Tarpon Towers v. Town of Saugerties Federal Complaint

Case 1:22-cv-00107-DNH-DJS Document 1 Filed 02/04/22 Page 1 of 61
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK
________________________________________________
CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS

and TARPON TOWERS II, LLC COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
AND EXPEDITED
REVIEW PURSUANT TO
47 U.S.C. § 332(c)(7)(B)(v)
Plaintiffs,
Civil Action No.:
1:22−cv−00107 (DNH/DJS)
vs.
TOWN OF SAUGERTIES, NEW YORK, THE ZONING

BOARD OF APPEALS OF THE TOWN OF SAUGERTIES,
NEW YORK, THE PLANNING BOARD OF THE TOWN OF
SAUGERTIES, NEW YORK, THE CODE ENFORCEMENT
DEPARTMENT OF THE TOWN OF SAUGERTIES; KEVIN
BROWN, In his Official Capacity as Code Enforcement
Officer for THE TOWN OF SAUGERTIES, NEW YORK
Defendants,
________________________________________________
PRELIMINARY STATEMENT
Plaintiff Tarpon Towers II, LLC (“Tarpon Towers”) and Plaintiff Cellco Partnership d/b/a
Verizon Wireless (“Verizon Wireless”) (collectively, Tarpon Towers and Verizon Wireless are
referred to as, “Plaintiffs” or “Applicants”), by and through its undersigned attorneys, allege as
follows as and for Plaintiffs’ Complaint and Request for Expedited Review under 47 USC §
332(c)(7)(B)(v), relative to Defendant Town of Saugerties, New York’s (“Town”): (i) unlawful
delay, failure and refusal to act on Plaintiffs’ application for a new personal wireless service facility
proposed to be located at property owned by the Mt. Marion Fire Department located at 766 Kings
Highway (“Fire Department Property”); and (ii) unlawful denial of an application by Plaintiffs for
permission to construct and operate a new personal wireless service facility on property located at
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17 Industrial Drive (“Industrial Drive Property”), and for declaratory and related injunctive relief
ordering the immediate issuance of all approvals permits and approvals necessary for the
placement and construction of the proposed personal wireless service facility at either the Fire
Department Property or the Industrial Drive Property.
I. INTRODUCTION
1. The Nation’s wireless infrastructure is a critical communications pathway that is
extensively employed and heavily relied on by emergency service providers, hospitals and health
care professionals, law enforcement personnel, government officials, the 911 North American
emergency system, and the public, — including residents and businesses, as well as the traveling
public. Congress and the Federal Communications Commission (“FCC”) have emphasized the
importance of a seamless nationwide wireless network, and the need to allow wireless carriers to
fill gaps in their coverage and densify wireless networks without undue delay caused by municipal
planning and zoning boards. This case involves Plaintiffs’ attempt to close just such a coverage
gap and to resolve system capacity issues with the Verizon Wireless network in and around the
Town of Saugerties, and the Town’s continued attempts to thwart that effort.
2. This action involves the Town’s unlawful failure and refusal to act on an application
for a personal wireless service facility proposed for the Fire Department Property (“Fire
Department Application”).
3. Defendants’ unlawful failure and refusal to act on the Fire Department Application
violates the Federal Communications Act of 1934, as amended by the Telecommunications Act of
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1996 and codified in 47 USC §151 et seq. (the “Act or “TCA”) by failing to render a decision
within a reasonable period of time after said application was duly filed with the Town.
4. The Town, its boards, officers, agencies, and departments have unreasonably
refused, failed and delayed action upon Plaintiffs’ Fire Department Application within the
timeframe established under the TCA and pursuant to 2009 FCC Order (defined below), thereby
effectively prohibiting Applicants from providing service where known service gaps and network
deficiencies indisputably exist. The Town has done so in knowing disregard for, and in violation
of, the TCA and other provisions of federal, state and local laws, rules and regulations.
5. The Town’s failure and refusal to act on the Fire Department Application in the
time required by the TCA also constitutes an effective prohibition on wireless services by denying
Applicants the right to remedy known wireless issues in the Mt. Marion area with the least intrusive
alternative in clear violation of 47 USC § 332(c)(7)(B)(i)(II).
6. Defendants’ refusal to grant Applicants’ request for governmental immunity for the
Fire Department Property pursuant to Town Code § 245-36 also violates the express prohibition
in the TCA against local governments unreasonably discriminating among providers of
functionally equivalent service. See, 47 USC § 332(c)(7)(B)(i)(I).
7. This action also involves Defendants’ unlawful denial of Plaintiffs’ application to
install and operate a personal wireless service facility at the Industrial Drive Property (an
alternative to the Fire Department Property) (“Industrial Drive Application”). Defendant Zoning
Board of Appeals’ (“Defendant ZBA”) unlawful denial of the Industrial Drive Application violates
the TCA because, inter alia, it constitutes an effective prohibition on wireless service thereunder
in that it denies Verizon Wireless the ability to close a significant gap in coverage and cure network
capacity deficiencies in Verizon Wireless’ local wireless network using the least intrusive means
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possible, (i.e., by locating the proposed new facility in an approved zoning district at a location
specifically recommended by Defendant ZBA and which represents only a minimal impact to the
community). The Town’s effective prohibition on wireless service constitutes a separate and
independent violation of federal law warranting injunctive relief. See, 47 USC §
332(c)(7)(B)(i)(II).
8. The Town’s denial of the Industrial Drive Application also violates the TCA since
it is based on specious grounds that are not supported by substantial evidence in the record. This
constitutes a separate and independent violation of federal law warranting injunctive relief. See,
47 USC § 332(c)(7)(B)(iii).
9. The injury caused by Defendants’ unlawful refusal to act on the Fire Department
Application and denial of the Industrial Drive Application are both continuing and irreparable. The
harm to Tarpon Towers, Verizon Wireless and its customers, including the potential loss of
goodwill caused by deficient wireless coverage in the Town, can neither be quantified nor
remedied by monetary damages. The underlying public interest here, expressed in the policies
embodied in Section 332 of the TCA and the applicable FCC Orders (defined below), is intended
to divest local governments of the power to unreasonably delay or block essential wireless
telecommunications facilities, particularly through calculated inaction, the imposition of
unreasonable conditions, and/or the denial of the least intrusive alternatives available to remedy
uncontroverted coverage gaps and capacity issues.
10. Under Section 332(c)(7)(B) of the Act, Plaintiffs are entitled to injunctive and
declaratory relief permitting the installation and operation of one of the two (2) personal wireless
service facilities described in the Fire Department Application or Industrial Drive Application.
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11. The Town’s denial is also in blatant disregard of controlling New York precedent
regarding the applicable standards to be applied when considering zoning approvals for wireless
carriers seeking to locate a telecommunications facility, as articulated in Cellular Tel. Co. v
Rosenberg, 82 NY2d 364, 372 [1993].
II. JURISDICTION AND VENUE
12. This Court has subject-matter jurisdiction over this action under 28 USC § 1331
because such action arises under and is brought pursuant to the Federal Communications Act of
1934, as amended by the Telecommunications Act of 1996 (the “TCA”), including 47 USC §
332(c)(7)(B). This Court also has jurisdiction over this action under 28 USC § 1337(a), because
the Federal Communications Act and the TCA are acts of Congress regulating commerce.
13. Pursuant to 28 USC § 1367, this Court may exercise supplemental jurisdiction over
Plaintiffs’ claims under New York State law.
14. This Court has jurisdiction to order declaratory and injunctive relief under 28 USC
§§ 2201 and 2202. There is a live and justiciable controversy between the parties that includes
whether Defendants have: (i) unlawfully failed and refused to render a decision on Plaintiffs’ Fire
Department Application; and (ii) unreasonably denied Plaintiffs’ Industrial Dr. Application for a
personal wireless service facility.
15. Venue is proper in this district under 28 USC § 1391(b)(2). The Defendants are
located in the Northern District of New York, a substantial part of the events or omissions giving
