Preview
FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024
EXHIBIT A
FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024
COUNTYOF GREENE
STATEOF NEWYORK
___________________________________________________Ç
In the Matter of the Application off
ARXWIRELESSINFRASTRUCTURE,
LLC and
BELLATLANTIC MOBILESYSTEMSLLC, d/b/a
VERIZONWIRELESS
For Site Plan Approval and Special Use Permit
Premises: Farm to Market Road at or near the intersection of
Briarwood Drive, Athens, NewYork 12015
Section 105.00 Block 1 Lot 8.11
___________________________________________________
MEMORANDUM
IN OPPOSITION
Respectfully Submitted,
Andrew J. Campanelli
Campanelli &
Associates, P.C.
1757 Merrick Avenue, Suite 204
Merrick, NY 11566
Attorneys for:
Lawrence Farrell
Rebecca Pine
Russel Nadler
Graham, Hailee, Zachary & Brooke Dickson
Michael & David Barnes
John & Tammi Farrell
Dale & Wendy Huber
Nathan Huber
Joseph Lidestri
James McDermot
Annmarie & ThomasKrause
Karen Boeri
E. Timothy Mercer
Meg Muenkel
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Raena Stern
Melissa & Fred Vail
Craig &
Kathy Schrowang
Herbert Blasewitz
Linda &
Steven Van Hoesen
PatriciaGreen
Ralph Vandriesco
Dennis and Mary Deleonardis
Thomas McManus & Allison Smith
Tim & Carrol Mercer
WayneDeyo
Mary, Josh & Nate Hodor
Edward Mickle
Anthony Matthies & Anna Affatato
Ingrid Hylkema
Thomas & Nicole Kingsley
Scott & Julia Miller
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Table of Contents
Preliminary Statement..........................................................,........................................................1
POINTI Granting Verizon Permission to Construct a 155 foot Cell
Tower at the Proposed Location Would Violate Both the
Requirements Of the Zoning Code, and the Legislative
Intent Upon Which Those Requirements Were Enacted.....................................2
A. Zoning Regulations and Purpose....................................................2
B. Local Authority to Regulate Telecommunications Facilities..................4
C. Site Plan Review and Special Use Permit Requirements........................5
(i) Site Plan Review............................................................8
(ii) Special Use Permit Review................................................9
D. Verizon's Irresponsible Placement of Its Proposed Wireless
Facility Will Inflict Adverse Impacts Upon the
Substantial
Aesthetics and Character of the Area..............................................9
E. Probative Evidence of the Actual Adverse Aesthetic Impacts
Which the Facility Will Inflict Upon the Nearby Homes......................11
F. The Proposed Will InflictInstallation
Substantial and Wholly
Unnecessary Losses in the Values of Adjacent and Nearby
Residential Properties...............................................................14
G. Verizon's Visual Assessment Is Inherently Defective
and Should Be Disregarded Entirely.............................................17
POINTII §6409(A) of the Middle-Class Tax Relief and Job Creation Act
of 2012 Allows Verizon to Increase the Height of the Facility
Without Further or Prior Zoning Approval... ......................................18
POINTIII Verizon Has Failed to Proffer Probative Evidence Sufficient to
a Need for the Proposed Tower at the Location and Height
Establish
Proposed, or That the Granting of its Application Would be Consistent
With the Smart Planning Requirements of the Zoning Code......................20
A. Verizon Has Failed to Submit Probative Evidence in
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Support of Its Alleged Need for the Proposed Tower
Height and Location Proposed .............................................21
at the
(i) The Applicable Evidentiary Standard..................................,...21
(ii) Verizon Has Failed to Meet Its Burdens...................................22
(iii) The Lack of Hard Data......................................................23
B. Verizon's Analysis Regarding Its Wireless Coverage
Is Contradicted By Verizon's OwnActual Coverage Data....................24
C. ExteNet Systems, Inc. v. Village of Flower Hill
and Flower Hill Board of Trustees...............................................26
POINT IV To Comply With the TCA, Verizon's Application Should Be Denied
In A Written Decision Which Cites the Evidence Provided 11erein.............27
A. The Written Decision Requirement..............................................27
B. The Substantial Evidence Requirement..........................................27
C. The Non-Risks of Litigation..........................................................................28
Conclusion....................................................................................................................................29
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Preliminary Statement
ARXWireless Infrastructure, LLC and Bell Atlantic Mobile Systems LLC d/b/a Verizon
Wireless, (hereinafter "Verizon,") has filed an application seeldng a special use permit and site
plan approval to install a 155 foot monopole at the approximate intersection of Farm to Market
Road and Briarwood Drive in the Town of Athens. This location is zoned Agricultural but is
surrounded by residential lots. The homes in the area are generally two-story with some wooded
areas, but this 155 foot, 15½ story tower will loom over this community, forever changing its
character. It's impossible to camouflage such a monstrosity, no matter how vigorously ARX
Wireless claims it will blend into the neighborhood. This memorandumin opposition is being
submitted on behalf of multiple homeowners whose homes are situated adjacent to or in close
proximity to the site for Verizon's proposed cell tower.
