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HomeMy WebLinkAbout2022_11_09 Planning Board MinutesMINUTES OF THE REGULAR MEETING OF THE PLANNING BOARD OF THE TOWN OF MAMARONECK HELD IN THE SENIOR CENTER ON NOVEMBER 9, 2022 Present: Ralph Engel, Chairman, Edmund Papazian, Ron Mandel, Ira Block, John Cuddy, Sarah Dunn, Alternate Also Present: Robert Wasp, Town Engineer, Carol Murray, Assistant Civil Engineer, Anthony Oliveri, Town Consulting Engineer, Elizabeth Aitchison, Town Environmental Planner, Robin Nichinsky, Town Board Liaison, Lisa Hochman, Counsel to Planning Board, Francine M. Brill, Secretary Absent: Elizabeth Cooney CALL TO ORDER The meeting was a called to order at 7:32 P.M. and Mr. Engel welcomed everyone. Ms. Hochman asked if all documents to be discussed this evening had been posted on the website for more than 24 hours and whether this meeting and all public hearings to be conducted tonight had been duly noticed and whether all required referrals were made. Ms. Brill answered yes to all. MINUTES Motion: To adopt the draft minutes of October 12, 2022, as modified Moved by John Cuddy, seconded by Ira Block Action: Unanimously approved The items were taken out of order. 5. 1275 Boston Post Road - PETCO - Special Use Permit Extension - Public Hearing Edward Mitchell, from Nobile, Magarian & DiSalvo LLP, on behalf of the applicant, addressed the Board to request to extend their special use permit for another 2 years. He stated that there have been no changes to the business. It was noted that Mr. Polcari's email stated that there are no violations. Motion: To open the public hearing Moved by Ira Block, seconded by Ron Mandel Action: Unanimously approved There were no questions or comments from members of the public. Motion: To close the public hearing Moved by Ron Mandel, seconded by Ira Block Action: Unanimously approved Motion: To approve the draft resolution prepared by counsel, extending the special use permit 1 Moved by Ron Mandel, seconded by Ira Block Action: Unanimously approved RESOLUTION Extension of Special Use Permit PETCO - 1275 Boston Post Road Town of Mamaroneck, New York On motion of Ron Mandel, seconded by Ira Block, the application of PETCO Animal Supplies, Inc. (the "Applicant") to extend its special use permit was APPROVED by the Planning Board of the Town of Mamaroneck (the "Planning Board") upon the following resolution, which was adopted by a vote of 5 to 0, with no abstentions: WHEREAS, the Applicant submitted an application for an extension of a special use permit for use of the premises at 1265-1275 Boston Post Road and known on the Tax Assessment Map of the Town of Mamaroneck as Block 412, Lot 449 (the "Property") for the retail sale of small pets, pet food and pet supplies, as well as pet grooming, training and care, including limited veterinary services (the "PETCO Special Use Permit") ; and WHEREAS, Section 240-30.B of the Code of the Town of Mamaroneck (the "Town Code") lists "Veterinary Hospitals, boarding and care of small pets" as a special permit use in the B-R Zoning District; and WHEREAS, the PETCO Special Use Permit was last extended on December 9, 2020 and is set to expire on November 14, 2022; and WHEREAS, the Applicant has requested to extend the PETCO Special Use Permit upon the same terms and conditions; and WHEREAS, after compliance with notification procedures set forth in Chapter 144 of the Town Code, the Planning Board held a duly noticed public hearing as to this Application on November 9, 2022; and WHEREAS, the Building Inspector inspected the Property and issued a memo dated November 2, 2022 stating that the site was in compliance with the approved site plan and that there were no violations of Chapter 240 of the Town Code; and WHEREAS, this is a Type II action having no significant impact on the environmental pursuant to 6NYCRR§ 617 et seq. and, accordingly, no further action under SEQRA is required; and WHEREAS, the Planning Board has considered the application for extension of the PETCO Special Use Permit, the plans submitted by the Applicant, comments and responses to questions by the Applicant, the reports and comments of the consulting Engineer to the Town and heard any comments from any interested members of the public. NOW, THEREFORE, BE IT RESOLVED, that, in accordance with Section 240-62 of the Town Code, the Planning Board makes the following findings of fact, as limited by the conditions hereinafter set forth: 2 A. The proposed use as limited by the conditions set forth herein is in general harmony with the surrounding area and shall not adversely impact upon the adjacent properties due to traffic generated by said use or the access of traffic from said use onto or off of adjoining streets. B. The operations in connection with the Special Use Permit will be no more objectionable to nearby properties by reason of noise, fumes, vibrations, flashing of lights or other aspects than would be the operations of any other permitted use not requiring a Special Use Permit. C. The proposed Special Use Permit use will be in harmony with the general health, safety and welfare of the surrounding area by the nature of its particular location. It will not adversely impact upon surrounding properties or surrounding property values. D. But for the delay in submission of this extension application, the property subject to this Special Permit has no existing violation of the Town of Mamaroneck Zoning Ordinance. E. The applicant has represented that there has been no change in circumstances in the area, which would require the Planning Board to deny this request. BE IT FURTHER RESOLVED, that this Board APPROVES the application of the Applicant for the extension of its Special Use Permit for the retail sale of small pets, pet food and pet supplies, as well as pet grooming, pet training and care, including limited veterinarian services, subject to the following terms and conditions: 1. Veterinary services will be permitted but no surgeries will be performed on site. 2. There will be no boarding of animals on site. 3. Trash will be stored in the existing garbage enclosure, which will be refurbished to the satisfaction of the Town Building Inspector, and which will be kept closed and covered, except while actually being used by a person. 4. Deliveries and garbage pickups shall be limited as follows; Monday through Friday 8:00 a.m. — 6:00 p.m. and Saturday 9:00 a.m.