The Town of East Hampton is being sued in federal court over its decision to approve the construction of a 185-foot-tall communications tower at a former brush dump site in Northwest Woods.
The suit, filed on Monday, June 29, also names 10 co-defendants: all five members of the town’s zoning board of appeals, plus its secretary, as well as the four members of the town planning board who voted to approve the AT&T project. Damages of $1.5 million or more are being sought, along with a permanent injunction to stop the project.
The suit accuses the town of violating several Constitutional rights, including the right to due process and the “right to petition the government for the redress of grievances.” The suit accuses the ZBA and its planning board of conducting “sham” hearings, in which neighbors of the brush dump were given short notice of the hearings concerning the tower, and short shrift at those hearings.
The suit was filed by Pamela and Anthony Leichter, a couple whose Bull Run residence is adjacent to the proposed tower, as well as by another neighboring property owner, Marc Clejan. Their attorney is Andrew Campanelli of Campanelli & Associates. There are already two lawsuits filed by the Leichters in state court.
The federal suit could well lead to AT&T’s pulling out of the deal it currently has with the town regarding the brush dump site, and instead go back to its preferred structure for its antennas, the wind turbine tower at Iacono Farm on Long Lane, with the town not having any say in the matter. The attorney representing the town, Kelly Wright of the Scahill Law Group, admits as much to the judge handling the state cases, Justice David Reilly, in a letter to him dated June 16.
Meanwhile, in a bizarre twist, John Huber, the man who originally represented AT&T during its three-year-long quest to be allowed to mount its antennas at Iacono Farm, and who repeatedly warned the planning board that there would be grave legal consequences if the board denied AT&T’s application, has been retained by the town to help it amend its antiquated zoning laws regarding cell phone antennas.
The legal mess the town finds itself in is due to the fact that it never adjusted its code regulating planning and zoning when it comes to cell phone antennas and towers in accordance with the Telecommunications Act of 1996. The series of laws passed in Washington were visionary in that they foresaw a time when not only would cell phones dominate the market over landline phones, but when many people would actually abandon landline phones all together.
One provision of the act requires municipalities to present a strong, compelling case before they can deny a cell phone company’s request to install antennas to remedy gaps in cell service in a specific area. “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,” the law reads.
AT&T originally made its application to the East Hampton Town Planning Board to install antennas on the 120-foot tall Iacono Farm wind turbine tower at the beginning of 2015. Over the next couple of years, members of the planning board made it clear that the town would prefer that AT&T build a tower at the brush dump site, as opposed to mounting antennas at Iacono Farm, to resolve the coverage gap.
After numerous site plan review sessions, as well as modifications by AT&T to address the planning board’s concerns with the proposal, the board demanded AT&T provide them with an environmental impact statement.
This time-consuming, expensive report was completed and presented to the board in early 2017.
The 279-page report Huber presented to the planning board included numerous charts and maps demonstrating the need for antennas at the farm. They would be mounted flush on the tower between 75 and 95 feet off the ground.
After two public hearings on the application, the board voted 4 to 3 to deny AT&T’s request in December of 2017.
Within a couple of weeks, AT&T launched a federal lawsuit against the town. The two sides eventually settled. The terms of that settlement were presided over by United States District Court Chief Judge for the Eastern District of New York, Dora Irizarry. She wrote a four-page court order “to enforce AT&T’s rights under the Telecommunications Act of 1996, in particular…with respect to an application filed by AT&T on January 26, 2015 to locate a personal wireless facility at 100-106 Long Lane East Hampton…to remedy a substantial gap in personal wireless services.”
AT&T agreed to build a tower at the brush dump site, as the town wanted. They would even build it higher than the 160-foot height needed, at 185 feet tall, to allow the town to mount emergency communications equipment at the top.
But there were one-sided caveats in the deal that favored AT&T. First, the town would have to greatly expedite the approval process. More importantly, if anyone challenged the town’s right to approve the brush dump tower in court, and that court challenge lasted more than 90 days, Justice Irizarry wrote, the Town of East Hampton “shall be deemed to have granted all variances, permits and approvals necessary for construction of the Iacono Farm Facility, and AT&T shall be authorized to construct” the facility they always wanted.
Irizarry wrote that she would keep the case in front of her until AT&T constructs its antenna at either site. She gave no preference to either.
The town’s ZBA and its planning board both acted expeditiously in approving the brush dump application from AT&T. All five members of the ZBA voted to approve the needed variances to construct the tower. While the seven members of the planning board were again divided, the requisite four members needed for a majority finally voted to approve the site plan for the tower.
Campanelli filed two Article 78 lawsuits in state court in March on behalf of 12 neighbors of the brush dump, one against the town’s planning board and its members, the other against the ZBA and its members. The suits charged that the approvals granted were “arbitrary and capricious.” It also charges that, due to the actions of the two boards, if the tower were built, it would greatly reduce the value of the neighboring properties, whereas installing antennas at Iacono would have “little to no impact” on the values of neighboring properties. These statements were backed up by numerous letters from leading East End real estate brokers.
Normally, those lawsuits would have started the 90-day clock ticking, after which time AT&T could pull out of the brush dump site, and return to Iacono Farm. However, with the pandemic of COVID-19, nothing was normal in the court process. Thus far, the two cases have been argued via e-filing.
Wright, the attorney retained by the town, acknowledges that time is not on the side of the town. In a letter to New York Supreme Court Justice David Reilly she accuses Campanelli of making “demonstrably false assertions” in his filings, and writes that, “As a practical matter, however, Petitioners can frustrate these approvals, without regard to the merits, merely by prolonging litigation until AT&T eventually elects to proceed with the Iacono site.”
She concludes, “As this is an instance where justice delayed risks justice denied, Respondents respectfully request a conference to discuss the most expeditious means of bringing this litigation to an end. We are cognizant, of course, of the Court’s closures to in-person business, but believe that this case, which requires no further discovery, is particularly well-suited for virtual conferencing and/or oral argument.”