land use

A major telecommunications company's application to erect a new mobile device cell tower is a fairly straightforward approval process for local planners, and on Tuesday evening, Robert W. Burgdorf of Rochester, an attorney representing Verizon, provided several useful nuggets of information.

It was an initial meeting in the regulatory process with the Town of Batavia Planning Board. The application must still undergo an environmental review and a public hearing, but Burgdorf was happy to discuss the process and some of the technical issues involved in installing a cell tower.

Cell towers are extremely location-sensitive because they have to be high enough to reach the neighboring towers but not so high that there is a spillover of signals into the neighboring cells.

"They've got to be placed so that they can hand off to the neighboring cells, again without interfering," Burgdorf said.

They wind up in a honeycomb-like grid, not too close but not too far apart.

Cell towers generally serve a one or two-mile area and can't be too close together or too far apart.

If the tower is under 200 feet tall—this one will be 154 feet tall—the Federal Aviation Administration does not require lighting or striping.

This down will be a matted steel gray.

"We've learned, and we've actually done studies, that this blends in with our skies in Western New York," he said.

An observation a couple of board members quipped was a depressing thought.

Oh, and 5G doesn't cause COVID.

A board member's question prompted the discussion of health concerns about cell towers. Burgdorf said federal law preempts that as a concern for local planners, which he regrets because it also preempts an opportunity to educate the public.

"This is a radio signal, that's all this is," he said. "It is an incredibly weak radio signal. We've had radio signals around since the 20s, the 30s. The only difference between this and a television or radio station is that those operated tens of thousands of watts, sometimes megawatts. So the power levels, from radio and television, just radio signal is much, much stronger than these. These are incredibly weak. They have to be incredibly weak for two reasons. One is they can't interfere with neighboring cells, which are often a mile, two miles away, and we have to be able to get a return path from the user"

He said that if anybody is concerned about cell phone signals, the first thing they should do is seek to do is shut down radio and television signals.

"The issue does come up, but anybody who looks into it, who's being rational, will see that that's not really an issue," Burgdorf said.

The tower will be located at 9300 Wilkinson Road on a 100x100-foot leased parcel. It will be fenced, and a small gravel road will connect it to Wilkinson. There will be minimal traffic to the location—maybe one maintenance worker a month will visit the site.

The board voted to seek lead agency for coordination purposes under the state's SEQR regulations (pronounced seek-ur, it stands for State Environmental Quality Review Act) even though Burgdorf informed lead agency designation for this project is not strictly required.

The board did it as a matter of course, because that is its standard practice, but board members said they will seek their attorney's opinion.

"It's not a fatal error to declare yourself lead agency," Burgdorf said, so he didn't object.

He said a lead agency is only required when there are other "involved" agencies. In this case, other agencies, such as the Genesee County Planning Board, are only "interested" agencies, so there is nothing in the SEQR process to coordinate with other involved agencies.

"Look, the SEQR regs are a pain. They really are," he said. "They're pretty convoluted and they force a lot of municipalities to really become an expert. It is a pretty intense set of regulations, so for what it's worth, if you declare yourself lead agency, that's not the process, but it doesn't make it defective, so whatever you want to do."

Pembroke Town Supervisor Thomas Schneider Jr. is well aware of social media comments in opposition to a planned apartment complex on Route 77 and understands people's concerns, he says.

But he hasn't received a lot of direct contact from opponents at Town Hall. 

"We do hear the concerns," Schneider said after Thursday's board meeting. "One thing is the zoning has been in place since 1991. We've been working under the same zoning. I know it's sometimes hard for people to be informed, but if you don't know what's in your zoning, you can't be shocked when something comes in that's allowed in the zoning with a special use permit or buy right."

The project is approved. The Town Planning Board approved it on Sept. 27.  On Thursday, GCEDC approved an incentive package for the project.  There's no amount of opposition that can stop it now.

But even if there had been greater opposition before the approvals, mere opposition from community residents isn't enough to stop a development that meets all the legal requirements to be built at a specific location.

"According to state law, you shouldn't turn it down just because public opinion is 'we don't want it,'" Schneider said. "There should be a justifiable reason, an evidence-based reason, to turn it down."