- 6:00 p.m. 5. Deliveries shall be permitted to the front door only. 6. The hours of operation shall be limited as follows: 9:00 a.m. — 9:00 p.m. Monday through Saturday and 10:00 a.m. — 7:00 p.m. Sunday. 7 The fence enclosing the air conditioning unit shall remain self -closing and self -latching to ensure proper closure, to the satisfaction of the Town Building Inspector. 8. Sound baffling and screening shall remain around the air conditioning unit, to the satisfaction of the Town Building Inspector. 9. The noise of the air conditioning unit shall be no greater than 82 decibels. 3 10. This Special Use Permit extension shall expire on November 14, 2024. 11. This Special Use Permit is subject to termination requirements set forth in Section 240-64 and 240-65 and the use restrictions set forth in Section 240-30 of the Zoning Code of the Town of Mamaroneck. This decision is hereby certified as true and correct and shall be filed with the Town Clerk. 1. 18 Pryer Manor - Kevin Doherty — Subdivision — Consideration No one appeared on behalf of the applicant to address the Board. Mr. Wasp stated that they have hired a lawyer to research the easements in response to earlier questions by the Board. 2. 15 Holly Place - Dominick Marchese - Residential Site Plan - Consideration Mr. Cuddy recused himself and stepped down from the dais into the seats reserved for the public. Benedict Salanitro, the applicant's engineer and Frank Marsella, the applicant's architect, addressed the Board to explain changes to the proposed plans and stated that the development will be zoning compliant. Stormwater, drainage, erosion controls and potential flooding were discussed. Landscaping was discussed. Electricity and gas service was discussed. Rock removal was discussed. Motion: To set a public hearing for December 14, 2022 Moved by Ira Block, seconded by Edmund Papazian Action: Unanimously approved 3. 87 Colonial Avenue - Stephen Marsh - Residential Site Plan - Public Hearing Benedict Salanitro, the applicant's engineer, and Stephen Marsh, the applicant, addressed the Board and explained changes to the proposed plans. Motion: To open the public hearing Moved by Ira Block, seconded by Ron Mandel Action: Unanimously approved There were no questions or comments from members of the public. Ms. Brill stated that all required referrals were made. Tree protection was discussed. 4 Rock removal was discussed. The Board discussed the draft resolution prepared by counsel. Parking of construction vehicles was discussed. Motion: To close the public hearing Moved by Ron Mandel, seconded by Ira Block Action: Unanimously approved Motion: To approve the draft resolution prepared by counsel, as modified Moved by Edmund Papazian, seconded by Ron Mandel Action: Unanimously approved RESOLUTION Residential Site Plan Approval 87 Colonial Avenue Town of Mamaroneck, New York On motion of Ed Papazian, seconded by Ron Mandel, the site plan application of Stephen Marsh, as contract vendee, (the "Applicant") was APPROVED by the Planning Board of the Town of Mamaroneck (the "Planning Board") upon the following resolution, which was adopted by a vote of 5 to 0, with no abstentions: WHEREAS, the Applicant has applied for residential site plan approval to construct a single-family house (the "Application") at property located at 87 Colonial Avenue, Town of Mamaroneck, New York and known on the Tax Assessment Map of the Town of Mamaroneck as Section 1, Block 12, Lot 310 (the "Property"); and WHEREAS, the Applicant has applied for approval of a residential site plan pursuant to Chapter 178 of the Town of Mamaroneck Code (the "Residential Site Plan Law"); and WHEREAS, the Applicant has provided all of the information required by the Residential Site Plan Law and the Application was deemed by the Planning Board to be complete; and WHEREAS, on November 9, 2022, the Secretary of the Planning Board stated for the record that all required referrals were made in accordance with § 178-9 of the Residential Site Plan Law and the New York State General Municipal Law and no comments were received; and WHEREAS, the Town Engineer, the Town Building Inspector and AI Engineers, Inc., Dolph Rotfeld Engineering Division, (the "Town's Consulting Engineer") reviewed the following plans submitted in connection with this Application (hereinafter referred to as the "Plans"): • Plans entitled: "Residence for Marsh Development," prepared by Andrew Nuzzi Architects, LLC., last dated 6/13/2022 • SWPPP and Erosion and Sediment Control Plan, prepared by Benedict Salanitro, dated 8/31/2022, revised 10/19/2022 5 • Landscape Design Plan, prepared by Daniel Sherman, last dated 9/21/2022 • Property Survey, prepared by Richard J. Spinelli, dated 6/8/2022 WHEREAS, the Town Building Inspector reviewed the Plans and issued a memorandum, dated October 31, 2022 (the "Zoning Compliance Memo"), which stated: A review of the plans dated August 31, 2022 sheets ER-1 and ER-2 prepared by Benedict A. Salanitiro, P.E. for a proposed single- family dwelling at 87 Colonial Avenue was performed and it is my opinion that the proposed single- family dwelling is zoning compliant in an R-6 district"; and WHEREAS, pursuant to Chapter 234 of the Town Code, this matter was referred to the Town's Coastal Zone Management Commission (the "CZMC") for an advisory opinion as to whether the proposal is consistent with the policies of the Local Waterfront Revitalization Program, but no opinion was received by the Planning Board from the CZMC; and WHEREAS, after compliance with the notification procedures set forth in Chapter 144 of the Town Code, the Planning Board held a duly noticed public hearing relating to this Application on November 9, 2022; and WHEREAS, this is a Type II action having no significant impact on the environment pursuant to the New York State Environmental Quality Review Act, 6 NYCRR§ 617 et seq. and §92-8.A(22) of the Town of Mamaroneck Environmental Quality Review Law and, accordingly, no further environmental review is required; and WHEREAS, the Planning Board has considered the Application, comments and responses to questions by the Applicant and its representatives, the Zoning Compliance Memo, the reports and comments of the Town's Consulting Engineer, and heard and considered any comments from interested members of the public; and WHEREAS, the Planning Board finds that the Application conforms to the standards established by §178-12 of the Residential Site Plan Law. NOW, THEREFORE, BE IT RESOLVED, that the Planning Board APPROVES the Application as reflected in the hereinabove specified Plans submitted in connection with the Application, subject to the following terms and conditions: Conditions: 1. All site work shall be in accordance with the latest revised Plans, as hereinabove referenced, as conditioned and/or modified in accordance with the direction of the Planning Board, which modifications were agreed to by the Applicant. 