rise to the claim occurred in this District, and the properties that are the subject of this action are
situated in this District.
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III. EXPEDITED PROCEEDING
16. Pursuant to 47 USC § 332(c)(7)(B)(v) of the TCA, Plaintiffs respectfully request
expedited treatment of this Complaint.
IV. PARTIES
17. Plaintiff Cellco Partnership d/b/a Verizon Wireless, is a Delaware limited liability
company with a place of business located at 1275 John Street, Suite 100, West Henrietta, New
York 14586.
18. Plaintiff Verizon Wireless is licensed by the FCC to provide wireless services
throughout New York State, including commercial mobile services and personal wireless services
(as those terms are defined under federal law) in and around the Town of Saugerties, New York.
19. Plaintiff Tarpon Towers II, LLC is a Delaware limited liability company with a
place of business located at 1001 Third Avenue West, Suite 240, Bradenton, Florida 34205.
20. Plaintiff Tarpon Towers is authorized to do business in the State of New York.
21. Defendant Town of Saugerties is, upon information and belief, a municipal
corporation of the State of New York, with its principal offices located at 4 High Street, Town of
Saugerties, Ulster County, New York 12477.
22. Defendant ZBA is the administrative board of the Town which has been delegated
with the authority and jurisdiction to review variance applications under the Saugerties Town
Code.
23. Defendant Planning Board of the Town of Saugerties (“Planning Board”) is the
administrative board and agency of the Town which has been delegated authority and jurisdiction
to issue site plan approval under the Saugerties Town Code and is the Town agency which initiated
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(but failed to complete) the review of the Site Plan Review Application for the facility proposed
for the Industrial Drive Property.
24. Defendant Town of Saugerties Code Enforcement Department (“Code
Enforcement Department”) is the administrative department of the Town of Saugerties which has
been delegated authority and jurisdiction to issue building permits under Article XI, Chapter 245-
48 of the Town Code. Defendant Kevin Brown, sued in his Official Capacity, is the Town Code
Enforcement Officer for the Town of Saugerties.
V. REGULATORY BACKGROUND
A. The Wireless Industry
25. The wireless industry continues to experience substantial growth nationally, and
within the State of New York. National data indicates that as of 2020, there were approximately
442.5 million subscriber connections active in the United States.
26. Data from the Centers for Disease Control and Prevention indicates that as of June
2018 (a) approximately fifty-five percent (55%) of all adults and children live in households that
have replaced landline service with only wireless service, and (b) forty-two percent (42%) of
American homes receive all or almost all calls on wireless devices despite also having landline
service. This trend, sometimes referred to as “cutting the cord,” is increasing and, as a result,
wireless networks must now handle communications from multiple wireless devices owned by
multiple members of a household (that previously were addressed by a single household
connection to the landline system).
27. Verizon Wireless provides an important service to emergency first responders,
including but not limited to, law enforcement personnel, hospitals and health care workers, and
the general public. According to the Twelfth Annual Report to Congress of State Collection and
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Distribution of 911 and Enhanced 911 Fees and Charges, submitted by the Federal
Communications Commission pursuant to Public Law No. 110-283 and dated December 8, 2020,
there were approximately 211,202,215 emergency 911 calls made during the calendar year 2019.
See, https://www.fcc.gov/files/12thannual911feereport2020pdf, Table 3. An overwhelming
majority (approximately 151,971,715 calls (72%)) of the 211,202,215 911 calls made during 2019
were made from a wireless device. Id.
28. Viewed from the standpoint of public safety, advances in wireless technology have
spurred federal government plans to upgrade the nationwide 911 emergency call system to enable
the acceptance of all manner of wireless communication over wireless networks, including text
messages, photos and video. The FCC is also engaged in efforts to make modern wireless and
broadband devices accessible for emergency and non-emergency use to persons with disabilities.
For these new services to function properly, adequate wireless network capacity and bandwidth
are critical, but in some areas, such as the Mt. Marion area of the Town of Saugerties, do not
currently exist.
29. In this context, wireless telecommunications of all forms are vital to the public
welfare and safety and are not a mere luxury or entertainment item.
B. Federal Preemption of Local Roadblocks to Competition
30. By amending the Communications Act of 1934, with the TCA in 1996, Congress
created a new telecommunications regulatory regime intended to foster competition in local
telephone markets. An explicit goal of the TCA is to promote competition and reduce regulation
8
of wireless service providers for the purpose of securing lower prices and higher quality services
for consumers and encouraging the rapid deployment of new telecommunications technologies.
31. To ensure that local governments could not thwart the TCA’s pro-competitive
national policy, Congress included provisions that encourage build-out of wireless networks and
competition among wireless providers by placing certain restrictions on the regulation and
placement of personal wireless service facilities by state and local zoning and/or other authorities.
32. One of the key purposes of the TCA’s restrictions on the regulation of personal
wireless service facilities is “to stop local authorities from keeping wireless providers tied up in
the hearing process through invocation of state procedures, moratoria, or gimmicks.” See
Masterpage Comms., Inc. v. Town of Olive, 418 F Supp 2d 66, 77-80 [ND NY 2005].
33. The manner in which Defendant ZBA reviewed the Fire Department Application
and the Industrial Drive Application (e.g., requiring separate applications for each alternative
instead of considering the alternatives concurrently) is just the type of gimmick the TCA was
intended to thwart.
C. Relevant TCA Provisions
34. The critical importance of wireless communications systems is recognized,
encouraged, and implemented by, among other laws, rules and regulations, the TCA and in FCC
orders, rules, and regulations, including, without limitation, the FCC orders and rulings issued in
the proceedings entitled: (i) In re Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(B), 24 FCCR 13994 (2009) (the “2009 FCC Order”); (ii) In Matter of Acceleration of
Broadband Deployment by Improving Wireless Facilities Siting Policies, 29 FCCR 12865 (2014)
(the “2014 FCC Order”); and (iii) In Matter of Accelerating Wireless Broadband by Removing
Barriers to Infrastructure Investment, 34 FCCR 2282 (2018) (the “2018 FCC Order”). Overall,
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these laws, rules, and regulations establish a “pro-competitive, de-regulatory national policy
framework designed to accelerate rapidly private sector deployment of advanced
telecommunications and information technologies and services to all Americans….” See Act, S.
Rep. 104-230, at 1 (Feb. 1, 1996) (Conf. Report).
35. The Executive Branch also recognizes the importance of robust wireless
infrastructure as “an essential element of a resilient and secure nation.” Presidential Proclamation
No. 8460, 74 Fed. Reg. 234 (Dec. 8, 2009).
36. To foster a pro-competitive, deregulatory national wireless policy, Congress
included provisions in the Act that expressly limit and preempt local zoning authority to the extent
it unreasonably delays or prohibits wireless carriers to quickly fill “gaps” in their wireless service
coverage and address system capacity issues. Section 332(c)(7) of the Act thus attempts to strike
a balance between “preserv[ing] the traditional authority of state and local governments to regulate
the location, construction, and modification of wireless communications facilities like cell phone
towers” (T-Mobile S., LLC v. Township of Roswell, 574 US 293, 300 [2015]) and “reduc[ing]...
the impediments imposed by local governments upon the installation of facilities for wireless
communications.” Township of Rancho Palos Verdes v Abrams, 544 US 113, 115 [2005].
37. Section 332(c)(7) of the TCA imposes a number of procedural and substantive
limitations on state and local agencies to ensure that local governments do not frustrate the TCA’s
goals of promoting competition, higher quality services and the rapid deployment of new
telecommunications technologies.
38. Section 332(c)(7)(B)(i) states:
“The regulation of the placement, construction, and modification of

