MAHOPAC, N.Y. - In an epic battle between two attorneys, the lawyer for Homeland Towers, which seeks to build two cell towers in residential neighborhoods in Mahopac, and the lawyer who represents nearly 40 residents in those neighborhoods, went toe-to-toe during a Planning Board public hearing last week.
Homeland filed site plan applications for towers at 36 Dixon Road and 254 Croton Falls Road nearly a year ago, and since then, residents who oppose the plans have been meeting and plotting their strategies to have the applications rejected.
However, the residents are up against the 1996 federal Telecommunications Act, which treats wireless carriers like a utility and doesn’t leave local municipalities much latitude when it comes to disapproving such site plan applications.
But Andrew Campanelli, an attorney for Merrick, N.Y.-based Campanelli & Associates, who represents the residents, said that the Telecommunications Act is not as difficult to overcome as wireless carriers would have one believe. He went before the Planning Board at the Sept. 11 public hearing to lay out his case against both proposed towers.
“It is not enough to simply get you (the Planning Board) to deny the application; it is of equal import to me that it is denied for a reason that does not run afoul of the federal Telecommunications Act of 1996,” he said.
Campanelli argued three basic points: the aesthetic impact of the towers; the potential negative effect on property values; and the need of the towers.
As for the aesthetic impact, Campanelli said that the U.S. Court of Appeals, second circuit, has ruled that “adverse aesthetic impacts are a valid reason to deny the application.”
“I have included detailed letters from the homeowners explicitly detailing from their perspective the precise types of impacts they would sustain,” Campanelli said. “According to the Court of Appeals, these letters should be accepted as ‘substantial evidence’ of the actual impact they would sustain.”
Campanelli also attacked Homeland’s visual impact analysis, when the company performed crane and balloon tests last winter to simulate the visual impact of the tower at Croton Falls Road. He said Homeland presented colored photos of the crane and balloons at 140 feet but contended that the odds of the tower being 160 feet or higher are at least 85 percent.
“The visual impact analysis is inherently defective,” he said. “The whole purpose is to give a broad of adverse aesthetic impact, but the only photos were taken from public roads. No photos were taken from an actual home. [Homeland] wants to minimize the actual impact and the study should be discounted. It’s hogwash and the board should ignore it.”
However, Robert Gaudioso of the law firm of Snyder & Snyder, which represents Homeland, said the balloon/crane tests were actually done at 180 feet and added that Homeland received no requests to take any additional photos.
“We provided viewpoint locations to be reviewed by the board and took photos at every single viewpoint that was requested,” he said.
The issue of the height of both towers is currently before the Zoning Board of Appeals, which is considering a variance for each one.
As for property values, Campanelli argued that the board should ignore the studies Homeland presented, that conclude property values are not negatively affected by the presence of a cell tower. He urged the board to listen to what local real estate agents say instead.
“Ask any real estate broker, who will tell you the truth and will say when a cell tower is placed unnecessarily close to a home, it reduces the value of those homes,” he told the Planning Board. “Federal courts have ruled that professional opinion letters from real estate brokers are ‘substantial’ evidence. [Real estate agents] have an acute understanding of the real estate market here. The opinion is, if the tower goes up it will reduce the value of neighboring homes by 30 percent.”
“Unlike [Homeland], we’ve provided probative evidence of the actual adverse impact on property values,” he added.
Gaudioso countered that Homeland’s studies on property values is valid and supports the contention that they are not adversely impacted by a cell tower.
“Our report supplies the data; the data is 15 studies over five years from an MAI (Member Appraisal Institute) certified appraiser,” he said. “That appraiser confirmed that there was no [decrease] in property values. Fifteen studies, including studies from within the town of Carmel.”
Campanelli even questioned the need for the towers, criticizing the methodology of Homeland and Verizon’s studies that showed there are gaps in coverage in the two areas.
“If there were a significant need for it, the application would have been filed by Verizon and not a site developer like Homeland. Homeland does not provide any personal wireless service,” he said.
But Gaudioso noted that Homeland and Verizon were actually co-applicants and that Verizon is indeed a personal wireless service carrier.
But Campanelli also argued that Verizon’s very own website shows there are no gaps in coverage near either proposed tower.
