Eastern Rensselaer County's Community Newspaper

1 ZONING BOARD OF APPEALS TOWN OF BERLIN

2 ———————————————————

4 In the matter of the Application of:

5 CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS

6 1 Satterlee Hollow Road

7 Town of Berlin, Rensselaer County, New York

8 ———————————————————

10 STENOGRAPHIC MINUTES OF MEETING conducted on the

11 16th day of April, 2009, at the Berlin Town Hall, Berlin,

12 New York commencing at 7:30 p.m.

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2 ZONING BOARD OF APPEALS:

3 DONALD FRENCH, Chairman

4 MARYELLEN GILROY, Board Member

5 VICTOR LEWIN, Board Member

6 J. NICHOLAS ADAMS, Board Member

7 DAVID THERAULT, Board Member

8 PETER HENNER, Attorney

12 APPLICANT REPRESENTATION:

13 J. MICHAEL NAUGHTON, ESQ., Young Sommer, LLC

14 DAVID C. BRENNAN, ESQ., Young Sommer, LLC

15 SARAH MAYBERRY STEVENS, Real Estate Manager

16 JOSEPH SORRENTINO, Radio Frequency Engineer

17 CHRISTINE HOWELL, Site Aquisition Specialist

22 REPORTED BY: SADIE L. HERBERT

Court Reporter and Notary Public

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1 P R O C E E D I N G S

2 CHAIRMAN FRENCH: We’re in session now, and

3 I’ll turn it over. Peter is going to guide us

4 through the various information, and if at any

5 point you have a question, you will ask him, et

6 cetera.

7 MR. BRENNER: Okay. At the last board

8 meeting, we had — the board had adopted a

9 resolution stating that this week or this monthly

10 meeting, the monthly meeting in April, we were

11 going to go through the environmental review of

12 the Satterlee Hollow cell tower application, and

13 that’s what we’re going to do tonight. The

14 environmental review is required by the New York

15 State Environmental Quality Review Act, which

16 requires that any agency — and the Zoning Board

17 of Appeals is considered an agency within the

18 meaning of the State Environmental Quality Review

19 Act or SEQRA, I’ll use the acronym SEQRA for the

20 rest of the evening — must consider the

21 environmental impacts of its action before taking

22 any action. It doesn’t mean, the law does not

23 require that you not take an action that has

24 environmental impacts. It simply requires that

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1 you consider all possible environmental impacts,

2 identify any adverse environmental impacts and

3 make a specific finding that any adverse

4 environmental impacts that you identify have been

5 minimized to the maximum extent practical. It’s

6 a basic requirement of SEQRA. In order to do

7 that, the case law has said that you must take a

8 hard look, you must consider every environmental

9 impact that you can think of, look at it and make

10 a determination that it has been minimized, as

11 much as you can minimize it. And essentially,

12 the idea is if you discover environment- — that

13 you must know what the environmental impacts are,

14 and if you find them to be sufficient, then you

15 wouldn’t go forward with the project. But if you

16 think that the project, any project, is of

17 sufficient importance, then you can go forward

18 with it, even if you have identified

19 environmental impacts, as long as they are

20 minimized as much you can practically minimize

21 them.

22 In order to do this review, it’s the law and

23 regulations, basically, to do it in several

24 stages. The stage that we’re going to do tonight

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1 is to make a determination of significance. What

2 that means is we’re going to make a determination

3 whether, after a preliminary review, through a

4 review of a document called an environmental

5 assessment form, whether or not there are

6 environmental impacts that need to be minimized

7 further. If there are, we’ll make a positive

8 declaration and require the preparation of a full

9 environmental impact statement. If there are

10 not, we’ll make a negative declaration, meaning

11 that we have looked at it, the environmental

12 impacts have been minimized to the maximum extent

13 that we can, there’s nothing further we can do in

14 terms of minimizing the environmental impacts,

15 and that, in fact, we can proceed with making a

16 determination as to whether or not to approve the

17 project. We cannot make a determination to

18 approve the project until we complete this basic

19 review under SEQRA.

20 So what we do in order to make that

21 determination, positive or negative declaration,

22 is we go through this document, which is set

23 forth in the regulations, the SEQRA regulations

24 as an environmental assessment form. We don’t

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1 have to use this form, but we have to use a form

2 or do a process that’s at least as protective of

3 the environment as the form requires. And there

4 is a form that’s set forth in the regulation, a

5 21 page form. The way the form works is the

6 first page is just our ultimate conclusion, the

7 determination of significance. Pages 2 through

8 10 are filled out by the applicant, and Verizon,

9 the applicant, has submitted a 10 page form where

10 they have described their project, said what it

11 is, answered questions about what kinds of things

12 they’re going to be doing, how much area will be

13 disturbed, their assessments of various questions

14 about what the project is, and they’ve submitted

15 that and along with a — they’ve also submitted

16 other documents, they’ve submitted a visual

17 impact analysis, and they’ve basically described

18 what their version of the project is. By law,

19 that’s their responsibility to submit. If we

20 look at this, and say, hey, there are impacts or

21 things that you haven’t considered, we can

22 certainly — we’re not bound by it, but

23 nevertheless, by law, they submit that, and

24 that’s what they do, and that’s part of the

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1 assessment.

2 The part that we’re going to spend the most

3 of the time tonight on is the so-called Part 2,

4 which is Pages 11 through 20 of the form. This

5 form basically lists a series of potential

6 environmental impacts and requires us to ask

7 these questions, are these issues that are

8 identified, and you’ll hear them as we go through

9 them, I’ll read them into the record as we

10 consider each one, whether or not there are

11 actual impacts, and the board will make a

12 determination if there is an impact, if it is a

13 large impact, or if it’s just a small or moderate

14 impact, and what the impact is. If the board

15 finds after the review of this process that there

16 are, in fact, impacts, then it will consider

17 Part 3 of the application, whether or not those

18 impacts can be mitigated, and whether or not

19 further mitigation is necessary, and may make a

20 determination that we need more study of it, in

21 which case, we would lean towards — we would

22 probably have to go to a positive declaration to

23 further analyze those impacts.

24 Now, the question may be asked, and I think

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1 the way I’m going to do this is to consider the

2 first part of the question is, okay, what is the

3 action under consideration. The action under

4 consideration, simply stated, is the application

5 for a cell tower at the Satterlee Hollow site.

6 However, the question is, is this part of a

7 larger action, or is this an action that stands

8 on its own? And a related, but different

9 question — and I’ll describe the differences —

10 is a question of whether or not the impacts of

11 this project should be considered cumulatively to

12 the impacts of other projects. Now, under the

13 town telecommunications law — I’ll refer to it

14 throughout the evening as just the

15 telecommunications law or the law or possibly,

16 even, the ordinance — the law requires that an

17 applicant for a cell tower must identify other

18 intended sites for cell towers that it’s

19 proposing to adopt. And in compliance with this,

20 Verizon actually went well beyond the

21 requirements of the law. The law simply requires

22 that they identity what sites they might be

23 considering. What Verizon did was, they

24 submitted, essentially, a full application for

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1 another site besides Satterlee Hollow, the Cherry

2 Plain site, and they provided additional

3 information, far more than was required to be

4 provided, in terms of what they might want to do

5 at Cherry Plain. Now, that raises the question

6 of, is the Cherry Plain application — is this

7 part of one common plan. And if so, the board

8 has an obligation, if the board makes a

9 determination that it is part of a common plan,

10 the board has to consider whether it should

11 consider the two applications as one plan or

12 whether they are separate plans.

13 There’s a lot of case law and regulations

14 talking about a concept called segmentation.

15 What segmentation is — usually, in a lot of the

16 commentary, segmentation is usually linked to the

17 word impermissible segmentation. The idea is, if

18 you have a project that is to be considered, you

19 cannot segment the environmental review. I’ll

20 give you one simple example. You have somebody

21 who wants to put a large subdivision of a hundred

22 units. Well, if you do a hundred units, you have

23 a lot of environmental impacts. And so to avoid

24 doing that that they say, we’re only going to put

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1 in ten units at a time. It’s no big deal to put

2 in ten houses, ten houses, ten houses, and the

3 total idea is you put in a hundred houses, and it

4 was all part of one intended subdivision, and low

5 and behold, you have a whole bunch of

6 environmental impacts, and you’ve avoided the

7 review of it by segmenting the review. That’s

8 just for illustrative purposes. The question

9 that’s going to be before the board is, with

10 these two applications, the Cherry Plain and

11 Satterlee Hollow site, is it impermissible

12 segmentation to consider them separately, or does

13 each application stand on its own? In order to

14 make that determination the board is going to

15 have to — the test for segmentation that is

16 usually used is an eight part test set forth in a

17 document published by DEC called “The SEQRA

18 Handbook”, and determine whether or not the two

19 applications are part of the same — of a common

20 plan. And I would caution that the fact that

21 these two applications are both submitted by the

22 same applicant does not mean they’re part of the

23 same plan, nor does the fact that they are two

24 separate applications for cell towers. The mere

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1 fact that two separate projects of the same type

2 of project are submitted, and they may, in fact,

3 have some relationship does not mean they’re part

4 of the same plan, and I will go over, and the

5 board will review the criteria to make that

6 determination.