2. The Applicant shall submit the final plans to the Town Building Inspector and the Town Engineer for review and approval prior to the granting of any building permits. 3. Any and all applicable county, state and regional permits shall be obtained prior to the issuance of any Town permits. 6 4. Pursuant to Section 178-16 of the Town Code, in the event that subsequent events may require any modification to the site plan approved by this resolution, a determination shall be made by the Town Engineer as to whether the modification is material and thus should be further considered by the Planning Board. 5. The Applicant will arrange a pre -construction meeting with the Town Building Inspector and the Town Engineer prior to any site disturbance. The Applicant shall submit a schedule for all earthwork and land disturbance to the Town Building Inspector for approval at least seventy-two (72) hours (not including weekends and holidays) prior to commencing site work. The Applicant shall notify the Town Building Inspector and Town Engineer at least seventy-two (72) hours (not including weekends and holidays) in advance of any site disturbance to inspect the installation of erosion and sediment control devices and any other measures intended to mitigate construction impacts. 6. Work conducted under Town permits shall be open to inspection at any time, including weekends and holidays, by the Town of Mamaroneck Building Inspector, the Town Engineer, the Town's Consulting Engineer, the Town's Environmental Planner and/or their designated represent- tative(s). 7. In accordance with Section 178-17.A of the Residential Site Plan Law, no building permit shall be issued until a site plan signed by the Town Engineer is delivered to the Town Building Inspector. 8. Prior to the issuance of a building permit, the Applicant shall demonstrate, to the satisfaction of the Town Engineer, in consultation with the Town Building Inspector, that all proposed exterior HVAC equipment and any generator conform to modern industry standards for sound emission. 9. Prior to the issuance of a Certificate of Occupancy or a Certificate of Completion, the Applicant shall deliver to the Town Building Department, in a form and size acceptable to the Town Engineer, on paper and digitally, an "as built" survey, signed and sealed by a New York State licensed surveyor, including, but not limited to, all constructed improvements, site utilities and stormwater management structures. 10. In accordance with Section 178-17.B of the Residential Site Plan Law, no Certificate of Occupancy or Certificate of Completion shall be issued until all of the required conditions of this approval have been met. 11. The term "Applicant" is used herein with the intent to impose a future obligation or condition on the Applicant, as defined above, and on any successors or assignees in/of an ownership interest of the Property or any portion thereof. 12. All tree removal, protection and landscape plantings shall be in compliance with the approved Plans and Chapter 207 of the Town Code (Trees), to the satisfaction of the Town Environmental Planner. 13. The Applicant shall address all outstanding technical review comments to the satisfaction of the Town Engineer prior to the issuance of any Town permits. 7 14. In accordance with Section 178-14 of the Town Code, the Applicant shall be required to pay to the Town its actual cost of technical reviews, including, without limitation, consulting fees, prior to the issuance of any Town permits. 15. Subject to any applicable moratorium, if there is to be any mechanical rock removal on the Property, the Applicant shall comply with Section 106-58.1 of the Code of the Town of Mamaroneck (the Town's mechanical rock removal law) and shall provide a complete copy of the survey required by that Section to the owner(s) of the applicable surveyed lot(s) at least ten (10) days before the mechanical rock removal commences. 16. With respect to the importation of fill material and land grading, if any, at least seven (7) days prior to the importation of any such material, the Applicant shall provide the Town Engineer with the source of all such material, to the satisfaction of the Town Engineer. (a) Prior to the issuance of a Certificate of Occupancy or Certificate of Completion, the Appli- cant shall provide the Town Engineer with trucking manifests for all fill material imported to the site. (b) All imported fill material shall consist of natural rock and/or of clean soils meeting the soil constituent concentrations for "Unrestricted Use" as defined by the NYSDEC DER-10 technical memorandum. 17. To avoid exacerbating congestion during school drop off and pickup, on days when school is in session, deliveries shall be prohibited between the hours of 8:00 to 9:00 A.M. and 2:30 to 3:30 P.M., as well as such other periods of time (such as, without limitation, on short school days) as will minimize interference of children arriving and departing from Murray Avenue School, to the satisfaction of the Town Building Inspector. This decision is hereby certified as true and correct and shall be filed with the Town Clerk. 4. 4 Burton Road - Frank Marsella - Residential Site Plan - Public Hearing Benedict Salanitro, the applicant's engineer, and Frank Marsella, the owner, addressed the Board and explained changes to the proposed plans. Curb cuts were discussed. Drainage and catch basins and highway permits were discussed. Ms. Brill stated that all required referrals were made. Motion: To open the public hearing Moved by Edmund Papazian, seconded by Ira Block Action: Unanimously approved There were no questions or comments from members of the public. 