Cell Tower Law Suit Court Hearing

This article appeared in the Townsman, May 8 2008 edition

Kingston, May 5 2008

In a very surprising development considering the majority of the Woodstock town board’s strong opposition toward the Town’s master management agreement with JNS Enterprises, builder of the municipal communications tower on California Quarry, attorney for the Town Rod Futerfas put up a strong defense for the agreement before New York State Supreme Court Judge O'Connor on Monday, May 5 in the Kingston County Court House.
In late 2004 the Woodstock town board signed an agreement that permitted at JNS’s expense construction of a town-owned lattice tower capable of providing cell phone service on Town owned land. JNS also agreed to manage and maintain the tower and split 50-50 with the Town rents to cell phone providers.
At the conclusion of a long permitting process, however, the Woodstock planning board in 2006 mandated a “pine tree” type of tower design instead of the more economical lattice tower. JNS offered a revised agreement whereby the town would give up a share of its revenue for the tower to make up the cost difference, which was said to be approximately $150,000. Extremely contentious town board meetings, including a public hearing, finally resulted in a 3-2 vote to accept the amended agreement in early 2007. The tower was completed in late 2007 and provides several cell phone company services.
The Town spent no money on the tower except to defend against law suits brought on by neighbors of California Quarry, principally Ken Silver and Jay Cohen. They challenged the Town on points ranging from environmental review, planning board approval, zoning board of appeals interpretations and to the nature of the JNS agreement, which the petitioners maintain is a no-bid contract violating state law. The latest lawsuit, which added new petitioner George (“Jerry”) Washington, claims that the amended agreement with JNS is a no-bid contract, even though the challenge to the original agreement was thrown out by Judge Richard Kavanagh in 2005.
Monday’s oral arguments before Judge O’Connor began with attorney Eric Schneider, representing the petitioners, arguing that the amended agreement with JNS violated state bidding statutes and citing sections of General Municipal Law. He mentioned a report by George Washington suggesting that $150,000 was an inflated expense for the pine tree tower. He later corrected himself, acknowledging that the Town did not expend any money toward the tower’s construction, but he maintained the foregone revenue was an expense so far as the law was concerned. Mr. Schneider wrapped up his argument in about ten minutes.
Futerfas, taking even less time, claimed that the amendment to the JNS agreement did not change the “underlying reason of the agreement” that had been upheld by Judge Kavanagh’s 2005 decision, and furthermore that the agreement is a “license” since no town monies were expended on the tower’s construction. He also challenged the ‘standing’ of the petitioners, citing a decision by a Judge Ceresia, who in an earlier lawsuit against the tower found the petitioners had ‘no standing’ since they had not shown they had suffered harm different than that of the public at large. Mr. Futerfas pointed out that the petition in that case and the case now before Judge O’Connor was exactly the same in nature. Finally, Futerfas stated that the petitioners had not named an “essential party” in their lawsuit, in this case JNS, and for this reason alone the case should be dismissed.
Woodstock councilman Chris Collins, a severe critic of the JNS agreement, sat in the courtroom and listened to the arguments.
The entire proceeding took less than twenty minutes. Judge O’Connor thanked the parties, and said a decision would be issued sometime in the future.
Questions for town board members concerning the hearing have gone unanswered, except for Terrie Rosenblum’s comment “it is inappropriate to discuss pending litigation with the press.” She was unaware of any discussion of the case during executive sessions.
Messages to Jay Cohen, George (“Jerry”) Washington and Ken Silver asking for their response to the town board’s decision to defend against their lawsuit have so far gone unanswered.
Washington, a retired middle manager from IBM, was recently appointed by councilwoman Liz Simonson to serve on her cell tower siting committee.