“Verizon has a database of coverage that is accessible to the public,” he said. “There is a coverage map that will show you any significant gaps in service and the coverage level (the capacity where heavy traffic can’t handle all the calls). The database shows no gaps in coverage and the level of coverage described as ‘good.’
“You have zero hard data, you have fluff.,” he added. “There is no significant proof of gap in coverage.”
Gaudioso responded that there are 788 residents in gap area, adding, “I find it insulting when people say I’ve lied when simply their statements are incorrect.”
John O’Leary, who has a 23-year career as a radio frequency engineer and lives on Dixon Lane Drive, which is parallel to Dixon Road, said there is definitely a gap in coverage in the Dixon Road area.
“Since I moved in there, I’ve had all the carriers; there is no coverage there,” he said. “When you come around the bend, I know if I’m on my phone in the car with my headset on, the call is going to drop. You cannot make a call with any carrier and I’ve had them all. We are behind [with technology] now. If we don’t have the infrastructure, we are not going to have service. If they were able to provide the service without getting into residential neighborhoods, they would have done it. It is not in their interest to build a tower and go through a fight. My neighbors won’t like it, but I’m in favor of the application. It has become a safety concern.”
But Jennifer Simon, who lives on Weber Hill Road and near the Croton Falls Road site, said coverage in that area has been excellent since she moved there.
“I’ve been a Verizon customer for five years. I work from home and we have a smart home,” she said. “We have on average 15 devices running at any given time. I have never once experienced an issue with my signal, dropped calls or internet service.”
Campanelli brought up a new issue, contending that with cell towers comes the risk of fire.
“The average person looks at a cell tower and the last thing on their minds is a fire. But almost like clockwork, at least once a month a cell tower in the United States catches fire,” he said. “There are multiple cases, but the most famous case was in Wellesley, Mass., where a monopole, not too unsimilar to the ones they want to put here, ignited in flames and laid over in a burning heap. This thing went up so fast that the firefighters had no chance to put it out.”
Gaudioso countered that Homeland, as per request, referred both applications to the Mahopac Fire Department and have not gotten a negative response.
“Tower fires, quite frankly, are extremely rare,” Gaudioso said. We have experienced none for Homeland Towers at all. The issue of fire is completely remote. It’s made of metal, a noncombustible material.”
But Campanelli would not relent.
“Any claim that cell towers don’t catch fire is absurd,” he argued. “Google it. I found 30 [examples] in about 15 minutes.”
At the Dixon Road site, where residents have complained that the proposed position of the tower is too close to the property line and would create drainage and stormwater run-off issues. Gaudioso said Homeland was willing to move the tower to another part of the property and he presented the board with new preliminary sketches.
“The residents’ comments were that it was too close to the property line, about 30 feet,” Gaudioso said. “There was concern about tree removal of trees and sediment control. If you like the new location, we will engineer a new set of plans.”
Campanelli gave Homeland credit for the move, but said, “There are still far less intrusive locations. Not in McDonough park, but directly to the east is undeveloped property. The only downside is it will cost more money, which is why Homeland doesn’t want to go there.”
Stephen Rowe, a Dixon Road resident, said he came to Mahopac because of the beauty and said he believes that towers are simply a money grab.
“I can’t help but feel it is all because of money,” he said. “The homeowners aren’t putting it on their land because they love giant towers. Homeland isn’t putting it here because they really love building stuff.
“I couldn’t do this; I would never put this on my property,” he added. “I wouldn’t want to do anything that would bring out my neighbors like this. When my son is old enough and says, ‘Dad, what’s that?’ I’ll say, ‘Well, that’s a monument to cash, son.’”
Campanelli cautioned the Planning Board to make its decision based on the evidence that has been presented.
“Whatever your decision is, please make sure you make the factual determinations I am asking you to make because, speaking quite candidly, federal judges hate these cases,” he said. “If you make a decision that gets challenged (by Homeland), as long as you cite the evidence on which you’ve made your factual determination, a federal judge doesn’t want to be a zoning board of appeals, so they will usually leave it intact as long as you cite the evidence upon which you made your conclusion.”
The board voted to hold the public hearing open again until either its Sept. 25 meeting or Oct. 9 meeting. Gaudioso said Homeland would be willing to extend the 150-day shot clock (the amount of time the board has to make its decision after the public hearings close).