Legal Framework
What you should know
It is important to understand that there are three main legal frameworks that will be the deciding factors in whether the cell tower is approved or rejected. Local residents believe that the Planning Board lawyer has ill advised the Planning Board members that it is better to approve the project in fear of a lawsuit from Verizon - yet Verizon has recently been denied in Yorktown Heights and Palentown and they have not sued these municipalities. It is critical that we the people who love the Shawangunk Ridge voice our opposition to this cell tower now!
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The passage of this law established wireless cell service as a public utility and strips localities of many of the environmental protections and public health and safety measures that the Planning Board can normally consider when approving or rejecting a development or infrastructure.
Currently, in the case of cell phone towers, the main criteria that a cell phone company or wireless provider must establish in seeking a permit from a locality is:
That a need exists for the cell tower. This can be demonstrated by a significant gap in cell coverage in the area of the proposed that the cell tower.
That the cell tower can be located in a less invasive location.
In both these cases, residents have paid for renowned experts to provide the Rochester Planning Board with significant evidence that the Verizon cell tower will not service a significant gap in coverage and that Verizon has provided the U.S. Federal Communications Commission annual reports that show 100% coverage no coverage is needed in this area. Verizon gives these reports under penalty of perjury which means that if Verizon iis knowingly giving false information to the FCC then they can be charged with the crime of perjury, which is a felony.
There is also another cell tower within less than two miles of the proposed cell tower! In addition, recently Verizon has put in a permit to increase the height of another existing mega cell tower in Kerhonkson less than five miles away.
Need:
Verizon has to report every year to the Federal Communications Commission and their statements are under perjury - these maps that Verizon has haves submitted to the FCC show full coverage in the area that they are saying has there is a coverage gap on 44/55 in the woods.
Concerned residents have paid an independent expert to review Verizon’s study and found that there was not a need that this proposed new tower would meet. You can read the report and rebuttal to Verizon’s lawyer in resources section.
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The Town of Rochester spent a lot of time, energy and our taxpayer money on revising our Town Code in 2019 and include a section on cell towers.
This section specifically states that the Town of Rochester:
Minimize adverse aesthetic and visual impacts to protect the natural features and aesthetic character of the Town with special attention to the Shawangunk Ridge, Mohonk Preserve and Catskill Preserve.
It also requires that there must be a comprehensive economic analysis of how the cell tower will impact property values - this has not been done. Verizon submitted two irrelevant real estate market reports. Local residents disputed that this met the Town’s code yet the Planning Board has thus far not required Verizon to present a valid and relevant real estate market report.
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The State Environmental Quality Review Act (SEQRA) is a New York law requiring state and local agencies to evaluate environmental, social, and economic impacts before approving projects. It forces officials to consider environmental factors early in planning, often leading to project modifications that avoid or minimize adverse impacts, including those on communities, and can be the basis for denying a project.
When a project is proposed, an agency or governmental body is designated as the “lead agency” to oversee the process with the applicant. In this case, the Town of Rochester Planning Board is the lead agency and the applicant is Verizon. Then based on whether or not the lead agency deems that the project will have an adverse environmental impact they can require a positive declaration - meaning that the project will impact the environment and requires a full study on the impacts of the project to the environment and the economy of the area known as an Environmental Impact Statement (EIS), a negative declaration - meaning it will have no impact and the lead agency does not require an Environmental Impact Statement, or a conditional negative declaration - meaning that the lead agency requires the applicant to make changes to the application and will not require an Environmental Impact Statement and they can vote to approve or deny the project.
Positive Declaration - A Positive Declaration under SEQRA (State Environmental Quality Review Act) in New York is a written determination by a lead agency that a proposed action may have a significant adverse impact on the environment. This formal finding triggers the requirement to prepare an Environmental Impact Statement (EIS) to analyze potential impacts and alternatives.
Key aspects of a Positive Declaration include:
Trigger for EIS: It acts as the official notice that a draft Environmental Impact Statement (DEIS) is necessary.
Identification of Impacts: It must identify the specific potential significant adverse environmental impacts that require analysis.
Scoping: It marks the beginning of the scoping process, which determines the focus of the EIS.
Public Notice: The document must be filed, distributed, and published to inform the public and involved agencies.
Purpose: The goal is to ensure that environmental factors are fully considered.
Balancing Test - SEQRA (State Environmental Quality Review Act) requires a balancing test that weighs a project’s environmental, social, and economic impacts against its public benefits to determine if an action should be approved. Agencies must mitigate significant adverse impacts, and in the final "balancing" step, decide if the project's need justifies potential harm.