ZONING BOARD OF APPEALS MEETING: OCTOBER 18, Chairman Marx, Messrs Burke, Carpaneto, Wohlberg, Guyot and Ms. Burpee

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1 914) Telephone FAX (914) ZONING DEPARTMENT TOWN HOUSE ANNEX 337 ROUTE 202 SOMERS, NY Paul I. Marx, Esq. Chairperson Thomas J. Burke, Esq. Ronald A. Carpaneto Victor J. Cannistra, CPA Linda R. Burpee, Esq. Clifford Wohlberg Arnold F. Guyot ZONING BOARD OF APPEALS MEETING: OCTOBER 18, 2011 Present: Chairman Marx, Messrs Burke, Carpaneto, Wohlberg, Guyot and Ms. Burpee Absent: Mr. Cannistra Also Present: Efrem Citarella, Building Inspector, Sabrina Charney-Hull, Town Planner, Mike Musso, Consulting Engineer, HDR, Stacy Calta, Landscape Architect, HDR, Teresa Commisso, ZBA Secretary and Interested Citizens.

2 The monthly Zoning Board of Appeals meeting commenced at 7:30 p.m. and Chairman Marx began the meeting with the Pledge of Allegiance. Upon consulting with Attorney Gaudioso, Chairman Marx advised the public that the application of Homeland Towers, LLC and New Cingular Wireless PCS, LLC (AT&T) was being deferred and indicated that the first item to be heard on the agenda was the application of Ms. Dorina Tiso. DORINO TISO BZ08A/ Carryover. An Application for the renewal of a Special Exception Use Permit for an existing accessory apartment in a single family dwelling in an R-40 Residential Zoning District at 8 Cornelius Lane, Baldwin Place. The property is shown on the Town Tax Map as Section: 5.17, Block: 2, Lot: 5. RE: Sec. Sched Ms. Dorina Tiso approached the podium and Chairman Marx noted that her application had been carried over since the August meeting since the applicant could not attend the prior meetings. He further indicated that a Special Exception Use Permit was previously issued by the Zoning Board of Appeals in 2004 and that the applicant was before the Board for her renewal. He acknowledged receipt of the necessary affidavits required by the applicant. Further discussion revealed that the applicant s son is currently occupying the accessory apartment. The Building Inspector

3 confirmed that he had conducted an inspection of the premises and that there were no violations. As there were no further questions by the Board, Chairman Marx asked for public comment. There being no response, the Chairman asked for a motion with respect to the type application. Mr. Burke made a motion for a Type II Action and Mr. Wohlberg seconded the motion. A vote was then taken by the Board as follows POLL OF THE BOARD Mr. Carpaneto Ms. Burpee Mr. Burke Mr. Wohlberg Mr. Guyot Chairman Marx Chairman Marx asked for a motion with respect to the renewal of the Special Exception Use Permit for an accessory apartment at the premises subject to all of the provisions of the Town Code. A motion was made by Mr. Wohlberg and seconded by Mr. Carpaneto. A vote was then taken by the Board as follows

4 POLL OF THE BOARD Mr. Burke Ms. Burpee Mr. Carpaneto Mr. Wohlberg Mr. Guyot Chairman Marx The Application for the renewal of the Special Exception Use Permit was granted. Chairman Marx announced the next item to be heard was the application of Richard and Joanna Nash. JOANNA AND RICHARD NASH BZ10A/ New. An Application for a Special Exception Use Permit to construct an accessory apartment within an existing accessory building in an R-80 Residential Zoning District at 5 Two Penny Lane, Katonah. The property is shown on the Town Tax Map as Section: 27.10, Block: 1, Lot: RE: Sec. Sched Richard and Joanna Nash approached the podium and the Chairman noted on the record, a correction to reflect that the application was to construct an accessory apartment in an existing accessory building, not within a single family dwelling.

