Tower on Overlook To Remain?

This opinion piece appeared in the Townsman, November 6 edition

To those of you with a keen interest in the 300 foot tower on top of Overlook Mountain, the following communication from the Town's land use attorney, Drayton Grant to the town board lays out the path for installing cell phone service apparatus on the presently illegal tower. This is the whole letter:

Facts: WTZA built a tower on Overlook Mountain in 1985. There was a lawsuit by the Friends of Overlook Mountain against the Town to stop the tower, but in 1989, the courts upheld the Zoning Board of Appeals decision that television use of the tower was allowed as a utility. On July 8, 2004, the FCC granted shut-off permission to WRNN-TV, then owners of the tower and the successors to WTZA.

Question: You have asked me whether you can allow the tower to continue, and if you cannot do it under the current laws, how you might be able to do so.

Answer: The tower lost its status as a prior nonconforming use in 2004 and the Town zoning enforcement officer should enforce the local law against the tower. The Town board does not directly control the zoning enforcement officer, but can ask him to perform his duties here.

However, the tower now appears to have other uses for the Town that may make it wiser to arrange for the continuation of the tower. First, the Town board should investigate to make sure of the facts. If the Town board decides to support the continuation of the tower, it should follow one of these routes: 1) amend the law to allow the continuation of the tower so that it is conforming, or 2) enter into a court ordered settlement to allow its continuance. It should not ignore the violation and leave the tower illegal. This would discourage its best use, and leave the tower owner in perpetual limbo.

Discussion:

Prior nonconforming use

The information the Town has to date is that the former WTZA tower on Overlook Mountain in the Town of Woodstock is no longer a legal non-conforming use.

The basis for the tower's status as a prior nonconforming use was derived from the determination in Friends of Woodstock v. Woodstock Planning Board, 152 AD2d 876 (3d Dept.1989), that WTZA's television use was a public utility and did not need a permit from the Planning Board under Woodstock's Zoning Law as it was then written.

It is our understanding that the 1989 determination had no use to which it could apply for over one year. We believe that on July 8, 2004, the FCC granted shut-off permission to WRNN-TV, then owners of the tower and the successors to WTZA.

Since the tower was no longer in use as a television broadcasting tower for over one year, it lost its status as a prior nonconforming use. Lacking a public utility use, the tower would become or has become subject to the current laws of the Town of Woodstock. Those laws forbid a personal wireless communications tower in the Scenic Overlay District, where the tower is sited.

Use of the tower by others than WTZA

There are other users on the WTZA tower. It does not appear that any of these other users is [sic] approved by the Town. Some may precede local law that would have required that there be a separate approval for each antenna, and others may be exempt. A user who did not follow proper procedure at the time it went on the tower does not qualify as a prior nonconforming user. That user is simply a scoff law.

Peter Moncure reported last November that the link transmitters are still in use and will be for the foreseeable future. He does not specify who those users may be. He did tell me that the Ulster County 911 transmitter has been using the tower for many years. While this use might ordinarily be a utility, it does not appear to be covered by the definition in your zoning law:

15B
PUBLIC UTILITY STATION OR STRUCTURE. Electric
lines and poles, gas mains and lines, water and
sewer mains and lines, telephone and telegraph
lines and poles, and appurtenant structures, used
to convey utility services to members of the
public. The term does not include high-voltage
transmission lines and poles. The term does not
include "personal wireless services" or "personal
wireless service facilities."

Paul Shultis advised me on July 28, 2008, on the status of state efforts to establish an emergency system that includes the TZA tower. Paul co-chairs the emergency management committee for the Town. He reports that a project for intercommunications was tried it in Southern Tier last year and it was a flop, so he does not believe they are coming out with a statewide plan any time soon.

Lighting
However, in these meetings he has learned that the FAA says if you take the light off TZA, then they will require that the State light the fire tower. Even if we arranged with Peter Moncure, C. Powers Taylor and Overlook Mountain Tower, LLC, to lower the TZA tower 50 or 60 feet, the FCC would move to require that the fire tower be lit. Twenty years ago before the mountain was lit, there were 3 or 4 plane crashes. He lost a friend when his plane crashed on Overlook during a 1969 snow storm.

Paul reports that the County Emergency Management Committe's opinion is that the tower is essential to the safety of the Town of Woodstock. The FBI and the Sheriff's department use TZA. He has also learned that the Woodstock Fire Department wants to put a communications array on the TZA tower.

As the Town Board, you have the authority to change the zoning law to allow for this use, or to bring this matter to court and enter into a settlement with Mr. Moncure and the company that would allow him to use the tower as you decide to allow it.

End of letter.

If the Town decides to embark on this endeavor to enhance cell service to the western parts of town by legalizing the tower, let's hope they first follow the attorney's suggestion to "investigate to make sure of the facts."

I say this because according to radio propagations made in the past there will only be signal to those parts of Shady in upper Hutchin Hill Road, the higher sections of MacDaniel Road, and then parts of Lake Hill. The 212 corridor from the town highway garage to just past Church Road in Shady will get no service, nor will Reynold's Lane or lower Hutchin Hill, nor any part of Wittenberg. None. Zip.

Seems like an awful lot for very little, but let the investigation begin.