8 The Board discussed the proposed plans. Tree removal and tree protection were discussed. The height of the proposed house was discussed. Motion: To close the public hearing Moved by Ron Mandel, seconded by Ira Block Action: Unanimously approved Motion: To approve the draft resolution prepared by counsel, as modified Moved by Ron Mandel, seconded by John Cuddy Action: Unanimously approved RESOLUTION Residential Site Plan Approval 4 Burton Road Town of Mamaroneck, New York On motion of Ron Mandel, seconded by John Cuddy, the site plan application of Frank Marsella (the "Applicant") was APPROVED by the Planning Board of the Town of Mamaroneck (the "Board") upon the following resolution, which was adopted by a vote of 5 to 0, with no abstentions: WHEREAS, the Applicant has applied for residential site plan approval to construct a single-family house (the "Application") at property located at 4 Burton Road, Town of Mamaroneck, New York and known on the Tax Assessment Map of the Town of Mamaroneck as Section 4, Block 7, Lot 347.1 (the "Property"); and WHEREAS, the Applicant has applied for approval of a residential site plan pursuant to Chapter 178 of the Town of Mamaroneck Code (the "Residential Site Plan Law"); and WHEREAS, the Applicant has provided all of the information required by the Residential Site Plan Law and the Application was deemed by the Board to be complete; and WHEREAS, on November 9, 2022, the Secretary of the Planning Board stated for the record that all required referrals were made in accordance with § 178-9 of the Residential Site Plan Law and the New York State General Municipal Law and no comments were received; and WHEREAS, the Town Engineer, the Town Building Inspector and AI Engineers, Inc., Dolph Rotfeld Engineering Division, (the "Town's Consulting Engineer") reviewed the following plans submitted in connection with this Application (hereinafter referred to as the "Plans"): • Plans entitled: "New Residence @ 4 Burton Road", prepared by Marsella Architects, P.C., last dated 9/23/2022 • SWPPP and Erosion and Sediment Control Plan, prepared by Benedict Salanitro, dated 9/23/2022, last revised 10/24/2022 9 • Landscape Design Plan, prepared by Daniel Sherman, Marsella Architects, last dated 10/24/2022 • Property Survey, prepared by Richard J. Spinelli, dated 6/19/2004 • Property survey prepared by Neville Ramsay, Not Dated WHEREAS, the Town Building Inspector reviewed the Plans and issued a memorandum, dated October 31, 2022 (the "Zoning Compliance Memo"), which stated: After a review of the plans dated September 23, 2022, for a proposed house at 4 Burton Road it is my opinion that the proposed single- family dwelling is zoning compliant in an R-7.5 district"; and WHEREAS, pursuant to Chapter 234 of the Town Code, this matter was referred to the Town's Coastal Zone Management Commission (the "CZMC") for an advisory opinion as to whether the proposal is consistent with the policies of the Local Waterfront Revitalization Program, but no opinion was received by the Planning Board from the CZMC; and WHEREAS, after compliance with notification procedures set forth in Chapter 144 of the Town Code, the Planning Board held a duly noticed public hearing for this Application on November 9, 2022; and WHEREAS, this is a Type II action having no significant impact on the environment pursuant to the New York State Environmental Quality Review Act, 6 NYCRR§ 617 et seq. and §92-8.A(22) of the Town of Mamaroneck Environmental Quality Review Law and, accordingly, no further environmental review is required; and WHEREAS, the Planning Board has considered the Application, comments and responses to questions by the Applicant and its representatives, the Zoning Compliance Letter, the reports and comments of the Town's Consulting Engineer, and heard and considered any comments from interested members of the public; and WHEREAS, the Board finds that the Application conforms to the standards established by § 178-12 of the Residential Site Plan Law. NOW, THEREFORE, BE IT RESOLVED, that the Planning Board APPROVES the Application as reflected in the hereinabove specified Plans submitted in connection with the Application, subject to the following terms and conditions: Conditions: 1. All site work shall be in accordance with the latest revised Plans, as hereinabove referenced, as conditioned and/or modified in accordance with the direction of the Planning Board, which modifications were agreed to by the Applicant. 2. The Applicant shall submit the final plans to the Town Building Inspector and the Town Engineer for review and approval prior to the granting of any building permits. 3. Any and all applicable county, state and regional permits shall be obtained prior to the issuance of any Town permits. 10 4. Pursuant to Section 178-16 of the Town Code, in the event that subsequent events may require any modification to the site plan approved by this resolution, a determination shall be made by the Town Engineer as to whether the modification is material and thus should be further considered by the Planning Board. 5. The Applicant will arrange a pre -construction meeting with the Town Building Inspector and the Town Engineer prior to any site disturbance. The Applicant shall submit a schedule for all earthwork and land disturbance to the Town Building Inspector for approval at least seventy-two (72) hours (not including weekends and holidays) prior to commencing site work. The Applicant shall notify the Town Building Inspector and Town Engineer at least seventy-two (72) hours (not including weekends and holidays) in advance of any site disturbance to inspect the installation of erosion and sediment control devices and any other measures intended to mitigate construction impacts. 6. Work conducted under Town permits shall be open to inspection at any time, including weekends and holidays, by the Town of Mamaroneck Building Inspector, the Town Engineer, the Town's Consulting Engineer, the Town's Environmental Planner and/or their designated represen- tative(s). 7. In accordance with Section 178-17.A of the Residential Site Plan Law, no building permit shall be issued until a site plan signed by the Town Engineer is delivered to the Town Building Inspector. 8. Prior to the issuance of a building permit, the Applicant shall demonstrate, to the satisfaction of the Town Engineer, in consultation with the Town Building Inspector, that all proposed exterior HVAC equipment and any generator conform to modern industry standards for sound emission. 9. Prior to the issuance of a Certificate of Occupancy or a Certificate of Completion, the Applicant shall deliver to the Town Building Department, in a form and size acceptable to the Town Engineer, on paper and digitally, an "as built" survey, signed and sealed by a New York State licensed surveyor, including, but not limited to, all constructed improvements, site utilities and stormwater management structures. 