The Hempstead Town Board unanimously signed off on legislation Tuesday morning that bans any new cell towers or antennas within 1,500 feet of homes or schools.
During a public hearing on the new ordinance, speakers on both sides of the debate–wireless companies arguing that the ordinance was too restrictive and residents saying it needed to address further issues–urged the board to delay a vote on the new regulations. Town Supervisor Kate Murray said, however, that the time to act was now.
"The bottom line is we know that this is a very tough piece of legislation, a great piece of protection for our residents," Murray said, later adding that although the law could be amended down the road, "the feeling of the board was that we had to pass legislation today because it is entirely too important to let it continue on."
The ordinance also states that no new cell towers or antennas can be placed within 1,500 feet of daycare centers or houses of worship.
That distance restriction will not apply, though, to the three pending applications before the town's board of zoning appeals, according to Hempstead Town Attorney Joe Ra.
Those applications include one proposal for cell antennas atop the Farmingdale-Wantagh Jewish Center and a cell tower proposal for the North Bellmore Fire District's maintenance facility.
The wireless companies in those cases will be "complying with the spirit of the law," but requiring them to now adhere to the 1,500 distance would violate federal law, Ra said.
"You would be defeating your own purposes," Ra told one Wantagh resident when asked why the town couldn't force T-Mobile to propose a site away from the Jewish center. "You'd get immediate satisfaction today and two weeks from now, you would lose in federal court."
The new ordinance will also put the burden on wireless companies to prove to the board of zoning appeals and the town's new telecommunications consultant Richard Comi that there is an "absolute need" for any proposed equipment.
Representatives from Verizon Wireless and NextG, as well as the president of the New York State Wireless Association, spoke before the board Tuesday asking the town to hold off on the legislation.
Alfred Amato, an attorney representing Verizon, cited a Nassau County Planning Commission study that stated that under the town's ordinance, new wireless facilities would be prohibited in nearly the entire town.
"This ordinance puts tremendous barriers in front of the carrier," Amato said, adding that 50 percent of all 911 calls are made on cell phones. "The safety of the public will be at stake by passing this type of ordinance."
As for wireless equipment already installed near homes and schools, namely antennas put up by NextG Networks over the past year, County Legislator Dave Denenberg, D-Merrick, pressed the board to require those antennas to either be removed or legalized.
"There should not be a grandfather clause," Denenberg said. "If you never complied with town code, you should be made to comply with town code by January 1, 2012."
The ordinance does give the town some legal avenues to address equipment already in place, but Charles Kovit, the town's senior deputy attorney, said that adding a blanket provision to the law that requires those antennas to be removed by a certain date would essentially mean the town "was shooting ourselves in the foot."
Kovit said the town has had meetings with NextG recently to define which antennas are most objectionable to residents and to come up with a plan to move them to more palatable locations.
"The best thing to do is to reach a negotiated settlement with them rather than use the ordinance," Kovit said of NextG after Tuesday's board meeting.
Wireless companies will likely challenge the town's new regulations in court. The town specifically did not address health concerns in its legislation as the federal Telecommunications Act of 1996 does not allow state or local governments to deny a proposed facility based on the health-risk issue.
The act, however, also prohibits any action that would ban altogether the construction, modification or placement of wireless equipment in a particular area.
Those legal battles are for another day, though, as Tuesday morning was undoubtedly a victory for residents who have fought relentlessly against cell towers.
"I'm very thankful for the ordinance you are about to pass," Joe Baker, president of the South Merrick Community Civic Association, told the board. "It's a good example of town government working with residents."
Denenberg, while disappointed that the town didn't take a stronger stance on existing equipment, was still pleased with the overall progress.
"It's about time that technology in the 21st century isn't deal with code from 1954," he said.