5 Chairman Marx discussed the plans that were submitted by the applicant for clarification purposes. Mrs. Nash advised the Board that the proposed accessory apartment will be occupied by her elderly mother, who currently resides on the property. She also indicated that her mother s current home is too large for her to live in and maintain. Chairman Marx reviewed the plot plan of the property and described all of the existing buildings, also noting the location of the existing accessory building in relation to the main dwelling. Mr. Guyot asked for further clarification with respect to the location of the main dwelling and the accessory building. Mr. Burke questioned a prior application that was before the Zoning Board previously and asked the applicant to explain the nature of that application. Mr. Nash explained that it was an application for a lot line change. Chairman Marx acknowledged receipt of the signed affidavits which are required by the applicant. There being no further questions by the Board or comments forthcoming by the public, the Chairman asked for a motion with respect to the type application. A motion was made by Mr. Carpaneto for a Type II Action and seconded by Mr. Burke.

6 A vote was then taken by the Board as follows POLL OF THE BOARD Mr. Carpaneto Ms. Burpee Mr. Burke Mr. Wohlberg Mr. Guyot Chairman Marx Chairman Marx asked for a motion with respect to the application to grant a Special Exception Use Permit for the construction of an apartment to be occupied by Mrs. Nash mother in accordance with the plans submitted on this date. Mr. Carpaneto made a motion to approve the application and Mr. Wohlberg seconded the motion. A vote was then taken by the Board as follows POLL OF THE BOARD

7 Mr. Burke Ms. Burpee Mr. Carpaneto Mr. Wohlberg Mr. Guyot Chairman Marx The application for the Special Exception Use Permit was granted. The Building Inspector requested a memorandum. Chairman Marx announced the next item on the agenda was the application of Homeland Towers, LLC and New Cingular Wireless PCS, LLC (AT&T). HOMELAND TOWERS, LLC & NEW CINGULAR WIRELESS PCS, LLC (AT&T) BZ11A/ An Application for a Special Use Permit and Area Variances for location of a wireless telecommunications facility premises in an R-120 Residential Zoning District at 2580 Route 35, Somers. The property is shown on the Town Tax Map as Section: 37.13, Block: 2, Lot: 3. RE: Sec. Sched and Chairman Marx advised Attorney Gaudioso that he was not present for the previous Zoning Board meeting, but indicated that discussion were held at length with respect to the idea of possibly moving the monopole which the Board ultimately declined. He also informed him of the discussion held regarding the access roadway which was deferred subsequent to site plan approval as well as further discussion held

8 regarding viewpoint 4. In addition, he noted the discussion about a possible planter being placed in that area. He informed Attorney Gaudioso that his hope was to be able to resolve these issues so that the Board could proceed with having a vote on the significance and possible action on the resolution with relevant conditions. Chairman Marx clarified the conditions being the payment of any outstanding escrow or consultant fees and the applicant having cooperation with the Planning Board with respect to possible additional screening at the access drive. Attorney Gaudioso explained that the applicant had recently submitted revised materials primarily in response to the Town Engineer s comments as part of the site plan, the SWIPP and the mitigation report. He further explained that a change was made on the site plan with respect to viewpoint 4. In particular, the previously proposed chain link fence with vinyl slats was changed to a board on board wood fence to match the fence that was recommended and approved by the Architectural Review Board at the Amato property. He noted that in working with Ms. Calta from HDR, they also proposed two planters consisting of a similar wooden material at a height of three feet to be placed directly in front of the compound. He described the planter to be twenty feet long by ten feet wide and three feet deep, which would contain seven blue Junipers at four feet high at time of planting. He also explained that they would be at or above the height of the fence. The second planter would be five foot

9 wide and ten feet in length to be placed at the other part of the compound in an effort to screen the electrical utilities. Attorney Gaudioso said that viewpoint 4 or similar views to viewpoint 4 are approximately sixty to eighty feet in length. He then noted that Ms. Calta had estimated that visibility would be approximately two hundred feet. He advised the Board that since the new plantings were added, the ultimate visibility as you drive along Route 35 at 35 miles per hour is limited to one hundred and twenty-one feet. He clarified the time to be about one second for viewpoint 4, and approximately one to three seconds for the cone of visibility. The applicant also submitted a letter to the Zoning Board from Sabre Industries confirming the fall zone. Attorney Gaudioso noted that the Planning Board had recommended a possible extension and the applicant has agreed to same. He confirmed that the fall zone would be on the property even with the extension of the pole. A letter was submitted from Sabre recommending Thunder Gray as a color for the pole, having a dull matte finish. Mr. Carpaneto questioned the feasibility of making the tree appear more irregular with respect to the shape. Attorney Gaudioso explained that he would work with the manufacturer in an attempt to maximize the length of the branches located at the bottom of the tree. Attorney Gaudioso opined that all of the issues have been addressed throughout the process and the final issue was in relation to the D.O.T. Permit. He indicated that the applicant submitted reports from their engineer claiming that the site lines are better at the new access drive location. He stated that the access drive curb cut is dictated by the D.O.T. requirements, which dictates the width of the access drive coming in. He explained that the applicant would be willing to agree to submit

