BAD NEWS FOR EDGEMENT: TOWN MISMANAGEMENT RESULTS IN COURT ORDER REQUIRING TOWN TO ISSUE PERMITS FOR CELLPHONE ANTENNAS IN EDGEMONT NEIGHBORHOODS A federal judge has ordered the Town to grant special permits to a cell phone antenna company allowing them to install up to 20 antennas or “nodes” on telephone poles on residential streets, mainly in Edgemont and Hartsdale, and a few other areas of unincorporated Greenburgh. News of the ruling, which was issued more than 10 days ago, was announced not by Supervisor Paul Feiner, but by Town Supervisor candidate Bob Bernstein. Mr. Feiner, whose conduct was criticized in the court’s ruling, never disclosed the ruling was issued. In a 45-page decision released July 3, the court specifically rejected the Town’s stated reasons for denying the permits – that the antenna company had not shown it needed the antennas to fill a gap in its cell phone service and that boxes containing the antenna equipment to be installed on telephone poles weren’t “minimally intrusive enough.” Moreover, in echoes of the Fortress Bible ruling, the court said the “weakeness” of the Town’s reason for denying the permits “raises a question as to whether the Town’s stated reasons were a pretext.” In Fortress Bible, the court likewise found the Town’s stated reasons for refusing to grant a church a permit to build were likewise a “pretext.” Here, the court suggested the Town was motivated more by public health concerns – which federal telecommunications law strictly prohibits local governments from considering – and specifically criticized comments made by Mr. Feiner who, the court stated, “himself voiced a concern that ‘people generally don’t trust, you know, the government when they say it’s safe,’ asking whether independent or ‘Ralph Nader type organizations’ or other “groups that would normally be opposed to like anything [could] confirm the safety.” The court said the Town’s finding that the applicant, NextG, had failed to show it needed the antennas to be in a residential area to fill in a gap in coverage was based on a misunderstanding by the Town of the relevant law. The court said the Town didn’t look at whether NextG’s customer MetroPCS had a gap in coverage, but rather that cell phone users in the area had a gap in coverage. Because competitors of MetroPCS, such as Verizon and AT&T both covered the areas in question, the Town concluded there was no “gap” in service requiring installation of the antennas. While the court in such circumstances would normally remand the case back to the Town to consider the permits under the correct legal standard, the court here refused to do so, citing years of foot-dragging by Mr. Feiner and members of his administration in the handling of NextG’s application. “This is not one of those cases where a remand would be appropriate, primarily because of the lengthy delay in processing its applications that Plaintiff has already suffered, “ the court said. “Plaintiff first contacted the Town in 2009, and the Antenna Law process began in June 2010. After nearly a year and a half of back and forth with the [Antenna Review Board], Plaintiff submitted its complete application for special permit to the Town on November 15, 2011.” The court said the Town then took 252 days after submission of the completed application before issuing its written decision denying the application on July 24, 2012. The court said the 252-day time frame was “well beyond presumptively reasonable.” “From the close of the public hearings, it took over four months for the Town to render its decision, after conducting public hearing on the matter for close to four months,” the court said. “The bureaucratic hoops, through which Plaintiff was put, along with the rest of the record, suggest that the Town would be no more interested in a prompt disposition now than it was beginning in 2009. This is a paradigmatic case where remand would only further and unnecessarily delay the processing of Plaintiff’s siting application. Accordingly, the appropriate remedy in equity is an order requiring the issuance of the special permits sought.” Because of the court’s refusal to issue a remand – as a result of the Town’s mishandling of the case – the Town is now no longer able to consider the arguments made by the ECC showing why NextG’s application should have been denied. Under the Town’s Antenna Law, cell phone antennas must be located only in non-residential areas – where they can be installed “as of right” – unless the applicant can demonstrate that locating the antennas in residential neighborhoods is necessary to address “gaps” in coverage. The ECC argued to the Town that NextG had failed to meet that burden because it falsely represented to the Antenna Board it could not obtain access to telephone poles in non-residential areas along state rights of way, such as Central Avenue, because its competitor Crown Castle had exclusive access to such rights of way. The ECC had shown in public hearings that, in fact, NextG could have obtained such access – and thus avoided placing its antennas on telephone poles in front of private homes along Edgemont streets such as Old Army Road – but that it objected to paying the fee that Crown Castle would charge. The argument grew even more compelling when it was learned, as the hearings were underway, that Crown Castle was acquiring NextG – thereby removing any impediment to locating the antennas along roads like Central Avenue. Because the Town mishandled the NextG application, these arguments were not considered. Edgemont’s only hope to undo the huge damage done by this latest court ruling is if the Town is to appeal. The Town normally has 30 days to decide whether it will file a notice of appeal. That 30-day period runs out on August 3. A copy of the court’s ruling is on the ECC website: edgemontcommunitycouncil.org/NEXTG-Order-and-Decision7.3.13.pdf
Posted on: Sun, 14 Jul 2013 15:06:49 +0000
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