Two lawsuits now in federal court, the other against Philipstown
By Liz Schevtchuk Armstrong
Homeland Towers and its partner, Verizon, have sued the Village of Nelsonville, alleging its zoning board made an “arbitrary and capricious” decision to deny its application to build a cell tower overlooking the Cold Spring Cemetery.
The companies asked a federal judge in White Plains to compel Nelsonville to issue the permit and pay its legal costs and financial damages.
Homeland Towers’ attorney Robert Gaudioso filed the 62-page complaint in federal court a month after the Nelsonville Zoning Board of Appeals voted 3 to 2 vote to deny a special-use permit for the tower.
In February, Homeland and Verizon sued the Town of Philipstown after its ZBA denied a permit to build a separate tower on Vineyard Road, off Route 9, about 1.3 miles from the proposed Nelsonville site. Both legal actions are pending in the U.S. District Court for Southern New York.
Nelsonville Mayor Bill O’Neill, who announced the Homeland lawsuit during the July 16 meeting of the Village Board, said he had no comment on the allegations. But he said that “the more I read [in the complaint], the more confident I feel about our position.”
The ZBA’s May 30 vote followed 10 months of scrutiny of the proposed 110-foot tower, which Homeland and Verizon say is needed to fill gaps in wireless coverage but which many residents fiercely opposed as intrusive and unnecessary.
Homeland Towers wanted to construct the Nelsonville tower, disguised as a fir tree, on a 9.5-acre wooded lot near Rockledge Road on a steep hillside. The firm, headquartered in Danbury, contracted to buy the property and AT&T, along with Verizon, planned to install equipment on the tower. The complaint said it was also expected to accommodate emergency services and two more unnamed carriers.
In voting no, the Nelsonville ZBA majority concluded that the structure was not compatible with the surroundings; that there was no significant gap in wireless capabilities, or a need for a tower; and that, under the zoning code, a cell tower would be inappropriate at the Rockledge Road site.
Homeland’s complaint, dated June 29, accuses the ZBA of providing “vague and convoluted justifications” and using “incorrect and irrelevant legal criteria” to veto the tower. It also claims the decision was “not supported by substantial evidence,” constituted “a prohibition on personal wireless services” and violated federal telecommunications law.
Further, it alleged that the denial made the property it had purchased for the tower “valueless and undevelopable,” and thus was “an unconstitutional or otherwise unlawful ‘taking’ of Homeland’s property without just compensation.”
The complaint cites suspicions that O’Neill and other community leaders and residents collaborated to pressure the ZBA to reject the project. Further, without elaborating, it alleges the Village Board, ZBA and Planning Board “conducted unnoticed and secret executive secessions [sessions] to deliberate and discuss the application, in violation of the law.”
Homeland representatives say in the lawsuit that in February 2016 they spoke with O’Neill, who then chaired the Planning Board, about locating a tower in Nelsonville. Immediately afterward, the complaint continues, O’Neill “prejudiced the process” by purportedly informing the Village Board and declaring “that he would do everything he could to oppose the facility, including going door-to-door to organize opposition.” O’Neill was elected mayor in 2017.
In addition, the companies protested fees charged by the village — $850 for the application, $500 for title reports and $19,500 in escrow. It called the charges “unfair, unreasonable, unnecessary, discriminatory and an illegal backdoor ‘tax’” and asked for a refund with interest.
According to the court calendar, the village must answer the complaint by Monday, July 23.
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