Cell Tower Ruling Supports Citizen’s Group
By Linda Kastan
From Issue 5: Winter 2010
In October, the citizen’s action group Sensible Wireless for Gardiner (SWG), was successful in challenging the Town Board’s approval of a 164-foot cell tower in the viewshed of the Shawangunk Ridge and the Wallkill River Valley. In an important and strongly-worded court decision, NYS Supreme Court Justice Henry Zwack found the Town Board’s review of the tower’s environmental impact deficient, and rejected the Town’s attempt to exempt the project from local zoning law.
Unlike most cell towers, the proposed Gardiner tower would have been owned by the town. The Town Board’s wireless developer, JNS Towers, was to have designed and built the tower, while the town managed the approval process. The parties planned to share profits from lease revenues paid by wireless carriers for antenna space. Unfortunately, the town’s contract with JNS restricted potential tower locations to municipally owned parcels, disallowing consideration of alternative locations and heights with less visual impact. The contract also subjected the Town to substantial monetary penalties if it abandoned the project. These constraints were particularly problematic since the Town Board had recently reauthorized Gardiner’s local law regulating wireless facilities. The law, enacted in 2001 to protect Gardiner’s unique scenery, limits tower height to 80 feet in cleared areas, with other height limits for particular situations. It also requires the use of camouflage and screening to minimize visual impact. In contrast, the JNS proposal called for an uncamouflaged 164-foot tower adjacent to the scenic Wallkill River corridor.
The proposed JNS tower was controversial from the start. After it became clear that the Gardiner Zoning Board of Appeals would not grant the large variances needed for the 164-foot tower, the Town Board voted to exempt the project from Gardiner’s zoning, applying a different set of standards for its own project than it would have used for any other applicant.
SWG brought legal action to challenge the zoning exemption and the Court agreed. Citing the Town’s failures to abide by the height limitation and other requirements, the Court found it “striking how many provisions in the Town’s own Zoning Law were not followed … without sufficient or any explanation.” Justice Zwack weighed the benefit of the cell tower against the potential for impact on the scenery, as well as shortcomings in the Town’s review process, and concluded that the decision to approve the tower was without reasonable basis.
The Town Board and JNS must now determine whether or not to appeal. At stake is the town law’s vision of shorter, less visible towers that would protect scenic landscape. While easily built, wireless carriers have resisted such low-impact wireless systems; they cost more than networks based on large towers. Even if taller towers are used, more than one would be needed to completely cover Gardiner’s hilly terrain. It remains to be seen whether whether the Gardiner Town Board, in partnership with the cellular industry, can modify its approach and preserve Gardiner’s outstanding scenery while providing the telecommunications services the public desires.