Verizon Wireless has filed a lawsuit against the Town of Colonie, according to a representative of the company, because the town has not rendered a decision about a proposed cell tower at the Loudonville Presbyterian Church.
In addition, tower opponents may bring suit against the church and Verizon if the tower is constructed, based on a 1924 deed restriction.
Federal Communications Commission regulations require a decision within 150 days of the initial application. That guideline was put into place Nov. 19, and that is the date Verizon is using as the beginning of the 150 days, said Verizon official John O’Malley, even though the company considers the initial application to the town to be closer to two years ago.
That 150 days has come and gone, O’Malley said.
Town Attorney Mike Magguilli said it is unclear when the completed proposal was brought before the planning board. He said it is not evident the town has exceeded the 150-day requirement, but if the case does go to court, the town is prepared to litigate.
The proposed cell tower has mobilized both opponents and supporters. Those against the tower are concerned about the potential health risks for the children at Loudonville Elementary School, located 1,200 feet from the site, and some cite the historic overlay district as another reason to deny site-plan approval.
Loudonville Presbyterian Church members and its pastor, Elaine Woroby cite the lack of conclusive evidence about the health risks and the good work the church can do with the nearly $900 per month Verizon will pay to use the tower.
The town planning board has a public hearing regarding the cell tower proposal scheduled for Tuesday, May 25, and O’Malley said he is hopeful for a decision at that time. If the town does not render the decision, federal court could become an option, he said.
`If not, the next step is getting federal court involved, which is not what we want to do,` he said.
O’Malley said a lawsuit, which was officially filed Wednesday, May 19, puts on record that Verizon wants compliance under the law and wants an idea about how to approach cell coverage in the area.
Gary Mittleman, an opponent of the tower, cited a 1924 deed restriction he said prevents the building of anything other than private dwellings to be used for residential purposes on the land, and further, a release from those restrictions would require everyone whose property is traced back to the deed to give consent. He said there are 24 property owners now.
He said the property was sold by what is now the North Colonie Central School District, and in 1959, when the church was built, the district released them from the deed. He said they may have needed a complete consent, but it is unlikely there will be a suit as action would have had to been taken no more than 10 years after the church was constructed.
Mittleman said, though, a 2007 release from the deed is still close enough for residents to bring suit, and the land owners could sue the church and Verizon if the tower is constructed, as it does not fit with the 1924 deed restriction.
Mittleman said he personally does not feel a suit can be brought against the town, planning board or school district, but other tower opponents may pursue that course of action.
Joe LaCivita, director of planning and economic development said it is hard to predict the decision of the planning board, when it decides to act.
`There are members on both sides of the fence about this,` he said. `They’re going to have to vote their consciences.`
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