Crown Castle proposes to remove two existing towers and erect a new one on Fresh Pond Avenue in Calverton. Image: Google Earth

A Houston-based telecommunications company and two wireless phone service providers have brought a federal lawsuit against the Town of Riverhead for alleged violations of federal law in its “unreasonable delays” and “effective denial” of an application to erect a 120-foot monopole cell tower on a Fresh Pond Avenue, Calverton site.

Crown Castle Towers currently operates two existing telecommunications monopole towers and supporting equipment on two leased properties on Fresh Pond Avenue. The company, which said one land lease has expired and the other is expiring, wants to erect one new tower on the proposed site to replace the two existing towers. Crown Castle said it could not come to terms for new leases with the owners of the current sites. The existing towers will be removed upon completion of construction of the new tower, according to the Crown Castle’s application documents.

The project, proposed for an approximately one-acre vacant site, requires a special permit from the town board, variances from the zoning board of appeals and site plan approval from the planning board. Crown Castle filed applications for a special permit and site plan approval on May 14, 2020.

Illustration showing street view of proposed cell tower on Fresh Pond Avenue.
Image: Crown Castle

The town board in July took lead agency status for purposes of review under the State Environmental Quality Review Act, determined the proposal to be a Type I action and initiated coordinated review. In October the town board determined the project would not have a significant adverse environmental impact and issued a negative declaration, dispensing with further environmental review. The board’s decision was based in part on the removal of the two existing towers.

Crown Castle applied to the ZBA on Sept. 1 for side-yard and rear-yard variances. After a public hearing, held over three ZBA meetings, at which neighboring residents and an attorney for the two existing cell tower sites voiced objections, and one of the owners of an existing site said they would construct a new tower as soon as the pre-existing tower is removed, the ZBA on Jan. 14 granted the setback variances but conditioned its approval on Crown Castle providing covenants on the two existing cell tower sites that will preclude the reconstruction of telecommunications towers there.

In its complaint, filed in U.S. District Court for the Eastern District of New York on Feb. 18, Crown Castle says those conditions are “unreasonable, illegal, arbitrary and capricious”because the ZBA was “well aware that the applicant would be unable to obtain the restrictive covenants” it required. Imposing that condition was an “effective denial” of the application that is not bases on substantial evidence in the written record, Crown Castle argues.

The town board at its meeting last week set a March 16 public hearing on Crown Castle’s special permit application.

Crown Castle says the town’s failure to approve the application by Feb. 1 constitutes an “unreasonable delay” under the federal Telecommunications Act. Pursuant to the statute, federal regulations and an FCC ruling known as the “FCC shot-clock order,” Crown Castle argues, the town had 150 days to act on the applications. The applicant and the town agreed to extend the deadline to Feb. 1, but the town did not meet that deadline, according to the complaint.

The telecommunications companies are seeking a judgment and order ruling that the town violated the applicable federal laws and regulations and mandating that the town issue all permits needed for the plaintiffs to begin construction. They also seek unspecified damages, costs, attorneys fees and interest.

Supervisor Yvette Aguiar said yesterday she was not aware of the suit and did not believe the town had been served with the summons and complaint.

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Denise is a veteran local reporter, editor, attorney and former Riverhead Town councilwoman. Her work has been recognized with numerous awards, including investigative reporting and writer of the year awards from the N.Y. Press Association. She is a founder, owner and co-publisher of this website.Email Denise.