Crown Castle's existing cell tower on the east side of Fresh Pond Avenue in Calverton. The company has a second tower on the west side of Fresh Pond, north of this site, and seeks to replace both with one 120-foot monopole tower on a third site on the east side of Fresh Pond Avenue. Photo: Google Earth

Crown Castle Towers, the Houston-based communication company suing the Town of Riverhead in federal court over the town’s handling of its application to erect a new communications tower on Fresh Pond Avenue in Calverton, was granted a special permit for the tower by the town board this week.

The approval came two weeks after the town in a court filing accused the company of “fraudulent misrepresentations” in its application documents.

And the special permit contains the same condition of approval that was cited by Crown Castle as a principal reason for filing a federal lawsuit against the town in February — namely, that the applicant must obtain covenants on two properties it does not own, where it operates existing telecommunications towers.

Crown Castle Towers operates two existing monopole towers which it erected, along with supporting equipment, on two leased properties on Fresh Pond Avenue. The company said one land lease has expired and the other is expiring. It wants to erect one new tower on a new site on Fresh Pond Avenue. The new 120-foot tower would replace both of Crown Castle’s existing towers, which will be dismantled and removed from those sites upon completion of construction on the new site, the company said.

Crown Castle said it could not come to terms for new leases with the owners of the current sites.

The Riverhead Zoning Board of Appeals in January granted Crown Castle side-yard and rear-yard variances it needs to erect the new monopole on the new site, but the ZBA conditioned its approval on Crown Castle providing covenants preventing reconstruction of communications towers on the two existing sites.

Covenants restricting the use of real property must be executed by the owner of the land and the owners of both sites where Crown Castle’s equipment is currently located have said they will not agree to sign them. At public hearings before the ZBA and the town board, the owners said they would seek to erect new communications towers on their sites as soon as Crown Castle removed its equipment.

In a complaint filed in U.S. District Court for the Eastern District of New York on Feb. 18, Crown Castle says the ZBA’s condition for approval is “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 based on substantial evidence in the written record, Crown Castle argues.

Crown Castle also 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 lawsuit was filed while the company’s special permit application was pending before the town board. The town board held a hearing on the special permit application on March 16 and approved the permit in a 4-1 vote May 4. Councilman Tim Hubbard dissented without comment.

Hubbard said in an interview after the meeting he voted against the special permit because he believes the applicant should build a new tower on one of its existing sites.

“They need to work it out with the owner of the property,” Hubbard said. “They should come to terms on that.”

Hubbard said he also thought the proposed location was a poor choice due to its proximity to an existing residence, which he said is at risk should the tower fall.

Like the ZBA’s Jan. 14 variance decision, the town board’s special permit approval requires Crown Castle to record covenants against the two leased properties it is vacating.

The planning board on Thursday scheduled a public heating on Crown Castle’s site plan application for June 3 at 7 p.m.

Meanwhile, the town on April 21 filed its answer to the Crown Castle complaint in federal court. It the document filed by attorney Phil Siegel, whose firm Siegel & Sitler of Hauppauge was hired by the town to defend the action, the town accused Crown Castle of making “fraudulent misrepresentations” in its applications.

The statement in its applications that “its proposed project would result in the removal of two nonconforming towers on two other parcels of property to be replaced with the construction of only one nonconforming tower on the subject parcel” was false, according to the town’s answer, because “plaintiffs do not own the two other parcels of property, facts that were deliberately concealed during its initial application process.”

Crown Castle “cannot prevent the construction of towers on the other two parcels, which would result in three nonconforming towers in the area,” the town says in its answer.

According to the town’s answer, the town board relied on the applicant’s statements that the other two towers would be removed in its determination on Oct. 20 that “the proposed project would not have a significant negative environmental impact because, among other things, the number of towers in the area was supposed to be reduced from two to one.”

Crown Castle said it demonstrated to the town planning department, at the departments request, that it has the legal right to remove the communications equipment from both existing sites and it testified at both the town board and ZBA hearings that it owns the existing equipment and towers on both other sites and would remove them when the new tower is built.

The owners of both of the other sites, Lizem Associates and Simak Associates, objected to Crown Castle’s applications and asserted they have the right to build new towers on their properties.

Christopher Kent, attorney for Lizem Associates, told the town board at its March 16 hearing that the property owner has the right to replace an existing tower with a new one without obtaining a special permit from the town board.

“They own the towers, but the properties have a pre-existing right to have towers located on their land. And this applicant would not be able to provide the town, with the assurance that if they constructed this new monopole, that there would not also be towers on those other properties,” Kent said. “Properties with pre-existing towers have the right to repair or replace or construct new towers on those properties without a special permit from the town board,” Kent said. “That in the code. That’s section 301-274.”

Kent said “the basis for the reviewer determination under SEQRA (the State Environmental Quality Review Act) is not accurate.”

The provisions of the Wireless Communications Towers and Antennas article of the Riverhead zoning code, originally adopted in 1998, exempt pre-existing towers or antennas from the code’s special permit requirements. Both of the existing Crown Castle towers were built before the town’s wireless communications code was adopted.

The intent of the wireless communications code was to control where cell towers could be built in the town and limit their numbers, according to minutes of a July 7, 1998 town board public hearing on the code. Kent was then a Riverhead council member and, according to the minutes, had helped the town attorney develop the legislation.

The town was “encouraging by certain incentives within the law to have providers locate their antennas on existing towers and even if they can do it, we give them even further incentive to locate them on existing municipally owned towers,” Kent explained during the 1998 public hearing.

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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.