As discussed more fully below, approving Verizon's site plan and granting a special use
permit not only violates applicable zoning regulations as well as the Town and Village of Athens
Comprehensive Plan, it would inflict upon the nearby homes and surrounding community the
very types of adverse impacts zoning regulations are designed to prevent.
Granting Verizon's application and allowing the irresponsible placement of such a facility
would be greatly exacerbated by the fact that, as addressed below, the community would derive
no benefit whatsoever from the installation. Thus, the Planning Board should deny Verizon's
application for the following reasons:
(a) Verizon has failed to establish that granting-the application would be consistent
with the requirements of the applicable zoning laws;
(b) granting the application would violate both the Town of Athens Zoning Code and
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its legislative intent;
(c) the applicant has failed to establish that the proposed facility:
(i) is actually necessary for the provision of personal wireless services within the
Town, or
site.1
(ii) that it is necessary that the facility be built at the proposed
(d) placement of the proposed facility
the irresponsible would inflict upon the nearby
homes and community the precise types of adverse impacts which the Zoning Code wawenacted
to prevent; and
(e) Verizon has not established how the denial of its current application would
amount to an effective prohibition under the Telecommunications Act of 1996.
As such, it is respectfully submitted that Verizon's application should be denied in a manner
consistent with the requirements of the Telecommunications Act of 1996 ("TCA").
POINTI
Granting Verizon Permission to Construct a 155 Foot Cell
Tower at the Proposed Location Would Violate Both the
Requirementsof the Zoning Code and the Legislative Intent
Upon Which Those Requirenients Were Enacted
Verizon's application for Site Plan/Special Use Permit approval should be denied
because granting such application would violate both the requirements of the Zoning Code, as
well as the legislative intent behind those requirements, by inflicting upon the adjacent homes
and community the precise types of adverse impacts the applicable provisions of the Zoning
Code were specifically enacted to prevent.
A. Zoning Regulations and Purpose
§180-15 B of the Town Zoning Code, entitled "Regulations specific to districts provides
that in an Agriculture
District,"
a telecommunications facility is not a permitted use - hence the
1
See Point m, infra.
2
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need for a special use permit. This is simple common sense. A cell tower is not compatible
with agricultural use, and it is in the best interests of the farming community and adjacent
neighborhood to preserve those land features necessary for functioning farmlands.
§180-15(B)(5)(a) requires the Planning Board to consider the compatibility of the tower with
existing uses on adjacent lands (§180-15B(5)(a)[3]) and the location of the tower on the parcel
in relation to scenic resources and the ability of the project design to minimize interruption of
scenic views from public roads (§180-15B(5)(a)[8]).
The purpose of the Town's Zoning Code is
to exercise a town's right to protect its citizens and their property
by controlling the use of land under authority of the Town Law and
the Municipal HomeRule Law of NewYork, to broadly
the State of
protect the public health, safety and general welfare and to cany
out locally established goals and objectives in a democratic manner
in accordance with the Town's Comprehensive Plan.
(§180-L Purpose)
"The overriding goal to maintain and enhance the unique features of the community that
makeAthens a quality place to live and to maintain the rural, small town character of the
community." Id. In accordance with this stated purpose, the Town seeks to:
B. Protect natural resources, including but not limited to air, water
and wildlife resources, scenic views, open spaces, and the Hudson
River and its associated resources.
C. Protect and enhance the natural beauty of the Town and its rural
landscape and character....
L Protect residences from nuisances, odors, noise, pollution and
other unsightly, obtrusive and offensive land uses and activities
and to secure safety from fire, flood or other dangers.
Id
The Town's Comprehensive Plan makes clear that an overarching principle of the
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Town and its citizens is protection of the Town's charm, rural character, scenic landscapes and
small town community atmosphere. As noted in this Vision Statement from the
Comprehensive Plan:
A vision statement describes our community's values and
aspirations and offers a shared image of what people want
Athens to become over the next 10 to 15 years. The
statement is based on extensive community input and
addresses all aspects that contribute to the social, cultural,
environmental, and economic fabric of the Town and Village.
