Judge Sends Cell Tower Lawsuit Back to State Court

By Liz Schevtchuk Armstrong, Reporter | September 18, 2021

Says federal law not applicable in property-rights dispute. A U.S. District Court judge ruled last week that federal law does not prevent citizens from bringing property rights challenges to cell tower projects.

The Sept. 7 decision by Judge Vincent Briccetti sends back to Putnam County Supreme Court a lawsuit by Nelsonville neighbors who object to plans to construct an access route to the tower site, which is off Rockledge Road and overlooks Cold Spring Cemetery. The access route would cross homeowners’ land.

National telecommunications law “does not preempt causes of action seeking to vindicate state-law property rights,” Briccetti wrote in a 12-page decision that sent the case back to the county court. The judge, based in White Plains, added that the residents’ claims depend “solely on issues of state law.”

In October 2020, the residents filed their lawsuit in Putnam Supreme Court, part of the New York State judicial system. Over their objections, the cell tower companies attempted to move the proceedings to federal court, where a separate case involving environmental issues is pending against the Village of Nelsonville and the companies: Homeland Towers, Verizon Wireless and AT&T.

Briccetti presided over earlier lawsuits initiated by Homeland Towers and Verizon against Philipstown and Nelsonville after each municipality refused to approve cell tower projects. The town and village settled in 2019 and early 2020, respectively, and plans for both towers went ahead.

However, the 95-foot Nelsonville tower stalled again when the Rockledge neighbors sued to stop the companies from widening the approach to the site. The firms characterize the access as an “easement,” while the neighbors say it is a “right of way” that cannot be altered without their approval.

A temporary restraining order issued by a Putnam court that prevents the cell tower firms from starting construction or altering the road remains in effect. In March, crews cut down trees on the property to clear space for the tower base.

The 33-page lawsuit accuses the cell-tower companies of employing a “sue-and-settle gambit” and wielding their resources with such a “hefty thud” that Nelsonville “caved” and failed to represent the interests of its citizens. The lawsuit also charges that the settlement “bargains away” village zoning control and law-enforcement powers, represents “spot zoning,” and “promotes private interests at the expense of the general welfare.”

Village officials received the document on Wednesday (Oct. 21) and on Thursday Mayor Mike Bowman said they are working with the village lawyer and insurance company to meet a 21-day deadline to answer the claims. Homeland Towers’ lawyer did not immediately respond to a request for comment.

The lawsuit argues that the settlement failed to comply with the National Environmental Policy Act and Endangered Species Act, as well as the New York State Environmental Quality Review Act.

Neither the village and cell-tower companies nor the presiding judge “conducted any environmental review of the project before adopting” the settlement, the lawsuit states. “Without any study of the project’s impact on threatened and endangered species, its environmental impacts might well be irreversible.”

A Cold Spring homeowner who lives on Parsonage Street, which borders Nelsonville, and a couple who live on East Mountain Road South in northern Philipstown joined the Nelsonville residents as plaintiffs in bringing the legal action, which contends that the tower is “in such close proximity” to Nelsonville properties as “to generate adverse environmental impacts that are unique and fundamentally different from [those facing] the public at large.” (East Mountain Road is about 2 miles from Nelsonville.)


Among likely threats to residents, the complaint lists “light and visual pollution,” increased stormwater runoff, causing erosion; elimination of habitats for birds, mammals and native plants; and displacement of animals, including the endangered Indiana Bat and threatened Northern Long-Eared Bat.