10. In accordance with Section 178-17.B of the Residential Site Plan Law, no Certificate of Occupancy or Certificate of Completion shall be issued until all of the required conditions of this approval have been met. 11. The term "Applicant" is used herein with the intent to impose a future obligation or condition on the Applicant, as defined above, and on any successors or assignees in/of an ownership interest of the Property or any portion thereof. 12. All tree removal, protection and landscape plantings shall be in compliance with the approved Plans and Chapter 207 of the Town Code (Trees), to the satisfaction of the Town Environmental Planner. 13. The Applicant shall address all outstanding technical review comments to the satisfaction of the Town Engineer prior to the issuance of any Town permits. 11 14. In accordance with Section 178-14 of the Town Code, the Applicant shall be required to pay to the Town its actual cost of technical reviews, including, without limitation, consulting fees, prior to the issuance of any Town permits. 15. Subject to any applicable moratorium, if there is to be any mechanical rock removal on the Property, the Applicant shall comply with Section 106-58.1 of the Code of the Town of Mamaroneck (the Town's mechanical rock removal law) and shall provide a complete copy of the survey required by that Section to the owner(s) of the applicable surveyed lot(s) at least ten (10) days before the mechanical rock removal commences. 16. With respect to the importation of fill material and land grading, if any, at least seven (7) days prior to the importation of any such material, the Applicant shall provide the Town Engineer with the source of all such material, to the satisfaction of the Town Engineer. (a) Prior to the issuance of a Certificate of Occupancy or Certificate of Completion, the Appli- cant shall provide the Town Engineer with trucking manifests for all fill material imported to the site. (b) All imported fill material shall consist of natural rock and/or of clean soils meeting the soil constituent concentrations for "Unrestricted Use" as defined by the NYSDEC DER-10 technical memorandum. This decision is hereby certified as true and correct and shall be filed with the Town Clerk. OLD BUSINESS The Board discussed the Town's proposed local law to update regulation of wireless telecommunication facilities. Mr. Engel asked all Planning Board members and alternates, and each member of the Planning Board's professional staff, to provide his or her comments as to the proposed law, and asked each member of the Planning Board and each alternate to provide his or her comments as to the two draft reports that had been circulated, and each such person stated his or her comments. Mr. Wasp explained the rationale for the proposed law and stated that Mr. Menkes was retained by the Town as a technical consultant. Ms. Hochman stated that she researched other municipal laws regulating wireless telecommunication facilities and she shared her observations of such laws in comparison to the Town's proposed law. Mr. Engel read into the record an email from Ms. Cooney regarding bonds, sureties and letters of credit. The size and appearance of 5G installations were discussed, including a reference to a recent New York Times article. 12 The fact that other technology may replace the need for such facilities was also discussed, including a reference to a recent section of the Wall Street Journal. The role of the Federal Communications Commission was discussed. The future of wireless technology was discussed. The Board discussed the draft report, dated 10/30/22, prepared and circulated by Ms. Hochman, and an alternative draft report, dated 11/3/22, which was prepared and circulated by Mr. Engel. Mr. Engel stated that the 11/3/22 draft report included substantially all the points raised in the 10/30/22 draft report, as well as others. Motion: To approve and adopt the Planning Board's report and recommendation regarding the proposed local law to update regulation of wireless telecommunication facilities, dated 11/3/22, as revised pursuant to discussion at the November 9th meeting of the Planning Board, and to ask Ms. Hochman to transmit such report to the Town Supervisor, the Town Board and the Town Administrator Moved by Ira Block, seconded by Edmund Papazian Action: Unanimously approved Planning Board Report and Recommendations Regarding Proposed Local Law to Regulate Wireless Telecommunications Facilities The Town Clerk of the Town of Mamaroneck (the "Town") sent an email to the Town Planning Board Secretary on October 4, 2022 (the "Referral Date"), stating that, at the Town Board ("TB") meeting held on October 3, 2022, the TB referred to the Planning Board ("PB") a proposed local law entitled: "Update in the Regulation of Wireless Telecommunications Facilities Law" (the "Proposed Law")1. Such referral is pursuant to Town Code Section 240-92, which requires the TB to refer any proposed amendment of Chapter 240 to the PB for a report thereon. According to Section 240-92.B, failure to make such report within 45 days of the Referral Date (i.e., November 17, 2022) shall be deemed an approval by the PB of the Proposed Law. Town Code Section 240-92.B requires the PB to recommend, or not to recommend, the adoption of the Proposed Law and to state its reasons as well as its opinion as to whether the Proposed Law would be in harmony with the Comprehensive Plan for land use for the Town. There being no present Comprehensive Plan for land use in the Town, the PB does not express any opinion as to whether the Proposed Law will or will not be in harmony with the Town's proposed new Comprehensive Plan, if and when adopted. 1 Note that when used in this document, WTF = Wireless Telecommunication Facility; MWTF = Macro Wireless Telecommunications Facility and SWTF = Small Wireless Telecommunications Facility 13 The PB agrees that it is necessary to adopt a local law to regulate WTFs to comprehensively address siting, maintenance and eventual removal of WTFs throughout the Town. However, the PB does not recommend adoption of the current version of Proposed Law because substantial revisions are necessary to resolve deficiencies and ambiguities, which are highlighted in this report. The PB recognizes that wireless telecommunications technology is constantly improving, and that different WTFs are required as compared to those that were required years ago. The PB also recognizes that 5G wireless telecommunications technology is here, or close to here, which requires still different WTFs. Therefore, the PB suggests that the Proposed Law expand its treatment of this issue. To quote the Wall Street Journal on October 17, 2022, "A host of aerospace companies and startups are vying to develop satellite networks that can talk to smaitphones." Thus, it is likely that 5G will be replaced in the future, and that WTFs constructed in the near future may become obsolete, and potentially be abandoned, in the future. The PB has identified a number of significant ambiguities and inconsistencies in the Proposed Law, and thus urges that the TB review and revise the Proposed Law, in consultation with the Town Attorney, the Town's Building and Engineering Departments and the Town's outside consultant, to address the comments, questions and recommendations organized by topic below. 