A state judge has overturned a town of Gardiner resolution that would have permitted construction of a 160-foot cell tower on municipal property in the middle of town.
Acting in a lawsuit brought by citizens who opposed the plan, acting Supreme Court Justice Henry F. Zwack found town officials had acted in an “arbitrary and capricious manner” in ignoring the town”™s own zoning laws governing cell towers and in ignoring state municipal law and state environmental law.
“The Court finds it striking how many provisions in the town”™s own zoning laws were not followed or were violated without any explanation,” wrote Zwack in his Oct. 2 ruling. He annulled a town board resolution dated Dec. 9, 2008 that approved the plan to have a private company JNS Towers, build and operate the tower and split the revenue with the town.
He was sharply critical of omissions by town officials of state and town laws requiring a “hard look” at potential environmental effects from the proposed tower. He was especially critical of failure to consider the visual effects such a tower would have from various scenic locales, from the Walkill River to Minnewaska State Park, noting that both town law and state law require visual analysis.
In his 16-page ruling, Zwack analyzes and decisively rejects claims by town attorneys that the town is exempt from its own zoning law governing cell tower placement, which limits most towers to 80 feet and sets an absolute ceiling of 120 feet for a cell tower.
He also agreed with plaintiffs that the town had improperly issued a negative declaration under SEQRA ”“ the state environmental review process ”“ saying town officials had cited insufficient evidence and ignored significant discrepancies when issuing the negative declaration.
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The suit was brought by a group of town citizens and an organization called Sensible Wireless, of which they were members. The organization was denied standing, but the suit was allowed to proceed as the landowners were accorded standing by the judge.
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The group”™s attorney David Gordon of New Paltz, said that the judge had essentially agreed with the premise that town officials had acted improperly and provided significant relief, not only by nullifying the resolution on the cell tower, but by strongly upholding the town board”™s obligation to abide by town zoning law.
“It was significant that the court upheld the applicability of the cell tower provisions of the town code,” said Gordon. “The 80-foot maximum height for a cell tower is an important protection for the town, which the Town Board thought it could ignore for its own project.”
“I”™m disappointed in the ruling,” said Gardiner town Supervisor Joe Katz. He declined further comment on the case or whether the town might appeal. “I don”™t know enough yet, because our lawyers have not analyzed the ruling.”
The decision could have far reaching consequences on the town. In nullifying the resolution, the judge also overturns the negative declaration, and specifically orders that an expensive and time-consuming environmental impact statement be prepared. But perhaps more importantly, by upholding town zoning limiting the height of cell towers, it ensures JNS and town officials will have to go back to the drawing board.
It is uncertain whether JNS would be willing to rethink itscommitment to the joint venture.
Gordon, the attorney for Sensible Wireless, said that his clients and many Gardiner residents would welcome cell tower service in the scenic rural community, but don”™t agree on the need for a too-tall tower, which they say would damage the town”™s invaluable views. Instead they seek a network of smaller towers, about 80 feet high, which they maintain would likely do a better job of serving the entire town than a single centralized tower and which could be disguised more easily than a big tower.
“The Town only looked at the large conventional tower that JNS wanted,” said Gordon. “Their mistake was allowing their contract with JNS to preclude other options.”
Editor”™s note: Lawyer David Gordon is no relation to reporter Jim Gordon.
