Incorporated Village of Flower Hill
1 Bonnie Heights Rd.
Manhasset, New York 11030
Findings Supporting the Denial of Special Use Permit for a Proposed Wireless Telecommunication Distributed Network within the Incorporated Village of Flower Hill
WHEREAS, the Incorporated Village of Flower Hill (the “Village”) received an application from ExteNet Systems, Inc. (“ExteNet”) for a Special Use Permit Application, As Amended and Supplemented, for the installation of wireless telecommunications facilities within the Village; and
WHEREAS, ExteNet’s application, as amended and supplemented, seeks to install eighteen (18) separate wireless facilities (a/k/a nodes) at various locations throughout the Village, the exact location and selection of which ExteNet has declined to select or finalize; and
WHEREAS, the Village maintains that the various amendments and supplements to the application are deemed integral parts of the application; and
WHEREAS, ExteNet has taken inconsistent positions with respect to the application and its various amendments and supplements despite the fact that the Village made numerous requests for clarification; and
WHEREAS, the Village Board has repeatedly requested that ExteNet select and finalize the proposed locations for which it desires the Village Board to render a final decision thereon; and
WHEREAS, notwithstanding the Village Board’s repeated requests, ExteNet has refused to select and finalize the proposed locations for which it desires the Village Board to render a final decision thereon; and
WHEREAS, the Village Board and its consultants have identified numerous additional means by which ExteNet’s application is incompatible with the Village Code and the relevant criteria governing wireless siting applications, including, inter alia, with respect to aesthetics, mitigation efforts, available alternatives, and, in accord with paragraph 3 below, wireless service coverage and alleged gaps and/or improvements in respect thereof; and
WHEREAS, the Village Board permitted ExteNet and all other interested parties to be heard and to submit evidence and materials in connection with ExteNet’s application and submissions; and
WHEREAS, the Village Board retained the following outside consultants to assist it with respect to its comprehensive review and consideration of ExteNet’s application: Susan Rabold and Anthony Lepore, of CityScape Consultants Inc., and Edward M. Ross, Esq., of Rosenberg Calica & Birney LLP; and
WHEREAS, by virtue of the numerous failures with respect to ExteNet’s application set forth in the specific findings below, the Village Board is unable to make a determination under the State Environmental Quality Review Act (“SEQRA”) with respect to a proposed action; and
WHEREAS, notwithstanding ExteNet’s numerous failures set forth in the specific findings below, ExteNet has taken the position that the hearing, application and review process are deemed closed and that the Village Board is required to render a decision on its application by September 3, 2019; and
WHEREAS, the Village Board, having completed a comprehensive review and consideration of the record, and having fully deliberated thereon, has determined to deny the application for the reasons set forth hereinbelow, and without waiver of the Village’s position that a final decision is premature because ExteNet has refused to complete the review process as required by the Village Code, SEQRA and applicable law;
NOW, THEREFORE, BE IT RESOLVED, that the Village Board hereby adopts the following written findings in support of its denial of ExteNet’s application:
1. The Village Board has fully considered the intent and criteria for Special Use Permits and Small-Cell Facilities Permits as set forth in the Village Code, §209-73 et seq.
2. In rendering its decision, the Village Board specifically excluded from its consideration or reasoning for denial any comments, statements, submissions, or any other materials or information regarding any potential adverse health concerns or effects over radio frequency (RF) emissions, other than to attempt to confirm that ExteNet’s application complies with applicable federal standards.
3. While the Village Board recognizes that the FCC’s most recent guidelines contain various pronouncements with respect to effective prohibition of wireless services and which purport to provide that providers are no longer required to establish a substantial gap in coverage, the Village Board maintains that such guidelines are invalid, unlawful and unconstitutional. Nevertheless, the Village Board determines that no effective prohibition exists with respect to the instant denial of ExteNet’s application even if the FCC’s most recent guidelines were deemed to fully apply, including with respect to attempted upgrades and improvements to wireless networks.
4. Section 209-73.A. in Article VIII entitled “Small-Cell Wireless Facilities” states: “The purpose of this article is to establish uniform policies and procedures for the deployment and installation of small-cell wireless telecommunications facilities (small-cell facilities) in the Village, which will provide a public health, safety, and welfare benefit consistent with the preservation of the integrity, safe usage, and visual qualities in the Village.”
5. Section 209-77.A. states: “The following locational priorities shall apply in the order specified, consistent with the Village’s obligation to create the least amount of adverse aesthetic impact and to preserve the scenic values of the Village.”
