Planning Board - Regular Meeting

And essentially what has happened is that the applicant has decided to eliminate one of the houses, the house all the way in the back or better down by the fly which would be to the west. So there was a house that was very close to the wetlands back then. That's been eliminated. And house number three uh which was also in the back has been moved well says forward or east. It's something you've been asking for for a while. So, I was happy that we we're live. Okay.

We're live for anybody who's interested u on Zoom or YouTube rather. So, um and the other house has been moved up. So, if you look at map number two, the second page, I'll give you a second to get to the second page. Um the first two houses, lot and two, um have not changed. They've always been in that position. The third house is now in an area called lot number three and it's been moved up. There's a nodal up there uh at the top. There's a very steep down that goes to the wetlands area. So that house has been put up on that null and quite frankly it's a beautiful view from that null when the leaves are off the trees at least. So that's where the third uh house is going to uh go.

Yeah. the road. Well, I'll and I'll let you There's quite a number of things, minor things I think I'd like to see in the wait till you give the presentation. Could you address um where the how are you going to handle the con the conservation subdivision or is it going to be a conservation area going to be? We've had discussions about that. You may want to wait till your attorney gets here for that. That's up to you. But why don't you just give us an overview? Yeah, just do a general over. Sure. And you know what you already said, uh,

you know, this all came about from our last meeting and comments that we received in September and, um, the the real concern about the house sites of lots three and four. Um, also one of the other concerns was the length of the private road. So, and the disturbance from it. So, um, like Rick said, this now the subdivision has been reduced from four lots to great. The house sites for lots one and two remain the same that they've been proposed all along. Um, the private road length has been reduced substantially because the private road is going to end at the culde-sac of lots one and two. So, initially also our plan showed a wide thread around there, but it was um presented and I'm sorry Dave, I don't know if it was presented by you or or by Greg that the town hall requires a circular culac. So, they've revised the plan to be in accordance with the with the code for circular uh home sack instead of and then beyond culdeac will be a single private driveway. So, no more shared driveway, no more extension of the private road. It'll be a um a private single driveway that goes to L. Um the driveway length by the time it gets to the house is possibly about 500 ft. Um it substantially follows um proposed private road extension that we had and in the suburb areas that are already there. And as whoever walked it, you know, um that's that's the route which we walked it. Um so the private road lane reduction is from just over 2,000 ft to um right around 800 ft. Now um circular coastal sack is there. There's uh this also eliminates any and all of

the wetlands crossings that were proposed. um it doesn't have any crossing except in the buffer areas of the wetlands. Now these are national wetlands. So um the army corps doesn't have a buffer. The buffer is the town regulations from any uh stream water course or wetlands. So the 100 foot buffer from the wetlands along Roseville road the private road the only access to the site um does cross through the one from the foot buffer. So, this was something that was um brought up and we're also proposing that disturbance area is about a tenth of an acre and we're proposing an expansion of that buffer. Um if you look down page, you'll see it. It's kind of in purple. So, we're we're um going to include that as well. Um and it this does eliminate any of the development that is within the northwest area of the site moving away from the vibr reduction in area of disturbance. Um it's actually a little over an acre. Um we we say it's about an acre but it's it's less than uh it's it's actually more reduction than that. And um it's a reduction on the slopes greater than 15%. Now, I know we talked about this a little bit because the the top too that we have on the plan substantially is from uh Olster County LAR twof console. The only place you actually have survey too was along the roadway in any area where it had been disturbed along the roadway. So um walking the site um there are a couple plateaus where we show lot three house site and subject um but those plateaus don't show on the GIS to

so we have to um update that information and um you know our conversation with Rick was that we were waiting um just to confirm that everybody you know basically concurred with this outside orientation and um then we will proceed with any more technical information or survey that's needed.

Yeah, this was um the project's been in front of us for close to two years now and if you remember there were large gaps in between where we asked them to go off and do a conservation subdivision. So finally I think it was over the summer um we suggested suggested strongly that get the two houses out of the area the vlide and that's what they did. So sometime in mid November I think a couple of us met with you. I think it was Peter, myself, Dave and Dave and you and your attorney and the uh via Zoom. [laughter]

Um and you went through it. We made some recommendations and so as Nadine said tonight is just to get our buy in that we're generally okay first with where the houses are based on our uh site visit. Um, and are there any other things that you'd like to see on the map you don't understand in the map? I have one or two. And I I you know, I'm going to move into the conservation easement situation next, but that

we'll get attorneys. So, if you have any So, that's what we want to do tonight. Nine will then go off and when you're ready to come back with the final map, we'll go from there. I think it I think it's we're going to need to uh solve what you're doing with the conservation area before I set the public hearing. Um and I'd like to get a new map if there were major changes to the map going to be made before the public hearing as well.

No, there's not. So um you know part of this and and part of our discussion was that basically the proposal is conventional subdivision by the by the means and definition of a code and that the owner is going to provide conservation lease maintenance over these lots um to protect and preserve areas um mostly around wetlands the sensitive areas that were identified previously. So, this plan does show where those conservation easements are proposed and size. And we've also included um an outline of the restrictions that these areas would be subject to. Um obviously um no disturbance, but um some of those and and I'll just read it real quick if you don't mind. All right. Um the area shall remain undisturbed and provide permanent open space for class of recreation only. trimming, cutting, removal or clearing of trees or shrubs other than those that are dead and or have fallen as related to public safety and general sightings. No soil disturbance including filling, grading, excavation, digging or dredging. No widening, straightening or any such alteration of the beds and banks of streams. No littering or dumping of garbage or waste. No construction of no construction of permanent structures. No pavement areas. no parking, storage or operation of motor vehicles, machinery or campers. No barnyard or domestic animal housing or pets. So some of this language comes directly out of the wetland um code language and then you know obviously you know the mill building. So, so this is what we're proposing and what we're looking to progress is to get um a sketch plan uh approval scheduled with public hearing and move to review.

So, I know I know that there's you know that's not what's happening tonight, but I'd like it to be set in motion so that if we could schedule a public hearing or sketch plan, then we can move forward into that at the next meeting. Um because unless anybody has any real concerns or questions, this is significantly what proposals. So I have two just two or three things and then Okay, let's see what the board um actually first one is a question. Is the green line uh to the west and the one to the east. Is that the other side of that green line is where the conservation area is going to be?

Right. So there's a green line and then on the other side of the green line is the language for for proposed conservation easement. So on the north west the upper fage um the language is there and it has our arrows pointing all the way to the edge of the property where the flag brought and then to the green line. So that whole area is about 15 acres. It does cover both lots one and two. So, you know, I don't say how much is or I'm sorry, that's one and three. I don't say how much is on each lot, which is not really critical point, but that whole area is 15 acres. Um, then the other one on the bottom of the page on the southeast side is about one uh five acres and that only covers overlap one.

Okay. My second question then is the road comes off of Ris Hill. Are you proposing to move asking to move the buffer line and create more buffer where you show or are you going to is that what you're proposing? Yes. And I think if that was requested. Yes.

Okay. It's it's still a buffer. I don't know Dave if you could weigh. This is still a buffer area and the fact that we just make it disappear and put some more someplace else. I'm more concerned, but I'd like to get we can do this map switch, but I want to get an agreement that would go on the map that says that this driveway u not driveway, the private road would never be paved. it will always remain uh gravel um because it it it will be covering or going through the buffer area. We can jiggle and wiggle the buffer area, but it is still um wet area or wet area

and it it's technically the only access to the site no matter what, right? You know, even if it was one out, you know, it's the only right. So, what I want to see Yeah. is no asphalt at any time. It'll stay as gravel.

All right. Um, so I'm just gonna bring this up because as you know, Rose Hill Rose is in the town of Marble Town. So when we initiated this project, we reached out to Marble Town. Um, planning board really didn't want to do any review. The highway superintendent at that time said, you know, we're we're fine with it. We just want to make sure there's adequate area to turn around. Uh, we never got into the details. I'm not sure if the town of Marbletown will want any part of that um access or transition to the town road asphalt. So, um I you know we could definitely say you know when we get that language from them because sometimes they have you know the apron you know 10 ft off. So, um, but we can definitely say that the the road itself, other than any a requirements from the town of Arltown,

do they specifically say that they would want it? They did not specifically because we were in such the um initial stages, you know, it was really just when we circulated seeker and just to see if they wanted to be involved or interested and that kind of thing. So, um, again, the the planning board did not want to be involved. the highway department was just interested, but I just didn't want to forget about

it appears that the entire access road would be in in the town of Rochester. Maybe this maybe this is off by a foot or so, but would the town of Marbletown have any jurisdiction to ask you to pave a section of the access road in in town of Rochester? So, um I have to look at their um highway specs or driveway specs and I know that the DOT always has a paved apron when you're connecting to a state highway. I have to check Marble Town. I don't know if they have a paved apron, but moreover is that this is the the dead end basically culdeac for Rose Hill Road. And um the town does maintain that and you know we agreed obviously to make whatever transition needed to be done so that they could still do that. And um

I don't I I don't think they're going to require significant pay. Why don't you just tell them our preferences that it not be paid and do all of it in writing so we can see it and then if they want something different come back to us and we'll talk. But our preference would be for it not to be paid. Absolutely. Unless what does the board feel? Does does the N does the town of Marbletown do the maintenance on Rose Hill Road? Yes, they do. They do. Yeah. My recollection they've responded to us and I my recollection was that they deferred everything to us, but I'm and I'm trying to find the letter and it's obviously not. But

why don't we just leave it that um you go to them, share what share what you're asking them for. We want you to ask for no bathing in that area. Um, but I think the board I feel like and we definitely will, don't get me wrong, but I'm only one member. This board is very flexible except where No, that's fine. I just also want to bring up that this is um obviously a a technical more deeper design issue beyond the sketch plan. So,

you know, I have to agree with the our attorney who says that area is in town of Rochester. So, I'm trying to be reasonable to say tell them we'd prefer it not to be paved. And if they want to pave it, then you're going to have to come back and convince us that we have to pave it because it is still on the buffer buffer here. Rick, I found the letter. What does it say? It says um so this is from the town the board chair from Marble Town Planning Board.

Yes, this is old though. This this is from January 2024. So, it might make sense to refresh this, right? But as of that date, they um they concurred with our lead agency. They do not request the require an application be made with the town of Marble Town. Um right, the planning board, you said it just says town of Marble Town.

Um requests a copy of the final approved. Makes sense. But then regarding the specific issue, requests and recommends that the Rochester planning board seek commentary and review from the Marbletown Town Board and Highway Superintendent regarding the private rural road connecting to and being access road to ensure safe and adequate infrastructure for traffic as well as emergency vehicles. Okay, there you go. Okay, Jen, can you send me Is that a memo? Is that Yeah, you send that to Why don't you just send it to the whole board? inlet. Oh, excuse me. Okay. Is it in there? I found it on the on the Are you in the

It's an old file, but it's in there. Which one did you find? Where was it? Lane. Okay. I think it makes It seems perfectly reasonable to me. You have to consider the ask consideration of the highway department. it would do to the town of Marble and the town of Rochester, but having an apron connector to a private road that is shale or gravel is perfectly reasonable and standard. But I I think that we do need to get that permission and I that makes sense that you would want to be able to plow on a road and then have a transition onto um onto another road. So

So Jennifer is going to send us a copy of that. Stacy um make a note that I need to write a letter to Marble Town and also to our highway department and get see if we can get this report from both of them and I'll copy you on it. Okay.

But also so with this submission we did not submit obviously um and I'll get to like these things too because we had comments from September from from Bulma um you know because we were waiting for sketch plan. So we have uh the road details for the new private road and the the plan of profile which if you're going to circulate to the town of Rtown that information should probably go with it. I'll talk to you about it. All right. Okay. Dave, you had a question.

