Nextel Partners, Inc. - Ruling, July 26, 2004
Ruling, July 26, 2004
NEW YORK STATE
ADIRONDACK PARK AGENCY
In the Matter of the Application for a permit to construct
a telecommunications tower on Pilot Knob Road in the
Town of Fort Ann, Washington County pursuant to
Parts 572 and 578 of Title 9 of the New York Compilation
of Codes, Rules and Regulations and §§ 809 and 810 of the
Adirondack Park Agency Act (Executive Law Article 27)
NEXTEL PARTNERS, INC., INDEPENDENT WIRELESS ONE, and G. RANDALL and
APA Application No. 2001-243
This ruling addresses the requests for party status and the identification of issues that have been proposed for adjudication before the Adirondack Park Agency (APA or Agency) in connection with the application of Nextel Partners, Inc., Independent Wireless One, and G. Randall and Cindy Hajeck (collectively herein, Nextel or applicant) for a permit to construct a cellular tower on Pilot Knob Road in the Town of Fort Ann, Washington County.
These proceedings are held pursuant to Title 9 of the New York Compilation of Codes, Rules and Regulations (9 NYCRR), Part 580. In addition to the project sponsor and any State agency, 9 NYCRR §§ 580.4(b)(3) and 580.5 identify certain municipal representatives as well as any landowners within 500 feet of the border of the site of the proposed project as parties to the proceeding. In this matter, the Town of Fort Ann and adjacent landowners, Mr. and Mrs. Nadeau and Mr. and Mrs. Barcey, have joined in a petition for party status with PROTECT, an unincorporated association, as well as with John Pettica, Lorraine Lackzo and Kim Bender (collectively herein, PROTECT). John and Mary Martin, adjacent property owners, have also submitted a petition. By virtue of their status pursuant to Part 580 of the regulations, the Town, the Nadeaus, the Barceys, the Martins and the applicant are parties to this proceeding. Pursuant to 9 NYCRR § 580.6, "[t]he agency staff, while not a party to the hearing, shall have the right to participate fully in the hearing and shall act as an advocate for a full and complete record upon which an informed decision can be made."
I have also determined that the persons and organizations seeking permission to intervene -- PROTECT, the Adirondack Council, and the Residents' Committee to Protect the Adirondacks (RCPA) -- are granted party status pursuant to 9 NYCRR § 580.7. All three of these organizations filed timely petitions. My reasons for granting party status are set forth below.
This matter was referred for hearing without any limitation on issues by the Agency Board. Issues Conference Exhibit (IC Ex.) 24. Section 580.3 of the APA regulations provides that the agency may decide to limit issues at a hearing and so inform the project sponsor; the notice of hearing will then specify the issues to be heard. The regulations do not authorize the hearing officer to limit issues although they do grant her the ability to convene a prehearing conference in order to ". . . consider the simplification of issues by consent of the parties." 9 NYCRR § 580.14(a)(4)(i). Section 580.14(a)(4)(xi) also allows the hearing officer power to take steps necessary for the efficient conduct of the hearing. 9 NYCRR § 580.14(a)(4)(xi).
Consistent with these regulations, I have not limited the issues to be heard, although I have organized them in a way that is intended to make the hearing most efficient. The issues proposed by the issues conference participants -- stormwater management/wetlands; visual impacts; and need/alternatives -- will all be addressed in an adjudicatory proceeding.
On December 6, 2001, the applicant applied for a permit from the APA to build a 114-foot telecommunications tower that is designed to replicate a white pine tree on Pilot Knob Road in the Town of Fort Ann. See, IC Exs. 2 and 3 A-S. This tower is to be built on leased land belonging to G. Randall and Cindy Hajeck. The tower and related infrastructure are to be constructed on a 100-foot x 100-foot parcel. The tower will be located about 800 feet east of Pilot Knob Road. The project also involves the construction of an access road and the installation of underground utility lines.1
The project is proposed for a Resource Management land use area on the Adirondack Park Land Use and Development Plan Map and is a Class A regional project. It involves a major public utility use (communications tower), a new structure over 40 feet tall, and road construction adjacent to or in wetlands. Therefore, the proposal is governed by Parts 572 and 578 of Title 9 of NYCRR and §§ 809 and 810 of the Adirondack Park Agency Act (Act). See, IC Exhibit 1 (APA staff's jurisdiction determination of June 21, 2001).
