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HomeMy WebLinkAbout6533 BOARD MEMBERS Leslie Kanes Weisman, Chairperson James Dinizio, Jn Gerard P. Goehringer George Homing Ken Schneider Southold Town Hall 53095 Main Road · P.O. Box 1179 Southold, NY 11971-0959 Office Location: Town Annex/Flint Floor, Capital One Bank 54375 Main Road (at Youngs Avenue) Southold, NY 11971 http://southoldtown.northfork.net ZONING BOARD OF APPEALS TOWN OF SOUTHOLD FINDINGS, DELIBERATIONS AND OETERMI .ffIbN MEETING OF FEBRUARY 15, 2012 ZBA FILE: 6533 NAME OF APPLICANT: MGH Enterprises, Inc./New Cingular Wireless, LLC PROPERTY LOCATION:40200 Main Road (adj. to Gardiners Bay) Orient NY SCTM#1000-15-9-8.1 SEQRA DETERMINATION: The Zoning Board of Appeals has visited the property under consideration in this application and determines that this review falls under the Type II category of the Shate's List of Actions, without further steps under SEQRA. SUFFOLK COUNTY ADMINISTRATIVE CODE: This application was referred as required under the Suffolk County Administrative Code Sections A 14-14 to 23, and the Suffolk County Department of Planning issued its reply dated January 12, 2012 stating that this application is considered a matter for local determination as there appears to be no significant county-wide or inter-community impact. LWRP DETERMINATION: This application was referred for review under Chapter 268, Waterfront Consistency review of the Town of Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. The LWRP Coordinator issued a recommendation dated January 30, 2012. Based upon the information provided on the LWRP Consistency Assessment Form submitted to this department, as well as the records available to us, it is our recommendation that the proposed action is CONSISTENT with LWRP policy standards and therefore is CONSISTENT with the LWRP. PROPERTY FACTS/DESCRIPTION: Subject property is a conforming lot in the Mil zone. It is improved with a one story frame restaurant with attached deck, accessory one and two story building, along with boat slips. It has 181.72 feet of frontage on Main Road (SR 25), 752.00 feet along the eastern property line, 348.41 feet on Gardiners Bay and 1000.01 along the western property line as shown on the survey dated 4-6-2006 last updated 10- 27-2011 prepared by Hawkins Webb Jaeger, PLLC. BASIS OF APPLICATION: Request for Variances from Article XVII Code Section 280-70i(3) and Article XIII Section 280-56 (Bulk Schedule), based on an application for building permit to install a wireless telecommunication tower and equipment and the Building Inspector's October 17, 2011, amended November 9, 2011 Notice of Disapproval at; 1) less than the code required distance to adjacent residential property line of 500 feet, 2) less than the code required side yard setback of 25 feet. RELIEF REQUESTED: The applicant requests variances to install a new wireless communication tower and equipment at 7.l feet from a residential property line where the code requires minimum distance shall be no less than 500 feet and a side yard setback of 7.1 feet where the code requires 25 feet. ADDITIONAL INFORMATION: The Zoning Board requested comments from the Planning Board. In a memorandum dated December 20, 2011, the Planning Board stated they just received the Site Plan and Special Page 2 of 3 - February 15, 2012 ZBA File#6533 - MGH Enterprises, Inc./New Cingular Wireless, LLC CTM: 1000-15-9-81 Exception applications and have not yet determined their completeness. The Planning Board requested a condition be added to the decision stating the proposed height and location are necessary and confirmed by the Planning Board as per Town Code. The applicant submitted, on Feb. 6, 2012, a letter from NYS Office of Parks, Recreation, and Historic Preservation indicating that the applicant's proposed project will have "no effect upon the cultural resources in or eligible for inclusion in the National Registers of Historic Places;" and a cover letter explaining that that State was duly notified by certified mail about the public hearing and had not replied and did not appear in opposition. FINDINGS OF FACT/REASONS FOR BOARD ACTION: The Zoning Board of Appeals held a public hearing on this application on February 2, 2012 at which time written and oral evidence were presented. Based upon all testimony, documentation, personal inspection of the property and surrounding neighborhood, and other evidence, the Zoning Board finds the following facts to be true and relevant and makes the following findings: 1. Town Law §267-b(3)(b)(1). Grant of the variances will not produce an undesirable change in the character of the neighborhood or a detriment to nearby properties. The surrounding area is of mixed uses containing a marina, a restaurant, an office building and parking lot used by Plum Island employees, a large interstate ferry terminal and a residential development. Any detriment is mitigated by the placement of the tower at the southernmost end of the property which is the farthest distance from the existing buildings and residences in the area. 2. Town Law §267-b(3)(b)(2). The benefit sought by the applicant cannot be achieved by some method, feasible for the applicant to pursue, other than an area variance because any proposal to construct a cellular tower to fill in the gap in coverage that is proposed by this request in this area of Southold Town would require similar or larger variances. 