Well, I'll note a couple things. One, by state law, you have to notify Marble Town about any public hearing. Yeah. Um, two, like I looks like the entire end of the road, including the proposed culdeex in Marble Town anyway. Look what I said. So, if it's in Lobbletown then it's you said it's in Marble Town. The end of Rose Hill Road. The end of Rose Hill Road. And what they showing um I mean it's up to Marble Town. Yeah,

you they can't tell you they don't they can tell you they don't care, but they that could change next week. I Well, Dave, I think the pro point that was made by Mr. Gordon was if the area they want to pave that they desire to be paved is in the town of Rochester and we don't want it paved. Right. I'm just noting the it looks like there's that amount of space to do it all the marble there potentially if there's a paved apron. I

the way it's drawn the the town line essentially is the line between is is in that area the line between the paved road and what would be the the access road that that chair is asking to be unpaved. So my point was it's the the town of Marbletown was thinking about having a paved apron to access their road. The problem is that paved apron on which map appears to be in the town of Rochester and I was wondering whether they would have the jurisdictions insist on that. Right. That's I just think it you know I think it would be more of a courtesy kind of agreement than jurisdiction. you know, if if okay,

this cold sack is kind of, you know, it overflows the property line. And any other comments from the board? I was I was adding ahead. I [clears throat] anecdotally, practical reality is we'll get paved someday. I you might want you might want to seriously think about modifying the in a very minor way the weather buffer. I people stroll in and get their roads paved every day. [clears throat] We are mitigating the disturbance of the wetland buffer. So I just want to remind you that that's certainly something but it's almost perform sort of an enforcement issue then it's almost performative

to do that. Right. Fair enough. And if you do it here, then that project other project that we took a look at over the last week, we shouldn't even allow them to build that road because it's all through the buffer. So, I hear you, but yeah, I I'm just noting for the board a a minor little buffer modification. What do you mean by that? It's we're talking about 100 square feet maybe. What do you mean by a buffer modification? The board is authorized to modify the buffer to I got to look at the language to essentially accommodate smart development.

But what what what when you say modify the buffer, what you mean is what they mean is is to to take take some land out of the buffer and put more land somewhere else into the buffer. Correct. Okay. We're allowed to do that under our code. And that's what Nine is is um proposing. There's one other thing to consider here which is that if the reason why why we might be interested in an unpaved road is to mitigate the runoff for example. One of the ways to deal with this would be to have some sort of you know runoff control on the um on the east side of the road just you know a gutter or something like that you know by taking which is the modification would be that which may be excavation you know allowing the buffer

but that could be part of your modification but it could be much could be for just a little bit of land to create kind of a gutter to handle the runoff then we could then you know that also may have to be clarified with the uh and I'm speak I'm speaking of this only for this apron area perhaps that's not okay any other comments from the board I I have a question to Peter about that um apparent isn't it better to have a a spout when they blowing snow rather than picking up the gravel

yeah I mean the town is gonna the town is going to plow snow on on the paved road and I'm not positive they do it I'm would guess that they just push it right to the end of the road because there's kind of a little end of the road there. A private, you know, plow truck will go off of that onto the the road, the the private road and just it would make that transition easier for them to do that as well. Otherwise, going to pick up all the gravel. Yeah. Yep. I have a question uh in terms of the the circle and the driveway which goes to host number three. Is that using the existing road which was there? Yes, exactly.

I haven't been to the last site visit, but I remember there were issues about slope. Yeah, a lot of time there. It's it was not here. I don't I don't think so, but that's something highway supervisor would have. Yeah.

Right. So, Hans on that the main concern was when the road was longer and it went down and it made a sharp turn. That's what So, that was definitely one of the previous concerns. um at this location um when we update because we we obviously looked at it a little bit make sure we're we can still do what we're doing. Um we're extending the profile we already have the center line. We're extending the profile from the culde-sac as it follows that so that um you can see what the existing grades are. um private driveways don't follow the same um regulations as the private road but um they are misled. They range from let's say 10% to 14% kind of you know and there there's no um you know we don't show vertical curves or horizontal curves that's not required on the the driveway but we do address that and and we'll provide that information to the Ford and to CPL so that they can review that. Is there any plans to facilitate that

extension from so from where the driveway goes into lot three beyond that because that's that was pretty horrendous. That was my question is that is the does the private driveway ended like the 900 line there? Is that where it ends? Is just a little

um Yeah. So, so we did talk about this a little bit out in the field and um so the plan for what has been disturbed through there is is a couple different things. One, we're going to make sure because one of the concerns was that runoff just kind of come off the existing driveway and continue. So, we're going to provide some mitigation there, whether it's a bird, swale, level spreader to divert the water that's already coming down the lot driveway to to undisturbed areas. This area is going to be uh stabilized with vegetation, mostly natural vegetation, and any um stock piles or disturbance that way will be uh cleaned up. There won't be any um piles of tree removal or anything like that, but the grades that are there will remain.

But but you are going to stabilize it with vegetation. Absolutely. So can we have that on the drawing as well? Absolutely. And and the seed mixture and it should be native. Absolutely. So So just be quick, does the the driveway end at the 900 mark there? Is that what that is? Um pretty much. Yes. And there's going to be a little turnaround kind of there. So, so the driveway will turn into the house, but there'll be a little spur that goes off and then and then everything else will be reveinated. And that driveway is stained, not removing it past.

Correct. And right now it's it's not been shelled or anything. It's just been cleared. So, it's, you know, essentially very uh wood road right now. So, um it'll just be stabilized with vegetation and make sure that storm water does not continue down that question. What did you do with it when you put in that road? What did you do with the top soil? If it's stockpiled, what I would recommend, you could just scarify that road, get the uh surface soil, and I don't know how good the top soil is there. Put that down there and then I would then see.

Sure. And I would meet your seating windows. There should be a note on the plans that you should see either in the spring or late fall. Absolutely. When we get to that part of the project, we will definitely will. And I know it's been brought up before cut and fill. And um we're going to be regrading in and around the culde-sac area. So we're going to be taking off u some material there. Um I think the deepest cut is actually a feet someplace on the top there. So that material will also be used on site and we can use it in publish in um in that restoration. Okay. Sure. The materials aren't coming off.

A couple comments about the site plan. Uh could you please change color of life identification because it's very difficult to find it on computer screen. So this is color actually is one thing I'd like to talk about Zoran because I know you know obviously we we've done the slope analysis and color and I'm happy to leave that on the existing conditions plan or call another plan the float analysis plan but I'm going to be removing it from the the site plans because it is um blending in. It's very confusing. It's very distracting and but if you make it you put just a black

and they will be black but this so for the sketch plan we wanted to highlight what's changing from our last presentation. I think taking it off is fine. What's next? Next one is the location map. If you take a look at the code 1.53 H I'm sorry H. Essentially the scale needs to be one to 1,000. Okay. Thank you. And please prepare for next hearing samples of signs if you don't. I do have I have a detail actually all ready to go. Okay. I have I have one. Yep. You're talking about the signs for the conservation. Yes.

So you mentioned something when you're talking about the conservation area. You use the term conservation inner as easement area. Who's holding the easement? So, um, right now it would be the homeowners um, homeowners association or whatever has to be done for the road map and it would be all part of that. And I know that um, Dan will be able to speak to this, but I do know that part of our conversation was to look at, you know, possibly uh, getting the conservancy involved. I didn't know that Jeremy spoke with Sally. Was it Brond?

Yes. So, he's had conversations with him on that. Um I I probably shouldn't speak at all to it, but I I understand that they're more interested in land ownership than um easement ownership. So I I think they're still having conversations. Yeah. So I think they're still having conversations, but I do know that Jeremy has pursued that, but I also believe and and you obviously can corre correct me with the uh conventional subdivision, it doesn't um follow the same requirements as the con conservation subdivision where it would have to be a third party.

All right. So, let me address that. Here's here's what I think. I wish Dan was here, but and Dave, you're kind of an both of you are experts on this, so tell me where I'm wrong, but we could we could demand a conservation easement of some sort if this was a conservation subdivision. So, correct, conservation subdivision, we give you something which is lower uh lot sizes potentially and you give us something and that something is the easement saved by the bell. We have your name on the chair. Thank you very much. Sorry. That's all right. We explain I switched the schedule around. It's okay.

Um we just got to the conversation on the conservation easement. So my understanding is we can't force you quote unquote to go to RELC. Right. Right. But we can push you to I would love it if you did that. I think that's a far more effective way. Um, there's some payment made in order to have the the conservancy take care of inspecting the property. Hang on, let me finish and then you can tell me I'm full of hot air. Uh, but we can ask you to do a cons conservation area,

right? And the homeowners are responsible for maintaining that and making sure that nobody violates whatever was in the agreement. So that's about as far as I'm going to go. You're next. I I just for full disclosure, Peter and I are on the board of Snap Conservancy and it's subject to the acceptance. So it's not up to the planning board to disc.

Yeah. Yeah. So I like I said, I do know that um and he apologizes he was unable to make it tonight. I do know that he spoke with with Sali and I, you know, I thought there was some conversation that, you know, these areas were owned by the individual homeowners and that there was some concern about but I don't think that conversation's done. I think they're still having that conversation. I saw I saw a report from Zali today. I haven't spoken to him, but he probably as well, but he it mentions a discussion.

All right. So can you tell us what the preferred way uh in which you're going to preserve this line land is it is it the conservancy question you don't have to do it we can't force you to do it is that but is that your preferred way and if that's not your preferred way then what are you going to do how are you going to do this all right so I I have um seen this on a regular basis in other contexts when you have a conventional subdivision which this is what this is Right. Yes.

So, um part of the process with the planning board is to um and in this case we'd be voluntarily agreeing to uh make certain portions of the lots conserved areas and that would be you know that would be codified in an agreement and then as a condition of of the resolution as well you know because we uh agree that we can do that. Okay. We've done these before with done these before and I actually have a sample. Um I don't have to offer it tonight but I can give it to Mr. Gordon or why don't you send it to us?

Yeah, I'll send it to you. It's marked up. But um I've seen it with um you know the town as the enforcing mechanism uh organizations uh the homeowners association but well unless you know something I don't know the town's not not will has never been willing to do that. Okay. So then the HOA with some kind of monitoring or um you know mechanism that we can uh that the town would have the ability to to at least look at what's going on. So we need All right. So as opposed to being like the actual, you know, a substitute for a land trust. All right. So if you do the easement, you would work through um Zulli Z.

Okay. If you're not going to do the easement, you're going to do the subdivision rather the conserved area, right? Then it would be the HOA. It would have to be in the deeds, right? What they can and can't do, right? And we also need an HOA, right? And the HOA would be responsible not for holding an easement. They'd be responsible for holding everybody accountable to the provisions of that conserved area. All right. So, that's all on you to prepare that. Okay. We by our code, we need to review it. I'm sure you know that. Yeah, absolutely.

So, on that issue, I'm satisfied. I wish we could force you to do the easement, but um we didn't give you anything in return in terms of different lot sizes. So, we're not allowed to do that. It would be a taking of land. David, I just suggest that if it's the HOA have the town is third party, right, to enforce. I I think we company's got to enfor be able to enforce this. I understand that you would want, you know, some kind of default mechanism or some oversight to understand what the HOA is doing. I mean, that's really what you're saying, right? Whether they ever go out there or not. Right. Right. Well, if a neighbor calls and and you know, says something, at least the town would have the ability to go out there and force it.

We did that. We started to do that with remember. Fair enough. Right. Okay. A little different because you required some of that, right? And they're doing it going to be volunteered, right? But we did it with Danford, too, right? That's right. We did it with Danford. So, um, it's just a simple clause you could put in there that the third town of third party run. Yeah. It was very common when I ran county program for this that the county had third party rights to enforce.

Okay. I agree with third party rights. So, we're putting this on you to decide and let us know, are you doing the easement or are you going to do this conserved area? If you're doing the conserved area, we need the documentation that goes into the deed and we need to see what the HOA is going to look like. The HOA would also be responsible for the road maintenance presumably, right? So you get you need a road maintenance agreement anyway and that would be encompassed as part of the HOA,

right? And again, those are typically conditions of approval that they'll get reviewed by the town by your planning board attorney. The thing that I think this board would want before we go to public hearing is to let us know whether you're doing an easement or you're just doing a conserved area.

