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HomeMy WebLinkAbout4611APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Horning rru AND FILED Byut old Town Hall h� o OLD TO W,X CLEh'IKS3 5 Main Road ?lam P. . Box 1179 `�'� 3 ,� Southol , New York 11971 O �! ZBA F x (516) 765-9064 e� e (516) 765-1809 TOW14 OF SOUTHOLD BOARD OF APPEALS DETERMINATION MEETING HELD OCTOBER 27, 1998 Appl. No. 4611— Building Inspector's Request for Town -Wide Interpretation under Article XVI of the Southold Town Zoning Code. Date Building Inspector's Request Was Received: August 19, 1998. DATES OF PUBLIC HEARING: September 24, 1998; September 30, 1998; October 15, 1998. FINDINGS AND DETERMINATION 1. Zoning Code Article I, Definitions of "Wireless Communications" and Telecommunication Tower" read as follows: WIRELESS COMMUNICATIONS. Wireless communications shall mean any personal wireless services as defined in the Telecommunications Act of 1996, which includes FCC licensed commercial wireless telecommunications services including cellular telephone services, personal communication services, specialized mobile radio, enhanced specialized mobile radio , paging, and similar services that currently exist or that may in the future be developed. TELECOMMUNICATIONS TOWER. A telecommunication tower is a type of wireless communication facility designed and constructed specifically to support an antenna array, and may include a monopole, self-supporting tower, guy -wire support, and other similar structures. A wireless communications facility attached to an existing building or structure shall be excluded from this definition. 2. Section 100-163 of the Code provides "Standards" for the above uses and towers. Sub -section "B" states that the application must be a "public utility." In this application, a "public utility use or tower" is not the issue. Instead, the applicant, Building Inspector has requested an interpretation with respect to a tower "intended for the private use hof an owner who operates a VHF Radio under a Licensed issued to him/her by the FCC for the purpose of communicating, all as part of his/her business." Page 2 — Appl. No. 4611 Request for Interpretation (Fivate Radio Tower) October 27, 1998 ZBA Meetit 3. The Board heard testimony, and received a memorandum of law from an interested party who contends that a private VHF radio transmission tower is not subject to the Federal Communications Act of 1996 or the telecommu- nications provisions of Article XVI of the Southold Town Zoning Code because these laws relate to public utilities and telecommunications commerce. 4. The Board heard testimony by the Town Building Inspector that in his view a private VHF radio transmission tower is not subject to the telecommu- nications provisions of the Town Zoning Code because that law relates to public utilities. The Town Building Inspector also stated that he believed that there was an application before him which prompted this request for an interpretation and that that project does not fall under the current telecommunications laws. S. The Board received into evidence a statement from the Federal Communications Commission that VHF radio transmission facilities are not subject to the provisions of the Telecommunications Act of 1996. Article XVI of the Town Zoning Code states that it is intended to regulate "wire communication facilities, and particularly telecommunications towers." The definition of "wireless communications" in the Code is tied directly to the types of communications that are subject to the Telecommunications Act of 1996. 6. This Board heard testimony from an individual Town Board Member that stated that she was involved with the drafting of the law and stated that it was the intention of the writers of Article XVI of the Zoning Code that all towers be included, however, there is no written or other evidence to support her testimony. WHEREAS, the Board has reviewed the Wireless Communication Facilities Law, Article XVI, of the Southold Town Zoning Code, and all other provisions of the Zoning Code, and after completing this review, on Motion by Member Dinizio, seconded by Member Collins, IT IS HEREBY DETERMINED that the Answer to the question in this application is: A private radio transmission tower and communication use does not fall under the Provisions of Article XVI, Wireless Communications, when it is intended for the private use of an owner who operates a VHF Radio under a licensed issued to him/her by the FCC for the purpose of communication, all as part of his/her business, within the Light Industrial (LI) Zone District." VOTE OF THE BOARD: AYES: MEMBERS DINIZIO, COLLINS and HORNING. NAY: CHAIRMAN GOEHRINGER. ABSENT: TORTORA. This Resolution was duly adopted Ap roved for FYling 10/28/98 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 MEMO f -r f/ Jr %0ul'2,wto A16 a 1 0 COD 2 I • oy�ol �ao� BUILDING DEPARTMENT TOWN OF SOUTHOLD TO: All members of the Z.B.A. FROM: Gary Fish, Building Inspector Fax(516)765-1823 Telephone (516) 765-1802 RE: Request for interpretation of a private radio tower. At Martin Rosen property, tax map #1000-141-3-44. In light of past and present questions raised regarding the proposed radio tower at the Martin Rosen property located in an Lf_District, let this memo serve as a request for an interpretation. This request is for an interpretation as to whether this radio tower, intended to be used for the private use of the owner for his trucking business, falls under the Provisions and Requirements of Article XVI, Wireless Communication Facilities. From what has been explained to me by Mr..Rosen and his attorney Mr. Cuddy, the radio tower will be used solely by and for the proposed trucking business office. The office will be located in the existing building on the lot. Mr. Rosen proposes to alter and renovate this building to office space, a permitted use in an LB District, acquiring all the proper permits and approvals ie Building Permit, Planning Board Approval and possible Health Department approval. It is my understanding that the board has tabled an interpretation on this matter until it has received a request from the Building Inspector. I trust you can now go forward with your interpretation. CHARLES R. CUDDY ATTORNEY AT LAW 4446 G 121 PP I NG AvE N U 13 P. 0. 13OX 1547 Bivni nr,u),NY nool September 29, 1998 Zoning Board of Appeals Town of Southold 53095 Main Road PO Box 1179 Southold, NY 11971 Re: Application No. 4611 Dear Board Members: TEL: : (0116) 360-8200 FAX: (510) 360.0080 The application before your addresses the following question: 8:10 p.m. Appl. No. 4611. BUILDING INSPECTOR. This is a Request on a Town -Wide basis for an INTERPRETATION submitted by the Building Inspector for a Determination answering the question: 'Does a radio tower and antenna fall under the Provisions "Wireless Communications" Article XVI of the Southold Town Zoning Code, when it is intended for the private use of an owner who operates a VHF Radio under a License issued to him/her by. the FCC for the purpose of communicating, all as part of his/her business, when located in the Light -Industrial (LI) Zone District?' Zoning Board records will reflect I have addressed that question at length in another application. In order to complete the record in this matter, I am'enclosing for the Board's consideration, to be made part of this file, the following: 1. Statements by Mel Oshen, Professor of Telecommunications Management and Analysis at New York Institute of Technology. 2. A brief memorandum, referred to as Memorandum No. 1, concerning the Telecommunications Act of 1996 and the Town Code Wireless Communications Facilities article. Zoning Board of Appeals September 29, 1998 Page Two 3. A second memorandum, which is Memorandum No. 2, pertaining to interpretation of the Town Code, including that a private radio tower is not included in the definition set forth in Article XVI of the Town Code and is not regulated by the Telecommunications Facilities article. 4. The letter dated August 13, 1998 from Steven E.. Weingarten, Chief, Commercial Wireless Division, Wireless Communications Bureau, Federal Communications Commission. Very truly yours, Charles R. Cuddy CRC:JML Enclosures STATEMENTS BY MEL OSHEN REGARDING RADIO TOWERS AND TELECOMMUNICATIONS As far as credentials are concerned, I got into the business because I have a Bachelor's Degree in Electric Engineering and a Master's Degree in Physics plus qualifying for a Doctorate in Physics. I also teach the subject, Telecommunications, at different institutions from which, as proof to you tonight, I have cards from the institutions. Beyond that, I don't know what else to tell you; experts are experts. Whether or not a structure, a radio tower, would be governed by the provisions of the Town Code as written, seems to reflect on the Telecommunications Act of '96. How can I start? I guess you get involved in semantics and definitions to a certain extent. There's a difference between communications and telecommunications. Communications is merely an activity as we're doing now. It also can be a lot more complicated if we're very far apart by utilizing electronics by wire or wireless. Telecommunications, as defined, is the process, and the process would be as simple as two cans on a string to accomplish what you want to do which is communicate, or it can be vastly complicated such as the existing public service telephone network which is in place. Telecommunications refers to the ability of one individual to send either voice or data to any other individual in the world complementing such as the existing public service telephone network which is in place in this country. Telecommunications refers to the ability of one individual to send voice or data to any other individual in the world, and that's what the existing system does regardless of whether it's wired or wireless. Because of the advance in technology, wireless communications have come to be a better way of doing things than plain wire. There's certain advantages having wireless communications, mainly because you're not tied to a wire in any one location. So technology advances, and as technology advances our FCC responds because it is the buffer between the manufacturers, the sellers and the population. And it is its mission to organize things so that things will work, so that nobody steps on your toes. Therefore, I have to give you a certain amount of history. There always has been wireless communication. It goes back many years. Perhaps all the way back to the thirties. But because of technology, it was limited. Not too many people were able to have a phone. It was limited. Technology advanced into the eighties where the concept which we call "cellular" was developed, and the FCC saw fit to go ahead with this plan. What it did was to assign two companies in every metropolitan area to deliver cellular service to the public. The two companies it picked at that time in the New York area were NYNEX and Cellular One. Today, through mergers and buyouts, the two companies are Bell Atlantic and AT&T. A group of people got together at a company called Qaul-Com in the nineties and they said, "we have found a way to deliver wireless communications using the existing frequencies which were set aside for that purpose in a different way because it won't interfere with the existing cellular service". And because of that and because it worked, the FCC was forced to rewrite the rules in 1996. Using the Qua1-Com technology --a whole new set of cellular devices became available and that's why now there are companies like Omni -Point, Sprint PCS and NEX-Tel, who are offering cellular service. They have to be regulated which is why the FCC wrote the Act of '96 and which allows them to put in their networks which are also tied to the PSTN. Thus, you can pick up your cellular phone and talk to somebody in China, or even send them some computer data if you wish. Cellular tower basically, when you operate a cellular phone, wherever you may be, the cellular phone sends out a signal which is called registering the phone so that the phone company knows exactly where you are at all times. When you transmit from your little portable, you broadcast it directly to the tower. The tower then takes your signal and transmits it to the telephone company central office which then, in turn, sends it along to the tradi- tional telephone lines to bring you up high. The reverse happens when somebody in the office wants to call you, from the telephone lines, to the tower and to you. The private radio tower here being considered operates at approximately 159 megahertz which, to understand, is approximately the same frequencies at which you operate marine band radios. It is the intention and, of course, it is also the law which you cannot exceed, you are allowed to use a 100 watt radio. This is about the size of a telephone book for your operation. To be truthful, by the time the energy gets up to the antenna, which is up in the air, the energy is really reduced to about 50 watts. On your boat, if you were on your boat, the typical marine radio, which probably has the antenna standing right next to it, you would be operating at 25 watts. To give you an idea of the quantity of energy that this antenna is going to produce. In terms of environmental impact, that is health hazards, from all records and from all observations, it must be said that it is negligible. It just simply is unknown for anyone to suffer any ill - 2 - effects from radiation of this type. Along these lines, I'm available to you, and even though I am an advocate for this position, to answer any of your questions in all due honesty and sincerity. o %� �S -- 2 Mel Oshen - 3 - ZONING BOARD OF APPEALS TOWN OY SOUTHOLD ---------------------.