personal wireless service facilities by any State or local government
or instrumentality thereof –
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(I) shall not unreasonably discriminate among providers of

functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the

provision of personal wireless services.”
39. An effective prohibition of personal wireless services under the TCA occurs when
an applicant is prevented from deploying a personal wireless service facility even though it
demonstrates that a significant gap in service or network capacity need exists, and the proposed
facility represents the least intrusive means to close such service gap.
40. Section 332(c)(7)(B)(ii) states:
“A State of local government or instrumentality thereof shall act on

any request to place, construct, or modify personal wireless service
facilities within a reasonable period of time after the request is duly
filed with such government or instrumentality, taking into account
the nature and scope of such request.”
41. Section 332(c)(B)(iii) states:
“Any decision by a State or local government or instrumentality to

deny a request to place, construct, or modify personal wireless
service facilities shall be in writing and supported by substantial
evidence contained in the written record.”
42. Section 332(c)(7)(B)(iv) states:
“No State or local government or instrumentality thereof may

regulate the placement, construction, and modification of personal
wireless service facilities on the basis of the environmental effects
of radio frequency emissions to the extent that such facilities comply
with the Commission’s regulations concerning such emissions.”
43. Section 332(c)(7)(B)(v) states:
“Any person adversely affected by any final decision or failure to

act by a State or local government or any instrumentality thereof that
is inconsistent with this subparagraph may, within 30 days after such
action or failure to act, commence an action in any court of
competent jurisdiction. The court shall hear and decide such action
on an expedited basis….”
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44. Pursuant to this authority, the 2009 FCC Order was specifically issued to clarify
what constitutes a “reasonable period of time” under the TCA for a municipality to act on an
application for a wireless communications facility or site.
45. Having concluded that wireless service providers often face lengthy and
unreasonable delays in the processing of their siting applications, and that “the persistence of such
delays is impeding the deployment of advanced and emergency services,” (2009 FCC Order at ¶
32), the FCC identified the need for federal limitations on the ability of local governments to delay
decisions. In so doing, the FCC sought to promote the deployment of broadband and other critical
wireless services. The 2009 FCC Order provides, inter alia, that:
“it is in the public interest to define the time period after which an
aggrieved party can seek judicial redress for a State or local
government’s inaction on a personal wireless facility siting
application. Specifically, we find that ‘a reasonable period of time’
is presumptively, 90 days to process personal wireless service
facility siting applications requesting collocations, and, also
presumptively, 150 days to process all other applications.”
2009 FCC Order at ¶ 32 (emphasis supplied).
46. The FCC noted that the purpose of this “shot clock deadline” was to give State or
local governments or instrumentalities thereof, “a strong incentive to resolve each application
within the timeframe defined as reasonable, or they will risk issuance of an injunction granting the
application. In addition, specific timeframes for State and local government deliberations will
allow wireless providers to better plan and allocate resources. This is especially important as
providers plan to deploy their new broadband networks.” Id. at p. 14,000, ¶38.
47. The 2009 FCC Order further declares that, when a State and local government does
not act within the relevant shot clock period, then “a failure to act occurs within Section
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332(c)(7)(B)(v)” of the TCA and wireless service providers may seek judicial redress. See, 2009
FCC Order at ¶¶ 32, 37.
48. This action is ripe for determination under the TCA, the 2009 FCC Order, the 2014
FCC Order, and the 2018 FCC Order and is timely filed within 30 days of Defendants’: (i) unlawful
failure to act on Plaintiffs’ Fire Department Application; and (ii) unlawful denial of the Industrial
Drive Application, as required by the TCA, the 2009 FCC Order, the 2014 FCC Order, and the
2018 FCC Order.
D. State and Local Government Zoning Requirements
(i) Verizon Wireless is a Public Utility for Purposes of Zoning
49. Because of the essential nature of its services, Verizon Wireless has long been
considered a public utility for purposes of zoning under New York decisional law.
50. As a public utility, Verizon Wireless is entitled to a have its land use applications
reviewed under the deferential public necessity variance standard applicable to all public utilities.
Under that standard, Applicants need only show (1) a demonstrated need for wireless service (i.e.,
a significant gap in coverage or capacity deficiency); (2) that the proposed location remedies the
need; and (3) that the proposed location is more feasible than other alternatives. Cellular Tel. Co.
v Rosenberg, 82 NY2d 364, 372 [1993] (citation omitted).
51. Although Defendant ZBA purported to apply the public necessity variance standard
to the Industrial Drive Application, its finding that the proposed facility represents more than a
minimal intrusion to the community, which was not based on the substantial evidence in the record,
is clearly arbitrary and capricious.
52. Defendants failed to properly apply the public necessity variance standard to
Plaintiffs Industrial Drive Application under applicable New York State law.
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(ii) The Town Code Permits Personal Wireless Service Facilities in the Office/Light Industrial
Zoning District
53. Applications for personal wireless service facilities in the Town of Saugerties, New
York are regulated under Section 245-11(p) of the Town Code.
54. The Town Code includes a hierarchy of preferred siting locations for personal
wireless service facilities based on five (5) different “Types” of facilities, as defined in the Town
Code.
55. It is not disputed that the proposed facility is deemed a Type 5 facility under the
Town Code. Type 5 facilities are defined as new commercial telecommunications towers on new
sites. Town Code, § 245-11(P)(6)(d).
56. In enacting Chapter 245 of the Town Code, and particularly the provisions
regulating telecommunications facilities, the Town of Saugerties Town Board expressly
authorized Type 5 facilities to be located in the Office/Light Industrial (“OLI”) zoning district
upon issuance of a special use permit by the Saugerties Planning Board. Town Code, § 245-
11(P)(6)(a)[2].
57. Type 5 facilities are permitted when an applicant, as is the case here, demonstrates
that Types 1, 2, 3 and 4 facilities are not available.
58. The Industrial Drive Property is in the OLI zoning district.
59. Defendant ZBA previously found that wireless communications facilities are
permitted in the OLI zoning district. See, ZBA Governmental Immunity Decision, a true and
correct copy of which is provided in Exhibit A annexed hereto.
60. The unrefuted evidence in the record demonstrates that the existing gaps in service
and network capacity issues cannot be resolved with a Type 1, 2, 3 or 4 facility.
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VI. HISTORY OF APPLICATIONS TO CONSTRUCT A WIRELESS