Yeah. The drawback the drawback for the having the homeowners association do it is and particularly because it's it's you know the vulnerable area down there with the wetlands that you watch is that you're putting the responsibility for enforcement of essentially between two or three parties uh of the homeowners. And it's very it's very easy to imagine that somebody would say you ignore my pickle ball court over here. I'm going to put my basketball court over there between neighboring homeowners. and there's no third party that has any enforcement um or you know and the town realistically doesn't want to do it and doesn't have the personnel to do it,

right? So that's it's just unrealistic to assume that the town is going to do that except somebody says, "Oh, there's a gigantic garage that was built down in this area and then what do you do about it?" And so that's the that's the where the benefit of of uh from a conservation standpoint to have a conservation organization because they're required to monitor it annually and and they do have the right to um uh to make and demand, you know, remediation if something happens. So, it's it's it's I I'm not a fan of uh homeowners associations uh holding uh easements or monitoring ements, I should say, or enforcing easements because it's just too rife with uh the chicken,

the fox and animals.

It's it's more than that though that I I agree. But first of all, [clears throat] these are homeowners. Basically, you're talking about three homeowners, right? They're not unlike, you know, some of the folks that we that we have on the planning board. They're not experts or professionals or experienced at monitoring easements. They they do their own thing, whatever it might be, from, you know, watching watching sports on TV, whatever they're doing. So, this is not what they do. And as Peter's pointing out, they don't really have an incentive to do it. They'd be essentially, you know, busting the neighbors shops. And you know, if if you have a threeperson HOA, I guess we we do need something in terms of the road maintenance, but but in terms of the enforcement of the environmental restrictions, one of the things that I'm thinking about is in terms of the town, which should be an enforcer here, the Senate wants to be and the Senate is important. I'm not even sure it's worth it to make it a third party thing. If we just take the substantive restrictions, whatever they may be, you can't build here, you can't do this there. Just put them in as as as conditions of the subdivision approval, how can enforce that? I mean, the building inspector can enforce the conditions on the subdivision approval.

We're going to do that. We would do that as well as all the other. So, you don't need third the third party enforcement then just becomes if we can enforce the conditions and if we take the rules that we're talking about and put them into the conditions, then the town has that right. I think we're hearing your message and I think we understand that the town would still, you know, would have that ability if it was a condition of approval like all conditions of approval, right? If a pond as long as or anything that becomes a condition of approval is something you can enforce and so we understand that that that would have to be an element of this.

Excellent. So just so when we made this submission in the cover letter, you know, we did outline, you know, the definition that we have here for these easements and the restrictions and that they would be included within the legal um descriptions and deeds and that would have to be coordinated with the attorney. But you know, we we've read what the the restrictions would be. Does anybody have any questions or concerns on those? Let's move. No, but I think the board may have it subsequently and I was going to ask the board um at some point to review. We'll wait till we get something from your attorney and those restrictions would be part of what's in in there and then we're going to review them. So, and we may add to them.

Okay. So, moving this is the thing with sketch plan. Some of this some of this information I should say is not even required for sketch plan. So to move through the the planning process and to move through sketch plan and move through you know part one of the AAF so that we can actually look at it and I mean I think we've identified what what the issues are and what um we do I think we it's required to have a public hearing for plan. Is that correct? one. It's a minor subdivision. So, they gonna do one hearing at some point.

So, it's not required for sketch. No, we do a public hearing when we believe we have all the information that we need.

We don't have all the information that we need. So, I'm not going to set the public hearing to the point of moving through the process. When we get the HOA agreement, whatever you want to call it, the deed, words, whatever, when we get all that material from you, it will be part of the agreement, the board is going to look at it, and we may want to add some items. For example, we had two or three other projects that, you know, um, Danford was one of them. I'm just going to pull the restrictions that we had in the Danford project and see if they match those. We want to have some sort of consistency. So, Nadine, to your point, what's the next steps? The next steps is to give us everything else that we need in order to say we have a complete package and we can set the public hearing

or can we get sketch plan on this sketch plan so that we can move forward with everything? Are you looking for us to say okay to this? Yeah, I think we're looking for some indication that you're comfortable with what we did conceptually so we can evolve it. We can evolve it into preliminary approval. not keep going. But there might be things that come up. I want to I want to withhold. Oh, yeah. You're fine. Uh and if there's something that somebody comes up with that we don't like, we want to make sure that we can change it. Well, there's there's definitely room when we submit other technical. So, when you submit the next uh submitt to us, you're going to show the remediation of the road that that Dave brought up. You're going to show

Yes. I'm not quite sure what you're going to Why don't you show that the buffer zone has been moved and put over here. Why don't you show that? We did show that on the sketch plan. Um, we'll have information hopefully from Marvel Town. So, you heard a whole bunch of things that people want to see. Put that on the next plan you give us. We'll review it. We may make more changes. Right. But but what I'm saying is the first thing is like the sketch plan which is very limited information that the board looks at one to make sure that it meets zoning that it meets the intent. That's not to say that you can't have other comments and this particularly on if we change anything or on the addition.

So we're satisfied with what we see here. I'm not giving you our vote. I'm not giving you anything. Does anybody have a problem? No, I'm not suggestion though. Um, are we going to have to send them a postmeating letter? Yeah. So, in the post meeting letter, can we make a can you make a comment that not approving this, but that the board seems to um consider that it's moving in the whatever. I'm I don't want to make a big deal about it. We're good, right? Just move. I'm not taking a vote on

um I want to preserve all our options to say not that we want two houses. You're good with the three houses. Not that we want the road shorter. We're good with where you ended the road, but I want to see So, we're fine. Keep moving. I want to see the changes that we talked about tonight. I'm not quite sure why you're asking us for something else. Well, technically it is a major subdivision. I can't hear you.

Technically, it is a major subdivision because it has a proposed private road. So technically it does require sketch plan approval. That's you know I just want to make sure everybody's covered through the process and I mean even if you pulled the board and it's not an actual vote I would have at least that would be on the minute that the board was pulled and you know they're comfortable with the concept sketch plan that's in front of them.

I I think we're talking about Oh my god. I can't. Okay, I want to hold I want to make it clear to you. I'm not voting on anything tonight, giving you any kind of approval for a sketch plan or anything else. We're happy with it, but there's still some significant things missing from it. That's all. Could we? They could be easily done. Does anybody have any major problems with this? I have one. So, what are you gonna get? Wait, no, I was just going to say going forward then instead of like having a three-step process, we can have uh later on if everything's okay and every all the stars align, we can we can have one approval instead of multi. Yeah, you're going to get one approval. Okay. You're going to get a major subdivision approval.

Okay. All right. I know that sound that's what we're going to do. That's what we've always done. Your code does say it's a two-step process. It's we've never done a three-step process for major major subdivisions. You have sketched and final. We've never done um they're pointing out that's what your code says. Can it be waved or sometimes you can wave? Well, do we need to wave it? I think you can you can collab. I've only seen you do one public hearing. We do one public hearing. It might go to two or three. We don't do a public hearing for site and that's what you've waved, right? You you you've always done one public hearing could be multiple sessions, right?

That's what we've always done. I'm comfortable with that. Okay. And you put it all in one one. Yeah. You combine. Now I understand why you're right. Okay. So Nine, the um the green line down there near the uh setback from the the wetland area, that would be the conservation area, right? So on so which one are you to the west to the west? on the on the one closest that area over there. Everything that basically lies

east because east of the wetlands, the federal wetlands, state wetlands, everything that's east of that buffer to the west to the all included in the conservation. Would it be possible to move that line up Harley uphill? Well, that's that would be a great thing that if the board feels like that needs to be moved, that would be something that I'd like to do at this stage. Move it closer to that uphill closer away from the wetlands. So, it's where that Yeah. Somewhere around the, you know, where it says town, you know, somewhere there. That would be what would

that makes good sense bumper. So about 100 more ft. Bring it up closer to where you have the septic systems. So that's probably from where the gray is or is that where we're talking where the flat part is? Yeah. Where the where it says town Yeah. Right. So plus or minus 100 ft in that direction. Absolutely. What was that? That was just

the 100t close. Yeah, you may want to think about doing that, giving us a schedule. Put that in now. This is all stuff. No, I'm just saying it might also help for erosion control and water quality. And you know, these are all things that basically uh we started the town road private road design because we're going to have to do um an engineer's estimate for the construction of that road and anything to reestablish the other section is going to be part of that. So we bargain enough to detail that then you know for sure that's the plan. But again, we wanted to make sure.

Yeah. Yeah. No, I was just thinking for because when we were out at the site and we were looking at lot three and we do have that slope and there was some, you know, erosion and sediment control equipment. And so if you rehab that road sooner rather than later, it will it can actually help with water quality down slope by slowing down the velocity of any storm water going down that road. And you guys definitely missed it because there was snow on the ground. But before that, because I had been out there many times this fall, um the natural vegetation has totally taken over.

If it's natur, you know, but anyway, we can put down what needs to be done and then, you know, it'll have to be looked at and key forward. They said there's going to be some changes especially right beyond the road and because we're going to take the the cut from the site and you know reestablish some of that especially right at the end of this driveway where we're going to do like another little emergency turnaround. Not that it's required in the code but because we know there's nowhere we get down to this house where you gonna go. So we're going to do that. Okay. Let's let's move on. Yeah. Anybody else? All right. So, are you okay? Am I okay? Yeah.

Yes, I am. Okay. And you know what? You know what you have to do to I do. I It would be good to have the conversation with uh Dave, too. I'll reach out to Dave. I apologize for not getting that. That's all right. Um and the sample you mentioned of another project where you might envision saying um please look forward to that. Um, Danford. Danford. Let's pull that. I'll get you that. We also have samples of the signs on delineating the conservation area. Oh, you know, I have a really good sign actually. Okay, we'll talk about that.

Yeah. And I can submit it and if you don't like it. Well, hopefully hopefully the I mean in ideal situation and I not because I'm on the floor of the land conservancy, but I think it is a solution for is to to get a conversation and I know it's in progress. I do know as soon as we got done with our conversation reaching out so I don't I don't know what their conversation actually was and I don't stay out of it. So I don't know from what I heard but you know if it can go that way that's great. Um, I don't know why they wouldn't want to take this land because it protects dedicating the land. That's

not going to take the land, but have a easement because it's so close to the fly and the fly is the only critical endangered area um in the town. Yeah, we we will, but I'll leave that up to you and Dave Gordon. important thing is that it's going to be covered by by protection and restrictions through the deeds through the subdivision through and no matter what happens that's you know

and we can get to land conservancy thank you for I just point out that because you're outside of what the town can regulate because it's not a conservation subdivision you may want to craft this if if you do go ahead with an e toward getting in under the state program which gives you certain tax advantages or just being able to set yourself up for a federal tax deduction by by donating, you know, a property right, important property right to the to the conservancy. So there could be if you do it under those regulations, you might get other advantages to yourself because right, you know, other than that, we're just we're just kind of crafting it as we see fit here, but there's other programs may be able to jump into. Okay, we'll look into them. I mean, we were thinking about the latter more than the former. The state?

Uh, no, the Well, not the state, but we can look into it. Yeah. I mean what is it article 49 um of the there is something that about that I have no idea how what interest would we don't want to wait a lot you know okay to get an answer because you know we could try this is a donation of of of the property right that's what if you do put an easement on it and there the programs will recognize that right if the tax okay I want to move on to Verizon okay so happen after you'll get a post meeting letter I'll take care of the letter to Marbor and to our own highway department about the about the turn around. Um what you say we Marble you said Marbor what did I say Mar? Yeah.

Um and I think that's it. Anybody else? Anything down there? Okay. Uh I'm I'm signed up to talk about this plan. Talk about what? This plan. I live off of Rose Hill Road. I thought it was a public. Not not for not for this project. There's a public hearing for Verizon and the other public hearing was for the previous project that was here, but not for Rose Hill. Okay. All right. You'll find out. She's a neighbor. I'm a neighbor.

My my um my property orders this property. I would really um feel very much more comfortable about this if I could see this sketch plan concept. plan. Um, there is an online system. Call the planning board. This is Stacy. This is Stacy's the secretary. She can direct you to an online system that has all the information about the project available. If the sketch the visual the sketch plan that that we were talking about and showing tonight is available on the MUN collab system.

Okay. So Stacy can help you get signed up for that because it's available to the public. Okay. All right. Thank you. Thank you.