---------------x In the Matter of Application No. 4611- by 611 by the Building Inspector ------------------------------------x A reading of the provision of the Local Law, i.e., commencing with the definition section (Section 100-13), provides the following: WIRELESS COMMUNICATIONS. Wireless communications shall mean any personal wireless services as de- fined in the Telecommunications Act of 1996, which includes FCC licensed commercial wireless telecom- munications services including cellular telephone services, personal communication services, special- ized mobile radio, enhanced specialized mobile radio, paging, and similar services that currently exist or that may in the future be developed. (Emphasis supplied.) Reliance upon the Telecommunications Act of 1996 takes this application outside the scope of the Town Code provision (Local Law No. 26). That Act defines Telecommunications Service as: TELECOMMUNICATIONS SERVICE. - The Term 'telecommun- ications service' means the offering of telecommu- nications for a fee directly to the public, or to such classes of users as to be effectively avail- able directly to the public, regardless of the facilities used. Sec. 3 (a) 51. (Emphasis supplied.) A copy of the Telecommunications Act of 1996 has been made part of the record. It is absolutely clear from that Act and the subsequent definitions contained in the Town Code regard- ing wireless telecommunications facilities and telecommunica- tions towers, which respectively refer to support structures and types of wireless communications facilities, that the Town Code does not embrace a privately owned and operated radio tower. Continuing an examination of the definition portions of the Local Law, the initial definition based upon the Telecom- munications Act of 1996, as contained in "Wireless Communica- tions", is carried forward as follows: WIRELESS COMMUNICATION FACILITY. A wireless commu- nication facility is any unstaffed facility for the transmission and/or reception of wireless telecom- munications service usually consisting of an wire- less communication facility array, connection cables, an equipment facility, and a support struc- ture to obtain the necessary elevation. The sup- port structure is either a building, telecommunica- tion tower, or other approved structure. (Emphasis supplied.) Finally, "Telecommunication Tower" incorporates the earlier definitions as follows: TELECOMMUNICATION TOWER. A telecommunication tower is a type of wireless communication facility de- signed and constructed specifically to support an antenna array, and may include a monopole, self- supporting tower, guy-wire"support tower and other similar structures. A wireless communication facility attached to an existing building or struc- ture shall be excluded from this definition. (Emphasis supplied.) It is to be noted that the tower is not licensed to a utility but to a private individual and he does not receive - 2 - any income from the radio license. There is a distinct difference between this single frequency operator and the various personal communications facilities operated by public utilities. The Town Code is not applicable to radio towers. Dated: Riverhead, New York September 29, 1998 Respectfully submitted, aLee--- Charles R. Cudd - 3 - ZONING BOARD OF APPEALS TOWN OF SOUTHOLD --------------------------------------x In the Matter of Application No. 4611 MEMORANDUM by the Building Inspector --------------------------------------x We are now aware that this Board is considering an interpreta- tion of the Town Code which effectively would conclude that there are two versions of the Wireless Facilities law, one version incorporating the Telecommunications Act of 1996' and a second version applying not only to telecommunications towers, but to other communication facilities, i.e. radio towers. We are concerned that this approach does not interpret the Code but actually rewrites it. In fact, there would be two Codes and this two Code approach is fundamentally unfair to an applicant who must decipher the Code and attempt to bring meaning to it. In the very first instance the Code incorporates the Telecom- munications Act of 1996. It does this through the wireless communications definition. It does not make reference to any other wireless communications but only to those referred to in that Act. It is apparent that the drafters of the Town Code provision were concerned with wireless cellular communications. This is not surprising since the United States Congress drafted a law that was concerned with cellular communications and not with other communi- cations, i.e. private radio communications such as those used by taxicab facilities. What generated the Town Code is no secret. Applications were being made by cellular facilities in various locations including residential locations. The Town reacted to this and enacted a Code provision dealing with wireless communica- tions as defined in the Telecommunications Act of 1996, particular- ly cellular phones. The canons of construction concerning interpretation of statutes indicate that because zoning provisions are in derogation of the common law, the Zoning code should be,strictly construed. Moreover, the canons of construction, when there is some doubt as to the meaning of a provision,,require the interpretation to be in favor of the applicant. And, significantly, the canons of construction require that all parts of a statute, rule or regula- tion be read together. ..(See, New York General Construction Law and 97 New York Jurisprudence 2d - Statutes.) The Board, in making an interpretation, cannot pick and choose those sections of the -Code more favorable to a proposed result. Parts of definitions alone cannot be relied upon as opposed to the whole definition and all of the definitions must be considered harmoniously. The Board cannot rely upon part of the Code, such as a purpose clause, and exclude other parts of the Code. The law cannot be re -made to fit the facts. Here, the facts, a radio tower and office use, are not controlled by Article XVI (Wireless - 2 - Communications Facilities). It is difficult to conceive that an argument would be made that excludes a key definition and then concludes that the Code refers to wireless communications not included in the 1996 Act. There is nothing in the Town Code that indicates it is inclusive of any form of communication other than the Telecommunications Act of 1996. Clearly that Act does not include radio towers. Yet, we are led to understand that this Board' is being urged to interpret Article XVI of the Code and find that radio towers are regulated by considering the definition of "Wireless Communication Facility" and avoiding altogether the definition "Wireless Communication". This approach is fundamentally flawed. It is contrary to the canons of construction applied to statutes, codes, rules and regulations, to exclude part of the provision or Article being interpreted. Moreover, the language in the "Wireless Communication Facility" definition relies upon the "Wireless Communication" definition. The same term "telecommunica- tion services" appears in each definition. It has been suggested that reference to a dictionary for each word of this term results in radio towers being embraced by Article XVI. The direct and simple answer is that radio towers, although referred to in another section of the Town Code [Section 100-230 D(1)], are not referred to in Article XVI. Not parenthetically the Town Code, in the section just cited, refers separately to telecommunication towers - 3 - and radio towers. It is not credible to assert that the meaning of a specially used term, words of art,. i.e. "telecommunications services" is defined through segregating each word, looking up the definitions, and then reconstructing the term in accordance with various dictionary definitions. "Telecommunications service" is a specially defined term, as is "accessory use" or "set back" or "residential cluster", all 'of which are defined outside of the normal dictionary definition. Telecommunications service appears in the Telecommunications Act of 1996 and is defined as: TELECOMMUNICATIONS SERVICE. - The term 'telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. Sec. 3(a) 51. (Emphasis supplied.) Telecommunications service does not embrace a privately owned and operated radio tower. A finding that a radio tower is included inArticle XVI of the Town Code flies in the face of the rules of construction and interpretation, it is contrary to the definitions in the Town Code and in the Act, and is a result driven determina- tion. The Board cannot extract meaning from words of art by consulting a dictionary; and it certainly cannot exclude parts of a Code provision to arrive at the meaning of the entire provision, otherwise the Board is faced with the anomalous position of asserting that the legislative body, the Town Board, had no reason - 4 - to include the Wireless Communication definition in the Code. It is quite clear they did; it gives meaning to the remaining provisions. The transmission of the signals utilized by a radio tower applicant is the same as a transmission of signals for a taxicab company. Assuredly, this Board is not taking the position that the taxicab tower is regulated by the Wireless Communications provision of the Town Code. In short, the Code provision does not regulate all towers and there are significant differences between tower uses. A radio tower does not provide a means of communication for the general public; it is not used by the general public; the user does not get billed for its use; and no income is generated by its use. In the past the Board has determined that a business may have, as an accessory use, a communications tower. This application is directed to obtaining that same determination. (See, Zoning Board of Appeals decision in Metro One #4023, 1992.) If there is some provision in the Code that the Board believes has been overlooked, we would be pleased to discuss this with you; but, if this is your position, you should allow us to address it. Otherwise, we are engaged in a one-sided debate. We are hopeful that this will not occur. We suggest to you that a fair reading of the Town Code, Article XVI (Wireless Communications Facilities), when all of it is - 5 - considered together, compels the conclusion that a private radio tower is not included In the definition or body of Article XVI and a radio tower is not regulated by the Wireless Communication Facilities Article. Dated: Riverhead, New York September 29, 1998 Respectfully submitted, Charles R. Cuddy GOMNb���,l rr. Federal Communications Comml sion s Washington, D.C. 20554.; ��MMI55�0�{ AUG 13 1998 Ali 6 17 1998 ju 0 t The Honorable Michael P. Forbes Member, U.S. House of Representatives 1500 William Floyd Parkway Shirley, NY 11967 Dear Congressman Forbes: Thank you for your inquiry on behalf of your constituent Charles R. Cuddy. Mr. Cuddy asks whether a tower used to transmit and receive signals -for a private radio licensee falls within the ambit of the Telecommunications Act'of 1996 (1996 Act). Section 704(a) of the 1996 Act, codified at 47 U.S.C. § 332(c)(7), preserves and dehnes local authority over the placement, construction, and modification of facilities for the provision of personal wireless services. -Personal -wireless services are defined in section 704(a) to include commercial mobile radio services, unlicensed wireless services, and common carrier wireless exchange access services. .Private radio services do not fall within any of these categories. Therefore, towers used -solely to -provide private radio services are not within the ambit of section 704(a). There is no other provision of the 1996 Act, the - Communications Act Of 1934, or the Commission's regulations that directly addresses local authority over the siting of these facilities. Please do not hesitate to contact me if I can be of further assistance. Sincerely, Steven E. Weingarten Chief, Commercial Wireless Division Wireless Telecommunications Bureau s IL-_ S �t e� / LEGAL NOTICE SOUTHOLD TOWN BOARD OF APPEALS THURSDAY, SEPTEMBER 24, 1998 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Town Law and the Code of the Town of Southold, the following application will be held for public hearing by the SOUTHOLD TOWN BOARD OF APPEALS, at the Southold Town Hall, 53095 Main Road, Southold, New York 11971, on THURSDAY, SEPTEMBER 24, 1998 at the time noted below (or as soon thereafter as possible): 8:10 p.m. Appl. No. 4611. BUILDING INSPECTOR. This is a Request on a Town -Wide basis for an INTERPRETATION submitted by the Building Inspector for a Determination answering the question: "Does a radio tower and antenna fall under the Provisions of "Wireless Communications" Article XVI of the Southold Town Zoning Code, when it is intended for the private use of an owner who operates a VHF Radio under a License issued to him/her by the FCC for the purpose of communicating, all as part of his/her business, when located in a Light - Industrial (LI) Zone District?" The Board of Appeals will at said time and place hear any and all persons or representatives desiring to be heard in the above application or desiring to submit written statements before the end of the hearing. Each hearing will not start earlier than designated. Files are available for review during regular Town Hall business hours (8-4 p.m.). If you have questions, please do not hesitate to call 765-1809. Dated: August 25, 1998. 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' and ' '' i'' `~ r' �. Distzict;i d&is theipforniwonge% _ •' noted:lieXoyv(oi'as•'soonihergaf s;' "T�, �,'' ermitted:unless;,a:.,jvAn nce:-is,,, ' ` ° =!' = `APP_TIto: 4604 for a.Vaancer`:' : P ter as pos$lble): `; ,f ., antedb� dB6ar&o A Gals. . c Article ,- . y f PP P >, PP ' I,o` 494=' under XXI� Sectio` jti:3Q ,m:. t� f ,t , n 100`= Location i'roperty.43.8URoute, NK T, 244B'forperinission;lo;construct`' , ,,,,,,,,,,,,,• dwell 25 Greenpoit;ucar, tXllarion, .r�. ................ :contiriued'from Au use in yvidi,4 side`yard setbacl�,''. �.•.1 Hearing„ ,. 0.00-35-5�"t`:�:. 13,199.8. "°''.`�`"� .; "; `. ,at less`-an`-�`fee`t from the ex=•"-' /Public ti 1.: is Ibe - I I - - (Appeals wi�l at ,f line between L' oP 635,p.rri. Appl:'No:.4597= g-P1Operp' r ts:, time,an lace ear.anyandall .- �..... BUIIDINGDEPARTMENT.Tiis #10 and:#rl'1"a's''shown''on the:= sons.or tattve5,desiiin to:' BARBARA A SCHNEIDER is a;Request':on a' T,owii=Wide Map,of°EasteYd Shdids` Section' be heard m the a)iove pplicat ons;; �Y PUBLIC, State of New York basis,;fi ra4.l5UERPRETATION- 2; or altei=nativelya Vanni e'for : . or desirin t- tten; No. 4806846 '- ad'uste` Mi,'9iies'o a ' sul?mitted:by the:`Buildirig''De' J f L ts`68 and:` mems_lie ore,ttie�endbfeac ihiii Qualified in Suffolk Cm-ft partinent by its Director'of Code; 67; to reduce°tfie'sgiiare footage- ing. Each will! ait'eaT=< Comntissi0n Expires Enfgrceinent, askin ,f r;':a D"e'. and'166WdtlioPLot:#68,tfieieb ` g. o' increa �' lierttiandes oa-t�d.B16 areae :" teiminati n3ansvtierin sin ' tfie no `conf ` ' o gtlieques g:' F� o'ririing' .-.ablefo duringiiegiazTgwn•; tion1'p Article Lott #67 fo'r`'.coiifomiin j b o " a' Q a to.; siileyard°setback:!g usuiess._ pm),Ifyou;. 1:0 ;259.-i anaJClearin'g`,pty F have questiQns�;;Please`do.notliesi- vacan ;in ll Zomig. D"s; P P X10. 460.6x: fatetoca117. 5- t ctS if9( �Y ,J. ,..•,� ,. 'TH'OIVIA S"`''AND`%107AA`:�:'�Dated•-.A;ilgiisf - :6��1Q' m A . No `4592' -I .` MAS'TR0". ig is a'Re nest for'.` � p PAL {; Y q v,F>. ,t:;BX;ORDERO]~THB ZACHARIADIS:-This,:is'a re= aVarianceundei� .• '.e XIII;:'`.. SOIJ`I'HOLZ?:TOWN Quesle%q t"` eS $ectiori:lop 23949>fo emus=�-_' ` C ;.. _ x ::BOARD:OF APP ,,a Section100 244I3 Sion to extend fence-wlt would,-' ; ' yG� P,,GbI1V ` ' `" `` be at less than 7S feet m-ttie'' :..,.. : for aliuil& a mi authq ing ,- ._ ft the asliuilt .co�istruchon, of a . bulkhead; or alon�;bnLkli'ead;.at `'{` `.1X=9x3/98(27. deckaddition at a iriinirri jum se'ti' ' 6760 Great Pecozue`Bay B'oifle= fr n o"ro e`erSQfeetfromthe 126 ,_� 3uriNY;,EaT6el 1000- !� , . - derArticle:Iil,:Section 100.33 f6r . 7:40 psri Apppp1�: No.4607-JON _ perniiss�jori:,tg`_.locate accessory SCHRIBERAND`JANFiROSS: siviinrivng.Iiol°ii'aii arealocated T1us is a Requestfor a Variance a �'� c S u. ..1. paitly,}�;the.side yard;'at`:1'697 underAxticle,X3IV'Sechonl00 .Litt1e.,NeO Road,:_'Cutchogue, 2449-authorizing`ah'e!'as'built" b1Y; Paicel`1;000. 63-`5 `2.2: Prop- raised bnck=terrace_ addition lo- (a a • a `� iz 604's .ft:: < , . " cated-o "•" erty S e 1;40, 0.= q' :, n a i 94764- °sq;-ft,non= r; 6,:SS:;p:m. App,.INo 4599= confornung =lot at a fironf hard' PATRICK'1VIORTIIVIER Tlvs`is setba&of less than'35 feet: Lo q..-. a;R equest:foi'a Variance under cation'ofProperty:=1295-01dHar Aticle_XII;'ESection100=239= borRoad_Ctitchogue',-NY Poi---' 4B foi :(a) abuif"gg permit aii` thorizing°coristiac on, of an., -a' 7:SOpari:AppLNo:4598' JEFF ' 5.., built':. �shed�aiiii' (li `=pe ii'ssion MAjEAUD.341 is isa'Request, j to-ocae pioposed,:deck, all afro for;VarianK.ce—s'under'Aificle IIIA; 1 setback:ollsstlian7S:feetfrom Section=100-3'Ode3oftheQBulk tlie�lulkliea`d`at :3895'yEaradise : and Padang Schedule�>+for' ap= Eoint•Road;S,outhold,,W,;'Par,- ..proval>oia otiarea°f23`638+= c"el°;1000=$1•=1 8;'also known as sgr f4- ith s proposed sulidiui- L'.ots #10:pn the Ora . se,.,Point;',1: siom� . bi l 0� I:gw=Density_;: Sqi t_ion;I;.SubdivisionMap.`: . - Resid6itialZone4 established:iri °r .,.,._w_-�s�J�,00,:p.�.sp�RP1;,:Nos�'4600- .January:1989 'arriirimum::;. -`ELL loitrea',040,00 sg.:fE-Location . 'a'Re~que§'tufo% x=Variaixce'_under ofPioperty: Extend_ mg from tlie::; Aiticle';.Section,1.00,239,4$ easterly,side-of Gagen's: T and - =and SeCtion�100'244B forpermis- ' Iuig-Road,.andf 295Q-,Pine,Neck r sion `td- cQnstrucf deck addition Road, Southold •NY Parc4.1,* 00 ..; with a setliack at-le$_ s than 35 feet 70-10-37.(63;638:03 s:fj..s -from`+ e" rear' pr'opperty.line'and • 8:00; pAgpp1:} less•'.than,75 feebfrom'the,bulk`- PAL•MER'�LIIVES It-d".em'isisa..£ Bead; at '500­'Soutl -Lahti-last .'Requet c&j.-a Variance undei 'Mahon NY 3'arcef'1.000=3$=6; Article-IM'Section 100=31A 4 polls P-M .'