Friday, 12 February 2010 00:00
(Ed.’s note: The following letter was sent to the Village of Manorhaven’s Board of Trustees and printed here at the writer’s request.)
I am deeply disturbed not only by the attempt to erect a 125-foot tower adjacent to our highest residential zone, but by the totally inept and illegal way that every aspect of this enterprise was conducted.
The fact that Mayor Meehan prides himself on his letter to AG Towers, asking them to simply walk away from their lease and investment shows how foolishly the BOT is handling this issue. It is in your power to cancel the project now. Here are just a few reasons:
1. There is no place in the entire village code that authorizes a cell tower. The BOT changed the code to allow a so-called communications facility in the G1 zone. However, the G1 code does not provide for a structure that exceeds the zoning height restrictions by several 100 percent. In addition, the BOT and its attorney were so inept at creating a valid law that they neglected to account for the fact that the G1 zone requires that for landside uses: “The occupant and owner shall be a member association incorporated as a not-for-profit corporation, filed with the state of New York, or a governmental corporation.” Since AG Towers is neither not-for-profit nor a governmental corporation, the cell tower could not be placed in the G1 zone.
2. In another display of ineptitude and lack of concern for the surrounding residences, the BOT leased part of its G2 zone land to AG Towers so that they could erect a cell tower. However, the G2 zone code makes no mention of telecommunications facilities, nor a tower, and it has a height restriction of 26 feet, instead of the 125 feet needed for the Tower. And the BOT and the Village Attorney neglected to account for the G2 zone code requirement that for landside uses “the owner shall be a governmental corporation.” This requirement speaks to the landside use, not to the ownership of the land. This is because all land in the G2 zone is already owned by the village, that’s why the zone is called Governmental G2. Therefore what the code is saying is that for all of the uses allowed by the code (parks, wetlands, recreation facilities and marinas), the owner of the enterprise shall be a governmental corporation. AG Towers leased the land from the government, but AG Towers is the organization performing the landside use, and it is not a governmental corporation, and a cell tower business is not one of the authorized uses. AG Towers cannot operate any business in the G2 zone, only a governmental corporation can.
3. There is much more. For example, the BOT controls the zoning. If the BOT wanted to have a 125-foot cell tower in the G2 zone, the BOT could have changed the zoning law. However the BOT did not do that, which means (at least from a legal point of view) that the BOT does not want a business in the G2 zone that would be operated by a nongovernmental organization, that it does not consider a telecommunications facility to be included in the allowed uses that the code specifies, and that it does not want a 125-foot tower erected on a site that has a maximum height limit of 26 feet. This must be true, because the BOT makes the zoning laws, and if the BOT wanted the private business and cell tower there it would have changed the law. It did not. Of course, we all know that the village really wanted the cell tower there, but the BOT did not have the courage or honesty to hold a public hearing on a change to the law. Instead, the BOT thought it could use the BZA to get the tower approved. But the bottom line is that the BOT has the power to change the law, and because it did not change the law, it must abide by what the law specifies.
4. So, because the village code prohibits AG Towers from building a cell tower it went to the BZA to ask for a variance. I can easily show that every single thing that the BZA did violated the village code. But the simplest thing is that AG Towers had no standing to go to the BZA and ask for permission to do something on the owner’s property that the owner says it does not want done. The BZA is established by NY State law to protect the interests of property owners against village zoning laws, not to provide a way for the BOT to circumvent its own code. What the BOT did was to go to the BZA (or allow AG Towers to go to the BZA) and say something like: We wrote a law that prevents us from putting up a cell tower on our property and we want you to give us permission to violate our own law. The BZA should have said: Why are you here? You want us to give you a 500 percent height variance? Are you kidding? You write the law and it’s your property, so change the law, don’t ask us to do your dirty work for you. You have no standing to ask us to give you relief from the laws that you write yourself.
5. The mayor and the attorney keep telling us that they didn’t do it, that the past administration did, and what’s done is done. Not true. First of all, two of the trustees were on the BOT that voted for the cell tower several times, for example, on the resolution, the SEQRA, and the lease. The other three trustees were on the BZA that approved the variances, although Mayor Meehan told me that he was an alternate and he only sat in the audience that night. In any event, four out of the five current trustees are responsible for the cell tower being in the G2 zone and they never say anything at any board meeting.
6. What can be done? It is very simple: The village cannot allow an illegal structure to exist, even if a village official endorsed it. AG Towers and its attorneys had access to the same laws that our BOT and village attorney use, and AG Towers is fully responsible for any actions that are illegal under village code, whether the BZA or the BOT approved them. If the tower is in violation of the village code, then it must be removed now at AG Tower’s expense, and the village can demand it.
To summarize, unless the village can present evidence that I have not been able to obtain, everything that the BOT and the BZA has done to effect the lease of the property and the construction of the cell tower is in violation of village law. This means that it is within your power to immediately cancel the project and to demand that the site be restored to its previous condition, all at the expense of AG Towers.
I hope that you will finally fulfill your oath of office to enforce the laws of NY State, your obligation to the residents of the village to keep us fully informed, and to enforce the village code. We do not want any more feeble excuses. If you won’t cancel the project immediately, we must have a full airing of this issue at a public meeting so that the residents can give you the facts and you can tell us what you know and what action you will take.
You still owe us an explanation of why we have not heard the results of the study that you commissioned to learn what your options were. If only some of the reasons that I gave above are correct, that report should have said that you have the option to evict AG Towers immediately. What is very disturbing is the rumor that BOT members have not seen the report, that it’s been shown only to the attorney, the clerk, and maybe the mayor. Can this rumor really be true?
It’s time to stop blaming the previous administration and to admit that all of the trustees voted for the cell tower and are responsible for it. We want to know why they did it, and if what they did was illegal (I’m sure it is) why they are not taking steps to cancel the project.