That was torture. Yes. All right. We're going to take a quick break. 10-minute break. There's another question from the public. When will it I have no idea. To push. Uh, keep checking. Um, Stacy again will tell you how to get into the system for public hearing. Notified, right? That's why because it wasn't a public hearing. That's right. You won't get sign up for the notifications. We can sign up.

We're going to take a 10-minute break, everybody. I know.

Where'd you guys go? And there's there's still there's still elements of human subdivision regulations are full of laws you want to protect. Farm fields you want to protect. It's supposed to be in a conservation area. You know what that means? You can tell the stone is poorly defined. Fine. I don't think you're if we want but just just for argument sake weird

I'll take a look at it but I'm warning you look whatever conservation the would say there you got to be whatever those are my only point I don't care I don't care about the HA Sure, I understand. And of course they would be a long question.

Well, you know, some ho are motivated. I don't know. In this case, they would be I day one when I came in here and they were giving these things to HOAs, I argued against it. With all with all due respect, a deer structures I I've seen those broken aund times. Let's just get to

building the third party. yard clerk's office.

It comes up in a title. It comes up in a title search. said that there's history. I think you and I have been here two years for three chairs. I mean rapist trying to get the file that file what's the project going was it we've been trying to get on their own

20t away I don't know what human health is slightly full legisl or whoever Yes. Your town post code says somebody's got

there's some language in here. It's it's a mess. If it's not a conservation subdivision, there's some If you look at the definition of a conservation area, that's where you got to poke around in that. Do a search for conservation.

No, you don't want to impose it because it's on charitable donation. That's what we're trying to volunteering based on a discussion the conservation areas so they could potentially make it a charitable donation. The moment you make it a requirement, it's not a charitable donation. You're saying They'd have to get an appraisal compensation alternative donate an appeasement to a charity.

Not a good one, but yes. If they can get an appraised thing of value, you know what I mean? They still got to get it. Still got to establish it's got value. You know that they donated something. I have no problem. And this new information is

what this is about. You know what? Everyone assumed it was Change the zone change the height of my discussion because remember you about.

All right. So, we'll do the

board. I will talk to my attorney about this public But it doesn't make a difference.

Yeah. If you support this marvelous your channel's gonna see you next. Yep. Got the six. I got the eighth. I got the second one from the eighth.

They're all very

um we'll just wait for a second for Jennifer.

Yes, she is. Okay, we're going to roll into uh we're going to roll into the public hearing that was scheduled. I will tell the people who want to speak um that there has been some changes and I referenced them before. There have been some changes that have been proposed by um by Verizon. So um and I know some of you want to speak and then leave. My preference would have been to have go through all of these changes that are being proposed and really only one major one, have you hear that um and then we would have the public hearing, but it sounds like um some people want to speak and leave uh and then we're going to pick up later and talk to Verizon about some ch changes that they're um they're proposing. And I don't want to go into them now because those who want to leave, you're not going to be able to get out. So, um I just made a decision uh that we're going to do the public hearing. Um now we're going to do the public hearing.

Okay. Can't hear what the changes are first. That's the whole purpose for doing the change talking to you about the changes. If I tell you about the changes, it's liable to take a half hour to an hour. So,

I mean, here's the deal. Here's the deal, folks. I don't want to be um appear to be pedantic about it, but the the chair does, but I'm going to be pedantic. The the chair runs the meeting. Um now, I was not going to do the public hearing out of a courtesy for everybody that so they could hear the half hour to an hour worth of discussion around the changes that were made. Um that's still my preference, but there was a strong voice from the public to say, "Can't you do the public hearings so people go to go home?" So, Um, what over there? We all want to hear. Yeah, if I may.

Go ahead. I'm happy to spend five minutes talking about I what we submitted recently, right, without going into great detail. We could have that afterwards because I don't contra to what you said, I don't think there are any major changes being proposed.

I had two things basically. One has to do with the setbacks. We've talked about the setback issue. Your code basically says it's got to be 110% of the tower height. The odd thing about your code is the setback which is normally measured from the tower in this case says it has to be measured from the compound. It doesn't make much sense to me but it's in your code. Um, so but there's also another provision that allows you to I believe modify the setback based upon the incorporation of breakpoint technology and that's defined in your code. It talks about breakpoint technology. We've had it on the plans for the last 6 months or so. With our breakpoint technology, the fall zone will be about 74.5 ft. So in other words, if the tower were to fail, and these things generally do not fail, um it would fall within 75 ft of the base. So we think that is justification for the board to slightly accommodate the setback requirement because if you measure the first of all, if you measure the setback from the tower, we comply.

Okay, so that explains the changes. Second is and again it's not it is some new information but it's based in part on what the opposition's attorney has submitted in terms of the tree height. Tree height is very important because that determines the maximum height of the tower. Right? We inadvertently incorrectly in the beginning of the application said that the surrounding tree height was 45 ft. Now that's true. The surrounding tree height is 45 ft in some areas. But because this became an issue and I think it might have been Helina and others that mentioned it a few months ago, we dug in a little deeper and we provided a map that shows you a fairly comprehensive location of what trees are where. The important thing is the maximum height of the tower depends upon the tree height closest to the tower. The tree line

tree. And so we've got that map. The closest tree line to the tower is actually to the south. It's 50 feet away. Those trees go up to 80 feet. So our argument is 80 feet plus 50 ft. That's in your code. Get you to 130 ft. If we were to, you know, we're pursuing 145, you would still require relief in the form of a waiver or variance of 15 ft. If a smaller tower was approved as a condition, you know, I think that was mentioned a few times. uh we're not advocating for it, but you will be in compliance. Those are the two things that I wanted to. So, those are two things. And so, now we're going to roll into the public hearing. Now,

let me let me just add on to Scott's point and we will get two minutes. We have time for the five minutes.

Um what you're focusing specifically on the the tree line issue and the maximum height. I view that as essentially a restatement of the applicable zoning and very and frankly this is a very important zoning parameter with respect to a cell tower. It's it's the it's the it's the singular code requirement for the height of a cell tower and you've identified it as such. That's pretty important. And under state law in general, the zoning the basic zoning issues or the zoning compliant the basic zoning compliance of a project is in the first instance with with the code enforcement officer, the building inspector. In fact, there's a lot of cases that say the planning board basically shouldn't touch that issue with a 10-ft pole. Be colloquial about it. And for that reason the proposal from um Verizon both in terms of the tectonic technical aspects of it as well as the legal aspects of it which is identifying what is the tree line ought to in my opinion in the first instance be uh determined by the building inspector. In other words, just because the tectonic has submitted it doesn't mean that it's correct. And somebody's got to evaluate basically whether it's correct in both its interpretation and also the technical presentation which was essentially some a series of photographs that were taken by drones if I understand them. And so that's a that's a substantial thing on a substantial zoning issue. And therefore the proper people to figure out whether their presentation is correct, which would, as Scott points out, substantially change some of the considerations in terms of the need for a waiver and what the meaning of the zoning code is ought to be in the building inspector's department. And just so the the public knows, as I'm sure Verizon knows, if somebody member of the public, the Verizon turns out to be um unhappy with what the building inspector comes up with as a zoning interpretation, that can be appealed to the ZBA. That is functionally the

process in state law for determining what the applicable zoning is to the project. And I believe it applies here. So that the board knows and also the public knows. I've told Scott that if if the board was to entertain this, uh, it would have to go back to the CEO. Yeah. For this for their we can't agree to what he's proposing. So, it has to go back to the CEO. If the CEO doesn't agree, we're back to

Well, the CEO accept the this zoning. I mean, Scott is uh uh posited the initial findings as being incorrect, which they may well be. So this would essentially being establishing the zoning the critical zone the critical zoning parameter which is the height. This is a cell tower. So this would be establishing the zoning restriction for this project and it needs to be done by the CEO. Okay. So now I want to go to the public hearing. Thank you.

Who wants to speak to the uh as part of the public hearing and u there is a signup sheet over there. I would appreciate if you signed the sheet and uh you've all been here before. I think you know the rules of the rules of the road. Um like you to keep it to seven minutes. Uh hopefully it's something new that we haven't heard before. Some of you have been here to all the public hearings. Um address the board, not the applicant. And um we truly are looking for some new information. Um the public hearing is going to we had talked about possibly closing the public hearing permanently tonight but that won't happen as a result of the other things that we have to talk about. So the public hearing will be extended to whenever Verizon comes back. It might be the 26th of this month or it might be in February. February whatever it is 9th I think it is. So who'd like to speak?

You want the list? Yeah. Sorry. Thank you. Michelle, were you first in the list? Somebody signed us early at least you left. Yeah, that was the first list clamp. He left. Okay. Next is Michelle.

I I apologize um for asking if people could speak first. Sorry. You don't have to apologize and I just need to make the decision like what are we doing so that we get through this in an orderly fashion but I thank you for okay so as we wrote to the um thank you all for as we wrote to the board last week we recently learned that Mr. Matt Allen and his firm Saratoga Associates suffer from a serious conflict of interest that should preclude the board from relying on Mr. Allen as an independent expert on the visual impact of the tower proposed on Granite Road. Mr. Allen and his firm are currently representing Verizon and its co-licant Homeland Towers in a similar proceeding involving a proposed uh Verizon tower in Brookfield, Connecticut. It is our understanding that last month Mr. Allen submitted a report for the Connecticut Sighting Council in which he concludes that the proposed power will be barely visible to neighboring properties. Since writing to the board last week, we've learned that Mr. Allen and Saratoga Associates are currently representing Homeland Towers in support of its proposal to build a new tower in Yorktown Heights, New York. Verizon apparently is Homeland Towers partner on this project. Again, Mr. Allen and Saratoga Associates have recently submitted submitted a report concluding that the proposed tower will have little visual impact. We are now gathering information indicating that Mr. Allen and Saratoga Associates have worked or are currently working on visual impact studies for Verizon and or Homeland towers on proposed towers in West

Clarkston, New York, in Rockland County, and in Connecticut, and elsewhere in the Hudson Valley and upstate New York. The bottom line is that Mr. Allen and Saratoga Associates are working right now for Verizon at the same time that this board is relying on them as its independent unbiased expert on the likely visual impact of the Tower of Verizon has proposed for Granite Road. This is a fundamental conflict of interest that to our knowledge has not previously been disclosed to the public. This conflict of interest and the fees Mr. Allen and his firm are receiving from Verizon calls into question their independence and credibility. Personally, seeing the photographs that Mr. Allen has shared in his reports to the town about the proposed Verizon cell tower has been very disturbing. We saw we saw the the um crane and the balloons even when they were flying all over the place and falling down, we saw what it would look like in our viewshed. So then Mr. Allen's method of using Verizon's terrible quality photographs taken from really weird perspectives and claiming that Verizon's monster tower would not negatively affect our viewsheds is questionable. Then Mr. Allen took those photographs and he tampered with them and he moved the cell tower around and put them behind trees. So this conflict of interest means that the board cannot rely on Mr. Ellen's opinion on Verizon's application here. Thank you all very much.

Michelle, can we have that? Um, I I'll I'll send you one. I'll send it to Stacy. I'll I'll email it to you. Okay. Thank you. Thank you. Um, Bob Wesnau. Robert Lesnau. He had to leave. Okay. Um, and Toby Stove. Um, I hope I'm not being redundant. I have not a lot of new information, but um, it's short. At least louder.