Wecontinue to treasure and protect our forested and farmed
rural areas with undisturbed views of the Catskill Mountains,
Athens'
Berkshires ... Effective code enforcement contributes to
beautiful appearance.
residents'
In response to the overwhelming desire to preserve this bucolic way of life the
Town crafted the following Goals for the Town:
Assess, protect, and enhance the environment to sustain the
quality of natural resources, the rural landscape, and diversity
of wildlife habitats.
...
Preserve scenic views of the rural environment, the Hudson
River, views of the Catskill and Berkshire M.ountains, open
spaces, and other important physical features in Athens.
B. Local Authority to Regulate Telecommunications Facilities
The proliferation of cell towers has resulted in the need for municipalities to pass
legislation to regulate their construction. Although many site developers and cellular service
providers will argue that the Telecommunications Act of 1996 (TCA) prohibits local
governments from regulating telecommunications facilities, this is simply untrue. The TCA,
47 U.S.C. §332(c)(7) preserves local zoning authority. Subsection (A) provides for general
authority:
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(7) Preservation of'local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this
chapter shall limit or affect the authority of a State or
local government or instrumentality thereof over decisions
regarding the placement, construction, and modification
of personal wireless service facilities.
While subsection (B) forbids a municipality from "unreasonably discriminat[ing] among
providers" services"
and from "prohibiting the provision of personal wireless altogether, the fact
remains that a Town may restrict the placement, location, construction and modification of cell
towers in their community through zoning regulations. See, Cellco Partnership v. Town of Clifton
Park, NZ 365 F.Supp. 248 (N.D.N.Y. 2019).
Therefore, the Town of Athens has promulgated Chapter 162 of the Town Code which
regulated telecommunications towers. This chapter is, in effect, a zoning regulation of cell
towers and should be read in conjunction with the Town's other zoning laws as well as the
Comprehensive Plan.
The stated purpose of the Telecommunications Towers chapter - §162-3 - is to
promote the health, safety and general welfare of the residents
of the town; to provide standards for the safe provision of
telecommunications consistent with applicable federal and state
regulations; to minimizenumber of towers in the
the total
community by encouraging shared use of existing and future
towers and the use of existing appropriate buildings and other
appropriate structures; and to minimize adverse visual effects
from towers by requiring careful siting, visual impact
assessment and appropriate landscaping.
The Town accomplishes this purpose through the requirement that shared use of existing
appropriate structures and existing towers "shall be preferred to the construction of new towers."
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(§162-5, emphasis added).
The Board may consider the erection of a new tower if the applicant sufficiently
demonstrates that shared use is impractical. (§162-6, emphasis added), As part of this
requirement, the applicant must present an adequate report detailing
all existing appropriate structures and existing or approved
towers within a reasonable distance of the proposed site.
The report shall demonstrate goodfaith efforts to secure
shared use from the owner of each existing appropriate
structure and existing or approved tower as well as
documentation of the physical, technical and/or financial
reasons why shared usage is not practical in each case.
Written requests and responses for shared use shall be provided.
(§162-6, emphasis added)
If an applicant legitimately cannot make use of an existing structure or tower, they may
next seek to construct a new tower at an existing tower site. (§l 62-7). Again, if such placement
of a tower at an existing tower site is impractical, the applicant is required to provide evidence of
the applicant's efforts in investigating such locations and documentation of the reasons the site is
not practical in accordance with §162-6, above.
The Board may consider a new tower at a new location only when the applicant has
submitted a report demonstrating that shared use of existing structures or existing towers; or
constructing a new tower at an existing tower site is impractical and the Board determines this to
be true. §162-8.
Verizon has failed to comply with these requirements. Annexed as Exhibit "A" is a letter
from the Sleepy Hollow Lake Community Association Manager, Laurel Wolfe, and the APO
SHLBoard President, Janet Kaplan. This letter explains that their community is actually anxious
to place a cell tower on an existing water tower on their property. Sleepy Hollow Lake is located
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across the road from the proposed site. Yet neither ARXnor Verizon contacted Sleepy Hollow
Lake to investigate placing the tower on Sleepy Hollow's water tower. In fact, Sleepy Hollow
attempted to contact Verizon to discuss placing a tower on their water tower, but did not receive
any reply.
