NextG: Another Guilty Verdict

Lately, going to court seems to have a foregone conclusion for Mr Feiner and our Town Board. Perhaps the courts have finally gotten wise to his behavior or his “woe is me” is wearing thin. The majority of the electorate has not paid enough attention to his bad behavior – yet. The mother of all decisions against Mr Feiner, is that of the Fortress Bible Church guilty verdict. Ironically, we await the total sum of damages from this suit against him and his criminal partner Town Board member Diana Juettner. They continue to run for office as though nothing is amiss in the now evolving “Bizarro Greenburgh.” His previous Town Board’s cumulative illegal behavior points to those now absent from our local government, having passed away or been bestowed with a promotion. It’s more proof that bad politicians don’t get voted out, they get promoted and rewarded.

This Fortress Bible Church decision has many residents outraged over the Town’s behavior and actions toward this African-American Church from Mount Vernon, and rightfully so! You’ll recall the church purchased property in Greenburgh, literally in then-County Legislator Tom Abinanti’s backyard. Mr Feiner, Ms Juettner and other Greenburgh politicians led the rally against the Fortress Bible Church to keep them from building their new house of worship and coterminous school on their newly purchased property. This seems to be a case of not in Mr Abinanti’s backyard. Apparently, its not acceptable for the average resident to protest a development in their backyards but those same standards don’t apply to politicians. It may be why Assemblyman Tom Abinanti moved – to distance himself from this neighborhood’s failing NIMBY-ism and Mr Feiner and Ms Juettner’s impending guilty verdict?

Subsequently, Mr Feiner and Ms Juettner were found guilty as Town Supervisor and Board for violating the rights of a church to the free exercise of religion and not receiving equal protection under the First and Fourteenth Amendments to the United States Constitution. He was also found liable for destroying documents. The federal judge who hasn’t sat in on any Town Board or Work Session meetings and listened to Mr Feiner testify found him to not be a credible witness. Had the judge sat in on a Town Board meeting, or any other meeting with Mr Feiner, he would have already known this.

So, now we learn another decision handed down against Mr Feiner and the Town, that will again be paid for by the taxpayers. This time the courts found in favor of the plaintiff, Crown Castle NG East, Inc., the “new” parent company of NextG Networks of New York, and against the Town. The original petitioner sought to install cell towers on phone poles throughout the Town. Their lawsuit alleged the protracted process began in 2009 with their cell tower installation applications to Mr Feiner and the Town, and took an unreasonable amount of time to receive a decision, based on The FCC’s “Shot Clock” order.

The “Shot Clock” was a supposed important step enacted by Congress to encourage the expansion of wireless networks throughout the nation. The ruling provides that a local jurisdiction must act on an application for the collocation of additional antennas to existing infrastructure within 90 days and an application for the construction of new infrastructure within 150 days. And, at the same time it claims to allow local control, it really does not seem the “locals” actually maintain control. 

The parameters of what the Town needed to do to address the NextG applications from the very beginning seem to have been misplayed by Mr Feiner and to a complicit degree, the Town Board. Based on past performances from Mr Feiner, we’re not surprised. While past performance does not guarantee future results in the financial world, it’s fairly accurate with Mr Feiner’s world and “Bizzaro Greenburgh”.

From the onset, NextG applied to install cell towers consisting of “a small, low-powered antenna, laser and amplifier equipment for the conversion of RF signals to optical signals that is connected to the antenna, fiber optics lines, and associated equipment such as power supplies” on phone poles in November of 2009. The Town insisted that NextG was not a cell provider and consequently did not qualify for approval. But, whether qualified or not, Mr Feiner received communications of application from NextG which he simply chose to ignore and do nothing about.

The decision for the plaintiff (NextG) against the defendant (Town/Feiner) was issued in the beginning of July. Yet, no one from the Town or the public knew anything of it. Why not? Simple. Mr Feiner received the information of the decision and decided not to share it with either his colleagues or the public! Again, why not? Could it be Mr Feiner trying to minimize the negative impact during his re-election campaign? Or, could it be because he has a formidable Democratic Primary opponent with Mr Robert Berstein? Could all the lawsuits coming to fruition at the same time as this election be his motivation to try to keep this secreted from the public? Regardless of his motivation, it’s another in a long list of examples of the phony open government scam Mr Feiner has perpetrated on the public and endorsed by the lame-stream media.