Developer Mike Schmidt of Alden is planning to build four buildings over four phases at 8900 Alleghany Road. Each phase consists of a building with eight one-bedroom and 16 two-bedroom units, totaling 96 market-rate units, with 168 parking spaces along with garages.

Schmidt is planning on investigating $15 million in the project.

GCEDC on Thursday approved a sales tax exemption estimated at $739,200, a property tax abatement estimated at $2,020,688, and a mortgage tax exemption estimated at $130,000.

Schneider said he personally supports the project.

"My personal feeling on the whole thing is, as a former school board member, there are people who want to be in our district," Schneider said.  "Our district does need kids in the district to help it survive."

He said he has met with Schmidt, and he believes Schmidt will do what he says he's going to do.

"I think he's a man of his word," Schneider said. "I don't see him as wanting to have subsidized housing (meaning HUD aid to tenants). The EDC said they're gonna pull the incentives if it is subsidized, so I am not concerned about it. I think there's a lot of change going on in the town this year that has people a little squeamish, but we need to grow."

Growth is part of the town's approved Comprehensive Plan, he said.

"I think that's the direction of the town board's past and present," Schneider said. "The comp plan in the town says (routes) 5 and 77 and 33 should have more intensive type of commercial build-outs."

The project did raise some issues with current zoning, Schneider noted during the meeting, and he's proposing the town work on making some changes to the zoning code with a moratorium on some development until the changes are approved, which could take about a year to get through the legal process.

One example he used of an area to be addressed is bus access to an apartment complex site. 

"Things like that we can actually write into the zoning law," Schneider said. "That really takes it out of the hands of the planning board or, (not having) them having a struggle with what type of stipulations to put in the (approval). Let's spell it out."

He stressed he is not proposing a complete ban on anything.

Based on feedback from the community, the engineer and property owner planning an apartment complex at 8900 Alleghany Road, Pembroke, have scaled back the project, the Pembroke Planning Board learned on Wednesday night before voting 6-1 to let the development move forward.

A month ago, when the plan was last publicly discussed, developer Michael Schmidt and engineer Michael Metzger were planning six buildings in the complex and a total of 144 apartments with 326 parking spaces.

The new site plan calls for four buildings -- plus garages -- with 96 apartments and 168 parking spaces.

The change helps reduce the amount of impervious developed service to less than 50 percent, leaving 57 percent greenspace on the 8.2-acre lot.

The changes will make the complex more attractive from the roadway, Metzger said.

"There was some talk of making the project a little bit more of a park-like as opposed to what we had before where we had six buildings in there and a lot of asphalt," Metzger said. "With these large tracts of natural vegetation, we're trying to replicate a park-like setting that would be better for the aesthetics for the community as well as the residents that would live in this facility."

Chairman David Knupfer voted no after expressing his concern about setting a precedent while not expressing any specific objections to the project.

"This project is a precedent-setter for this town," Knupfer said. "There's no other project like this in this town. So whichever way it goes, it sets a precedent with stipulations or no stipulations. So if this is approved, and somebody else, some other developer comes in, you gotta be careful. So make sure you have what you want in here."

There were two big concerns raised by planners and community members. First, access for school buses; second, whether Schmidt would pull a bait-and-switch, which speakers expressed concern about in light of what happened with Ellicott Station in Batavia, and turn the complex into low-incoming housing.

Metzger explained the plan for school buses, worked out with Pembroke Central School Superintendent Matthew Calderon, and Schmidt said there is no way the complex will become low-income housing.

Calderon sent a letter to the planning board expressing his thoughts on school buses, which Metzger acknowledged.

"He goes into detail there about various options, and actually, some of the options he's suggesting would work quite well," Metzger said. "He also offered the opportunity for the buses to actually come on site. One of the things that he talked about, and he talked about it with Mr. Schmidt, and he would be agreeable to is allowing the buses to actually come on site and stop at each one of the buildings, each of the four buildings. Because of the geometry that is set up for the largest of emergency vehicles and fire trucks, there's way more than enough capacity and room for buses to maneuver on the property."