Verizon's has submitted a list of alternate sites investigated that consists of 4 properties, 3
of which appear to be owned by the same party - Wais Properties and/or Patricia Green. It
cannot seriously be said that this amounts to any real effort at all, let alone a good faith
investigation of alternate sites.
Clearly, where there 1s an existing structure (Sleepy Hollow's water tower) and a willing
property owner, but neither ARX, nor Verizon madeany effort to investigate placing the
proposed tower there, Verizon has not followed the procedure necessary for the Board to approve
a new tower at a new location. Therefore, Verizon's application should be denied.
C. Site Plan Review and Special Use Permit Requirements
Even if the application to construct a new tower at a new site were to be approved, the
applicant still must submit a site plan and supporting documentation. §162-8B requires an
applicant to minimize the following potential impacts:
(1) Visual/Aesthetics
(2) Diminution of property values
(3) Safety
§162-10 requires an applicant to submit a site plan and supporting documentation (including a
short EAF and visual EAF), while §162-12 requires submission of an assessment of the visual
impact of the tower on abutting properties.
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(i) Site Plan Review
Article IV Site Plan Review and Special Use Permits (§180-55 and §180-56) also have
requirements which must be met. have similar requirements. The standards for site plan review
includes, but is not limited to:
(a) The character of the Town, neighborhood and values
of surrounding property are safeguarded.
(k) Protection of adjacent properties against noise, glare,
unsightliness or other objectionable features.
) Protection of critical wildlife habitats and preservation
of a diversity of habitats to support wildlife....
(§l80-55 emphasis supplied)
Like §162-12, §180-55(D)(10) requires submission if a visual impact assessment. As
discussed further, below, the applicant's visual assessment is faulty and misleading. The
requirements for a visual assessment for purposes of SEQRdiffer from the elements necessary
for an informative visual assessment as it relates to abutting property owners. While SEQRmay
requi-re assessment as to the visual impact of a cell tower on parks, scenic byways and other
public access sites, the most relevant visual assessment in this case is the impact on the nearby
homeowners and the surrounding neighborhood. The placement of a cell tower at the proposed
site will forever change the character and property values of the surrounding neighborhood. The
unsightly tower which will loom far above the houses and trees of the area would not only
change the character of the neighborhood, but will have a severe negative impact on home
values.
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(ii) Special Use Permit Review
Section 180-56(E)(1) requires that the tower be in
harmony with the orderly development of the district, and the
location, nature and height of [the tower] will not discourage
the appropriate development and use of adjacent land and buildings,
or impair the value thereof, and will be consistent with the
Town and Village of Athens Comprehensive Plan and with the
protection of the rural character and enviromnent of the Town.
Subsection (E)(4)(b) requires "compatibility of the proposed use with adjoining
area..." §180-
properties, with the natural and built environment in the (emphasis supplied).
56(E)(4)(m) requires "protection of adjacent properties against ... unsightliness or other
features..." of
objectionable while (E)(4)(p) safeguards the "character the Town, neighborhood
property"
and values of surrounding (emphasis added).
it is clear that the applicable Zoning Code provisions, Comprehensive Plan and
Telecommunications Towers regulations were enacted specifically to safeguard the Town's
quality of life, small town character, and scenic views and to protect homeowners from unsightly
and objectionable land uses. It is also clear that the construction of the proposed cell tower
would be contrary to the purpose and goals of these thoughtfully promulgated laws.
D. Verizon's Irresponsible Placement of Its Proposed
Wireless Facility Will Inflict Substantial Adverse
Impacts Upon the Aesthetics and Character of the Area
It is beyond argument that the irresponsible placement of Verizon's proposed 155 foot
wireless telecommunications tower at the proposed location will cause the facility to stand out
like a sore thumb, dominate the skyline, and inflict substantial adverse aesthetic impacts upon the
nearby homes. In an agricultural and residential community madeup of one and two story
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homes, where the trees stand approximately 80 feet tall, the tower would rise far taller than any
of the nearby homes or trees. The proposed tower is not compatible with the adjacent properties
as required by the standards for granting a special use permit. In fact, it is unsightly and
objectionable, in contravention of the requirements of both site plan review and special use
permit issuance. Further, allowing the construction of the tower would be the antithesis of
safeguarding the character of the Town and neighborhood, and the values of the surrounding
properties.
