No objections, let's go ahead.

It's a little bit after five o'clock, so let's begin the hearing in this matter.

My name is Administrative Law Judge Max Garner.

I am here doing a very difficult job, which is filling in for the assembly.

So it's a unique set of circumstances.

I'm grateful to the parties for your assistance in helping us get to this point in, I think, fairly smooth and orderly fashion.

I believe everybody probably has seen the agenda or at least the outline of how the proceedings are going to be going forward tonight, but just in case I'll just briefly cover those.

We will begin with the staff presentation.

And Ms.

Jones, I'm inferring that you will be doing that on behalf of the uh of the city.

Am I correct on that?

That's correct, Judge.

Thank you.

Um will there be anybody else that you'll be splitting time with in terms of the presentation?

Uh not for the initial presentation, perhaps on rebuttal.

Um I might split time with Miss Ainsley, the planning director.

Okay.

And she is uh also remote.

I believe that's correct.

Miss Ainsley, are you there?

Yes, I am.

Thank you for checking it.

Okay.

Um after that, we'll have the applicant presentation.

Uh, that'll be led by uh their counsel, Mr.

Bonner.

And will there be anybody else that'll be splitting time with you?

Um I'm afraid not.

I'm not I think it's uh my job.

Okay.

You don't get to share the burden with anybody else, is what you're saying.

Um and then from there we will get into the public comments.

Uh that will be limited to three minutes per person.

Um, although we do have counsel for several individuals who is here, Mr.

McCullough is over there in the front row.

When we get to the public comment section, I'm going to have you go first just as a convenience to myself, as much as uh I don't want to make anybody think that just because you're a lawyer we're treating you special.

Um, but it would help me in terms of analyzing some of the issues if I could be hearing from you immediately after we have the presentation from the the borough attorney and the applicant.

Um then after that it'll be public comment again uh three minutes.

I I know that that's not a lot of time, but we've got a lot of people I think that wanted to offer some comment here tonight, and we want to be treating everybody equally, so that is the limit that we're going to be living with.

And there's the timer, the clock, everybody's on the clock here, so pay attention to that, please.

And um when that gets to zeros, I will be asking you to uh uh to politely um uh sit down and give the floor over to somebody else.

Um questions we have from any of the parties before we begin.

Do not see any.

So uh with that, Ms.

Jones, let's go ahead and start your 20 minutes and let's proceed with the presentation.

Thank you, Judge.

Um, so yeah, just by way of brief introduction, I'm Rachel Jones, uh, the municipal attorney, and I was involved with these proceedings uh at the planning commission level, kind of behind the scenes, uh interacting with staff for some of the determinations uh that they made uh and and uh advise the planning commission about.

Uh one of the things which I want to address up front, uh, because I think there was a misstatement.

Um, we were moving quickly on the uh motion to intervene and the the order denying that um is that just to clarify that we're uh not here on an appeal from a conditional use permit, we're here on an appeal from a variance.

Um the reason I want to kind of dig into that for a second is that um you know, underlying this entire inquiry is is um at least for the the federal question that will come a little bit later on in my um presentation is is this question of whether SICA is prohibiting uh the provision of cell towers.

Um and I want to make clear from the start that not only does SICA not prohibit that, but the uh inquiry that that I went through with staff in addressing a public-facing cell phone tower, you know, not a let's say a hand radio operator putting an antenna on his house for his personal use, but an antenna um like the one title has proposed a tower that's going to provide services to the public at large.

Uh we determined that that is a public facility that's available as of right in all zones in SICA.

Um, so so far from prohibiting the use, um cell towers, radio internet towers are allowed everywhere in CICA provided that they meet the other conditions of that zone.

So we're really not dealing with a use question here.

The use is permitted as of right.

And the question before us is a variance whether whether the applicant has met the criteria or whether the planning commission correct whether the planning commission correctly found that the applicant did not meet the four criteria, and then that state law provision for going four times higher than the R1 zone allows for any other structure.

And so just wanted to clarify where we're at from the outset on that that matter that we're here, we're here for a variance and the use is not in question.

The use is available as of right, subject to that 35-foot height requirement.

The next kind of big picture thing I wanted to address is that a lot of titles briefing deals with the fact that staff actually recommended approval and then the planning commission denied it.

The staff takes in the application, reviews it in accordance with the code, makes sure it's complete and makes an initial recommendation to the planning commission within the expertise of that staff.