Riverhead Town has settled a federal lawsuit brought last year by a Houston-based telecommunications company seeking to erect a 120-foot monopole cell tower off Fresh Pond Avenue in Calverton.
Crown Castle Towers was looking to replace two older towers it operates on two other leased sites on Fresh Pond Avenue with the new facility on a third site.
In its applications to the town for variances and a special permit, and at hearings before the Zoning Board of Appeals and the Town Board, the company said it intended to dismantle and remove the existing equipment from both of the old sites and use only the new facility on the third site. Crown Castle told town officials its lease on one of the existing sites had already expired and its lease on the other was expiring soon. It could not come to terms on a new lease with either property owner, company officials said. It had negotiated a new lease with the owner of the third site.
Both the ZBA and the Town Board approved Crown Castle’s applications but the two boards conditioned the approvals on the owners of the two leased sites filing covenants prohibiting the construction of cell towers on those sites in the future. The property owners, who appeared at the town proceedings said they would not file such covenants and asserted they had the right to maintain those pre-existing uses.
Crown Castle objected to the conditions, arguing that, since the company does not own either of the existing sites, it had no control over the filing of a covenant, which could only be done by the property owner. The town was imposing conditions on its approvals that were impossible to fulfill, the company argued.
Crown Castle, T-Mobile, Cingular Wireless and Sprint initially filed the federal action in February 2021, complaining that the ZBA’s conditions for approval were “unreasonable, illegal, arbitrary and capricious” because the town 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.
The lawsuit was filed while the company’s special permit application was pending before the Town Board, which in May 2021 approved Crown Castle’s special permit application, with the same conditions as the ZBA approval.
Council Member Tim Hubbard cast the sole vote in opposition to the special permit, stating that he thought the new location was a poor choice and, in his opinion, “They need to work it out with the owner of the property,” Hubbard said. “They should come to terms on that.”
The applicant has done exactly that, which gave rise to the settlement.
Crown Castle Towers, through a corporate affiliate, is purchasing one its two existing sites, according to a stipulation of settlement signed by the parties and filed in federal district court on Oct. 21.
Crown Castle Towers, through affiliate Global Signal Acquisitions, is purchasing the Lizem property at 4314 Fresh Pond Avenue, which is located on the east side of Fresh Pond Avenue. GSA and Lizem, based in Great Neck, signed a purchase agreement on Oct. 18 and will close title on the property on or before Jan. 31, according to the stipulation of settlement filed with the court.
“They intend to consolidate the towers and eventually knock one of them down,” Town Attorney Erik Howard said in a phone interview Friday afternoon.
“This was probably the best way to go about achieving the reduction in visual impact that we’re looking for,” Howard said.
On Sept. 21, the town building department issued a duplicate certificate of occupancy, stating that the existing 120-foot monopole and associated equipment on the Lizem site, which were first granted a permit in 1998, were legally established uses and continue to the present.
The town code exempts existing telecommunications antenna and towers from the requirement to obtain a special permit from the Town Board.
The stipulation of settlement makes no mention of the second existing site, roughly opposite the Lizem site, where Crown Castle has an existing 122-foot cell tower. That property is owned by Simak Associates of Manhasset and leased by Crown Castle. The cell tower on the Simak site also pre-dates the town code that established the special permit requirement.
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