The Town of North Hempstead’s board unanimously voted to accept a settlement from ExteNet Systems to construct 13 cell nodes in its unincorporated areas at its virtual meeting Thursday night, but as members said they were only doing so because they were “backed into a corner,” residents said they could have done more to fight it.
Councilwoman Mariann Dalimonte, whose district would be directly affected by the nodes then said that while the town didn’t agree with the rules that allowed the nodes to be placed, they had been “backed into a corner.”
“I don’t want to approve any wireless facilities being installed right outside of people’s homes,” Dalimonte said. “But I believe this is an acceptable compromise under the circumstances. The federal law has us backed into a corner. My choices are either to approve the 13, or reject the 13 and clear the way for 16. So, I will be voting to approve the settlement, because it’s better than the alternative. And that’s what’s sad here. If we as the board deny it, they’re going to put 16 in. If we accept it, they’re gonna put 13 in, we’re gonna know, we are in a no-win situation. And we can’t use health as a reason. We can’t.”
Under FCC rules, municipalities can only cite aesthetics and node locations as valid reasons to reject applications, with other factors like health reasons not allowed for consideration. The rules have not stopped residents on the North Shore from bringing up their concerns over health as a result of the nodes at public meetings and forums for villages that received applications.
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 calls 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 on Thursday.
During the public comment period prior to the vote, Port Washington resident Lorraine Miller, who said her home was scheduled to have a node nearby, questioned why no public hearing on the matter had been held prior to that night.
“No one on the block who I’ve spoken to wants the pole there,” Miller said. “And what’s so disturbing is that residents were not given a public hearing, protocols were not followed. This is not acceptable…My husband and I have lived in Port Washington for over 13 years and this situation with the town and ExteNet has been the most awful thing we’ve experienced. While I’m sure you would love to be done with this issue, we need to know, as our officials, what will you do to continue to fight for us to get this node moved?”
Gloria Steinberg, who said that a node is scheduled to go up 40 feet from her house, echoed Miller’s comments. “We never had a proper Town Hall as outlined in town regulations. ExteNet never followed protocols to warn affected houses,” Steinberg said. “In light of the breaches of the procedure, we ask that you please reject this plan and work out another option as you have had for other issues.”
Supervisor Judi Bosworth said that the town’s lost appeal had gone into mediation. “We tried to fight it, we were sued, we lost, we appealed the suit, we lost again,” Bosworth said. “ExteNet was told they needed to mediate with us, was actually very, very unusual, because they didn’t have to. We lost the suit, they had every right to just go in and start putting up the nodes. So they did meet with us. And we were instructed by the mediators that we were not allowed to discuss it. None would be better than 16, but this is where we are.”
Town Attorney Leonard Kapsalis added that the town’s hands were tied due to the federal regulations.
“Underscoring all of this is a simple fact that federal law severely ties our hands and our ability to regulate where these nodes and facilities can be placed,” Kapsalis said.
“The changes need to happen at the federal level,” Bosworth said. “They come with, ‘we want to put this in your right of way.’ And if we say no, we get sued, which we did, we defended the suit. We lost that in pretty devastating terms.”
Miller spoke again, asking, “Why were we not notified last year before Councilwoman Dalimonte took office that ExteNet filed their applications? What are you going to do to continue to fight for your residents, given the situation?”
Kapsalis reiterated that the federal law would not side with the town. “We understand how you how you feel,” Kapsalis said.
“You couldn’t possibly understand how I feel, this isn’t happening to you,” Miller responded. “Why were the protocols not followed? Why were we not notified last fall that this was going on? That question still has not been answered.”
“That’s not before the board this evening,” Kapsalis said. “And really, this is where we’re not we’re not able to look backward.”
“You need to be transparent and tell us why when ExteNet filed those applications were we not notified,” Miller said.
“Well, I think part of the reason might be, and I don’t know for sure, but part of the reason might be that the town had no intention of just allowing it to happen,” Kapsalis said. “We had gone to the court to stop this from happening. So it’s not like it was imminent on the part of the town.”
“But then you failed to respond to the shot clock, and you knew that you had several opportunities to fight this,” Miller said. “And there were several missteps. You’re not giving me an answer as to why you didn’t notify us. And so that leaves a big question mark for the residents of this town. Not just the people involved, but everyone in this town, that information needs to be made public.”
Councilwoman Vivianna Russell said that pressure needed to be put on the federal level in order for change to be seen.
“We’re not taking this lightly,” Russell said. “This is something that we really have no say in how the federal government allows the cell phone companies to do cell towers. We will continue to advocate with the federal government so that we will have some say in our own right of way, but right now, we do not have the ability to do that. And so what we can do, we will continue to do. And that is to put pressure on our federal government to change the rules so that we can have more say. But this kind of thing does not happen. I would encourage you to reach out to your federal representatives with regards to this because this is not a local matter that we can make a decision on.”
Kate Hirsch of Flower Hill, who as a member of that village’s board voted against 18 node applications from ExteNet, said that public hearings should have been held on the applications.
“This board should have, you know, organized some public hearings on this,” Hirsch said. “You know, you kick the can down the road, you play the shot clock, in this process that you had. I’m trying to be fair, and that’s really what happened. So to say that you’ve been engaged in lawsuits, you’re ignoring everything that happened up to that lawsuit, which was that ExteNet made an application, it was ignored in the shot clock. If you had held public hearings, ExteNet would have been required to give public notice.”
Resident Matt Steinberg asked why the town allowed the ‘shot clock’ to run out without giving notice to the residents.
“We just want an answer to that question,” Steinberg said. “It’s clear where this board is going. But as other people have said, There is certainly a lot of suspicion in the neighborhood. And I think we deserve an answer to that. And I think it behooves you to respond to that question. It’s your choice if you want to, obviously. But I’m leaving that out there for you.”
Prior to casting their votes, most of the council members reiterated that they were not happy with the results.
“We’ve been fighting this battle for years with the first cell towers that went up for the same reasons because of the concern for our children,” Councilman Angelo Ferrara said. “I have the same concerns or the same fears. But unfortunately, until federal elected officials get behind us, there’s really not a lot we can do. We can fight it. We can spend money. We can go through lawsuits, which is exactly what we did, it wasn’t that somebody sat on their hands and did nothing. We did take a stand to say no. And that’s how we wound up in a lawsuit, recognizing where we are and the lousy laws that exist right now, that ties our hands. It’s the lesser of the two evils.”
“I wish there was another way, but we must continue to advocate with our federal and elected officials to change the federal laws that strip us of the right to approve or disapprove the placement of these facilities on health grounds, and to make unilateral changes after the fact,” Councilwoman Veronica Lurvey said.
“I share the sentiments of my colleagues and it’s an unfortunate situation, our hands are tied, it is the lesser of the two evils, but cannot use health concerns or environmental concerns as an argument against this,” Russell said. “Now, obviously, those are the concerns of our constituents. But because our hands are tied because we are put in this position of 13or 16. I ultimately have to vote for the 13.”
The board then unanimously voted to accept the settlement.
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, Nov. 5 at 7 p.m., viewable at northhempsteadny.gov/townboardlive.