The Board of Standards and Appeals has voted 4-0 to allow a 13-foot tall cell tower atop a residence at 53-20 72nd Place in Maspeth despite the unanimous rejection by Queens Community Board 5 and the Borough President.
"This sets a very bad precedent for residential communities in the City of New York," JPCA Board Member Manny Caruana stated. "Your property values and quality-of-life can plummet overnight when a company decides to build one of these things next door to you."
The vote came after 2 public hearings at the BSA where opposition from elected officials and the public was also unanimous.
Joseph Wroblewski, owner of Frank's Deli next door, signed an agreement with Omnipoint Communications in 2007 to erect the cell tower on his property. After a sustained community outcry, Wroblewski stated that he regretted the decision, but it was too late for him to renege on the agreement.
The original height of the tower was to be 25 feet, but it was scaled back at the request of the BSA.
Below is the text of the BSA decision:
MEETING OF: December 16, 2008
CALENDAR NO: 205-07-BZ
PREMISES: 53-20 72nd Place, Queens
Block 2506, Lot 52
ACTION OF THE BOARD: Application granted on condition.
THE VOTE TO GRANT:
Affirmative: Chair Srinivasan, Vice Chair Collins, Commissioner Ottley-Brown and Commissioner Montanez ----------------------------------4
Absent: Commissioner Hinkos-----1
WHEREAS, the decision of the Queens Borough Commissioner, dated February 20, 2008, acting on Department of Buildings Application No. 402456454, reads in pertinent part:
"Proposed monopole (Use Group 6) is contrary to ZR 22-00 and therefore not allowable within R4-1 district. Refer to the Board of Standards and Appeals for review pursuant to Section 73-30 of the NYC Zoning Resolution," and
WHEREAS, this is an application under ZR 73-30 and 73-03, to permit, within an R4-1 district, the proposed construction of a telecommunications pole (non-accessory radio tower) for public utility wireless communications, which is contrary to ZR 22-00; and
WHEREAS, a public hearing was held on this application on January 29, 2008, after due notice by publication in The City Record, with continued hearings on April 15, 2008, June 17, 2008, August 19, 2008, and November 18, 2008, and then to decision on December 16, 2008; and
WHEREAS, the Community Board 5, Queens, recommends disapproval of this application; and
WHEREAS, certain elected officials, including Congressman Joseph Crowley, Council Member Dennis Gallagher, State Senator Serphin Maltese, Assembly Member Margaret Markey, and Queens Borough President Helen Marshall provided testimony in opposition to this application; and
WHEREAS, the Middle Village-Maspeth Civic Association and the Juniper Park Civic Association also provided testimony in opposition to this application; and
WHEREAS, a number of local residents testified in opposition to this application, citing concerns with aesthetics and health; and
WHEREAS, the premises surrounding this area had site and neighborhood examinations by Chair Srinivasan, Commissioner Hinkson, Commissioner Montanez, and Commissioner Ottley-Brown; and
WHEREAS, the proposed telecommunications pole will be located on a site with an existing two-story building; and
WHEREAS, the applicant states that the proposed telecommunications pole will consist of a 13'-0" high monopole mounted on the roof of the existing building, resulting in a maximum height above ground level of 42'-6"; and
WHEREAS, the proposed telecommunications pole includes six small panel antennas located inside that are completely hidden from view and equipment cabinets located at its base; and
WHEREAS, the applicant states that the base of the telecommunications pole and the related equipment cabinets will be surrounded by a screened wall which is finished to match the existing building; and
WHEREAS, the applicant represents that the telecommunications facility is necessary to remedy a significant gap in reliable service in the vicinity of the site caused by a lack of coverage and capacity; and
WHEREAS, at hearing, the Board asked the applicant to respond to a "call test" conducted by a number of community residents, from which they concluded that there is adequate cellular reception in the subject area and that therefore the telecommunications pole is unnecessary; and
WHEREAS, in response, the applicant cited AT&T Wireless Serv. Of Cal., LLC v. City of Carlsbad, 308 F. Supp.2d 1148, 1155-56 (S.D. Cal. 2003) and Nextel Comm. Of the Mid-Atlantic, Inc. v. Town of Sudbury, 2003 WL 543383 (D. Mass. Feb. 26, 2003), and submitted an affidavit from a radio frequency engineer, standing for the proposition that community residents' anecdotal call tests are not construed to be a valid assessment of wireless network coverage and cannot be utilized to assess the true state of the wireless network; and
WHEREAS, pursuant to ZR 73-30, the Board may grant a special permit for a non-accessory radio tower such as the proposed telecommunications pole, provided it finds, "that the proposed location, design, and method of operation of such tower will not have a detrimental effect on the privacy, quiet, light and air of the neighborhood;" and