According to the Act, the purpose of the identification of these resource management areas is to ". . . protect the delicate physical and biological resources, encourage proper and economic management of forest, agricultural and recreational resources and preserve the open spaces that are essential and basic to the unique character of the park." § 805(g)(2). Section 809(10)(e) of the Act provides, inter alia, that in reviewing proposed projects, the Agency will first determine whether "[ t]he project would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park . . . taking into account the commercial, industrial, residential, recreational or other benefits that might be derived from the project. In making this determination, as to the impact of the project upon such resources of the park, the agency shall consider those factors contained in the development considerations of the plan which are pertinent to the project under review."
Legislative Public Hearing
At the June 9, 2004 meeting of the Regulatory Programs Committee of the APA, the Agency Board determined to send this application to an adjudicatory hearing without any limitation on the issues to be heard. See, IC Ex. 24, pp. 23-30. Pursuant to the June 14, 2004 Notice of Agency Intent to Proceed to Public Hearing, the Agency staff issued a notice of public hearing. IC Exs. 25 and 26. By letter dated July 2, 2004, Deputy Director of Regulatory Programs Mark E. Sengenberger informed Administrative Law Judge (ALJ) Helene G. Goldberger of the New York State Department of Environmental Conservation's Office of Hearings and Mediation Services (DEC OHMS) that she was appointed to serve as the ALJ presiding over this matter. IC Ex. 31. In this capacity, the ALJ's role is solely to ensure that the proceedings are fair and facilitate the creation of a full record for review by the Agency prior to its final determination on this application. The ALJ will make rulings on matters such as those in this issues ruling and on evidentiary questions that arise during issue adjudication but will not issue a report or recommendation at the close of the record.
The APA staff mailed the hearing notice to the adjacent landowners, municipal officials, and other interested parties. IC Ex. 27.2 The notice was also published in the June 30, 2004 on-line edition of the Environmental Notice Bulletin and the June 28 , 2004 edition of the Glens Falls Post Star. It was posted on the Hajeck property on June 24, 2004. IC Exs. 28, 29 and 30. As set forth in the hearing notice, the legislative public hearing was convened for two sessions at 1:00 p.m. and 5:00 p.m. on July 8, 2004, at the Pilot Knob Volunteer Fire Company Hall.3
Approximately 50-60 people were present at each hearing session, including those individuals who came to both sessions as well as the Agency staff and the personnel accompanying the applicant's counsel. Apart from the representatives of the applicant and APA staff, 11 people spoke at the afternoon session and 21 individuals provided comments in the evening. Of these commenters, 19 expressed opposition to the project and 13 voiced approval of it. In addition, speaker Dave Klein presented 106 letters in support of the project at the hearing. The APA and the ALJ have also received written comments from some of the speakers and others.4 The majority of the letters received by the ALJ are in favor of the project.
At each public hearing session the applicant's counsel, Jacqueline Phillips Murray, Esq. of Crane, Greene & Parente and Kyle Knickerbocker, the Nextel project manager, provided a description of the project. In this review, the applicant explained that it sought to remedy gaps in cellular telephone service in the Pilot Knob area as well as at other locations on Lake George. The applicant provided information on its propagation studies and drive tests that Nextel's representatives explained supported the siting of the tower in Pilot Knob at the chosen location. Ms. Murray spoke about the applicant's efforts to identify alternative sites and the tree monopole's ability to blend in with the surrounding landscape. As part of this description, samples of the artificial tree bark and branches were on display.
On behalf of the APA staff, Mitchell Goroski, Senior Attorney, provided a summary of the permit hearing process. Mr. Goroski also emphasized that the APA permit review process had already caused the evolution of the project from a steel pole and chain link facility to a stealth tree and wood stockade fence.
Others who spoke at the hearing included former Town Supervisor of Fort Ann John Aspland, who commended Nextel for making the project less observable but stated that there was no documentation of need for the service. Others in opposition raised concerns about the visual impacts on a sensitive and beautiful area, effects to freshwater wetlands and Lake George based upon potential erosion and sedimentation, the lack of compatibility with local land uses, and the failure of the applicant to sufficiently investigate and evaluate alternative sites. Those in support of the project such as Cayla Ferrari expressed concerns over lack of communication technology in emergency situations demanding immediate response. Speakers John Lefner and Victor Hershaft maintained that the APA could work out conditions to ensure that there were minimal impacts, such as bonding measures to address storm runoff. Various members of the Volunteer Fire Department expressed opposite opinions on the project.