COMMUNICATIONS FACILITY
A. The Search Area
61. To operate in an efficient and effective manner, wireless networks must comply
with the laws of physics, the science of matter, motion and energy. Effective network design and
development requires that new sites be located within a geographic area identified by the RF
Design Engineer, who has specific knowledge of the existing network infrastructure, topography
and network needs. Proper spacing between wireless facilities is also critical from a network
performance and capacity perspective.
62. Utilizing these guiding principles, Verizon Wireless’ RF Design Engineer
previously identified the geographic area, also known as the “search area,” in which a new wireless
telecommunications facility should be located to provide the required coverage and capacity needs
for the Mt. Marion area. The Verizon Wireless RF Design Engineer carefully determined that to
properly resolve the significant gaps in service and the substantial capacity issues, a new
communications facility was required to be located within a specific geographic area within the
area of Saugerties known as Mt. Marion. The search area is referred to by Applicants as “Glasco
Tpk I-87”.
63. The search area is located generally in the south-central portion of the Town and is
shown on page 13 of the Engineering Necessity Case – “Glasco Tpk I-87” provided in Exhibit 5
of the Fire Department Application and annexed hereto as Exhibit B.
64. The primary objectives for the proposed facility were identified by Verizon
Wireless RF Design Engineer as the need to increase capacity and resolve significant coverage
gaps in the Mt. Marion portion of the Town of Saugerties, including, but not limited to, portions
of I-87, Glasco Turnpike (RT 32), Kings Highway, the large residential area known as Mt. Marion
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Park and a nearby elementary school, all of which currently lack safe, adequate and substantial
Verizon Wireless service. Id.
65. The Glasco Turnpike search area is illustrated in Exhibit C annexed hereto and
made a part hereof (the full document from which this is excerpted is located at Exhibit B at page
13 and is represented by the red circle).
66. Verizon Wireless’ RF Design Engineer provided detailed explanations to
Defendant ZBA throughout the review process concerning the methodology of determining the
location and size of the search area and the various factors involved in establishing such search
area.
B. The Original Mt. Marion Fire Department Location
(i) Fire Department Application
67. This action originates from an Application for Use and Area Variance originally
dated May 20, 2019. A copy of the original Fire Department Application is annexed hereto as
Exhibit D.
68. The Fire Department Application involves a proposal to install and operate a new
personal wireless service facility, including a new monopole tower 120’ in height (124’ with the
required lightning rod), antennas at an antenna centerline height (“ACL”) of 116’, related
equipment, cables and other appurtenances located within a 50’ by 30’ lease area on the Fire
Department Property.
69. The Fire Department Property is located in the Residential Hamlet zoning district,
which does not expressly permit Type 4 or 5 facilities. For this reason, a use variance was required
for the facility at the Fire Department Property.
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70. Due to the existing development on Fire Department Property and the unique
configuration of the property boundaries, certain area (setback) variances were also required.
71. The Fire Department Property was originally chosen for several reasons, including
the fact that such location was the most appropriate alternative (out of approximately twenty-seven
(27) properties) in site specific search area established by Verizon Wireless’ Radio Frequency
(“RF”) Design Engineer. A copy of the Supplement #2 to the Site Selection Analysis prepared by
Applicants’ consultant describes the manner in which the existing properties in the search area
were examined and why the Fire Department Property was determined to be the most appropriate
location for a new communications facility from a land use and zoning perspective. A true and
correct copy of Supplement #2 to the Site Selection Analysis (which was included in the
supplemented Fire Department Application) is annexed hereto as Exhibit E.
72. The fact that an existing communications tower exists on the Fire Department
Property also factored heavily into deciding on the Fire Department Property. Plaintiffs initially
believed that the installation of a new public utility tower on the Fire Department Property
constituted a Type 4 facility under the Town Code which is defined as a new commercial
telecommunications tower on the same site as a similar tower previously approved under Section
245-11(P).
73. During review of the Fire Department Application, Defendant ZBA stated that the
tower proposed for the Fire Department Property did not constitute a Type 4 facility since the
existing fire department tower was never approved under the Town Code. Even if the proposal for
the Fire Department Property does not meet the technical definition of a Type 4 facility, locating
a new personal wireless service facility on the Fire Department Property was clearly consistent
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with the underlying spirit and intent of the definition of a Type 4 facility, vis-à-vis the desire of
the Town to cluster tower structures on the same property whenever feasible.
74. The Fire Department Property was also selected as the primary candidate because
Applicants wanted the local fire department to receive the benefits associated with entering into a
lease with Plaintiffs, including receipt of rent payments and the ability to utilize the proposed tower
rent free for its radio communications needs.
(ii) Defendant ZBA’s Governmental Immunity Review under Town Code § 245-38
75. During its review of the Fire Department Application, Defendant ZBA requested
Plaintiffs to prepare and submit a Statement of Governmental Immunity from Zoning Pursuant to
Matter of County of Monroe v. Town of Rochester (“Balancing of Interests Statement”) and Town
Code §245-38, which document was submitted on or about August 21, 2020. The purpose of the
Balancing of Interests Statement was to request relief from certain zoning requirements pursuant
to Matter of Monroe v City of Rochester, 72 NY2d 338 (1988).
76. After several public hearings (held on July 6, 2020, August 3, 2020, October 5,
2020 and November 2, 2020) on both the governmental immunity request and the substance of the
Fire Department Application, Defendant ZBA determined that the facility proposed for the Fire
Department Property was not immune from the provisions of the Town Code. See, ZBA
Governmental Immunity Decision provided in Exhibit A, supra.
77. The primary reason for the Defendant ZBA’s determination not to apply the
balancing of interests to the Fire Department Application was the ZBA’s stated desire for the
facility to be located in the OLI zoning district. Section 3.10 of the ZBA Governmental Immunity
Decision, provides in part:
“Key to our decision is the fact that, in this particular case, there are technically
feasible alternative sites in the nearby Office/Light Industrial zoning district where
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this facility could be located. The potential to locate this proposed facility in one of
those alternative sites in that zone would mean that the facility would be much more
in harmony with Saugerties’ Zoning Law because that law allows those facilities in
the OLI District. This means that siting the facility in that zone would be more in
line with Saugerties vision for how it should grow and be developed, and safer for
the community.”
See, Exhibit A (emphasis supplied).
(iii) Defendant ZBA Agrees to Close Fire Department Application Public Hearing and Toll the
Relevant FCC Shot Clock Timeframe
78. After announcing its decision to deny Applicants’ request for governmental
immunity from local zoning at its January 7, 2021 meeting, then Chair Jeanne Goldberg confirmed
that “there was still an open public hearing on the area and use variance. [Chair] Jeanne asked to
close the public hearing [on the Fire Department Application].” See, ZBA January 7, 2021 meeting
minutes, p. 7, annexed hereto as Exhibit F.
79. The ZBA and its counsel agreed to keep the public hearing open on the Fire
Department Application until February 2021, at which time it was to be closed.
80. Significantly, Defendant ZBA and Applicants also expressly agreed to toll the
applicable timeframes relative to the Fire Department Application, including the FCC Shot Clock
timeframe, subject to submission of a letter from Applicants memorializing the tolling agreement,
and further agreeing to provide a minimum of fourteen (14) days’ notice in the event Applicants
intend to re-activate the Fire Department Application.
81. By letter dated January 28, 2021, Plaintiffs agreed to table the Fire Department
Application and toll the relevant timeframes within which Defendant ZBA was required to act,
including the FCC Shot Clock and the sixty-two (62) day timeframe within which Defendant ZBA
is required to render a decision under the Town Code as set forth in Section 245-37(A)(2) of the
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Town Code. A true and correct copy of the Plaintiffs’ January 28, 2021 letter is annexed hereto as
Exhibit G.
(iv) Applicants Notice to Reactivate the Fire Department Application
82. On November 22, 2021, while the review of the Industrial Drive Application was
still pending, Applicants submitted a letter to the ZBA requesting the ZBA to re-activate the Fire
Department Application. A true and correct copy of Young/Sommer LLC’s letter requesting to re-
activate the Fire Department Application is annexed hereto and made a part here of as Exhibit H.
83. The fourteen (14) day advance notice required by Defendant ZBA expired on
December 6, 2021, at which time the Fire Department Application was effectively reactivated.
84. In addition to reactivating the Fire Department Application, the November 22, 2021
letter also confirmed that Applicants agreed to extend the FCC Shot Clock through and including
January 6, 2022. At no point did Defendant ZBA object to such extension.
85. Defendant ZBA failed to act in a meaningful way on Applicants’ notice to
reactivate the Fire Department Application and extension of the Shot Clock timeframe.
(v) Defendant ZBA’s Failure to Render a Decision on the Fire Department Application on or
Before January 6, 2022 Violated the TCA and FCC Shot Clock
86. During its January 6, 2022 meeting, and after Applicants’ counsel reminded
Defendant ZBA that it needed to address the reactivated Fire Department Application, Defendant
ZBA indicated that it needed to schedule a public hearing on said application.
87. In response to Defendant ZBA’s suggestion to open a public hearing on the Fire
Department Application, counsel for Applicants reminded Defendant ZBA that it had previously
held at least four (4) public hearings on said application.
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88. Defendant ZBA disagreed and argued, incorrectly, that the prior public hearings
involving the Fire Department Application were limited only to the request for governmental
immunity. The record demonstrates that this is factually incorrect.
89. A true and correct copy of the public hearing notice for the Fire Department
Application is annexed hereto as Exhibit I. This hearing notice states that the purpose of the
hearing was not only to hear comments on the request for governmental immunity but also “for
the purpose of discussing and getting public input on an application…to install and operate a new
communications facility….” Id.
90. The meeting minutes for the January 7, 2021 annexed in Exhibit H also confirm
that, as of that date, the public hearing for the Fire Department Application was still open and
needed to be closed.
91. Defendant ZBA’s Denial (defined below) also confirms that “[t]he ZBA held
several meetings and public hearings in an effort to resolve issues regarding siting, radio frequency
(“RF”) engineering, safety, and alternatives” regarding the Fire Department Application. See, ZBA
Denial, ¶ 6 in Exhibit T.
92. Despite evidence in the record to the contrary, Defendant ZBA moved to open a
public hearing on February 7, 2022, despite the extensive hearings previously held.
93. Defendant ZBA’s failure to acknowledge that it had previously conducted a
minimum of four (4) prior public hearings on the Fire Department Application and its decision to
schedule a new public hearing after the expiration of the Shot Clock is a clear violation of the
FCC’s Shot Clock requirements. Such decision also serves to further frustrate the legal mandate
to render decisions in a reasonable period of time as required by the TCA and FCC 2009 Order.
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94. To allow Defendant ZBA to open a new hearing process at this late stage after it
has held extension hearings would only serve to further delay the completion of the review of Fire
Department Application well past the time within which a decision is required to be rendered by
the TCA and FCC 2009 Order.
B. The 17 Industrial Drive Property Alternative
95. In direct response to the Defendant ZBA’s Findings and Determinations,
Applicants’ RF Design Engineer determined that if a new tower structure had to be located on one
of the Industrial Drive properties, the height of such tower would be required to be taller than the
tower proposed for the Fire Department Property. Verizon Wireless’ RF Design Engineer
determined that the minimum height needed was 159’ (150’ for Verizon Wireless’ antennas, an
extra five (5) feet to accommodate space on the tower for local emergency agency antennae (rent
free) and an additional four feet (4’) for the required lightning rod).
96. A taller tower was required, inter alia, to account for the Industrial Drive Property
being approximately 1,200’ to the north of the Fire Department Property and the nature of the 2100
MHz frequency which does not travel as far as lower frequencies used in wireless communications.
The need for a taller tower is clearly demonstrated in the detailed RF propagation maps submitted
in support of the Industrial Drive Application.
97. Defendant ZBA previously advised that a taller tower at Industrial Drive would not
be objectionable.
98. At the October 20, 2020 ZBA meeting, then Chairwoman Jeanne Goldberg
acknowledged that relocating the facility to the OLI zoning district, even if it meant a much taller
tower was preferential. Ms. Goldberg specifically stated that the ZBA:
“really would appreciate some investigation of available sites on