7 A related concept to that is the concept of

8 cumulative impacts, whether or not the impacts of

9 one project should be considered together with

10 the other. And one of the questions is, if you

11 are going to build Satterlee Hollow, will that

12 have any impacts that will affect Cherry Plain or

13 vice versa? So we can’t just say — and when we

14 go through the ten pages of impact criteria,

15 we’ll address the question of, what are the

16 impacts of Satterlee Hollow. Well, as part of

17 the consideration of the impacts of Satterlee

18 Hollow, if we know that Cherry Plain is out

19 there, then the question is, knowing that Cherry

20 Plain is out there, are there other impacts of

21 Cherry Plain that we should consider as part of

22 Satterlee Hollow. And vice versa, will Cherry

23 Plain’s impacts have any impact on Satterlee

24 Hollow, either way. Now, this is a little bit —

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1 the board has not reviewed the Cherry Plain

2 application. We have not had a public hearing on

3 it, we have not received comments on it, we have

4 not — a balloon test has been done, but the

5 board has not fully reviewed Cherry Plain. So

6 the question may be, assuming that there are

7 impacts at Cherry Plain, which I’m not assuming

8 there are or aren’t, and I don’t think the board

9 can make that assumption at this point, but

10 nevertheless, if there are, the question is, does

11 that effect Satterlee Hollow? Because it may be

12 and the board may decide that regardless of what

13 happens at Cherry Plain, it doesn’t affect

14 Satterlee Hollow, because Satterlee Hollow is

15 several miles away, it is a project that can go

16 forward without Cherry Plain. In fact, we don’t

17 know that Cherry Plain will ever go forward. We

18 only know that an application has been submitted.

19 So if the Cherry Plain application is withdrawn,

20 we may still approve Satterlee Hollow. And for

21 that matter, if we say they’re all part of one

22 plan and the applicant doesn’t proceed with

23 Cherry Plain, then where are we with Satterlee

24 Hollow, that’s another question the board may

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1 have to consider.

2 This is just to explain the process for the

3 record and to explain what we’re going to be

4 doing. But I have also drafted, for the board’s

5 consideration, a document describing the

6 segmentation and cumulative impact. In addition

7 to the document I’ve drafted, we have received,

8 as Ms. Harrell noted before the meeting, a letter

9 from — actually, two letters from an attorney

10 representing a town resident, and we’ve also

11 received correspondence from the applicant all

12 addressing the issue of segmentation and

13 cumulative impact. I have drafted this letter

14 based upon one way in which the board might look

15 at it. The board is not committed to it. It’s

16 just a draft of something to work off of. The

17 draft does — the draft of my letter does list

18 the eight criteria, which I am going to state,

19 and having stated that, then I will turn it over

20 to the board for discussion. The eight criteria

21 are:

22 Is there a common purpose or goal for each

23 segment of the plan?

24 Two, is there a common reason for each

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1 segment being completed at about the same time?

2 Three, is there a common geographic location

3 involved?

4 Four, do any of the activities being

5 considered for segmentation contribute toward

6 significant cumulative or synergistic impacts?

7 Five, are the different segments under the

8 same ownership or control?

9 Six, is a given segment part of an

10 identifiable overall plan?

11 Seven, can the interrelated phases of

12 various projects not be considered functionally

13 independent?

14 Eight, does the approval of one phase or

15 segment commit the agency to continuing with

16 other phases?

17 Having read those criteria, I would now put

18 the matter up — suggest the first question the

19 board should consider now, I would suggest the

20 board should consider this question, do we want

21 to consider the two projects, Cherry Plain and

22 Satterlee Hollow, as part of the same project and

23 therefore say that we have to do a common review

24 of both projects, or do we want to say that each

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1 project is functionally independent, and

2 therefore, we should proceed with the review of

3 Satterlee Hollow as its own project?

4 MR. THERAULT: Well, I think, from my

5 standpoint, the projects — and I’ve reviewed the

6 information that Mike sent out, Mike Cusack from

7 Verizon, and I fall on the side that

8 environmentally, they’re separate projects.

9 In terms of a network, they’re the same

10 project, they’re interrelated. And so it’s very

11 important for me to see and judge both projects

12 at the same time.

13 CHAIRMAN FRENCH: I disagree on that. The

14 Satterlee Hollow project can stand on its own, if

15 Cherry Plain never goes through, and it might

16 not. Satterlee Hollow will serve the Town of

17 Berlin, which would like to have cell tower

18 service. And it can be connected to Petersburg

19 and the rest of the network that way. It is not

20 necessary for — in order to have that tower that

21 we have the Cherry Plain tower. It may be

22 desirable that we have the Cherry Plain tower,

23 but I don’t see the two as the same.

24 MR. THERAULT: Well, what I heard at the

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1 public hearing was that people wanted wireless

2 facilities, they wanted wireless service. And I

3 know they’re not going to be happy if that

4 service ends at the Sedgwick Inn without the

5 Cherry Plain facility being built.

6 CHAIRMAN FRENCH: Well, they’ll be less

7 happy if they don’t have any coverage up here at

8 all. If they have at least that far, they’re

9 better off than they are now.

10 MS. GILROY: I think the one issue I have

11 is, I think it’s because in the application it

12 does refer to the two as being integrated as part

13 of a larger network. However, in the response

14 Verizon has indicated they’re separate and apart,

15 and they can stand on their own, and the board

16 can determine whether Cherry Plain would be a

17 separate site or not. So this could really go

18 either way. It’s an opinion, how we view both

19 projects. But the projects are somewhat

20 interrelated, because they refer to that. In the

21 purpose section of the Berlin application, it’s

22 referring to the Cherry Plain site, a site in

23 Cherry Plain, so there is some interconnectedness

24 with Petersburg, Berlin, Cherry Plain to connect

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1 to Stephentown.

2 CHAIRMAN FRENCH: It may be desirable, but

3 it isn’t required or necessary.

4 MS. GILROY: But it still refers to the

5 interconnectedness.

6 MR. NAUGHTON: Peter, can you touch on the

7 independent utility test?

8 MR. BRENNER: Okay. The question is, there

9 is another legal standard, which I have not

10 addressed so far, which I — and the point is

11 well taken that I should have. You mean the

12 public utility?

13 MR. NAUGHTON: Independent utility, in terms

14 of segmentation, and whether or not —

15 JULIE HARRELL: Can you tell us who these

16 guys are? I thought this was only town board.

17 MR. NAUGHTON: I’m Mike Naughton. I’m here

18 on behalf of Verizon, Cellco. I’m here with

19 David Brennan, my partner and we have some

20 representatives, Chris Howell and Sarah Mayberry

21 Stevens and Joe Sorrentino, he can cover any kind

22 of technical issues we have.

23 But on this legal question of segmentation,

24 you take a look at whether there’s independent

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1 utility. And as we’ve indicated in our

2 application and supplementing papers, if you want

3 to take a look at a project when there’s another

4 project going on and if that project were, like

5 this one under consideration tonight, has

6 independent utility, then you can proceed with

7 that. And in this case, yes, it might be nice to

8 have coverage, but wouldn’t it be a shame if we

9 couldn’t get any cell service in Albany because

10 we haven’t built out the entire network and

11 figured it all out for the entire state and

12 country. So the case has recognized that if

13 something has independent utility, and in this

14 case it does, we’re covering an area where

15 there’s lack of coverage, the RF consultant hired

16 by the town has confirmed that, yes, indeed, this

17 will take care of it and this is the best

18 location for it, and it connects through the rest

19 of the network, through Stephentown, then you can

20 go ahead with the project when there are these

21 segmentation issues raised. And so that’s what

22 the case — that’s really the phrase the cases

23 look at when you are looking at things like this,

24 like highways, roads and cell towers.

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1 JULIE HARRELL: I just have a process

2 question.

3 MR. BRENNER: No, no.

4 JULIE HARRELL: May I, please.

5 MR. BRENNER: Well, I’m going to describe

6 the process, and I think that will address your

7 question because I think — first of all, this is

8 not a public hearing. It’s a public meeting in

9 the sense that it’s public —

10 JULIE HARRELL: But is he a town board

11 member?

12 MR. BRENNER: No, he is not. I’m going to

13 respond to that, and then I do not want to hear

14 additional comments from the public at this

15 point, and I will explain why. Because although

16 the meeting is, of course, a public meeting, it

17 is open to the public, we invite the public to

18 come and observe, but this is a meeting of the

19 ZBA, and the meeting is — we are not — we have

20 had a public hearing, we are not asking for or

21 allowing public comment. However, the applicant

22 has a certain right here because it’s their

23 application that’s being considered, so the

24 applicant does have the right to — well, not

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1 necessarily has a right, but certainly as a

2 matter of courtesy that the board is going to

3 make a determination, to the extent to which we

4 have questions, to the extent to which the

5 applicant wants to further explain its

6 application or respond to various things, we’re

7 going to let the applicant’s representatives

8 speak with respect to their application. If we

9 were considering something beyond the application

10 tonight, if we had other items on the agenda,

11 obviously, we wouldn’t let them speak to those

12 issues. But its their application, so they do

13 have a right to address the board with respect to

14 their application.

15 JULIE HARRELL: Okay. Thank you.

16 MR. BRENNER: I think that answers —

17 JULIE HARRELL: I understand.

18 MR. BRENNER: The public utility exemption,

19 there is a general doctrine in the law, which is

20 identified in the application, I believe as a tab

21 to the application, talking about the so-called

22 public utility exemption. The public utility

23 doctrine, which basically says that a zoning

24 board of appeals or planning board or municipal

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1 entity, when addressing the question of whether

2 or not to approve a public utility, must

3 exercise, I believe the case law describes —

4 it’s case law doctrine, not a statute — of a

5 relaxed standard of zoning, because cell towers,

6 like other — like electric towers, like water

7 treatment plants are important to the community,

8 they’re public utilities, and therefore, zoning

9 boards are supposed to use a relaxed standard.

