Zone of contention

Carolyn Jones has lived in the Portland Avenue neighborhood since 1999. She has watched, with concern, the area deteriorate over time. So has Andre Morrison, a barber who lives in the same neighborhood.

“It’s a community that faces many challenges: economic issues, drug addiction, mental (health issues), and poverty,” says Morrison. “All of these factors affect and cause crime, violence, and stress. … They’re like a chain reaction.”

The streets surrounding the neighborhood have little to offer, residents say, whether it be a lack of fresh groceries, thriving small businesses, or clean, safe areas for residents to gather. Litter continues to accumulate along streets as storefronts remain empty, closed, or broken down. 

“If we don’t have things developed in our area, No. 1, no one’s going to want to be there, and No. 2, it makes the community feel bad,” says Jones. “Why aren’t we being developed like other areas? Why aren’t we being taken care of like other areas?”

So, when Verizon applied to construct a cell tower at 936-952 Portland Ave., without much notice to the community, it came as a shock.

“I know for a fact that if it was in some area like Park Avenue, some area on East Avenue or Monroe Avenue, (residents) would have gotten notified … that the process was taking place,” Jones says.

The notice sparked what has now been five months of continued advocacy from residents who have committed to opposing a cell tower that would sit just across the street from houses, families, and businesses. 

While the city ultimately denied Verizon’s application, residents continue to worry about the lack of transparency and inconsistencies around the process. (Verizon can appeal the decision by Oct. 9.) It also raises questions about the city’s District of Zoning and Planning Commission. 

“I’m still scared because the (District of Zoning) has all the power, and they’re not going to have any accountability,” says resident Ames Grigg. ”It’s not going to matter to them.”

The proposed cell tower

Currently, an auto repair shop sits on the lot that was designated for the cell tower. Under the city’s zoning code, the shop is in a C-1 Neighborhood Center District, which primarily allows convenience shopping and services for adjacent residential areas. Since services are in close proximity to residential areas, the district requires commercial operations to be low-intensity, unobtrusive, and compatible with the surrounding neighborhood: a R-1 Low-Density Residential District to the west, east, and south of the area.

In late February, Verizon applied to construct a tower at the southwest corner of 936-952 Portland Ave., citing increased customer usage and excessive demand on existing wireless telecommunications networks in the area. Two components were proposed: a base station and a monopole totaling approximately 60 feet in height.

Telecommunication towers in a C-1 district require a special permit to operate in the area, given evidence is presented that the proposed application establishes:

■ harmony with the city’s Rochester 2034 Comprehensive Plan, including general purpose, goals, objectives, standards and implementation strategies;

■ a lack of substantial or undue adverse impact on adjacent property, the character of the neighborhood, traffic conditions, or other matters affecting public health, safety, and welfare;

■ construction, arrangement, and operation that would not dominate the immediate vicinity or interfere with the use of neighboring properties;

■ service by essential public facilities and services, such as highways, streets, police and fire protection, or drainage protection;

■ a lack of loss or damage to any natural, scenic, cultural, or historic feature of significant importance; and

■ a lack of overriding public need that would mitigate certain impacts of the proposed application.

In its special permit application, Verizon stated that its existing sites are unable to adequately meet the emerging demand in the surrounding neighborhood, stating that the proposed tower would increase capacity and provide or improve coverage throughout the northeastern portion of the city, while offloading demand from existing telecommunications sites. Those assertions are supported by documentation from the telecom company.

Residents, however, claim there are enough inconsistencies in the application to thwart Verizon’s efforts altogether.

Opposing the tower

When Grigg received a postcard in the mail with notification of the proposed application, they wondered if enough residents knew about it. While all special permits require notice to property owners within 600 feet, it was unclear to Grigg how many of their neighbors were tenants or simply did not know of the application at hand.

“The way I found out about this cell tower coming up is one day, one of the gentlemen walked up to me and said, ‘Do you know they’re trying to build a cell tower on Portland Avenue and Oneida?’ And I said no,” Jones recalls.

Grigg took to learning about the city’s zoning code.

“I start noting things that are wrong, which you couldn’t know as a newbie just looking at this crazy 167-page application,” Grigg says. “I couldn’t know without investigating every single layer, comparing it to others, trying to verify whether any of this was factual.”

General opposition to the proposed cell tower has centered on the site’s location and intrusion on the quality and character of the surrounding neighborhood. In submitted public comments, hearings, and exchanges with members of the city’s Zoning Administration and Planning Commission, Grigg has raised several questions and concerns about the application, including:

■ whether or not a detailed environmental review on the lot—a former gas station, with a 500-gallon oil tank removed in 2015—was done;

■ the presence of a certificate of nonconformity and/or current certificate of occupancy on the existing lot and auto repair shop;

■ the accuracy of photo-simulations of the facility’s base station and cell tower, and

■ the level of community outreach to evaluate alternative sites.

Verizon has proposed similar facilities that have also faced community opposition. A 2018 application for a 100-foot cell tower in Pittsford sparked concerns over proximity to residential areas, excessive visual impact, and consistency with the quality and character of the surrounding neighborhood. Still, it was approved by the town’s planning board with modifications to height and location. That tower was constructed with camouflage to blend with foliage.

According to the Telecommunications Act of 1996, municipalities cannot regulate wireless telecommunications facilities in a manner that explicitly prohibits services under the Effective Prohibition rule. While zoning standards can be established to dictate the tower’s construction, if a significant gap in network coverage is identified, municipal governments are required to act within 150 days to find a site that provides adequate service and aligns with existing zoning regulations.