Okay. Louder. Thank you. Good evening. And thank you for your service to our community. And I know that this decision- making process is very difficult. and I thank you for sitting this out because it's this really huge issue. Um, a town planning board is a government entity responsible for guiding the orderly development of land in a municipality, ensuring that growth aligns with long-term community community goals, public welfare, and environmental texture. Therefore, in examining the proposed cell tower application, the planning board must take into consideration the wishes of the people of this town, which have been evidenced by numerous comments. In the four meetings that I've attended, all but one comment have been against the approval of the proposed goal, the cell tower. Public welfare and the environment are top priorities and must supersede the goals of Verizon. Verizon Wireless being a corporation has a sole purpose which is to ensure the greatest profit for its shareholders. The will of the community must take precedence over the wishes of a corporation. Our rights are sacrificed. Verizon has in fact not established a need for the construction of a new and bigger cell tower in our town. The burden of proof is on them, not us. Yet, we have already proved we do not need another tower. Since we already have enough coverage, the push by Verizon to build yet another cell tower should cause us to question

their motives. Considering the expense of this new tower, perhaps their end goal is to blanket our community with a level of coverage that could literally eliminate all other competition such as Spectrum Broadband or landlines. Incidentally, I have noticed that we're getting a loud buzz on our Verizon landline. When calling Verizon about this, we are unable to reach them and are forced to contact the Public Service Commission [clears throat] to file a complaint. And I'm not the only one who is having this problem. I wonder why they are not fixing this. Could it be that the goal is to eliminate landlines? That would be totally unacceptable for many of us living in rural areas. We get to choose how we want to live and we want to keep our landlocks. We have all worked very hard to own and maintain our properties and we live here by choice. We have a right to choose what we want in our own communities. Verizon doesn't live here. Verizon is not one of us and Verizon does not have our best interests at heart. We will not accept a giant cell tower imposed upon us by outsiders when there is no need. Period. In addition, the proposed placement of the tower is completely unacceptable since it's in a residential neighborhood and there are countless forms of wildlife and pristine lands that would be negatively impacted by a giant cell tower. Homeowners have raised concerns about the decreased property values, etc., etc. Finally, if our town government permits this new construction, it will be

leaving an open door to countless and endless new permit requests by an industry that has one sole purpose, and that is to profit. However, we would not be profiting or benefiting benefiting from this project. This is not in the best interests of our community. Therefore, once again, we urge the town planning board to deny and reject the application for the new cell tower in Rochester. Just say no. Thank you.

Can you send us a copy of that or did you do that already? I can. Would you Stacy Matt? I didn't see Okay. I didn't see your name on it, but sure. Ira, right? Thank you. Yes. His name to

I appreciate the discussion that just occurred about the code enforcement officers determination. Um cuz one thing um that I wanted to point out, maybe you've already looked at this. At the last meeting during the discussion after the public hearing, it was mentioned that this proposed cell tower is on the same tax parcel as the apartment building. Um and then just looking at the zoning determination that was made by the code enforcement officer was like two sentences. because it said it's in an R5 zone with and um site um special use permit is required by the planning board. There's no analysis in that memo. And by looking at the density requirements for multifamily buildings in our current code, um section 140 26B defines the allowable apartment density in each of the zones that um multif family buildings are allowed in. So, it's either um one um apartment per allowable dwelling unit or two apartments um for each dwelling unit allowed. That's in the more dense zones. Atlas business R1. In R2, AR3, and AB3, um it's one apartment per allowable dwelling unit. Um the R5 zone in our current code um allows seems to provide for multif family buildings only by special use permit and there's no um mentioned um density requirement. But if we use the same density requirement in the next dense zone, let's say it's R2, that would be one dwelling unit for every apartment. Um, so in an R5 zone,

if it's one house per five acres, that would be one apartment per five acres, that would mean that the 25 acre parcel would be allowed to have five apartments. The apartment building is 24 apartments on 25 acres. So you could or one could argue that the parcel is fully built out um and that there's no room, there's no density, there's no development potential left to put a 145 foot pole with its concrete pad, all of its generators, etc. So, if this is going back to the CEO for zoning determination, uh it would be great to get some clarification on what need determination actually was as far as the zoning. It doesn't seem like the code enforcement officer looked beyond R5 special use permit and did any kind of density analysis. The other interesting thing in the code for multif family projects section 14026H says that any new multif family projects in the allowable zones need to set aside 50% of the parcel for open space. So, if you were to be asked to consider a special use permit in the R5 for a multifamily building, the code would require you to set aside half of the parcel for the open space for the benefit of the residents on that parcel. So, since um you're faced with a special use permit and potentially a waiver um and the apartment building precedes the zoning

code, what zoning standards can you use and I would urge you to look at your own code as if someone proposed the multif family building on this 25 acre parcel today. I I think it says I'm not an expert. I haven't used your code before, but it provides for a 50% set aside for open space. Um, and the open space is where it's very well defined in the code and it doesn't mention cell tower and operad and generators. Um, and the other interesting thing that I noticed was that 14029 G3 says a tower must be built on a single parcel of land. And that could either mean that it can't be built on half on one parcel and half on the other, or it could mean that it has to be built on its own parcel, not sharing with another land use piece. So that I can't interpret for you, but it's something that also um should be looked at. Um in either scenario, it seems that the zoning code could define this parcel as fully built out. Um but warrants some zoning analysis and I hope that the planning board will view that as part of its consideration of special. I just want to point out, I know we don't use and respond, but that's precisely the type of zoning analysis that the courts have told planning boards that we don't have jurisdiction to do. That's the jurisdiction.

I'm just I I just want to tell you I don't Well, I'm pointing out for the benefit of the public so you're aware th those issues are that's what the CEO has to determine. And if and if it's if he does something and it doesn't get to where you need him to go, that's where an appeal to the ZBA is appropriate. The planning board essentially takes the zoning determination that the CEO and ultimately the ZBA come up with and we we run with it. We we the courts tell us not to do those those types of determinations. But then how how will it go to the CEO? What's that? We're going to refer you. Will you on both issues then? No. Or we're referring the issue that Scott

We're referring the issue that um the board determines to refer. We're not telling you exactly at this point what that would be. It would certainly be the height uh issue that um came up. Um other than that, I'm not going to make any determination. I'm just requesting that you include the density on the existing parcel in your clarification. I don't think I want to do that guarantee you that I thank you. No, no, I'm not asking you to guarantee. No, you're asking me to include it. The board include it. You can write then you can and you can decide. The board will make a decision right now. The answer is no to that. Well, why are you saying no? Well, because it

because we don't even know if the CEO whether it's going back to the CEO after we have the discussion with Scott. I'm just whether this tree issue came up or not and I this is the first time I'm hearing of it. I was prepared to come here to point out some of these inconsistencies on the density and ask you to consider it. Well, I don't know that I agree with you. The Well, it's okay, but I just 5 acre Hang on. Hang on. A 5 acre parcel parcels in this land can have multiple uses. I'm not here to debate it with you, Rick. It's a public hearing. I brought this to your to your and you're asking to guarantee and the planning board should discuss whether you want and we will discuss it with our attorney. You asked me would I guarantee that it were going back to the CEO.

Guarantee it. Maybe did. You asked me if you would send it to me board to consider the density. Maybe I misunderstood. Can you send that to us in writing? Yes. I would like to be able to finish what I'm saying. You keep interrupting me, but I don't think I'm not interrupting you. No, you don't have to sit down. What else do you want to say? I'm asking the board and urging the board to consider the density of the existing parcel and to look at the code in that regard and refer it back to the code enforcement officer. It's just a request and you won't decide what to do. I misunderstood you I think. Okay. Unless you misstated it.

I thought you wanted a guarantee for me to send it back to the CEO. I'm I'm I'm okay. here to discuss it to make a suggestion to have been planning for I'd like to get that in writing. Yes.

Anybody else from the public? Go ahead. Can I have your name, please?

Bob L. Noword here. I wrote my name on the list. I have to step out. Um, someone had uh sent us a list of considerations that seemed very well articulated. among which if it hasn't been stated already tonight uh is that his project for all its environmental impacts on the land itself and the area and the people uh you know who live here um this project should have to go through um this I don't even know what the initials stand for SQA it's environmental AL impact review so that um all of the considerations that uh you know get picked up by such a review uh would be you know available for the consideration of the board before allowing the project to

Thank you. Thank you. Anybody else from the public?

Matt Ready for Hawkson. I just feel um respectfully with my neighbors um I disagree with most of what's been said tonight as far I know there's objections I know there are issues there's all technical things that certainly the applicant would have to work through that said I do think we need infrastructure in this town we need communication infrastructure in this town it's no longer just the convenience these kind of communication systems are now a public safety uh issue fire police EMTs those of us who live here we need to be able to talk to one another and so if a corporation and believe me I have no love for corporate America either but if a corporation is coming and saying hey we want to build infrastructure in your town I do hope the board and the residents will give that some weight because we need this is it's 2026 we need um infrastructure these days corporation has shown up trying to build that I know there's a million technical and and and code issues I hope the board and the and the community will kind of get together and work these through I do hear a lot of opposition I just wanted to speak in somewhat of you know tepid support just the fact that generally speaking we do need development infrastructure this sort of infrastructure I live over on the north end of town we have no cell signal anywhere and I know that's not what's being debated here but my thought is if we can get this built we can start talking about you know it is it is a safety issue where we live on the northern sort of town side of town so you know I do hope the board and the and the community can come together and figure this out thanks

thank Anybody else?

Okay. So, closing the public hearing for tonight. Um, but it will be opened up. Um, if the project is on the agenda for the 26, we'll reopen it then or first meeting in February. So, just stay tuned to uh the agendas that are published. Um, okay. Let me pass out uh some documents that you may not have had a chance to to look at or Thank you.

So that document that I just uh passed out is from today. Actually, I received it from I received it from um sorry I received it from um earlier today. And then there's another document that Scott sent another one. That's another And this is another one from Scott from earlier um in January. January 7th,

right? January 12th. I just passed out January 12th. What about January? Yeah.

Related to the setback. There's number three. Guess he's back though. [laughter] There's a map I prepared or actually

that has more to do with which Dave or the two Daves back there. Yeah. Okay. So, let's start with the hype business. Um, the history I think is important. Is this January 12th coming? Which memo are we looking at? Scott's letter was December 19th. No, no, the January 12th letter. The January 12th letter is the one. That's the first one.

Okay. All right. Um, you got it. Thank God. Yeah. Okay. All right. Good. So, let's just go through a little history. Um, which isn't in the 12th memo. That's the proposal that Scott has is proposal. Okay. um back in January of last year uh 2025, the um this the determination was made by um our then CEO um who left sometime at the end of the summer and the determination um did not address the height of the uh tower. I think we all assumed that it did, but it it didn't made no mention of it. Mention was made and it was picked up by the CEO, by the the building department, by the planning board, by all of us. The recommendation on the 45 ft and then the 50 ft was made by Tectonic in a document from November 18th, 2024. And um we've been wandering around with that um that assumption ever since. When we started talking with Dave Church's help, we started talking about the site plan or went through the site plan step by step uh the code rather in terms of the site plan. We came up with 20 25 different items that were either done or not done. A lot of them had to do with the height. The question was asked, it was either by me or maybe was Dave or somebody asked. I don't remember seeing anything about the height. And so upon checking it wasn't in Jerry's original determination letter. And after a lot of scrambling around

where where is the height, we found okay in the original tectonic um memo to us or letter to us actually um on November 18, 2024. So, we had intended, Dave and I had intended to get Craig to go out and measure the trees for no other reason to be absolutely accurate in what the height of trees were that helped to determine um this notion of 45 ft plus 50 ft. Um that never got done. In the meantime, Scott had Tectonic do something like that or do exactly that. Um, and they came back with pictures in the document sometime um, before Christmas, I think it was, maybe a little earlier. It was a 433 page uh, document. Jennifer knows that is smiling. And it went through all the details of the missing site plan items, one of them being this heightened issue. And in that document, Tectonic made made the statement that it would appear that the nearest I may be paraphrasing a lot. The nearest tree line would suggest um that they didn't need any variance. Remember the variance was for another 50 ft to get up to 145. What Tectonic had come up with in their calculation of the size of the original trees plus 50 ft brought Scott above the 145. And so the comment was made in that document. Well, we don't need a variance at all. Thank you very much.

When was this? It was in the December 19th. Sorry. Yeah. 19th. Yeah. Okay. Well, you said it was a memo was a 433. That's what threw it up. It was 433 page document. December Scott's letter from December 19th which referenced the Titanic from December 12th. Yes. Yes. It included that drone letter December. Correct.

