AT&T Conspired Secretly With Town to OK Cell Tower: Intervenor Motion

Both sides in AT&T’s infrastructure lawsuit against the village of Muttontown, New York, face an Oct. 31 deadline for filing a two-page joint status report that describes whether they oppose a motion to intervene in the case filed by village resident Russell McRory (see 2210180029), said a text order Wednesday (docket 2:22-cv-05524) from U.S. Magistrate Judge Lee Dunst for Eastern New York in Central Islip.

AT&T’s Sept. 15 complaint alleges that Muttontown’s failure to approve the carrier’s October 2021 application to build a “stealth” cell tower at the Village Hall obstructed the company’s ability to remedy a service gap in the community, in violation of the 1996 Telecom Act. McRory’s home “abuts the premises where the proposed cell tower would be located,” and residents like him “are not aligned” with the village board, which supports the cell tower, against the objections of the local zoning board of appeals (ZBA), said his motion. “This is not the typical cell tower case,” it said.

McRory alleges the proposed AT&T tower is not stealth at all but would rise 85 feet higher than the average tree height. “The bottom line is that a municipality can require a wireless service provider to use less intrusive means to address a service gap," such as an outdoor distributed antenna system in place of a 165-foot-high tower, said his motion. During its application process to the town, AT&T “failed to evaluate why it could not co-locate its antennas” on an existing Crown Castle ODAS, “which already provides adequate coverage to Verizon customers,” it said.

There appears to be a dispute in the proceeding over who represents the ZBA, which “denied the variances necessary to construct the cell tower and is therefore at odds with the Village Board,” which supports it, said McRory’s motion. The “ZBA has appeared in this action by separate counsel of its own choosing,” and then the Village attorney stepped forward and “subsequently purported to appear for the ZBA,” it said. “This action specifically concerns the ZBA’s denial” of AT&T’s application for zoning variances necessary to construct the tower, it said.

The site for the proposed tower was “conditionally leased” by the Village to AT&T in December 2020, said McRory’s motion. The Village board “long concealed its ongoing negotiations and discussions with AT&T from the public,” it said. Contrary to the public record, the board “actually evaluated and selected AT&T’s proposal in a series of secret meetings,” it said.

Even after the village and AT&T entered into their lease, for well over a year the board “concealed its ongoing relationship with AT&T,” said the motion. The board “intentionally sabotaged the public’s right to open government and to be heard,” it said. Village officials didn’t respond to requests for comment. They are scheduled to file their answer to AT&T’s complaint by Wednesday.

When McRory and other residents heard about a ZBA hearing on very short notice, they scrambled to gather evidence and hired experts to oppose the application, said the motion. “They submitted real world call data using a cell phone on the AT&T network,” plus aesthetic impact statements, reports from real estate appraisers and a report from a “certified arborist,” it said. They also made “individual evidentiary statements” and hired an attorney to represent them before the ZBA.

The residents provided “direct probative and substantial evidence that AT&T’s alleged coverage gap was a myth,” said the motion. The carrier “failed to consider higher priority and more appropriate alternate locations” for its tower, it said. Residents provided evidence of “the adverse impacts on property values and the adverse aesthetic impacts, which nearby homeowners would sustain if AT&T’s 165-foot tower were erected in the middle of a residential neighborhood,” it said. AT&T didn’t comment.