10 How that relates to the segmentation issue, if

11 there’s specific cases, Mike, I don’t know of

12 them.

13 MR. NAUGHTON: No, I’m just referring to the

14 Stewart Park Coalition case, which is from 2003,

15 it’s a Second Circuit case, and it involved some

16 of the highway improvements down by Stewart

17 Airport. In that case, the court pointed out

18 that if you can show that two projects —

19 although there may be some utility and there may

20 be some connection, because, in many ways, all

21 highways are connected, it’s okay to proceed if

22 the project under consideration has independent

23 utility by itself. And in this case, Verizon has

24 indicated that what this project does is it

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1 covers Route 22, at least a part of it, and it

2 covers Berlin Center where there’s a gap, and it

3 can allow Verizon to connect through Petersburg

4 through the entire network. So it really does

5 have independent utility, and Verizon will build

6 this, whether or not they ever proceed with

7 Cherry Plain. So there’s an ability here to look

8 at these two things separately, recognizing there

9 is, of course, the ability to have it all be one

10 part of a network, but you can take a look at

11 these things independently.

12 MR. THERAULT: If I may, this is from the

13 letter from Young Sommer, LLC that’s dated

14 April 13th, 2009, I believe it was sent to us by

15 Mike Cusack, and this is the — under the

16 heading, “Lack of segmentation under SEQRA”, and

17 under the planning line, “Again, although the

18 Berlin and Cherry Plain project are arguably

19 parts of the larger Verizon Wireless Network,

20 this does not negate the independent utility of

21 the Berlin site, which will provide a valuable

22 public service and connect northeastern Berlin to

23 the larger Verizon Wireless Network in the Town

24 of Petersburg to the north.” So that’s what

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1 they’re speaking about when they are speaking

2 about utility. It can stand on its own.

3 MR. BRENNER: I would just note that the

4 fact that there may be a relationship between two

5 projects, there may be a relationship between

6 Cherry Plain and Satterlee Hollow does not mean

7 that they’re necessarily part of the same

8 project. The fact that they’re related, the

9 impacts of one may impact the other, we could

10 have a cumulative impact situation where — I’m

11 not saying you do, but I’m saying you could have

12 one. You could say, well, if you do this, that’s

13 going to affect what you do over here, perhaps.

14 But that doesn’t mean that they’re part of the

15 same plan. That doesn’t mean that they’re still

16 part of the same action. So if you think that

17 there’s a — that there are impacts that ought to

18 be considered, you can consider those impacts as

19 part of the cumulative impact, but that doesn’t

20 mean it’s all part of the same project for

21 segmentation purposes.

22 MR. LEWIN: I think they should be separate.

23 As Maryellen said, it’s an opinion, it could go

24 either way, and from all I’ve read from Mike

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1 recently on April 13th, and our engineer, et

2 cetera, I think they should be treated

3 separately.

4 CHAIRMAN FRENCH: So do I.

5 MR. ADAMS: Yeah.

6 MR. BRENNER: What I would suggest we do

7 procedurally, here, and I didn’t spell it out at

8 the beginning. What I want to do is get the

9 sense of the board as to the various items that

10 we’re going to be discussing.

11 The first one is the segmentation. We may

12 have just — there may not be anymore discussion

13 on segmentation, but three members of the board

14 indicated — at least three members of the board

15 have explicitly said — if I’m wrong, correct

16 me — that you consider these projects should be

17 considered separate, so we do not have to

18 consider Cherry Plain as part of the same project

19 for segmentation purposes. Maryellen and Dave

20 were —

21 MR. THERAULT: No, I agree on the

22 environmental side, one hundred percent.

23 MR. BRENNER: Okay. So what I would suggest

24 we do procedurally, as we go forward with it, at

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1 the end of the discussion, we’ll ask for

2 resolutions. I have, in terms of the draft of

3 the document, the three page document that I’ve

4 drafted — four pages, I’m sorry. At some point,

5 I will ask the board, after we finish our

6 discussion, if there’s any sense of any changes

7 that can or ought to be made to that document or

8 if that is the document that the board would like

9 to see attached to the environmental assessment

10 form at the end. In other words, the document

11 that we’re going to be adopting at the end of the

12 night, we will be adopting a determination of

13 significance. As part of that determination of

14 significance, there will be Part 2, which we’re

15 going to talk about in a little bit. There will

16 also be this addendum. The addendum was drafted

17 by me with the idea being that if the

18 determinations that we reached are challenged, we

19 need to explain why we reached the

20 determinations. And what I did was I drafted it,

21 and I made it very clear that this was subject to

22 the consideration of the board, this was not my

23 document, ultimately it’s the board’s document,

24 but the board should make a determination as to

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1 whether or not to adopt part or all of this — of

2 my explanation with respect to segmentation or

3 cumulative impacts to explain the board’s

4 reasoning. The board can make whatever changes

5 it wants, but after we finish the cumulative

6 impact, I’ll ask for the sense of the board with

7 respect to that, and then we can make whatever

8 changes. What I have done is I have a laptop, of

9 which I have the file on it, I will make whatever

10 changes on the laptop, and then I’ll have a

11 completed document. I’ll have an accurate and

12 complete document and with any changes that need

13 to be made ready by tomorrow morning.

14 Having said that, let’s move on to the issue

15 of cumulative impacts. There are — we have not,

16 as I said before, considered the question of

17 cumulative impact, but the question has been

18 raised whether or not the Cherry Plain site will

19 have — the impacts specifically associated with

20 Cherry Plain have been visual impacts and whether

21 or not there will be visual impacts from the

22 site. And my question for the board is, do any

23 of those visual impacts have any impact on — as

24 part of our consideration of Satterlee Hollow,

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1 does Satterlee Hollow effect whatever impacts

2 might occur with Cherry Plain, or in addition,

3 does Cherry Plain’s impacts in some way effect

4 Satterlee Hollow? That’s the question for the

5 board’s consideration.

6 MR. THERAULT: Well, it’s hard to know

7 because we don’t know exactly where that facility

8 is going to be, until we have a public hearing

9 and get public input, look at alternative sites.

10 And if we can nail down a site that the public is

11 happy with, then we can make a more intelligent

12 decision, I think. I’m not quite sure why we

13 haven’t proceeded with the public hearing on the

14 Cherry Plain site.

15 MR. LEWIN: Because we’re treating them as

16 separate issues.

17 MR. THERAULT: That’s fine but if we get —

18 MR. LEWIN: Let’s get Berlin done — this is

19 my opinion — let’s get Berlin done, and as Don

20 said before, without repeating a lot of verbiage

21 here, Cherry Plain is a different site, let’s get

22 Berlin done, let’s go on with that, and then take

23 off for Cherry Plain, if and when.

24 MR. THERAULT: Well —

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1 CHAIRMAN FRENCH: I think the if and when is

2 the pertinent point here. The site that is

3 proposed, there are some people that have a

4 problem with it, and it may mean that another

5 site may need to be adopted —

6 MR. LEWIN: A different company, perhaps, we

7 don’t know.

8 CHAIRMAN FRENCH: — or there will be no

9 site at all and nothing be done.

10 MR. THERAULT: Well, that’s my concern,

11 Done. Because if we do end up — if Verizon or

12 some other company comes in and decides to do it

13 somewhere else, then the propagation studies will

14 change, and it’s going to have an effect on where

15 the facility in Berlin is placed.

16 CHAIRMAN FRENCH: I don’t think so. This

17 is — the best place to hook up with whatever

18 down there is Satterlee Hollow. We’ve looked at

19 all the other sites around here, and all of them

20 came up short. That gave the best. I mean —

21 MR. THERAULT: Well, best is a relative term

22 when it comes to the technology. Because if you

23 look at the propagation study performed on ALB

24 696, the Satterlee Hollow site and the ALB 697

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1 Cherry Plain site, you can see we have a gap on

2 Route 22 in the center of Berlin.

3 MR. LEWIN: Well, from the very beginning,

4 David, Verizon has said that there will be some

5 gaps going up the hollows, going down the road,

6 going down the corridor, 22, et cetera, they were

7 up front with that right from the very beginning,

8 and I’ve accepted that.

9 CHAIRMAN FRENCH: There’s no one site —

10 MR. LEWIN: No matter where we put this

11 proposed tower, whether it’s here, on top of this

12 building, what, there’s going to be gaps, with

13 all the hills and hollows, whatever we’ve got

14 here. Everybody is not going to get the service.

15 There’s no doubt about it.

16 MR. NAUGHTON: I just want to also point out

17 that the town’s own RF expert that was hired

18 independently confirmed that this was the best

19 location, the Satterlee Hollow. So the town has

20 taken a hard look at that issue, so in terms of

21 this site and this application, it’s confirmed

22 that that’s the best one.

23 MR. LEWIN: David, did you get a copy of

24 that?

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1 MR. THERAULT: Based on the propagation

2 studies with the two integrated?

3 MR. LEWIN: Did you get a copy of Mark’s

4 report?

5 MR. THERAULT: Oh, yes, I’ve got it right

6 here. In fact, that’s the one I’m referencing.

7 MEMBER OF THE PUBLIC: I’d like to make a

8 comment on gaps. I have a cell phone —

9 CHAIRMAN FRENCH: I don’t think we’re

10 taking — we can’t, sorry.

11 MR. LEWIN: We know there are gaps, we know

12 there will be gaps, if what all these experts say

13 is true.

