AT&T Sues Town Over Antenna Denial
The telecommunications giant AT&T has launched a federal lawsuit against the Town of East Hampton, as well as its planning and architectural review boards and its Building Department, after being denied site plan approval for a proposal to install flat antenna panels on the lattice windmill at Iacono Farm on Long Lane in East Hampton. The suit, which was filed Jan. 12, contends that the town broke federal law when the planning board voted to deny the application.
The plaintiff, nominally, in the case is Cingular Wireless, which is wholly owned by AT&T. The case has been assigned to Senior United States District Judge Leonard D. Wexler, seated in the federal courthouse in Central Islip.
According to the complaint, prepared by Andrew B. Joseph of Drinker, Biddle, & Reath of Manhattan, the planning board violated a section of the Federal Telecommunications Act of 1996 when it voted to deny the site plan and a permit for the project late last year. The complaint quotes from that section of the 1996 act, which reads, “Any decision by a state or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless facilities shall be in writing, and supported by substantial evidence contained in a written record.”
No one disputes that the decision was given in writing, in December, but AT&T does question the substantiality of the town’s supporting evidence. The company also argues that site plan denial would constitute a denial of cellphone service to customers, and that such a denial would be illegal under New York State law.
“Under New York law,” the complaint reads, “a public utility providing telecommunications services seeking approval of a proposed facility need only establish that there are gaps in service, that the location of the proposed facility will remedy those gaps, and that the facility presents a minimal intrusion on the community.”
The complaint revisits a point that was bought up to the planning board on multiple occasions by the AT&T representative for the site plan process, John Huber of Nielson, Huber & Coughlin, during the two public hearings and eight work sessions between April 22, 2015, and Oct. 25, 2017, at which the application was discussed: “There currently exists an irregularly shaped [cellphone] service gap in the Town,” the complaint reads, “within an area extending from east of Osborne Lane, to west of Stephen Hand’s Path, and from north of Route 27 to north of Grape Harbor Lane.”
The suit states that the 1996 law passed by Congress covering telecommunications “prohibits denial of an application for a personal wireless facility where denial of that application would prohibit or have the effect of prohibiting the provision of personal wireless services.” It also raises the point that even 911 calls placed in the Northwest Woods dead zone often do not go through.
Count one of the complaint concludes, “The record does not contain substantial evidence supporting denial of the application under New York State law.”
The planning board was sharply divided over the proposal from the moment it first came before them in April of 2015. The board and the Planning Department made several suggestions to Mr. Huber about how to improve the proposal. For example, there were originally supposed to be 12 flat antenna panels placed on the wind tower. The number was later decreased to nine. AT&T agreed to attach the antennas flush to the tower, and to paint the panels whatever color the board wanted, to make them less obtrusive to the eye. Mr. Huber provided the board with illustrations of what the tower would look like with the antenna panels attached.
The town’s architectural review board rejected the proposal for aesthetic reasons.
The planning board’s vote to deny site plan approval, as well as a permit for the project, was decided by a 4-3 vote. One of the key reasons the four voted to reject the proposal was explained in the written determination, dated Dec. 13, 2017, which said that there was an alternate site available for the project at a onetime brush dump on Old Northwest Road.
The planning board and the town’s Planning Department rejected a study by an expert provided by AT&T that found the alternate site wanting. In the planning board determination written by the board’s attorney, John Jilnicki, he acknowledges that antennas at the alternate site would not provide the same coverage as those at Iacono Farm: “The coverage map for the brush dump site provides greater coverage to the immediate area surrounding the subject parcel than what currently exists, although not at an ideal level.” AT&T’s lawsuit responds, “The alternate ‘brush dump’ facility would not provide reliable services, including 911,” for those in the area lacking coverage. Mr. Jilnicki, however, wrote that a monopole at the brush dump site could be taller than the 95 feet off the ground proposed at the Iacono Farm site, which could help overcome that deficiency.
The suit asks the court to reverse the board’s decision and direct the town to grant any and all permits and variances needed for the project to go forward.
A summons ordering the town to respond to the suit was served on Jan. 17, according to documents on file at the United States Eastern District of New York Court website.
The town attorney’s office does not comment on open court matters.