1. Purpose and Jurisdiction A. The PB suggests that the Proposed Law lacks clarity with respect to which Town entity (i.e., Building Inspector, PB or TB) has jurisdiction over different types of applications (e.g., SWTF or MWTF) in different locations (e.g., private or Town -owned properties). For example, despite the fact that Section C (3) grants authority to the TB for certain types of applications in locations listed in Section H, Section H (4) (B) contemplates approval by the PB. Section D of the Proposed Law, however, does not identify the TB as an agency with jurisdiction over any WTF. B. The PB is concerned that there could be an overwhelming number of applications for the PB to review, especially with respect to SWTFs, or one or more applications covering an overwhelming number of SWTFs. C. The PB notes that Article V of Chapter 240 does not list WTFs or "cellular telephone facilities" as a principal or a special permit use in Business or in Industrial Districts, although those are listed in Section (C)(1) of the Proposed Law as "permissible locations" for WTFs. D. One of the stated purposes of the Proposed Law is to: "Protect the health, safety and welfare of the residents of the Town and persons working in or visiting the Town from potential adverse impacts of wireless telecommunications facilities, to the extent permitted by law." The PB suggests that this statement may mislead some members of the public, because federal law preempts local law on nearly all issues involving health and safety with respect to WTFs. The PB 14 suggests that the concept of federal preemption be briefly explained in the Proposed Law, to give context and set expectations for those who may be frustrated by the limited authority given to local municipalities to regulate the placement and certain other aspects of WTFs. 2. Procedure and Time Frames A. The PB notes that the Proposed Law provides no procedural guidelines with respect to review and approval (e.g., applicable time frames, referrals, public hearings) of any of the different types of applications. A cross reference to Chapter 177 of the Town Code would suffice for site plan approval, but the PB suggests that other guidelines be included in the Proposed Law. B. The PB suggests that the Proposed Law should distinguish between and among Permits, Small Wireless Permits and building permits (as well as special use permits, a term which, for some reason, is only included in Section J), and state the duration/term (if any) of each. The PB is unsure whether special use permits are to be required in areas of the Town and, if so, why they are only referred to in section J. C. The PB suggests that the review process, applicable standards and required findings (if any) need to be clarified for each type of application (both on private and on Town -owned property). D. If it anticipated that any (or all) of the applications would require a public hearing, which, the PB suggests, would be appropriate, the PB suggests that the Proposed Law so state. E. Should there be referrals to the Coastal Zone Management Commission ("CZMC"), the Town Highway, Police, Fire Departments, etc.? If so, specification is needed. F. The PB seeks guidance as to what type of evidence it may require an applicant to produce. For example, may the PB require a balloon test, with sufficient advance notice, to allow the PB (and the community) to assess visual impacts? If the applicant asserts that a potentially less intrusive alternate location is unavailable because the applicable property owner is unwilling, may the PB require an affidavit by the applicant (or the property owner) attesting to such owner's unwillingness? G. Under FCC regulations, certain "shot clocks" related to local Town and other approvals of an application commence when the application is submitted, not when it is deemed complete. Shot clocks can range from 60 to 90 days for SWTFs, depending on whether there are multiple deployments and whether the installation will be on an existing Structure or a new Structure, or up to 150 days for a facility other than a SWTF. With this in mind, the PB suggests that the Proposed Law establish a procedure for application submittals as well as the procedure (which is limited by its own, very short, shot clock) for how, when, and by whom an applicant is to be notified that required information is missing from the application (which re -sets the shot clock). H. The PB recommends that Section E of the Proposed Law should: (i) state that FCC shot clocks are only "presumptively reasonable periods of time" in order to make clear that they may be 15 extended if circumstances so require; (ii) require that an application shall not be deemed submitted until a fully completed application (with all necessary attachments) is date -stamped "Received" by the Building Department; and (iii) require an applicant to identify which FCC shot clock the applicant thinks applies, with a citation to the supporting legal authority, so that PB counsel can confirm. I. The PB asks whether all potentially applicable Chapters of the Town Code were reviewed by the draftspersons of the Proposed Law to confirm consistency between the Proposed Law and the existing Town Code (e.g., Chapter 75, 114, 177, 234 and, if there are to be public hearings, Ch. 144)? 