14 MS. GILROY: It’s a small gap. When you

15 look at the Cherry Plain piece, it’s a small gap.

16 It’s a small area of service, really different

17 than Berlin. The Berlin study shows it will

18 cover more of an area.

19 MR. NAUGHTON: Peter, to bring it back to

20 the cumulative impact. Most of what we’re

21 looking at is on the environmental side, the most

22 likely scenario would be the visual. And the

23 report we’ve provided indicates that — probably

24 what all of you know from living here — they are

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1 over five miles apart, there’s a lot of terrain,

2 mountains, vegetation, et cetera between the two

3 sites, so you are not going to have a cumulative

4 impact visually from the two, and they’ve also

5 gone up on the ridge and indicated that, at least

6 with respect to the Satterlee Hollow, there’s

7 really going to be no cumulative, negative

8 significant impacts from this.

9 MR. BRENNER: Remember that the issue that

10 you are considering is not necessarily whether or

11 not the projects are separate or for RF purposes,

12 but whether or not there will be any cumulative

13 impacts. To the extent to which there are

14 impacts that we have identified with respect to

15 Cherry Plain are basically visual impacts. If

16 there are other impacts with respect to Cherry

17 Plain, it’s hard to see how they would have any

18 impact on Satterlee Hollow. And with the visual

19 impacts, there was a study prepared by the

20 applicant, by Verizon, which was submitted to the

21 board early this week —

22 MR. LEWIN: David got that, I’m sure.

23 MR. THERAULT: Yes.

24 MR. BRENNER: — which indicates that, in

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1 fact, the impacts are separate.

2 Is there a sense of the board, then, that

3 there are no cumulative impacts that need to be

4 considered, such that we can proceed with a

5 consideration of Satterlee Hollow without — that

6 which Cherry Plain will not add anything, in

7 terms of adverse cumulative impacts to the

8 consideration of the Satterlee Hollow site?

9 MR. THERAULT: I would agree.

10 MR. LEWIN: I don’t think.

11 CHAIRMAN FRENCH: Yeah.

12 MR. BRENNER: What I would also ask at this

13 point, having completed the discussion of

14 segmentation and cumulative impact, having the

15 sense of the board, I hope you’ve had a chance to

16 read the four pages that I have written. Like I

17 said, I wrote this only as a convenience for the

18 board, not to — so should those four pages be —

19 as they’re adopted, should they be what we attach

20 to the EAF as an explanation of how we’ve

21 considered segmentation or cumulative impacts, or

22 are there any changes the board would like to

23 make to that document?

24 MR. LEWIN: I have no changes.

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1 MR. BRENNER: Is that a sense — we’re not

2 going to do a resolution at this point unless —

3 CHAIRMAN FRENCH: Are you all right with

4 that?

5 MS. GILROY: (Nods.)

6 MR. THERAULT: Well, I haven’t had a chance

7 to read it.

8 CHAIRMAN FRENCH: Is this the first you’ve

9 seen it?

10 MR. THERAULT: First I’ve seen it.

11 MR. BRENNER: I did send a final copy this

12 afternoon, but I recognize everybody might not

13 have —

14 CHAIRMAN FRENCH: We’ve got four, let’s go

15 ahead.

16 MR. THERAULT: Go ahead.

17 MR. BRENNER: Okay. The next step is the

18 somewhat tedious process of going through the

19 actual impacts that we have, starting on Page 11.

20 And what I’m going to do is I’m going to read the

21 impact. I will not read my — I guess I will not

22 read my suggested answers, but I’ll leave it to

23 the board to see how the board wants to respond

24 on each item. There are a total of 20 numbered

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1 items that we’re going to be going through, and

2 there may be some items — one, will the proposed

3 action result in a physical change to the project

4 site?

5 CHAIRMAN FRENCH: Obviously, there’s going

6 to be a tower.

7 MR. THERAULT: What page are we on now,

8 Peter?

9 MR. BRENNER: Page 11.

10 MR. THERAULT: Okay.

11 MR. LEWIN: If I don’t comment, I’m in

12 agreement; is that all right?

13 MR. BRENNER: Well, okay, maybe I’ll change

14 what I said a moment ago. I said I wasn’t going

15 to read the draft answer, maybe I should read the

16 draft answers both for the record and the board.

17 Will the proposed action result in a

18 physical change to the project site?

19 Tentative answer is, yes, it’s a small to

20 moderate impact, and it cannot be mitigated by

21 any change in the project.

22 MR. THERAULT: Agreed.

23 MS. GILROY: Agreed.

24 MR. LEWIN: Agreed.

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1 MR. BRENNER: Two, will there be an effect

2 to any unique or unusual land forms found on the

3 site?

4 Tentative answer, no.

5 CHAIRMAN FRENCH: Archaeological thing we

6 indicated, also.

7 MR. BRENNER: That’s not covered by that,

8 but I think it is covered later.

9 CHAIRMAN FRENCH: Later on?

10 MR. BRENNER: Yeah.

11 MR. ADAMS: This land form is — are you

12 going to excavate a rock face or…

13 MR. BRENNER: If you had like a — if we had

14 a cave that was going to be destroyed, if you had

15 a unique dune, if there was something unique in

16 the geology of the area. We’re all — two is

17 okay?

18 MR. THERAULT: Yes.

19 CHAIRMAN FRENCH: Mm-hmm.

20 MR. BRENNER: Three, will the proposed

21 action affect any water body designated as

22 protected under various articles of the

23 Environmental Conservation Law pertaining to

24 rivers and streams, wetlands and Article 25 of

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1 the Environmental Conservation Law.

2 The tentative answer is, no, because the

3 proposed project is not immediately adjacent to

4 any water body.

5 MR. THERAULT: Agreed.

6 MS. GILROY: Yes.

7 MR. BRENNER: Okay.

8 Four, will the proposed action affect any

9 nonprotected system or body of water?

10 And again, tentative answer is, no.

11 CHAIRMAN FRENCH: No.

12 MR. BRENNER: Five, will proposed action

13 affect surface or ground water quality or

14 quantity?

15 Tentative answer is, no.

16 MR. LEWIN: No.

17 MR. BRENNER: Okay.

18 Six, will proposed action alter drainage

19 flow or patterns or surface water run off?

20 MR. LEWIN: No.

21 MR. BRENNER: Again, tentative answer is,

22 no.

23 Seven, will proposed action affect air

24 quality?

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1 Tentative answer is, no.

2 MR. LEWIN: No.

3 MR. BRENNER: No.

4 MR. THERAULT: Agreed.

5 CHAIRMAN FRENCH: Agreed.

6 MR. BRENNER: Eight, will proposed action

7 affect any threatened or endangered species?

8 The tentative answer is, no. We have

9 received, I believe, a letter from the applicant

10 indicating that they have conducted a survey,

11 which indicates that there is no impact; is that

12 correct?

13 MR. NAUGHTON: I do have a copy of that

14 letter. I believe you have it, but if you don’t,

15 we certainly have —

16 MR. LEWIN: We’ve got it.

17 MR. BRENNER: Nine, will proposed action

18 substantially affect nonthreatened or

19 nonendangered species?

20 Again, the tentative answer is, no.

21 MR. LEWIN: Agreed.

22 MR. THERAULT: Agreed.

23 MR. BRENNER: Ten, will proposed action

24 affect agricultural land resources?

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1 Tentative answer is, no.

2 MR. LEWIN: Agreed.

3 MR. THERAULT: Agreed.

4 MR. BRENNER: Eleven, will proposed action

5 affect aesthetic resources?

6 The answer to that one is, yes, and I’ve

7 identified, proposed land use, a small or

8 moderate impact for proposed land uses or project

9 proposed visible to users of aesthetic resources,

10 which will eliminate or significantly their

11 enjoyment of the aesthetic qualities of that

12 resource. But again, that’s a small or moderate

13 impact.

14 Thoughts of the board?

15 MR. THERAULT: Agreed.

16 CHAIRMAN FRENCH: Agreed.

17 MR. LEWIN: Agreed.

18 MR. BRENNER: Twelve, will proposed action

19 impact any site or structure of historic,

20 prehistoric or paleontological importance?

21 Tentative answer is, no. We also have

22 received since the — within the last week, a

23 letter from the applicant indicating that they

24 completed their archaeological investigation and

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1 found nothing of any impact. But again —

2 MR. THERAULT: Agreed.

3 MR. LEWIN: It might be good for the — to

4 the audience, let them know they were independent

5 studies. Verizon didn’t do them; right?

6 MR. THERAULT: Correct. Independent

7 consultants.

8 MR. BRENNER: Yes.

9 Thirteen, will proposed action affect the

10 quantity or quality of existing or future open

11 spaces or recreational opportunities?

12 Tentative answer is, no.

13 MR. THERAULT: Agreed.

14 MR. BRENNER: Fourteen, will proposed action

15 impact any exceptional or unique characteristics

16 of a critical environmental area established

17 pursuant to the relevant SEQRA regulation?

18 The tentative answer is, no.

19 MR. THERAULT: Agreed.

20 MR. BRENNER: I don’t think there are any

21 critical environmental areas.

22 Fifteen, will there be an effect to existing

23 transportation systems.

24 Tentative answer is, no.

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1 MR. LEWIN: No.

2 MR. THERAULT: No.

3 MR. BRENNER: Sixteen, will the proposed

4 action affect the community source of fuel or

5 energy supply?

6 MR. LEWIN: No.

7 MR. BRENNER: Okay. And that was the

8 tentative answer, as well.

