Residents, village layer up lawyers
By Liz Schevtchuk Armstrong
The latest round of a continuing public hearing by the Nelsonville Zoning Board of Appeals on a cell tower proposed for Rockledge Drive consisted of another three hours of intense, three-way interaction that ultimately produced an extension, into January, of both the hearing and the deadline for the village to rule on the project.
Attesting to the depth of controversy, residents opposed to the tower brought legal and technical experts to the Tuesday (Nov. 28) session, held in Philipstown Town Hall to accommodate an audience that still spilled onto floor space and thronged in the doorway after the chairs were filled, as happened at the first hearing session on Nov. 15.
Homeland Towers, the firm proposing the tower with Verizon Wireless, again brought a several-man legal team; and before the hearing ended, the Zoning Board of Appeals and its partner in the review, the Planning Board, voted to augment their own advisors with a consulting firm, AKRF.
At issue is Homeland Towers’ application to construct a 110-foot tower on 9.6 acres off Rockledge, a dead end that connects with Moffatt Road, which twists uphill from Route 9D to a village district zoned mountain-residential. The site overlooks the Cold Spring Cemetery.
Homeland Towers filed the application with the Village of Nelsonville on July 17, triggering a 150-day FCC “shot clock” for the ZBA to decide whether to grant a special-use permit. Along with the ZBA permit, under village law the tower needs site-plan approval from the Planning Board.
Because the village did not formally find fault in the application within 30 days of July 17 and thereby delay the shot clock, the deadline for village action was Dec. 17. However, before the Tuesday session adjourned, Homeland Towers and the ZBA agreed to extend the deadline to Jan. 8. The boards also kept the hearing open, scheduling the next session for Jan. 4.
The ZBA received new materials Tuesday from tower opponents, but old questions arose concerning the need for the tower, the extent of the applicant’s rights, and the village’s obligations under federal telecommunications law.
Cell tower attorney Robert Gaudioso again maintained that “it’s not the applicant’s burden of proof to show that there is a significant gap” in wireless service or that the proposed cell tower “is the least intrusive means” of filling it.
Challenging what he termed Gaudioso’s “misconceptions” and “misrepresentations,” Jason Biafore, an attorney for the newly formed citizens’ group Philipstown Cell Solutions, which opposes the Rockledge tower, said that Nelsonville’s zoning code requires applicants to prove the need for a cell tower and that federal courts “have held over and over that actual need refers to a significant gap.”
He questioned “where counsel [Gaudioso] is coming from when saying they don’t have to show a significant gap.” Biafore alleged that much of Gaudioso’s presentation at meetings “has been a misrepresentation. It’s meant to intimidate” and “browbeat” the ZBA into a hasty decision favoring Homeland Towers, he charged.
Gaudioso again referred to Section 253 of the federal Telecommunications Act, claiming that it “specifically and expressly says a municipality may not prohibit any telecommunications service” and that “it doesn’t distinguish between voice service, data service, and so forth and so on.” Currently, he said, often phone call “voice service is provided as a data service,” so the issue of “voice versus data is a red herring.”
Section 253, on “removal of barriers to entry,” stipulates that “no state or local statute or regulation, or other state or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” It does not specifically mention cell towers, or state that local governments must guarantee companies freedom to use them to deliver all types of service everywhere.
In a written report to the board, Philipstown Cell Solutions argued that activities such as “sharing iPhone photos, streaming Netflix, etc., is not granted the same ‘essential’ status that mobile voice common-carrier services are afforded under the Telecommunications Act.”
Critics of another application by Homeland Towers to construct a tower on Vineyard Road in Philipstown have made similar arguments.
Richard Comi, of the Center for Municipal Solutions, which provides telecommunications expertise to local governments, an advisor to Philipstown Cell Solutions, concurred with Biafore that the Nelsonville zoning code demands that cell tower applicants demonstrate a need. Moreover, he said, “I’ve not seen anything that says they [wireless companies] have to have ubiquitous service” at all levels.
A West Point graduate and former Cellular One executive, Comi noted that the tower has been seen as a replacement for the wireless antennas removed from the old Butterfield Hospital roof before the building was demolished a few years ago. But the hospital was in Cold Spring, not Nelsonville, he observed. “There’s nothing I’m aware of that says because [a wireless company] took down a site in another community, this community has to give you one,” he said.
Responding, Gaudioso attacked Comi’s credentials and said that earlier this fall Nelsonville had hired a consulting engineer who, like Homeland Towers, concluded “that carriers had significant gaps in service” locally.
Similarly, Gaudioso declared that Nelsonville’s village attorney had agreed with Homeland Towers “that we’re allowed to bring utilities” to the Rockledge tract via an old right-of-way across the property of a neighbor who objects to the tower.
But Mark Blanchard, an attorney for the neighbor, asserted that the right of way simply grants authorization to cross the property, not to use it as a gateway to a large commercial venture operating “at the expense of your neighbors.” As a user of the right-of-way, Homeland Towers “is not allowed to make permanent changes” to it, he said, advising the ZBA to not condone anything that harms his client.
The boards also heard from residents.
Eleanor Chew, a 9-year-old Haldane student, informed the Homeland Towers delegation that “my mom has always told me to stand up to bullies and have my friends’ backs. You, sirs, are bullies. Please don’t put an eyesore of a cell tower in our lovely town.”
Heidi Wendel and Joe Hirsch moved to Nelsonville in September after visiting regularly for some 20 years to hike and enjoy nature. Opposing the tower, Hirsch predicted “it would hurt the aesthetics of the village and bring down property values” and “be a major intrusion aesthetically, historically and psychologically.”