The same taxpaying public that weighed in on the cell tower proposals and insisted Mr Feiner allow the Antenna Review Board and the Zoning Board address the issue of a proposal were also ignored by Mr Feiner and the Board. Mr Bob Bernstein also suggested that the Town allow the laws we have in place be the determinant with the application and that they would provide us with legal validation for cell towers. Issues of public safety, visual appearance, a lack of safety information and specifically a need to fill a gap for coverage all came up in the numerous conversations. Interestingly, the decision handed down and hidden by Mr Feiner in hopes of who-knows-what-?, was made public by Mr Bernstein! Only after Mr Bernstein published a PDF of the decision did Mr Feiner offer it to anyone who sent him an email. 

ABG requested a copy of the verdict from Mr Feiner. In a very deft move by Mr Feiner, he sent a link to his email message as opposed to sending the file as an email attachment, ensuring the inability of accessing his Microsoft Outlook email account and getting the file. When we responded and told him the link didn’t work, he forwarded our email to Town Attorney Lewis where the request has languished for over a week and remains in the veritable Feiner Black Hole, never to be seen again. Open government? Transparency? The public’s right to know? These are empty platitudes bandied about by Mr Feiner and the Board when it’s convenient for a nearby reporter seeking a sound-byte. The reality in Bizarro Greenburgh is something quite different.

In reading the decision by the courts, there was a pattern of consistent delays over three or so years from Mr Feiner and the Town. The chronological actions taken or not taken are detailed below and summarily highlight the lack of a decision for NextG that was the predominant point of their lawsuit.

1. November 13, 2009; Right of way use agreement letter submitted to Town Supervisor. Unanswered.
2. Follow-up letter sent several months later. Unanswered.
3. March 22, 2010; Attempted to meet with Public Works Staff; Unsuccessful.
4. March 25, 2010; Permit Applications sent to Public Works Commissioner; Unanswered
5. March 30, 2010; Met with Town to discuss above mentioned letter.
6. June 7, 2010; Reminded Town of need to meet for negotiation. Unanswered.
7. June 7, 2010; Plaintiff sent a follow-up letter to Town Public Works & Building Commissioners; Unanswered.
8. June 16, 2010; Antenna Review Board (ARB) announces Public Hearing for June 28, 2010.
9. June 29, 2010; ARB rejects Plaintiff application as incomplete. 
10. July 10, 2010; Plaintiff representatives meet with Thomas Madden regarding materials submitted.
11. September 8, 2010; Plaintiff applies to Building Dept., for permits.
12. September 10, 2010; Building Inspector acknowledges receipt of application; Refused.
13. November 10, 2010; Materials submitted determined to not be valid application.
14. October 5, 2010; ARB Chair states Madden doesn’t have authority regarding application.
15. October 19, 2010; Plaintiff requests sample application from ARB. 
16. November 23, 2010; Plaintiff submits second round of applications.
17. December 14, 2010; Plaintiff complains ARB took no action of their applications.
18. February 8, 2011; Plaintiff sends letter asserting Town’s Antenna Law doesn’t apply to their application.
19. March 15, 2011; Plaintiff submits application “template” to facilitate approval process. ARB issues letter of incompleteness without specifically addressing deficiencies. Months of back and forth take place with no resolve.
20. April 4, 2011; ARB identifies deficiencies in template application.
21. May 17, 2011; 7 applications discussed at ARB public meeting. Determined deficient.
22. June 27, 2011; 2nd set of revisions discussed at public ARB meeting.
23. October 26, 2011; 16 of 20 Plaintiff applications deemed complete by ARB. 
24. November 1, 2011; Letter stating same from ARB Chair to Building Department sent.
25. November 15, 2011; Final 4 applications submitted to ARB.
26. November 15, 2011; Plaintiff submits completed versions of applications to Town Board. 
27. November 25, 2011; Letter stating same from ARB Chair to Building Department sent.
28. November 30, 2011: Town Board holds Public Hearing. No vote taken. Adjourned until December 14, 2011. 
29. December 3, 2011; Receipt of letter confirmed from ARB to Building Inspector.
30. December 14, 2011; 2nd Public Hearing held. Town-hired engineering firm submits Engineering Report concluding gap in service. No vote by Town Board taken.
31. January 17, 2012; Town Board discusses Plaintiff request for a special permit in Work Session. Plaintiff agrees to adjourn from the January 25, 2012 meeting until February 7, 2012.
32. February 7, 2012; 3rd Public Hearing held. Plaintiff attends Work Session. No vote on Plaintiff’s request/application.
33. February 23, 2012; New questions arise as to alternate locations for installation.
34. February 29, 2012; Town Board holds Public Hearing. Indicates they would vote on March 20, 2012.
35. March 20, 2012; Town Board decides to hold over the vote for a date to be determined. Town Attorney Tim Lewis tells Plaintiff he expects a decision at the April 11, 2012 meeting.
36. March 30, 2012; Final Public Hearing held. No vote taken.
37. April 10, 2012; Crown Castle acquires NextG.
38. April 11, 2012; NextG applications not on the Town Board agenda. Town Board decides to turn the request over to the Town’s Conservation Advisory Council (CAC). 
39. April 11, 2012; Plaintiff not invited to CAC meeting.
40. June 7, 2012; Plaintiff threatens lawsuit if no meaningful action was taken with their application.
41. June 20, 2012; Town requests additional information from Plaintiff, promising decision in 30 days proving NextG offers telecommunications service, the installations meet the minimum height and aesthetic intrusion requirements.
42. July 24, 2012; Town denies Plaintiff’s applications stating no service gap was demonstrated or that NextG offered telecommunications service, the installations meet the minimum height and aesthetic intrusion requirements.