Industrial Drive, which is within the [Office/Light] Industrial zone.
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Yes it would have to be a Type 5 tower, which is what it is going to

have to be at the fire house now. But it also could be higher.”’
99. To allow Defendant ZBA to analyze and compare an alternative facility at the
Industrial Drive Property, Applicants submitted an amended application for the Industrial Drive
Property. The ZBA did not accept the amended application and instead required a completely new
and separate Application for Area Variance. Even though existing law requires the ZBA to
consider all potential alternatives concurrently, not consecutively or separately, Defendant ZBA
required Applicants to submit a completely new Area Variance Application with supporting
materials to the ZBA for a facility proposed for 17 Industrial Drive.
100. Defendant ZBA’s demand for a separate application for a potential alternative
location, and resulting a new Shot Clock period is antithetical to the purpose of the TCA and 2009
FCC Order to limit delays and encourage the prompt deployment of wireless infrastructure.
101. On February 17, 2021, Applicants submitted a new and separate Application for
Area Variance to Defendant ZBA for the Industrial Drive Property as required by Defendant ZBA.
A true and correct copy of the Area Variance Application for the Industrial Drive Property is
annexed hereto as Exhibit J.
102. The proposed personal wireless service facility described in the Industrial Drive
Application includes the installation and operation of a new 155’ monopole tower (159’ with 4’
lightning rod) and related antennae, cables and equipment all located within a 2,500 square foot
fenced compound (collectively, the “Personal Wireless Service Facility” or “Facility”). Verizon
Wireless’ antennae are proposed to be located at an antenna centerline height of 146’, which
require a tower height of 150’.
103. Due to the deficient state of radio communications in the Mt. Marion area, the tower
is proposed to be designed to accommodate additional communications carriers (i.e., collocation),
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including space on the tower rent free to emergency agencies, such as police, fire and ambulance.
The ability to accommodate potential future antennas and equipment of local emergency agencies
(rent free) required the tower height to be raised by five feet (5’) to 155’.
104. The Industrial Drive Application was supplemented during Defendant ZBA’s
review. References to the Industrial Drive Application include the original application and
supporting materials and all supplemental submissions.
105. Additional information, including a Visual Resource Evaluation, was prepared and
submitted by Applicants, subsequent to the March 15, 2021 submission. A true and correct copy
of the final Visual Resource Evaluation is annexed hereto as Exhibit K.
106. In addition to numerous meetings on the Industrial Drive Application during which
the application was reviewed, Defendant ZBA conducted public hearings on September 7, 2021,
October 4, 2021, November 4, 2021 and December 14, 2021 on said application.
C. Verizon Wireless’ Variance and Special Use Permit and Site Plan Review Application for
17 Industrial Drive
107. Applicants submitted the required Special Use Permit and Site Plan Review
application (“Special Use Permit Application”) to the Saugerties Planning Board on May 21, 2021,
which was received on May 22, 2021. A true and correct copy of the Special Use Permit
Application is annexed hereto as Exhibit L annexed hereto and made part hereof.
108. The Special Use Permit Application sought authorization from the Planning Board
to place and construct a Personal Wireless Service Facility at the Industrial Drive Property.
D. The Facility Serves a Public Need, Gap in Wireless Service and Capacity Relief
109. The FCC mandates at 47 CRF §§ 22.940 and 24.16 that each licensed wireless
carrier must provide “substantial service” in its licensed service areas or risk having its license
24
revoked. The FCC defines “substantial service” as service that is sound, favorable, and
substantially above a level of mediocre service.
110. Under New York precedent, Verizon Wireless is a public utility that must be
permitted to provide safe and effective service to its users.
111. To provide substantial, safe and effective service to its users, Verizon Wireless
must have sufficient coverage and network capacity. Coverage refers to the geographic area served
by a communications facility, whereas, capacity refers to the amount of network traffic a given
site can process before significant degradation occurs, such as the inability to access the network
(e.g., inability to make a call), dropped calls or poor calls, or data throughput performance while
connected to the network.
112. The applicable public necessity standard of review under current New York law
requires an applicant for a public utility to demonstrate: (i) the existence of significant gaps in
service; (ii) that the proposed facility will remedy such gaps; and (iii) that the facility represents a
minimum intrusion in the community.
113. To demonstrate need for the proposed facility in the Mt. Marion area, Verizon
Wireless’ RF Design Engineer prepared a comprehensive Engineering Necessity Case which was
included in Exhibit 5 of the Industrial Drive Application, a separate copy of which is annexed
hereto as Exhibit M.
114. The Industrial Drive Application conclusively demonstrates that Verizon Wireless
currently has significant gaps in service in the Mt. Marion area in the Town of Saugerties and is
experiencing substantial capacity issues that require network densification. See, Id., Engineering
Necessity Case, p. 22.
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115. Defendant ZBA’s wireless consultant performed an independent review of all
technical materials submitted in support of the Industrial Drive Application, including the
Engineering Necessity Case, and various supplements thereto, and concluded, on several
occasions, that the proposed Facility is unquestionably necessary to remedy the identified gaps in
service and capacity issues.
116. The record of proceedings is devoid of any expert opinions that dispute the
demonstrated need for the Facility, whether it be located at the Fire Department Property or the
Industrial Drive Property.
117. The record also establishes that a new facility at the Industrial Drive Property will
resolve the existing gaps in service and network capacity issues.
E. The Proposed Facility Represents Only a Minimal Intrusion to the Community
118. Defendant Planning Board, in or about June 2021, resolved to act as lead agency
for the proposed facility under the New York State Environmental Quality Review Act
(“SEQRA”). Defendant ZBA, among other agencies, was identified as an involved agency, as that
term is defined by SEQRA. Defendant Planning Board issued a State Environmental Quality
Review Act (SEQR) Lead Agency Coordination dated June 30, 2021.
119. On or about September 27, 2021, Defendant Planning Board determined that the
proposed Facility would not result in any significant adverse environmental impacts and issued a
SEQRA Negative Declaration.
120. On or about October 19, 2021, the Planning Board, intending to memorialize its
SEQRA Negative Declaration for the Industrial Drive Application, duly adopted a written SEQRA
Negative Declaration and Notice of Determination of Non-Significance. (“SEQRA Negative
26
Declaration”) A true and correct copy of the Planning Board’s SEQRA Negative Declaration is
annexed hereto as Exhibit N.
121. The SEQRA Negative Declaration, inter alia, concludes that the proposed Facility
will not result in any significant adverse negative impacts with respect to aesthetic resources. See,
Exhibit N, pp. 2-3.
122. The Planning Board made the following specific findings with respect to potential
aesthetic impacts:
“i. Visual analysis consistent with the NYSDEC Visual Policy was
provided in May and August of 2021, which demonstrates that no
impacts will be incurred to aesthetic resources such as officially
designated landmarks, scenic views or other designated aesthetic
resources.
ii. Of the forty-five (45) locations evaluated in the Visual Analysis,