Verizon's visual assessment does not present an accurate picture of the impact that the
nearby homes and surrounding area would suffer if Verizon's application is granted. The
photographs contained in their assessment, even if in compliance with the Board's direction
and/or SEQR, fail to present the dramatic negative consequences upon nearby homes. Attached
as Exhibit
"B" are copies of photographs taken by homeowners while the balloon test was being
conducted, together with two simulations depicting the resulting view. These photographs and
simulations plainly show that the tower will be clearly visible to many homeowners and the
neighborhood in general.
Verizon has not even bothered to present to the Town any meaningful
Preview
FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 EXHIBIT A FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 COUNTYOF GREENE STATEOF NEWYORK ___________________________________________________Ç In the Matter of the Application off ARXWIRELESSINFRASTRUCTURE, LLC and BELLATLANTIC MOBILESYSTEMSLLC, d/b/a VERIZONWIRELESS For Site Plan Approval and Special Use Permit Premises: Farm to Market Road at or near the intersection of Briarwood Drive, Athens, NewYork 12015 Section 105.00 Block 1 Lot 8.11 ___________________________________________________ MEMORANDUM IN OPPOSITION Respectfully Submitted, Andrew J. Campanelli Campanelli & Associates, P.C. 1757 Merrick Avenue, Suite 204 Merrick, NY 11566 Attorneys for: Lawrence Farrell Rebecca Pine Russel Nadler Graham, Hailee, Zachary & Brooke Dickson Michael & David Barnes John & Tammi Farrell Dale & Wendy Huber Nathan Huber Joseph Lidestri James McDermot Annmarie & ThomasKrause Karen Boeri E. Timothy Mercer Meg Muenkel FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 Raena Stern Melissa & Fred Vail Craig & Kathy Schrowang Herbert Blasewitz Linda & Steven Van Hoesen PatriciaGreen Ralph Vandriesco Dennis and Mary Deleonardis Thomas McManus & Allison Smith Tim & Carrol Mercer WayneDeyo Mary, Josh & Nate Hodor Edward Mickle Anthony Matthies & Anna Affatato Ingrid Hylkema Thomas & Nicole Kingsley Scott & Julia Miller FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 Table of Contents Preliminary Statement..........................................................,........................................................1 POINTI Granting Verizon Permission to Construct a 155 foot Cell Tower at the Proposed Location Would Violate Both the Requirements Of the Zoning Code, and the Legislative Intent Upon Which Those Requirements Were Enacted.....................................2 A. Zoning Regulations and Purpose....................................................2 B. Local Authority to Regulate Telecommunications Facilities..................4 C. Site Plan Review and Special Use Permit Requirements........................5 (i) Site Plan Review............................................................8 (ii) Special Use Permit Review................................................9 D. Verizon's Irresponsible Placement of Its Proposed Wireless Facility Will Inflict Adverse Impacts Upon the Substantial Aesthetics and Character of the Area..............................................9 E. Probative Evidence of the Actual Adverse Aesthetic Impacts Which the Facility Will Inflict Upon the Nearby Homes......................11 F. The Proposed Will InflictInstallation Substantial and Wholly Unnecessary Losses in the Values of Adjacent and Nearby Residential Properties...............................................................14 G. Verizon's Visual Assessment Is Inherently Defective and Should Be Disregarded Entirely.............................................17 POINTII §6409(A) of the Middle-Class Tax Relief and Job Creation Act of 2012 Allows Verizon to Increase the Height of the Facility Without Further or Prior Zoning Approval... ......................................18 POINTIII Verizon Has Failed to Proffer Probative Evidence Sufficient to a Need for the Proposed Tower at the Location and Height Establish Proposed, or That the Granting of its Application Would be Consistent With the Smart Planning Requirements of the Zoning Code......................20 A. Verizon Has Failed to Submit Probative Evidence in FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 Support of Its Alleged Need for the Proposed Tower Height and Location Proposed .............................................21 at the (i) The Applicable Evidentiary Standard..................................,...21 (ii) Verizon Has Failed to Meet Its Burdens...................................22 (iii) The Lack of Hard Data......................................................23 B. Verizon's Analysis Regarding Its Wireless Coverage Is Contradicted By Verizon's OwnActual Coverage Data....................24 C. ExteNet Systems, Inc. v. Village of Flower Hill and Flower Hill Board of Trustees...............................................26 POINT IV To Comply With the TCA, Verizon's Application Should Be Denied In A Written Decision Which Cites the Evidence Provided 11erein.............27 A. The Written Decision Requirement..............................................27 B. The Substantial Evidence Requirement..........................................27 C. The Non-Risks of Litigation..........................................................................28 Conclusion....................................................................................................................................29 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 Preliminary Statement ARXWireless Infrastructure, LLC and Bell Atlantic Mobile Systems LLC d/b/a Verizon Wireless, (hereinafter "Verizon,") has filed an application seeldng a special use permit and site plan approval to install a 155 foot monopole at the approximate intersection of Farm to Market Road and Briarwood Drive in the Town of Athens. This location is zoned Agricultural but is surrounded by residential lots. The homes in the area are generally two-story with some wooded areas, but this 155 foot, 15½ story tower will loom over this community, forever changing its character. It's impossible to camouflage such a monstrosity, no matter how vigorously ARX Wireless claims it will blend into the neighborhood. This memorandumin opposition is being submitted on behalf of multiple homeowners whose homes are situated adjacent to or in close proximity to the site for Verizon's proposed cell tower. As discussed more fully below, approving Verizon's site plan and granting a special use permit not only violates applicable zoning regulations as well as the Town and Village of Athens Comprehensive Plan, it would inflict upon the nearby homes and surrounding community the very types of adverse impacts zoning regulations are designed to prevent. Granting Verizon's application and allowing the irresponsible placement of such a facility would be greatly exacerbated by the fact that, as addressed below, the community would derive no benefit whatsoever from the installation. Thus, the Planning Board should deny Verizon's application for the following reasons: (a) Verizon has failed to establish that granting-the application would be consistent with the requirements of the applicable zoning laws; (b) granting the application would violate both the Town of Athens Zoning Code and 1 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 its legislative intent; (c) the applicant has failed to establish that the proposed facility: (i) is actually necessary for the provision of personal wireless services within the Town, or site.1 (ii) that it is necessary that the facility be built at the proposed (d) placement of the proposed facility the irresponsible would inflict upon the nearby homes and community the precise types of adverse impacts which the Zoning Code wawenacted to prevent; and (e) Verizon has not established how the denial of its current application would amount to an effective prohibition under the Telecommunications Act of 1996. As such, it is respectfully submitted that Verizon's application should be denied in a manner consistent with the requirements of the Telecommunications Act of 1996 ("TCA"). POINTI Granting Verizon Permission to Construct a 155 Foot Cell Tower at the Proposed Location Would Violate Both the Requirementsof the Zoning Code and the Legislative Intent Upon Which Those Requirenients Were Enacted Verizon's application for Site Plan/Special Use Permit approval should be denied because granting such application would violate both the requirements of the Zoning Code, as well as the legislative intent behind those requirements, by inflicting upon the adjacent homes and community the precise types of adverse impacts the applicable provisions of the Zoning Code were specifically enacted to prevent. A. Zoning Regulations and Purpose §180-15 B of the Town Zoning Code, entitled "Regulations specific to districts provides that in an Agriculture District," a telecommunications facility is not a permitted use - hence the 1 See Point m, infra. 2 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 need for a special use permit. This is simple common sense. A cell tower is not compatible with agricultural use, and it is in the best interests of the farming community and adjacent neighborhood to preserve those land features necessary for functioning farmlands. §180-15(B)(5)(a) requires the Planning Board to consider the compatibility of the tower with existing uses on adjacent lands (§180-15B(5)(a)[3]) and the location of the tower on the parcel in relation to scenic resources and the ability of the project design to minimize interruption of scenic views from public roads (§180-15B(5)(a)[8]). The purpose of the Town's Zoning Code is to exercise a town's right to protect its citizens and their property by controlling the use of land under authority of the Town Law and the Municipal HomeRule Law of NewYork, to broadly the State of protect the public health, safety and general welfare and to cany out locally established goals and objectives in a democratic manner in accordance with the Town's Comprehensive Plan. (§180-L Purpose) "The overriding goal to maintain and enhance the unique features of the community that makeAthens a quality place to live and to maintain the rural, small town character of the community." Id. In accordance with this stated purpose, the Town seeks to: B. Protect natural resources, including but not limited to air, water and wildlife resources, scenic views, open spaces, and the Hudson River and its associated resources. C. Protect and enhance the natural beauty of the Town and its rural landscape and character.... L Protect residences from nuisances, odors, noise, pollution and other unsightly, obtrusive and offensive land uses and activities and to secure safety from fire, flood or other dangers. Id The Town's Comprehensive Plan makes clear that an overarching principle of the 3 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 Town and its citizens is protection of the Town's charm, rural character, scenic landscapes and small town community atmosphere. As noted in this Vision Statement from the Comprehensive Plan: A vision statement describes our community's values and aspirations and offers a shared image of what people want Athens to become over the next 10 to 15 years. The statement is based on