(1) On the roof of any Village-owned or federal, state or local government owned buildings or structures;
(2) Location on privately owned buildings;
(3) Location on an existing Village-owned utility pole;
(4) Location on Village-owned infrastructure on private poles;
(5) Location on Village-owned property, where there is no existing pole;
(6) Location on privately owned utility poles.
6. Section 209-77.B. further states: “If the proposed site is not the highest priority listed above, then a detailed explanation must be provided as to why a site of higher priority was not selected. The person seeking such an exemption must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site and the hardship that would be incurred by the applicant if the permit were not granted for the proposed use.”
7. In addition, Section 209-79 entitled “Aesthetics and neighborhood impact mitigation” provides a list of criteria that each applicant must address during the application and Special Use Permit process to minimize visual impacts of new small wireless facilities inside the Village’s zoning jurisdiction. Section 209-79(B) requires that, “New small-cell facilities shall include stealth technology designs, unless the Board makes a written determination that such designs are not feasible.” Section 209-79(E) states, “the Board shall consider all impacts to site lines and aesthetic views.”; and Section 209.79.G. provides, “ … small-cells must be designed and placed in an aesthetically pleasing manner to the reasonable satisfaction of the Board.”
8. ExteNet provided examples of possible types of decorative poles for the Village’s consideration and offered to have a Village meeting to allow the community to help pick/design the type of pole to be installed at the various nodes. However, while ExteNet arranged what was characterized as a design charrete, site-specific infrastructure types were not provided for each proposed node location, the final selection and location of which ExteNet continues to refuse to identify. In addition, to the extent design examples were provided, they were suited for urban and suburban land use areas not characteristically similar to the Village’s single-family dwellings which are located along narrow local roads with no overhead electrical utilities inside the street rights-of-way, and whereas overhead electrical utilities in most of the geographic area of the proposed small-cell facilities are designed and proposed are located among alternative private utility easements parallel to rear property lines.
9. It is inconsistent with the special use permit process for ExteNet to engage in vague alternative development proposals with more detailed site plans of what will be installed to be provided at a later date.
10. Further illustrative of the foregoing, in an ExteNet Power Point Presentation dated May 6, 2019 for the Village, Nodes 25, 43, 45, 48, 49, 55, 59, 60, 61, 63, and 64 are proposed to be decorative metal streetlights. However, no existing street lights or utility poles are currently existing in the vicinity of these proposed nodes. In addition, despite specific requests therefor, ExteNet refused to provide, to scale, specific photo simulations of the decorative metal street lights for each exact location for the Board to determine if each proposed stealth node meets the aesthetic goals and objectives of the Code.
11. ExteNet also failed to adequately address why the antennas for the proposed new or replacement utility poles at Nodes 32 and 55 are mounted at 38.50 feet, making the top antenna elevation over 40 feet, which height is not characteristically similar to the existing utility poles throughout the Village and which is out of scale with proposed 25 foot tall ornamental poles as shown on Corrected Exhibit E to the August 5, 2019 Supplement submitted on August 7, 2019.
12. ExteNet failed to adequately address CityScape’s additional comments with respect to specific nodes set forth in CityScape’s Report dated June 29, 2019, including with respect to Node 25, Node 32, Node 34, Node 36, Node 38, Node 43, Node 48, Node 49, Node 54, Node 59, Node 60, Node 61, Node 62, Node 63, Node 64, and Node 65.
13. Although ExteNet submitted a sound level report, ExteNet’s failure to select or finalize the proposed locations for the nodes and the final proposed design plans render it impossible or unfeasible for the Village Board or its consultants to ascertain or determine whether noise levels and mitigation efforts in respect of noise levels are adequate or sufficient.
14. ExteNet failed to adequately address CityScape’s comments that ExteNet did not provide sufficient analysis or indication that the existing or proposed poles can support additional equipment. Although ExteNet submitted additional information in relation thereto, its refusal to select and finalize the final proposed design and location for each of the nodes renders it impossible or unfeasible to determine if ExteNet’s proposal will cause any poles to structurally fail.
15. Although ExteNet provided RF exposure information, including a generic study, purporting that emission levels will not exceed FCC limits, ExteNet failed to submit particularized information with respect thereto. This failure is compounded by the fact that ExteNet refuses to select and finalize the proposed design and location for each of the nodes.
16. ExteNet failed to provide proper notification of landowners within 1,500 feet of any property from proposed nodes. Contrary to ExteNet’s assertion, the Village Board never “waived” this legal requirement, and any purported waiver thereof was invalid and ineffective as a matter of law.