only two (2) were determined to be aesthetically sensitive receptors.
Those locations are: (i) the Ulster Landing County Park; and (ii)
High Woods Multiple Use Area. The VRE confirms that the
proposed tower will not be visible from either of these two locations.
iii. Twelve (12) of the remaining properties were classified as potential

historical or culturally important properties. Of these twelve
properties, the tower would be partially visible from two properties.
Both of those properties are privately owned and not open to the
public. Views of the tower from these two locations will be partially
screened due to existing vegetation.
iv. The Visual Analysis has demonstrated that no or small impacts may
occur from publicly accessible vantage points along roadways
during routine travel by residents.”
Exhibit N, § 5(i)(i)-(iv).
123. The SEQRA Negative Declaration’s finding that the Industrial Drive Application
would not result in any adverse impacts was based on the comprehensive Visual Resource
Evaluation (“VRE”) prepared by Tectonic Engineering and which evaluated the potential visual
27
impacts associated with approximately forty-five (45) locations, many of which were chosen
directly by Defendant ZBA.
124. The VRE includes both before and after photographs and simulations that depict
how the tower will appear from those locations from which the tower will be visible.
125. Significantly, the VRE involved an industry standard balloon test and methodology
specifically endorsed by the New York State Department of Environmental Conservation
(“NYSDEC”) relative to assessing potential visual impacts.
126. Defendant ZBA’s planner reviewed the VRE and concurred with its finding that
the tower proposed for the Industrial Drive Property would not result in any significant visual
impacts.
127. To the extent Defendant ZBA purports to support its denial of the Industrial Drive
Application based on the size of setback variances required, such argument is not only lacking in
merit but also ignores substantial evidence in the record. For example, the record, including expert
testimony from Applicants’ New York State licensed professional engineer, conclusively
establishes that the tower facility will not adversely impact any structures on adjoining property.
Defendant ZBA’s failure to acknowledge such evidence is fatal to its purported findings.
128. The professionally prepared VRE, the comprehensive SEQRA Negative
Declaration and the expert opinion of a qualified structural engineer that the proposed tower will
be designed not to impact any adjoining properties or structures, which was ignored by Defendant
ZBA, proves that the facility represents only a minimal intrusion to the community.
F. No Impact on Property Values
129. Applicants included a 2020 appraisal report in the Area Variance Application and
Special Use Permit Application. The appraisal report was prepared using actual residential
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property sales data that concluded that the construction of telecommunications towers at other
locations did not have negative effects on surrounding property values.
130. This appraisal study also confirmed that other reports prepared by professionally
designated appraisers that reviewed prices of residential properties within view of communications
towers to prices of residential properties that do not have views of communications towers do not
reflect an overall negative impact based on views and proximity to communications tower
facilities.
131. No expert or qualified opinions using actual data refuting the conclusions of the
appraisal report were offered by the public or otherwise.
G. Facility Has Been Engineered to Not Adversely Impact Neighboring Properties
132. Because the Industrial Drive Facility requires certain variances from the required
tower setback of one and one-half times the tower height, the Applicants provided an expert
opinion from a New York State licensed Professional Engineer to confirm that the tower would be
engineered and designed such that it would not impact adjoining properties or structures.
133. Defendant ZBA ignored this critical evidence in favor of its unsupported and
conclusory opinions about tower safety.
134. The Applicant’s structural engineer, Michael F. Plahovinsak issued a letter dated
October 6, 2021 which expressly advised Defendant ZBA that: “[a] properly designed, constructed
and maintained pole has never collapsed; monopoles are safe structures with a long history of
reliable operation.” A true and complete copy of Mr. Plahovinsak’s October 6, 2021 letter is
annexed hereto as Exhibit O.
135. Engineer Plahovinsak, also confirmed that the proposed tower would be designed
such that the lower portion of the structure will be a minimum of ten percent (10%) additional
29
capacity compared to the upper portion of the tower, thereby creating what is commonly referred
to as a “break point.” This design, according to engineer Plahovinsak, means that “in the event of
a failure due to extreme wind and comparable appurtenance antenna load (winds in excess of the
design wind level) …[ a tower designed to his specifications] would yield/buckle at the 90’
elevation. The yielded section would result in a maximum 60’ fall radius but would most likely
remain connected and hang from the standing section.” Id. (Emphasis provided).
136. The expert opinion of NYS Licensed Engineer Michael Plahovinsak confirms that
the tower will be designed such that in the highly unlikely event of a failure due to extreme wind,
the tower will be engineered to not adversely impact neighboring properties. The record is devoid
of any expert or reliable evidence to the contrary.
137. Defendant ZBA’s independent RF consultant, Ronald E. Graiff, P.E., also
addressed the potential safety issues by commenting that it was his opinion that the current tower
setback of one and one-half times the tower height was excessive. Mr. Graiff previously testified
that a more appropriate setback was 100% of the tower height, not 150%.
138. During the September 7, 2021 ZBA meeting, Applicants, in response to a specific
request of Defendant ZBA, offered to reduce the tower height to 150’ (from 155’) to ensure that
the proposed setbacks would not exceed 100% of the tower height. Such proposal was
memorialized in a letter from Applicants’ attorney dated September 22, 2021, a true and correct
copy of which is annexed hereto as Exhibit P.
H. Alternatives
139. There are approximately twenty-seven properties located within the defined search
area, all of which are zoned Residential Hamlet and/or Moderate Density Residential. Neither of
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these districts permit the installation and operation of wireless communications facilities. For this
reason, any site located in any portion of the search area would require a use variance.
140. Applicants carefully reviewed all twenty-seven (27) properties to determine which,
if any, would be appropriate for a new communications facility. See, Exhibit E.
141. Originally, the Fire Department Property was identified as the preferred candidate
within the search area since it was observed to have an existing, although unusable for Applicants’
purposes, tower, approximately eighty (80) feet tall on the property which was being used by the
Mt. Marion Fire Department. No other properties within the search area otherwise had an existing
tower. The other properties in the search area were also determined to be less preferable than the
Fire Department Property since many of the parcels had existing residences and did not have an
existing communication tower.
142. When Verizon Wireless initially identified the Fire Department Property, it thought
it could collocate on the existing tower, but upon further investigation, it was determined that
collocation was not feasible due to the tower not being tall enough for Verizon Wireless’ needs.
The tower was also observed to lack the structural ability to accommodate a significant (50%)
height increase that would be necessary for Verizon Wireless.
143. Verizon Wireless, therefore, proposed to install a new tower at the Fire Department
Property. At the time, Verizon Wireless was of the opinion that the installation of a new tower on
such property would constitute a Type 4 facility as defined under the Town Code. A Type 4 facility
is a new tower proposed to be located on a property with an existing tower that was previously
approved under the Saugerties Code.
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144. Defendant ZBA indicated that because it believed that the Mt. Marion Fire
Department tower did not receive local zoning approval, it did not meet the definition of a Type 4
facility. Instead, the ZBA claimed the proposed tower was a Type 5 facility.
145. Although definitive proof was never provided to confirm whether Defendant ZBA
was correct, Applicants maintained throughout the review process that a proposed new tower
facility at the Fire Department Property was consistent with the spirit and intent of a Type 4 facility
(i.e., clustering of towers on one parcel) regardless of whether or not it was ever formally approved
under the Town Code.
146. After careful review of all the properties within the search area, and upon
confirmation that there were no tall structures, buildings or towers capable of serving Verizon
Wireless’ needs, the Applicants proposed to install and operate a new 120’ tall monopole tower on
the Fire Department Property, since it was clearly the least intrusive alternative in the search area.
147. Applicants also confirmed that none of the other properties within the search area
were appropriate for a new tower, a fact not disputed by the Town.
148. The SEQRA Negative Declaration also found that:
“[t]he applicant has demonstrated that no colocation options are available