Metzger explained that the driving lanes and turning lanes through the parking lot are compliant with state fire codes so that fire trucks can easily maneuver through the area.  School buses, he noted, have shorter wheelbases than the largest fire trucks.

Schmidt said he favors the buses stopping at each of the four buildings because it will be safer for the children of his tenants.

"As you know, it can be snowing, raining, sleeting," Schmidt said. "So if you have a tenant in the back building who has a little seven-year-old and the bus was to come in and park in a spot (up front), now that seven-year-old is going to be trucking down (the parking lot) with a backpack to get out on the bus where other people might be leaving for work. We talked about it being a bad situation from a safety standpoint for the children and said the best-case scenario in my mind is to have the bus be able to come around to each building. There will be plenty of clearance. So he (Calderon) was agreeable to that."

That scenario, Schmidt also noted, would allow the children to wait in the building's vestibule during inclement weather.

As far as concerns about low-income housing, Schmidt noted that, unlike Ellicott Station, his project is not subsidized by any state or federal agencies.  

"They already had all the agencies lined up to work with them," Schmidt said. "We are here alone. Mike's my engineer. We have no intention of doing that. I can put that into writing. We certainly aren't going to be looking for any state financial aid or any type of anything from the government to help us."

While the apartments will be available to anyone who can demonstrate the ability to pay the rent, he indicated that a person who qualifies for subsidized housing isn't likely going to be able to qualify to rent an apartment in his complex.

Applicants will need to be able to demonstrate full-time employment with a credit score of at least 700 and an income of at least three times the monthly rental rate. The rent on a two-bedroom apartment will be at least $1,695 per month and $1,395 for a one-bedroom.

After one resident complained that apartments will just bring in a bunch of "riff-raff" and drive down property values, Schmidt, who owns and operates several other similar complexes in the region and repeatedly drew on his experience to explain the kind of tenants who fill his complex, told the man, "respectfully," that he had it backward.

"The people who are gonna live here are going to make a minimum of $50,000 with a credit score that is going to have to be very strong," Schmidt said. "In my experience, once they live here for a while, they're going to realize if they're moving in from another place, which a lot of people will be, I think -- we all know your whole corridor is growing -- and some of you don't like that, I understand. I grew up in Akron, a small town that has grown a little bit. But the reality is it's happening. The STAMP project and other things that are going on are gonna lead other people to want to move in. 

"When they move in, they're gonna look for a nice place to move, and hopefully, we will be able to provide some of that," Schmidt added. "And then what they're going to do is look for places, homes to buy, which is going to take the prices of the homes up like it always does. When more people come in, the value of the homes goes up. That's good for everyone. You have more people coming in to help pay taxes and pay for the infrastructure ... You've got a great town. I'd say one of the towns in Western New York that's on the move. So I think it's going to be the opposite. I think what you find is when more people move in -- nice, good, hardworking people -- they're going to be looking for homes to buy. You're going to see the real estate values start climbing."

Related to the school bus issue, as well as traffic in and out of the complex, as well as the number of parking spaces, and the nature of the up-and-coming workforce quality apartments attract, is there simply won't be a lot of children living in the apartments, Schmidt said. He predicted fewer than 20 children at any one time.

He said the apartments are on the smaller side, and most are one-bedroom, and in his experience, even the two-bedrooms don't tend to attract adults with children.

Eight units in every building will be one-bedroom, and six will be two-bedrooms. There are no three bedrooms. 

"They're not large units," Schmidt said. "They're very medium-sized units. So really, our experience is that we have very few children. And when people start having children, they look for a house."

Schmidt said he maintains high standards for his tenants.  For example, tenants can have dogs under 30 pounds, but if a tenant's dog bites anybody, the dog has to go.

"We don't tolerate anything," Schmidt said. "That's why we keep the standards very high in who we rent to. If you don't, good people will not live around bad people, but bad people love living around good people. So you have to take care of the good tenants that you have."

And that's why he's attracted to building in Pembroke, he said. He believes Pembroke is a community that attracts good people.

"It's a community built around hardworking people," Schmidt said. "Hardworking people don't have a lot of time usually to screw around. We're going to protect that. I think you're gonna see there's a lot of great people that move in here."