extensive community input and addresses all aspects that contribute to the social, cultural, environmental, and economic fabric of the Town and Village. Wecontinue to treasure and protect our forested and farmed rural areas with undisturbed views of the Catskill Mountains, Athens' Berkshires ... Effective code enforcement contributes to beautiful appearance. residents' In response to the overwhelming desire to preserve this bucolic way of life the Town crafted the following Goals for the Town: Assess, protect, and enhance the environment to sustain the quality of natural resources, the rural landscape, and diversity of wildlife habitats. ... Preserve scenic views of the rural environment, the Hudson River, views of the Catskill and Berkshire M.ountains, open spaces, and other important physical features in Athens. B. Local Authority to Regulate Telecommunications Facilities The proliferation of cell towers has resulted in the need for municipalities to pass legislation to regulate their construction. Although many site developers and cellular service providers will argue that the Telecommunications Act of 1996 (TCA) prohibits local governments from regulating telecommunications facilities, this is simply untrue. The TCA, 47 U.S.C. §332(c)(7) preserves local zoning authority. Subsection (A) provides for general authority: 4 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 (7) Preservation of'local zoning authority (A) General authority Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities. While subsection (B) forbids a municipality from "unreasonably discriminat[ing] among providers" services" and from "prohibiting the provision of personal wireless altogether, the fact remains that a Town may restrict the placement, location, construction and modification of cell towers in their community through zoning regulations. See, Cellco Partnership v. Town of Clifton Park, NZ 365 F.Supp. 248 (N.D.N.Y. 2019). Therefore, the Town of Athens has promulgated Chapter 162 of the Town Code which regulated telecommunications towers. This chapter is, in effect, a zoning regulation of cell towers and should be read in conjunction with the Town's other zoning laws as well as the Comprehensive Plan. The stated purpose of the Telecommunications Towers chapter - §162-3 - is to promote the health, safety and general welfare of the residents of the town; to provide standards for the safe provision of telecommunications consistent with applicable federal and state regulations; to minimizenumber of towers in the the total community by encouraging shared use of existing and future towers and the use of existing appropriate buildings and other appropriate structures; and to minimize adverse visual effects from towers by requiring careful siting, visual impact assessment and appropriate landscaping. The Town accomplishes this purpose through the requirement that shared use of existing appropriate structures and existing towers "shall be preferred to the construction of new towers." 5 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 (§162-5, emphasis added). The Board may consider the erection of a new tower if the applicant sufficiently demonstrates that shared use is impractical. (§162-6, emphasis added), As part of this requirement, the applicant must present an adequate report detailing all existing appropriate structures and existing or approved towers within a reasonable distance of the proposed site. The report shall demonstrate goodfaith efforts to secure shared use from the owner of each existing appropriate structure and existing or approved tower as well as documentation of the physical, technical and/or financial reasons why shared usage is not practical in each case. Written requests and responses for shared use shall be provided. (§162-6, emphasis added) If an applicant legitimately cannot make use of an existing structure or tower, they may next seek to construct a new tower at an existing tower site. (§l 62-7). Again, if such placement of a tower at an existing tower site is impractical, the applicant is required to provide evidence of the applicant's efforts in investigating such locations and documentation of the reasons the site is not practical in accordance with §162-6, above. The Board may consider a new tower at a new location only when the applicant has submitted a report demonstrating that shared use of existing structures or existing towers; or constructing a new tower at an existing tower site is impractical and the Board determines this to be true. §162-8. Verizon has failed to comply with these requirements. Annexed as Exhibit "A" is a letter from the Sleepy Hollow Lake Community Association Manager, Laurel Wolfe, and the APO SHLBoard President, Janet Kaplan. This letter explains that their community is actually anxious to place a cell tower on an existing water tower on their property. Sleepy Hollow Lake is located 6 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 across the road from the proposed site. Yet neither ARXnor Verizon contacted Sleepy Hollow Lake to investigate placing the tower on Sleepy Hollow's water tower. In fact, Sleepy Hollow attempted to contact Verizon to discuss placing a tower on their water tower, but did not receive any reply. Verizon's has submitted a list of alternate sites investigated that consists of 4 properties, 3 of which appear to be owned by the same party - Wais Properties and/or Patricia Green. It cannot seriously be said that this amounts to any real effort at all, let alone a good faith investigation of alternate sites. Clearly, where there 1s an existing structure (Sleepy Hollow's water tower) and a willing property owner, but neither ARX, nor Verizon madeany effort to investigate placing the proposed tower there, Verizon has not followed the procedure necessary for the Board to approve a new tower at a new location. Therefore, Verizon's application should be denied. C. Site Plan Review and Special Use Permit Requirements Even if the application to construct a new tower at a new site were to be approved, the applicant still must submit a site plan and supporting documentation. §162-8B requires an applicant to minimize the following potential impacts: (1) Visual/Aesthetics (2) Diminution of property values (3) Safety §162-10 requires an applicant to submit a site plan and supporting documentation (including a short EAF and visual EAF), while §162-12 requires submission of an assessment of the visual impact of the tower on abutting properties. 