MAHOPAC, N.Y. - Residents fighting proposed cell towers near homes in two Mahopac neighborhoods are urging town officials to deny critical zoning variances needed to build the towers.
The neighbors are expected to renew their arguments against the towers when the Zoning Board of Appeals (ZBA) reconvenes a public hearing Sept. 26. The towers, say their critics, would lower the area’s property values and destroy its bucolic aesthetics.
Residents turned out en masse at a Planning Board meeting last month to oppose Homeland Towers’ application for a tower at 254 Croton Falls Road and another at 36 Dixon Road.
They were back again at the ZBA meeting on Aug. 22 to speak out against three variances Homeland needs for each tower.
The ZBA made no decision on the variances and voted to keep the public hearing open through at least its next meeting, Sept. 26. The ZBA is awaiting the Planning Board’s formal assessment of whether the proposed project would have a significant adverse impact on the environment.
Homeland is seeking variances for the height of the towers, the width of the access roads, and the height of the fences that would enclose the equipment compounds.
For both site plans, Homeland wants an 8-foot compound fence, which is 2 feet above the maximum allowed by code. It also wants a 12-foot wide access road, much smaller than the code-required 24 feet.
Homeland prefers to secure the equipment compounds behind an 8-foot fence, Robert Gaudioso, an attorney with Snyder & Snyder, told the ZBA, because it would provide better security. But he said Homeland would be willing to reduce the height to 6 feet for both applications if the ZBA insisted.
Gaudioso questioned the 24-foot width requirement for the access roads.
“The building inspector has determined that a 24-foot-wide access drive is required. The [existing] access drive [for Croton Falls Road] is what we are proposing to use; we are not proposing to create a new access drive. If expanded to 24 feet, we would have to remove a stonewall and trees and we are not proposing to do that. We are asking for an interpretation [because we don’t believe] there is a requirement for 24 feet; that’s only for aisles and parking areas and only required for two-lane drives.”
For the Dixon Road plan, Homeland would use an existing 12-foot driveway and then create a new turnoff from that, which would remain12 feet wide. That drive would lead to the tower and equipment compound.
Both towers would need variances for their height, which town code restricts to a maximum of 75 feet. Homeland wants to build a 140-foot tower at the Croton Falls site and a 110-foot tower on Dixon Road.
“A 75-foot pole would not provide adequate service,” Gaudioso said, calling it “too low to the tree line to cover the significant gap in service.” With taller towers, he said, “we are able to comply with the town code’s requirement of co-location, so we are able to provide a spot on the pole for additional carriers. [This would] avoid proliferation of future towers.”
After Gaudioso’s presentation, ZBA Chair John Maxwell said Homeland must meet certain criteria before the board could grant the variances.
For starters, he asked whether the towers would create an undesirable change in the neighborhood’s character or be a detriment to nearby properties. He also asked whether there was some other way to install the towers, one that did not require a variance but still provided the requested benefits.
“I would think there are potentially other types of properties, commercial properties, that would fulfill this. That’s a question mark,” Maxwell said.
Maxwell also asked whether the proposed variance was “substantial.” Answering his own query, he said that “when it comes to the height of the tower itself, in my mind I feel it’s pretty substantial.”
However, Gaudioso argued that those criteria do not apply to a cell-tower site plan.
“Those are actually not the correct criteria for this particular application,” Gaudioso told Maxwell. “The applicant, in this case, is deemed a public utility under New York State law.”
The Court of Appeals, the state’s highest court, has “deemed that variance criteria for a public utility application such as this is different,” Gaudioso said. “In addition, there is federal law that applies in this case. Under federal law, this is deemed a personal wireless service facility and a facility cannot be prohibited as far as providing its necessary services, which have been confirmed by the town’s own consultant.”
Discussing the state’s variance criteria, Gaudioso said the court “made it clear that a municipality may not exclude a utility from the community and the standard is that the proposed use is necessary to render safe and adequate service.”
Town attorney Greg Folchetti confirmed that what Gaudioso said was accurate.
Ron Leviner, a Stacy Lane resident who lives near the proposed Croton Falls Road tower, said a group from his neighborhood has hired an attorney and will be seeking his opinion about the federal law and the criteria for a variance.
“I do have my concerns on whether [Homeland is] providing a full and objective viewpoint,” Leviner told the board. “I and other residents in that neighborhood have hired an attorney and he will be providing the town with a brief with respect to the entire application and we will be asking you take our attorney’s opinion on this matter into account.”
Leviner said the town’s preference for co-location should be reconsidered, allowing for a shorter tower.
“I think it might be a better idea, rather than approving a 140-foot tower, to look at waiving that preference in this case and ask Homeland to reduce the height of the tower,” he said.
“I would further ask that if the tower was lowered because co-location was no longer preferred, whether Homeland would still be interested in the site,” Leviner said. “In other words, if they could not collect co-location fees, would they still be interested in the site?”
Leviner called it “an important question, because if they’re not interested in the site because they cannot collect co-location fees, what does that say about whether they have met a ‘necessity standard?’”
Councilman Mike Barile, in an emotional plea, said he helped his daughter, Emily, purchase a home from Richard Diehl, who owns the parcel where the tower would be built on Croton Falls Road.
“I am not here as a town representative, but as a landowner and a neighbor,” Barile told the ZBA. “I have known Richard Diehl for 45 years. When we bought that house [it was] on a handshake. The contract came after. It’s quite obvious that handshakes don’t mean what they used to mean.”
Barile said, “We were assured and promised that the commercial usage on that property was going to cease with the retirement of the people on that property. We entered an agreement so [Emily] could move in and raise her family and that the commercial trucks were going to [stop] and there would never be another truck coming up that driveway. That driveway passes her house only. I can’t even begin to say what this man did to us. I know your limits, I know their case law, but I wasn’t going to let this go by without speaking publicly.”
Speaking on behalf of the Dixon Road neighbors, Tina Gambino read a letter from Robert Montanaro, who had been representing the group, but couldn’t attend the public hearing.
“The removal of 35 trees will greatly disturb the aesthetic views and beauty of the surrounding properties,” Gambino read. “This combined with the driveway expansion along the property lines of neighbors will create drainage issues … drainage onto Dixon Road will create a safety issue and clearly [be a] liability to the town…
“Placing a cell tower of 110 feet only 30 feet from a property line is intrusive to surrounding neighbors. This is incredibly ridiculous when the Dixon Road property consists of more than 10 acres.
“Local [real estate agents] have already documented that a cell tower would have a negative effect on surrounding home values by 10 to 30 percent. Using a conservative average of 20 percent, the surrounding 30 homes…have an average value of $500,000. This means that this cell tower will take $3 million of homeowner equity out of the pockets of taxpayers. This will create potential litigation on several fronts.
“There are ample less intrusive sites in our community that are not in the middle of residential neighborhoods, as well as the fact that the town should be exploring town property. If such a tower is needed, placing it on town property, the town would gain the income from the tower.”
Larry Gray, another Brittany Lane resident, also said the tower would impact property values in the Dixon Road neighborhood.
Property values are “a big deal to me,” he said. “I did a bunch of research, I did a Google search and found about 30 studies that all talked about the degree of property-value decline,” he said.