WHEREAS, the applicant represents that the pole has been designed and sited to minimize adverse effects on the environment and adjacent residents; that the construction and operation of the pole will comply with all applicable laws, that no noise or smoke, odor or dust will be emitted; and that no adverse traffic impacts are anticipated; and
WHEREAS, the applicant further represents that the height of the pole is the minimum necessary to provide the required wireless coverage; and
WHEREAS, the applicant initially sought to install a 25-foot high telecommunications pole, resulting in a maximum height above ground level of 54'-6", with a base diameter of 36 inches; and
WHEREAS, in addition, the proposed telecommunications facility was initially designed to resemble a flagpole, with the American flag that would be illuminated at night; and
WHEREAS, in response to concerns raised by the community, at hearing the Board requested that the applicant reduce the height and width of the proposed telecommunications pole and eliminate the flag and the proposed lighting; and
WHEREAS, in response, the applicant submitted revised plans reflecting a reduction in the height of the telecommunications pole from 25 feet to 13 feet, a reduction in the base diameter from 36 inches to 32 inches, and the elimination of the flag and the proposed lighting; and
WHEREAS, based upon its review of evidence in the record, the Board finds that the proposed pole and related equipment will be located, designed, and operated so that there will be no detrimental effect on the privacy, quiet, light, and air of the neighborhood; and
WHEREAS, therefore, the Board finds that the subject application meets the findings set forth at ZR 73-30; and
WHEREAS, the Board further finds that the subject use will not alter the essential character of the surrounding neighborhood nor will it impair future use and development of the surrounding area; and
WHEREAS, the proposed project will not interfere with any pending public improvement project; and
WHEREAS, the Board finds that, under the conditions and safeguards imposed, any hazard or disadvantage to the community at large due to the proposed special permit use is outweighed by the advantages to be derived by the community; and
WHEREAS, therefore, the Board finds that the application meets the general findings required for special permits set forth at ZR 73-03; and
WHEREAS, the project is classified as a Type I action pursuant to 6NYCRR, Part 617.4; and
WHEREAS, the Board has conducted an environmental review of the proposed action and has documents relevant information about the project in the Final Environmental Assessment Statement (EAS) CEQR No. 08-BSA-015Q, dated August 20, 2007; and
WHEREAS, the EAS documents show that the project as proposed would not have significant adverse impacts on Land Use, Zoning, and Public Policy, Socioeconomic Conditions; Community Facilities and Services, Open Space; Shadows; Historic Resources; Urban Design and Visual Resources; Neighborhood Character; Natural Resources; Waterfront Revitalization Program; Infrastructure; Hazardous Materials; Solid Waste and Sanitation Services; Energy; Traffic and Parking; Transit and Pedestrians; Air Quality; Noise; and Public Health; and
WHEREAS, no other significant effects upon the environment that would require an Environmental Impact Statement are foreseeable; and
Therefore it is resolved that the Board of Standards and Appeals issues a Type 1 negative declaration prepared in accordance with Article 8 of the New York State Environmental Conservation Law and 6NYCRR part 617, the Rules of Procedure for City Environmental Quality Review and Executive Order No. 91 of 1977, as amended, and makes the required findings and grants a special permit under ZR 73-03 and 73-30 to permit, within an R4-1 zoning district, the proposed construction of a 13'-0" telecommunications pole (non-accessory radio tower) for public utility wireless communications, to be mounted onto the roof of an existing two-story building for a maximum height of 42'-6" above ground level, and a base diameter of 32 inches, which is contrary to ZR 22-00, on condition that all work shall substantially conform to drawings as they apply to the objection above noted, filed with this application marked "Received December 2, 2008" ‒ (4) sheets; and on further condition;
THAT this approval is limited to the relief granted by the Board in response to specifically cited and filed DOB/other jurisdiction objection(s) only;
THAT the approved plans shall be considered approved only for the portions related to the specific relief granted; and
THAT the Department of Buildings must ensure compliance with all other applicable provisions of the Zoning Resolution, the Administrative Code, and any other relevant laws under its jurisdiction irrespective of plan(s) and/or configuration(s) not related to the relief granted.
Adopted by the Board of Standards and Appeals, December 16, 2008.