of sites: 1. as-of-right sites; 2. Special Use Permit sites; and 3. prohibited sites.
As-of-right sites are the most preferred sites. The sites have been pre-approved because they provide needed coverage of major thoroughfares and/or create a lesser intrusion on residential areas and the overall goals of the Zoning Ordinance than other sites in the area. No public hearings are required.
The following location, pursuant to Section 285-37A(16)(f) is a potential candidate as an as-of-right site: "On public utility right-of-ways containing tower-elevated electric power lines provided that the antenna is mounted directly on an existing electric power line tower and does not exceed the height of the power line tower by more than 30 feet, notwithstanding any height restriction contained herein to the contrary." K-45 meets this standard. However, in order for the installation to actually be as-of-right, in addition to complying with one or more of the above location specifications, the antenna installation must also comply with all of the following conditions: The installation cannot be within 350 feet of a day care center, school, camp, public park or playground as defined in the Zoning Ordinance; no variances are needed to erect the antennas and related structures; the antennas cannot be mounted on an antenna tower; if a monopole is required to support the antennas, the monopole must be in compliance with Section 285-37A(10); accessory structure setbacks as modified in Section 285-37A(3) are met.
K-45 is situated within 350 feet of a park and therefore it could be argued by the applicant that K-45 is not as-of-right. However, since the ordinance specifically refers to a definition of "public park" which does not exist in the ordinance and ambiguity goes to the applicant, the applicant could also maintain that the public park provision is not enforceable and go on the K-45 tower as-of-right. But even if the public park provision is enforceable against K-45, K-45 is still a special permit use, which means that it is a permitted use under other Zoning ordinance.
No public hearing is required for an installation that meets all of the as-of-right conditions. Once a complete application is filed and reviewed by the Building Department, a building permit is issued. 15 of the 17 sites approved to date have been as-of-right sites. The Town has been able to work with willing cellular providers to help them locate their sites as-of-right. Recently adopted amendments to the Antenna Law, while not determinative in my vote, increase the number of as-of-right sites.
A Special Permit Use, by definition, is a permitted use. Therefore, by providing for antenna-related Special Use Permits in all areas of Town, we do not prohibit installations in any area. The Telecommunications Act of 1996 has been interpreted as meaning that a municipality cannot prohibit cellular installations in any area. However, within each area, control over siting is afforded the municipality. We can and do place conditions on Special Use Permits designed to encourage providers to go, if possible, where the Town prefers placement.
As defined in Section 285-5 of the Town Zoning Ordinance, a Special Permit Use is: "[a] use within a district which possesses unique and special characteristics so as to require special conditions in addition to the general conditions and shall be subject to the issuance of a special permit by the Town Board, Planning Board or Zoning Board of Appeals in accordance with the applicable provisions of this chapter."
The first condition that must be met by all cellular-related Special Use Permit applicants is that documentation must be submitted as part of the application proving adequate cellular service coverage cannot be achieved by installing one or more installations as-of-right. This is a formidable burden on the applicant because there are so many as-of-right (Town-preferred) locations in our Town. Assuming this burden can be met, then a Special Use Permit is warranted. However, not all Special Use Permit sites have the same impact on the community. Applicants must prove that they are going on sites that have been deemed by the Town to have the least impact on the community and the goals of the Zoning Ordinance.
We operate within the spirit of the Telecommunications Act because almost every parcel of land in the Town of Greenburgh is a potential site for a cellular installation, either as-of-right or, if certain conditions are met, by Special Use Permit.
However, there are prohibited sites. The Greenburgh Antenna Law makes all sites in the Town of Greenburgh potentially permitted sites unless the site or existing installation is nonconforming, in which case the site is specifically prohibited. The Greenburgh Antenna Law specifically discourages the use of existing nonconforming installations.
I agree with the Building Inspector that the WFAS site is nonconforming and therefore one of the few sites in the Town of Greenburgh where additional antennas are prohibited. Therefore, for the above reasons and for the reasons stated in the majority decision, I concur that the application should be denied, and I urge the applicant to work with the Town in a meaningful way to complete its coverage grid, using the assistance provided by the Town, a process which has proven very successful for other cellular service providers and has resulted in 17 approved sites to date in our Town.
At 1:45am on 3/26/99 the Zoning Board concluded the reading of the Nextel/WFAS Motion and Findings, and the Concurring Opinion by Francis X. Sheehan.