AT&T alleges violations in permit denial
By Liz Schevtchuk Armstrong
AT&T has sued the Village of Nelsonville for its denial of permits for a 110-foot cell phone wireless tower overlooking the Cold Spring Cemetery, alleging violations of federal and state law and adding its voice to the complaints raised by Homeland Towers and Verizon Wireless in their lawsuit against the village.
In its 11-page complaint, filed on June 29 in U.S. Court for the Southern District of New York, AT&T cited its desires as a wireless tenant to locate its equipment on the tower proposed by Homeland Towers (a tower-construction firm) and Verizon.
AT&T asserts that the village refusal to allow the tower “barred entry of AT&T to provide telecommunications services in the village,” in violation of federal telecommunications law. It filed its complaint the same day that Homeland Towers and Verizon filed their case against the village.
AT&T asks the court to order the village to issue permits for the tower, designed to occupy part of a hillside on Rockledge Road, above the historic cemetery. The tower needed, first, a special-use permit from the village Zoning Board of Appeals, and, beyond that, site plan approval from the village Planning Board.
In a four-page response filed on Tuesday (Aug. 14), the village, without elaboration, tersely denied nearly all 50-plus allegations and argued that another two or three raise points that fall under state, not federal, court jurisdiction. A federal judge scheduled an initial discussion of the case for Sept. 19 in White Plains.
Nelsonville Mayor Bill O’Neill noted the lawsuit at a Nelsonville Village Board workshop on Wednesday (Aug. 15).
The village’s response was filed by Terry Rice, a Suffern-based attorney assigned by the village’s insurance firm. (He has similarly been assigned by the insurers to the case Homeland Towers brought against the Town of Philipstown for refusing to allow a cell tower on a hillside off Vineyard Road, near the intersection of Routes 9 and 301.)
Nelsonville’s ZBA voted on May 30 to deny the special-use permit, ending 10 months of public meetings and submission of stacks of documents from those either for or against the tower project. The telecommunications companies termed the tower essential for filling a gap in wireless coverage. Many residents fiercely disagreed and said a tower would be intrusive and unnecessary.
AT&T’s complaint repeats the assertion about the existence of a significant gap in service and states that “a substantial number of users” — it does not give a figure — “are unable to rely on their ability to use their personal wireless devices to make and maintain a connection of reliable quality,” including in emergencies.
Being able to reach 911 “from within structures … is an important public safety consideration given that 70 percent of 911 calls are made from personal wireless devices and over half of households nationally no longer utilize landline service,” AT&T declared.
The suit also contends that the proposed cell tower, disguised as a fir tree, “satisfied all requirements for approval” under Nelsonville’s zoning law, that no available site except Rockledge Road will work in filling the coverage gap while meeting zoning law demands, that the record from Nelsonville’s lengthy review “contains no credible evidence from any qualified expert that the facility would have any significant impact on scenic or historic resources,” and that the tower “would be the least intrusive means of providing reliable, personal wireless services” to address “the significant gap.”
In short, it asserts, the village’s refusal “has the effect of prohibiting the provision of personal wireless services,” contrary to federal law, and constitutes “arbitrary, capricious, unreasonable actions and abuses of discretion,” violating the state law on property use.