BERNE — The town planning board, in a split vote,  has given its approval for a 160-foot high public safety communications tower that could become, to the dismay of some, a notable landmark at the edge of Berne hamlet, overlooking it from above and viewable from several  roads leading to Berne and even from roads in the neighboring town of Knox.

At its most recent meeting, the planning board voted 3-to-1 to approve the Albany County Sheriff Department’s plan to construct a latticed metal, free standing communications tower on Jansen Road, atop  U’hai mountain. It would be built on land owned by and leased from Jody Jansen.

Jansen farms portions of his 100-plus acres atop U’hai — property that extends partly down the hamlet-facing slope of the mountain. He also operates a tree- removal business.  Several generations of the Jansen family have lived at the farm. Several do now.

If and when the construction of the tower gets underway, the county will create a roadway about a half-mile long from the Jansen driveway to the tower site National Grid will install power lines to  it.  And, Pyramid Network Services will install the tower, along with a building pad and a generator. A prefabricated building to house ancillary equipment will be shipped to the site.  

The planning board chairman, Richard Rapp, along with members Michael Vincent and Debra Bajouwa, voted in favor. The lone dissenting vote came  from Todd Schwendeman.  Member Gerard Larghe was absent.

The vote came after the board reviewed comments made at a June 16 public hearing, when everyone who spoke favored better emergency communication but many, including a town board member, objected to the site chosen. A big turnout of firefighters and EMS volunteers at the same event heartily endorsed the tower and the chosen site.

Schwendeman, who was appointed to the planning board earlier this year to replace long-term member, Gerard Chartier,  argued in the recent board meeting that the town should abide by its own ordinance regarding tower siting, developed by Chartier “five or seven years” ago.

That ordinance, he contends, requires a detailed visual assessment that  could best be accomplished using the short environmental assessment form provided by the state Department of Conservation  as an initial step in the State Environmental Quality Review required by law for many public and private construction projects.

However, the town attorney, William Conboy, had  advised the town to use the long form. In a letter to the board, he cited the Rensselaerville Planning Board’s ultimate decision to  use the long form, rather than the  short form they had initially employed, in order to better defend their approval of the tower.

Before voting to approve the tower, the board voted, with Schwendemann dissenting, to declare the tower project Type 1 and to use the long form.

The DEC requires the long form for Type 1 actions, which are defined as “actions likely to have a significant adverse impact on the environment.”

The long form’s Part II  lists environmental criteria  in 18 categories of potential impact.  The respondent must declare, for each criterion,  whether  there will be little or no impact, or moderate or large impact, resulting from the reviewed project.  The board’s  Part II declarations can be viewed on the town’s website.  The board declared there will be little or no  impact for all but two of the criteria. “Moderate to large impact” were declared for:

 — “The proposed action is inconsistent with the predominant architectural scale and character,”  and

 — “The proposed action is inconsistent with the existing natural landscape.”

Schwendeman has complained  that the visual impact assessment study performed by the sheriff’s office  — which included photos taken from 22 vantage points when a crane the same height as the tower was erected  at the proposed site — was inadequate and poorly done.  The crane test was conducted after an earlier balloon test failed when the balloon floated away.

The crane test photos are viewable on the town website, under “Communications Tower information packet.”

The photos, in fact, are difficult to interpret.

Part III of the environmental assessment requires the respondent to make an overall determination if the project will  have “significant adverse effects on the environment.”  The board’s negative declaration means no environmental impact study need be conducted.

Approved, with conditions

The board tower approval came with three conditions:

 — Albany County must  remove the tower should the technology become obsolete.

 — Yearly maintenance reports must be submitted to the town’s code enforcement officer.

 — The height of the tower must not exceed 160 feet.

Chairman Rapp declined to comment on the approval. He said minutes of the meeting and related documents are available on the town website.

U’hai Mountain, a local landmark mentioned in  the Berne-Knox-Westerlo alma mater, is visible from the  school’s  lower athletic fields. It  rises steeply behind — and close to — Helderberg Trail (Route 443), the hamlet’s main street.  

The whole of U’hai,  including its higher elevations and summit, are visible only from parts of the hamlet that don’t  lie directly under it.  From Fox Creek east  to the Berne-Knox-Westerlo schools — and from the buildings in between— only the lower slopes of U’hai are visible.

