WED: Much about Armonk Road cell tower—both law and community character—is up in the air

The ZBA continues its discussion on Homeland cell tower Wed. May 28 @ Town Hall

A rendering of the tower by Homeland-Verizon showing three of six possible arrays of antennae
Saturday, May 24, 2014 [Originally published on Tuesday, April 22, 2014]
by Christine Yeres

When Planning Board members speculated during last week’s as to why Homeland Towers and its client, Verizon, were not interested in pursuing alternatives to the 150-foot cell tower Homeland is proposing for Armonk Road, an attorney for residents of Whippoorwill Lake Road was ready with an answer: “Because Homeland Towers doesn’t make money doing that.  Homeland makes money building towers like this.”

Tuesday’s public hearing began with Planning Board members discussing which color—gray or brown— was less obtrusive for Homeland’s 150-foot tower for six wireless providers, with Verizon as its chief backer.  The proposed location is the 22-acre property of Alfredo’s Landscaping on Armonk Road. 

But when Andrew Campanelli, an attorney hired by residents opposing the tower, took issue with Homeland’s assertions—Why 150 feet high? Why space for six carriers?—Board members were in for a tutorial.  His purpose, he said, was to show Board members that the application should be denied, and how to do so without “running afoul” of the Telecommunications Act of 1996.

Over the months, the Planning Board has suggested to Homeland a shorter tower or ‘distributed antenna systems’—small boxes on utility poles with antennae mounted on existing phone poles—as less obtrusive solutions for the Armonk Road corridor, but Homeland’s attorneys have insisted that Verizon needs the 150 feet. 

And would 150 feet be the end of it?

“People are upset,” Planning Board member Tom Curley told Homeland’s attorney, Robert Gaudioso.  “They want to know ‘Is this as bad as it’s going to get, or could it get worse?’” Gaudioso was unable to say Homeland would not come back one day for another 20 feet.

And they won’t have to ask, claimed Campanelli.  Once a 150-foot tower is built, he told Planning Board members.  According to federal law, as long as a tower remains under 200 feet in height, the carrier is exempted from seeking approval for an additional 20 feet.

Campanelli told Planning Board members that “adverse aesthetic impact” of a “a 15-story commercial structure in a largely residential area” was “a perfectly valid basis on which to deny the application,” noting that municipalities are increasingly opting for shorter towers, even it that means more of them.  The renderings Homeland had shown the Board, he said, were “nothing like what the tower is going to look like.”  And he produced a letter to his clients from two New Castle real estate agents claiming that with the proposed cell tower the value of their Whippoorwill Lake Road house could decline in value by as much as 25 percent.

According to the Telecommunications Act of 1996, said Campanelli, local boards cannot prohibit the provision of wireless services.  However, Homeland has to establish two things: First, that its carrier-client suffers from a significant gap in coverage.  “Not a few dropped calls,” he said, “but a significant gap.”  Second, if that’s proved, “then the applicant must establish that the proposed installation is the least intrusive method of remedying that gap.”

“That might mean,” Campanelli explained to PB members, “the minimum height necessary to remedy that gap.  Your town code asks you to determine what that is.”

“You [PB members] are the finders of fact,” he said. “So long as you take a reasonable approach, you have the authority to decide what to consider a ‘significant gap.’”

“So let’s see,” said Curley, “we need to know: one, whether there’s a significant gap, and two, what minimum height is necessary to remedy that gap.” 

Shorter towers, but more of them?

Curley noted that with six carriers’ antennae ten feet apart on the pole, if Verizon is at the top, then the sixth carrier would be sit the 90-foot mark—therefore 90 feet works for whatever carrier gets that spot on the tower.  “The 150 feet allows Homeland to have enough vertical real estate to add more carriers,” said Curley.  “But if the tower is only 90 feet tall, then no other carriers can be put on it.  Do we want that?”

“Someone has made a determination,” observed Campanelli, “that some wireless carrier can provide adequate service in this area at 90 feet. What that says is that they don’t need 150 feet.  Many jurisdictions are saying ‘No.  You’re getting 90 feet.’”

Research on the town’s part

“We had a consultant look at everything, didn’t we?” Brownell asked Town Planner Sabrina Charney.

“No, we had a visual consultant,” said Charney.  [See the consultant’s report HERE.]

“That consultant confirmed the applicant’s procedures and methodology [in conducting the balloon test],” said Planning Board Chairman Robert Kirkwood. “It didn’t go into the substance.”

“There was only computer modeling done,” noted Campanelli. “No testing.  And according to Verizon’s online maps, it claimed it had 100% coverage in the area.”  He asserted that Verizon had the means to calculate exactly how many dropped calls they have along the 128 corridor, implying that Homeland’s failure to produce such research might mean that the numbers don’t show a “significant gap.”