.App1 ,Nb:'_4601 ery:buildin&:and establish.;Wia+j ,-. ROBERT: SMITH & ANO: • This eryUse on a 3:6124-- acre parcel;:;;. isa'Requesffoia:Variance under- known'a§ 34995 Main.Road.';:;< AiticleXXIV;'Section 100-241A Clrtchogue; NY; Parcel;1000=97 for pe'rmiss'ion to constrict pro- - 1-11.4. ppsec�:addition"and alteration to. 8: l0 ;p:m.App1:<No46l 1; 'n ;DIGINSPEOR?TaIIGis :[ withnonconforming cottage use, a Request owa =Town-Wide:,ba-'s= based 1po'ri°tl e_May.:28;_1998 : sis•for anaNTERPRETATION Notice ofDisapproval. Location submitted by the Building In;.,,, of Property: 505 Pt. Pleasant spector fora Determination an i► ;.. s tw ,-1 APPEALS BOARD MEMBERS to tell you that O��$uFFO(�COG Department less again, Mr. �� y1 Gerard P. Goehringer, Chairman c James Dinizio, Jr. `r' x Lydia A. Tortora Oy • �� 'flQl Lora S. Collins �a0 George Horning l BOARD OF APPEALS TOWN OF SOUTHOLD Transcript of Continued Hearing September 30, 1998 Southold Town Board of Appeals Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 ZBA Fax (516) 765-9064 Telephone (516) 765-1809 (Prepared by Lucy Farrell from Tape Recordings) 7:15 P.M.- Appl. #4611 - BUILDING INSPECTOR'S REQUEST FOR INTERPRETATION (Generic Interpretation, Town -Wide for Radio Towers for Private Use under FCC) . Reopen Appl. #4611. I have to tell you that we are the Building Department less again, Mr. Fish is still ill and he will not be here. If anybody would like to add anything to this interpretation please raise your hand. Mr. Cuddy? By the way Mr. Cuddy I just want to point out for the record, that we did receive the information that you had prepared for us, and we will make it part of the file. CHARLES CUDDY, ESQ: I had as Mr. Goehringer points out delivered some additional information. The information that I delivered was nothing more than what had previously been before this Board and I just want it to be public. I delivered the statement by Mr. Oshin' what I did is I took our certain excerpts of his testimony and to read it non -site specific so there are no references to any particular site. I have again another copy of that but tonight it's signed by Mr. Oshin. 'I took the Memorandums I had previously prepared and also en -sized any site specific references there. So, we're talking simply about Radio Towers and Telecommunications, and I offer that again, Mr. Chairman, into the record if I may. CHAIRMAN GOEHRINGER : To answe_ryour question, I have discussed that with counsel, and there is unanimity. MR. CUDDY: So that is an acceptable practice then to adopt those previous statements and - CHAIRMAN GOEHRINGER: They were really never scraped. I just wanted to consult counsel. MR. CUDDY: So we have it both ways. We have with or without. Mine is no different. In other words I didn't change the words. I simply took it and took out' those words with any site specific references. Page 2 - Special Me ig/Public Hearing September 30, 1998 - Board of Appeals SECRETARY KOWALSKI: Can I mark that as 'received,' please. CHAIRMAN: Sure. BOARD SECRETARY: Thank you. MR. CHAIRMAN: It's very rare that we're on the floor like this but we were making decisions, and sometimes it's difficult to discuss the decisions with each other when we're up on the dais, so. MR. CUDDY: We thought that way we had a complete level plain. CHAIRMAN GOEHRINGER: Pardon me, Mr. Cuddy we always have been. completely level plain. MR. CUDDY: Thank you. After coming here six times, I didn't want to say it again. There's just one question that I had. MR. CHAIRMAN: Ok . MR. CUDDY: And that is, does the record contain the letter from the Building Inspector that certainly promoted if not caused this particular hearing? CHAIRMAN GOEHRINGER: We discussed that last, this tonight with counsel and I have to tell you that as you know, that letter was shortened, OK. That letter included your applicant's name and the specific situation that concerned this hearing. I at this particular time am not particularly happy with including that letter only because we chose to deal with this on a town wide basis. OK, that does not mean that it's only restricted to your applicant, ok. I will have to discuss that with counsel. MR. CUDDY: The reason I asked that as to whether it's appropriate is because we don't have the Building Inspector tonight, and we didn't have the Building Inspector last week. (Inaudible statement) . CHAIRMAN GOEHRINGER: We could. MR. CUDDY: But even that, if he doesn't come certainly his letter is explanatory and the reason for doing this. If he does put it in terms of site-specfic, or non -site-specific, I would hope that maybe you would consider having that letter as part of the record. CHAIRMAN GOEHRINGER: OK. I have to tell you that we haven't decided if we're closing the hearing tonight or not. Alright. That's an issue that we really have not decided and I'm not speaking for Mr. Dinizio. Mr. Dinizio has quite honestly told me that he still wants to discuss this with it with the Building Inspector. Is that not true? Page 3 - Special Me- ____g/Public Hearing September 30, 1998 - Board of Appeals MEMBER DINIZIO: Yes, and I don't mean to hold you up. Quite honestly I find that we can't seem to get someone here. Because I know if I called one of my employees With that set aside I think that Mr. Fish can provide me with answers to questions I have as to how we got here. I think that you know, when a person works 8 hours a day, five days a week, supposed to be 2 hours a week - I want to know, I want you to know, maybe there are questions that he can answer for me that might help me in making my decision. Certainly we{re talking about a decision that we make and I'm truly embarrassed that the Building Department cannot send a representative, and whether it has to be that particular person or not, I'm not so sure that it has to be. That we can't discuss it with anybody. Certainly he can discuss it. I don't want to go down there and say, hey, Joe - because then it's not fair to you, it's not fair to anybody else. My preference would be that you know, certainly, Mr. Cuddy we will take your particular comments into consideration if you so choose. If you have a different thing you want to try it. MR. CUDDY: I don't want to do anything that would prejudice my client but, certainly there has to come a time when it comes to an answer. I think everybody agrees on that. On the basis that Mr. Fish is ill, which is certainly an excuse, any time, and I would understand that you might put it on again, would you please put it on for a specific date so that we will have some hold on this thing. CHAIRMAN GOEHRINGER: Sure. Well I think we- I think we've done that you know, to the best of our ability. MR. CUDDY: I mean again, would you please so we have a special date and we know when we're coming. CHAIRMAN GOEHRINGER: Sure. And you know, you certainly don't have to hang around tonight if you don't want to. I don't mean that in a trite sense. You can call us tomorrow, and we'd certainly be aware of that issue, alright. MR. CUDDY: But what I'm saying is, is the Board in a position now to say that we're going to do something, next week or another week? CHAIRMAN GOEHRINGER: No, it's going to be at the next hearing. Notice which would be October 15th. MEMBER DINIZIO: It seems that's a pretty long time. CHAIRMAN GOEHRINGER: We'd get the next meeting. MEMBER DINIZIO: Yeah, but I mean the gentleman could be well tomorrow. We could do this next week. Page 4 - Special Me ig/Public Hearing September 30, 1998 - Board of Appeals CHAIRMAN GOEHRINGER: Bearing in mind what he has and what he's suffering from, and I don't want to get involved in that situation, he could be out a week, OK, which would mean that we would then have to have another meeting next week at the same time. I suggest that we very simply just put it on for the 15th and put it to bed at that particular time. MEMBER COLLINS: We also want our Fishers Island member to come over here when we meet. CHAIRMAN GOEHRINGER: Yes. The other issue is that, you know, that I in - all due respects to the Building Department - understand these things, these things happen. I think that there was a fluke on their part where one member thought that the other person was going to come to the hearing, and that's basically what happened. As you know, I hate to use this phrase and I've only used it twice in 18 years, but we do have power to subpoena, and if Mr. Dinizio feels that it is of importance this is a democratic Board, and we'll vote on it. But, you know, there are other people who want to speak. Thank you. Anybody else want to speak regarding this? COUNCILWOMAN ALICE HUSSIE: So, I'll have to assume that your keeping the hearing open? CHAIRMAN GOEHRINGER: At this particular point we haven't really voted on that situation. I think there was a feeling to close the hearing, OK. COUNCILWOMAN HUSSIE: That's why I asked the question. CHAIRMAN GOEHRINGER: And I have to tell you that I have great feelings for these Board Members, we work very closely and a I would be so inclined to permit this to stay open until October 15th. I have no idea if I have the vote to do so, but we'll see. So Jim why don't you make the motion. MEMBER DINIZIO: No, I don't want to make a motion. I would like to assure this gentleman that this gentleman will show up at the next meeting. To me that's the utmost - CHAIRMAN GOEHRINGER: That's tantamount, yes. MEMBER DINIZIO: You know, whether it has to be him or anybody from doing this, I'm not so sure. CHAIRMAN GOEHRINGER: No, he isn't - MEMBER DINIZIO: But if we're going to subpoena somebody then that's the gentleman that we subpoena. How do we go about doing that? CHAIRMAN GOEHRINGER: The Town Attorney will do it. 1-1 Page 5 - Special Me::.:_:�ig/Public Hearing September 30, 1998 - Board of Appeals SECRETARY KOWALSKI: We can do it by resolution. CHAIRMAN GOEHRINGER: Yeah. MEMBER DINIZIO: Resolution. CHAIRMAN GOEHRINGER: Well, you know, I don't think that's of necessity at this point as long as he tells us that he is going to show up. MEMBER DINIZIO: Well, I've got to tell you though, Jerry, I mean, because the record is full of indecisions on their part for the past, you know, six months since that because noone seems to want to make a decision on this. So, I mean, my purpose is that, put the thing to bed, you know, and grant it if measures have to be taken today. Now is the time to take these measures. You know, no one, knows for sure but we need to be sure that we can employ people and that Mr. Rosen hired people to come here and represent him that you know, as a town, you know, and trying to run an organization. You know, have some information for them. I mean, I cannot make a decision unless I know how it came about and if I can't, you know, even though I won't say how I feel, personally I want to say, it looks to me in the record, that there's some real hemming and hawing going on. That there's a person who doesn't want to make a decision and doesn't want to stand by I need to speak to that person. I want to know, I want to understand how he came to this point so that we can make a decision. If I have to make a motion to subpoena him, then that's my motion. MEMBER HORNING: Are you making such a motion? MEMBER DINIZIO: Yes. MEMBER HORNING: I'll second it. CHAIRMAN GOEHRINGER: All in favor? BOARD MEMBERS: AyeS. SECRETARY KOWALSKI: Is anyone opposed? MEMBER COLLINS: Opposed? I mean, it can rather suddenly. CHAIRMAN GOEHRINGER: Yes, I tend to move motions rather fast and I apologize. MEMBER COLLINS: I guess I would vote on it. I'm not sure I care for the '. because procedurally, OK, I vote on it. SECRETARY KOWALSKI: Chairman voted aye, also? Page 6 - Special Me g/Public Hearing September 30, 1998 - Board of Appeals CHAIRMAN GOEHRINGER: Yes. MEMBER COLLINS: You're adjourning the hearing with a date. CHAIRMAN GOEHRINGER: Well now we have to make a motion for that and I suggest that we do it on October 15th, which is the regular meeting date and we'll adjust the time accordingly and at the same time I just wanted to mention the other thing. Well yes, because you already advertised Is it possible that it would be earlier, say it, did you not? SECRETARY KOWALSKI: Well the time, the first hearing is at 6:30 and the last hearing is scheduled for 8:35. I don't know if Mr. Fish will be here that late. MEMBER DINIZIO: I'm concerned about George. CHAIRMAN GOEHRINGER: George is staying overnight. MEMBER DINIZIO: You're staying overnight? Oh. SECRETARY KOWALSKI: What time would you like on that? MR. CUDDY: I don't know, I'll discuss that with you and the Board, just set a date. SECRETARY KOWALSKI: It would be at 6:30 or after, right. CHAIRMAN GOEHRINGER: Yes. We will discuss it. SECRETARY KOWALSKI: Is it possible that it would be earlier, say at 6:00 o'clock? CHAIRMAN: Yes, that's possible. It depends. SECRETARY: So in that motion are we saying after 5:30? CHAIRMAN: No, no. Just say from 6:00 p.m. CHAIRMAN GOEHRINGER: So, you're making that motion? MEMBER DINIZIO: Yes. CHAIRMAN GOEHRINGER: I'll second that. All in favor? BOARD MEMBERS: Ayes. CHAIRMAN GOEHRINGER: OK, so at this particular point we've made a resolution recessing the hearing for October 15th. We thank you again, ladies and gentlemen for coming here. See Minutes for official Resolution and vote. w BOARD OF APPEALS : TOWN OF SOUTHOLD ' -----------------------------------x In the Matter of the Application of AFFIDAVIT OF MAILING AND POSTING MARTIN ROSEN d.1,yR,yst�� (Name of Applicants) ----------------------�2� f/ate COUNTY OF SUFFOLK) STATE OF NEW YORK) I, PATRICIA CLARK , residing at '800 A1bo Drive, Mattituck, NY 11952, New York, being duly sworn, depose and say that: 1) On the 15th day of September , 199 8 , I personally mailed, by. certified mail, return, receipt requested, ' a true copy of the attached Legal Notice, addressed . to each of, the following named persons at the addresses set opposite their respective names, that the addresses listed below are those shown on the current assess- ment rolls of the Town of Southold; that said Notices were mailed at the United States Post Office to each name below certified mail, return receipt requested attach post office receipts here) : Name of Surrounding Property Owner Mailing Address Alice Funn & Gregg Alease PO Box 422, Mattituck, NY 11952 Mattie Simmons Box 926, 11700 Sound Ave., Mattituck, NY 11952 Fsther fliniola c/o Fizther Badenho; V 423 Ridge Court, Naples, FI: -33963 AnrirPW r Fohrk 11935 Long Island Railroad Sutphin Blvd., Jamaica;; N 1436 .1 subject pro identified as District 1000, Section- Block. ection_Block. 03.00 , Lot 0 4 00, by placin own's official poster ten (10) feet, or closer, fro >'o arty line facing the street or, facing the right -o - and that I have ked to be sure the poster mained in place for seven full days prlo a subject LLG4111.1� 1141V, „1111+11 iV d/ ��/ -1,/V" i Sworn to before me this (signature) 15th day of Sept. J998'. JOAN M. LUCA Notary Pub c Stets Newyork Na 62-4660442 Qualified in Suffolic County ,11O 9ry Public, CommissionEVIresJan. 31,fSw% ,Opo **Please return to the office of the Board of Appeals. when completed. (Town Hall hours are 8 - 4 p.m.) Thank you. ..f GHAIILES R. CUDDY ATTORNEY AT LAW 445 GRIFFINGAVENUE P. 0. BOX 1547 RIVERHEAD, TTY 11901 September 14, 1998 TO WHOM IT MAY CONCERN: TEL: (516) 369-8200 FAX: (516) 369-9080 Enclosed is a Legal Notice concerning a public hearing which will affect the application of Martin Rosen to construct a radio tower at premises known as 11780 Sound Avenue, Mattituck, NY. Very truly yours, ?2z Charles R. Cuddy CRC: ejc Enc. AUG 27 '98 09:58 SOUTHOLD TOWN ACCOUNTING F. 1/1 - Legal Notice 5eptembu 24. 1998 HCarinbs Soultiold Town board of Appeals LEGAL NOTICE SOUTHOLD TOWN BOARD OF APPEALS THURSDAY. SEPTEMBER 24,199 NOTICE IS HEREBY GIVEN, pursuant to Section 267 of the Towyn La ' and the Code of the Town of Southold, the following applications will held for public hearings by the SOU 'HQ LU —TPNN I—AR i C.�,-�' APPEALS< t the Southold Town Hall, .5309S Main Road, Southold, New York 11911, oo THUR *DAY. SEPTEMBER 24, 1998 at the times noted below (or as .