BUFFALO – Attorneys for two telecommunication companies trying to erect two cell phone towers in South Cheektowaga have filed a lawsuit in State Supreme Court alleging that the Town of Cheektowaga and Supervisor Diane Benczkowski in her official capacity, engaged in “fraud, misrepresentation, deception, and other improper conduct” during the lengthy process to get the towers built.
The lawsuit was filed with the Erie County Clerk’s Office last Thursday and outlines seven separate causes of action. Cheektowaga Chronicle obtained the lawsuit from Erie County Monday.
Up State Tower, LLC and Buffalo-Lake Erie Wireless Systems d/b/a Blue Wireless have been trying since 2016 to erect two 150′ monopole transmission towers in the south end of town after a Blue Wireless engineering team determined that a coverage gap existed between Losson Road and Clinton Street.
The Town of Cheektowaga, Up State Tower, LLC, and Blue Wireless, appeared to have been negotiating in good faith after several concerns were raised with a proposed tower site at the Southline Athletic Association at 294 N. Seine Drive.
Several neighbors publicly objected to the proposed construction at the little league park during a town board meeting in February 2017. Time extensions for further negotiations were agreed to by the parties and other sites were brought to the table by the town including a parcel of land at 4872 Transit Road and an area behind the facilities building at Stiglmeier Park.
Fast forward one year later to January 2018 and neighbors near the Transit Road site raised several different concerns about the construction of the tower.
One concern being that the site was bought by the town several decades ago to act as a flood plan. Another concern being that some of the area was designated as a federal wetland.
“The FCC is driving this vote; it’s not the town board. We really don’t have any options,” a visibly frustrated Diane Benczkowski said during the vote. “If we don’t follow their regulations and their rules, we will be faced with a federal lawsuit. With that being said, I need to vote yes, but I vote yes, under protest. This is not what I want.”
Next, Councilmember Christine Adamczyk asked the town clerk for a pass on her initial vote to see how the rest of the board would vote.
Councilmember Brian Nowak voted no. Councilmembers Linda Hammer, Gerald Kaminski, Timothy Meyers, and James Rogowski voted yes.
Ms. Benczkowski later changed her vote saying, “I thought we’re all united and had to vote yes, but since Councilmember Nowak voted no, I’m not taking the heat alone – I’ll vote no.”
Ms. Adamczyk followed suit when the clerk circled back for her vote.
While publicly it appeared that the town was trying to work with the two companies, albeit in a forced manner courtesy of the Federal Communications Commission, the lawsuit spells out several actions where the town is accused of trying to scuttle the project behind the scenes.
The lawsuit was filed by Buffalo based law firm Rupp, Baase, Pfalzgraf, and Cunningham LLC.
Cheektowaga Chronicle reached out to Supervisor Diane Benczkowski and the attorneys representing the communication companies early Monday afternoon for comment. We did not hear back from either party.
The lawsuit presents evidence that on November 9, 2018, in response to an Army Corps of Engineer email requesting supporting information, Ms. Benczkowski in her official capacity as town supervisor sent the Army Corps of Engineers an email advocating against the issuing of a nationwide permit for the Transit Road project despite the fact the town board had already approved a negative environmental impact assessment, conducted a flood and drainage study, and found “insignificant and barely noticeable” increases in water levels around the proposed site.
The email, the lawsuit says, was sent to undermine the town’s prior negative environmental impact assessment and approvals of the special use permits, all in an effort to sink the proposed towers.
“The Supervisor’s email was purely political, stating the ‘serious concerns that, not only the residents have, but I myself have. I am the figurehead of the Town of Cheektowaga so I am at the forefront of this problem and all of the concerns raised by property owners in the area of the proposed [Transit Road Site] tower are legitimate,’” lawyers wrote in the suit.
They further say that Ms. Benczkowski attached several photos, letters, and emails from the residents that voiced concern about the tower projects, but did not include the town’s negative environmental impact assessment saying she “was now cherry picking to send the [Army Corps of Engineers] in her purely political and self-serving email.”
On December 13, 2018, the Army Corps of Engineers issued a permit that would allow for the construction of an access road at the Transit Road site.
Further, at both the Losson and Transit Road sites, the lawsuit says the town “pretextually and illegally requested exorbitant rental rates” for the sites that were contrary to the agreed upon lease rental rates. The move effectively terminated the project by making the project sites “economically unfeasible.”
The town was seeking $1,800 per month, plus $350 per each additional telecommunication company that would lease space on the tower. In context of market rates, Cheektowaga Chronicle reported last December that the Maryvale School District would receive $3,000 each year to house a Verizon “mico-cell” site on their property.
The suit also claims the town acted for “purely political and pretextual reasons” and purported to deny the existence of a lease agreement for both sites when the town board approved a special use permit application on May 22, 2018 and that it was subject to “finalization of lease terms with the applicant and the Town Board and Law Department.”
Lawyers for the telecom company said, “the insertion of such language into the special use permit approval resolution was factually inaccurate, pretextual, and wholly without legal justification.”
They also alleged that the town refused to execute previously agreed to lease terms at both sites until land use permissions were approved. The suit alleges it was done, “so as not to appear as if it was engaging in politically favorable conduct to the Plaintiffs.”
The company also says it was deprived of their right to substantive due process under the constitutions of the United States of America and the State of New York.
The lawsuit seeks compensatory and punitive damages in an amount to be proved at trial. The suit also seeks that the town cover costs, disbursements, interest, and attorneys’ fees.
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