Federal complaint alleges “arbitrary” denial of permit
By Liz Schevtchuk Armstrong
Homeland Towers and Verizon Wireless sued the Town of Philipstown on Feb. 20, alleging it violated federal law and acted in an “arbitrary and capricious” manner to deny permits for their proposed 180-foot cellphone tower near the Route 9-Route 301 intersection. The tower was planned for a privately owned parcel off Vineyard Road.
Using the name of their joint enterprise, New York SMSA Limited Partnership, the companies filed the case 29 days after the Philipstown Zoning Board of Appeals (ZBA) and Conservation Board voted to deny its application to construct the tower, which needed a special-use permit from the ZBA and a wetlands permit from the Conservation Board.
On Jan. 22, ZBA members voted 4-1 to deny the permit, citing a series of reasons, including a lack of need for another tower in a town that already has nine and the negative impact on Philipstown’s scenic and rural character.
In its 6-0 vote the same night, the Conservation Board also denied the permit, citing fears of harm to a wetlands buffer. Its members earlier had issued a statement saying the board had “never allowed a building in a wetlands buffer or encroachments on water courses unless there is an absolute, compelling reason to do so.”
The boards spent dozens of hours from June through January scrutinizing the proposal and listening to comments about it — largely negative — from neighbors and other residents.
The 72-page complaint, filed with the U.S. District Court for the Southern District of New York, names the Philipstown Town Board; the ZBA; the Conservation Board; Greg Wunner, the building inspector and code enforcement officer for the town; and Max Garfinkle, the town’s wetlands inspector and natural resources review officer.
Filed by Robert Gaudioso, Homeland Towers’ attorney, the complaint asks the federal court to order the town to immediately issue the necessary permits; return thousands of dollars in application and escrow fees, which it described as “an illegal tax”; and pay the plaintiffs’ attorney fees and other, unspecified, “damages and interest.”
In part, the complaint alleges that:
- The ZBA and Conservation Board each issued “an unwritten, verbal denial” of the application and “failed to meet the requirement for a written decision” — a resolution or similar formal statement accompanying each board’s vote.
- ZBA members’ votes “were not supported by substantial evidence in the record, contradicted evidence” from town and Homeland-Verizon consultants, and were “unreasonable, arbitrary, and capricious and not supported by law.”
- The Conservation Board offered nothing “clearly indicating” its reasons for denying the application.
- The town failed to act on the application, filed in May, “within a reasonable period of time.”
- Town officials, in essence, denied “provision of personal wireless services to current and future potential subscribers.”
- Supervisor Richard Shea and other Town Board members improperly influenced ZBA and Conservation Board members through various means, including expressions of support for the ZBA’s work and Shea’s criticism of cell-tower companies at a public hearing on a separate but similar Homeland Towers application filed with Nelsonville.
- By denying the application, the town is “preventing Verizon and the [North Highlands] Fire Department from installing equipment needed to improve service” and thus “causing irreparable harm to the public interest in deprivation of reliable emergency communications.”
The complaint also faulted town officials for “catering to a small but vocal group of politically influential objectors.”
Shea said Thursday (March 1) at the Town Board’s formal monthly meeting that “we look forward to defending that [case]. Right now we’re formulating a plan” with attorneys. Philipstown must reply to the lawsuit by March 14.