A White Plains condominium claims that city officials abused their discretion when they approved plans by DISH Wireless to install wireless telecommunication antennas on a rooftop near the condo.
Westage Towers East Condominium petitioned Westchester Supreme Court on Sept. 29 to annul a special use permit and site plan that the city’s planning board approved on Aug. 15.
The planning board did not understand its rights to deny the application, the petition states, and “seem(s) to be cowed by the possibility that DISH would be able to sue the city and would be able to install the facility regardless.”
DISH, the office of Mayor Thomas Roach, and the city’s legal office did not reply to emails seeking comment on the allegations.
The petition dwells on the federal Telecommunications Act of 1996 (TCA) that restricts local governments from prohibiting wireless service by excluding cell towers.
Westage attorney Andrew J. Campanelli argues that the planning board misunderstood or misinterpreted the TCA.
“When the U.S. Congress enacted the TCA,” the petition states, “it explicitly preserved to state and local governments the power to control the number and placement of wireless facilities within their jurisdictions.”
DISH intends to install three antennas on the roof of the 16-story Residence Inn Hotel at 5 Barker Ave. in downtown White Plains. The Westage is behind the hotel at 25 Rockledge Ave.
As part of the application, DISH submitted a radiofrequency emissions report prepared by Pinnacle Telecom Group. It concluded that potential human exposure to radiofrequency fields at street level would be well below the maximum permissible exposure allowed by the Federal Communications Commission.
The exposure on the rooftop was calculated at more than 3,000% of the FCC limit, and the report called for warning signs to be placed on the roof “to satisfy the FCC requirements.”
The closest condo balcony is 120 feet away, according to the petition, but no calculations were made about radiofrequency exposure to Westage homeowners.
DISH submitted a second, nearly identical radiofrequency report that deleted the paragraph about the 3,000% rooftop radiofrequency emissions, the petition states. And the consultant hired by the city to verify the report was the very same Waterford Consultants that prepared the calculations for DISH.
“It’s inconceivable that ‘independent’ consultant Waterford Consultants would do anything but confirm the results of reports prepared using their own computer program,” according to Westage.
If nothing else, the condominium argues, the planning board should appoint a “truly independent consultant to perform necessary calculations to confirm or disprove the applicant’s … findings.”
Westage says the city also failed to establish that DISH has a public necessity to install antennas because of significant gaps in wireless service.
The condo claims that DISH presented no hard evidence, such has dropped calls in the vicinity, and that the planning board arbitrarily approved the antennas.
Westage is asking the court to annul the planning board’s approval of DISH’s antennas.
