Court battle on horizon after cell tower permit was denied

Cheektowaga Town Councilmembers attend to a special meeting of the board on January 31, 2019 to discuss a cell phone tower special use permit. (Jim Herr/Cheektowaga Chronicle)
Cheektowaga Town Councilmembers attend to a special meeting of the board on January 31, 2019 to discuss a cell phone tower special use permit. (Jim Herr/Cheektowaga Chronicle)

CHEEKTOWAGA – The Cheektowaga Town Council denied a special use permit Thursday which would have allowed the construction of a 130′ telecommunications tower at a South Cheektowaga little league park.  Attorneys for the telecom companies who want to build the tower are now reviewing their legal options.

In the town’s resolution, they said the tower would negatively alter the essential character of the neighborhood, pose a danger to children, and would not be camouflaged to blend in with its natural surroundings.  They also said the company failed to demonstrate a good-faith effort to identify less intrusive sites and did not show it had a right to build on the property of the South Line Athletic Association at 288 N. Seine Drive.

Each town board member recited the resolution’s bullet points like a pre-arraigned script.

“I feel that I would have liked to see a flagpole design so that they could have mitigated the impact on the community,” said Supervisor Diane Benczkowski.

Councilmember Brian Pilarski had safety issues with the project, “I’m not talking about the signals from the cell phone tower; safety being that the tower is being climbable.  We’re talking about building it right near a youth baseball field.”

“It doesn’t fit into the community, period,” said Councilmember Linda Hammer.  “It’s a strictly residential neighborhood.  They’re a lot of homes there, and it’s very high density, and I don’t feel that it’s the place for a tower.”

A discussion was also had regarding a deed restriction put in place by the West Seneca Schools, the original owners of the property.  It says that the property can only be used for non-commercial ventures.  The town also added that the parcel is not zoned for a cell phone tower.

How did we get here?  Read about last week’s public hearing.

This project has been on the negotiation table for years.  Up State Tower, LLC and Buffalo-Lake Erie Wireless Systems d/b/a Blue Wireless applied for the special use permit after the parties hit an impasse during the lengthy process to get two cell phone towers built on Losson Road and Transit Road as an alternative to the N. Seine Drive site.  The telecom companies later filed a lawsuit in federal court.

“At this point, the parties appear to be at an impasse which is why we’re in federal court with the dispute,” said Attorney Corey Auerbach, of Barclay Damon, LLP.  He’s representing the telecommunication companies.  “Certainly, our position is that the town reneged on the deal that they made with us and that, unfortunately, cost the taxpayers of the town significantly and the town now has to defend a lawsuit based upon the town board’s actions.”

Cheektowaga Chronicle has learned that a lease agreement for the alternative sites was tentatively agreed to well before the town took a final vote on the environmental impacts of the sites on Transit and Losson.  Under pressure from the community, we’re told the lease agreement was kept private, so the optics didn’t show the town just rubber stamping the project.

The parties came to the impasse after the town resubmitted a lease agreement ten-times more than what the parties originally agreed on; the telecom companies didn’t submit a counteroffer on principle.

A town source with knowledge of the negotiations tells Cheektowaga Chronicle that the agreement – a holdover from a deal struck with the South Line Athletic Association – “hoodwinked” the little league in terms of money and the town was going to negotiate the best possible deal for the residents.

Keith Szen of Woodgate Drive would most likely see the cell tower from his backyard.  He told Cheektowaga Chronicle last week that the town needs to submit a fair offer and put the matter to bed.

“It’s disappointing that two years later we’re still talking about the same thing. [The town] had access to all the information, the numbers, everything was redacted from what we were allowed to see,” Mr. Szen said.  “I want the town to work out whatever the numbers need to be on the two other locations, which they already approved.”

Without further negotiations from the town, and add to that, the denial of the special use permit Thursday, the town will probably have to fight an additional prolonged federal court battle.

“The applicate will pursue whatever rights are available to them in relation to the town’s actions today,” Mr. Auerbach said.  “The town board had very minimal comment and once we have an opportunity to review the resolution we’ll know better on how we’re going to proceed.”

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