-sooh thereafter as possible): 8JO p.m. A.ppl. No. 4611. BUILDING INSPECTOR. This is a. Request. of Town -Wide basis for an INTERPRETATION submitted by the Buildi Inspector for a Determination answering the question, "Does oes a ra4 tower and antenna fall under the Provisions of "Wicelt Communications" Article XVI of the Southold Town Zoning Code, whet is intended for the private use of an owner who operates a VHF Rai under a License issued to him/her by the FCC for the purpose communicating, all as part of his/her business, when located in a �ig Industrial (LI) Zone District?" The Board of Appeals will at said time and place hear any and all petsc or representatives desiring to be heard in the above application desiring to submit written statements before the end of the he;tri Each hearing will not, start earlier than designated. Files are available review during regular Town Nall business hours (8-4 p.m.). If you have questions, please do not hesitate to call 765-1$09. [dated: August 2E, 199$. BY ORDER OF THE SOUTHOLD TOWN BOARD OF APPEALS GERARD P. GOEHRINCER CHAIRMAN BOARD OF APPEALS:TOWN OF SOUTHOLD . -----------------------------------x In the Matter of the Application of MARTIN ROSEN ($utAY1 (Name of Applicants) -------------------- COUNTY ------------------ COUNTY OF SUFFOLK) STATE OF NEW YORK) AFFIDAVIT OF MAILING AND POSTING L CHARLES R. CUDDY , residing at Marratooka Lane, Mattituck New York, being duly sworn, depose and say that: by rtified mail return receipt requested, a true copy of the attache Legal Notice, addressed to each of the following named Ao persons at he addresses set opposite their respective names, t the addresses 'ted below are those shown on the current ass - ment rolls of the wn of Southold; that said .Notices we mailed at the United States t Office to each name below rtified mail, return receipt requested ttach post office receipt ere) : Name of S Alice Funn & Gregg Alease Mattie Simmons Lo Owner / Mailine: Address o�422, Mattituck, NY 11952 !x 926 00 Sound Ave., Mattitick, NY 423 Ridg,,F1:---33963 11935 itnhi.n-R1vr1-- AY 11416. 2) On the 16th day of Sept. 199'g, I personally posted the subject property identified as District 1000, Section 141.00 , Block. 03.00 , Lot 044.000 , by placing the Town's official poster ten (10) feet, or closer, from the property line facing the street or 'facing the right-of-way, and that I have checked to be sure the poster has remained in place for seven full days prior to the subject hearing date, which is 9/24/ 199@-t Sworn to before me this (signature) 14 A.4-0 day of Sept. J998'. �� JOAN M. LOCA State of NewyWk ry Public No. s2-46so442 Qualified fn Saffollc cou Commission Expires Jan. 31* **Please return to the office of the ,Hoard of Appeals when completed. (Town Hall hours are 8 - 4 p.m.) Thank you. 11952 APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Horning MEMORANDUM BOARD OF APPEALS TOWN OF SOUTHOLD TO: Gary Fish, Building Inspector FROM: Board of Appeals DATE: September 25,1998 SUBJECT: Your Request for Interpretation (Radio Towers) Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 ZBA Fax (516) 765-9064 Telephone (516) 765-1809 Your written request for Interpretation was scheduled for presentation and testimony at a public hearing last evening. The Board is respectfully requesting your attendance at the second hearing to be held Wednesday, September 30, 1998 at 7:15 p.m. at the Southold Town Hall, 53095 Main Road, Southold, New York. Thank you. Received APPEALS BOARD MEMBERS Gerard P. Goehringer, Chairman James Dinizio, Jr. Lydia A. Tortora Lora S. Collins George Horning MEMORANDUM BOARD OF APPEALS TOWN OF SOUTHOLD TO: Gary Fish, Building Inspector FROM: Board of Appeals DATE: September 25,1998 SUBJECT: Your Request for Interpretation (Radio Towers) Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 ZBA Fax (516) 765-9064 TelephRne (516) 765-1809 kgo SCP 2 5 19% BLDG. DFPT. T04'r' �r S UITHOLD d Your written request for Interpretation was scheduled for presentation and testimony at a public hearing last evening. The Board is respectfully requesting your attendance at the second hearing to be held Wednesday, September 30, 1998 at 7:15 p.m. at the Southold Town Hall, 53095 Main Road, Southold, New York. Thank you. Received r�+ Prep. 9/28 Z.B.A. AGENDA WEDNESDAY, SEPTEMBER 30, 1998 PUBLIC MEETING 6:30 p.m. Call to Order by Chairman. I. ENVIRONMENTAL DECLARATIONS (SEORA): Type II Declara- tions as listed in 6NYCRR, Part 617: applications filed and advertised with respect to setback, establishment of new lot line, accessory uses such as B & Bs or Accessory Apartments, lot waivers under 100-26. II. DELIBERATIONS/DECISIONS. Appl. No. 4594 - M FERRARIS (Carryover from 8/13). A Variance is requested under Article XXIII, Section 100-231B for proposed tennis court fencing at a height. above 6-1/2 feet. 3585 Orchard St, Orient; 1000-27-2-2.10. Appl. No. 4597 — BUILDING DEPARTMENT. This is a Request on a Town -Wide basis, for an INTERPRETATION submitted by the Building Department by its Director of Code Enforcement, asking for a Determination answering the question: "Does Article XXV, Section 100 -259 -Land Clearing, apply to vacant land in all Zoning Districts." Appl. No. 4592 - K. ZACHARIADIS. This is a request for Variances (a) under Article MV, Section 100-244B for a building permit authorizing the "as built" construction of a deck addition at a minimum setback of less than 50 feet from the front property line, and (b) under Article III, Section 100-33 for permission to locate accessory swimming pool in an area located partly in the side yard, at 1697 Little Neck Road, Cutchogue, NY; Parcel 1000-103-5-2.2. Lot size: 40,604 sq. ft. Appl. No. 4599 — PATRICK MORTIMER. This is a Request for a Variance under Article XXIII, Section 100-239-46 for: (a) a building permit authorizing construction of an "as Page 2 — Agenda (Pn 9/28) Meeting of 9/30/98 Southold Town Board of Appeals built" shed and (b) permission to locate proposed deck, all at a setback of less than 75 feet from the bulkhead at 3895 Paradise Point Road, Southold, NY; Parcel 1000-81-1-8; also known as Lot #10 on the Paradise Point, Section I, Subdivision Map. Appl. No. 4600 — ELLEN ZIMMERMAN. This is a Request for a Variance under Article XXIII, Section 100-239.4B and Section 100-244B for permission to construct deck addition with a setback at less than 35 feet from the rear property line and less than 75 feet from the bulkhead, at 500 South Lane, East Marion, NY; Parcel 1000-38-6-11. Appl. No. 4601 — ROBERT SMITH & ANO. This is a Request for a Variance under Article XXIV, Section 100-241A for permission to construct proposed addition and alteration to an existing accessory garage with nonconforming cottage use, based upon the May 28, 1998 Notice of Disapproval. Location: 505 Pt. Pleasant Road, Mattituck; 1000-113-9-11. Appl. No. 4602 — CLIFFORD AND RUTH CORNELL. This is a Request for a Variance under Article IIIA, Section 100-30A.3 for a building permit authorizing the construction/location of an "as built" accessory gazebo structure at a sidgyard* setback of less than the required three ft. minimum and in excess of the .20% lot coverage limitation of the Zoning Code at 325 Willow Point Road, Southold,. NY; Parcel 1000-56-5-26, also known as Lot #24, Willow Point. ARTHUR TORELL regarding properties known as 365 Westwood Lane and 465 Westwood Lane, Greenport, NY; Map of Eastern Shores, Section 2, Lots #67 and #68; Parcel #1000-33-2-10 and 11, as follows: Appl. No. 4603, for a Lot Waiver under Article II, Section 100-26 regarding an existing nonconforming lot identified on the Suffolk County Tax Map as Lot 11, Section 33, Block 2, which lot has been deemed merged with adjacent lot ref. #10, based on the Building Inspector's August 4, 1997 Notice of Disapproval; and Appl. No. 4607 — JON SCHRIBER and JANE ROSS. This is a Request for a Variance under Article XXIV, . Section 100-244B authorizing the "as built" raised brick terrace addition located on a 19,476+- sq. ft. nonconforming lot at a front yard setback of less than 35 feet. Location of Property: 1295 Old Harbor Road, Cutchogue, NY; Parcel 1000-117-3- 10. Appl. No. 4598 — JEFF GOUBEAUD. This is a Request for Variances under Article IIIA, Section 100-30A.3 of the Bulk and Parking Schedule, for approval of a lot area of 23,638+- sq. ft. in this proposed subdivision. The R-40 Low -Density Residential Zone, established in January 1989, requires a minimum lot area of 40,000 sq. ft. Location of Property:- Extending from the Easterly Side of Gagen's Landing Road, and 2950 Pine Neck Road, Southold; Parcel 1000-70-10-37 (63,638.03 sf.). .y d Page 3 — Agenda (Pi _r_ 9/28) Meeting of 9/30/98 Southold Town Board of Appeals III. PUBLIC HEARING: 7:15 p.m. Appl. No. 4611 - BUILDING INSPECTOR. This is a Request on a Town -Wide basis for an INTERPRETATION submitted by the Building Inspector for a Determination answering the question: Does a radio tower and antenna fall under the Provisions of "Wireless Communications" Article XVI of the Southold Town Zoning Code, when it is intended for the private use of an owner who operates a VHF Radio under a License issued to him/her by the FCC for the purpose of communicating, all as part of his/her business, when located in a Light -Industrial (LI) Zone District?" III. RESOLUTION. CONFIRMING ADVERTISEMENT OF THE FOLLOWING APPLICATIONS for: OCTOBER 15, 1998 public hearings: a) Appl. No. 4606 — Thomas and Moira Mastro (carryover), fence. b) Appl. #4$08.jd filed 8/12 - B. Caffrey; two accy/fryd., Matt., c) Appl. #410.1c filed 8/19 - D. Garofalo, accy/fryd, Sid. d) .Appl. #4612.gh filed 8/20 — D. Burnham, Lot Waiver, F.I. e) Appl. #4613.It filed 8/24 — H. Rieger, Orient. f) Appl. #4614.Ic filed 8/31— R. Boardman, Lot Cov., Orient. g) Appl. #4615.jd filed 9/2 - P. Chazan and B. Boyd, Fence, Sid. h) Appl. #4616.It filed 9/3 — C. Maggio, Bailie Beach Rd, Matt j) Appl. #4618.jd filed 9/8 — V. Manago, Nonc. Expansion. k) Appl. #4620.1c filed 9/8 — G. Starkie; Tarpon Dr, Sid. 1) Appl. #4622.1t filed 9/9 — E. Dart. C.R. 48, R-40 Zone, Pec. m) Appl. #4623.Ic filed 9/10 — Laurel Links Sign Variance, Laurel n) Appl. #4624.jd filed 9/10 — Laurel Links Golf Course, Laurel. o) Appl. #4625.It filed 9/14 — D. Jerome, two-family, Sid. p) Reminder/Adv. for Oct. 15: Mr. Slavotic (carryover) q) Reminder/Adv. for Oct. 15: J. Lebkuecker (carryover) NOVEMBER 19th public hearings to be advertised, noticed, etc.: a) Appl. #4626.Ic filed 9/14 — Faith Reform Baptist use, Matt. b) Appl. #4627. jd filed 9/15 — B. Charles, Peck Pl., Sid. c) Appl. #4628.It filed 9/17 — Mr. Woodcock. Lot waiver, E. Marion. d) Appl. #4629.Ic filed 9.18 - Mr. Aksten Lot Waiver, Southold. e) Appl. #4630.jd filed 9/22 — J. Holzapfel. Accy/fryd. Orient. f) Appl. #4631.1t filed 9/ IV. OTHER RESOLUTIONS/ACTIONS: Page 4 —Agenda (Pry _ 9/28) Meeting of 9/30/98 Southold Town Board of Appeals a) Appl. #4619.It — A. Lettieri & Gazza/280-a. Await Possible town engineer recommendations -report on right-of-way construction areas, map of pending subdivision info showing four lots to which fire vehicle access is necessary, etc., coordination with Planning Board, response .from Soil and Water Conservation District, -map showing wetland areas near right-of-way (if not on pending subdivision map). b) Appl. #4621.jd — Poncet (Deegan, Owner). Await additional information on lot creation, flood elev. zone boundaries, setbacks, applicant's interest in property/disclosure (file incomplete). c) Appl. #4709.It — M. Murphy, setback proposed for new dwelling at less than 75 feet from top of bluff, private road north of Oregon Road (near Bridge Lane Ext.), Cutchogue. V. RESOLUTIONS/MISCELLANEOUS/OTHER: A. Resolution to Approve Minutes for: June 23, 1998 Special Meeting July 23, 1998 Regular Meeting August 13, 1998 Regular Meeting. B. Prior ZBA Decision: I. Erey — Letter requesting Rehearing of prior decision (subject to formal application and filing fee if ... rehearing would be permitted). C. Ali Yukbasioglu (R. Schroeder) Appl. No. 4582 - Request for additional information. VI. EXECUTIVE SESSION: Litigation updates. Mattituck Products, Inc. v. Town. Petikas v. Town. Hay Harbor v. Town. GOMMup�c W LL S sc�MMISS�O�+ Federal Communications Commission„ } h� CCG l Washington, D.C. 20554 AUG 13 1998 The Honorable Michael P. Forbes Member, U.S. House of Representatives 1500 William Floyd Parkway Shirley, NY 11967 Dear Congressman Forbes: Abu 17 1998 jukil Thank you for your inquiry on behalf of your constituent Charles R. Cuddy. Mr. Cuddy asks whether a tower used to transmit and receive signals -for a private radio licensee falls within the ambit of the Telecommunications Act of 1996 (1996 Act). Section 704(a) of the 1996 Act, codified at 47 U.&C. § 332(c)(7), preserves and defines local authority over the placement, construction; and modification of facilities for .the provision of personal wireless services. Personal wireless services are defined in section 704(a) to include commercial mobile radio services,. unlicensed wireless services, and common carrier wireless exchange access services. :.Private.radio services do not fall within any of these categories. Therefore, towers used solely to provide private -radio services are not within the ambit of section 704(a). There -is no other provision of.the 1996 Act, the . Communications Act of 1934, or the Commission's regulations that directly addresses local authority over the siting of these facilities. Please do not hesitate to contact me if I can be of further assistance. Sincerely, 7 Steven E. Weingarten Chief, Commercial Wireless Division Wireless Telecommunications Bureau A u /, ` a %� — S CHALES R. CUDDY /- lG' `;-S-A ATTORNEY AT LAw 445 GRIFFINGAVENUE R 0. BOX 1547 RIVERHEAD, N-' 11901 September 29, 1998 Zoning Board of Appeals Town of Southold 53095 Main Road PO Box 1179 Southold, NY 11971 Re: Application No. 4611 Dear Board Members: TEL: (516) 369-8200 FAX: (516) 369-9080 r -a SEP 3,,,G, 19 ; r i6-3 The application before you, addresses the following question: 8:10 p.m. Appl. No. 4611. BUILDING INSPECTOR. This is a Request on a Town -Wide basis for an INTERPRETATION submitted by the Building Inspector for a Determination answering the question: 'Does a radio tower and antenna fall under the Provisions "Wireless Communications" Article XVI of the Southold Town Zoning Code, when it is intended for the private use of an owner who operates a VHF Radio under a License issued to him/her by the FCC for the purpose of communicating, all as part of his/her business, when located in the Light -Industrial (LI) Zone District?' Zoning Board records will reflect I have addressed that question at length in another application. In order to complete the record in this matter, I am enclosing for the Board's consideration, to be made part of this file, the following: 1. Statements by Mel Oshen, Professor of Telecommunications Management and Analysis at New York Institute of Technology. 2. A brief memorandum, referred to as Memorandum No. 1, concerning the Telecommunications Act of 1996 and the Town Code Wireless Communications Facilities article. Zoning Board of Appeals September 29, 1998 Page Two 3. A second memorandum, which, is Memorandum No. 2, pertaining to interpretation of the Town Code, including that a private radio tower is not included in the definition set forth in Article XVI of the Town Code and is not regulated by the Telecommunications Facilities article. 