Updated: T-Mobile Sues Pound Ridge Over Cell Tower Impasse

Wireless communications service provider T-Mobile has decided to seek an injunction from a federal court that would compel the Town of Pound Ridge to approve the company's application to erect a 130' cell tower in the Scotts Corners section of town.

Read a copy of the lawsuit posted with this story.

Pound Ridge Supervisor Gary Warshauer informed attendees at Monday night's public hearing on T-Mobile's cell tower proposal that the town had received papers filed in the US District Court's Southern District of New York last Friday, December 10th, which in effect, charge the town with violating Federal Communications Commission (FCC) code.

News of T-Mobile's legal gambit, however, did little to limit the debate among the 50-odd individuals present for part two of the hearing regarding the company's cell tower proposal.

Nor did it prevent the town and planning boards from agreeing to keep the hearing open for another 30 days in order to fully vet the sites considered viable for the project.

Following the three-plus hours of discussion, Mr. Warshauer moved to "reconvene on January 13, 2011 to take any new information, and once we've done that to spend the next month reviewing the matter, and on February 16, we will have a decision."

Action Is No Guarantee of Approval

The boards' approval of his motion came over objections from attorneys for T-Mobile and its co-applicant for the special permit, AT&T.

"With all due respect to everyone in this room, my client has spent over three years working in good faith to build a tower that best meets the demonstrated cell service needs for this area of Pound Ridge," stated Robert Gaudioso of the firm Snyder & Snyder, T-Mobile's legal representative.

"We have more than satisfied the conditions set forth by town code, its master plan and our federally-legislated mandate," he said. "My client feels strongly it is entitled to a decision. Tonight."

AT&T attorney Anthony Morando reminded the town of its legal requirement to act on the application within a reasonable timeframe — 150 days in this case — specified in a "shot-clock" provision enacted by the FCC last year.

While committing to the February 16 date for a decision, Mr. Warshauer stopped short of promising T-Mobile its application would be approved.

Federal legislative provisions aside and Pound Ridge resident John Nathan, asserted that the town "should not be intimidated" by T-Mobile's legal tactics. 

Nathan, himself an attorney, said the proposal to erect a tower on the Lions Club Ambulance Corps property was based on a premise that distributed antenna system (DAS) technology — which uses a series of low profile antennae mounted on smaller structures rather than a single multi-story tower — was not a feasible alternative to providing the level of cell service coverage the area needs.

"Its conclusion is based on data that is two years old," said Mr. Nathan. "Everyone knows how quickly technology changes the landscape these days; the data could very well be obsolete at this point, and perhaps meaningless."

Tower  Mars Town's Character

The construction design and landscaping solutions T-Mobile has proposed failed to impress many audience members whose expressed displeasure with the negative visual impact of the tower was not without rancor.

Planning board chairman Clayton Fowler spoke on their behalf, saying a "common sense" approach to identifying the best site did not keep him from being "extremely unhappy" with the ambulance corps location.

"To me, personally, it's simply the wrong place for the tower," Mr. Fowler stated. "It compromises the essence of the town's visual character, it simply alters it in a negative way."  

Mr. Fowler claimed that a tower at the Trinity Corners market location would be much less conspicuous to far fewer people.

That location, in fact, had been one of six T-Mobile considered most feasible for its monopole solution. But as it would have meant building a second tower on town park property to achieve a comparable level of service coverage, the site was eliminated from further consideration.

With the motion to continue the hearing, however, the boards agreed that the market location should be among the sites that will be "fully vetted" between now and the January 13th hearing date.

As of Monday, that list included the Hsu/Oceanus property located off Lower Trinity Pass Road and the CH State Holdings property off Pine Drive, as well as the current ambulance corps property.

Suit Claims Delays Are "Tantamount to Denial"

Asked whether further delays affected the town's legal standing in light of the T-Mobile suit, town attorney James Sullivan said he was "not at liberty to comment on pending litigation."

The lawsuit names the Pound Ridge township, the town and planning boards, and building consultant James Perry as defendants. As set forth in its complaint, T-Mobile seeks "declaratory and injunctive relief and expedited treatment" from the court regarding the application it filed with the town over three years ago.

Additionally, T-Mobile claims the town's "protracted failure to act (on its application for the permit it needs to commence the project) constitutes an unreasonable delay, which is tantamount to a denial of the application" and effectively prevents T-Mobile from providing its "federally licensed personal wireless services" to the Scotts Corners residents and business community.

The suit claims that Pound Ridge far exceeded the timeframe mandated by the FCC for acting on cell tower applications and lacks the "substantive evidence" to justify its delay.

T-Mobile wants a judgement from the court ordering Pound Ridge to issue "all local permits and approvals" needed to build the tower as proposed, as well as "other and further relief the Court may deem just and proper."