N. Hempstead passes code changes on wireless facilities

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North Hempstead's town board passed a resolution changing the town code in regards to wireless infrastructure at their meeting on Nov. 19. (Photo by Robert Pelaez)

The North Hempstead Town Board passed a resolution on Thursday to change a section of the town code on construction of small wireless facilities, barely a month after its unanimous approval of the construction of 13 wireless cell nodes by ExteNet Systems.

The changes, Councilwoman Mariann Dalimonte of Port Washington said in an email to her constituents, would “streamline the application process and refine design criteria in the placement of wireless telecommunications facilities.”

“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,” she wrote. This is “intended to minimize the size and number of facilities needed to provide an adequate level of coverage,” Dalimonte wrote.

In August 2019, ExteNet, contracted by Verizon Wireless, filed applications to install 16 cell nodes in areas including Port Washington Estates, Manhasset Bay Estates, Bayview Colony and an unincorporated area near Plandome Manor.

After months of inaction where a “shot clock” was reset and ran out, ExteNet sued the town and won on the grounds that the town had failed to act on the applications within a “reasonable” time frame, with no public hearings on the applications planned from last August to February.

The company was then granted summary judgment in a June 26 court order which called for the town 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.” North Hempstead then filed an appeal and sought a stay of the judgment but no stay was awarded.

ExteNet then offered the town a settlement of 13 cell nodes, which the board voted to accept last month, albeit while imploring federal representatives for help in changing FCC rules to giving more power to municipalities in wireless matters.

Supervisor Judi Bosworth opened the public hearing.

“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,” Bosworth said. “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.”

Town Attorney Leonard Kapsalis then explained that the amendments would eliminate a two-step application process in the current code that required applicants to apply to the Town Board for a right of way agreement and be processed for special permits and antenna location agreements.

Instead, all applications will be filed at once and sent to the proper departments simultaneously, rather than sequentially. Should the Town Board then approve the permit and right of way agreement, other needed permits, such as antenna location permits, may be issued by the Building Department and other departments as appropriate. Application criteria would also be refined, with applicants required to disclose all related third parties on whose behalf it is applying.

“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,” Kapsalis said. “They are really the result of an extensive review of the code. But 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.”

Kapsalis recommended that the amendments be passed as written.

Richard Lambert, the director of external relations for ExteNet Systems, said that discussions between the town and ExteNet on crafting wireless infrastructure legislation began as early as January 2017, with the town passing it that March.

“Our initial meetings were motivated to develop a positive and trusting relationship with the town,” Lambert said. “We were patient and waited for the town to work through how they wanted to proceed with this new and necessary infrastructure. We waited, hoped that our numerous discussions would result in clear and fair law written to conform with federal law. To our dismay, at that time, the town on March 19, 2017, adopted new zoning code language. It was neither clear nor fair, nor did it comport with federal law. The code contains ambiguous language. But still, we continued to work with the town on zoning framework.”

Following the litigation, he said, ExteNet worked with the town on developing the new code, but the resulting one, he said, was not yet ready. He urged the board to table the issue.

“There are still a lot of issues with this particular code, there are still inconsistencies, there’s still ambiguous language, and there’s still language that does not comport with federal law,” Lambert said. “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, 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.”

Also placed into the record was a statement from resident Pete Gaffney, who, according to Town Clerk Wayne Wink, “requested information with respect to identifying 5G as a probable or well-known human carcinogen,” and made “certain recommendations that these nodes be installed the minimum 30 feet off of the ground, that they are kept away from schools, playgrounds, etc.,” as well as a statement from Verizon Wireless asking that the proposal “not be adopted in its current form.”

A letter from Haran Rashes, senior counsel for regulatory affairs for ExteNet, was also included, though its exact nature and wording were not described.

“The thing with codes is … they can always be amended,” Bosworth said. “But it’s 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.”

The board then unanimously passed the changes.

ExteNet has also sued the villages of Lake Success, Flower Hill, Plandome, and Plandome Manor in the past two years after each village, following widespread public backlash, did not approve its requests to build cell nodes. Legal proceedings are ongoing in all four villages.

The Town Board will next meet on Thursday, Dec. 3, in a special meeting at 10 a.m., viewable at northhempsteadny.gov/townboardlive.

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