Motions to dismiss by the Town (defendant) and motions for summary judgement by the NextG/Crown Castle (plaintiff) were subsequently made. The courts ruled for both parties on partial points of the suit. In the end, however, the victor seems to be NextG/Crown Castle. The decision affecting the residents beyond the financial aspects of the suit mean that primarily Edgemont and Scarsdale will soon be seeing these cell towers on 20 or so phone poles throughout their communities. 

An interesting subtext throughout this entire episode is one that continues to be present but seemingly never referenced. About two years or so ago when Ms Sonya Brown was still a sitting Town Board member, the Town Board discussed cell coverage throughout the Town ad nauseum. In fact, after the poor cell coverage issue was highlighted in one particular meeting, each Board member seemed to try to top the other with their own tales of woe as to the spotty cell coverage users might experience throughout the Town. Mr Feiner even said there are times he is driving on the Knollwood Road area of the Town and unable to get a cell phone signal. Perhaps driving should have been more his focus and not phone use. Beyond that, it would have certainly assisted making the case for NextG/Crown Castle. Opportunity lost? Maybe, but the outcome was the same.

ABG is not in favor of the cell tower installations as originally proposed by NextG. There was a proper vehicle in place to handle their application, but Mr Feiner and his Board knew better. While the outcome might have been different had the Town simply let their laws protect us, Mr Feiner again dictates what he wanted and failed. It seems that Mr Feiner attempted to stall* the applicant the same way so many small developers and residents typically encounter from the Town with their smaller projects. Only residents don’t have a Shot Clock law on their side, only against them. Big brother? You decide.

Had NextG mentioned several buzz-words in the application, things would have certainly progressed more quickly for them. Future applicants should consider incorporating some of these buzz-words to ensure Mr Feiner’s help and even promotion: homeless, affordable housing, workforce, developmentally disabled, tax generating, for the children, revenue to the Town, more votes, transparent, Fairview, create jobs, Section 8 and so on. The list is endless. Apparently, so are the lawsuits and guilty verdicts!

* From the decision’s document. Bold text is made by ABG. “The Town Board held public hearings on the applications on November 30, 2011, December 14, 2011, February 7, 2012, February 29, 2012, and March 20, 2012, and did not issue its written decision denying Plaintiff’s applications until July 24, 2012 – 252 days from the submission of the complete applications. This is well beyond presumptively-reasonable 150-day time period set by the Shot Clock Order, and does not even include time spent during the completeness review, at least some of which should arguably count towards the application processing time given that the Shot Clock Order only excludes time that it takes the applicant to respond to requests for additional information. See Shot Clock Order, 24 F.C.C. Rcd. at 14015. The Town has proffered no real explanation as to why its process took so long that would suffice to rebut the presumption. Indeed, from the close of the public hearings, it took over four months for the Town to render its decision, after conducting public hearings on the matter for close to four months. Further, putting the presumption aside, the bureaucratic hoops through which Plaintiff was put, along with the rest of the record, suggest that the Town would be no more interested in a prompt disposition now than it was beginning in 2009. This is a paradigmatic case where remand would only further and unnecessarily delay the processing of Plaintiff’s siting application. Accordingly, the appropriate remedy in equity is an order requiring the issuance of the special permits sought.”