7 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 (i) Site Plan Review Article IV Site Plan Review and Special Use Permits (§180-55 and §180-56) also have requirements which must be met. have similar requirements. The standards for site plan review includes, but is not limited to: (a) The character of the Town, neighborhood and values of surrounding property are safeguarded. (k) Protection of adjacent properties against noise, glare, unsightliness or other objectionable features. ) Protection of critical wildlife habitats and preservation of a diversity of habitats to support wildlife.... (§l80-55 emphasis supplied) Like §162-12, §180-55(D)(10) requires submission if a visual impact assessment. As discussed further, below, the applicant's visual assessment is faulty and misleading. The requirements for a visual assessment for purposes of SEQRdiffer from the elements necessary for an informative visual assessment as it relates to abutting property owners. While SEQRmay requi-re assessment as to the visual impact of a cell tower on parks, scenic byways and other public access sites, the most relevant visual assessment in this case is the impact on the nearby homeowners and the surrounding neighborhood. The placement of a cell tower at the proposed site will forever change the character and property values of the surrounding neighborhood. The unsightly tower which will loom far above the houses and trees of the area would not only change the character of the neighborhood, but will have a severe negative impact on home values. FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 (ii) Special Use Permit Review Section 180-56(E)(1) requires that the tower be in harmony with the orderly development of the district, and the location, nature and height of [the tower] will not discourage the appropriate development and use of adjacent land and buildings, or impair the value thereof, and will be consistent with the Town and Village of Athens Comprehensive Plan and with the protection of the rural character and enviromnent of the Town. Subsection (E)(4)(b) requires "compatibility of the proposed use with adjoining area..." §180- properties, with the natural and built environment in the (emphasis supplied). 56(E)(4)(m) requires "protection of adjacent properties against ... unsightliness or other features..." of objectionable while (E)(4)(p) safeguards the "character the Town, neighborhood property" and values of surrounding (emphasis added). it is clear that the applicable Zoning Code provisions, Comprehensive Plan and Telecommunications Towers regulations were enacted specifically to safeguard the Town's quality of life, small town character, and scenic views and to protect homeowners from unsightly and objectionable land uses. It is also clear that the construction of the proposed cell tower would be contrary to the purpose and goals of these thoughtfully promulgated laws. D. Verizon's Irresponsible Placement of Its Proposed Wireless Facility Will Inflict Substantial Adverse Impacts Upon the Aesthetics and Character of the Area It is beyond argument that the irresponsible placement of Verizon's proposed 155 foot wireless telecommunications tower at the proposed location will cause the facility to stand out like a sore thumb, dominate the skyline, and inflict substantial adverse aesthetic impacts upon the nearby homes. In an agricultural and residential community madeup of one and two story 9 FILED: GREENE COUNTY CLERK 05/13/2024 05:31 PM INDEX NO. EF2024-400 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/13/2024 homes, where the trees stand approximately 80 feet tall, the tower would rise far taller than any of the nearby homes or trees. The proposed tower is not compatible with the adjacent properties as required by the standards for granting a special use permit. In fact, it is unsightly and objectionable, in contravention of the requirements of both site plan review and special use permit issuance. Further, allowing the construction of the tower would be the antithesis of safeguarding the character of the Town and neighborhood, and the values of the surrounding properties. Verizon's visual assessment does not present an accurate picture of the impact that the nearby homes and surrounding area would suffer if Verizon's application is granted. The photographs contained in their assessment, even if in compliance with the Board's direction and/or SEQR, fail to present the dramatic negative consequences upon nearby homes. Attached as Exhibit "B" are copies of photographs taken by homeowners while the balloon test was being conducted, together with two simulations depicting the resulting view. These photographs and simulations plainly show that the tower will be clearly visible to many homeowners and the neighborhood in general. Verizon has not even bothered to present to the Town any meaningful