Pursuant to the hearing notice, the ALJ convened the issues conference at the Pilot Knob Volunteer Fire Department at 10:00 a.m. on July 14, 2004. Mitchell Goroski, Senior Attorney and George V. Outcalt, Environmental Program Specialist, appeared on behalf of the APA staff. Nextel was represented by Jacqueline Phillips Murray, Esq. and John McManus, Esq. of Crane, Greene & Parente. Technical support for the applicant was presented by Kyle Knickerbocker and Peter P. Coppola of Nextel Partners, Inc. and Linda T. Stancliffe of Erdman Anthony. Christopher Navitsky, P.E. appeared on behalf of the Lake George Waterkeeper; Marc Gerstman, Esq. appeared on behalf of the Town, PROTECT, and the other individuals listed above; Bernard C. Melewski, Esq. represented the Adirondack Council; Peter Bauer, Executive Director, appeared on behalf of the Residents' Committee to Protect the Adirondacks; and Ms. Bridget Martin Paris appeared on behalf of her parents John and Mary Martin.
As set forth in 9 NYCRR § 580.9, the pre-hearing or issues conference is the forum for the hearing officer "to simplify, define, limit or resolve issues" prior to a hearing on issues related to the proposed project. As noted above, petitions were timely filed by PROTECT, the Lake George Waterkeeper, the Adirondack Council, and RCPA. The adjacent landowners - the Barceys, Martins, and Nadeaus - and the Town are parties by operation of regulation. 9 NYCRR §§ 580.4 and 580.5. Section 580.7(a) of 9 NYCRR allows any person to seek party status "to present evidence, cross-examine witnesses, and otherwise participate in the public hearing." The intervention standards set forth in § 580.7 call for those seeking to become parties to demonstrate capacity to participate in the proceedings and to explain the nature of evidence and argument that will be presented. The hearing officer may grant the petition if she finds that the intervenor has a material interest that is likely to be affected by the agency decision on the project and has information that would be beneficial to the proceedings.
Initially, I asked the applicant, staff and other participants to assist in the identification and marking of the documents comprising the application and supporting documents as well as any other information that they knew to be relevant to the Agency's determination. See, issues conference exhibit list annexed to this ruling as Appendix B. We next discussed the possibility of a site visit. Everyone concurred that such a trip would assist the participants in any future proceedings regarding this proposed project; however, there needed to be further discussion among the participants to ascertain the exact itinerary of such a visit, the number of representatives that would be present, and the mechanics involved. Mr. Gerstman agreed to discuss these matters with Ms. Murray and to propose a plan by July 22, 2004. On July 23, 2004, I received a proposed itinerary submitted by the applicant in conjunction with Mr. Gerstman and which had been also sent to the other participants. This plan includes a walk on the Buck Mountain Trail in Pilot Knob to Stewart's Ledge and a boat trip on Lake George to points around the lake. Tentatively, this trip is planned for August 16, 2004.
I noted that my observations at the public hearing led me to conclude that everyone involved appeared to agree about preserving the beauty of the area while also ensuring public safety. I suggested that mediation may be a device to use to come to a resolution on the project or aspects of it. I explained that the ALJs in the DEC OHMS are trained mediators and if the participants were willing, one could be assigned to assist in such process.
In response to my question as to whether there were any objections to "the interest" of any of the intervenors, Ms. Murray argued that she did not see that petitioners Pettica, Lackzo, and Bender had any material interest in this matter. Mr. Goroski responded that these petitioners as well as the other intervenors and parties had all established sufficient interest through their sustained involvement in this application.
Attorney Murray also stated that she was not satisfied that those present had established that they represented the organizations for whom they appeared. While I stated that I had no such concerns, I did ask that the various representatives provide any information required by 9 NYCRR § 580.7(a)(1) that had not already been included with the filed petitions. PROTECT is an unincorporated association and therefore, does not have the documents specified in the regulation. Mr. Navitsky stated that the Lake George Waterkeeper had no problem providing additional information to the applicant but had no board of directors. Mr. Bauer advised that he would provide a resolution of the RCPA though Ms. Murray excluded that organization from her objections. Mr. Gerstman produced a letter dated July 13, 2004 from Supervisor Gayle A. Hall, the Fort Ann Town Supervisor, indicating that authority was given for counsel to represent the Town in these proceedings. IC Ex. 38. On July 15, 2004, Mr. Jaime Ethier faxed to me the Adirondack Council's articles of incorporation.
