But allows other changes to Nelsonville road
Astate judge on Monday (Dec. 11) ruled that Homeland Towers cannot dig up an access road to bury utility lines for a planned 95-foot cell tower overlooking the Cold Spring Cemetery in Nelsonville.
But she said the company can make other changes to the road, subject to a building permit Nelsonville issued in 2020 to settle a federal lawsuit.
In her decision, Judge Gina Capone discounted claims by neighbors that the right-of-way shared by property owners only allows the company to enter and exit its 9.6-acre parcel at 15 Rockledge Road, and that the commercial use of the property is incompatible with a residential subdivision.
Neighbors have battled Homeland and its partners, Verizon and AT&T, for more than three years over the proposed tower, which would be disguised to look like a fir but rise over the tree line.
“Our argument is that the scope of what Homeland proposes for the right-of-way is necessary only because it’s a commercial activity,” which shouldn’t be allowed, said Mark Blanchard, an attorney who represents the neighbors. “If Homeland were building a single-family home, it wouldn’t have to do anything to the road.”
Blanchard said that the issue may come down to whether Nelsonville’s building inspector decides that overland commercial electric infrastructure requires Homeland to submit a new site plan to the Planning Board, or if he simply revises the permit to allow the utility lines over the right-of-way or over or under private property with a neighbor’s consent.
Kelly Aran, an attorney for Snyder and Snyder, which represents Homeland, did not immediately respond to an email or phone call seeking comment.
After hearing arguments from the Rockledge neighbors, state Judge Thomas Davis issued a preliminary injunction in February 2022 that prevented Homeland from altering the right-of-way, such as widening or paving it to bring in construction equipment. On Monday, Capone kept that preliminary injunction in place for 30 days to allow challenges to her decisions with the state appeals court.
Nelsonville initially refused to grant a building permit for the tower. But after Homeland sued in federal court, the village in 2020 issued one as part of a settlement. The permit allows Homeland to widen the driveway, remove trees and resurface the road. Before Capone’s decision, it also allowed Homeland to dig trenches for cables and conduits.
As Davis had ruled in 2022, Capone said the legal definition of “right-of-way” is over, not under, land.
The neighbors also charged in their lawsuit that Homeland trespassed and created a nuisance, and that a surveying company spray-painted and drilled boring holes on their properties in January 2020. And they claimed that Nelsonville’s permit was obtained fraudulently because the former landowner, Doug Logan, did not tell the building inspector he was not the road’s owner. Capone dismissed those claims.
The judge noted testimony affirming past changes to the right-of-way “in a manner consistent with permitting construction, utility and large delivery trucks to access the properties” and to allow for emergency vehicles, which she said should be able to reach every address on the road.
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