In a lawsuit filed June 22 in State Supreme Court, attorneys for Horvath and Verizon argued that the boards disregarded the opinion of their own radio frequency consultant and provided no objective data to refute Verizon's need for more wireless service in the area.
In late May, following years of discussion, hearings and studies, the town ZBA voted 3-2 to deny two variances that were needed for the project to move forward. Opponents of the project, primarily residents in the neighborhood, argued the tower would hurt property values and sully the neighborhood's rural character and that the company had not fully explored alternative sites.
Project supporters, including the Niagara County Sheriff's Department and various local fire chiefs, said better cell service is needed in the area for emergency response as well as quality of life.
The ZBA ultimately sided narrowly with the opponents, claiming Horvath had not adequately explored alternative sites.
"At the desired location, a 154-foot cell tower would be sited within approximately 600 feet of occupied dwellings," states the ZBA's denial of the variance requests. "It would also be visible from numerous (residences) in the area. In the immediate vicinity of the proposed location are hundreds of acres of open fields. (The) applicant has not made an adequate showing that it has navigated the possibility of locating its facilities in an open field that would ... not negatively impact neighborhood houses and not require variances."
The next month, the planning board followed suit, rejecting the proposed site plan and special use permit request by a 6-1 vote. Though the board offered no official position, board Chairman Richard Forsey said he felt the company had not explored other potential locations for the cell tower.
In Horvath and Verizon's lawsuit, attorney Jacqueline Phillips Murray disputes that argument, saying that William Johnson, an engineering consultant for the town, wrote a report on May 14 confirming the lack of alternative sites.
"There is absolutely no objective data in the record that refutes Verizon Wireless' need to remedy its wireless service deficiencies in the area, the ability of the facility ... at the site to do so and the lack of viable alternatives," Phillips Murray wrote.
Horvath and Verizon's attorney lists five grounds for suing, including that the boards' decisions violate case law establishing that generalized concern about aesthetics and property values are not sufficient grounds to deny a wireless telecommunications tower.
The companies also claim the denials violated the federal Telecommunications Act of 1996 because the decisions were "unsupported by substantial evidence" and prohibit Verizon from providing personal wireless service to its customers.
Phillips Murray wrote that the boards' decisions will "prohibit Verizon Wireless from providing personal wireless service in the area of the town where it is undisputed that services are needed."
Horvath and Verizon are seeking a court order requiring the boards to grant all necessary approvals for the project to go forward as well as reimbursement of its legal fees.
©2018 the Lockport Union-Sun & Journal (Lockport, N.Y.) Distributed by Tribune Content Agency, LLC.