“Why would Verizon want to locate on a tower where it has no gap in coverage?” asked Planning Board member Sheila Crespi.

Homeland as a “vertical real estate developer”

“First of all,” said Campanelli, “it’s not Verizon building the tower.  It’s Homeland Towers, a site developer.  They go and find as many spaces for towers as they can and they build them as tall as they can. If they collect $3,000 a month from each of six carriers, that’s $18,000 a month.”

“I think what you’re saying,” Curley summarized, “is that Verizon really doesn’t need this right now, but may want it for more capacity in the future.”

“They may want if for capacity now,” said Campanelli. “But that has more to do with data download than cell and text service.  The circuit courts say they can’t force you to allow data capacity.”

The public weighed in at this point.

Many testified that the 150-foot pole with its bristle of antennae would be an eyesore in the area.  On resident observed that “people shouldn’t be talking on their cell phone while driving anyway.”

While many acknowledged some spottiness in coverage, “It’s not a problem for us,” noted one resident “And so who is it a problem for?”  Several residents had organized to keep logs of their cell phone call experiences at various locations.

“This is even conditional for Verizon,” said the last resident to speak, ”— ‘If you build a tower 150 feet we will come, if you don’t I’m not coming’— So the only thing driving this application is greed—by Homeland, by Alfredo’s.”

[See video below plus a Table of Contents with time markers.]

Homeland attorney responds

“We believe we’ve shown a need,” said Gaudioso. “It’s not just Route 128, it’s not just phone calls a texts.  It includes data and capacity.  The need for wireless service now is for phone service and data use.  For people walking their dogs on the street and for people in their homes.  The service degrades when you go inside a house.  It degrades with the speed of a car.”

Homeland’s assertions were arrived at scientifically, not by anecdotal evidence, said Gaudioso. 

“When you look at the maps for 76 and 80 Whippoorwill Lake Road it shows the balloon 1,000 feet away,” said Gaudioso. “And that’s not a significant impact from those properties.”  The cell tower location was chosen by Homeland, he said, precisely for its distance from residences and for its unobtrusiveness.

Gaudioso asked that the public hearing be closed or rescheduled for the next possible date.

Campanelli spoke once more, telling Planning Baord members that if they were to deny the application—properly, in his opinion, on the basis of “adverse aesthetic impact”—but allow Homeland-Verizon’s evidence of a coverage gap and of least-intrusive-means to go unchallenged, Homeland-Verizon could go to the court, show that its evidence was on the record and that the Planning Board offered no evidence to the contrary, and a federal court would order the tower to go up. 

The Planning Board’s takaway

Crespi suggested that the Plannig Board needed the guidance of its own counsel [Les Steinman, who was absent that evening] on the questions of law raised at the public hearing. “If we’re looking at testing for ‘significant gap in coverage,’ and what that methodology should be,” said Crespi, ”—and if it’s not anecdotal and not computer modeling—what we should be looking at?”

“Yes,” said Curley, “and the matter of law raised here that not only do we have the right to pursue whether there is a gap in coverage, but whether it’s our prudent obligation to do so.  That’s the kind of thing we need to know about.”

Brownell asked Homeland for more three-dimensional analysis, including elevations for Route 128, and urged Homeland to contact several residents whose homes are across from the site who may have been missed during the balloon testing.  Their screening should be assessed, he said.

Zoning Board of Appeals is examining the site’s special permit

On another front, because the Homeland cell tower proposal would need an alteration to the existing special permit for Alfredo’s Landscaping, the Zoning Board of Appeals is examining the special permit by which Alfredo’s operates a nursery in the otherwise two-acre residential zoning along Route 128.  Residents have suggested that the business is currently violating the terms of its existing special permit. Charney told Planning Board members that the matter was still under review by the ZBA, which meets the last Wednesday of every month.

Next public hearing date May 20

The Planning Board set the continuation of the public hearing for Tuesday, May 20.

Related:  NYS’s legal advice to towns on how to deal with cell phone tower applications


Table of Contents for video of the April 16 Public Hearing

0 hours 0 minutes: Homeland attorney responds to questions from PB members.

0 hours 28 minutes: Andrew Campanelli, attorney for residents opposing the cell tower

1 hour 16 minutes: Comments by members of the public

1 hours 51 minutes: Tom Curley “comments on the comments,” invites residents to participate in the town’s Master Plan review.

1 hour 57 minutes: Homeland attorney responds to criticisms by residents’ attorney

2 hours 09 minutes: Public hearing ends

 

Town of New Castle Planning Board Meeting 4/16/14 from New Castle Media Center on Vimeo.

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