3. Town Law §267-b(3)(b)(3). The variances granted herein are mathematically substantial. The code required minimum distance of all wireless equipment adjacent to residential property lines is no less than 500 feet, the applicant is proposing a 7.1 foot setback, representing a greater than ninety eight percent (98%) relief from the code. Also the requirement of a 25 foot minimum side yard setback is proposed to be reduced to 7.1 feet; this represents a seventy percent (70%) relief from the code. However, the residential property in question is owned by Long Island State Park Commission (Orient State Park) and has no residential structures located within the required fall zone and is the access roadway to the park with no access to the beach within the area of the monopole site. 4. Town Law §267-b(3)(b)(4) No evidence has been submitted to suggest that a variance in this residential community will have an adverse impact on the physical or environmental conditions in the neighborhood. With respect to the physical impact on the neighborhood, the Board finds, based on the report submitted by the applicant titled "Proposed Public Utility Wireless Communications Facility Orient By the Sea" Prepared by VHB Engineering surveying and Landscape Architecture, PC, that the location is the least obtrusive, given the uses in the surrounding area and the limited choice of locations for siting such a structure. As for the environmental conditions with respect to the radio frequency emissions, the total amount emitted will be more than 48 times below the limit established as safe for continuous human exposure as set by the FCC and stated on page 12 (Compliance Conclusion) of the report titled "Antenna Site FCC RF Compliance assessment and Report submitted by the applicant's expert consultant 5. Town Law §267-b(3)(b){5). The difficulty has been self-created. The applicant choose the parcel after the Zoning Code was in effect and it is presumed that the applicant had actual or constructive knowledge of the limitations on the use of the parcel under the Zoning Code in effect prior to choosing this location. However, the difficulty is actually caused by the lack of any parcel within the proposed effective range of the proposed tower that would not need even more extreme variances. Page 3 of 3 - February 15, 2012 ZBA File#6533 MGH Enterprises, Inc./New Cingular Wireless, LLC CTM: 1000-15-9-8.1 6. Town Law §267-b. Grant of the requested relief is the minimum action necessary and adequate to enable the applicant to enjoy the benefit of a new wireless telecommunication tower and equipment while preserving and protecting the character of the neighborhood and the health, safety and welfare of the community. RESOLUTION OF THE BOARD: In considering all of the above factors and applying the balancing test under New York Town Law 267-B, motion was offered by Member Dinizio, seconded by Member Schneider, and duly carried, to GRANT~ the variance as applied for, and shown on the site plan prepared by William F. Collins, AIA, Architects, LLC and dated 4/27/06 last revised 10/28/11 and the survey dated 4-6-2006 last updated 10-27-2011 prepared by Hawkins Webb Jaeger, PLLC. Subject to the following conditions: CONDITIONS: 1. The height and location variances granted in this decision is subject to the Applicants receiving site plan and Special Exception approvals and confirmation of the necessity of the proposed location and height, as per Town code, from the Southold Town Planning Board. 2. Although the drawings approved in this decision refer to a monopole designed to telescope to 90 feet in height, this decision is not a de facto height variance. The MII zone permits a maximmn of 80 feet for cell towers; and should the applicant deem it necessary in future to increase the height of the monopole beyond what the code permits, they must return to the ZBA for a height variance. That the above conditions be written into the Building Inspector's Certificate of Occupancy, when issued A ny deviation from the survey, site plan and/or architectural drawings cited in this decision will result in delays and/or a possible denial by the Building Department of a building permit, and may require a new application and public hearing before the Zoning Board of Appeals. Any deviation from the variance(s) granted herein as shown on the architectural drawings, site plan and/or survey cited above, such as alterations, extensions, or demolitions, are not authorized under this application when involving nonconformities under the zoning code. This action does not authorize or condone any current or future use, setback or other feature of the subject property that may violate the Zoning Code, other than such uses, setbacks and other features as are expressly addressed in this action. The Board reserves the right to substitute a similar design that is de minirnis in nature for an alteration that does not increase the degree of nonconforrniO,. Vote of the Board: Ayes: Members ~Veisman (Chairperson), Schneider, Dinizio, Homing. Member Goehringer was absent. This Resolution was duly adopted (4-0). Leslie Kanes Weisman, Chairperson Approved for filing ~' //~ /2012