3. Comments related to all WTFs: A. The PB notes that Section D distinguishes the role of Town agencies for MWTFs and SWTFs, but other sections within the Proposed Law do not. B. To minimize redundancy and increase clarity and consistency, the PB recommends that the TB consolidate all requirements now in Sections F and G which apply to both SWFTs and MWFTs (i.e., those that apply to all WFTs) into Section E, which applies to all WTFs. C. The PB is unsure why the provisions dealing with "Wind and ice" in Sections F and G and those dealing with Insurance in Sections F and G, are somewhat similar, but not the same. D. The PB requests that the Proposed Law specify the type of person or entity that is to certify to the PB that all of the technical standards have been met. E. In Section H of the Proposed Law, some location names are incorrect (e.g., the Maxwell Avenue site and the Sheldrake Environmental Center). The PB suggests that the correct names be used. F. The PB suggests that the Proposed Law require that the Building Department be notified, in writing, at least 5 business days in advance, in connection with any WTF Modification or maintenance activities, except in cases necessitating emergency repairs or Replacements. 4. Comments relating to Ownership and/or Operation and Removal of WTFs A. The Proposed Law does not deal with what happens if there is a change in ownership, operation or control. The PB suggests that the Proposed Law specify which Town entity is to be notified, in a specified manner, of all changes in ownership/lessors/lessees/operators prior to the effective date of any such change, and that the new owner/lessors/lessees/operators be required to assume all of the obligations and liabilities of the transferor in a manner approved by the Town Attorney. B. What would happen if the owner/lessor/lessee/operator abandons the WTF or is not financially able to operate the WTF? What if the WTF is encumbered by debt or mechanics' liens? The PB suggests that these and similar possibilities be dealt with in the Proposed Law. 16 C. The PB suggests that the Proposed Law expressly bind each owner, lessor, lessee and/or operator of the WTF (e.g., in Section H (4), the license for use of a right of way is given only to the operator, who may not be the owner or lessee of the facility or Structure.) D. The Proposed Law states that removal of the WTF is to occur if it is "decommissioned", but this term is not defined. The PB suggests that the Proposed Law specify when and by whom the WTF must be removed and disposed of, that the underlying property and/or Structure must be restored to its pre -construction condition, unless otherwise approved by the Town Engineer or the Town Environmental Planner, and, also, that all such actions must be taken in accordance with then - applicable environmental rules. 5. Comments relating to the Bond A. The Proposed Law requires the PB to determine the amount of the bond. The elements that would properly be considered in determining the amount of and the other provisions of a required bond that would be outstanding over a number of years would be varied and complex, and the PB lacks the requisite knowledge to make that determination. Thus the PB suggests that the Town Attorney and an expert in surety bonds be involved. B. The PB is concerned about enforcing payment from the surety on the bond, about the potential expiration of the bond and with how to protect the Town if the bond is not renewed or replaced, or is no longer issued by an acceptable surety. C. The PB suggests that the TB consider whether the bond should be replaced by an evergreen letter of credit (LOC). The PB suggests that the TB confer with experienced counsel or surety bonding expert for specific recommendations as to this. D. The PB suggest that the required bond/LOC should deal with disposal and with restoration of the underlying property and/or Structure, in addition to removal of the WTF, and also take into consideration that this event may not happen for decades, which will require adjustments reflecting future uncertainties (e.g., at a minimum, automatic increases equivalent to cost -of - living -increases based on an appropriate index) to ensure that the amount of the bond/LOC will be adequate to safely remove and dispose of the WTF, and to restore the Structure/property. 6. Violations and Enforcement The Proposed Law is silent with respect to violations and enforcement. A. The PB suggests that Proposed Law should specify enforcement mechanisms for violations such as, but not limited to: o maintenance that is not timely done; o the bond/LOC is no longer in effect, lacks required provisions or is not in the correct amount; o the creditworthiness of the surety or, if a LOC, the issuer decreases; 17 o the liability insurance is no longer in effect, is not in the correct amount, or does not cover the Town as an insured; o the rating of the insurance company decreases; o the Antenna or Antennas are no longer in regular use and functioning properly (to be defined); or o false claims or misrepresentations are made. B. For serious violations, such as interference with emergency communications or actual or constructive abandonment, the PB suggests that Proposed Law authorize either the Building Inspector or the TB to require removal and proper disposal of all or part of the WTF, and restoration of the property/Structure. It is noted that, with a bond, the bond typically permits the surety to have the work done, as and when it agrees that it is to be done, whereas, with a LOC, the Town is in control of the work, which is paid for by the LOC. The PB notes that whether there is such a violation, and whether the proposed remedy is appropriate, may have to be determined by a court, absent an arbitration provision, and that removal may be detrimental to some Town residents and to the Town's emergency services. The PB thus suggests that the TB consider the alternative of enforcing of the Proposed Law via substial, but appropriate, fines. C. Section F states that, if an insurance policy lapses, the Town will have the right to revoke permission to use the MWTF. Would this require removal of the Structure and Associated Equipment? If not, what enforcement is contemplated? What effect would the enforcement mechanism have upon Town residents who rely upon the WTF in question for their wireless communications? D. The present law requires annual, professional inspections of, and reports on, the condition of "Towers." The PB thus suggests that the Proposed Law contain a similar provision. 7. Comments relating to MWTFs A. The PB suggests that the Proposed Law set the maximum Height of a MWTF at 125 feet, and that additions that increase its Height should be prohibited without another application process to prove the necessity of the increase in height. B. The PB suggests that the TB consider whether, after installation of a WTF, it should be required that any Strands, etc. be placed underground if and when an adjacent street is opened for another reason and, if so, at whose expense. C. Does the Town have authority to require that MWTF signs be installed at eye/reading level? 