At the conclusion of the issues conference, Mr. Goroski explained that he would work with the court reporting company to obtain a transcript that would be made accessible to the issues conference participants and the public. The transcript was not available at the time of the writing of this ruling. Mr. Goroski also took responsibility for investigating the possibility of other locations for the adjudicatory portion of this hearing. On July 15, 2004, I circulated a memorandum that summarized the tasks we agreed upon and also included an issues conference exhibit list and service list. That memorandum is annexed to this ruling as Appendix C.
Below is a description of the discussion of the substantive issues at the issues conference and my rulings.
Stormwater Management and Wetlands
The Lake George Waterkeeper, PROTECT, and the Adirondack Council expressed concerns about the applicant's failure to adequately assess impacts of runoff to Lake George and the freshwater wetlands near the project site. Mr. Navitsky explained in November 2001 a report had been submitted by the Hajecks to the Lake George Park Commission (LGPC) and that LGPC had requested additional information. Mr. Navitsky stated that because the plans for the project have since been altered, the former stormwater management plan did not relate to these changes and without an updated plan it was impossible to determine impacts on runoff and wetlands. He raised concerns about the groundwater elevation and the lack of pretreatment, among other items. IC Ex. 40. He understood that the original intent of the project was to utilize the wetlands as a stormwater retention area and this was not an appropriate use of this resource.
Ms. Murray responded that there was no need to adjudicate the intertwined issues of stormwater management and the impacts to wetlands. The applicant would meet LGPC standards and was receptive to providing the most recent stormwater information and in meeting with Mr. Navitsky and other interested participants to explain plans and attempt to accommodate concerns. Mr. Goroski explained that the LGPC had determined that the applicant's stormwater plan was acceptable but would not issue a permit until the APA had completed its review. See, IC Ex. 41. A letter dated May 7, 2004 from the LGPC to Ms. Murray indicates that this entity is still in the process of reviewing information about the stormwater management plan and is expecting a revised plan. IC Ex. 44. With respect to wetlands, while the project is not planned to be sited in the wetlands, it is adjacent to them and Mr. Goroski explained that pursuant to APA regulations, this adjacent area is subject to protection as well.
Mr. Michael Barcey provided a copy of his comments that he had offered at the public hearing session. Included with these comments are photographs showing a feeder stream that enters the Barcey property coming from the Pilot Knob and Buck Mountain watershed and wetlands. IC Exs. 42 and 42A - H. The Barceys are concerned about additional stormwater entering their property from the project site. Mr. Goroski responded that this flow issue required evaluation.
Mr. Melewski expressed the Adirondack Council's view that these matters should be adjudicated, particularly in light of the LGPC's equivocal position.
RULING: I find that the Lake George Waterkeeper has demonstrated the need to adjudicate the stormwater management plan and wetlands issues. The entity responsible for impacts to Lake George, the LGPC, has maintained the need for a coordinated review on these issues. There remains uncertainty about key aspects of the stormwater management plan and its effects. The applicant agreed at the issues conference to supply the revised stormwater management information to the intervenors and on July 16, 2004, I received a copy of this packet that was sent to Mr. Navitsky. On July 22, 2004, I received additional information that was also sent to Mr. Navitsky by Ms. Murray. Pursuant to our discussions at the issues conference, I will expect to hear the results of the technical conference that the participants agreed to convene to discuss these issues. In the event that these matters are resolved, there will be no need to hold a hearing on them.
I also encourage APA staff to coordinate with the LGPC staff to attempt to involve them in this process in order to get their expert input.
On these issues as on all others that will be adjudicated, as provided in § 580.14(b)(6), the applicant has the burden of demonstrating that its application is in compliance with applicable law and regulations. In response to the applicant's direct case, on behalf of the intervenors, I find the Lake George Waterkeeper to be the lead party on these issues. To the extent that the Barceys or other parties can contribute to the development of this presentation, they shall coordinate with Mr. Navitsky through their counsel.
PROTECT explained in its petition that the project will be visible to individual petitioners and residents of Fort Ann from vantage points in and around Pilot Knob, Lake George, and other vistas and hiking trails. PROTECT argues that there will be unmitigated and adverse visual and aesthetic impacts on state lands within the Adirondack Forest Preserve. PROTECT states that the project is not "substantially invisible" from critical environmental areas and therefore not in compliance with the APA Policy on Agency Review of Proposals for New Telecommunications Towers and Other Tall Structures in the Adirondack Park (Towers policy). PROTECT also maintains that Nextel did not consider the cultural and historical significance of the area surrounding the project in its application. These petitioners maintain that there are substantial deficiencies in methodologies employed by Nextel to evaluate impacts. Mr. Gerstman referred to the March 22, 2004 letter Frank Rapant, Jr., P.E. in support of these conclusions. IC Ex. 47, Tab 28. PROTECT offers Mr. Rapant as its expert witness on this issue.
