Nearly a month after 13 cell nodes were approved by the Town of North Hempstead (TONH), town officials held a public hearing to make amendments to Chapter 75 of the TONH code entitled Wireless facilities.
“These amendments will streamline the application process and refine design criteria in the placement of wireless telecommunications facilities,” wrote Councilwoman Mariann Dalimonte in a recent email to District 6 constituents. “New application criteria and design elements, are intended to minimize visual obtrusiveness, require increased measures to conceal or camouflage, increased review of alternatives and establishment of need are intended to minimize the size and number of facilities needed to provide an adequate level of coverage,” the email stated.
In August 2019, ExteNet filed an application with the town to install 16 cell nodes on utility poles in the unincorporated areas of Port Washington.
In January 2020, ExteNet filed a lawsuit against the town alleging the town failed to approve or deny the application by the deadline in late December and therefore violated the shot clock order. On June 26, Judge Edward Korman of the Eastern District of New York ruled in favor of ExteNet Systems in its lawsuit against the Town of North Hempstead, stating that “the town failed to act within a reasonable period of time.”
The court order stated that the town had to “issue all approvals necessary for ExteNet’s installation of the 16 small wireless facilities” and “cooperate in good faith to coordinate with ExteNet during construction and installation.” The town appealed the June 26 decision. During the appeal, the court required the TONH and ExteNet participate in a mediation to determine whether all 16 cell nodes were necessary. The TONH and ExteNet, through the expertise of their respective engineers, determined that if one cell node was relocated and two were increased in height then three could be eliminated, bringing the total down to 13.
Following the approval of these 13 nodes, the town decided to make amendments to the code.
“Last year we adopted comprehensive changes to chapter 75 of the town code to assist us in managing the installation of wireless telecommunications facilities within the town’s right-of-way,” Town of North Hempstead Supervisor Judi Bosworth said during the public hearing. “During this past year, we’ve learned through experience and through input from members of the community and consultants that some changes were needed. And so before the town board this evening is a set of amendments to that chapter of the code that are designed to give us a higher degree of input into the placement of these facilities in the town’s right-of-way. Federal law gives wireless companies the right to install the equipment they need to provide cell service and limits the abilities of local governments to regulate where they are placed. Towns cannot refuse to allow these installations. We are able though, to set certain standards to minimize their impact on the community while complying with Federal law.”
Leonard Kapsalis, attorney for the Town of North Hempstead explained the proposed amendment to the code. The new code eliminates the two-step application process, which required applicants to apply to the town board for a right-of-way agreement and then be processed for special permits and antenna location permits.
“Under the code as it will be amended all applications will be filed at once and a review of the component parts of the application by the proper departments will take place simultaneously rather than sequentially,” Kapsalis said. “It will require that all applications be made to one central town department with an inter-office review to follow and then a combined discretionary approval. If the town board approves the special permit and right-of-way agreement then other needed permits, such as the antenna location permits may be issued as appropriate.”
Kapsalis stated that these additions and amendments to the code are “intended to minimize the size and number of the facilities that are needed in order to allow the carriers to provide an adequate level of coverage. Like any other legislation, they’re subject to amendments as needs change, and as we learn from experience, what they are, they are now our best efforts to strike the appropriate balance between the town’s right to regulate land use and the wireless carriers’ right to deploy there.”
Richard Lambert, the director of External relations for ExteNet Systems read aloud a statement urging the board not to approve any changes to the code until further discussion had taken place.
“There are still a lot of issues with this particular code,” Lambert said. “There are still inconsistencies. There is still ambiguous language and there is still language that does not comport with federal law. So, even after the hard work, there is still some work that could be done to improve on this language. We urge you all to table this conversation and maybe work further along with telecommunications officials, someone more tuned to FCC regulations and law, to make further improvements on this. The last thing we want to do, and industry wants to do, is be back in legal situations with the town because language in this new document still doesn’t comport with federal law.”
Following the public comment portion of the meeting, Kapsalis recommended that the board approve the code changes.
“The thing with codes is they can always be amended,” Bosworth said. “But it is important that we have an update to the code as it is presently written to make sure that going forward we are situated in a way that best protects the residents of our town.”
Town officials ultimately passed the changes to chapter 75 of the code. The town board’s next meeting will take place on Dec. 17 at 7 p.m. To watch the virtual meeting, visit northhempsteadny.gov/townboardlive.