9 Seventeen, will there be objectionable

10 odors, noise or vibration as a result of the

11 proposed action?

12 Tentative answer is, no.

13 MR. THERAULT: Agreed.

14 CHAIRMAN FRENCH: Agreed.

15 MR. BRENNER: Eighteen, will proposed action

16 affect public health and safety?

17 And I have tentatively said that as yes, but

18 I would note that that’s because of the potential

19 question of radiation. However, since we’re

20 precluded from considering those issues, I’ve

21 also included that the impact cannot be mitigated

22 by any project change, which I believe is

23 sufficient. There’s nothing else we can do.

24 We’ve recognized what we can recognize, but

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1 there’s nothing that can or should be done. Is

2 that the tentative answer?

3 MR. LEWIN: Agreed.

4 MR. THERAULT: Agreed.

5 MR. NAUGHTON: Peter, let me just add, we

6 did submit a report from a PE indicating that, at

7 full operation, this site is less than one

8 percent of the threshold allowed by the FCC under

9 their regulations. I just want to make sure

10 that’s clear.

11 MR. LEWIN: Very minimal.

12 MR. BRENNER: Yes. Certainly, the fact of

13 identifying it as a potential effect does not

14 mean that it is a significant effect or there

15 actually is an effect, just acknowledging the

16 potential and nothing more.

17 Nineteen, will proposed action affect the

18 character of the existing community?

19 Tentative answer, yes, because the proposed

20 action is going to enable the use of cell phones

21 in a significant portion of the town, which may

22 have an impact on the community. So that’s the

23 tentative answer. Note that it doesn’t say that

24 it will be a — the question is worded in

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1 terms — it doesn’t say it’s going to be an

2 adverse, it just asks you to identify an impact.

3 In this case, we’re not characterizing it as an

4 adverse impact.

5 MS. GILROY: Peter, you listed small to

6 moderate — can you explain that — proposed

7 action will set an important precedent for future

8 projects, what does that mean? Because here we

9 go to Cherry Plain, again.

10 MR. BRENNER: You are absolutely right.

11 That’s something to be addressed. I also have

12 checked the box of the — one of the — because

13 there are a lot of subparts of this, I haven’t

14 gone through each of the subparts where there’s

15 no checkmark. In this case, one of the

16 subquestions under, will the proposed action

17 affect the existing community, was will the

18 proposed action set an important precedent for

19 future projects, and I said yes, I said there was

20 a small to moderate impact. This is the first

21 time under the telecommunications law that the

22 Town has ever considered a cell tower

23 application. Some of the things that we’ve done

24 here in this process, the way we’ve done it may,

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1 arguably, be a precedent. You can look at the

2 way we’ve done it, there’s been certain things

3 all required by the local law. We’ve had a

4 balloon test, as required by law. We’ve had a

5 public hearing. We’ve hired a radio frequency

6 engineer, we had him make a report. We had him

7 make a report by coming here and giving a public

8 report at the meeting. These are ways of

9 proceeding. What we’re doing tonight with

10 respect to SEQRA is required by law, how we’ve

11 done it. None of this is necessarily binding

12 precedent, but the way I — certainly, somebody

13 might say, hey, zoning board of appeals, in 2009

14 when you considered this this last time, this was

15 how you did it, and you should do it the same way

16 as you did it back in 2009, whenever they say

17 that. That’s what I meant by saying it was an

18 important precedent. Understand, when a box is

19 checked here, what I’m doing is I’m acknowledging

20 that there might be some impact, and I’m trying

21 to be as inclusive as possible, saying anything

22 that might possibly impact us is something we

23 should, at least, recognize and acknowledge.

24 Nothing more than that, but nothing else. That’s

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1 what I meant.

2 MR. NAUGHTON: Peter, if I can get back to

3 Maryellen’s question or inquiry on that one. I

4 think, to some extent, the question is posed in a

5 way whether or not the Town will be bound to do

6 the same thing the next time an application comes

7 in, and I think we agree that, for example, with

8 Cherry Plain, that that application will have to

9 stand on its own merits, and this does not in any

10 way commit the board to doing the same thing with

11 respect to the Cherry Plain application.

12 MR. BRENNER: That’s right, and that’s

13 certainly the intention of it. Certainly, what

14 you are talking about there is a substantive

15 question in terms of each project is separate and

16 has its own issues. And the only precedence that

17 might be set here, I would think, or at least my

18 intention in writing this was in terms of the

19 procedure that we followed.

20 MR. NAUGHTON: Process.

21 MR. BRENNER: And the process. And again,

22 this is subject to the board’s — the board

23 can —

24 MS. GILROY: So should the comment also

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1 indicate what Mike just said, where you have the

2 project here, should there be any notation of

3 what he just said?

4 MR. NAUGHTON: I believe it’s also in the

5 record in our recent letter, too.

6 MR. BRENNER: This is the board’s document.

7 We can add that language, if you want.

8 MS. GILROY: It’s several places in the

9 document, so I’m just wondering if it should be

10 on this as well.

11 MR. BRENNER: It could be. I don’t think

12 it — there’s no reason not to, and I don’t know

13 that it’s necessary, but there’s no reason not to

14 put it in, either.

15 MR. THERAULT: I’d like to see it’s

16 included.

17 CHAIRMAN FRENCH: Could you express what you

18 are including because I missed something.

19 MS. GILROY: Sure.

20 MR. NAUGHTON: Also, I think that we’re

21 hearing an acknowledgment by the board, they’re

22 in agreement with what I just said, it’s not

23 really committing the board to act in any way

24 with respect to the Cherry Plain application.

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1 And I think in terms of it being covered on the

2 record, we’ve got a transcript here, and that

3 will take care of it.

4 MR. BRENNER: Well, in terms of the Cherry

5 Plain — since there will be a transcript, when

6 you come back for Cherry Plain, if, in fact, you

7 do come back, say, hey, we have this transcript

8 of the record. In terms of the SEQRA statement

9 we’re adopting or the environmental assessment

10 form, what I would suggest — I’ll try to

11 articulate some language, tell me if this is the

12 sense of it.

13 The proposed action may establish a

14 procedural precedent, but will not —

15 MR. NAUGHTON: Commit the board to any

16 action on future similar projects.

17 MR. BRENNER: — commit the board to —

18 CHAIRMAN FRENCH: I’m in agreement.

19 MR. NAUGHTON: You agree with that?

20 CHAIRMAN FRENCH: (Witness nods.)

21 MR. BRENNER: — specific substantive

22 determination with respect to any future project.

23 If anybody wonders why I’m writing this,

24 it’s because the EAF form itself is not in a

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1 format that I can put onto the computer, because

2 DEC only gives you — the DEC form is only a

3 fillable PDF form, it’s not anything you can

4 edit, so I had to write it out, I had to do it —

5 MR. THERAULT: The old fashioned way.

6 MR. BRENNER: Yeah. So I’ll have my

7 secretary type that in tomorrow before the formal

8 form gets sent out.

9 Twenty, is there likely to be a public

10 controversy related to public potential adverse

11 environmental impacts?

12 I’ve answered, yes, obviously, there has

13 been.

14 MR. LEWIN: There is already.

15 MR. BRENNER: I’ll read what I’ve written as

16 the draft for the board’s consideration.

17 Although the public, as evidenced by oral

18 comments received at the public hearing and

19 letters received supports the project, the board

20 has received some comments critical of siting its

21 cell tower in the town. The controversy centers

22 on the possibility that a second tower may be

23 sited at a location which some residents oppose.

24 The board has considered and rejected the

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1 argument that the second tower is part of the

2 project, and has also determined if this project,

3 even if considered in conjunction with a

4 prospective second tower, will not have

5 cumulative impacts warranting a positive

6 declaration. See supplemental statement.

7 MR. LEWIN: Mm-hmm.

8 MR. BRENNER: Is that acceptable?

9 MR. THERAULT: Agreed.

10 CHAIRMAN FRENCH: Yeah.

11 MR. ADAMS: Yeah.

12 MR. BRENNER: Okay. We have now completed

13 Part 2. We have not — of course, Part 2 of the

14 environmental assessment form.

15 Part 3 must be prepared if we have

16 identified any potential impact considered to be

17 potentially large. None of the impacts we’ve

18 identified have been potentially large;

19 therefore, we have no obligation, we’re not

20 required to complete Part 3 because there is

21 nothing additional that we need to consider.

22 Accordingly, having completed and having the

23 sense of the board with respect to Part 2, not

24 needing to complete Part 3 and having gotten the

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1 sense of the board with respect to the

2 supplemental statement addressing segmentation

3 and cumulative impacts, I think we are ready to

4 make a determination with respect to the

5 significance.

6 Is there a sense that I should articulate a

7 resolution for the board’s consideration to adopt

8 a negative declaration?

9 CHAIRMAN FRENCH: Yes.

10 MR. THERAULT: Yes.

11 MR. BRENNER: Okay. Be it resolved that the

12 Town of Berlin Zoning Board of Appeals, having

13 considered its obligations under the New York

14 State Environmental Quality Review Act and having

15 considered the criteria and the full

16 environmental assessment form and having adopted

17 a supplemental statement considering the issues

18 of segmentation and cumulative impact, has

19 determined that the proposed cell tower

20 application for Satterlee Hollow will not result

21 in any large and important impacts, and

22 therefore, is one which will not have a

23 significant impact on the environment, and

24 therefore, a negative declaration should be

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1 prepared and the board hereby directs and

2 authorizes its Chairman, Donald French, Junior,

3 to execute and sign the determination of

4 significance as a negative declaration for the

5 Satterlee Hollow cell tower application.

6 MR. THERAULT: I make that motion.

7 MR. LEWIN: Second.

8 MR. BRENNER: I’ll turn it over to the

9 Chairman.

10 CHAIRMAN FRENCH: Any further discussion?

11 (No affirmative response.)