Mr. Rapant states in his letter that the applicant's visual analysis did not comply with the APA's visual analysis methodology by failing to identify: key viewer groups, whether or not the viewing points are stationary or moving, the width of the field of view and the horizontal angle, and other items. He also criticized the distances from which photos were taken by the applicant finding that it was "impossible to ascertain an accurate visual impact." Mr. Rapant found that Nextel's conclusions that the artificial tree would blend in with the surrounding tree line were not likely based upon the height of the structure. Mr. Rapant stated that comparisons of simulations with actual photographs taken by Pilot Knob property owners during the balloon flight on July 12, 2001 indicate that the tower would be visible from areas of Lake George. In this letter, Mr. Rapant also criticizes Nextel's failure to identify and include all public viewing areas in the visual analysis and the co-location of additional carriers.
The Adirondack Council stated in its petition that the application was deficient in its analysis of visual impacts from waters of Lake George and points west as well as from public Forest Preserve lands and vantage points from public hiking trails and east of the facility. IC Ex. 35. The Adirondack Council concluded that the failure to consider impacts on scenic resources of Lake George Basin and the Adirondack Park was inconsistent with APA policy. IC Ex. 35. Mr. Melewski agreed with the presentation by PROTECT and stressed the need for a seasonal analysis of the visual impacts. He also pointed to photographs submitted by Jason Brechko, a high school earth science teacher, who spends a great deal of time hiking the area in the vicinity of the projects. Along with comments submitted at the legislative hearing, Mr. Brechko submitted photographs in which he simulated the project in relation to trails and views near the project site. IC Ex. 48. Mr. Melewski noted the contrast between these photographs and the simulations provided by Nextel. In its petition, PROTECT has also offered the testimony of Mr. Brechko.
With respect to the project's effects on historical and cultural impacts, Mr. Melewski stressed that the record was not sufficiently complete for the Agency to make its determination and that the burden rested on the applicant (not the public) to make its case. Mr. Melewski pointed out that Brian Houseal, the Executive Director of the Adirondack Council, is a landscape architect. Mr. Melewski stated that Pilot Knob is a famous place in American art history and that there are hundreds of paintings depicting its scenery including ones by artists of the Hudson River School and Georgia O'Keefe. He maintained that this is a unique and revered location that must be protected from even a partial view of an artificial tree. Mr. Melewski informed us that the Adirondack Council intends to retain art historians to provide testimony on this subject.
The RCPA said in its petition that compliance with the APA Towers policy must be adjudicated. RCPA stressed that because this proposal is the "first stand-alone telecommunications project, [it] will set a precedent for all future towers across the Adirondack Park for the foreseeable future." The RCPA also noted that the use of an artificial white pine tree to disguise the tower is a first-time application. IC Ex. 36. Mr. Bauer provided that there were many landowners and other people who use the trails in this area who would like to testify about their use of the area.
While Ms. Paris did not speak at the issues conference and had to leave the conference early, in the letter submitted on behalf of her parents, the Martins explained that as adjacent landowners they were concerned with the precedent setting nature of this proposal. IC Ex. 37.
Ms. Murray responded by stating that the applicant has complied with APA visual impacts methodology and referred to IC Ex. 5 which she maintained addresses the visual survey performed by Nextel. She stated that there would be no full view of the facility from any location and only a portion would be visible at areas on Lake George and at trails. Because the trees around the tower site are largely coniferous, Ms. Murray explained that there would only be a small portion of the tower visible above the tree line. Ms. Murray countered the intervenors' claims stating the Nextel's simulations were accurate portrayals of how the facility will look. She argued that the intervenors' claims were generalized and insufficient to rebut the Nextel simulations.
Ms. Murray stated that this issue had already been litigated in New York's courts and there had been a judicial determination that the tower would be a minimal intrusion in the landscape. Attorney Murray argued that accordingly, PROTECT is estopped from litigating this issue further.
Ms. Murray maintained that the project was in compliance with the APA's Towers policy because it was not located on a ridgeline or mountaintop; it would be minimal in size (bulk); there would be a minimum amount of vegetation removed; the color of the artificial tree would match the surrounding woods; that other options had been explored and ruled out; and that the architecture for the building would be compatible with the area. Ms. Murray stated that leaf-on and leaf-off conditions were addressed in the April 17, 2003 submission. IC Ex. 10. She argued that there were no adverse impacts demonstrated by the intervenors and no proof shown that the tower will not blend in with the surrounding area and meet the substantially invisible standard set by the APA policy.