17. Although ExteNet recently addressed the locational priorities set forth in Section 209-77(A) and purported to provide explanations as to why a site of higher priority was not selected in accordance with Section 209-77.B., ExteNet did not make any effort to ascertain whether installation on any privately owned residential buildings is feasible or desirable from the standpoint of any individual homeowners on a case-specific or property-specific basis. In any event, ExteNet’s refusal to select and finalize the proposed design and location for each of the proposed nodes renders it impossible or unfeasible to determine whether ExteNet’s recent explanations are correct or compatible with the locational priorities set forth in Section 209-77.A.
18. ExteNet failed to adequately comply with Section 209-79.B., which requires that “new small-cell facilities shall include stealth technology designs, unless the Board makes a written determination that such designs are not feasible.” ExteNet’s failures in this regard are compounded by the fact that ExteNet refuses to select and finalize the proposed design and location for each of the proposed nodes. See also paragraph 8 above.
19. In accord with the most recent tolling agreement and in compliance with the request of ExteNet, the public hearing in this matter was closed on August 5, 2019. As of that date, ExteNet had still not specified the exact locations and designs of the proposed nodes despite repeated requests by the Village for clarity. ExteNet’s attempt to shift the burden to the Village Board to select and finalize the proposed design and location for each node for purposes of seeking and obtaining the Board’s approval or denial thereof is improper, invalid, and does not fall within the parameters of reasonable “conditions” which the Board may impose with respect to special use permits generally. In addition, the Village Board has not conditionally approved any special use permits, whether in the context of wireless facility siting determinations or otherwise, without the applicant selecting and finalizing the proposed development or siting locations and parameters. Moreover, no other party interested in the proceedings had accurate notice of the siting of the proposed nodes based upon ExteNet’s failure to so specify the sites.
20. ExteNet has the ability to select and finalize the proposed design and location for each node for purposes of seeking and obtaining the Board’s decision thereon.
21. In accord with paragraph 3 above, ExteNet has failed to establish a substantial gap in coverage. In addition, with respect to attempted upgrades and improvements to wireless networks, ExteNet has failed to demonstrate how each of the proposed nodes will specifically upgrade or improve existing wireless services, and failed to submit the type of data and information (e.g., detailed coverage and propagation maps with respect to each of the proposed nodes, drive test results, dropped-call data, or dropped-call records) which are reasonably required to establish a substantial coverage gap, or alternatively a reasonable upgrade or improvement in wireless services.
22. By virtue of the foregoing, ExteNet’s application does not minimize adverse aesthetic and visual impacts. ExteNet was obligated to show that its stated goals and objectives could not be met by other designs that would have lesser adverse aesthetic and visual impacts. ExteNet failed to do so.
23. ExteNet has identified Verizon as the network provider, and although it is not conclusive, Verizon’s website data and information reflects no substantial coverage gaps in respect of the proposed alternative locations and no genuine need or basis to upgrade or improve wireless services in respect of any of the proposed alternative node locations.
24. ExteNet’s generic submissions regarding the purported lack of reduction in property values are based on locations in the Town of Pelham and regarding right-of-way installations, and are outweighed by the more detailed, specific and compelling submissions in the record by licensed real estate professionals who are more familiar with the Village, the latter whom provided credible and persuasive evidence that the proposed nodes will have a substantial negative impact on local property values for the areas immediately surrounding the proposed nodes.
25. The Village Board also finds as credible and persuasive the letters and testimony submitted by local resident homeowners with respect to the adverse aesthetic impacts that the proposed installations would entail, including with respect to their own and neighboring properties. As noted above, the Village Board has disregarded and specifically excludes from its consideration or reasoning for denial any comments, statements, submissions, or any other materials or information regarding any potential adverse health concerns or effects over RF emissions, other than to attempt to confirm that ExteNet’s application complies with applicable federal standards.
26. The Village Board’s foregoing findings are further supported and corroborated by the following additional considerations:
a. ExteNet has selected and finalized proposed designs and locations for proposed nodes in other municipalities among alternative proposed locations for purposes of seeking and obtaining municipal board decisions thereon.
b. ExteNet’s representative acknowledged at a Village of Plandome meeting attended by Trustee Hirsch that ExteNet was contracted by Verizon to build a specific number of nodes in the surrounding area, that no overall reduction in nodes can be made even if less overall or specific nodes would provide the same coverage, and that if a node were eliminated somewhere then a node would need to be added elsewhere.
27. The Village Board comes to the same decision and findings set forth in paragraphs 1-25 even assuming that the findings contained in paragraph 26 were stricken or disregarded from the record.