in or near the search area, and that the proposed site was the best option for
the applicant given the engineering and search area criteria (Comprehensive
Site Selection Analysis prepared by Sara Colman).”
Exhibit N, ¶ 5(q)(ii).
149. After months of review, the ZBA requested Applicants to investigate the possibility
of developing a site in the OLI zoning district along Industrial Drive.
150. The Saugerties Code specifically permits the installation and operation of wireless
communications facilities in the OLI, which, if acceptable, would obviate the need for a use
variance at the Fire Department Property or any property in the search area.
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151. Verizon Wireless’ RF Design Engineer initially objected to Defendant ZBA’s
request to relocate the site to Industrial Drive, explaining that such location is outside of the search
area and would likely require a taller tower to overcome certain technical and physical obstacles
and his opinion that the Fire Department Property was more appropriate for several reasons.
152. At the time, Defendant ZBA acknowledged that relocating the facility to Industrial
Drive may require a taller tower. Notwithstanding this, Defendant ZBA encouraged Plaintiffs to
move the site from the Fire Department Property to Industrial Drive and clearly established that
the ZBA was willing to accept the need for a taller tower.
153. There are a total of six (6) properties along Industrial Drive.
154. Although Industrial Drive is located outside of the established search area,
Applicants considered all six (6) properties as potential alternatives. At the outset, three (3) of the
owners had expressed potential interest in leasing space to Tarpon Towers (i.e., the owners of 17,
37 and 54 Industrial Drive). Shortly after the owner of 54 Industrial Drive expressed tentative
interest, she notified Tarpon Towers that she was no longer interested. This left only two properties
that were potentially available.
155. Of the two properties that were potentially available, Tarpon Towers and Verizon
Wireless preferred the 17 Industrial Drive property. This property has a building located to the
south portion of the property, leaving the center portion generally open for the new facility. This
is a significant benefit compared to the 37 Industrial Drive property, which has a building located
in the center portion of the property, resulting in significantly larger setback variances required
compared to the 17 Industrial Drive property.
156. Applicants conclusively established that a facility located at the Industrial Drive
Property would require smaller variances than those required for 37 Industrial Drive. The
33
differences are summarized in the Young/Sommer LLC letter dated December 10, 2021, a true
and correct copy of which is annexed hereto as Exhibit Q.
157. Another key factor in choosing the Industrial Drive Property as the primary
alternative candidate was the fact that the owner of 37 Industrial Drive had not agreed to lease the
property to Tarpon Towers, whereas the owner of the Industrial Drive Property had agreed to the
terms of a lease with Tarpon Towers.
158. During the public hearings for the Industrial Drive Property, the Applicants were
requested to, and did, review additional locations suggested by the general public, including a
property located approximately 1.3 miles north of the Industrial Drive Property which contains an
existing water tank structure, and an existing quarry located to the northeast of the Industrial Drive
Property. Verizon Wireless’ RF Design Engineer confirmed that both of these locations are
significantly outside the Verizon Wireless search area.
159. The owner of the quarry property confirmed that it was not interested in leasing
property to Tarpon Towers. Attached hereto in Exhibit R is a true and complete copy of an email
dated December 3, 2021 from the owner confirming a lack of interest in leasing to Tarpon Towers.
160. Verizon Wireless’ RF Design Engineer examined the feasibility of utilizing the
water tank as a potential alternative. By letter dated October 20, 2021, Mr. Michael Crosby
confirmed that “[t]he water tank is not a realistic alternative and is so far away from where it is
needed that it could be classified as a ‘full site away,’…. The water tank does not provide the
coverage and capacity needed and is therefore RF rejected….” A true and complete copy of Mr.
Crosby’s October 20, 2021 letter is annexed hereto as Exhibit S.
161. In response to a comment from a neighboring property owner, Applicants also
considered the Mt. Marion Park property, a town designated parkland property as a potential
34
alternative. Applicants identified several concerns relative to the Mt. Marion Park property,
including the fact that as established parkland property, such property is not available for
development without completing the State alienation and/or Federal conversion processes. The
Mt. Marion Park property is also not zoned properly to accommodate the proposed facility and is
located in close proximity to a large residential development. For these and other reasons, the
Applicants confirmed that the Mt. Marion Park property is not a viable alternative. At no point did
the ZBA disagree.
162. Other alternatives were discussed during the lengthy hearing process and
determined not to be viable alternatives by Verizon Wireless’ RF Design Engineer.
163. Applicants have examined each and every potential alternative location raised
during the review of the Industrial Drive Application.
VII. THE TOWN’S DENIAL
164. Despite the issuance of a comprehensive SEQRA Negative Declaration and the
overwhelming and uncontroverted evidence in the record compelling approval under Federal and
State Law, on January 6, 2022 Defendant ZBA formally adopted a Resolution to deny Applicants’
Industrial Drive Application (“ZBA Denial”), a true and correct copy of which is attached hereto
as Exhibit T.
165. Prior to Defendant ZBA’s vote, a predetermined Resolution denying the Industrial
Drive Application was prepared and presented to Defendant ZBA prior to the scheduled ZBA
meeting, presumably at the request of ZBA Chair Patti Kelly. Defendant ZBA did not discuss in
an open and public meeting its decision to direct its counsel to prepare a draft resolution denying
the Industrial Drive Application. Upon information and belief, all such discussions were held
privately and outside the purview of the public.
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166. Even though counsel for Applicants requested to receive advance copies of any and
all draft resolutions, decisions and other documents to be considered by Defendant ZBA at the
January 6, 2022 meeting, Defendant ZBA failed to provide a draft of the ZBA Denial to Applicants
in advance of the meeting. Such failure represents a violation of the Open Meetings Law.
A. The ZBA Denial Correctly Found That the Proposed Facility is Necessary to Resolve
Significant Service Gaps and Network Capacity Issues
167. Defendant ZBA’s Denial affirmatively found that Applicants have conclusively
demonstrated the existence of significant coverage gaps and substantial network capacity issues in
the Mt. Marion area that need to be remedied and that the Facility will in fact remedy such gaps in
service and capacity issues. Such conclusions were based on Defendant ZBA’s RF consultant’s
opinions and the detailed RF analyses submitted by Applicants’ RF Engineer.
168. The Saugerties Police Department also submitted a letter in support of the need for
a new facility in the Mt. Marion portion of the Town, in which the Chief of Police stated that if the
Applicants’ proposal for a new facility “should not meet with a favorable outcome, it will only
further exasperate an already critical situation, further jeopardizing the safety of our first
responders, community and children of the Mt. Marion School district.” A true and correct copy
of Joseph A. Sinagra’s, Saugerties Chief of Police, letter dated September 11, 2020 is annexed
hereto as Exhibit U. In his September 11, 2020 letter, Chief Sinagra explained that the Saugerties
Police Department currently lacks “the infrastructure that provides cell phone, radio and MDT
(Mobile Data Terminals) to communicate with officers and other emergency personnel when
answering calls for service in the area of Mt. Marion Park (Mt. Marion Elementary School) the
King’s Highway corridor and most parts of Glasco Turnpike southwest of King’s Highway.” Id.
The tower proposed for the Industrial Drive Property, which would be made available to local
36
emergency service agencies rent free, would resolve the infrastructure deficiency referenced by
Chief Sinagra.
169. Notwithstanding the overwhelming evidence and findings that a new facility is
clearly needed in the Mt. Marion area, Defendant ZBA denied the Industrial Drive Application
based on the unfounded claims that the Facility represents more than a minimal intrusion to the
community.
170. In making such findings, Defendant ZBA ignored the substantial evidence in the
record which demonstrates that the Facility not only represents a minimal intrusion to the
community, but is also the least intrusive alternative available to resolve the irrefutable need for
the Facility.
B. Defendant ZBA’s Claim that Significant Variances Equate to Significant Intrusion to the
Community is Conclusory and Ignores Critical Expert Evidence
171. Defendant ZBA found that Applicants did not mitigate unidentified “dangers” to
nearby properties or structures by taking such actions as lowering the tower height; attempting to
develop the facility in the existing federal wetlands located on the Industrial Drive Property or
locating the Facility on another parcel of land to achieve greater setbacks.
172. In making such finding, Defendant ZBA ignored substantial evidence to the