4. The letter dated August 13, 1998 from Steven E. Weingarten, Chief, Commercial Wireless Division, Wireless Communications Bureau, Federal Communications Commission. Very truly yours, 3 C '?4v 4�f"r' Charles R. Cuddy CRC:JML Enclosures SEP 3: 1iLl i; I STATEMENTS BY MEL OSHEN REGARDING RADIO TOWERS AND TELECOMMUNICATIONS As far as credentials are concerned, I got into the business because I have a Bachelor's Degree in Electric Engineering and a Master's Degree in Physics plus qualifying for a Doctorate in Physics. I also teach the subject, Telecommunications, at different institutions from which, as proof to you tonight, I have cards from the institutions. Beyond that, I don't know what else to tell you; experts are experts. Whether or not a structure, a radio tower, would be governed by the provisions of the Town Code as written, seems to reflect on the Telecommunications Act of 196. How can I start? I guess you get involved in semantics and definitions to a certain extent. There's a difference between communications and telecommunications. Communications is merely an activity as we're doing now. It also can be a lot more complicated if we're very far apart by utilizing electronics by wire or wireless. Telecommunications, as defined, is the process, and the process would be as simple as two cans on a string to accomplish what you want to do which is communicate, or it can be vastly complicated such as the existing public service telephone network which is in place. Telecommunications refers to the ability of one individual to send either voice or data to any other individual in the world complementing such as the existing public service telephone network which is in place in this country. Telecommunications refers to the ability of one individual to send voice or data to any other individual in the world, and that's what the existing system does regardless of whether it's wired or wireless. Because of the advance in technology, wireless communications have come to be a better way of doing things than plain wire. There's certain advantages having wireless communications, mainly because you're not tied to a wire in any one location. So technology advances, and as technology advances our FCC responds because it is the buffer between the manufacturers, the sellers and the population. And it is its mission to organize things so that things will work, so that nobody steps on your toes. Therefore, I have to give you a certain amount of history. There always has been wireless communication. It goes back many years. Perhaps all the way back to the thirties. But because of technology, it was limited. Not too many people were able to have a phone. It was limited. Technology advanced into the eighties where the concept which we call "cellular" was developed, and the FCC saw fit to go ahead with this plan. What it did was to assign two companies in every metropolitan area to deliver cellular service to the public. The two companies it picked at that time in the New York area were NYNEX and Cellular One. Today, through mergers and buyouts, the two companies are Bell Atlantic and AT&T. A group of people got together at a company called Qaul-Com in the nineties and they said, "we have found a way to deliver wireless communications using the existing frequencies which were set aside for that purpose in a different way because it won't interfere with the existing cellular service". And because of that and because it worked, the FCC was forced to rewrite the rules in 1996. Using the Qual-Com technology --a whole new set of cellular devices became available and that's why now there are companies like Omni -Point, Sprint PCS and NEX-Tel, who are offering cellular service. They have to be regulated which is why the FCC wrote the Act of 196 and which allows them to put in their networks which are also tied to the PSTN. Thus, you can pick up your cellular phone and talk to somebody in China, or even send them some computer data if you wish. Cellular tower basically, when you operate a cellular phone, wherever you may be, the cellular phone sends out a signal which is called registering the phone so that the phone company knows exactly where you are at all times. When you transmit from your little portable, you broadcast it directly to the tower. The tower then takes your signal and transmits it to the telephone company central office which then, in turn, sends it along to the tradi- tional telephone lines to bring you up high. The reverse happens when somebody in the office wants to call you, from the telephone lines, to the tower and to you. The private radio tower here being considered operates at approximately 159 megahertz which, to understand, is approximately the same frequencies at which you operate marine band radios. It is the intention and, of course, it is also the law which you cannot exceed, you are allowed to use a 100 watt radio. This is about the size of a telephone book for your operation. To be truthful, by the time the energy gets up to the antenna, which is up in the air, the energy is really reduced to about 50 watts. On your boat, if you were on your boat, the typical marine radio, which probably has the antenna standing right next to it, you would be operating at 25 watts. To give you an idea of the quantity of energy that this antenna is going to produce. In terms of environmental impact, that is health hazards, from all records and from all observations, it must be said that it is negligible. It just simply is unknown for anyone to suffer any ill m►= � p effects from radiation of this type. Along these lines, I'm available to you, and even though I am an advocate for this position, to answer any of your questions in all due honesty and sincerity. - 3 - 3 q )3 ZONING BOARD OF APPEALS TOWN OF SOUTHOLD ------------------------------------x In the Matter of Application No. 4611 by the Building Inspector ------------------------------------x r r� jj ��30 u. m. 1I`Jr t MEMORANDUM ° A A reading of the provision of the Local Law, i.e., commencing with the definition section (Section 100-13), provides the following: WIRELESS COMMUNICATIONS. Wireless communications shall mean any personal wireless services as de- fined in the Telecommunications Act of 1996, which includes FCC licensed commercial wireless telecom- munications services including cellular telephone services, personal communication services, special- ized mobile radio, enhanced specialized mobile radio, paging, and similar services that currently exist or that may in the future be developed. (Emphasis supplied.) Reliance upon the Telecommunications Act of 1996 takes this application outside the scope of the Town Code provision (Local Law No. 26). That Act defines Telecommunications Service as: TELECOMMUNICATIONS SERVICE. - The Term 'telecommun- ications service' means the offering of telecommu- nications for a fee directly to the public, or to such classes of users as to be effectively avail- able directly to the public, regardless of the facilities used. Sec. 3 (a) 51. (Emphasis supplied.) A copy of the Telecommunications Act of 1996 has been made part of the record. It is absolutely clear from that Act and the subsequent definitions contained in the Town Code regard- ing wireless telecommunications facilities and telecommunica- tions towers, which respectively -refer to support structures and types of wireless communications facilities, that the Town Code does not embrace a privately owned and operated radio tower. Continuing an examination.of the definition portions of the Local Law, the initial definition based upon the Telecom- munications Act of 1996, as contained in "Wireless Communica- tions", is carried forward as follows: WIRELESS COMMUNICATION FACILITY. A wireless commu- nication facility is any unstaffed facility for the transmission and/or reception of wireless telecom- munications service usually consisting of an wire- less communication facility array, connection cables, an equipment facility, and a support struc- ture to obtain the necessary elevation. The sup- port structure is either a building, telecommunica- tion tower, or other approved structure. (Emphasis supplied.) Finally, "Telecommunication Tower" incorporates the earlier definitions as follows: TELECOMMUNICATION TOWER. A telecommunication tower is a type of wireless communication facility de- signed and constructed specifically to support an antenna array, and may include a monopole, self- supporting tower, guy -wire support tower and other similar structures. A wireless communication facility attached to an existing building or struc- ture shall be excluded from this definition. (Emphasis supplied.) It is to be noted that the tower is not licensed to a utility but to a private individual and he does not receive - 2 - ,S any income from the radio license. There is a distinct difference between this single frequency operator and the various personal communications facilities operated by public utilities. The Town Code is not applicable to radio towers. Dated: Riverhead, New York September 29, 1998 Respectfully submitted, ('?L�- euz Charles R. Cudd - 3 - ZONING BOARD OF APPEALS TOWN OF SOUTHOLD --------------------------------------x In the Matter of Application No. 4611 by the Building Inspector --------------------------------------x �; SEP 1908 II- ll'U, MEMORANDUM a -1 .2 We are now aware that this Board is considering an interpreta- tion of the Town Code which effectively would conclude that there are two versions of the Wireless Facilities law, one version incorporating the Telecommunications Act of 1996 and a second version applying not only to telecommunications towers, but to other communication facilities, i.e. radio towers. We are concerned that this approach does not interpret the Code but actually rewrites it. In fact, there would be two Codes and this two Code approach is fundamentally unfair to an applicant who must decipher the Code and attempt to bring meaning to it. In the very first instance the Code incorporates the Telecom- munications Act of 1996. It does this through the wireless communications definition. It does not make reference to any other wireless communications but only to those referred to in that Act. It is apparent that the drafters of the Town Code provision were concerned with wireless cellular communications. This is not surprising since the United States Congress drafted a law that was concerned with cellular communications and not with other communi- 7 cations, i.e. private radio communications such as those used by taxicab facilities. What generated the Town Code is no secret. Applications were being made by cellular facilities in various locations including residential locations. The Town reacted to this and enacted a Code provision dealing with wireless communica- tions as defined in the Telecommunications Act of 1996, particular- ly cellular phones. The canons of construction concerning interpretation of statutes indicate that because zoning provisions are in derogation of the common law, the Zoning code should be strictly construed. Moreover, the canons of construction, when there is some doubt as to the meaning of a provision, require the interpretation to be in favor of the applicant. And, significantly, the canons of construction require that all parts of a statute, rule or regula- tion be read together. (See, New York General Construction Law and 97 New York Jurisprudence 2d - Statutes.) The Board, in making an interpretation, cannot pick and choose those sections of the Code more favorable to a proposed result. Parts of definitions alone cannot be relied upon as opposed to the whole definition and all of the definitions must be considered harmoniously. The Board cannot rely upon part of the Code, such as a purpose clause, and exclude other parts of the Code. The law cannot be re -made to fit the facts. Here, the facts, a radio tower and office use, are not controlled by Article XVI (Wireless =S= A Communications Facilities). It is difficult to conceive that an argument would be made that excludes a key definition and then concludes that the Code refers to wireless communications not included in the 1996 Act. There is nothing in the Town Code that indicates it is inclusive of any form of communication other than the Telecommunications Act of 1996. Clearly that Act does not include radio towers. Yet, we are led to understand that this Board is being urged to interpret Article XVI of the Code and find that radio towers are regulated by considering the definition of "Wireless Communication Facility" and avoiding altogether the definition "Wireless Communication". This approach is fundamentally flawed. It is contrary to the canons of construction applied to statutes, codes, rules and regulations, to exclude part of the provision or Article being interpreted. Moreover, the language in the "Wireless Communication Facility" definition relies upon the "Wireless Communication" definition. The same term "telecommunica- tion services" appears in each definition. It has been suggested that reference to a dictionary for each word of this term results in radio towers being embraced by Article XVI. The direct and simple answer is that radio towers, although referred to in another section of the Town Code (Section 100-230 D(1)], are not referred to in Article XVI. Not parenthetically the Town Code, in the section just cited, refers separately to telecommunication towers - 3 - N and radio towers. It -is not credible to assert that the meaning of a specially used term, words of art, i.e. "telecommunications services" is defined through segregating each word, looking up the definitions, and then reconstructing the term in accordance with various dictionary definitions. "Telecommunications service" is a specially defined term, as is "accessory use" or "set back" or "residential cluster", all of which are defined outside of the normal dictionary definition. Telecommunications service appears in the Telecommunications Act of 1996 and is defined as: TELECOMMUNICATIONS SERVICE. - The term 'telecommunications service' means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. Sec. 3(a) 51. (Emphasis supplied.) Telecommunications service does not embrace a privately owned and operated radio tower. A finding that a radio tower is included inArticle XVI of the Town Code flies in the face of the rules of construction and interpretation, it is contrary to the definitions in the Town Code and in the Act, and is a result driven determina- tion. The Board cannot extract meaning from words of art by consulting a dictionary; and it certainly cannot exclude parts of a Code provision to arrive at the meaning of the entire provision, otherwise the Board is faced with the anomalous position of asserting that the legislative body, the Town Board, had no reason - 4 - to to include the Wireless Communication definition in the Code. It is quite clear they did; it gives meaning to the remaining provisions. The transmission of the signals utilized by a radio tower applicant is the same as a transmission of signals for a taxicab company. Assuredly, this Board is not taking the position that the taxicab tower is regulated by the Wireless Communications provision of the Town Code. In short, the Code provision does not regulate all towers and there are significant differences between tower uses. A radio tower does not provide a means of communication for the general public; it is not used by the general public; the user does not get billed for its use; and no income is generated by its use. In the past the Board has determined that a business may have, as an accessory use, a communications tower. This application is directed to obtaining that same determination. (See, Zoning Board of Appeals decision in Metro One #4023, 1992.) If there is some provision in the Code that the Board believes has been overlooked, we would be pleased to discuss this with you; but, if this is your position, you should allow us to address it. Otherwise, we are engaged in a one-sided debate. We are hopeful that this will not occur. We suggest to you that a fair reading of the Town Code, Article XVI (Wireless Communications Facilities), when all of it is - 5 - is considered together, compels the conclusion that a private radio tower is not included in the definition or body of Article XVI and a radio tower is not regulated by the Wireless Communication Facilities Article. Dated: Riverhead, New York September 29, 1998 Respectfully submitted, 0 -1 OIAI- to Charles R. Cuddy iz Federal Communications Comm. psion -'-�-- -_COQ �n Washington, D.C. 20554 --, - o s r-°f..