The Town of Pembroke Planning Board approved a proposal for a new travel plaza off Exit 48a of the Thruway on Wednesday, clearing the way for construction to begin in the spring.

When completed, the as-yet-unnamed travel plaza will join Flying J, TA, and Speedway as locations on Route 77 where travelers and truckers can rest, get a bite to eat, refuel and perhaps get a wash.

The vote to approve the environmental review and site plan passed 6-1, with board member Thomas Marshall casting the lone "nay."

In a brief presentation before the vote, Engineer Michael Metzer addressed some of the issues raised at last month's public hearing before the board and by the Genesee County Planning Board.

Previously, there were concerns expressed about sight lines coming from the Thruway overpass and the increase in traffic the new travel plaza is likely to bring to the interchange.

Metzer said since the last meeting, a traffic study has been completed.

"The results of that study were that there are no sightline issues whatsoever," Metzer said.

As for additional traffic, that won't be an issue either.

They've determined that there would be no impact on the level of service in the area, interchanges or intersections," Metzger said. "They looked at seven intersections altogether, and every one of those still meets code. There are no adverse impacts to the intersections; obviously, there's gonna be more traffic, you know, nobody's debating that. But what this traffic impact study does is that it makes a determination of whether the impacts are adverse or not, whether they create a problem. And so, in summary, ... (there is) no significant impact as a result of this project."

Through the environmental review process, it was determined the project could impact an endangered species, the northern long-eared bat.  

The developer has two options: Conduct a detailed study to see if the bat is present on the property, or not cut down any trees on the property during hibernation season -- from Nov. 1 to March 31.

The second option is the one the developer will take, Metzger said.

"If you don't remove any trees (during those months), you are in compliance with DEC guidelines and federal guidelines as well," Metzger said.

To address another issue, Metzger said the project is designed in full compliance with floodplain regulations.

As for historical preservation, Metzger said, "One thing that was identified through the environmental review through the State Office of Parks and Historic Preservation is that we are in a potentially archaeologically sensitive area. As such, we would commit to -- actually, we've started the process of doing a phase 1A and a phase 1B study. We will do that and provide the results prior to a request for a building permit."

During the board discussion, Marshall indicated he didn't agree that the project would have no traffic impact.

"I just think it's way too much volume for that intersection through the interchange," he said.

Board member Greg Kuras said he thought the additional travel plaza would actually help with truck traffic, especially during winter storms.

"Whenever you get storms, you get the states basically begging for parking spots for these things," Kuras said. "They want to get them off of (routes) 5 and 77. It's better to have a big parking lot for them than having them sit on the road."

The Town of Darien Planning Board this week approved a special use permit for a new indoor play center and café, which will cater to parents and their young children.

This new establishment, Nutty’s Playden, will likely open sometime between mid-August to early September of this year at 1415 Broadway Road in Darien, said Crystal Nutty.

Nutty applied for a special use permit as opposed to a basic commercial permit. The location has been home two a couple of different restaurants in recent years.

“There are children involved. We will have indoor play equipment inside of the building rather than normal restaurant equipment or business furniture. This is also because we are a café mixed with a play center,” Nutty said.

“We will be taking over the lease [to the building] in August. There are a few things that the owner must do to the building before we take over the lease — like cleaning it out and making sure the bathroom is up to code because right now it is not.”

She said Nutty’s Playpen will have the following: 

• A large play structure that offers obstacles for children “to walk through, climb through and weave around.”  
• Slides  
• Creative play stations where children can pretend they are veterinarians or grocery store clerks  
• A pretend food truck as part of an imagination station
• A separate area for children ages 0 to 2   
• Creative stations where children can draw, color, build blocks or do puzzles.  
• A ball pit and sensory pit for digging and exploring
• Regular classes and events
• A café with strictly pre-packaged items as well as fresh baked goods, coffee, soft-serve beverages and birthday parties.  

“We are waiting for the building to get cleared out and the work to get completed so we can start moving our stuff in so we can get it opened. We will have a website hopefully within the next month. We won’t be open for live booking until we get a little bit closer,” Nutty said.   

