East Hampton Zoning Code Out Of Touch With Federal Law

The East Hampton town code needs a major overhaul when it comes to cell phone antennas, according to the town attorney’s office.

John Jilnicki, the town’s lead attorney, addressed the issue with The Independent last week, following an agreement the town entered into with AT&T regarding a proposal to place antennas on top of the wind turbine tower at Iacono Farm on Long Lane. The site plan application to install antennas on the tower, which was built in 2011, below the turbine was ultimately denied by the East Hampton town planning board at the end of 2017, despite being warned repeatedly by the attorney for AT&T at the time, John Huber, that such a denial was in violation of federal law.

AT&T sued the town in the Eastern District of New York’s federal court in Central Islip after that denial. The federal magistrate in the case, Chief Judge Dora Irizarry, stated in her written order resolving the lawsuit that AT&T was acting “to remedy a substantial gap in personal wireless services.” Under the Federal Telecommunications Act of 1996, once a communications company is able to demonstrate that there is a gap in cell phone coverage in a specific area, they cannot be prohibited from taking corrective action in an effort to, as the judge put it, provide “seamless, ubiquitous, and reliable personal wireless services.”

“Our cellular code was written a long time ago,” Jilnicki said, referring to town regulations regarding cell phone antennas. “It needs some updating. That is something we really have to look at. Because when you get into federal court on these issues, it is huge part of the claim that there is a coverage gap. That is all they have to show.”

Currently, he said, the zoning code doesn’t give a lot of focus on coverage gaps. “We look at just the impact of putting that structure there. Coverage gaps are something we have to build into our process.”

Could another cell phone signal provider come along with a new application to put antennas up at Iacono Farm, if AT&T moves forward with building a new tower at the Northwest Woods brush dump site? Or, could other providers make applications to add antennas to other wind turbine towers?

For now, Jilnicki’s answers appear to be: for Iacono, yes. For other farms, maybe. “There is a difference here with this site because Iacono owns all of his development rights. And this is one of the things that I shared with the planning board. I thought it was essential in their decision-making to think about. Maybe they are worrying about creating a precedent that wasn’t there so strongly because the other farm properties have development rights sold,” Jilnicki said. In those cases, the town would then be in a stronger legal position to deny an application.

During the planning process for the Iacono antenna proposal, the question was, if the parcel is no longer a farm, and the land is developed, would the cell antenna come off? Jilnicki said that AT&T has said no, that it is a straight 20-year agreement, even if Iacono is not generating power with it.

t.e@indyeastend.com