10 the D.O.T. Permit with a plan that includes a code compliant plan, plus an alternative having a narrower access drive which will result in having a narrower apron, allowing the applicant to add some additional plantings. He noted that they would be willing to show the alternative plan to the Planning Board as a sketch and as a condition of approval prior to starting construction to have a D.O.T. Permit. He also indicated that the D.O.T. may not approve the narrower access drive and may take a long time to approve the as of right access drive. After further discussion, Mr. Burke questioned Attorney Gaudioso on the maximum height of the proposed plantings of Junipers. Attorney Gaudioso was not certain of the maximum height however indicated the growth rate to be approximately one foot per year. Mr. Burke asked if the depth of the planting boxes would support the root system as the plantings matured. Attorney Gaudioso responded that it was his belief that it would, and also felt that Ms. Calta would agree with him. Mr. Burke suggested that it be included as a specific condition and as part of the maintenance plan that if the plantings in the planter box did not survive, they would be replaced by the applicant. Attorney Gaudioso said that if they could reach an agreement on what was discussed with respect to the D.O.T. process and finish up at this meeting, he considered that to be a fair request of the Board.

11 Chairman Marx clarified with Attorney Gaudioso that one planter box would be three feet in depth and contain seven Junipers four feet in height at planting with a growth rate anticipated at one foot per year as a best case scenario and a maximum growth of fifteen feet. The other planter box will also be three feet in depth and will contain two Junipers. Chairman Marx asked Attorney Gaudioso to describe the variances that are being sought by the applicant. Attorney Gaudioso explained that the applicant is seeking a Special Permit for the wireless facility. He indicated the additional area variances being sought as follows; a 13 front yard variance for the equipment; a front yard variance for the pole; an 80.5 rear yard variance for the pole; an 18 height variance for the pole; and a 296 variance for the setback from the closest dwelling. As there were no further questions or comments by the Board, the Engineering Consultant, Mike Musso and Landscape Architect, Stacy Calta approached the podium to discuss some of the remaining issues. He gave a brief overview of the October 11, 2011 submittal from the applicant. He opined that the applicant was responsive in putting together a response to the comments letter. He indicated that the applicant had addressed the vast majority of the comments from the HDR Report relating to landscaping visual, and maintenance of the facility. Mr. Musso further explained that HDR is putting together a budget status update on where they stand with their reviews. In addition, there is an addendum memorandum which HDR is finalizing that will be forthcoming to the Zoning Board.

12 Overall, Mr. Musso did not see any compliance issues or anything lacking in quality or industry standards or what the Zoning Board and HDR has looked at in multiple municipalities. Ms. Calta advised the Board that she had reviewed the response to comments letter from Tectonic and had some minor comments. She spoke about the two trees which she felt would not survive construction and asked if the applicant could not save them, would their replacement plan consist of one to one or would they consider multiple trees in order to make up for losing a 36 diameter tree. Her other comment pertained to how the applicant derived at the number of 240 shrubs to be planted in that area. She further stated that if it was purely based on area, her number would be much higher than that. Ms. Calta noted that all other planting details with respect to the planting box issues have been resolved to their satisfaction. She said that the proposed plantings for the planter box are tolerant to deer, drought, wind, cold, slope and pollution and feels that they should do well. She explained that they generally grow between ten to twenty feet tall, whereas fifteen feet is the average height. She also noted that they grow between four and eight inches per year. Chairman Marx asked Attorney Gaudioso if he would respond to Ms. Calta s issues as noted. Attorney Gaudioso returned to the podium and explained that the applicant had no problem continuing to discuss the tree issue with Ms. Calta as part of the Planning Board process. His concern is that they will have to plant something that will need to grow in that space and indicated that this matter could be considered as part of the site plan approval process. In response to her concern of the 240 shrubs, he noted that it does not only cover the shrubs, but also the trees and

