On September 20, 2016, the Amherst Zoning Board of Appeals (ZBA) voted to approve Upstate Cellular/Verizon Wireless’s application for the construction of a 90+ foot cell tower on a wooded lot that is privately owned by and located behind the Public Storage facility listed at 3671 Sheridan Drive, Amherst, NY 14226. This undeveloped lot containing mature trees and wetlands runs contiguous to residential properties on Dellwood Road in an area zoned for residential use that is adjacent to Garnet Park.
Click HERE to view the two-year timeline history of the Dellwood Road site prior to the September 20, 2016, ZBA vote.
The video and minutes of the September 20, 2016, ZBA meeting and their approval vote can be viewed here: http://bit.ly/2dy2536.
To read the transcript of the September 20, 2016, ZBA meeting, click HERE.
After the September 20, 2016, ZBA vote, we, as Amherst residents, no longer had any recourse for the decision at the town level. (The ZBA has its own jurisdiction, separate from the Town Board.) Our only available action was to hire a lawyer and file an Article 78 Appeal within 30 days of the ZBA’s vote with New York State.
On October 8, 2016, we retained Richard J. Lippes of Lippes & Lippes to represent all of the affected residents and homeowners in the community. Mr. Lippes is considered to be a top land development and environmental lawyer in Western New York.
On October 20, 2016, Mr. Lippes filed, on behalf of our community, an astute and powerful Article 78 Appeal with the NY State Superior Court in order to permanently halt the planned construction of the cell tower.
To view the Article 78 Appeal and its exhibits in their entirety, click on the red highlighted links below. These official documents are public records.
On December 22, 2016, Mr. Lippes filed, on behalf of our community, a Memorandum of Law with the NY State Superior Court.
To view the Memorandum of Law in its entirety, click on the red highlighted link below. This official document is a public record.
On January 23, 2017, Mr. Lippes filed, on behalf of our community, a Memorandum of Law in Reply with the NY State Superior Court.
To view the Memorandum of Law in Reply its entirety, click on the red highlighted link below. This official document is a public record.
On January 26, 2017, our case appeared before NY State Supreme Court Judge, Hon. Catherine N. Panepinto. For more information about that hearing and its pending decision, please click HERE. To view the local press coverage of that hearing, please click HERE.
On June 1, 2017, Judge Panepinto’s decision and judgement was posted. This public document can be viewed here ➣ http://bit.ly/2s3iO7t
Judge Panepinto’s ruling dismissed our article 78 appeal in its entirety based on a principle that deference should be given to the authority and expertise of the Zoning Board of Appeals in a case like this one.
On June 22, 2017, Mr. Lippes filed, on behalf of our community, a Notice of Appeal to the Appellate Division of the New York State Supreme Court.
This public document can be viewed here ➣ http://bit.ly/2tD4P6o
Our case index number remains: 811744/2016
Additional important points to address going forward as Amherst residents:
- The concerning precedent set by the approval of a cell tower on residential land that happens to be owned by a commercial enterprise. Public Storage, Inc., acquired land adjacent to homes on Dellwood Road aware of the fact that it was zoned for residential use. They are now seeking to profit from this land in a way that is not consistent with the Town Zoning Code. By approving this tower, the ZBA is, in effect, inviting other entities to purchase residential properties for the purpose of leasing them commercially for the construction of cell towers. This raises clear concerns regarding the maintenance of the character of the town.
- Section 6-7-11 of the Town Code requires the applicant—in this case Upstate Cellular/Verizon—to supply funds for the town to hire a third-party reviewer of their application. This independent reviewer would not be associated with Verizon or the Town and would be hired to provide the expertise required to review such complicated submittals. However, despite $5,000 at their disposal, the Town chose NOT to hire a third-party reviewer to analyze the unique technical intricacies, scientific specifications, and the resident sensitive nature of this proposed cell tower. Other municipalities in Erie and Niagara County have third-party reviews done routinely. Why is it not a standard practice in Amherst?
- The need to push the Town Board to get zoning applications put online to facilitate inspection by residents. The appeal already documents that some residents living within a 500 foot radius around the proposed site did not receive the necessary notification regarding the proposal. However, a broader problem is the inadequacy of the Town’s provisions for making residents aware of proposed projects like this one. For those residents who live within the notification zone, the notification letter did not adequately convey the nature of Verizon’s proposal. For instance, rather than using a plain English term such as “cell tower”, the more vague and confusing term “wireless telecommunication facility” was employed. Moreover, there was no indication of the precise proposed site of the tower behind homes on Dellwood Road. Unclear communications of this kind limit the ability of the public to fully understand the consequences of applications such as Verizon’s and clearly favor developers over residents. In addition, the ZBA’s policy of handling application materials via paper, rather than electronically, requires residents to visit Town offices during business hours to inspect applications, raising an unnecessary barrier to their review given the ease with which materials of this kind can be disseminated over the internet.
- The need to push the Town Board to commission a cell tower master plan to keep wireless companies from cherry picking sites in the future. To view comprehensive maps of the proposed, pending, and existing cell towers in Amherst, NY as of April 1, 2016, click HERE. Sign the petition HERE.
On a personal level, we ask you to please consider the multitude of negative effects that a 90+ foot cell tower would have on our densely-populated community.
- Permanent destruction to and disruption of precious wetlands that our local ecosystem depends on to help slow down flooding, filter groundwater, and provide a safe harbor and rich habitat for a multitude of animal and plant life.
- Irreparable damage to the integrity and character of our neighborhood and parklands due to the industrial intrusion that an unsightly 90+ foot cell tower would cause.
- Potential health hazards from overexposure to radiofrequency radiation (RFR) that cell towers and antennas emit 24 hours a day.
- Daily noise from the cell tower’s backup generator.
- Light pollution due to the massive loss of trees that would be cleared on and around the proposed site.
- Potential risk to residents and property from falling ice from the tower.
- Potential risk to residents and property due to the cell tower falling from high winds. The proposed tower is only built to withstand wind speeds of up to 40 MPH. Our area frequently experiences record wind speeds well above that.
- A decrease in property values by 2% to 20% with the percentage moving toward the higher range the closer the property is to the tower.
Further information on the importance of wetlands and how cell phone towers can impact people living near them can be found by clicking on the RESOURCES tab at the top of this page.
Over 75 residents and homeowners from Dellwood Road, Garnet Road, Roman Lane, Snyderwoods Court, N. Ivyhurst Road, Hardt Lane, Getzville Road, Joliet Lane, Hedstrom Drive, Berwin Drive, Koster Row, Ivyhurst Road, Fairlawn Drive, Bondcroft Drive, Four Winds Way, Main Street, Westfield Road, Danebrock Drive, and Maynard Drive have already joined in to voice their opposition to Upstate Cellular/Verizon’s proposed tower by contributing to the legal fund, displaying signs in their yard, and writing letters to the ZBA. Thank you for your support!