So um I I called Scott and [clears throat] simply suggested to him that I don't think that's going to fly. It's a little bit late in the game. And when I looked at the diagrams um and knowing some of the trees out there, I said there's something wrong with this. So they went back again as I understand it. They went back again and Scott K came back to us in this letter of the 12th um stating that first of all let's he defined the word tree line. Our code talks about a tree line the closest tree line and suggested that it has to be a line of trees not a single tree. So for example there's a big elm tree right next on the north side I guess it is that's maybe 60 ft tall. um that wouldn't be considered a tree line. That what what he feels doesn't necessarily mean what I feel or the board feels that tree line suggests a line of trees and that line of trees is to the south of the property. So as you come up that gravel road, it's off to the right in in the back uh back towards the water tower. And that they came up with ranged from 60 to um 70 to 80 ft. That TR tree line the line of trees 70 to 80 ft plus 50 ft get you to 120 or 130. And the memo outlines um or suggests that it should be a simple enough my words simple enough matter for the board to consider a 15 ft variance to 145. The difference between the 130 and a 145 versus a 50ft variance

between the 95 we have been dealing with and 145 we have been dealing with. And so I think the implication was it's onlyif it's only 15 ft and I also told we talked today uh I talked today with Scott and I said this is going to be a board decision and in any case we're not going to make any decision of that sort that has to go back to the uh CEO which our attorney mentioned. So Nison noticed that if we were to send this back to the CEO um rather if we did agree with that it would go back to the CEO and they would have to make the discrimination not us. So that's that's where we are with the ins and outs of of the height. Now this board knows and Scott knows because he's listened. We've talked about what is the minimum height um at which this cell tower could still be effective. And according to uh Mr. Fishman, our RF engineer, that number was 120 ft. He indicated that anything below 120 ft, you might as well not even bought up build the tower. So, um yeah, 145 is great, but 120 is sufficient. So in my mind at least and this is where let's get into the discussion on this my opinion is for visual reasons community character whole host of reasons that the lower that we could make the tower if we assume that we want the tower that the tower is fine that we're going to approve something and not going to decline the whole project the um number of 120 would be the lowest possible number that we could give assuming we wanted to give them anything um and that we wouldn't go to 145. That's where our discussions have been going over the

last amongst the board uh for the last month. So that's where we are. Um, if I think if it's safe to say that if Verizon wants to push the new interpretation of the tree line, um, and go forward with that, um, okay, but we had talked about we're not going any higher or our thought was we were not going to be going any higher than 120 ft. Now, we haven't gotten there yet because we have to go through Seeker and we have to go through all of the details of the Seeker environmental process before we come up with well what is the number that will satisfy our concerns with Seeker? Um, so Scott, do you want to add anything to that? Is that pretty much historically what

that's what occurred? The only thing I would say is I know you've spoken about 120. I think the number is 125. And I I understand why there's confusion, but we're proposing 145 ft tower, but in parts of the report, it refers to 140 foot ACL, which is antenna centerline height, which is lower than the top of the tower. And I think with the alternate tower height, it was 125 foot tower, but 120 foot ACL. Okay. So, I just if the board's going to consider that, I just want to make sure that that's okay. clarified and I understand why the confusion is it's not easy to follow all the time.

So, um unfortunately we've had a little bit over a year of assuming that we were dealing with 45 ft and then 50 ft. Um I think that's a that's a fundamental point that I don't feel comfortable as a board we can determine that. I feel the only viable thing is to refer back to the CEO for determination. It's unfortunate that it wasn't done originally. It's unfortunate that Verizon did it and did it wrong. Um and we accepted it. Um but that's where we are and I feel like you know in order to move forward in any way before we can make any real decision that is the keystone factor that we need to determine what the what the tree what what is the tree line and what is what is the height what do we what is we need to we need to have that reference. So what is the the CEO? What is his actual purview? What is his motivation man? Is he

is he is he the one that he does he decide what the treeine height is? So he's going to do two things. Yeah. If um he or she

or she whatever he's going to do two things. one is um in this particular case there is actually a statutory word interpretation as to what nearest tree line means and as as Rick explained he may have a difference of vision from the applicant as to what whether it's a set of trees here or set of trees there is it going to be the the tree line that is it the line of sight the most common line of sight which would probably be to the southwest as opposed to some other direction my my point is that this board is not despite you know, to answer the other comment, we're just not competent to do that. We take that interpretation, run with it. Now, in this case, not only is he going to do the interpretation of what it means, but then there is on top of that a technical this this actual height requirement depends on a technical observation of exactly once you determine what tree line means, what it actually is in terms of height. of of Pectonic has submitted at least six pages of um photographs, drone photographs, and there may be more I haven't seen yet. And there may be a further art that the public may want to submit comments to the CEO as to what they think the height means and also what it is. But ultimately that the outcome of that is going to be and this is pretty rare in a zoning code. Usually a felony code has a number for maximum this or you know the maximum height for example 35 ft very often right

we're going to get a number out of this process that is the number that we apply and as as Scott's observing it may be enough to knock out a waiver entirely or it may be enough to make the waiver much much smaller or if they went to the ZBA of arence much much smaller than what they're asking for now which we've observed is substantial So it's like a 50% wave 50% wave um from 90 95 up to 145. They those pictures are found um during the site plan section of medical in the book 33 page document. Oh yeah no I'm unfamiliar with those. No I agree with Peter. I mean this might not like it that this is where we are now.

The determination as even to what zoning to apply is in fact the CEO. So Mr. Stern's comments of if the CEO thought one of them he could run. I mean that the point is the zoning compliance of a project is in the ballpark of the CEO and not the planning that that's the fundamental thing that the courts tell us and that's why sensibly we need to do this. I mean I essentially feel we can't make any sort of movement forward until we know that you certainly can't do the part two which we're going to do. I don't think we can do anything

because it's it's it is the predominant thing in this in this particular structure has a technical capacity to determine right of the street the the building inspector right he's got to do it somehow he can he can hire a consultant if he has to um but that's his job yeah because I thought ask Verizon to hire somebody and professionally measure it and we're not going to hire no I Oh, yeah. That's what we did. No, it's what I was presented here is very sketchy. I'm sorry to say. Well, the new stuff. Yeah, right. No, that's not the new stuff though. That's part of that goes into the new stuff

which you use light. The new stuff it's actually require explanation. It's not really clear how to interpret this. Okay. Ian it's it's not art it's not assessment and I would also add what I said before

at the end of the CEO process which is not really public process although the public obviously can write to the CEO and and the applicant can have discussions as well but once he makes his once he she or they make their decision then there's a time period in which that anybody who's agreed can appeal to the ZBA and that is a public process the ZBA will hear an appeal they will have a hearing Verizon will appear the appellant if it's somebody other than Verizon will appear. They can hire their lawyer. They can hire the consultant make. So at that point you have a much more public process and they could even set an escort if they if they want to do that. So that's the process that we'll go through. It's not perfect under state law but that's what state law provides.

I'm sorry David. So you you're stating that somebody challenge CEO when define the lie. There is an there is an open right if the CEO makes a determination as to whether a proposed building permit complies with the zoning or for that matter a proposed site plan approval and CEO any decision the CEO makes can be appealed to the ZBA. In fact, people don't realize this. The ZBA's original function was not to give variances. It was to hear appeals from the building inspector. That's why it's called the zoning board of appeals. It's not called the zoning board of variances. Well, the zoning board of appeals because it fears appeals from the building inspector and is required by state law to do that. And when they when we put zoning and building codes in place, the state was concerned that this would be a dictatorial process. We set up this appeals board that every town has exactly for this reason. Now, there's a requirement that you got to be agreed, but in general, at the town level, most most CBAs don't bother with making you prove your standing, which is what happens at the court level. But at the town level, if juror agreed, they bring an appeal and citizens do it all the time. I've done it on behalf of the citizens and they will have so that will be the process by which this whole thing gets argued and the good news is we don't have to deal with it. We just take the outcome of what they decide.

So we need to remember to extend that uh January 26 days. Remember well we have we will have shot clock issues obviously that's a timing thing. On the one hand, we hope that the applicant would just help us out there. On the other hand, if they don't, we can argue as to whether or not their submittal in December was functionally an amendment of their um application, which would reset the shot clock anyway. So, it's a timing. Obviously, it's a timing problem. That's why I want that's why I was, you know, out front on this telling the applicant this is the result and we're it's going to set us back a couple of months particularly if there's an appeal to the ZBA, but that's what we need to do to get the zoning straight. Okay. Can I ask a question? Do you have a CEO? Good question. One has been appointed.

Okay. I don't believe a start date is confirmed. You mean full and my my argument? But you have a ideally we should have one in two weeks, but we have a shared services agreement with Marbletown right now. Okay. All right. So, that would be a Yes, we do. Yes.

So, ideally, we do. One of the things I was thinking about coming into this meeting would be if you were for for whatever reason, including disagreement with my legal interpretation, if you thought that this board should be the one who handled it as you've proposed, I would be willing to look at a legal argument on that basis. And I would also invite the public at that point to, you know, have an opportunity to respond as well. This as I look at the cases, this is where it goes. But obviously planning boards do make at times zoning compliance issues. We, you know, we we look at site lanes all the time. I think this goes beyond that. But if you wanted to go ahead and argue that we should be doing this, I will entertain that and I will entertain the public's response to it.

Okay. Yeah, I do think you are more than qualified to do it. I think between seven of you, eight, what you all you around the table, I think you're certainly more than capable of looking at the data. It's a question of legal. It's a question of legal jurisdiction. And so if you want to make that argument, we will. Planning boards have I'll I'll make the argument. Planning boards have an inherent right to to basically apply the law as it's written. you understand that I'm going to I'm going to allow the the I would I would want the public to respond to your which is why I'm thinking of maybe just going to the zoning board of appeals directly for the variance because the standard there again is is very easy and we could just argue fine it's a 95 foot whatever just we entertain the variance.

Well, if you want to withdraw the if you want to withdraw the um uh the submittals that's a different issue. You don't want to withdraw them, but I might run them concurrently so that if I get a ZBA variance before you get this decided, then I'll withdraw that. You uh you're fl kind of flooding with zone on this. I haven't even thought it through to be arguing two different zoning submittals from your from you. I mean, at this point, you're blowing your mouth into me. I mean, the point you know, Verizon has got two zoning submit. One would be 45 plus, you know, 50 to be 95. you're going for variance from that or a waiver here. And secondly, you're actually arguing that it's a different zoning um unit.

Well, and again, I haven't thought it all through yet, but I can also go to the ZBA interpretation of the zoning code, I think, without the building department. I think I can go there directly and I can say we'd like an interpretation and oh, by the way, if the interpretation is not favorable, here's what we'd like and they end up there anyway. So, that's and that's that's quicker appropriate with put them in the ZBA. let them now that's an open argument with the with the public obviously hearing everybody can come and make their case and both on the law and on the you know the fact of the uh the the drones and and um that's fine with us. So what do you what do you want to do?

So I don't know I want to talk to my client about it obviously tomorrow but the one thing I will add and I'm going to advocate to go to the ZBA. You're going to go to CBA? I'm that's what I'm going to advocate for not for variance for zoning interpretation. Uh both I have a variance pending. I have a worst case scenario variance pending. If they were to grant that withdraw, don't you withdraw that variance? I did not withdraw. Okay. In fact, we were ready to go for a hearing in October, but then the issue came up on the site plan, which is what I want to say. Let me run this by you. Yeah. In order to in order for the ZBA to grant the variance, we need to finish Seeker. In order to finish Seeker, we're going to have to evaluate the impact on the community, and that's going to depend to some extent on the zone bill.

Yep. But they can have the public hearing and wait and they can probably communicate. They have the public hearing to you and whatever else they need to communicate to you. But they have to wait unless they wanted to do seeker on their own. I'm not sure they want to when they can. Yeah. Why not? We've got we've got to do. Yeah. But it's an unlisted action. You've got a level of complexity here with you know you can dump it before the ZBA and let them navigate it. From our perspective, if you want to convince me that we can do this, that that's fine. But if you want to just take it to them, that's probably better. They can they do

My understanding is the GBA can't do seeker because we have lead agency status. What Scott's arguing though, which is now um emerging more in state law unfortunately is that because of the growth of the type two list there, especially on the on the ZBA side, what we're seeing now is projects that that for the planning board are not, you know, are projects that are subject to seeker, but the variances are actually separately listed as a type two action. So the ZBA considers their own jurisdiction separately to be type two. But in this case, the problem there is that we already have a coordinated review. So Scott is he's also now we got a level of complexity under seeker which probably won't fly. And um at basically constructing law school exams on top of each other.