12 CHAIRMAN FRENCH: All those in favor?

13 THE BOARD: Aye.

14 CHAIRMAN FRENCH: Opposed?

15 (No affirmative response.)

16 CHAIRMAN FRENCH: Ayes have it.

17 MR. BRENNER: So tomorrow, I will send to

18 Don, by e-mail, the completed environmental

19 assessment form with the change to that one —

20 the change that we made and with the requisite

21 boxes checked for the negative declaration. I

22 will send it to Don, and he can sign it and file

23 it with the town clerk, and I would suspect that

24 will be done by tomorrow morning.

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1 CHAIRMAN FRENCH: Or at least by tomorrow

2 night or Saturday morning.

3 MR. BRENNER: Having completed the SEQRA

4 determination, we can now move to the question of

5 the special use permit itself.

6 This is a separate document, which I have

7 also circulated and drafted.

8 MR. THERAULT: One of seven?

9 MR. LEWIN: No, one of six, you have here

10 one of seven.

11 MR. BRENNER: Yes, Page 1. Seven pages.

12 MR. LEWIN: Okay.

13 MR. BRENNER: A few words of explanation

14 about what this document is. The way the special

15 use permit is drafted, it is essentially a record

16 of everything that’s been done, and it was

17 drafted to explain the history of the

18 proceedings, the written requirements to show

19 that the applicant has complied with all of the

20 requirements of the telecommunications law, and

21 it sets forth the specific requirements that the

22 applicant is going to be — is going to be bound

23 by. The law requires that before a special use

24 permit be issued — one, it requires that we

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1 complete the — actually I’m not sure by the

2 telecommunications law, but certainly, we had to

3 comply with SEQRA, under State law, and we

4 have — it also requires that a — that we

5 approve the site plan. What I’ve done in this is

6 I’ve combined the site plan approval with the

7 granting of the special use permit, this document

8 so reflects it.

9 The document starts off by — I’m going to

10 summarize the six pages of the document — the

11 first page describes the application, describes

12 what has been submitted, it describes the

13 requirements of the law, reflects the fact that

14 Verizon was required to and did submit additional

15 information with respect to the possible Cherry

16 Plain site, describes the site plan that was

17 submitted, it also describes the information that

18 they submitted to show that they were in

19 compliance with the visual impact requirements,

20 as part of that, there has been a balloon test,

21 that we had a — we received comments, that we

22 are summarizing the comments that we received,

23 both in favor of comments and referring to the

24 petition signed by 107 residents, also mentioning

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1 the letter we received from Leah Kelly(phonetic)

2 and expressing her opinions with respect to the

3 issue of segmentation. It describes the — that

4 we did the report prepared by

5 Mr. Hutchins(phonetic), and that he acknowledged

6 that the search area map for Satterlee Hollow was

7 correct with regards to the visual impact, and

8 the supplemental visual impact analysis that was

9 submitted on Monday, and we’ve completed —

10 anticipating that we would, and we now have,

11 completed the environmental assessment form and

12 have directed the Chairman to sign and file it.

13 We, therefore, resolve that they should approve

14 the site plan, that the zoning board should

15 approve the site plan, authorizing the special

16 use permit to be granted, that the town will

17 authorize the permit. It sets forth the height

18 provisions, the total area of disturbance shall

19 not exceed the area described in the site plan,

20 it requires that the project be constructed in

21 accordance with the site plan. The issuance of

22 the permit is conditioned upon the applicant’s

23 agreement and compliance with all of the

24 requirements of the local law, applicant is

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1 required to obtain any permits required by any

2 other local, state or federal authority, and

3 Verizon is committing to establish a tower with

4 the opportunity for colocation of other

5 telecommunications, other equipment from other

6 cell phone providers, as well as, as recommended

7 by our consultant, the possibility of

8 accommodating any wireless broadband internet

9 provider that may want to use the tower, and that

10 the — and Verizon agrees to review the

11 telecommunications tower if it becomes

12 dysfunctional, in accordance with the

13 telecommunications law.

14 Finally, there is some information that was

15 not submitted because it was not practical to

16 submit it, of which we are saying that that

17 information will be submitted prior to the

18 issuance of a building permit, material

19 pertaining to the very specific information which

20 didn’t make sense to be provided until that.

21 I understand that the applicant, Mike, you

22 have a couple other things you’d like us to —

23 MR. NAUGHTON: There’s two other

24 requirements in the cell tower law that we asked

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1 for a waiver on. The first of which was the —

2 this provision, it’s a general provision that

3 would ask the applicant to name the town as an

4 additional insured with respect to the facility.

5 That would make sense in a situation where you

6 were putting this up on town property or on a

7 municipally owned facility, like a water tower.

8 It really doesn’t make any sense in this

9 situation. For example, if Stewart’s came in to

10 build a store in town, you wouldn’t make them

11 name the town as an additional insured. So we’ve

12 asked for a waiver on that part of your law.

13 We’ve also asked for another waiver. Dave,

14 can you address that?

15 MR. BRENNAN: Yes. (Pause.)

16 I’m sorry.

17 MR. NAUGHTON: There’s also a yearly FCC

18 requirement that we would provide a letter that

19 we’re in compliance. As a practical matter, we

20 don’t do that because there is no federal

21 requirements for us to do that, so it creates

22 kind of a logistical issue for us, so we’ve asked

23 that you waive off on that provision. I think

24 it’s probably for different kinds of facilities,

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1 but for a cell tower like this, it doesn’t make

2 any sense.

3 MR. BRENNAN: Just to amplify that. What it

4 is is it’s asking for a yearly certification that

5 we’re in compliance with the FCC RF emissions

6 parameters. We have submitted the report from

7 the PE indicating that, at maximum output, we’re

8 less than one percent of what the FCC allows. We

9 just feel that a yearly statement to that effect

10 is something that is unrequired. On one level is

11 also pre-empted by the federal regulation by the

12 FCC of radio frequency emission, so we’re seeking

13 a waiver for that, also.

14 MR. LEWIN: May I ask a question, then, if

15 more companies co-locate on that, how does that

16 affect what you are saying, if at all?

17 MR. BRENNAN: What is typically heard, sir,

18 they go back through your town law, which

19 regulates them in quite the same way, although

20 it’s a little easier because the tower is up.

21 But they would come in with another report, and

22 they would say, okay, Verizon is up at the top of

23 this tower, if they transmit at full strength

24 because there’s that many people on the phone and

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1 we hang our antennas below theirs and we turn

2 everything on, what is the cumulative impact of

3 everyone transmitting at full strength at the

4 same time, and they would compare that to the FCC

5 regulations. I can say that I’ve seen them with

6 four carriers on, where we’ve run this cumulative

7 analysis, and it’s still been below one percent

8 because we do transmit at such a low power —

9 MR. NAUGHTON: And the way your law is set

10 up, they would have to come in and apply and

11 you’d get that information and they would have to

12 prove to you that that’s okay at that point.

13 MR. BRENNAN: And certainly, I would take

14 that one step further. Your law is so stringent,

15 if we go in and start changing things, we may get

16 called back in. So if we change things and

17 change what we’re transmitting, we would end up

18 back in front of you, so we’re covered on a lot

19 of layers.

20 MR. NAUGHTON: So we ask for waivers on

21 those two points.

22 MR. BRENNER: Do you have any proposed

23 language? I was hoping you would.

24 MR. NAUGHTON: We can just maybe do that by

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1 separate letter. We have addressed it now on the

2 record. If we can just get a sign-off from the

3 board and we put in a letter just confirming

4 there’s been a waiver of those two items, if

5 that’s okay.

6 MR. BRENNER: I’ll ask the board for input

7 on that. I would think that we might prefer to

8 have — this is all going to be — assuming the

9 board is going to grant the special use permit,

10 that we might want everything all in one

11 document, but it might be easier.

12 MS. MAYBERRY STEVENS: I’m sure either one

13 of these esteemed gentleman can craft that on the

14 fly, here. If not, I have to reduce their fees.

15 MR. BRENNER: I was hoping they would do the

16 work.

17 MS. MAYBERRY STEVENS: There are two of you.

18 MR. BRENNER: You probably need to site the

19 specific section of the law that you are asking a

20 waiver from.

21 MS. MAYBERRY STEVENS: My guess is Mike may

22 have referenced it in his initial application.

23 MR. NAUGHTON: It’s on Page 8 of the

24 application.

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1 MR. BRENNER: Just give me a second.

2 MR. NAUGHTON: So I’m just referring, for

3 your benefit, to Pages 8 and 9 of our application

4 document, and it’s entitled “I. Waiver Requests

5 for Section 29”, and number one is the radio

6 frequency emissions, and so your language would

7 be that the applicant’s request for a waiver of

8 number one, radio frequency emissions annual

9 reporting is granted.

10 MR. BRENNAN: Section 23 of the law.

11 MR. NAUGHTON: And then item two of the

12 application, on Page 9, regarding the additional

13 insured liability insurance under Section 24 of

14 your wireless telecommunications law is granted.

15 MR. BRENNAN: Specifically, it’s Section 24,

16 Subdivision b, which is the portion that says we

17 need to name the town as additional insureds.

18 MR. NAUGHTON: Are you just getting booted

19 up there?