�.:.aep�. :.: ;�MMISS��A{ AUG 13 1998 Abu 171998 The Honorable Michael P. Forbes Member, U.S. House of Representatives 1500 William Floyd Parkway Shirley, NY 11967 Dear Congressman Forbes: Thank you for your inquiry on behalf of your constituent Charles R. Cuddy. Mr. Cuddy asks whether a tower used to transmit and receive signals -for a private radio licensee falls within the ambit of the Telecommunications Act of 1996 (1996 Act). Section 704(a) of the 1996 Act, codified at 47 U.&C. § 332(c)(7), preserves and defines local authority over the placement, construction, and modification of facilities for the provision_ of personal wireless services. Personal -wireless services are defined in section . 704(a) to include commercial mobile radio services,, unlicensed wireless services, and common carrier wireless exchange access services. ..Private radio services do not fall within any of these categories. Therefore, towers used solely to provide private radio services are not within the ambit of section 704(a). There -is no other: provision of. the 1996 Act, the Communications Act of 1934, or the Commission's regulations that directly addresses local authority over the siting of these facilities. Please do not hesitate to contact me if I can be of further assistance. Sincerely, j.7"— � �,' )a `j s Steven E. Weingarten Chief, Commercial Wireless Division Wireless Telecommunications Bureau /3 aY /3 EDWARD FORRESTER Director of Code Enforcementcz N Z s BUILDING DEPARTMENT TOWN OF SOUTHOLD MEMORANDUM Southold Town Hall 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 `Pclepl one:(- - --6)-9$5-.1.802 j SEP — 2 ;�c�R TO: BUILDING DEPARTMENT INSPECTORS AND STAFF FROM: EDWARD FORRESTER, BUILDING DEPARTMENT HEAD DATE: AUGUST 31, 1998 The goal of this office is to achieve fair, firm and consistent application and enforcement of the Town Code in a timely fashion to best serve the citizens of the Town of Southold. To help achieve the Building Department's goal, the following will apply: • Building Inspectors' daily work assignments and routines will be assigned and/or established by the Department Head. • Clerical staff routines and daily assignments will be assigned and/or established by the Administrative Assistant. • Questions regarding the application and/or interpretation and/or enforcement of the Town Code will be directed to the Department Head. • Requests for interpretation from the ZBA will be made by the Department Head. • Regarding: Stop Work Orders, Orders to Remedy and Appearance Tickets - Building Inspectors must first notify the Department Head prior to issuance of the above except in emergency situations. In emergency situations, the Department Head will be notified as soon as possible after the issuance of any of the above. • Call -ins for sick time will be made to the Department Head. cc: Town AttorneOZBA, own Board Page 47 - Hearing Transc September 24, 1998 - Board of Appeals September 24, 1998 Public Hearings, continued: 9:57 P.M. - Appl. No. 4611 - BUILDING INSPECTOR. This is a request on a Town -Wide basis for an INTERPRETATION submitted by the Building Inspector for a determination answering the question: "Does a radio tower and antenna fall under the Provisions of "Wireless Communications" Article XVI of the Southold Town Zoning Code, when it is intended for the private use of an owner who operates a VHF Radio under a License issued to him/her by C f ur f cr'---�---71--`�2ill as part of his/her business, W -,I -. -6 Ar CHAIRMAN GOEHRINGER: This is a Generic Interpretation, this is not site specific, and therefore we are not dealing with any specific type of property except for that type that falls within the Light Industrial Zoning District. I therefore open the floor up for anybody who would like to make a presentation. I know that the member of the Building Department is not here present in the room, so I will open it up for anyone else that would like to discuss it. Mr. Cuddy, how are you tonight? Thank you for waiting. Thank yota for coming, thank you, Mr. Rosen for coming. And thank you, ladies, for coming. MR. CUDDY: On behalf of Mr. Rosen who I appeared here for, I would ask you to make a positive Interpretation, positively saying that a radio tower is not part of the Telecommunications Tower Provision, which is the Wireless Communications Facilities, Article XVI of the Town Code. We have been here in one form or another talking about this particular subject four previous times: April 16th, July 11th, July 23rd, and August 13th. During the course of those hearings, we submitted two Memorandum, one dated April 15th and another dated August 7th, various documents, and we took testimony. I would ask that all of the testimony, all of the documents, and all of the records be incorporated in this hearing as if we had gone forward at this time, so that they will be part of the record. = zz:�z�� Zz:= 7J CHAIRMAN GOEHRINGER: I don't have a particular problem with that, but I do want to mention that I will seek counsel on that issue based upon the fact that this is not site specific. MR. CUDDY: I understand, but since we could repeat those, I could probably Page 48 - Hearing Transci September 24, 1998 - Board of Appeals read it into the record and would hope that you will allow us not to do that. CHAIRMAN GOEHRINGER: Well on that basis, I certainly will urge counsel that we will probably have to accept it. MR. CUDDY: The application of the attorney, for Application 4544, by Mr. Rosen. I would just point out a couple of things since we have on this previously. That the radio tower is very different from Telecommunications Tower as I said to you before, that Radio Towers are different in the sense that the public doesn't use radio towers. A radio tower does not provide a means of communications for general public. Doesn't produce income and the use doesn't get billed to the user. In addition of course the frequency is very different. Those are some of the differences that we claimed are frequency. I would like to point out to the Board something additional to tonight's hearing in particular and that is, you're talking about the LI District. If I'm right, and I don't have the patent on reading the town map, but, it appears to me that there are only four LI Districts in the part of town. Two of them are in Mattituck parallel with the railroad tracks. One of them is in Cutchogue between Oregon Road and Route 46, part of them in another town), and another one is just east of the railroad crossing at 25. Route 25 crosses the railroad near where Penny Lumber and Kirwin Boulevard is. East of that, there doesn't appear to be any LI Zone. So we're talking essentially about four specific zonings and this is not going to effect an enormous ( ) with any special . I would say to you that not only have we asserted the fact that the radio tower does not a telecommunications tower. But, I had written to our local Congressman, Congressman Forbes and asked him to go through the Federal Bureaucracy if he would contact the FCC. I have a letter that I would like to put in the record dated August 13th from Steven Weingarten who is the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau, the FCC. In that letter, he effectively says that private radio services do not call in any category in the Telecommunications Act, and that's been our position and I'm going to hand that letter up and ask that it be a part of the record. CHAIRMAN GOEHRINGER: Thank you Sir. MR. CUDDY: Just one other thing I ask and that is that you accept from me, the Notice of Posting and an Affidavit of Mailing. We posted and mailed, particularly because Mr. Rosen had previously been here and other people have relied upon our particular application, and I would therefore ask that you would accept these indicating that the various people who are next to Mr. Rosen's site have been notified. So, it was sent, and we noted is as a generic. Page 49 - Hearing Transc September 24, 1998 - Boara of Appeals CHAIRMAN GOEHRINGER: Thank you. MR. CUDDY: Again, based on all of these previous testimony, I would urge you to find that the Radio Towers are not Telecommunications Towers. And thank you for giving us this opportunity once .more. CHAIRMAN GOEHRINGER: No problem. Is there anybody else would like to speak? Please excuse me for not indicating that you are here, Mr. Bouffard. I apologize. And anybody else that's here for this generic interpretation. This is a rather unique circumstance. The generic interpretation in general is new to us and I don't mean to be redundant. I know time is of the essence, but the key players are not here tonight and for some strange reasons they got their wires crossed. One Building Inspector was supposed to come and the Chief Building - the head of the Department was here for a prior application which was another interpretation and I have no idea how this happened. I'm not making excuses for them, they're both reasonably nice men. So, at this particular point, the only thing I can do is recess the hearing and I'll do so. SECRETARY KOWALSKI: To recess it to October 15th? MEMBER COLLINS: Is thata., motion? CHAIRMAN GOEHRIHGER:. Yes. MR. CUDDY: Can I ask that the significance of the inspector coming to this, is this just to recite why he wrote? CHAIRMAN GOEHRINGER: I, we actually wanted to hear from him the reason why he was requesting this, when we requested from him, or actually from you, an updated Notice of Disapproval. That's the only thing that I can tell you. We asked that from ' you and then we got a request for an Interpretation from him. I mean it doesn't make sense to me, OK. But, I assure you that we will put it on as quickly as possible, or we will have a special hearing just to deal 'with this aspect to close this and put it to bed. The question I have is, I don't know when I'm going to do it, OK and that is the reason why. I hopefully- I'm going to do it in the very near future because I want to get it done. I want to find out what the reason is, alright? MEMBER TORTORA: Actually I don't know why he did it either but, I'm trying to figure out what the relevance to this interpretation is. CHAIRMAN GOEHRINGER: Well, that's the question. I don't know what the relevance is. I mean, you know, I think it's a hypothesis at this point. Page 50 - Hearing Transo September 24, 1998 - Boara of Appeals SECRETARY KOWALSKI: I was just wondering. Are you going to put it over to October 15th? CHAIRMAN GOEHRINGER: Or before, this way, just wait one second all right? SECRETARY KOWALSKI: Well you can't, you have to give a date if you do it before, that's what I'm saying. MEMBER HORNING: I would like to put in the record, that I find it insulting to the integrity of this Board, that the Building Department does not have any representation here at this time. MEMBER DINIZIO: I would like to second that. MR. ROSEN: Thank you. CHAIRMAN GOEHRINGER: All right, so at this particular point we'll recess it without a date and we will create a date so that we can advertise it in an appropriate fashion and/or we can reconvene it next Wednesday, it's up to you. SECRETARY KOWALSKI: Well, the only thing is if we do it next Wednesday, we just need the date (with the resolution). MR. CUDDY: Mr. Chairman, excuse me, I'm somewhat concerned about this - We could end up in a stalemate. I'm representing somebody whose been here five times so that and so' have the opponents. And if the Building Inspector choses to come, I don't really know - we essentially could never have a decision. CHAIRMAN GOEHRINGER: What happened was this. Mr. Fish was supposed to come and Mr. Forrester was here. So, Mr. Forrester said to Mr. Fish, I will go since I'm already here, OK, and that's where their wires got - there was a miscommunication, OK, and that's the problem because our Board Secretary and Clerk here called Mr. Fish and substantiated that. SECRETARY KOWALSKI: No, I called Mr. Fish and I asked him if he was on his way because it was already 8:30, and he said, "There's no reason for me to be there because Ed Forrester had already agreed to be here", and Mr. Forrester was not in the building at that time I,called Mr. Fish. So, I assumed that the two Inspectors were able to communicate who was going to handle the hearing. .Y Page 51 - Hearing Trans( September 24, 1998 - Board of Appeals I CHAIRMAN GOEHRINGER: Well], let me p gentlemen of the Board, can we meet ne: malting decisions and cleaning up this heal SECRETARY KOWALSKI: Recessing the he CHAIRMAN GOEHRINGER: Yes. MEMBER DINIZIO: Well when are we gc this hearing next week? I CHAIRMAN GOEHRINGER: Yes.i MEMBER DINIZIO: It's OK to have it adve SECRETARY KOWALSKI: You don't have t, time. MEMBER DINIZIO: My preference woul Inspector that made this request - that he CHAIRMAN GOEHRINGER: Oh, I agree wii thought up to tonight, he was going to be SECRETARY KOWALSKI: Well, as of - MEMBER TORTORA: Quite frankly, I thint nauseam and I would like to cl®se there hi MEMBER DINIZIO: I think itI's almost c you're trying to wear these people down the impression I think, getting from the from these people for the past two month happened. We had to beg them for this. SECRETARY KOWALSKI: Recess it or cl t it to.bed right here. Ladies and t Wednesday, for the purposes of ng process, OK? ng of the date? to have the date? We'll have that way? advertise it if it's with a date and be that we add the Building the one to be here. you. I sincerely agree because I that this has been dragged out as aring tonight. eliberate, if you ask me. I think in my opinion. Well, I just, I just, correspondence that we've gotten This is not the first time that this it. MEMBER TORTORA: Close it. II'II move to close it right now. CHAIRMAN GOEHRINGER: Does anybody want to second that? MEMBER COLLINS: Then we have to, we individually have to think about it. We as a Board have to meet Viand argue it and I guess I would agree, that d Page 52 - Hearing Transci September 24, 1998 - Board of Appeals input from the Building Department (changed tape). MEMBER TORTORA: To close it, to close the hearing? SECRETARY KOWALSKI: No, it would be recessed with a date and a time, next Wednesday is the 30th of September, and the time we were meeting, 7:00 o'clock? MEMBER COLLINS: So Lydia, that really has the same effect, operationally. MEMBER TORTORA: I know, it's just that I really - MEMBER COLLINS: I know, you're fed up with it. CHAIRMAN GOEHRINGER: So then, so then, somebody second her, her motion and we'll go from there. SECRETARY KOWALSKI: Well, nobody has seconded her motion. MEMBER COLLINS: Lydia's motion was to close? SECRETARY KOWALSKI: You don't have to second that. CHAIRMAN GOEHRINGER: I mean I think we have enough. SECRETARY KOWALSKI: Unless you have a new motion. MEMBER COLLINS: My only reason for hesitating, is just, I haven't thought to whether we're keeping our procedural skirts clean. That this is such a mess anyway. SECRETARY KOWALSKI: I would recommend you recess it with a date. MEMBER COLLINS: I feel now that I think about it, that having on the record, not just a letter from the Building Inspector asking for this, but some testimony would give and take with the Building Inspector - MEMBER TORTORA: That's fine, Lora, I, I don't really care as long as you - MEMBER COLLINS: So I would, I would do it that way. MEMBER TORTORA: -would bring to this to a conclusion in the near decade. MEMBER DINIZIO: So you're making that motion? -1 Page 53 - Hearing Trans( September 24, 1998 - Boas of Appeals MEMBER COLLINS: Yes, I guess II'm propos that we recess with a date. MEMBERTORTORA: I'll second. SECRETARY KOWALSKI: The date, the date is, wait we need the date. September 30th is next Wednesday. i MEMBER COLLINS: That's the one we keep talking about. SECRETARY KOWALSKI: At 7:001 o'clock, so I just need somebody to put that on a motion. Jim has seconded that motion. CHAIRMAN GOEHRINGER: Do you want to go next Wednesday, or do you want to go the following Wednesday? SECRETARY KOWALSKI: It's in MEMBER DINIZIO: No. Next motion already. MEMBER COLLINS: Next week is, good. CHAIRMAN GOEHRINGER: Next SECRETARY KOWALSKI: 7:00 o'clock. CHAIRMAN GOEHRINGER: No, the me hearing will commence at 7:15. MR. CUDDY: At that time, will there be a Mr. Fish can't and refuses to come, we ha you talk about this decade we can have going. 