8. Comments relating to SWTFs A. Clarification is needed as to how to determine the "minimum height necessary." B. The PB is concerned about a recent NYT article depicting imposing and unattractive SWTFs and requests clarity about whether it has authority to limit the height or size of SWTFs or whether height and size of SWFTs is specified and preempted by the FCC. 9. Comments relating to Definitions, Consistency and Formatting 18 A. A substantial number of the defined terms also have commonly understood definitions which do not match the defined terms in the Proposed Law. In addition, the Proposed Law contains a number of internal inconsistencies and formatting irregularities. B. The PB suggests that the TB resolve inconsistencies in the use of terms and irregularities in numeric and alphabetic sequencing, as well as in formatting. C. The PB suggests that the draftspersons of the Proposed Law compare the definitions in the Proposed Law against definitions in Town Code Section 240-4. For example, Sections 240-4 and 240-21 of the Town Code define and list "cellular telephone facility" as a principally permitted use in the R (Recreation) District, but this provision of the Town Code is not consistent with the Proposed Law's definition of a WTF. D. The PB suggests that all defined terms should be presented consistently, throughout the Proposed Law, with Initial Capitalization, including, but not limited to, when such terms are used in the definitions of other defined terms. For example, as presently drafted, the PB is unable to conclusively determine whether or not, in the text, the word "height" refers to the defined term "Height" and whether or not, in the text, the word "structure" refers to the defined term "Structure", since both words appear sometimes to be used to refer to the defined terms and sometimes used to refer to the common usage of the same word. E. In all instances where the Proposed Law includes a non -exhaustive list, the PB recommends preceding it with "including, but not limited to...." F. When the Proposed Law invokes the concept of substantiality (e.g., in the definition of Replacement and in Section J), the PB suggests that the Proposed Law specify who determines whether something is substantial (e.g., the Building Inspector?). The PB also suggests that the TB also consider whether "materiality" may be a better standard than "substantiality," given the extent of judicial interpretations and case law in New York State re the concept of materiality. G. The PB suggests that the definitions of SWTF and MWTF should refer to, and be compatible with, the definition of WTF. H. The PB suggest that the Proposed Law include a definition for "Site Plan," with or without a cross reference to Town Code Chapter 177. I. The PB suggest that the Proposed Law include a definition for "Submission Date," to reflect the recommendations set forth in Section 2(G) and (H) herein. J. The PB suggests that the provisions dealing with a "Small Wireless Telecommunications Facility" should prevent multiple extensions of up to 10% and, potentially, prohibit all extensions not approved by the Building Inspector or by the Town Engineer. 19 K. The PB suggests that the Proposed Law distinguish a "Permit" from a "Small Wireless Permit" and a Wireless Facility Permits (and that this term be defined), especially since the term "Permit" never appears except in the context of a "building permit," or a Small Wireless Permit and a Wireless Facility Permit. L. The term "Building Permit" with initial caps is used in Section D (i) and (ii), but it is not a defined term, and the term appears again in F, G and J, all without initial caps. M. The term "Substantial Change" does not cover/protect against multiple increases in Height. The PB suggests that it should do so. Furthermore, since protruding "more than twenty feet in the case of Macro Wireless Telecommunications Structure" might well destroy the look for the Structure, such as as a tree, the PB suggests that this standard be reconsidered by the TB. N. The term" Wireless telecommunications support structure" is used multiple times, but is not defined in the Proposed Law. The PB suggests that it be defined, and that initial capitals be used so as to make it readily identifiable as a defined term. O. "Structure" and "Height" are defined terms, but these words are also used in various places in the text where they seem to have the commonly -understood, rather than the defined, meanings. P. The definition of "Wireless Telecommunications Equipment" reads, in pertinent part: "Any equipment used in connection with the commercial operation of wireless telecommunications services, as defined herein...", but neither "commercial operation" nor "wireless communication services" is defined in the Proposed Law. The PB suggests that these terms be among the defined terms included in the Proposed Law. Q. "decommissioned" is used in the text, but is not defined in the Proposed Law, and has no commonly understood meaning relating to WTFs. R. "Base Station" is defined as a structure or equipment at a fixed location that enables "FCC licensed or authorized wireless telecommunications" between user equipment and a tele- communications network. This formulation is not clear. Does this mean FCC licensed facilities and facilities that are otherwise authorized, but not licensed? Is this referring to unlicensed spectrum? Note that this concept appears throughout the Proposed Law. Further, the PB suggests that the definition be expanded to include new developments in technology. S. The term "Personal Wireless Service" is used several times in other terms, but never defined. 20 T. "Macro Wireless Telecommunications Facility" is defined in terms of it not being a SWTF. By defining it in the negative, there is no reference to the required attributes of a macrocell (e.g., are there power limitations; must it meet FCC radiation limits; what are the common and essential attributes of a macrocell?). The PB suggests that this definition be compared against the detailed definition and specifications of a "Small Wireless Telecommunications Facility." ADJOURNMENT The meeting was adjourned at 10.00 P.M. Minutes prepared by Francine M. Brill Planning Board Secretary 21