Nextel counsel explained that there would be no change in the visual impacts of the tower if other facilities co-locate on it. IC Ex. 10B.
Ms. Murray stated that the balloon photographs taken by PROTECT members don't address whether the facility will blend in but rather show the foreground and background of trees. She said that these pictures had already been submitted to the courts which decided that they did not contradict Nextel's submissions.
With respect to the arguments raised by the participants concerning historical and cultural impacts, Ms. Murray provided that there had been a "no effect" determination from the Office of Parks, Recreation and Historic Preservation, and there was no proof that these issues could stand alone in an adjudicatory hearing. IC Ex. 3R. She maintained that this issue goes back to whether the tower designed by Nextel will be substantially invisible or not. Ms. Murray also noted that since the painting of the works of art noted by Mr. Melewksi, there was no doubt a lot of development in Pilot Knob that had not existed such as roads, houses, and utilities.
Mr. Goroski stressed that the Resource Management classification was the highest classification in the Adirondack Park with 42-acre zoning. He explained that the purpose of this classification is to preserve open space. He stated that the staff's June 2, 2004 letter to the Executive Committee of the APA found that the project when properly conditioned would be in compliance with the APA Towers policy. IC Ex. 22. Mr. Goroski added however that because staff did not have the customized design there was not a definitive answer on how the project would appear yet. There was an understanding of size and location but the quality of the tower was not known. In response to Ms. Murray's arguments of estoppel, APA counsel maintained that because the APA was not a party it was not bound by those determinations. In addition, he argued that the focus in the courts was on a zoning issue and not on environmental impacts.
All the participants appeared to agree that the historical and cultural issues raised by some of the intervenors were components of the visual issues and would be incorporated into any hearing that would be held on those matters.
RULING: The visual impact of this project is the most crucial one to the Agency's determination. It is the tower's visibility to adjacent landowners, hikers, and tourists that has elicited the concerns of community and the intervention by the various organizations and individuals to this process. Clearly, the proliferation of cellular towers is of great concern to the APA as it has adopted a policy that specifically addresses their construction. While the applicant argued strenuously that it has met this policy in every respect, PROTECT has proposed witnesses and evidence in opposition. The pre-hearing conference is not the place to settle these questions as there is no sworn testimony or cross-examination. Rather, at this issues conference it became apparent that the participants have identified the concerns that should be addressed in an adjudication of this issue. On behalf of the intervenors, PROTECT will take the lead on this issue with the assistance of the Adirondack Council and the RCPA.
With respect to the applicant's arguments on the findings of the courts in Nextel Partners, Inc. and Independent Wireless One Corporation v. Town of Fort Ann, et al, Index No. 3599E (Sup.Ct. Washington Co. 2/6/03), aff'd, 1 AD3d 89 (3d Dep't 2003), I find that because the jurisdiction of the APA - to regulate development in the Adirondack Park - is different than the zoning question before the courts, there is not a preclusive effect to these decisions on these proceedings. In the court decisions in question, Nextel challenged the decision of the Town of Fort Ann to deny it a variance for construction of the Pilot Knob cell tower on the grounds that the site of the project is a residential area that prohibits "any industrial or commercial purpose." The courts determined that Nextel project is entitled to a public utility exception as articulated in the Court of Appeals decision in Matter of Consolidated Edison Co. of N.Y. v. Hoffman, 43 NY2d 598, 611 (1978). While the decisions in Nextel Partners, supra, address the merits of Nextel's proposal in terms of need and impacts, I find that they did so within the context of the zoning dispute before them. The APA maintains its jurisdiction to independently evaluate this project and the environmental impacts associated with it.
I have determined that collateral estoppel or issue preclusion does not bar the issue of visual impacts or any other issue in this proceeding from being heard, because the APA and a number of the intervenors and parties were not involved in the prior court actions. The doctrine of collateral estoppel may not be used against a party who was not a party to the first action. See, Siegel, New York Practice, 3rd Ed. § 458 (1999). In addition, I do not find that PROTECT and/or the Town is precluded from going forward on this issue for the reasons discussed above. The context of this proceeding is different and the examination afforded the APA by the Legislature goes beyond the zoning questions previously addressed. Id. at § 463.