7:15. ng starts at 7:00 o'clock. The cision? In other words, suppose the same situation again. When Ilennium come and we'll still be CHAIRMAN GOEHRINGER: I sincerely hate to bring this up because this goes back to mid -85, but I believe we have the power of subpoena. I believe we do and I am not going to exerciise that. I am very simply going to write a nice letter to the Building Department and say, how come you gentlemen weren't here? We are respectfully requesting Mr. Fish to show up. That's it. This came up in a prior hearing about 1985. OK. So we have a motion and a second and I apologize for not moving that emotion. All in favor? Motion carried. See Minutes for Resolution. 1►1 (eJCLt1bA/-ffKT* XV 6L� %�9F NIDTICE OF HEARING NOTICE IS HEREBY GIVEN that a public hearing will be held by the SOUTHOLD TOWN BOARD OF APPEALS at the Town Hall, 53095 Main Road, Southold, New York, concerning this property. OWNER(S)- OF RECORD: conTracT VeAl r DATE OF PUBLIC HEARING: ?0-10 P.m. Sept . zq,- lqqp Thvrs. If you have an interest in this project, you are invited to view the Town file(s) which are available for inspection prior to the day of the hearing during' normal business days between the hours of 8 a.m. and BOARD OF APPEALS •TOWN OF SOUTHOLD e (516) 765-1809 Firiva e c�,� o 6u)ef5-Two4wlbE - OFFICE OF ZONING BOARD OFA 53095 Main Ro Southo/d, NY 11 Intercom Ext. 224, 225 fax 765-9064 ieeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeseeeeeeeeeeeesei August 31, 1 To: Building Inspector Gary Fish Re: ZBA Application No. 4611 - Interpretation Your Memo Received August 19, 1998 Please find enclosed a copy of the Legal Noti, Interpretation. You will note that the Board as wide general request relative to radio towers in The public hearing will be held on September members have requested your attendance in the Thank you. Very ti Office Copy of Legal Notice a d Letter received Building Inspector, by:, PPBALS ?71 ir 223,. ■■eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee■ Wide Use) regarding your request for an dvertised the request as a town - he Light Industrial Zone District. 4, 1998 at 8:10 p.m. and Board vent of questions. ly yours, the ZBA t and Gary Fish, OFFICE OF ZONING BOARD OFAPPBALS 53095 Main Road Southo/d, NY 11971 Intercom Ext. 224, 225 or 223 fax 765-9064 August 31, 1998 To: Building Inspector Gary Fish Re: ZBA Application No. 4611 - Interpretation (Town -Wide Use) Your Memo Received August 19, 1998 Please find enclosed a copy of the Legal Notice regarding your request for an Interpretation. You will note that the Board as advertised the request as a town - wide general request relative to radio towers in the Light Industrial Zone District. The public hearing will be held on September 24, 1998 at 8:10 p.m. and Board members have requested your attendance in the event of questions. Thank you. Very truly yours, Office of the ZBA Copy of Legal Notice a Letter received for. Building _Department and Gary Fish, Building Inspector, by: :. AUG 3` 1 ELIZABETH A. NEVILLE TOWN CLERK REGISTRAR OF VITAL STATISTICS MARRIAGE OFFICER RECORDS MANAGEMENT OFFICER FREEDOM OF INFORMATION OFFICER �Oo4gX'1111/rc01 C ?1 COD Z 1 • oy��1 OFFICE OF THE TOWN CLERK TOWN OF SOUTHOLD TO: Southold Town Zoning Board of Appeals FROM: Elizabeth A. Neville, Southold Town Clerk DATED: August 20, 1998 Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 Fax (516) 765-1823 Telephone (516) 765-1800 RE: Zoning Appeal No. 4611 - Southold Town Building Department Transmitted herewith is Zoning Appeal No. 4611 - Southold Town Building Department submitted by Gary Fish for an interpretation regarding a private radio tower falling under the Provisions and Requirements of Article XVI, Wireless Communications Facilities. There is no fee for processing this application. Town Hall, 53095 Main Road P.O. Box 1179 Southold, New York 11971 2 0 x"70 Town GIerK 50ulnold MEMO fAUG t9�° j'' BUILDING DEPARTMENT TOWN OF SOUTHOLD TO: All members of the Z.B.A. FROM: Gary Fish, Building Inspector 6G1, Fax (516) 765-1823 Telephone (516) 765-1802 C� RE: Request for interpretation of a private radio tower. At Martin Rosen property, tax map #1000-141-3-44. In light of past and present questions raised regarding the proposed radio tower at the Martin Rosen property located in an Lf_District, let this memo serve as a request for an interpretation. This request is for an interpretation as to whether this radio tower, intended to be used for the private use of the owner for his trucking business, falls under the Provisions and Requirements of Article XVI, Wireless Communication Facilities. From what has been explained to me by Mr. Rosen and his attorney Mr. Cuddy, the radio tower will be used solely by and for the proposed trucking business office. The office will be located in the existing building on the lot. Mr. Rosen proposes to alter and renovate this building to office space, a permitted use in an LB District, acquiring all the proper permits and approvals ie Building Permit, Planning Board Approval and possible Health Department approval. It is my understanding that the board has tabled an interpretation on this matter until it has received a request from the Building Inspector. I trust you can now go forward with your interpretation. M Page 47 - Hearing Transcripts September 24, 1998 - Board of Appeals September 24, 1998 Public Hearings, continued: 9::57 P.M. - Appl. No. 4611 - BUILDING INSPECTOR. This is a request on a Town -Wide basis for an INTERPRETATION submitted by the Building Inspector for a determination answering the question: "Does a radio tower and antenna fall under the Provisions of "Wireless Communications" Article XVI of the Southold Town Zoning Code, when it is intended for the private use of an owner who operates a VHF Radio under a License issued to him/her by C f ® urp f 11 as part of his/her business, ® ® s ) g !strict?" CHAIRMAN GOEHRINGER: This is a Generic Interpretation, this is not site specific, and therefore we are not dealing with any specific type of property except for that type that falls within the Light Industrial Zoning District. I therefore open the floor up for anybody who would like to make a presentation. I know that the member of the Building Department is not here present in the room, so I will open it up for anyone else that would like to discuss it. Mr. Cuddy, how are you tonight? Thank you for waiting. Thank you for coming, thank you, Mr. Rosen for coming. And thank you, ladies, for coming. MR. CUDDY: On behalf of Mr. Rosen who I appeared here for, I would ask you to make a positive Interpretation, positively saying that a radio tower is not part of the Telecommunications Tower Provision, which is the Wireless Communications Facilities, Article XVI of the Town Code. We have been here in one form or another talking about this particular subject four previous times: April 16th, July 11th, July 23rd, and August 13th. During the course of those hearings, we submitted two Memorandum, one dated April 15th and another dated August 7th, various documents, and we took testimony. I would ask that all of the testimony, all of the documents, and all of the records be incorporated in this hearing as if we had gone forward at this time, so that they will be part of the record. CHAIRMAN GOEHRINGER: I don't have a particular problem with that, but I do want to mention that I will seek counsel on that issue based upon the fact that this is not site specific. MR. CUDDY: I understand, but since we could repeat those, I could probably Page 48 - Hearing Transcripts September 24, 1998 - Board of Appeals read it into the record and would hope that you will allow us not to do that. CHAIRMAN GOEHRINGER: Well on that basis, I certainly will urge counsel that we will probably have to accept it. MR. CUDDY: The application of the attorney, for Application 4544, by Mr. Rosen. I would just point out a couple of things since we have on this previously. That the radio tower is very different from Telecommunications Tower as I said to you before, that Radio. Towers are different in the sense that the public doesn't use radio towers. A radio tower does not provide a means of communications for general public. Doesn't produce income and the use doesn't get billed to the user. In addition of course the frequency is very different. Those are some of the differences that we claimed are frequency. I would like to point out to the Board something additional to tonight's hearing in particular and that is, you're talking about the LI District. If I'm right, and I don't have the patent on reading the town map, but, it appears to me that there are only four LI Districts in the part of town. Two of them are in Mattituck parallel with the railroad tracks. One of them is in Cutchogue between Oregon Road and Route 48, part of them in another town), and another one is just east of the railroad crossing at 25. Route 25 crosses the railroad near where Penny Lumber and Kirwin Boulevard is. East of that, there doesn't appear to be any LI Zone. So we're talking essentially about four specific zonings and this is not going to effect an enormous ( ) with any special . I would say to you that not only have we asserted the fact that the radio tower does not a telecommunications tower. But, I had written to our local Congressman, Congressman Forbes and asked him to go through the Federal Bureaucracy if he would contact the FCC. - I have a letter that I would like to put in the record dated August 13th from Steven Weingarten who is the Chief, Commercial Wireless Division, Wireless Telecommunications Bureau, the FCC. In that letter, he effectively says that private radio services do not call in any category in the Telecommunications Act, and that's been our position and I'm going to hand that letter up and ask that it be a part of the record. CHAIRMAN GOEHRINGER: Thank you Sir. MR. CUDDY: 3ust one other thing I ask and that is that you accept from me, the Notice of Posting and an Affidavit of Mailing. We posted and mailed, particularly because Mr. Rosen had previously been here and other people have relied upon our particular application, and I would therefore ask that you would accept these indicating that the various people who are next to Mr. Rosen's site have been notified. So, it was sent, and we noted is as a generic. 9 Page 53 - Hearing Transcripts September 24, 1998 - Board of Appeals MEMBER COLLINS: Yes, I guess I'm proposing that we recess with a date. MEMBER TORTORA: I'll second. SECRETARY KOWALSKI: The date, the date is, wait we need the date. September 30th is next Wednesday. MEMBER COLLINS: That's the one we keep talking about. SECRETARY KOWALSKI: At 7:00 o'clock, so I just need somebody to put that on a motion. Jim has seconded that motion. CHAIRMAN GOEHRINGER: 'Do you want to go next Wednesday, or do you want to go the following Wednesday? SECRETARY KOWALSKI: It's in the motion already. MEMBER DINIZIO: No. Next Wednesday. MEMBER COLLINS: Next week is good. CHAIRMAN GOEHRINGER: Next Wednesday, 7:15. SECRETARY KOWALSKI: 7:00 o'clock. CHAIRMAN GOEHRINGER: No, the meeting starts at 7:00 o'clock. The hearing will commence at 7:15. MR. CUDDY: At that time, will there be a decision? In other words, suppose Mr. Fish can't and refuses to come, we have the same situation again. When you talk about this decade we can have millennium come and we'll still be going. CHAIRMAN GOEHRINGER: I sincerely hate to bring this up because this goes back to mid -85, but I believe we have the power of subpoena. I believe we do and I am not going to exercise that. I am very simply going to write a nice letter to the Building Department and say, how come you gentlemen weren't here? We are respectfully requesting Mr. Fish to show up. That's it. This came up in a prior hearing about 1985. OK. So we have a motion and a second and I apologize for not moving that motion. All in favor? Motion carried. See Minutes for Resolution. Page 52 - Hearing Transcripts September 24, 1998 - Board of Appeals input from the Building Department (changed tape). MEMBER TORTORA: To close it, to close the hearing? SECRETARY KOWALSKI: No, it would be recessed with a date and a time, next Wednesday is the 30th of September, and the time we were meeting, 7:00 o'clock? MEMBER COLLINS: So Lydia, that really has the same effect, operationally. MEMBER TORTORA: I know, it's just that I really - MEMBER COLLINS: I know, you're fed up with it. CHAIRMAN GOEHRINGER: So then, so then, somebody second her, her motion and we'll go from there: SECRETARY KOWALSKI: Well, nobody has seconded her motion. MEMBER COLLINS: Lydia's motion was to close? SECRETARY KOWALSKI: You don't have to second that. CHAIRMAN GOEHRINGER: I mean I think we have enough. SECRETARY KOWALSKI: Unless you have a new motion. MEMBER COLLINS: My only reason for hesitating, is just, I haven't thought to whether we're keeping our procedural skirts clean. That this is such a mess anyway. SECRETARY KOWALSKI: I would recommend you recess it with a date. MEMBER COLLINS: I feel now that I think about it, that having on the record, not just a letter from the Building Inspector asking for this, but some testimony would give and take with the Building Inspector - MEMBER TORTORA: That's fine, Lora, I, I don't really care as long as you - MEMBER COLLINS: So I would, I would do it that way. MEMBER TORTORA: -would bring to this to a conclusion in the near decade. MEMBER DINIZIO: So you're making that motion? Page 51 - Hearing Transcripts September 24, 1998 - Board of Appeals CHAIRMAN GOEHRINGER: Well, let me put it to bed right here. Ladies and gentlemen of the Board, can we meet next Wednesday, for the purposes of making decisions and cleaning up this hearing process, OK? SECRETARY KOWALSKI: Recessing the hearing of the date? CHAIRMAN GOEHRINGER: Yes. MEMBER DINIZIO: Well when are we going to have the date? We'll have this hearing next week? CHAIRMAN GOEHRINGER: Yes. MEMBER DINIZIO: It's OK to have it advertised that way? SECRETARY KOWALSKI: You don't have to advertise it if it's with a date and time. MEMBER DINIZIO: My preference would be that we add the Building Inspector that made this request - that he be the one to be here. CHAIRMAN GOEHRINGER: Oh, I agree with* you. I sincerely agree because I thought up to tonight, he was going to be here. SECRETARY KOWALSKI: Well, as of - MEMBER TORTORA: Quite frankly, I think that this has been dragged out as nauseam and I would like to close there hearing tonight. MEMBER DINIZIO: I think it's almost deliberate, if you ask me. I think you're trying to wear these people down in my opinion. Well, I just, I just, the impression I think, getting from the correspondence that we've gotten from these people for the past two months. This is not the first time that this happened. We had to beg them for this. SECRETARY KOWALSKI: Recess it or close it. MEMBER TORTORA: Close it. I'll move to close it right now. CHAIRMAN GOEHRINGER: Does anybody want to second that? MEMBER COLLINS: Then we have to, we individually have to think about it. We as a Board have to meet and argue it and I guess I would agree, that Page 50 - Hearing Transcripts September 24, 1998 - Board of Appeals SECRETARY KOWALSKI: I was just wondering. Are you going to put it over to October 15th? CHAIRMAN GOEHRINGER: Or before, this way, just wait one second all right? SECRETARY KOWALSKI: Well you can't, you have to give a date if you do it before, that's what I'm -saying. MEMBER HORNING: I would like to put in the record, that I find it insulting to the integrity of this Board, that the Building Department does not have any representation here at this time. MEMBER DINIZIO: I would like to second that. MR. ROSEN: Thank you. CHAIRMAN GOEHRINGER: All right, so at this particular point we'll recess it without a date and we will create a date so that