“We will be offering online booking as well as drop-ins so people can come in for open play at any time. We will have a maximum capacity. We have not figured out what that is with fire and safety because once we get everything in the building, then we will work out those numbers a little bit. That is what the next step is.”

A long-discussed plan to build a biogas plant in the Genesee Valley Agri-business Park in the Town of Batavia is again moving forward with the recommended approval on Thursday of a height variance for a storage tank on the property.

CH4 Biogas of Covington, operating the business name Genesee Biogas for the project,  first proposed the plant in 2014. 

Sara Gilbert, of Pinewood Engineering, asked the board to Genesee County Planning Board on Thursday to recommend approval for the company to build a digester storage tank taller than allowed by zoning code.  The biogas plant seeks approval for an 83.5-foot tall digester tank.

Gilbert noted that the board previously recommended approval of the variance for a plant location that was going to be just outside the ag park but the Town of Batavia board prefers the company build the plant inside the park so the application for the variance needed to be resubmitted for the new location in the park.

She also noted that HP Hood was granted a variance for a much taller tank, and Oatka Milk has tanks with heights that do not conform to the zoning code so the Genesee Biogas proposal is consistent with existing construction in the area.

The board approved the recommendation with one no-vote, from Eric Biscaro, who expressed concern about potential odor from the plant.

"I don't care what the height of the tank is, personally," Biscaro said. "I mean, I'm right next to this thing, and I would just as soon get back into that park further because I work at Armor (Building Supply) right down the road from Oatka and Let me tell you, it's pretty ripe there sometimes. And I'm close to this plant, living near there then I am at work. I'm under the impression that this plant is going to smell worse than Oatka."

No, Gilbert said, everything at the plant is enclosed, and the air coming out of the plant is filtered.

"It is different than maybe a more traditional digester," Gilbert said. "It actually has a negative pressure system that can pull the air out and put it through a biofilter system that filters the air. So it does not have a strong smell. And it doesn't have any animal waste at all associated with it. It's only food-grade waste from the plants in the park."

Genesee County Planning Director also informed the board that the only matter on the agenda for Thursday was the high variance. Genesee Biogas will present at a later date a site plan review, where issues such as odor can be considered.

In 2014, at a previous public meeting, Paul Toretta, CEO of CH4 Biogas, explained how the plant works: "We make green power out of organic waste. Once the digester does its thing, it captures methane and powers an engine that makes green power and puts it on the grid. The engine produces heat that can be used to heat Quaker Muller and Alpina (the plants in the park at the time), helping them cut their heating bill."

Quaker Muller's plant is now owned and operated by HP Hood, and Alpina is owned and operated by the Upstate Milk Cooperative.

A Grand Island-based developer has submitted an application to the Town of Batavia to build an 80-unit apartment complex on 9.47 acres of land next to the MedTech Center, part of the MedTech Park, along Assemblyman R. Stephen Hawley Drive.

The location is across the roadway from Genesee Community College.

The land is currently owned by an entity of GCEDC, the Genesee Gateway Local Development Corp.

The name of the complex on the application is Countryside Apartments, and the application was submitted by David Mazur.

The plan calls for six 12-unit buildings and one eight-unit building with 24 three-bedroom apartments, 42 two-bedroom, and 14 one-bedroom, with 36 single-car detached garages.

The total project cost is expected to exceed $12 million.

The application does not include -- which is normal for building applications -- any information about possible construction incentives GCEDC might offer.

The project will require water, sanitary sewer, storm drainage, natural gas, cable, and electric utilities.

The developers are proposing a connection to the existing 12-inch water main with a 2-inch domestic water service and a 2-inch fire service for each apartment building.

The town board approved the land for Planned Unit Development (PUD) in November 2022.

When all the units are rented, the complex is expected to have minimal traffic impact.  On weekday mornings, 9.6 vehicles entering, and 36.1 vehicles exiting.  In the afternoons, 19.4 vehicles entering, and 36.1 vehicles exiting.

The Genesee County Planning Board will review the project at its meeting on Thursday.  The meeting is scheduled for 7 p.m. in County Building #2 on West Main Street Road in Batavia.