20 MR. BRENNER: Yeah. As soon as it gets

21 booted up, I’m going to ask for it to be read

22 back. I wasn’t entirely trusting.

23 MR. NAUGHTON: It might be easier for me to

24 do it again. Want me to do it again when you are

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1 ready?

2 MR. BRENNER: Yeah.

3 (A pause was taken in the proceedings.)

4 MR. NAUGHTON: Are you ready, Peter?

5 MR. BRENNER: Yeah, I’m ready. So I guess

6 we want to word this as —

7 MR. NAUGHTON: It’s part of your resolution,

8 really.

9 MR. BRENNER: I just want to make sure it’s

10 the same format.

11 The applicant is granted a waiver — no —

12 Verizon is granted a waiver —

13 MR. NAUGHTON: In accordance with —

14 MR. BRENNER: — granted in accordance

15 with —

16 MR. NAUGHTON: Do you want to just listen to

17 this for one second?

18 MR. BRENNER: Okay.

19 MR. NAUGHTON: Verizon is granted a waiver

20 in accordance with its request on Pages 8 and 9

21 of its application, dated December 17th, and

22 therefore, the applicant will not have to submit

23 annual RF certifications, and the applicant will

24 not have to name the town as a named insured or

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1 additional insured on its liability policy. Does

2 that cover it?

3 MR. BRENNER: That covers it. Can you read

4 that back slowly? As you said, I just listened,

5 and I didn’t —

6 MS. MAYBERRY STEVENS: It makes you

7 appreciate the secretaries that take dictation,

8 doesn’t it?

9 (Thereupon, the following excerpt of the

10 proceedings was read back by the Court Reporter:

11 “Verizon is granted a waiver in accordance

12 with its request on Pages 8 and 9 –”)

13 MR. NAUGHTON: Do you want me to say it,

14 again?

15 MR. BRENNER: Fine. Slow, absolutely. The

16 way I started it was the applicant is granted a

17 waiver —

18 MR. NAUGHTON: In accordance with its

19 request on Pages 8 and 9 of its December 17, 2008

20 application.

21 MR. BRENNER: December 17, 2008 application.

22 MR. NAUGHTON: Period. The applicant will

23 not be required to submit annual RF certification

24 reports, and the applicant will not have to name

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1 the town as a named or additional insured.

2 MR. BRENNER: Not have to name the town…

3 MR. NAUGHTON: Town as a named or additional

4 insured on its liability insurance for this

5 facility.

6 MR. BRENNER: Insured — what was that after

7 insured?

8 MR. NAUGHTON: Or additional insured for

9 this facility.

10 MR. BRENNER: For this facility, okay.

11 CHAIRMAN FRENCH: Do you want to read that

12 back?

13 MR. BRENNER: First, I’ll correct all the

14 typos, and then I’ll read it back. So I’ll read

15 it once to myself. (Pause.)

16 Let me read that back. The applicant is

17 granted a waiver in accordance with its request

18 on Pages 8 and 9 of its December 17th, 2008

19 application. The applicant will not be required

20 to submit annual RF certification reports and the

21 applicant will not have to name the town as a

22 named or additional insured for this facility.

23 MS. GILROY: Section 23 and 24.

24 MR. BRENNER: Absolutely. Is granted a

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1 waiver from the requirements of — wait a minute,

2 I’ll add the section.

3 MR. NAUGHTON: The first one is 23.

4 MR. BRENNER: 23.

5 MS. GILROY: I think he said 24(b).

6 MR. NAUGHTON: 24, Subsection b, yes.

7 MS. GILROY: 24(b).

8 MR. BRENNER: 24(b) of the communications

9 law. Granted waivers, because there’s two

10 separate waivers. (Pause.)

11 Okay. I think we’ve got it. The applicant

12 is granted waivers from the requirements of

13 Section 20-23 and 24(b) of the telecommunications

14 law in accordance with its requests on Pages 8

15 and 9 of its December 17th, 2008 application.

16 The applicant will not be required to submit

17 annual RF certification reports and the applicant

18 will not have to name the town as a named or

19 additional insured for this facility.

20 MR. NAUGHTON: That covers it.

21 MR. BRENNER: Yeah. The part of me that’s

22 the journalist sort of doesn’t like “name the

23 town as a named”, but I suppose this is legal

24 writing, so it doesn’t have to be —

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1 CHAIRMAN FRENCH: Doesn’t have to make

2 sense.

3 MR. BRENNER: Right. Now, that’s simply

4 just adding that to the language, we haven’t

5 adopted anything. The board has not considered

6 this. But I have summarized, before we went off

7 on that, going into those waivers, I did

8 summarize what the special use permit is. Any

9 reaction, thoughts, comments? The board should

10 discuss it, think about it.

11 MR. LEWIN: Why not get an annual report?

12 JULIE HARRELL: Thank you.

13 MR. BRENNER: I’m going to leave that to the

14 applicant to respond to.

15 MR. LEWIN: Whether you do it or not in

16 other towns, I don’t know, and I don’t really

17 care. But it is minimal from what I’ve read and

18 what you’ve said, but what’s the big deal about

19 not —

20 MS. MAYBERRY STEVENS: As Mike said, it’s

21 more of an issue of practicality than anything

22 else.

23 MR. LEWIN: Well, if it’s practical, then do

24 it.

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1 MS. MAYBERRY STEVENS: Well, no, actually,

2 the problem is it’s impractical from our

3 perspective.

4 MR. LEWIN: Why? I need help here.

5 MS. MAYBERRY STEVENS: Ultimately, we don’t

6 have a specific group or department or — there

7 is no personnel who would be tracking this,

8 there’s no mechanism in place —

9 MR. LEWIN: To measure?

10 MS. MAYBERRY STEVENS: — that says on an

11 annual basis for a particular facility in a

12 particular town this report needs to be created.

13 It’s different from, let’s say, the automated

14 rent roll for paying a landlord where all of the

15 thousands of sites that Verizon Wireless has

16 across the country, everything gets put in and

17 checks are automatically distributed or insurance

18 policies, if something has to be sent out, it’s

19 automatically done. There’s simply no mechanism

20 for it within the company. What it would fall to

21 would be me or somebody like me who is handling

22 another project to, for instance, have a tickler

23 in some system somewhere that reminds me, oh,

24 it’s time for that annual report. I may not be

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1 here tomorrow, I may not be here two years from

2 now. And if I’m not here and I’m not the one

3 remembering somehow my Microsoft Outlook tasks is

4 setting that up, there’s no mechanism for having

5 somebody do that.

6 MR. NAUGHTON: If I can just add another

7 layer to it —

8 MR. LEWIN: It still doesn’t make sense.

9 MR. NAUGHTON: This is a very unusual

10 provision in your law. So if all the towns had

11 these provisions in their law, then obviously,

12 Verizon would have a mechanism, have it all set

13 up where they would comply. I don’t know why

14 this is in there. But for a telecommunications

15 provider like Verizon, it doesn’t really make any

16 sense because the RF isn’t going to change. So

17 if all towns had these requirements, we would be

18 doing this and sending them in, and it would be a

19 matter of course. But it’s a very strange thing.

20 And Verizon wants to — if it says it’s going to

21 do something in accordance with this permit, it

22 wants to comply. And what we’re hearing is, it’s

23 going to be difficult to ensure that we do

24 comply. We don’t want to be out of compliance by

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1 not sending in that letter.

2 MR. LEWIN: I’m sure you don’t. What would

3 change it, then — I don’t want to prolong

4 this — if you put up different panels or

5 something, the RF?

6 MR. NAUGHTON: If someone were to come in

7 and put up different panels, then as we

8 indicated, we would have to come back in and

9 amend the application, and then you would be

10 getting that information in connection with that.

11 So nothing is going to change up there because it

12 can’t under your application.

13 MR. LEWIN: Until you change panels?

14 MR. NAUGHTON: Right. And we would have to

15 come in and ask for that first.

16 MR. LEWIN: Okay. Thank you.

17 MR. NAUGHTON: The equipment that we are

18 applying for is going to be up there until we

19 have to come in and request an amendment of our

20 application. That’s according to your own law;

21 right, Dave?

22 MR. BRENNAN: Yes. And then at that time,

23 we routinely will have a professional engineer go

24 through and say, okay, with these changes, where

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1 are we with respect to compliance with the FCC?

2 And at that time, I can almost be assured that

3 it’s still going to say we’re well below one

4 percent because I’ve seen so many of those

5 reports now, I’m comfortable with that at the low

6 powers we use, and we’ll update the board at that

7 point.

8 MR. NAUGHTON: It’s a good question, though.

9 MS. MAYBERRY STEVENS: As an added

10 assurance, as much as we want to be in compliance

11 with the local regulations, what is of utmost

12 importance to us is to be in compliance with our

13 license requirements. And if we were to not be

14 in compliance with the FCC regulations, we risk

15 very heavy fines and we —

16 MR. LEWIN: You won’t be here next year.

17 MS. MAYBERRY STEVENS: We risk much more

18 than a problem with you here. We would risk a

19 problem nationally, and that’s just simply

20 something that we’re not going to put ourselves

21 in that risk category.

22 MR. LEWIN: Satisfied. Thank you.

23 MS. GILROY: So you don’t do this for any

24 other municipality?

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1 MS. MAYBERRY STEVENS: No. I have yet to

2 have to do that.

3 MS. GILROY: You haven’t seen that.

4 MR. BRENNER: The board, obviously, doesn’t

5 have to accept the waivers and we can change any

6 or all of the special use permit as drafted or

7 even adding that additional paragraph with the

8 waivers, but it’s up to the board.

