MAHOPAC, N.Y. - The Planning Board has told lawyers representing Homeland Towers, a Danbury-based cell tower construction company, that its application to build a structure at 254 Croton Falls Road is still incomplete and the plan is not yet ready for a public hearing.
However, Robert Gaudioso, an attorney from Snyder & Snyder in Tarrytown representing Homeland Towers and Verizon, pushed the board at its April 10 meeting to schedule a public hearing for next month. Town officials said that would only be possible if Homeland addressed an array of comments and concerns that Planning Board members and other department heads feel have been left unanswered.
“I am not ready to send this on for a public hearing; we need to address these comments and get more time with our technical consultant,” said Craig Paeprer, Planning Board chair. “I think we’ll be in much better shape then.”
The town has hired an independent consultant to help Planning Board members and other officials understand the complex technical aspects of the reports and studies in the application and said they need more time with the consultant to understand the issues. However, Gaudioso complained that the town has had more than enough time to do that.
“On Sept. 12 , you resolved to hire a consultant. We still don’t have a report,” Gaudioso told the board. “If we get new comments, we’ll address them, but I think we have substantially addressed the prior comments and put forth an application that we believe is complete under the statute. I don’t see the downside of setting a public hearing.”
The town’s experts from the building department and engineering department laid out a litany of concerns and issues that they feel must be addressed as the project moves forward.
Mike Carnazza, director of code enforcement/building inspector, noted that the original height proposal for the tower has been reduced from 180 feet to 160 feet, which he pointed out is still high above the 70-foot tree line. He said a variance would be needed.
“[Town code] only allows 50-foot tall towers with a 50 percent increase that could bring it up to 75 feet,” he said. “With a 160-foot tower, you would need an 85-foot variance.”
Town engineer Rich Franzetti said Homeland only responded to three of the 13 comments from his department and there are numerous permits that would be needed from both internal and outside agencies.
“Permits are required by the DEC [for] general stormwater permit; from New York City DEP for stream crossing; from the Carmel Environmental Conservation Board for crossing a wetland,” Franzetti said of the Croton Falls property, which is owned by Richard Diehl. “These are important issues that need to be addressed. You need to show where existing sewer lines are; I don’t know where they are.”
Franzetti also said that all information regarding any regrading that’s needed should be provided to the town as well, along with info on the location of drinking-water wells, subsurface septic treatment systems, stormwater management, drainage, utilities, lighting and erosion-control measures.
Pat Cleary, town planner, noted that since Homeland’s original appearance before the Planning Board in August, it has “supplemented the application with additional materials. But, he said, the root of the controversy over this tower—and another one planned for Dixon Road—is that they are located in residential neighborhoods.
“Just to be clear, the town’s wireless communication ordinance establishes a hierarchy of priorities for the location of these facilities, he said. “Where this facility is proposed is in a Category 5 location (residential), which is a very low priority and it’s the applicant’s burden to document why they can’t be in a higher priority location. In an effort to address this, [Homeland has] submitted some supplemental information. They did a drive/test analysis where they reviewed the gaps in their coverage and that supplements the [proposed] facility’s service plan.”
That is one of the issues that the town’s independent wireless communication expert will investigate.
“He will provide a technical review of that information to verify the veracity of what Verizon is telling you,” Cleary told the board.
Cleary also said that Homeland/Verizon submitted an appraisal report that illustrated [that] property values in Carmel and in neighboring towns did not decrease when they were located near a cell tower—a complaint often put forth by critics.
“In that report they have evaluated 13 locations near wireless communication facilities, four of which are in the town of Carmel, the rest in communities nearby,” Cleary said. “[The data compared] the sale price of those homes [close to the tower] to those that don’t have a view of the tower and the interesting finding in every instance is the homes that had a view of the cell tower had a higher value than those that didn’t. I think that is something we need to get more information on to see how that study was prepared. It seems a little unusual.”
Planning Board member Dave Furfaro suggested that the town perform its own appraisals of the homes in proximity of the proposed Croton Falls tower and make similar comparisons like what was done in the Homeland report.
“We know the visual impact now, we know where the tower is going to be and what homes it would impact,” he said. “Could we now go back and have an expert do appraisals on those homes?”
Town attorney Joe Charbonneau called that request “unprecedented.”
“[Homeland] took recent sales of homes, but the homes around this [proposed] tower may not have sold recently,” he said. “You would have to ask the appraiser to value the property today and that’s a significant undertaking. I don’t think we’ve ever done that before.”
Gaudioso said he didn’t think the town, or the Planning Board, had the authority to do that.
“I don’t believe there is any precedent authority for the board to create its own evidence,” he said. “If someone wants to submit evidence, that’s fair. But to create a new piece of evidence and have the applicant pay for it, that’s beyond your authority. The report we submitted is pure data. If you want to have someone check that data, I wouldn’t object to that.”
Planning Board member Carl Stone said Mahopac has many cell towers and questioned why this one was even needed.
“I’m a little bit at loss as to why we need another one,” he said.
Gaudioso explained that Homeland submitted a full analysis by a third-party expert last August that showed the locations of the existing towers and antennae and the coverage provided by those sites. That report showed that those facilities don’t cover the area in question.
“The existing sites don’t get into the areas that this tower is proposed to cover. That’s all detailed in the reports,” Gaudioso said. “The FCC late last year actually came out with a valid federal order that we don’t necessarily have to prove a gap in service, we just have to prove when a prohibition…is defined as materially inhibiting our ability to provide service. So, we think we have shown that standard clearly, by both drive/test data and the expert reports that we’ve submitted.”
As far as placing the tower in a residentially zoned area, Gaudioso said Homeland provided a “no genuine alternative site analysis” last August.
“It was submitted to Planning Board,” he said. “The report goes through the priority list and explains why there are no co-location opportunities; why there are no existing structure opportunities; and why there are no non-residential zone locations.”
Furfaro also wanted to know what happens when the towers become obsolete as new technology develops.
Charbonneau explained that Homeland was required to post a bond ensuring that if the tower outlives its usefulness, the company has to dismantle it.
“If they don’t, we call in the bond and use their money to remove it,” he said.
The Federal Telecommunications Act of 1996 allows cell tower applicants to set a “shot clock” if it feels local boards aren’t responding quickly enough. The law states that state and local officials should ordinarily take no more than 90 days to act on wireless applications. Gaudioso said that 90-day shot clock would begin May 31, which is why he urged the board to set a public hearing date as soon as possible.
“We have given the shot clock [date] at this stage, and we would like to [have the public hearing] and get any additional comments from the public so we can start to address those as well,” the attorney said. “We have extended the shot clock out to May 31 and we think it would be appropriate for next month [to have] the public hearing.”
However, some town officials were doubtful that could happen.
“I think there were additional comments raised tonight that the board needs to get answers to,” Charbonneau said. “We have now submitted this to our expert for their review. I don’t think it’s right for a public hearing just yet. There are still too many questions unanswered.”
“There is a whole booklet of comments here, and I personally would like to see [Homeland] clear that up,” added Paeprer.