Milan town and zoning officials are seeing red over the shifting shape of Verizon’s proposed new cell tower on Academy Hill Road. And the wireless communications giant now claims that federal standards beat local zoning codes.
At the May 28 Zoning Board of Appeals meeting, Verizon attorney Scott Olson presented a cell tower plan that bore little resemblance to the one recommended by the planning board a month before.
The tower height had been lowered, the centerline antenna height had also been lowered, and Verizon continues to use a decibel standard outside local zoning code to justify the tower height variances.
The new plan was not the one the planning board recommended to the ZBA, with a negative declaration of environmental impact, on April 2. That recommendation followed eight months of sometimes bitter public hearings on Verizon’s application for the tower, which it says will help fill in cellular coverage gaps in the area.
Olson addressed the issue at the ZBA meeting by saying, “I think the plans [the planning board] approved, or issued the neg. dec. on, was a 156 foot tower, with the cap. And we’ve basically lowered it to 150 feet just to be in line with the one provision of your zoning law that says this board has the authority to grant a variance up to 150 feet.”
The antenna centerline height, he added, “was going to be 146 feet under our original proposal. It’s now going to be 135 feet, so it’s coming down 11 feet. That’s so that we can have that ornamental cap—make it look like a tree.”
He explained, “If we put the antennas at 146 feet, you’d see kind of this tree structure, but then the antennas would be sticking way out. … That will compromise our service somewhat, and we’ve provided this board and the planning board with the RF (radio frequency) plots that show you what it would look like. The planning board was clearly going down that route, so that’s where we ended up.”
Olson’s presentation was followed by a public hearing, during which five members of the public spoke up: some to express their dissatisfaction with the visual impact of the tower and others to highlight the need for decent cell service in Milan.
Then two attorneys, David Gordon of New Paltz and Warren Replansky of Rhinebeck, representing a group of residents on Academy Hill Road, weighed in on the issue.
Gordon said that Milan’s zoning code has specific criteria for granting a cell tower height variance. Basically, he explained, the code caps tower height at 100 feet but allows for a possible height variance up to 150 feet only if there is not adequate coverage by a lower tower. “Adequate coverage” is defined in the code as 80 percent coverage at -90 decibels.
Gordon contended that Verizon’s submittals adhere to a different standard–of -85 decibels–which provides more coverage. But according to Milan’s zoning code, he said, the ZBA has no basis to grant Verizon a variance without examining the extent of coverage at -90 decibels, which might allow for a shorter tower.
In fact, he added, he believes the -90 decibel standard in the zoning code standard could be achieved with a tower no higher than 130 feet.
Replansky, a local attorney based in Pine Plains who also serves as attorney to the towns of Hyde Park and Rhinebeck, added that the ZBA is not a legislative body and therefore must abide by the provisions of the zoning ordinance.
That agitated Olson, who then argued that Milan’s zoning code requirements for 80 percent coverage at -90 decibels and a maximum height of 150 ft. are preempted by Federal Communications Commission (FCC) regulations. He did not spell out what those regulations are.
The ZBA meeting ended with the board deciding to leave the public hearing open and also to request that Verizon define the intended coverage area and submit new studies showing how significant the coverage gap is at -90 decibels.
Additionally, the ZBA plans to research FCC guidelines to see whether they override Milan zoning code.
Verizon’s revised plan then became the main topic of discussion at the June 6 planning board meeting.
Consulting planner Liz Axelson was concerned about the changes in the project since the planning board’s April 2 SEQR review.
“It’s possible that the planning board might want to revisit [some issues],” Axelson said. “Do we want to do an amended neg. dec.? Do we want to do a different recommendation to the ZBA?”
She added that many of the technical aspects of the new plan, like the antennae height, and their impact on coverage, would need to be reviewed by a radio frequency consultant, such as Ron Graiff, who was hired by the town at the beginning of the project for similar analysis.
“Just remember what’s before the ZBA right now is antennas at 135 feet,” said Karen Buechele, the clerk for both the planning board and the ZBA.
“But that changes everything,” said board member Nathaniel Charny.
“Yep,” agreed board member James Jeffreys. “How did we get there? How did that happen? When [Verizon] left here, and they got sent over [to the ZBA], the centerline for the radio equipment was at 146.”
Turning to Verizon attorney Elizabeth Vigars, he asked, “How do you go from 146 to a lower number without running it through us?”
“At the ZBA’s request,” she replied.
“No,” Buechele countered. “These drawings were submitted to the ZBA for their consideration for the height variance … at 135 feet. That is what was presented to the ZBA two weeks before the ZBA meeting.”
“You just can’t change the call in the middle of the play,” Jeffreys said to Vigars.
Vigars insisted a summary letter and update had been sent to the planning board, which Buechele and the board denied.
The planning board reached no conclusion other than to recognize that it is up to the ZBA to request an amended application reflecting what had been reviewed by the planning board.