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Town of Alfred – Response to Fred Sinclair April 25 Op-Ed

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“….my response here is not to debate “5G” technology.  My response here is to explain the law”

From Richard Buck, Town of Alfred Attorney

On April 25, the Sun published an op-ed citing concern about cell phone towers and the effects of microwave technology. The Town Board is mindful that some community members are apprehensive about the potential effects of microwave emissions. However, my response here is not to debate “5G” technology.  My response here is to explain the law, particularly as it pertains to the 300-foot cell tower managed by Crown Castle on Jericho Hill Road in the Town of Alfred.  

In this op-ed the author wrote: “The [Alfred] Town Board cowered in the face of potential legal challenge and lawsuit threatened by the powerful telecommunication company.”  This is wrong.  The Town Board did not cower.  They followed my legal advice.  I serve as the town attorney and my job is to advise the Town Board on the law.  The Town Board members swore an oath to uphold and follow the law.  At times, they rely on attorneys to make sure they do that.   

There are two legal issues requiring analysis.  The first is a state law issue.  That issue is whether the town had any discretion to deny a building permit in connection with the State Environmental Quality Review Act (“SEQRA”).  The second is a federal law issue.  That issue concerns whether federal law preempts SEQRA (or any applicable local law) even if the town retained discretionary authority to disapprove the proposed cell tower modifications.    I will return to both legal issues momentarily. But first, let me briefly explain what started this current situation and the permitting history of the tower.

What started this is Crown Castle submitting to the town what is known as a “Notice of Eligible Facilities Request” on March 30, 2022.  This notice is required by Section 6409 of the Middle-Class Tax Relief and Job Creation Act of 2012 (a.k.a. “Spectrum Act”).  The notice included a letter describing the equipment modification as well as drawings and specs of the equipment to be installed on the tower, to replace the old equipment. Relevant to the 2022 submission is that the town issued a zoning permit approving a 300-foot cell tower to replace the existing 120-foot cell tower in 1994.  The 1994 permit was issued without establishing any conditions, imposing any restrictions or retaining any other land use review authority.  Issuing the 1994 permit means the use of the property for a 300-foot cell tower is a permitted use.  That the cell tower is currently a permitted use is a critical factor in whether the town can apply SEQRA to the proposed modifications.

Under SEQRA, every government action is required to determine the significance of any potential environmental impact unless the proposed action qualifies as what is called a Type 2 action.  A Type 2 action requires no further SEQRA review. What qualifies as a Type 2 action is listed under the Codes, Rules and Regulations of the State of New York. Specifically, 6 CRR-NY 617.5. Section 25(c).  The provision excludes: “official acts of a ministerial nature involving no exercise of discretion, including building permits and historic preservation permits where issuance is predicated solely on the applicant’s compliance or noncompliance with the relevant local building code…” I reviewed the town’s Jericho Hill tower documents from 1994 to the present. I evaluated Crown Castle Notice of EFR and applicable equipment modification plan. I examined the town’s current zoning law which permits the “continued lawful use of land or buildings existing at the date of this law.”  I analyzed numerous court opinions addressing discretionary authority and ministerial actions, I concluded that to the extent a building permit may have been required, the town had no discretionary authority to deny the permit. 

The actual cell tower structure (as distinguished from tower appurtenances—antennas, etc.) was not being modified.  Crown Castle did not propose increasing the tower height, width or other structural changes.  The 1994 permit contained no exceptions and imposed no conditions requiring town input or approval. Having issued the 1994 permit in that manner, the town did not retain any discretionary authority concerning the proposed equipment modifications.

Read that 1994 permit in full here:

Every decision I analyzed in which the court held that a municipality’s role was ministerial in nature, the record showed that the municipality had no local law establishing discretionary authority. Contrawise, if the local governing entity had such a local law in the cases I read, then discretion was established.  The local governing entity could proceed with a substantive SEQR analysis.

In addition to several court cases, New York Department of State’s website also states a clear standard as SEQRA pertains to building permits:

If issuance of a building permit for a project is ministerial and no local discretionary approvals are required, may SEQRA be applied by the local government? The local government has no opportunity to apply SEQRA because it has no discretionary approvals to give.

In examining the land use and permitting history of the Jericho Hill tower, all applicable local laws and numerous court cases, I concluded that, by operation of law, the issuance of a permit was ministerial in nature.  Therefore, state law requires the town to issue the building permit to Crown Castle.  In his op-eds, the writer refuses to accept that this is the law.  In my opinion, he probably has the town’s best interest at heart, but to not follow the law would put the town in jeopardy of an expensive lawsuit.

Having addressed state law, let’s move onto federal preemption.  Even if the town could argue that there was a lawful basis upon which they retained a degree of discretionary authority under SEQRA, they would have been estopped from doing so by federal law. The Spectrum Act provides that “a State or local government may not deny, and shall approve, any eligible facilities request of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”  The type of equipment modification specified and described in Crown Castle’s Notice of Eligible Facilities Request qualifies as an “insubstantial modification” under federal law.  (See 47 U.S.C. §1455/Section 6409(a)/47 C.F.R. §1.6100, et al—the Spectrum Act and applicable regulations). 

The criteria for substantial versus insubstantial depends, in part, on whether the tower is in a public right of way. The Jericho Hill tower is not.  A modification to a structure not in a public right of way is considered “insubstantial” if the equipment being installed would protrude fewer than 20 feet from the edge of the tower, or less than the width of the tower structure at the level of the appurtenance, whichever is greater; OR if it does not increase the height of the tower by more than 10 percent or more than 10 feet, whichever is greater, of the tower’s existing height.  If the contemplated modifications meet that criterion, then the local government must approve any applicable local permit. The Jericho Hill tower modifications met that standard. Therefore, federal law requires that the town issue any applicable building permit. Requires, not recommend.

Of further interest, in discussing the matter with code enforcement officers who have dealt with the matter of existing cell tower modifications, the state has given the following guidance to local code enforcement officers—do not get involved with issuing building permits. Cell towers, at least for insubstantial modifications, are considered public utilities.  That guidance makes sense when considering the applicable federal law.  Crown Castle issued no threat to sue.  But I have no doubt they would have and that they would have won. The town board did not cower. The town board upheld their oath to faithfully discharge their duties, which includes obeying and acting in accordance with the law.

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