we can advertise it in an appropriate fashion and/or we can reconvene it next Wednesday, it's up to you. SECRETARY KOWALSKI: Well, the only thing is if we do it next Wednesday, we just need the date (with the resolution). MR. CUDDY: Mr. Chairman, excuse me, I'm somewhat concerned about this - We could end up in a stalemate. I'm representing somebody whose been here five times so that and so have the opponents. And if the Building Inspector choses to come,. I don't really know - we essentially could never have a decision. CHAIRMAN GOEHRINGER: What happened was this. Mr. Fish was supposed to come and Mr. Forrester was here. So, Mr. Forrester said to Mr. Fish, I will go since I'm already here, OK, and that's where their wires got - there was a miscommunication, OK, and that's the problem because our Board Secretary and Clerk here called Mr. Fish and substantiated that. SECRETARY KOWALSKI: No, I called Mr. Fish and I asked him if he was on his way because it was already 6:30, and he said, "There's no reason for me to be there because Ed Forrester had already agreed to be here", and Mr. Forrester was not in the building at that time I called Mr. Fish. So, I assumed that the two Inspectors were able to communicate who was going to handle the hearing. Page 49 - Hearing Transcripts September 24, 1998 - Board of Appeals CHAIRMAN GOEHRINGER: Thank you. MR. CUDDY: Again, based on all of these previous testimony, I would urge you to find that the Radio Towers are not Telecommunications Towers. And thank you for giving us this opportunity once more. CHAIRMAN GOEHRINGER: No problem. Is there anybody else would like to speak? Please excuse me for not indicating that you are here, Mr. Bouffard. I apologize. And anybody else that's here for this generic interpretation. This is a rather unique circumstance. The generic interpretation in general is new to us and I don't mean to be redundant. I know time is of the essence, but the'key players are not here tonight and for some strange reasons they got their wires crossed. One Building Inspector was supposed to come and the Chief Building - the head of the Department was here for a prior application which was another interpretation and I have no idea how this happened. I'm not making excuses for them, they're both reasonably nice men. So, at this particular point, the only thing I can do is recess the hearing and I'll do so. SECRETARY KOWALSKI: To recess it to October 15th? MEMBER COLLINS: Is that a motion? CHAIRMAN GOEHRINGER: Yes. MR. CUDDY: Can I ask that the significance of the inspector coming to this, is this just to recite why he wrote? CHAIRMAN GOEHRINGER: I, we actually wanted to hear from him the reason why he was requesting this, when we requested from him, or actually from you, an updated Notice of Disapproval. That's the only thing that I can tell you. We asked that from you and then we got a request for an Interpretation from him. I mean it doesn't make sense to me,- OK. But, I assure you that we will put it on as quickly as possible, or we will have a special hearing just to deal with this aspect to close this and put it to bed. The question I have is, I don't know when I'm going to do it, OK and that is the reason why. I hopefully- I'm going to do it in the very near future, because I want to get it done. I want to find out what the reason is, alright? MEMBER TORTORA: Actually I don't know why he did it either but, I'm trying to figure out what the relevance to this interpretation is. CHAIRMAN GOEHRINGER: Well, that's the question. I don't know what the relevance is. I mean, you know, I think it's a hypothesis at this point. -40 o C&Lt C-�, bd 4. C-4,� cow-��� ��- ..� �. �-�--e fax �-�--�- Draft Transcript of Continued Hearing to be proofread! September 30, 1998 Southold Town Board of Appeals (Prepared by Lucy Farrell from Tape Recordings) 7:15 P.M.- Appl. #4611 - BUILDING INSPECTOR'S REQUEST FOR INTERPRETATION (Generic Interpretation, Town -Wide for Radio Towers for Private Use under FCC) . Reopen Appl. #4611. I. have to tell you that we are the Building Department less again, Mr. Fish is still ill and he will not be here. If anybody would like to add anything to this interpretation please raise your hand. Mr. Cuddy? By the way Mr. Cuddy I just want to point out for the record, that we did receive the information that you had prepared for us, and we will make it part of the file. CHARLES CUDDY, ESQ: I had as Mr. Goehringer points out delivered some additional information. The information that I delivered was nothing more than what had previously been before this Board and I just want it to be public. I delivered the statement by 'Mr. Oshin what I did is I took our certain excerpts of his testimony and to read it non -site specific so there are no references to any particular site. I have again another copy of that but tonight it's signed by Mr. Oshin. I took the Memorandums I had previously prepared and also en -sized any site specific references there. So, we're talking simply about Radio Towers and Telecommunications, and I offer that again, Mr. Chairman, into the record if I may. CHAIRMAN GOEHRINGER: To answer your question, I have discussed that with counsel, and there is unanimity. MR. CUDDY: So that is an acceptable practice then to adopt those previous statements and - CHAIRMAN GOEHRINGER : They were really never scraped. I just wanted to consult counsel. MR. CUDDY: So we have it both ways. We have with or without. Mine is no different. In other words I 'didn't change the words. I simply took it and, took out those words with any site specific references. Page 2 - Special Meeting/Public Hearing September 30, 1998 - Board of Appeals SECRETARY KOWALSKI: Can I mark that as 'received,' please. CHAIRMAN: Sure. BOARD SECRETARY: Thank you. MR. CHAIRMAN: It's very rare that we're on the floor like this but we were making decisions, and sometimes it's difficult to discuss the decisions with each other when we're up on the dais, so. MR. CUDDY: We thought that way we had a complete level plain. CHAIRMAN GOEHRINGER: Pardon me, Mr. Cuddy we always have been completely level plain. MR. CUDDY: Thank you. After coming here six times, I didn't want to say it again. There's just one question that I had. MR. CHAIRMAN: Ok. MR. CUDDY: And that is, does the record contain the letter from the Building Inspector that certainly promoted if not caused this particular hearing? CHAIRMAN GOEHRINGER: We discussed that last, this tonight with counsel and I have to tell you that as you know, that letter was shortened, OK. That letter included your applicant's name and the specific situation that concerned this hearing. I at this particular time am not particularly happy , with including that letter only because we chose to deal with this on a town wide basis. OK, that does not mean that it's only restricted to your applicant, ok. I will have to discuss that with counsel. MR. CUDDY: The reason I asked that as to whether it's appropriate is because we don't have the Building Inspector tonight, and we didn't have the Building Inspector last week. (Inaudible statement) . CHAIRMAN GOEHRINGER: We could. MR. CUDDY: But even that, if he doesn't come certainly his letter is explanatory and the reason for doing this. If he does put it in terms of site-specfic, or non -site-specific, I would hope that maybe you would consider having that letter as , part of the record. CHAIRMAN GOEHRINGER: OK. I have to tell you that we haven't decided if we're closing the hearing tonight or not. Alright. That's an issue that we really have not decided and I'm not speaking for Mr. Dinizio . Mr. Dinizio , has quite honestly told me that he still wants to discuss this with it with the Building Inspector. Is that not true? Page 3 - Special Meeting/Public Hearing September 30, 1998 - Board of Appeals MEMBER DINIZIO: Yes, and I don't mean to hold you up. Quite honestly I find that we can't seem to get someone here. Because I know if I called one of my employees . With that set aside I think that Mr. Fish can provide me with answers to questions I have as to how we got here. I think that you know, when a person works 8 hours a day, five days a week, supposed to be 2 hours a week - I want to know, I want you to know, maybe there are questions that he can answer for me that might help me in making my decision. Certainly we{re talking about a decision that we make and I'm truly embarrassed. that the Building Department cannot send a representative, and whether it has to be that particular person or not, I'm not so sure that it has to be. That we can't discuss it with anybody. Certainly he can discuss it. I don't want to go down there and say, hey, Joe - because then it's not fair to you, it's not fair to anybody else. My preference would be that you know, certainly, Mr. Cuddy we will take your particular comments into consideration if you so choose. If you have a different thing you want to try it. MR. CUDDY: I don't want to do anything that would prejudice my client but, certainly there has to come a time when it comes to an answer. I think everybody agrees on that. On the basis that Mr. Fish is ill, which is certainly an excuse, any time, and I would understand that you might put it on again, would you please put it on for a specific date so that we will have some hold on this thing. CHAIRMAN GOEHRINGER: Sure. Well I think we- I think we've done that you know, to the best of our ability. MR. CUDDY: I mean again, would you please so we have a special date and we know when we're coming. CHAIRMAN GOEHRINGER: Sure. And you know, you certainly don't have to hang around tonight if you don't want to. I don't mean that in a trite sense. You can call us tomorrow, and we'd certainly be aware of that issue, alright. MR. CUDDY: But what I'm saying is, is the Board in a position now to say that we're going to do something, next week or another week? CHAIRMAN GOEHRINGER: No, it's going to be at the next hearing. Notice which would be October 15th. MEMBER DINIZIO: It seems that's a pretty long time. CHAIRMAN GOEHRINGER: We'd get the next meeting. MEMBER DINIZIO: Yeah, but I mean the gentleman could be well tomorrow. We could do this next week. Page 4 - Special Meeting/Public Hearing September 30, 1998 - Board of Appeals CHAIRMAN GOEHRINGER: Bearing in mind what he has and what he's suffering from, and I don't want to get involved in that situation, he could be out a week, OK, which would mean that we would then have to have another meeting next week at' the same time. I suggest that we very simply just put it on for the 15th and put it to bed at that particular time. MEMBER COLLINS: We also want our Fishers Island member to come over here when we mCHAIRMAN GOEHRINGER: Yes. The other issue is that, you know, that I in - all due respects to the Building Department - understand these things, these things happen. I think that there . was a fluke on their part where one member thought that the other person was going to come to the hearing, and that's basically what happened. As you know, I hate to use this phrase and I've only used it twice in 18 years, but we do have power to subpoena, and if Mr.. Dinizio feels that it is of importance this is a democratic Board, and we'll vote on it. But, you know, there are other people who want to speak. Thank you. Anybody else want to speak regarding this? COUNCILWOMAN ALICE HUSSIE: So, I'll have to assume that your keeping the hearing open? CHAIRMAN GOEHRINGER: At this particular point we haven't really voted on that situation. I think there was a feeling to close the hearing, OK. COUNCILWOMAN HUSSIE: That's why I asked the question. CHAIRMAN GOEHRINGER: And I have to tell you that I have great feelings for these Board Members, we work very closely and a I would be so inclined to permit this to stay ' open until October 15th. I have no idea if I have the vote to do so, but we'll see. So Jim why don't you make the motion. MEMBER DINIZIO: No, I don't want to make a motion. I would like to assure this gentleman that this gentleman will show up at the next meeting. To me that's the utmost - CHAIRMAN GOEHRINGER: That's tantamount, yes. MEMBER DINIZIO: You know, whether it has to be him or anybody from doing this, I'm not so sure. CHAIRMAN GOEHRINGER: No, he isn't - MEMBER DINIZIO: But if we're going to subpoena somebody then that's the gentleman that we subpoena. How do we go about doing that? CHAIRMAN GOEHRINGER: The Town Attorney will do it. Page 5 - Special Meeting/Public Hearing September 30, 1998 - Board of Appeals SECRETARY KOWALSKI: We can do it by resolution. CHAIRMAN GOEHRINGER: Yeah. MEMBER DINIZIO: Resolution. CHAIRMAN GOEHRINGER: Well, you know, I don't think that's of necessity at this point as long as he tells us that he is going to show up. MEMBER DINIZIO: Well, I've got to tell you though, Jerry, I mean, because the record is full of .indecisions on their part for the past, you know, six months since that because noone seems to want to make a decision on this. So, I mean, my purpose is that, put the thing to bed, you know, and grant it if measures have to be taken today. Now is the time to take these measures. You know, no one, knows for sure but we need to be sure that we can employ people and that Mr. Rosen hired people to come here and represent him that you know, as a town, you know, and trying to run an organization. You know, have some information for them. I mean, I cannot make a decision unless I know how it came about and if I can't, you know, even though I won't say how I feel, personally I want to say, it looks to me in the record that there's some real hemming and hawing going on. That , there's a person who doesn't want to make a decision and doesn't want to stand by I need to speak to that person. I want to know, I want to understand how he came to this point so that we can make a decision. If I have to make a motion to subpoena him, then that's my motion. MEMBER HORNING: Are you making such a motion? MEMBER DINIZIO: Yes. MEMBER HORNING: I'll second it. CHAIRMAN GOEHRINGER: All in favor? BOARD MEMBERS: AyeS. SECRETARY KOWALSKI: Is anyone opposed? MEMBER COLLINS: Opposed? I mean, it can rather suddenly. CHAIRMAN GOEHRINGER: Yes, I tend to move motions rather fast and I apologize. MEMBER COLLINS: I guess I would vote on it. I'm not sure I care for the because procedurally, OK, I vote on it. SECRETARY KOWALSKI: Chairman voted aye, also? Page 6 - Special Meeting/Public Hearing September 30, 1998 - Board of Appeals CHAIRMAN GOEHRINGER: Yes. MEMBER COLLINS: You're adjourning the hearing with a date. CHAIRMAN GOEHRINGER: Well now we have to make a motion for that and I suggest that we do it on October 15th, which is the regular meeting date and we'll adjust the time accordingly and at the same time I just wanted to mention the other thing. Well yes, because you already advertised it, did you not? SECRETARY KOWALSKI: Well the time, the first hearing is at 6:30 and the last hearing is scheduled for 8:35. I don't know if Mr. Fish will be here that late. MEMBER DINIZIO: I'm concerned about George. CHAIRMAN GOEHRINGER: George is staying overnight. MEMBER DINIZIO: You're staying overnight? Oh. SECRETARY KOWALSKI: What time would you like on that? MR. CUDDY: I don't know, I'll discuss that with you and the Board, just set a date. SECRETARY KOWALSKI: It would be at 6:30 or after, right. CHAIRMAN GOEHRINGER: Yes. We will discuss it. SECRETARY KOWALSKI: Is it possible that it would be earlier, say at 6:00 o'clock? CHAIRMAN: Yes, that's possible. It depends. SECRETARY: So in that motion are we saying after 5:30? CHAIRMAN: No, no. Just say from 6:00 p.m. CHAIRMAN GOEHRINGER: So, you're making that motion? MEMBER DINIZIO: Yes. CHAIRMAN GOEHRINGER: I'll second that. All in favor? BOARD MEMBERS: Ayes. CHAIRMAN GOEHRINGER: OK, so at this particular point we've made a resolution recessing the hearing for October 15th. We thank you again, ladies and gentlemen for coming here. See Minutes for official Resolution and vote. Page 7 - Special Meeting/Public Hearing September 30, 1998 - Board of Appeals