HUDSON — Verizon Wireless is suing the city, the planning board and the code enforcement department over the company’s application for antennas atop Providence Hall.
Verizon filed the lawsuit in U.S. District Court for the Northern District of New York.
The board approved the application from Bell Atlantic Mobile Systems LLC, doing business as Verizon Wireless, for a special use permit to install six antennas atop Providence Hall in a 5-2 vote June 23. There were various conditions attached to the approval.
The company alleged in its lawsuit the board spent too long considering the application, attached unlawful conditions to its approval and charged unreasonable escrow fees.
Verizon is requesting the board’s resolution be nullified, necessary approvals for the application be immediately granted and for the city to return the $48,500 the company paid in fees, in addition to the costs associated with the lawsuit.
The city does not have money allocated to cover the escrow money. If Hudson has to pay Verizon, it would come out of the city’s fund balance, Treasurer Heather Campbell said Monday. The applicant normally pays for the relevant consultants for the board to properly assess the proposed project.
“It’s money that has already been spent, so it would definitely impact city finances,” Campbell said.
City corporate counsel Cheryl Roberts said the city put its insurance carrier on notice about the lawsuit and is interviewing law firms to represent the city if insurance coverage is denied. Roberts said she cannot comment on the substance of the lawsuit.
UNLAWFUL PREVENTION OF SERVICES
The company is accusing the city, planning board, code enforcement department and code enforcement officer Craig Haigh of unlawfully prohibiting the company from providing personal wireless services.
Verizon demonstrated there was a significant gap in service and that its proposed facility was the least intrusive means to fill the gap, according to the complaint. The application fulfilled all of the criteria and requirements for approval under the city code and state law.
Planning board attorney Victoria Polidoro has to approve a deed restriction for the property that would not let other wireless providers on the building’s roof for 20 years, according to a condition in the board’s resolution approving the antennas. The use of additional carriers also must have board approval.
The complaint called the deed restriction an unenforceable “poison pill condition” that effectively denied the application. There is no connection between the condition and the application, according to the complaint.
“The Defendants’ unsupported and legally unsustainable imposition of unlawful conditions, including the Deed Restriction Condition — with which compliance cannot be obtained — has had, and will have, the continued effect of prohibiting Verizon Wireless from providing wireless services...” the company’s attorneys Scott Olson and William Hurst, of Young-Sommer LLC, of Albany, said in the complaint.
UNREASONABLE TIME FRAME
The board took about 300 days to consider the application, more than three times the presumptive reasonable time, according to the complaint. The board was initially supposed to vote on the application within 90 days of submission, or by Nov. 18, 2020.
Verizon agreed to extend the shot clock for an additional 81 days until Feb. 9, 2021, and after further requests to extend the shot clock, Verizon’s final agreed-upon extension was June 8.
The board asked for another extension of 30 days at its June 8 meeting and Verizon project manager Kathy Pomponio said she needed to consult with the legal department. On June 14, Verizon told Polidoro it would not consent to a fifth extension of the shot clock period.
UNNECESSARY PUBLIC HEARINGS
Verizon’s lawyers also claim a public hearing was not required for the application, citing the city code. The board held eight months of hearings between October and June.
There is no public hearing required for an application to collocate on an existing tower or other structure as long as there is no proposed increase in height of the tower or structure, according to the code. No portion of the wireless facility would increase the maximum height of the building in the company’s original plans, according to the complaint.
The city’s escrow requirement is unlawful and excessive, according to the complaint.
The city code puts an unlimited obligation on applicants to pay for consultants, uncontrolled by any specific standards, according to the complaint. The fees are not lawful because they do not have any specific regulatory program and are not based on factual studies or statistics as required under New York state law.
Former board chairwoman Betsy Gramkow initially requested $10,000 for the escrow account even though the code says the initial amount should be $8,500, according to the complaint.
The board paid $8,500 before board review, according to the code, and on May 14 the board paid another $40,000 in accordance with Polidoro’s demand, according to the complaint.
The $40,000 request was not accompanied by documentation supporting the need for the payment, according to the complaint. The board at no point during review provided cost estimates or scope of services of review for each consultant.
The city will likely require additional escrow in connection with the satisfaction of the conditions in the resolution and for review of the building permit application, which will further increase the amount of money due, according to the complaint. The fees are excessive, oppressive and discourage applicants from seeking relief under the zoning ordinance, according to the complaint.
SUPREMACY CLAUSE VIOLATION
The company’s lawyers also claim the city is in violation of the Supremacy Clause of the U.S. Constitution, saying the Federal Communications Commission, not the city, has jurisdiction to regulate personal wireless facility frequencies.
The board’s approval included a condition that said the applicant must return to the board for approval of modifications to the antennas, including changes in service from 4G to 5G.
“Defendant Planning Board’s condition purporting to limit the specific frequencies permitted to be used by Verizon Wireless unlawfully interferes with the established goal of promoting the development of next generation infrastructure and the associated benefits of such technology,” the lawyers said in the complaint, calling the condition unlawful.
LACK OF EVIDENCE
Verizon’s lawyers also claimed in the complaint that the board lacks substantial evidence to support its resolution approving the application and the conditions attached.
The Telecommunications Act of 1996 says that any decision by the local government shall be in writing and supported by substantial evidence in written record. The record lacked evidence to support the regulation of 5G and the need for a deed restriction, according to the suit.
Verizon is requesting the court annuls the board’s resolution and make various declarations validating the complaint. The company also wants all local approvals and permits issued immediately without any unlawful or unenforceable conditions; all escrow money returned along with the costs of the lawsuit; and for section 284-16 of the city code be declared void and of no effect.
Olson declined to comment, referring to Verizon, and Andrew Testa, Verizon public relations manager, said on Monday that Verizon does not comment on pending litigation.
Planning Board Chairman Stephen Steim declined to comment, citing advice from the city attorney not to comment on pending litigation. Haigh also declined to comment, referring to Roberts.
Polidoro did not respond to multiple requests for comment by press time.