Need and Alternatives
Mr. Bauer stated that RCPA was supportive of a hearing on issues such as the impacts to adjacent landowners, the Tower policy, and alternatives. With respect to need, the position of the RCPA is that there was sufficient coverage as described by some of the commenters at the public hearing sessions. He also stated that the tower would not comply with the APA Towers policy because it would be 50% taller than the trees around it. The RCPA did not find any great benefit to this proposal as many people already have cellular service. Mr. Bauer stressed that there was a higher standard of review for development in Resource Management areas.
Mr. Gerstman stated that need and alternatives issues were intertwined and the need for the project diminished if service can be had with fewer impacts. He responded to Ms. Murray's estoppel argument by stating that the judicial forum was not the same as the Agency's and applied different standards. With respect to the Towers policy, Mr. Gerstman argued that even if Nextel did not have coverage in the Park, the State was bound to protect the Forest Preserve. He pointed to PROTECT's petition with respect to their experts who addressed failings in the propagation studies which are directly relevant to issue of need. PROTECT offers the testimony of Richard Comi, Lawrence Monroe, and Professor William Johnson in support of its position. The resumes of these gentlemen indicate experience in the telecommunications field.
With respect to alternative sites in the vicinity, Mr. Gerstman stated that there is a factual dispute over when contacts were made by the applicant to the Y Camp and the Vitos.
The Adirondack Council's position is that there may be areas in the Adirondack Park without cellular coverage because of the special protection that is required by law. Mr. Melewski stated that the applicant had dismissed clear alternatives.
Ms. Murray responded that there were two issues with respect to necessity. The first was whether there was a need for the improved service. The second was whether the need could be remedied by locating a facility at the chosen location. Nextel's studies showed that there were "holes" in coverage - on the western side of Lake George, Routes 9L and 9N as in Pilot Knob. IC Ex. 3E, G. Ms. Murray pointed to the public comments as underscoring the undeniable need for coverage. In addition, she pointed again to the decisions in Nextel Partners, supra, in further support of this conclusion.
Ms. Murray identified the case of Omnipoint, Inc. v. City of Peekskill, 202 F. Supp. 210 (SDNY 2002) in support of the position that another provider's ability to provide cellular service does not mean that service is adequate in terms of the provider who is seeking to establish service. She also argued that the Federal Telecommunications Act (TCA) preempts laws that prohibit siting of towers, and that localities are not permitted to discriminate among functionally equivalent services.
Ms. Murray also reiterated Nextel's arguments that PROTECT had already made its case in the prior Article 78 proceeding - citing specifically to Dr. Johnson's contributions - and had failed to refute Nextel's propagation analysis or determinations on alternative sites. In support of this position, she pointed to the YMCA letter (IC Ex. 23D) and the Vito letter (IC Ex. 50) and explained Nextel's research of 18 potential locations resulting in the choice of the Pilot Knob site in response to the intervenors' arguments on alternatives. See, IC Exs. 3F, 5D and 21F. Ms. Murray stated that Nextel was already on every available tower in the area and therefore had exhausted the alternatives. With respect to the Optinet system that is comprised of fiberoptics - she explained that this technology would not remedy the existing gap in service. IC Ex. 32. Ms. Murray stated that Nextel selects sites on the basis of topography, coverage, leaseability, and locale. She reemphasized the position of the applicant that the Pilot Knob site and tower design would result in a substantially invisible project.
Mr. Goroski provided that the APA Board did not limit the issues to be heard in a future adjudication although staff's briefing memo did suggest what issues could be heard. IC Exs.22; 24, p. 9; Ex. 31. He expressed the view that the Agency needs to get the range of opinion on radio propagation analyses and whether there is a potential for locating service on utility poles or other sites.
RULING: As noted above, Section 809 of the Act requires the Agency in review of proposals such as this one to determine whether "the project would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park . . . taking into account the commercial, industrial, residential, recreational or other benefits that might be derived from the project." In addition to this mandate of the Legislature requiring the Agency to perform a broad review that balances environmental impacts and social/economic benefits, all the participants to this process acknowledge that "need" is a basic component to any decision with respect to telecommunications tower siting. I agree with Mr. Gerstman and others that the presence or absence of alternatives is related to any determination of need.
As I found with respect to the visual impacts questions, the participants to this proceeding have demonstrated that they are prepared to present contrary facts and conclusions on the various sub-topics that will lead to conclusions on need and alternatives such as the propagation studies and the availability of the Y Camp and Vito properties. Based upon the "joinder of issue" on these subjects, I find them appropriate for adjudication.
