Muttontown Judge Orders Status Report on Residents’ Motion to Intervene

The U.S. District Court for Eastern New York in Central Islip referred to Magistrate Judge Lee Dunst the motion to intervene by 30 resident property owners in Muttontown, New York, seeking to block AT&T’s construction of a 165-foot-tall cell tower in the village (see 2211030048), said an electronic order entered Thursday in docket 2:22-cv-05524. Any additional motions to intervene will be referred automatically to Dunst, it said.

The 30 homeowners, plus an earlier motion to intervene by another village resident, Russell McRory, contend AT&T is colluding with supportive village officials to approve the tower over the objections of the local zoning board of appeals (ZBA), which opposes the construction on technical and aesthetic grounds. Their biggest worry, said lawyer Andrew Campanelli’s declaration in support of the 30 homeowners, is that Muttontown will settle the case and approve AT&T’s application with no input from village residents, whose property values will plummet if the tower is permitted.

Dunst ordered the parties in the case to file a joint status report by Nov. 10 stating whether they oppose the 30 homeowners' motion to intervene. “Subject to the parties' positions, the Court will issue a subsequent order with a briefing schedule,” his order said. AT&T and the village previously said they oppose McRory’s motion to intervene, and Campanelli’s declaration said he sought consent from all parties in the case on behalf of the 30 homeowners, but was “unsuccessful in getting consent from all of them.”

The ZBA properly applied the zoning provisions of the Muttontown village code and denied AT&T’s application to build the tower for “valid legal reasons,” said Campanelli. Complicating matters for residents who support the ZBA’s denial is that the attorneys in the case who represent village officials friendly to AT&T’s tower also represent the ZBA, which opposes it, he said.

Contrary to the allegations in AT&T’s complaint, the company failed to provide “any probative evidence or hard data sufficient” to establish the need for a 165-foot-tall tower to remedy a wireless coverage gap in the area, said Campanelli. AT&T also didn't provide evidence that granting its application would be consistent with Muttontown’s “smart planning requirements,” he said.

Local governments have been using smart planning provisions for more than two decades to regulate cell tower construction, said Campanelli. The provisions require applicants to show proof of the location and magnitude of wireless coverage gaps to justify the need to build new towers, he said. “By doing so, local governments have been able to prevent the construction of redundant cell towers” or needlessly excessive wireless facilities, without effectively prohibiting wireless service, which would violate the Telecommunications Act, he said.

Contrary to supporters’ depiction of the proposed tower as “stealth,” AT&T’s “sad, unsuccessful attempt at camouflage results in a monstrous protrusion into the sky that dwarfs any tree or structure around it,” said Campanelli: “There is nothing ‘stealth’ or ‘camouflaged’ about the proposed tower.” The “ridiculous, gigantic structure can easily be seen from the homes” of the property owners who seek to intervene, he said.

An AT&T spokesperson called the allegations in the motion to intervene "categorically false and completely at odds with the facts in this case.".As AT&T demonstrated "during the public hearing on this matter, this proposed cell site is necessary to serve our customers, including first responders, in and around the Village of Muttontown,” he said.