All right. Second question I have. We had one of the members of the public um um make a a statement about um going to the ZE CEO made a mistake in terms of the bulk area available for use. Um, density, density, density. I was argument argument. Yeah. Um, I don't know what to make of that. I do know that we we have multiple uses in uh all of our residential zone zones. Um, it's not our call.

Well, I was getting there. And we have the CEO determination that says XYZ. They can do it. And the question is, do we agree with that particular comment from the public and do we do we want to go to the CEO uh and say hey we've got an issue now that it's been raised about density about multiple uses etc etc etc. I will point out to the board that when and if or we could do this ourselves but certainly the if the applicant goes to the CEO andor the ZBA we have a right of comment for them as well. We can comment as a board the same way we can comment on anything else. So if we have a if we have a comment on one of these things, we can bring it. Now you're you're you're saying, can we raise an issue to respondant on our own to the CEO? Yeah, we can. Um it's not typical, but if we say, yeah, we're really concerned about this particular zoning thing in addition to one they're raising. We want you to think about this. We could. Dave, I'm going to turn to you and ask you. Um, you're more familiar with densities than I am and probably many of the people on the board. Is anything that you heard tonight from the public member regarding uh the density multiple uses on the same parcel? Um

well he also raised the single parcel question which is right it is which is in uh a heavy footnote uh the telecommunications section of your code is a mess. [laughter] So I I would almost argue as an example um the reference of using a breakpoint technology and is in the wrong subsection because it relates to height which is the subsection above it yet it's inserted into the setback section well

where you have no granted authority to vary the setback. So you have a waiver authority and height, but I'm just using that as an example of a code. I don't know what to make of sometimes. Okay. So aside from that, single parcel issue is I non-legal interpretation. I just took it as being because in the setback section um uh the facility needs to be in one on one bars. They can't split parcels like like they can find stuff, right? Exactly. You can't build a telecommunications facility on multiple parcels,

right? It's on one or the other, but that's non-legal, you know, anecdotal practical experience that that may be referable if you want to you want to get that clear while you're at it. I think it might be a valid issue. What's the single parcel mean? You know, um I have a question. Are you done? Do you know what I'm talking about? Yeah. But is also are let's take the cell tower away. The apartments are they pre-existing non-conforming? So they're pre-existing non-conforming. Now we have something that's added to that

that can I think legally that can open up a plan. So the pre-existing non-conforming use uses are addressed in a complete different section of your code with completely different standards. You've dealt with some of these, right, Dawson? I was pre-existing non-conforming, right? But that doesn't and and the multiple uses uh uh your code is very generous in allowing multiple uses on single parcels with minimal standards. It's uh the the density obligations are uh if it was simultaneously happening would be an issue. I'm not sure what you do again.

Nor are I but and as Dave has said, I'm not the CEO.

Yeah. I mean, this we have we have enough difficult things to parse through. My advice to the board is as I hear these issues, this is a this is essentially a zoning argument that we don't have. Now, the question the chair raised is whether we want to refer them to the CEO. And I'll just toss that. My only advice would be let's not spend too much time trying to parse these points because that's exactly what we're not supposed to do. But if you want to take take Iris's letter and send it to them or just ask him to send it to them or whatever you want to do that, that's fine. But we have other stuff to deal with than than the zoning issue. And and and the CEO or the ZBA will have a hell of a time with these. These are not easy issues. So, but that's their job. but not ours. That's my only advice.

So Dave, for the [clears throat] board, let me ask if a citizen raised issues like were raised that need interpretation of the code, they could do what?

They should send that letter to the CEO, assuming that the applicant goes to the goes to the CEO. If the applicant chooses as as the applicant thinks that they can go to the CBA, then that letter should be sent to the CBA as part of the ZBA hearing. There's no reason why either of the town offices, boards, whatever you want to call them, officers that make that decision shouldn't completely hear and consider that approach, but the planning board does not need to be a part of it. And frankly, the planning board shouldn't be a part of it. Unless there's a matter that come before us that the planning board really cares about it. It's something that really strikes us as something we need to start rattling people's cages on, we should do it. But we don't need to be a conduit for them. They can they can they can they can do it on their own under the first amendment and they absolutely should and furthermore for the ZBA they don't even need the first amendment because ZBA is going to hold the hearing.

So the only so to finish the discussion the only I would argue if there's a second issue for this board it's this question about breakpoint technology and can you relax the setback? Well I I that language is confusing to me. I've read and reread that section and the both of you have told this board, see if I get it correct, that we're not allowed to wave things in the zoning code unless it's specifically mentioned that we have the ability to wave. You can wave certain two categories.

We can wave procedural things. If there's if there's a requirement for somebody to submit a report and we think the report is superfluous, we can wave that procedural requirement. Okay. So what this lawyer lawyers have these words procedural and substantive. Substantive means an actual rule you need to follow. We cannot wave rules you need to follow like 95 ft high. The code says the code says we can and in the in the instance of the height we the code says says we can. It doesn't say that we can well question mark.

It's suggested in that setback section if you can take a look. It's suggested that we can take into consideration if the applicant uses breakaway technology or breaking point technology that we can take that technology into consideration in setting the height of the tower which I interpret to mean if we can do that this setback issue if we ever get to the point of agreeing what the height is going to be that the setback issue could be decided by this board. It doesn't overtly say that we can do a waiver. It says that we can consider breakpoint technology in our analysis of the height.

My reference and the height being the height that you calculate 110% on. Yes, that's what it means. Yes. So that functionally that become 110% is the length of the setback and we're allowed to consider the technology and the determination of the height to which we that we multiply by 110%. That's what I I believe that's what it Yeah. Jen, my recollection is that we asked for some information on that and we declined to provide it. I can't hear you, John. Sorry. My recollection is that we asked for engineering on that issue and they declined to provide it. The main point the applicant we specifically asked for information on um how the the on tower design and you declined provider.

I think I provided information explaining that in general the way it was like a standard ASM standard. It wasn't uh you didn't do remember that we My question is no wait wait wait wait one question at a time one question maybe this doesn't answer the question for you but I recall you asking that and my response is what you do is you design the bottom portion of the tower to be overdesigned so right call that okay so then and then you get to the point at the top where the hinge point in the hinge point and I think I even said I don't like calling it a weak point because it's not weak it's still designed 100% structural but it's designed less than the bottom more so the engineering principle is that's where it collapses

right I was looking for something more than basis of design level or conceptual design level and we my recollection is that we do it basically design build and we don't give that information out so I'm just sharing what happened previously it sounds like now maybe that's changed um but that was what we had been provided with previously follow questions I hear about the break point first time. It's never any anywhere else it mentioned in in your Yeah. documentation. Yeah. The plans. It's been on the plan since at least May, if not earlier. On the plan. It says break point. It does. It says it.

Why? Why it wasn't mentioned in structural analysis? In a structural analysis? No. No. No. No. Works about because again, we don't I mean, I had to look at the structural that they gave you because again, We typically don't do structural analysis on structures that don't exist, but it's typical design. Yeah. So, we gave you a general type of a design, but it should mention, but it's we mentioned it on SB-1 proposed. Well, again, it's not. So, I I think it's in the back where you have the drawings of all of the um

we bits and pieces of the tower itself. It might be. We also I mean in two sections it talks about the 75 foot uh ball zone break point but and I'd have to look at the structure that we gave you. Honestly I don't recall top but you're saying that there couple sheets showing profile of the town somewhere there. I'll look in the structural to see if they I thought it was in that section the C section of all those maps. I it it is it talks about the 75 foot fall zone. Yeah, that's where it is. CB1 and but does it say u does it explain what it means that it's a break?

It doesn't go into big explanation about it or 75. Okay. Anybody else at this at this point? Um can I one thing on on the CEO issue? I mean, we did go to the CEO initially, but now you've got a new you've got a proposal to reconsider the zoning,

but he never raised any of these issues. I mean, the appeal from that decision should have been happened then those issues, he never raised any issues. Now, I don't know why, but he should have addressed that issue right away. He never told you what height variances was required because from what I recall so you're inserting an issue now and I get why you're trying to do that but I'm just trying to open up

here's here's the way I'm looking at it Scott no matter what happened before because um there have been some you know we we're finding new we're finding out new things about what was you know what happened before just the easy way to figure this out from my perspective and again if you think that there's a different way to look at it I'm willing to willing to look at it. But in December, you've submitted a couple of reports now, one in January that's functionally proposing a change zoning requirement, either changed or new or however you want to frame it. That's the point. It's a zoning requirement that we have not considered before and that I would also view as with all respect substantial with respect to this project. Substantial change than what we're considering before. it it can change whether or not variances are necessary, the extent of the variances and it's not small in number and it's a it's just an important parameter. It's not a minor thing. It's the height. It's basically the height standard for the cell tower. And so my perspective is you're proposing essentially a a a new zoning requirement for this no matter what happened before and therefore it's for the CEO to to calculate. And furthermore, the other thing that that drove me on this is that this is not just a technical thing. It's also an interpretation of what the tree line is and and there's been some difference of opinion on that. And that interpretation should be by done by the CEO whether it's your vision or Rick's vision or what or another vision.

Yeah, I I think the tree I think actually the oppositional attorney agrees with us as to what the tree line is, but I don't know if you're referring to that, but he he's in agreement with us. I believe it's the one moment of clarity he's had. [laughter] Well, setting that aside, in one of the B in one of the Berg letters, I think it was the letter of the sixth. Yeah, something like that.

One of the bird letters, he does reference um how the height is determined by the nearest trees and goes into a discussion of definition of the word tree and tree line. He quotes he takes a particular dictionary and defines a term from that dictionary but he introduces the notion of the tree line is a group of trees not any single tree. So Scott's which we agree with. I'm just uh my only point is

but I think what is saying is that that's that's nice but we have a determination already by our CEO whether he did it or not or he just accepted what your guys did. Now you were asking for us to give it a interpretation. We didn't have I don't know if we did have an interpret that Scott's point was we didn't have an interpretation on CEO or it didn't cover that. I don't care. What I'm saying is I don't care. They are coming in with a proposal for a new previously unconsidered height requirement here which frankly I respect because they've now done some we should have done it a year ago but they've done some work. Tectonic has been out there with their drones. They've got a report. This is a this is a a statement of the height. I do not want this board evaluating that because it's it's it's the it's the fundamental zoning and that's not what our job is particularly where there is an interpretation of what it means and if you agree with their lawyer that's going to help everybody but they'll change well [clears throat] okay that which they have right to do which course which lawyers sometimes do and that's why that argument doesn't happen here that's my only point but if you think it does then then we have a different procedure then we will spend basically probably an extra month taking those taking those briefs and then having responsive briefs I think to get to that get to that point because it's a it's a it's an important zoning argument it's halfway to a law school exam for whatever it's worth but we can go either way that we'll refer it or if you want to stick to you know your proposal here I'm going to want to hear from everybody as to whether it's it's it's it's legally appropriate I just as I read the cases Now, I think you're on um I think you got an uphill climb, but if you want to try to make it, we can we can spend a month doing that.

I'll have to touch base with my client to decide how we're going to handle this. And that seems to be where we are at at this moment, right? Because pointed this out. It's a substantial it's a substantial submitt. You're going up basically 30 feet from where we were before in terms of the trees. I respect the work. It was regrettable what happened on our part and I wish it didn't. And after I got done yelling at Tectonic, I realized and makes and again from my perspective, it doesn't we don't have to yell about what happened before. You know, you're you proposing what the zoning should be, which is an important parameter and we need to respect that.

I have a little different take, but I could I looked at it as we're just memorializing what the existing conditions are, which we may have or we did not fully clarify. Let me put it this way. what you're what you're this board cannot just simply accept the faith value what you're proposing it needs to be the tires need to be kicked on it the question is who does the kick I agree with that and I'm my argument will be just that you know Mr. church and everyone around here is more than qualified and intelligent to make that determination.