Understanding the Telecommunications Act kicked Grigg’s advocacy into overdrive. If Verizon is successful in establishing need and constructing a cell tower, competing telecommunications providers could not be discriminated against. With concerns that their opposition would fall on deaf ears by the end of the 150-day clock, the residents’ overarching fear was that similar facilities could be constructed even closer to residential areas.

“Who’s going to stop them? Nobody can stop them, right? Unless I can kick up enough dust,” says Grigg. “It’s been so hard because (at first,) it (was) essentially me and some neighbors that were getting together.”

“We had to have such a fight in order to go through this, and it … was very interesting in learning the process of how this works (and) and the (loopholes) that are within this process,” says Morrison. “It was nerve-wracking to see that there were (loopholes), and also to see other projects that were similar, that when no one showed up for those projects, it was like ‘Wow, this neighborhood either doesn’t know, or they just don’t care to even stand up.'”

Concerns over transparency

In response to a request for comment from the Beacon, the city pointed to the final notice of decision issued after the cell tower’s denial following a hearing in August. That response, for Grigg, illustrates an allegation they have raised throughout their opposition: that the Division of Zoning has willfully refused to be transparent with the public.

Grigg notes delays spanning months in releasing minutes from public hearings, uploading public comments, or even filing the notice of decision. The notice was filed more than three weeks after the final hearing, as opposed to the 10 days outlined in the city’s zoning code.

“The product of my email exchanges was a feeling of being degraded, demeaned, (and) dehumanized,” says Grigg. “I never felt a sense of respect or that I had any level of not just importance, but that I even had credibility. I felt like nothing but a nuisance.”

Repeated attempts to gather information on Verizon’s proposed application, according to Grigg, were met with little response from the city. In light of New York’s Open Meeting Laws, Grigg also contends that advance notice regarding public meetings and proposed applications was not given in a timely manner.

“All the reasons for the denial and relevant case information are all captured in this Notice of Decision,” says city spokesperson Barbara Pierce. “As is standard procedure, the City Planning Commission receives input from the community as part of the Special Permit process. Community members who offered testimony are listed in the Notice of Decision as well.”

The final notice

The application reached its first hearing on March 24, held following a 3-3 vote due to a failure to reach at least four concurring votes for a decision. A subsequent hearing on April 21 saw the Planning Commission elect to engage an independent consultant to review alternative locations and configurations that would prove less obtrusive to the neighborhood. The final Aug. 18 hearing occurred just as the application approached the FCC’s 150-day deadline.

Remaining steadfast in their opposition, Grigg elected to meet with multiple members of City Council to discuss their concerns. While City Council holds no jurisdiction over the cases heard by the Division of Zoning and Planning Commission, the final hearing featured testimony from Council president Miguel Meléndez and Northeast representative Michael Patterson.

“The construction of the (proposed cell tower), across from a church and a vacant school building, feels like a slap in the face to our immediate residents, local businesses, and neighbors,” said Patterson. “Placing this infrastructure in the heart of a neighborhood would result in an ugly aesthetic and detract from the commercial corridor. … It will detract from future development opportunities and not serve in the best interest of public good.”

Ultimately, the cell tower’s application was denied due to its failure to satisfy conditions related to the adverse effect and impact—visually or otherwise—that the tower would have on the surrounding neighborhood and residents. As documented in the final notice of decision, the proposed project would have been fundamentally incompatible with the mixed-residential and small-scale commercial surrounding neighborhood where it would have been placed. Resolving the demonstrated gap in service and coverage, according to the Planning Commission, deserves a “more systematic and creative” search for a less intrusive method.

It is also made clear throughout the notice of decision that the denial of Verizon’s proposed cell tower does not indicate the commission’s general opposition to telecommunication towers, in line with the Telecommunications Act. Despite the engagement of a third-party consultant, no additional locations or configurations outside of those evaluated by the applicant were provided. Neither the applicant nor consultant responded to a request for comment from the Beacon.

“The (Planning Commission) finds that the applicant’s consultants have demonstrated, and the city’s independent expert has confirmed, that there is a valid gap in the coverage and capacity of the applicant’s network and that the project as presented would remedy that gap,” reads the notice. “Nevertheless, the denial … does not constitute an Effective Prohibition on this application because the applicant has failed to adequately investigate whether it is feasible to develop one of more far less intrusive ways to remedy the service gap either by using alternative technologies or by under-grounding the project’s base station equipment.”

Residents are concerned about an appeal of the decision in the state Supreme Court. Applicants are eligible to file appeals within 30 days of the notice of decision filing through an Article 78 proceeding. 

The Verizon application has led Grigg to found Rochester’s Zoning Accountability Coalition, a group of residents and advocates committed to community-led oversight and accountability on existing and future city zoning projects. The group has spoken out in opposition to a proposed smoke shop, as well as similar cell tower applications.

For individuals like Morrison, continued opposition represents a commitment, not just to the preservation and character of the neighborhood, but also to the livelihood and future of the residents who call the area home.

“When we come with numbers, then those numbers mean everything, regardless of what the city decides or what big companies want to do,” says Morrison. “When we have numbers, we have power.”

Narm Nathan is a Rochester Beacon contributing writer and a member of the Oasis Project’s inaugural cohort.

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