Open Space Institute’s Citizen Action Program provides a fiscal and administrative home for a wide variety of citizen groups working on issues of local importance. These groups range from environmental education activities along the Hudson River to efforts to improve environmental sustainability in urban hubs like Flatbush, Brooklyn.
The Citizen Action group, Sensible Wireless for Gardiner, were recently successful in challenging that Town’s approval of 160 Foot Cell Tower in the viewshed of the Shawangunk Ridge and the Wallkill River valley.
An important court decision in October granted a petition by Sensible Wireless for Gardiner, one of the Open Space Institute’s Citizen Action groups, to annul the Town of Gardiner’s plans to build a cell tower in the scenic Ulster County town. In a strongly worded opinion, New York Supreme Court Justice Henry Zwack found the Town’s review of the tower’s environmental impact deficient and rejected its attempt to exempt the project from the local zoning law.
Unlike most cell towers, the one proposed in Gardiner would not have been owned by the Town. Pursuant to a contract between the Town of Gardiner and JNS Towers, JNS conducted basic background studies, including visual impact studies, and was to have designed and built the tower, while the Town was responsible for managing the approval process. The contract provided that both parties would realize profits from tower revenues.
However, the contract restricted potential tower locations to municipally owned parcels, instead of allowing for consideration of alternative sites and heights. The contract also subjected the Town to substantial monetary penalties if it abandoned the project, further reducing its options.
These constraints were particularly problematic in Gardiner, which combines the bucolic landscapes characteristic of the Hudson Valley with the majestic beauty of the Shawangunk Ridge. The Town had recently reauthorized a law closely regulating cell towers to protect the unique scenery of the Ridge.
The law restricted tower height to 80 feet, or potentially 120 feet if there was no added impact and also required the use of camouflage and screening. In contrast, the Town-JNS proposal called for a 160 foot tower (164 feet counting the topmost antenna), in an exposed area adjacent to the scenic Wallkill River corridor. It would literally tower over the River valley landscape and would interfere with certain views of the Ridge.
As a result, the proposal ran into roadblocks in the zoning process and was criticized by the town and county planning boards. The zoning board of appeals denied the height variance needed for the 160 foot tower. The Town Board nevertheless pursued the project by attempting to exempt it from the zoning law, to remove the height constraints as well as the review by the other agencies. In its resolution, the board made clear its intent to apply a different set of standards for its project than to other prospective tower developers.
Sensible Wireless sued to challenge the exemption and the environmental review of the project under the State Environmental Quality Review Act (SEQRA). The town had found that the tower would not have any significant adverse impact and had issued a SEQRA “negative declaration” as a prerequisite to construction. The Court, however, agreed with Sensible Wireless’ objections, citing the Town’s failures to follow the law’s height limitation and its requirement to consider the impacts on local parks, preserves and waterways, including the Minnewaska State Park Preserve, other locations on the Ridge, and the Wallkill River.
The Court found it “striking how many provisions in the Town’s own Zoning Law were not followed or violated, and without sufficient or any explanation.” While courts usually defer to an agency’s SEQRA determination if it is competently performed, the noncompliance with applicable standards, the errors in the town’s review process and the potential impact on local and statewide scenic resources were sufficient for the New York Supreme Court to overturn the approval.
The Court also dismissed Gardiner’s attempt to exempt itself from Town zoning laws. The test used by state courts to determine if local zoning laws should apply is a balancing of public interest. Justice Zwack weighed the benefit of the cell tower against the potential for impact on the scenery, as well as shortcomings in the Town’s review process, specifically its incomplete visual assessment and its failure to consider alternative sites, and concluded that its decision was without reasonable basis. That the Court granted the homeowners standing to bring the suit was also a significant victory.
In many cases, citizens have been denied the right to challenge zoning decisions on the grounds that their interests are the same as the general public. Because Sensible Wireless’ petitioners live across the Wallkill River from the tower and offered evidence that the scenic views from their properties would be adversely affected, the Court concluded that they would suffer harm from the construction of the tower different from that of the public at large.
The Court found these interests sufficiently unique to grant standing and allow the lawsuit to proceed. This ruling presaged a decision by the State’s high court a few weeks later which also allowed standing based on the petitioners’ specialized interests and preservation efforts.
The Town Board must now determine whether or not to appeal the decision. At stake is the town law’s vision to favor shorter, less visible towers. Even if the higher, more obtrusive towers favored by industry were used, more than one would be needed to cover the town, given its size and hilly topography. It remains to be seen whether industry can modify its approach and become a partner in preserving the area’s outstanding scenery while providing the telecommunications services the public desires.