So, one other thing is you if somehow it would be determined that the planning board can accept this or evaluate it on its own, I would make want to make sure that the public hearing that we're that we're um in the middle of would be extended long enough with a specific

admonition to them that this is happening, that the zoning is being changed. We want you to evaluate it. We want you to tell us whether you think that the interpretation is correct assuming that we can even do it which as you know about and also have they measured it correctly send your own drones up there if you're allowed to do it you know and make your own measurements that they've been in a public hearing for months now and and changing the zoning is something that the that the public needs to be aware of completely and have the opportunity to comment on if that's this board is going to consider that which I don't think we should do anyway but you tell me what you want to All right. What are we going to do? What does the board want to do? What do our consultants tell us to do about the other zoning issue that's been raised

by? Yeah. Oh, I issues. I issues. Not the break point. I Well, you got the density question, the single parcel question, right? And the multip and the setback. Well, the setback is breakpoint relationship to setback. So is that I don't think that's a CEO issue. The other thing it's your I'm just itemizing. No, the other thing that No, what I'm talking about is the first two that you mentioned plus multiple uses on the same parcel, right? I I think I mean we got to be careful about telling the you know advising the CEO about I mean we can say by the way this

they submitted it. We can I wouldn't go beyond that, right? because because it's not something that was central to what we're doing. It's what they we're just we're just reporting that they've submitted it to us. So it's not even consider this. It's by the way this public produced this. You may want to take a look at it. Well, and if I could add to that, if you look at the CEO determination, it was from January last year. That like a month after the new code was approved.

So I can't imagine that. I mean, I don't want to assume, but like the the code was a lot to take in. That was a lot of information to try to review a determination. And so, if we do refer it back to the CEO, I would hope that they would review all aspects of I mean, it would be a wholesale review under the new code in my mind because presumably there could have been something else that was missed. I what what I'm saying is that if we refer back to the CEO, I think we should expect that it is a wholesale review of the entire application and not just specific well it's gonna be in likelihood it's going to be a new CEO.

I don't think we should assume that the first determination caught everything in the code because there was so much for that that you'll also remember the application was received. I understand the temptation Jennifer

got a good point but um there is an issue of finality and that the CEO made a determination and it was not appealed and so let's put it this way there's an implication if the CEO if if someone comes in and the CEO looks at issue A and says I've looked at issue A it's okay etc but you think issues B C and D is that make the zoning questionable if you don't appeal that you got to you have to go to ZBA and said he missed issues BC and D even though he didn't mention it. It's just it's it's implied by the fact that he's saying this can go through as long as issue or they're eligible for this can go to the planning board is what they typically say. If you don't raise the issues that are not otherwise there within the time frame, you lose that and you and so

No, but if you send it back, isn't that what they do? But they a wholesome review. That's another you're getting into another law school exam. Um I would It's up to the CEO. Basically, this is what I'm saying. If the CEO is reviews it, they will could possibly Are you saying they should or were going to ask? I don't think we have the right to tell them what Scott will make the argument as to whether or not I'm making everyone aware that new things that may not have been caught the first time around could come up given that the first review was done quickly.

I just I don't know what could come out of that review. Scott will make Scott will will make the judgment on behalf of his client as to what whether the CEO is crossing the line in terms of getting at a whole bunch of issues that the previous and the previous the previous determination may have been you know bare bones or or cursory. I'm going to leave that to Verizon to calculate. Um I would just suggest to the board what we should do is we if we want to raise issues to the CEO or the ZBA they should be the ones that are of core concern to us and evaluating the application. Um the breakpoint might be one of them for example and certainly the that we want to make sure that this hype thing gets dealt with and um you know I would be somewhat parsimmonious about about dumping too many I mean this is going to be a substantial interruption of what we're doing um agree

and frankly we may be overloading you know the CEO has is going to have whatever limitations that they have here considering in fact we don't actually have an actual CEO Uh ultimately it's going to be to the CBA. We can make whatever comments we want, but there may be certain limitations on what they can do beyond I'm not suggesting that we ask the CEO for a wholesale review. I'm only suggesting that we're opening a Pandora's box. Scott will make the determination his box. Yeah. But I mean I think if you if the CEO issues a completely new review it just it means his all his reviews are kind of you his or her are useless because he's got a review

if the review if they missed it the appeal time is gone you know I mean with some exceptions yes the planning board can make a referral I'm sure but if he comes out and now a year and a half later says oh no no this is this this and this and all a sudden you know you know well over $100,000 later We've gone down the wrong road because the CEO made a mistake that wasn't appealed. We are not the CEO. Yeah, but the town will have an issue. I think it's an interesting observation, but there's nothing to be for us to do about it. Okay. You're in plenty of parts. You're considering asking the CEO to do this, right? To do what? Go ahead. To to consider new information in simple terms.

Well, go ahead. Well, whatever set of the things we just talked about you decide to put in in reference to him or her. The public has suggested certain other issues and we're I'm speaking only to the planning board. The what is the planning board going to do? You're going to ask the CEO reconsider something. Is that true? For the first time actually.

Well, I don't know. The CEO said applicant has met the zoning requirements and no physical restrictions apply. So, you're asking in the determination, which we know Jerry put in every applicate, every determination to my knowledge that I saw, but he presumably did some analysis. You're asking that to be reconsidered as a request. As a request, we're here's what I heard that we agreed to do next, which he could, by the way, here's what we're doing next. Here's what we're doing next. He's sending a brief to [snorts] our attorney. He's he's deciding what happened to my client. That's another

So, at this point, I'm not agreeing with anything that you just said. Okay. I'm not because you know, well, Rick, you said you were going to do it. I'm not doing anything until he says you'd be wise in my opinion to forget all of this new information and just go with what

we've been going with. But that's up to you. I I may very well do that because again under the variance standard regardless of the waiver issue I look at the waiver issue again differently than Dave Gordon uh I look at the language is pretty simple the waiver should be granted if necessity is demonstrated and I think the fact that we demonstrated the need for a tower whether it's 125 ft or 145 ft we've demonstrated it's needed in other words someone here said build a tower below 125 ft it's not worth building So if you don't have the waiver, you don't get there. But anyway, well, you can get you could get to 125. So Dave, I'm not agreeing to anything that you just asked me.

All right, no problem. Okay, I'm not in a mood to agree to set your next the next steps are he's talking to his client. Yeah. Now, after he talks to his client, there's a couple of A B C paths. I think between myself and everybody else, we pretty much can put together with work, you know. Yes.

There there is one thing to consider here which is bothering me and I'm not sure if it bothered I mean they've submitted what I view as a substantial statement with probably a a more a stronger technical basis than what was ever submitted before. And even if they decide tactically as as you're suggesting to just withdraw it because they were in a better position before all this happened, they've now told us what they think the tree line is. And the question for the board is do we have an independent interest in establishing the zoning correctly according to the best technical data which was apparently at least on on the Verizon site submitted in this past December and not the previous December and I'll leave that to the board but you can't just unsee the fact that they're now telling us the trees are not 45 ft the trees are what 75

and I would I would agree with you but if he says says to us that is between him and his client. They've rethought it and they just want to go back. Forget about all these members. He just wants to go back. I'm fine with that. Their submittals are in our and and it's up to you guys. It'll be it'll be a board decision.

It seems odd though, maybe I'm misreading it, but that you're saying, well, we're not going to necessarily agree with what you've provided. We need some third party, i.e. the CEO, to make a determination. But now you're saying since it's in the record, well, this is what you said, so it's okay. know the answer, Scott. I was saying that I understand what you're saying. It's hard to unsee that this particular thing. And so I I also understand the interruption that we're talking about, but it's just it's it's an unusual situation that we have a zoning criterion that's so dependent on these measurements and comes in after the process has been going on for a year. That's we're just trying to we're just trying to I've got I've got to obviously think about it because I know the position what you're advocating for. Again, I hear what everybody's saying. Um I just have to

you know where the board st kind of you kind of know where the board stands. I want to also point out that one of the reasons I came to this position in addition to the law is the fact that obviously the public has been watching what we're doing commenting on in terms including legal comments at every stage and that this one would be something that you know if we were to just adopt a new the planning board were just to adopt a new zoning criterion for example I my my vision was that the public would not miss that as an issue as a questionable issue for us to do and so that's why I would be tying us to what I think the where the court decisions are perhaps even more tightly than you might think of as sort of we can you know kind of might take do this and move on but where obviously what we're doing is being um is being checked very carefully on a legal basis of that

I'm just concerned with also EVA coming back with a completely new broad opinion and my argument would be you've already had your opportunity you had one bite in terms of opening up you don't get second bite of the doesn't work that way but You can make that argument to either the CEO or the ZBA and it's there's obviously cases that that that support that support and but on the height I just want to do that right maybe and I'll talk to my client about options but maybe they need somebody I don't know maybe need further clarification say that again maybe there there needs to be some further clarification on your side

maybe I'm going to go out there and measure the tent again whatever comes up with the question for me is who evaluates I understand the middle because a lot of what they did was drone footage and I don't know there were probably other ways to measure a tree with things yeah I'm not even questioning the the value I'm just saying I just want to know who evaluates it what procedure understand there okay down

the all right the IRA on on your memo I think you get the sense of the board if I state this wrong on your memo. You're free to send that to uh the CEO, but doesn't sound like the board and I don't have any interest in uh sending that to the CEO. Um I've always been taught that, you know, we go with what the CEO says. You have a period of time out of fairness in which to appeal it. That period is long since passed. And I just have no interest I have no interest in sending another issue. You could send it to him. That's fine.

Unless unless the board feels differently. Rick, are you talking to me or not? Yeah. Yes. I'm here to present it to the planning board. You're considering a special use permit for a cell tower. So, part of considering a special use permit would be to look at the existing conditions of that parcel. What is the allow? What is the um density development potential left? I don't see why that's a CEO issue. That's in your purview. The CEO gave you a two sentence memo with no detail

and they just read to you and there's nearly nothing to appeal because it didn't say anything. Um I respectfully disagree with that. Um we can have a I'm happy to have the discussion with you, but I was planning on discussing it. I'm just sitting here and listening. Okay. So, absolutely. See, I think what you're hearing it's a it's a moot point. It's a moot point from my perspective. So, I I would just say that that again that's an issue that should have come up during the initial review. Um but there's nothing in the memo. Okay. Anything else from the board? No. Anything else? No. So, we're not doing part two tonight.

No. Um, Scott, you need to let us know what you're doing. That'll determine what we do or don't do. And um, I don't know when you're back on the agenda. I don't know either.

Are we waiting for are we waiting for Scott to determine whether we're going to send a yes? I've offered I've offered to him the opportunity to argue that uh under the cases that we actually could do it because it's you know obviously planning boards do make determinations of whether it's whether a site plan complies with the zoning all the time but this is case where we actually determining the zoning. So that's why I've explained why I think that it's much safer and much clearer under the law to refer to the CEO. Scott's got to determine whether he wants to make the argument that we ought to do it. But that argument by itself will take probably a month because we'll have to look at the briefs. I I would I want the public to take a a good look at it as well and to make arguments as well. I'm already you know sign I've looked at cases I'm leaning against it but I Scott hasn't had the opportunity to make his statement and so he's got to decide he wants to basically take another month and do that.

Okay. What are we doing about the shot clock? As far as I'm concerned I I would expect the applicant to agree to simply extend it. If they didn't, I would argue that the submittal in December fundamentally resets the application. And I understand he might disagree, but at this I mean when the if the applicant steps forward and and and proposes to change the that a change in zoning is recognized at, you know, a year into the process, they then don't have a right to turn around and sue us the next month for not for not and we have it twice now. We have it from the December 12th 19th memo and then we have it in the today's memo that he sent to me which

so we're expecting that given this procedure that we that we'll have consideration including if it ends up going to the CEO and the ZBA it's going to take especially the ZBA it's going to take a little while and so that's the way we'll process what they're doing and you know they can make the argument that we don't have to and I'm going to look at that which is why it's so important but why are we going to do They they're moving they're moving up 30 ft from the zone in in December. So, it's you know we got to deal with that. I agree. It's an important consideration and and the citizens have a right to know what the zoning is as well. Okay. Scott, anything else? The board have anything else? So, communicate. Okay.

I will. Do we um give me one second over? No, we don't need to make you want to deal with I think we're done.

Does anybody in the board want to make a motion, too? I make a motion that Stacy gets a properly printed name tag. I made it, but I forgot to print it. Second that motion. Yeah, I'll [laughter] have it next meeting. I interpret that to be make a motion to close the meeting. Yes. Yes. Second. Who's splitting it? Give it to Holina. Thank you very much. All in favor? Five.