However, further north and east along Helderberg Trail — from the town highway garage and the town park to the east, as well as from many homes to the north — U’hai becomes fully visible.

The U’hai tower will  join 13 other sites as part of  the county’s upgrade to its communications system, from a Very High Frequency system to a trunked 800 megahertz two-way radio system that enables computer-controlled assignment of open channels to users.

The tower will also support  microwave dishes for county-wide interoperable communication — meaning all public entities can talk to any others — as well as VHF antenna for fire paging. It may also someday support commercial cell phone antennas and internet/cable providers.

Current cell phone coverage in Berne and  the Hilltowns in general can be spotty, erratic, and, in some locations, non-existent. A Verizon antenna is mounted on a church steeple in the hamlet, next to the secondary school.

Planning by the sheriff’s office for the upgraded system began three years ago.

Coeymans tower already up

The Berne tower is one of three new towers needed, the sheriff asserts,  to improve first-responder communication in the hilly terrain  of  southern Albany County, and to link this most rural part of the county (“Country,” in the system lingo) with the rest (“Metro”) of the upgraded system.

The Metro portion of the new system uses existing towers and buildings.

One of the three rural towers, located on a hill bordering Biers Road in Coeymans,  sailed through town approvals without meeting any resistance. Like the Metro part of the system, that tower is up and running.

The tower proposed for Edward Hill in Rensselaerville, however,  met with stiff opposition before being approved by that town’s  planning board.  After that approval,  the citizen group Scenic Rensselaerville petitioned in state supreme court, the first rung in a three-tier system, to render void the board’s approval on several grounds. Among them is Scenic Rensselaerville’s  claim that the board failed to uphold the town’s comprehensive plan, which calls for preservation of designated scenic vistas, including the one where the tower would stand.

No ruling yet    

When a decision will come in the case is not known.  On Monday, a remaining technicality was resolved when attorneys for the county, town, and Scenic Rensselaerville met with State Supreme Court judge Gerald Connolly in his chambers. According to one of the participating attorneys, the parties agreed that all briefs have now been filed. The matter is now for the judge to decide.

Attorney Jacqueline Phillips Murray, who is representing the county and its sheriff's office, said it’s impossible to say when a decision may come. She said that if the motion filed by Albany County  to dismiss the petition is granted, Scenic Rensselaerville then must decide whether to appeal the decision up to the next, and middle, level of the state court system, the Appellate Division.

If, on the other hand, their petition is granted, it is virtually certain that the county will file an appeal.

Asked if the Sheriff Department might go ahead and erect the towers before a decision is handed down, she said she didn’t know.  The petitioners have not asked, she pointed out, for an injunction to prevent the towers being built.  The Scenic Rensselaerville suit, filed in December, is an Article 78 petition, typically used by citizens to challenge government actions.

The group is represented by attorney Victoria Polidoro with the Rhinebeck law form of Rodenhausen Chale.

She said after the Monday conference that she expects a decision to be forthcoming in “the next few weeks.”

Asked if Scenic Rensselaerville would appeal an unfavorable decision, she said that might “depend on what grounds their petition is dismissed. If it’s on a narrow technical ground, an appeal would be less costly. But if on several grounds, the appeal would be more complex and costly.” Either way, she said, there would be “substantial” additional cost to the citizen group.

Attorney Murray said that if the sheriff were to go ahead and build the Berne and Rensselaerville towers —based on planning board approvals in both towns, but before the current lawsuit is settled — “vested interest,”  the investment the county would already have made in the towers, might influence the outcome favorably for the county.

There has been no legal challenge  to the Berne tower.  But opposition has been vocal. Some have accused the sheriff’s office of selecting the site  without considering other locations or without looking at the use of multiple but shorter towers.

Attorney Murray said at that hearing that the height of the tower might be reducible to 160 feet, without compromising its capabilities.

The new Berne tower would also be seen from roads in the neighboring town of Knox, especially from Rock Road and Pleasant Valley Road, which run along the town line separating the two towns.

Asked if the Berne planning board had invited input from Knox residents or officials,  both Town Supervisor Vasilios Lefkaditis and Planning Board Chairman Bob Price said that that had not happened.  Price, said however, that the town had received a letter from Berne, informing them about the tower.

Asked if he would consider the tower a “cross-border” issue, Lefkaditis said he would.