Pine Island Fire District sued
By Nathan Mayberg
PINE ISLAND — A proposed 150-foot high cell phone tower is at the heart of lawsuits filed by the Warwick Town Board and a group of residents against the Pine Island Fire District.
The lawsuits challenge the fire district's decision in September to handle the review of placing a cell phone tower, operated by AT&T, on property owned by the fire district that includes the firehouse.
The fire district signed a lease agreement with the cell phone company in 2013 to build the tower on a 2.1 acre parcel at 675 County Route 1.
The town contends that its planning board should review the project and that the fire district is not independent enough to handle the review.
The town's lawsuit, filed Jan. 30 in State Supreme Court in Orange County by attorney Jay Myrow, alleges that the fire district claimed to the town that it was immune from the town's zoning law.
The town advised the fire district that it needed to conduct a balance test analysis, which takes into consideration land use regulations and the impact upon local interests, to determine if the it was immune from the zoning law.
DEC says town should lead review
Warwick Supervisor Michael Sweeton said the analysis was completed after the fire district declared themselves immune from the town's zoning laws.
Members of the planning board disagreed, and says the fire district is not immune from their oversight.
A decision by the New York Department of Environmental Conservation received by the town this week states that the town should be the lead agency in reviewing the plans for the project, Sweeton said.
However, the DEC is leaving it up to a judge to decide on the legal grounds of whether the fire district's actions are immune from the town's zoning code.
According to the Article 78 lawsuit filed by the town, wireless telecommunications facilities are not permitted within the Local Hamlet Business Zoning District of the town, which is where the proposed cell tower would be placed. The town's suit states that there are "numerous locations" available in the vicinity of the property which are zoned for wireless telecommunications facilities. A cell tower of up to 120 feet high could be placed in those areas with a special permit from the planning board.
A tower could be up to 199 feet high in certain conditions.
Firefighting services or business venture
In its September resolution granting itself an exemption from town review of the project, the Pine Island Fire District Board of Fire Commissioners, chaired by Kenneth Gurda, stated that the fire station already has an emergency communications tower which was built in 2008 without town approval.
The new tower would replace the existing 70-foot high tower and would also include antennas for use by AT&T, other wireless carriers and other emergency service uses.
In its September resolution, the fire district references state law which gives it authority to construct buildings for firefighting and other related services. However, there is no part of the law cited for business ventures with private companies for unrelated purposes.
Not to 'engage in land use functions'
The town contends that all construction at the site in the past has been for fire department operations.
The town further contends that the fire district doesn't have zoning regulations, a planning board or land use approval processes with public hearing and comment period requirements to review such a project.
The town has regulations in place regarding the development of cell towers and has a planning board and zoning board of appeals in place to handle such reviews.
The town also contends that the fire district exists through authority granted by town law to provide fire protection services, not to "engage in land use functions and approval processes."
Residents sueAccording to a separate lawsuit filed by a group of Pine Island residents who live near the fire station, AT&T would pay the fire district $2,000 a month to place the antenna there.
Residents Robert and Theresa Benjamin claim the construction of a 150-foot cell tower would likely cause them to sell their home and move elsewhere.
Karen and Robin Nehus, whose property line is approximately 180 feet from the fire district property, state the tower would "damage their ability to enjoy their property," according to the suit filed by attorney David Gordon.
Barry and Kathy Brown claim the tower would "badly damage their ability to enjoy their home."
Richard and Donna Calone, who live about 200 feet from the cell tower site, state the view of the tower would "badly damage their ability to enjoy their property."
The Pine Island Fire District's attorney Frank Simeone couldn't be reached for comment.
Sweeton said he met recently with the fire commissioners and is giving the district more time to determine how they want to proceed before taking the matter back to court.
Sweeton said the decision could be in the hands of AT&T, and whether they want to go through the planning board process and apply for a variance to place the cell tower at the fire company's site or find a new location.
"We've agreed to continue to meet," he said. Jerry Zimmerman, a Warwick resident who says he is a “go-between” for the group of citizens who filed the suit, said “the people in the area do not want this.” He said the 150-foot tower would be an “eyesore in the heart of the hamlet.” “This will be visible from everywhere,” Zimmerman said. Reporter Nathan Mayberg can be reached at 845-469-9000 ext. 359 or by email at comm.reporter@strausnews.com