SOMERS, N.Y. - In a spirited cellphone-tower fight last week, dozens of Heritage Hills residents discovered their full house was no match for a telecom-industry ace-in-the-hole.
The homeowners packed a Wednesday Planning Board meeting—to capacity and beyond—then repeated their plea for the Town Board a day later. Beseeching the town to flex its regulatory muscle, speakers sought to keep Verizon Wireless antennas off a neighborhood tower, which they depicted as a potential danger and an intrusive eyesore.
Town officials, while promising to see what help they could provide, said their hands were effectively tied in this case.
A four-year-old federal statute mandates speedy approval of telecom requests to add equipment to existing transmission facilities. Congress enacted its pro-tower provisions, part of a spectrum-allocation measure grafted into unrelated tax-relief legislation.
Incongruously, the telecom’s hole card was dealt as a part of the Middle Class Tax Relief and Job Creation Act of 2012, or TRA in Washington-speak.
Washington’s action followed growing efforts by local jurisdictions to regulate and in some cases deny cellphone towers. Transmission antennas were burgeoning nationally as smartphones, with their ferocious data appetites, increasingly established themselves as our indispensable personal mobile devices.
The law makes clear that local government cannot refuse a telecom permission to add equipment to an existing tower, an action known in the industry as “co-locating.” It called such an application—specifically what Verizon seeks—an “eligible facilities request.”
Michael Sheridan, a Verizon lawyer and the telecom’s lone voice at the Planning Board meeting, invoked that phrase repeatedly in pressing the panel to approve a special-use permit.
“Section 6409 of the TRA provides that a local government, like yourselves,” he told the board members, “may not deny, and shall approve, an application for co-location of new transmission equipment on an existing wireless tower that does not substantially change the physical dimensions of such tower.”
It drew a chant of “Russia! Russia!” from some in the Heritage Hills contingent.
Citing federal rules, Sheridan defined a “substantial change” as one that exceeds 20 feet. Verizon’s request would increase the existing 70-foot-plus Heritage Hills tower by another 15 feet, well within the “substantial change” guidelines.
But residents living in the shadow of even the permitted change demanded Wednesday to know why an alternative site—the tower in the Somerstown Centre shopping area, for example—could not accommodate Verizon’s antennas.
On that warm, humid July evening, the Heritage Hills delegation had filled town hall’s folding chairs and lined the back of the room. All told, more than 60 people challenged the capacity of the Elephant Hotel to cool its venerable meeting chamber. The tower issue had drawn most of the attendees, and for an hour about a dozen addressed the planning board.
With passion, they raised concerns and questions of economics, safety and other considerations.
Pamela Prisco, a leader with her husband, Joseph, in the residents’ fight against tower expansion, labeled it a danger “and infringement on our community and the pristine environment that defines Heritage Hills.”
“Increasing the height by 15 feet on a pole that is 24 years old not only presents a visual eyesore but questions on a proper setback and easement safety requirements,” she said.
The existing pole, at 71-and-a-half feet, is already at treetop level, she maintained, so “an extended tower would bring it well over the treeline.”
Citing a study by the Appraisal Institute in Chicago, Prisco said cell towers depressed fair-market property values by anywhere from 2 percent to 20, depending on how near the tower was to a home.
Prisco suggested that the wireless industry downplays the towers’ potential hazards, asserting that telecoms use “the same playbook as the tobacco industry implemented…decades ago” when researchers warned of the dangers of cigarette smoke.
“Don’t be conflicted,” Prisco told the board. “County and town officials have the power to regulate the placement and appearance of cell towers as long as such discrimination is not unreasonable.” She pointed to action by the town of Hempstead on Long Island, which among other things outlawed those towers within 1,500 feet of such structures as homes, schools and libraries.
But Hempstead, which enacted its signature restriction amid much fanfare in 2010, quietly scrapped it three years later in the face of possible lawsuits. More importantly, from Verizon’s standpoint, the rider attached to that tax-relief measure in 2012, exempted most additions to existing towers—like the Heritage Hills structure—from local regulatory controls.
Sheridan, Verizon’s attorney and a member of the Snyder & Snyder law firm’s White Plains office, pointed to that provision in insisting the Planning Board issue the telecom’s requested special-use permit.
Sheridan brushed aside the residents’ oft-repeated appeal for consideration of an alternative tower location, saying. “It is respectfully submitted that this facility must be approved.”
The Planning Board, however, wrapped up last week’s public hearing without acting on Verizon’s application. The panel said it will continue to accept written comments for 10 days and resume consideration of the issue next month.