9 MR. LEWIN: I’m happy with what you have

10 there.

11 CHAIRMAN FRENCH: Somebody want to make a

12 motion that we accept this as amended?

13 MR. ADAMS: I make a motion.

14 CHAIRMAN FRENCH: Second?

15 MR. LEWIN: Second.

16 CHAIRMAN FRENCH: Further discussion?

17 MR. BRENNER: So the motion, I guess, should

18 be in the form of does the — be it resolved that

19 the Town of Berlin Zoning Board of Appeals hereby

20 authorizes and directs the — hereby approves

21 this special use permit and site plan approval

22 for the application of Cellco Partnership, doing

23 business as Verizon Wireless, to construct a

24 telecommunications facility at the Satterlee

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1 Hollow site, and hereby authorizes and directs

2 its Chairman, Donald French, Junior, to so

3 certify and sign the permit and file it with the

4 town clerk. That will be the resolution.

5 Somebody needs to make that motion.

6 MR. ADAMS: Okay. I’ll make the motion.

7 CHAIRMAN FRENCH: Second?

8 MR. LEWIN: Second.

9 CHAIRMAN FRENCH: Any further discussions?

10 MR. THERAULT: Well, I would have much

11 preferred to considered the two projects as a

12 tandem. In the spirit of cooperation, I’ll go

13 with you on this.

14 CHAIRMAN FRENCH: Okay.

15 MR. THERAULT: I think it’s a giant step

16 forward for the town. I think there could have

17 been greater opportunities had we looked at it a

18 little closer, in terms of the Toadson(phonetic)

19 Road property. I don’t think that was handled

20 quite the way that it should be. I think the

21 town is setting itself up for, perhaps, some

22 legal challenges on that site, because it was

23 such a good reasonable alternative to the

24 proposed site. But I understand the opposition

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1 for that site.

2 MR. LEWIN: When you said possible lawsuit,

3 you are referring to the reservoir site?

4 MR. THERAULT: Well, just in terms of, if

5 this process is reviewed by a higher authority or

6 in some legal forum, there’s been no formal

7 acknowledgment by the town board to prohibit

8 siting a facility there.

9 MR. LEWIN: Okay, okay.

10 MR. THERAULT: There’s been informal

11 discussion and comments.

12 CHAIRMAN FRENCH: But there are comments

13 from the landowner who has given the town the

14 right of way to that site, and that landowner

15 says it will not give permission to Verizon or

16 anybody else to use that right of way to go in

17 and use that site. That’s the first item.

18 The second item is, Mark Hutchins indicated

19 that because of the ridge to the south of that

20 site, the site would not give the coverage that

21 the Satterlee Hollow site does.

22 MR. THERAULT: I understand that. And Mark

23 Hutchins identified, in an ideal area where the

24 facility could be constructed and deliver about

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1 the same level of service throughout the town,

2 and that site happens to be on the edge of that

3 ideal area. And I believe that if the Cherry

4 Plain facility were to move to a different site,

5 that ideal area would be shifted, somewhat in

6 favor of that site. But that’s my objections.

7 I think the Satterlee Hollow is a good site.

8 I think it’s — in terms of the aesthetics, I

9 think it’s achieved quite a bit in its setting,

10 it’s not, what they call, daylit, exposed on a

11 hill top. And I only wish that we could have

12 achieved more comprehensive wireless

13 communications for the Town of Berlin on the

14 north end with one facility.

15 I believe that the Verizon company is trying

16 to achieve too much with too little in,

17 essentially, ten miles of very tough terrain,

18 they just proposed two facilities, and I’m

19 concerned about the coverage gaps. I’m concerned

20 about certain roads in town with no coverage,

21 Green Hollow being one, very low coverage on

22 Southeast Hollow.

23 And so with those reservations, I would join

24 the board in approving the project.

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1 CHAIRMAN FRENCH: Thank you.

2 MR. LEWIN: So in other words, you think

3 there should be more towers, David, to cover

4 these other things?

5 MR. THERAULT: Yes.

6 MR. LEWIN: Okay.

7 CHAIRMAN FRENCH: In Verizon’s defense, the

8 town board indicated to them early on it didn’t

9 want more than two towers. As it is, we’re going

10 to end up with three, which is the one we didn’t

11 know about, which is up on Gutermuth Road, which

12 is not that far from you.

13 MS. GILROY: Just in response to that,

14 David, we’re concerned about visual impacts and

15 two, at least, minimizes it. You don’t want to

16 have towers all over. So I think we should try

17 to do the best we can to cover a public need.

18 And if there’s some gap in coverage, well, you

19 have gaps. But frankly, as a resident here, I

20 don’t want to see cell phone towers all over.

21 MR. LEWIN: I’d rather not see the two we’re

22 going to have, but we have to get into the 21st

23 century.

24 MS. GILROY: Correct. But the law says we

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1 cannot prevent those from going up, so we have to

2 abide by the law. But again, it’s a trade-off,

3 and those things are always trade-offs, so we

4 should really be limiting them.

5 CHAIRMAN FRENCH: Is there more discussion?

6 (No affirmative response.)

7 CHAIRMAN FRENCH: All those in favor?

8 THE BOARD: Aye.

9 CHAIRMAN FRENCH: Opposed.

10 (No affirmative response.)

11 CHAIRMAN FRENCH: That’s it.

12 MS. GILROY: Peter, just in response, on the

13 County Planning Board, you need to sign within

14 30 days the decision, the copy of our action to

15 them, just as a reminder.

16 MR. BRENNER: Right.

17 MS. GILROY: And as we go forward, we had

18 asked the County Planning Board to review the

19 zoning board action for Cherry Plain, has that

20 been received, Don?

21 CHAIRMAN FRENCH: From?

22 MS. GILROY: From the County Planning, from

23 Linda to you?

24 CHAIRMAN FRENCH: I received nothing. We

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1 sent it in to them, but I got nothing back.

2 MS. GILROY: Okay, okay.

3 CHAIRMAN FRENCH: At least nothing that I’m

4 aware of. Having said that, sometimes the mail

5 is slow.

6 MS. GILROY: Okay. Because we sent that out

7 in January, and I think we should know before we

8 go forward with Cherry Plain.

9 CHAIRMAN FRENCH: If my memory serves me

10 correctly, if they don’t respond within 30 days,

11 they aren’t objecting.

12 MS. GILROY: No, they would put that in

13 writing. So I can follow-up with Linda.

14 CHAIRMAN FRENCH: Please do so, so we’ve

15 covered ourselves.

16 MS. GILROY: How do we go forward with

17 Cherry Plain? Is that a discussion here?

18 MR. BRENNER: I’ll ask that question.

19 MR. NAUGHTON: We have some technical issues

20 still we want to work out. So we need a little

21 more time on that to review those technical

22 issues.

23 MR. BRENNER: You have done the balloon

24 test?

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1 MR. NAUGHTON: Yes.

2 MR. BRENNER: So the next step in our

3 process would be to convene a public hearing.

4 MR. NAUGHTON: Right.

5 MR. BRENNER: Which if you have some other

6 issues, you might want to submit some revised

7 material to us —

8 MR. NAUGHTON: We might have to submit some

9 kind of supplement just on some of the technical

10 issues. So we need a little more time on that,

11 so we’re not pushing that forward.

12 MR. BRENNER: Okay. Could you send us a

13 letter to the effect that we should hold it in

14 abeyance until such time —

15 MR. NAUGHTON: Yes.

16 CHAIRMAN FRENCH: Cherry Plain?

17 MR. BRENNER: On Cherry Plain.

18 MS. MAYBERRY STEVENS: I just mentioned that

19 very same thing to Dave.

20 MR. BRENNER: We don’t want to be accused of

21 not proceeding on it.

22 MS. MAYBERRY STEVENS: Because you have some

23 obligations on timing.

24 CHAIRMAN FRENCH: Did you run another

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1 balloon test up in that area?

2 MR. NAUGHTON: We had a balloon up because

3 the supplemental report we put in indicating

4 areas along the trail. We had floated a balloon,

5 yes.

6 CHAIRMAN FRENCH: That clarifies that

7 because I’ve been asked.

8 MR. NAUGHTON: That was us.

9 MR. LEWIN: That was just about a week ago;

10 right?

11 MR. NAUGHTON: Is there anything else on the

12 agenda?

13 MR. BRENNER: The only thing we still have

14 to do, I guess, the board probably wants to

15 consider this, in a technical sense, we never

16 approved the minutes from last month’s meeting,

17 which we probably should.

18 MR. THERAULT: I make a motion we accept the

19 minutes as printed.

20 MR. LEWIN: Second.

21 CHAIRMAN FRENCH: All in favor?

22 THE BOARD: Aye.

23 CHAIRMAN FRENCH: Opposed?

24 (No affirmative response.)

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1 CHAIRMAN FRENCH: The ayes have it.

2 (Whereupon, the proceedings in the

3 above-entitled matter concluded at 9:06 p.m.)

4 *****

7 C E R T I F I C A T I O N

9 I, SADIE L. HERBERT, Shorthand Reporter and

10 Notary Public in and for the State of New York,

11 do hereby CERTIFY that the foregoing record taken

12 by me at the time and place noted in the heading

13 hereof is a true and accurate transcript of same,

14 to the best of my ability and belief.

16 ________________________________

17 SADIE L. HERBERT

19 Dated: May 8, 2009

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Berlin ZBA April 16, 2009 Minutes

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