With respect to the legal arguments raised by the applicant and PROTECT concerning the jurisdiction of the State or localities to make determinations on cellular tower siting, I have read the precedents they cited. What I understand from these decision is that the 1996 Federal Telecommunications Act (TCA), 47 USC § 332 et seq, prevents communities from prohibiting the construction of cellular towers. 47 USC § 332(c)(7)(B)(i)(II). However, the TCA does not prevent localities from restricting the siting of towers. In making determinations, permitting agencies may consider aesthetic impact of the project and may reject an application if there is a less intrusive means to close a service gap. See, Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 645-646 (2d Cir. 1999). The cases cited by the issues conference participants - zoning cases - all hinge largely on the particular facts and the nature of the review performed by the defendant/respondent municipalities. See, e.g., Omnipoint Communications, Inc. v. City of Peekskill, 202 F.Supp. 210 (SDNY 2002) (district court found that the defendant City had utterly failed to provide substantial evidence in opposition to the plaintiff's findings of aesthetic compatibility, among other issues.)
With respect to the need question, there is authority for the applicant's position that this determination is based upon a gap of service for a particular provider (see, e.g., Omnipoint Communications, Inc. v. City of White Plains, 175 F. Supp. 697 (SDNY 2001). However, in the same case, the court noted that "seamless coverage" is not guaranteed, citing APT Pittsburgh Ltd. Partnership v. Penn Tp Butler County of Pennsylvania, 196 F.3d 469 (3d Cir. 1999). And, in Willoth, supra, the Second Circuit allowed that there may be reasonable discrimination among equivalent providers when based upon different aesthetic or safety concerns.
Accordingly, it would appear that there is leeway within existing law for the type of review the Agency seeks to undertake.
PROTECT is to take the lead in presenting the intervenors' direct case with the assistance of RCPA and the Adirondack Council.
The issues of impacts on viewshed and watershed/wetlands as well as the issues of need and alternatives will be the subject of an adjudicatory hearing. There was concurrence at the issues conference among the participants that the impact to adjacent landowners was subsumed by the issues we discussed and was not a stand-alone issue.
I will contact the parties to set up a conference call to determine the date that this hearing will commence as well as to find out the status of the preliminary matters we discussed at the issues conference such as the site visit and the resolution of any discussions on the stormwater management plan.
In addition to the parties that are designated by regulation (the applicant, Michael and Judith Barcey, Normand and Jeannette Nadeau, John and Mary Martin, and the Town of Fort Ann), I find that the Adirondack Council, the RCPA and PROTECT including the individuals John Pettica, Lorraine Lackzo, and Kim Bender have all exhibited sufficient material interest in this proceeding to warrant party status. Their participation and that of the staff is to be governed in accordance with the discussion above.
Pursuant to 9 NYCRR § 580.7(f)(1), "[a]ny decision of . . . the hearing officer to grant or deny intervention may, within five days of receipt, be appealed to the agency, which will decide the appeal at its next regular meeting. Other parties may submit briefs in support of or in opposition to the decision." In accordance with 9 NYCRR § 580.7(f)(2), "[n]otice of such appeal and a copy of all materials submitted in support thereof shall be given the executive director or hearing officer and all parties to the hearing." Allowing time for mailing, any appeals of this ruling must be received by Director Daniel T. Fitts at the address noted below by 5:00 p.m. on August 6, 2004. The parties shall ensure that transmittal of all papers is made to the hearing officer and all others on the service list at the same time and in the same manner those papers are transmitted to the Agency.
In the event that no appeals are filed, the parties are directed to advise me by August 9, 2004 of their availability for a conference call to discuss further proceedings in this matter.
Helene G. Goldberger
Administrative Law Judge
Albany, New York
July 26, 2004
TO: Attached Service List
Daniel T. Fitts Executive Director Adirondack Park Agency P.O. Box 99 Route 86 Ray Brook, New York 12977
1 For a more detailed description of the proposed project, see the June 23, 2004 notice of hearing annexed to this ruling as Appendix A.
2 This document as well as IC Exs. 17, 18, and 19 were not available at the issues conference. The APA staff will ensure that these records are made accessible for public inspection and included as part of the record provided to the Agency Board Members at the conclusion of these proceedings.
3 The ALJ and Agency staff expressed their appreciation of the Volunteer Fire Department members as well as other community participants who assisted in hosting the hearing at the fire hall and making the facility accessible and welcome to all.
4 The APA staff has not set a deadline for the receipt of written comments and will provide copies of all public comments to the Agency decisionmakers at the conclusion of the hearing process.