13 ground cover that they are proposing to plant in an effort to stabilize the soil. He reminded the Board that they are also adding 68 trees in addition to the 240 shrubs. Ms. Calta voiced her concern and questioned if D.E.P. will be satisfied with that number. After further discussion, Chairman Marx indicated that D.E.P. would certainly condition their approval on their requests of the applicant. As there was no further discussion by the Board and no comments forthcoming by the public, Chairman Marx indicated that the Board needs to address the type of application, the issue relative to significance, and the variances. He asked Attorney Gaudioso if he had any objection to the Board addressing those issues subject to preparation of a resolution for his signature at a later date. Attorney Gaudioso responded with no objection. Chairman Marx asked if any Board members were opposed to proceeding in said manner. As there were no objections by any Board members, the Chairman declared that the public hearing was closed on this application. Chairman Marx asked for a motion to declare this application as an unlisted action. A motion was made by Mr. Wohlberg and seconded by Mr. Burke. A vote was then taken by the Board as follows POLL OF THE BOARD

14 Mr. Carpaneo Ms. Burpee Mr. Burke Mr. Wohlberg Mr. Guyot Chairman Marx Chairman Marx then asked for a motion with respect to declaring this application to have negative significance for SEQRA purposes. A motion was made by Mr. Burke and seconded by Mr. Carpaneto. A vote was then taken by the Board as follows POLL OF THE BOARD Mr. Burke Ms. Burpee Mr. Carpaneto Mr. Wohlberg Mr. Guyot Chairman Marx Chairman Marx asked for a motion with respect to Homeland Towers, LLC and New Cingular Wireless PCS, LLC (AT&T) for the following variances for the construction of a wireless telecommunications facility at 2580 Route 35; 13 front yard variance for the accessory equipment compound; front yard variance for the pole; 80.5 rear yard variance for the pole; 18 height variance and a variance for 296 setback from the nearest dwelling.

15 A motion was made by Mr. Burke to approve the aforementioned variances and seconded by Mr. Carpaneto. Chairman Marx added certain modifications to approve the motion with the following conditions; 1) Subject to payment by the applicant of all outstanding and to be incurred consulting fees; 2) Construction and maintenance of the planters which were discussed including the continued care and replacement of trees if necessary; 3) Subject to the applicant agreeing to work with the Planning Board with respect to the possible reduction and width of the access drive apron if approved by the Department of Transportation to permit additional landscaping to be installed to further screen the facility; and 4) Subject to all of the provisions of the Town Code. A vote was then taken by the Board as follows POLL OF THE BOARD Mr. Carpaneto Ms. Burpee Mr. Burke Mr. Wohlberg Mr. Guyot Chairman Marx Chairman Marx asked for a motion to approve the Special Exception Use Permit for the erection of the wireless telecommunications facility in accordance with all of the plans previously submitted and reviewed by our Consultants and Town Planner and all modifications thereto. A motion was made by Mr. Carpaneto and seconded by Mr. Burke.

16 A vote was then taken by the Board as follows POLL OF THE BOARD Mr. Burke Ms. Burpee Mr. Carpaneto Mr. Wohlberg Mr. Guyot Chairman Marx The application was granted. Chairman Marx asked the Town Planner to prepare the Negative Declaration and Resolution for his review and signature. Mr. Burke thanked the Town Planner, Sabrina Charney-Hull for all of her input and for her suggestions and recommendations to this Board in connection with this application. He commended her for considering the best interests of the Town and thanked her on behalf of the Board. He also expressed his gratitude to Mr. Musso and Ms. Calta for their input and professional expertise.

17 OTHER BUSINESS: As the Board did not have the opportunity to fully review the September 20, 2011 meeting minutes, Chairman Marx deferred the approval of the September minutes to the November 15, 2011 monthly meeting. There being no further business, the meeting was adjourned at 8:30 p.m. Respectfully Submitted, Teresa Commisso ZBA Secretary APPROVED: Zoning Board of Appeals Meeting of: December 20, 2011