contrary in the record, including the only qualified testimony relating to tower design and safety.
173. Defendant ZBA’s finding that Applicants did not propose to lower the tower height
is materially false and misleading. See, Exhibit V. Defendant ZBA also conveniently ignores the
fact that the proposed 155’ tower was already a compromise from the ideal tower height of 180’
determined to be necessary by Verizon Wireless’ RF Design Engineer.
174. The SEQRA Negative Declaration also expressly found that the Facility, inter alia,
would not result in significant adverse impacts to: (i) aesthetic resources; (ii) community character;
37
(iii) public health; or (iv) community plans. In this regard, the SEQRA Negative Declaration
confirms that the tower is consistent with the surrounding community.
175. Defendant ZBA is bound by the SEQRA Negative Declaration.
176. Significantly, other than a brief obligatory reference to the SEQRA Negative
Declaration, Defendant ZBA fails to reconcile its findings in the ZBA Denial with the contrary
findings in the SEQRA Negative Declaration and the other expert evidence in the record.
177. The SEQRA Negative Declaration findings concerning the lack of aesthetic
impacts were based on a comprehensive Visual Resource Evaluation (“VRE”) prepared by
Applicants’ visual consultant pursuant to detailed guidelines established by the New York State
Department of Environmental Conservation entitled, “Assessing and Mitigating Visual and
Aesthetic Impacts,” dated December 13, 2019 (“NYSDEC Visual Policy”).
178. The VRE examined approximately forty-five (45) locations surrounding the
proposed Facility to access the potential visual impacts. Many of the locations examined were
specifically identified by Defendant ZBA. This comprehensive analysis conclusively
demonstrated that the Facility would not result in any adverse aesthetic impacts.
179. The ZBA’s Planner, Daniel Shuster, confirmed the results of the VRE, advising the
ZBA that “there were few, if any, significant adverse effects on the designated aesthetic resources
in the project area, based on the policy guidelines established by NYS DEC.” See, Exhibit T, ¶
31.
180. Defendant ZBA’s finding of significance is also directly contrary to the findings in
the SEQRA Negative Declaration that affirmatively state that the Facility is consistent with the
surrounding community which is characterized as an industrial corridor providing access to
38
industrial and light industrial business uses such as a technology park, a concrete plant, and
contractor’s yards. See, Exhibit N, ¶ 5(r)(1)
181. Instead of relying on the facts presented in the SEQRA Negative Declaration,
Defendant ZBA attempts to justify its finding of significance by making factually incorrect claims
that “[t]here are a significant number of residential homes in the area....” Exhibit T, ¶ 69. This
gross exaggeration is an attempt by Defendant ZBA to distort the record in favor of its conclusory
and unsupported Denial. The SEQRA Negative Declaration confirms that there exists only a small
number of residences to the south of the Facility at the crossroads of Glasco Turnpike and Kings
Highway. Exhibit N, ¶ 5(r)(1). This finding is in stark contrast to Defendant ZBA’s claim of a
significant number of residences.
182. Additionally, Sheet M-1 of the site plans prepared by Tectonic Engineering and
included in Exhibit J provides an aerial view of the Industrial Drive Property and surrounding
area, which demonstrates that the number of residences in the general vicinity of the Industrial
Drive Property is not significant in number.
183. With respect to potential impacts on community plans, the SEQRA Negative
Declaration confirms that the Facility is permitted in the OLI zoning district and that collocation
opportunities do not exist in or n ear the search area and that the Industrial Drive Property
represents the best option for a new facility based on the relevant engineering and comprehensive
search area criteria. Exhibit N, ¶ 5(q).
184. Defendant ZBA’s statement that the Facility will be a public safety concern and
danger to neighboring structures and properties is a clear fabrication that is not based on any
evidence.
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185. The record conclusively demonstrates that there are no structures on adjoining
properties that could be physically impacted by the tower facility. Sheet M-1 of the site plans
graphically illustrates that there do not exist any neighboring structures on adjoining properties
that are within the town designated fall zone of 150% of the tower height. In fact, the closest
residential structure to the proposed tower is more than 300’ to the south. So, contrary to Defendant
ZBA’s findings, even if the tower structure were to fail, it would not physically impact any
structures on neighboring properties.
186. Moreover, Defendant ZBA’s findings concerning safety fail to consider the only
expert report submitted on the issue of tower design and safety in the record. That analysis was
submitted by Michael F. Plahovinsak, a New York State licensed Professional Engineer, who
confirmed that the proposed tower will be designed to the current load requirements specific to
Ulster County pursuant to the Telecommunications Industry Association (“TIA”) 222-H,
“Structural Standards for Steel Antenna Towers and Antenna Supporting Structures.” See, Exhibit
O, supra.
187. Engineer Plahovinsak’s letter also concluded that “a properly designed, constructed
and maintained pole has never collapsed; monopoles are safe structures with a long history of
reliable operation.” Id.
188. Engineer Plahovinsak also advised that as an extra measure of precaution, the tower
would be designed to incorporate a “break point” to limit the fall zone radius to sixty (60) feet in
the inadvertent failure, thus ensuring that no neighboring properties or structures would be
adversely impacted if such a failure were to occur. Id.
189. The ZBA Denial fails to even reference this critical evidence submitted by engineer
Plahovinsak.
40
190. Concerning the issue of tower safety, during its September 7, 2021 meeting,
Defendant ZBA asked whether Plaintiffs could modify the project to achieve a ratio of the tower
height to setback equal to one-to-one.
191. Applicants agreed to lower the tower height of the proposed tower from 155’ to
150’ as requested by Defendant ZBA to comply with Defendant ZBA’s request. See, Exhibit V.
192. Surprisingly, the ZBA Denial fails to even acknowledge the proposal to lower the
tower height, which it requested.
C. Defendant ZBA’s Finding that Applicants did not Provide a Minimum Height Justification
is Belied by the Record
193. The ZBA Denial erroneously states that Applicants “failed to answer this
[minimum height justification] or to address this issue.” Exhibit T, ¶81. To support this unfounded
conclusion, Defendant ZBA misleadingly points to certain statements made by its RF consultant,
Ronald E. Graiff at the September 7, 2021 ZBA meeting, during which Mr. Graiff purportedly
raised “legitimate concerns” about the minimum height justification.
194. Defendant ZBA’s claims, however, are belied by the: (i) detailed supplemental RF
Analysis prepared by Verizon Wireless’ RF Design Engineer which specifically compared the
tower height proposed in the Fire Department Application to various tower heights for the facility;
and (ii) Height Above Average Tree (“HAAT”) analysis that was specifically recommended by
Mr. Graiff during the September 7, 2021 ZBA meeting.
195. These analyses refute Defendant ZBA’s unfounded claim and demonstrate that
Applicants not only addressed the minimum height issue, but also established that the height of
the proposed tower for the Industrial Drive Property is the minimum necessary to resolve existing
gaps in service and network capacity issues. Moreover, subsequent to Defendant ZBA’s September
7, 2021 meeting, at which its RF consultant raised “legitimate concerns” about the minimum
41
height, and after reviewing the HAAT analysis specifically requested, Defendant ZBA’s RF
consultant, Mr. Ronald Graiff, confirmed that Verizon Wireless’ RF Design Engineer “does
present a reasonable justification for his need for a site 30 feet higher at Industrial Road versus the
Fire Department.” A copy of Mr. Graiff’s September 30, 2021 letter is annexed hereto and made
a part here of as Exhibit W.
196. To the extent that Defendant ZBA’s consultant raised “legitimate concerns” during
the September 7, 2021 meeting, those concerns were resolved in Applicants’ favor by Mr. Graiff
in his subsequent September 30, 2021 letter. Defendant ZBA’s refusal to recognize Mr. Graiff’s
September 30, 2021 letter is misleading, arbitrary and capricious and lacks transparency.
D. Defendant ZBA’s Claim That Applicants Did Not Consider Alternatives Is False.
197. The third (and final) reason cited for Defendant ZBA’s denial of the Variance
Application is the allegation that Applicants did not consider alternatives outside of the Industrial
Drive location.
198. As discussed above, Applicants have considered over thirty (30) alternative
locations in their attempt to provide a new site in the Mt. Marion area. In fact, the proposed Facility
is an alternative to the facility originally proposed for the Fire Department Property.
199. Details concerning the various alternatives analyzed are set forth above in Pars.
139-163.
200. Contrary to Defendant ZBA’s findings about the search area provided in the
Industrial Drive Application, Applicants, on numerous occasions, provided detailed explanations
justifying the search area for this site, including the fact that: (i) the search area requirement
contained in the Saugerties Zoning Code is an out dated requirement that originated in the 1990’s
when the wireless networks were using different technologies that are currently not in existence
42
today and as such are completely irrelevant; and (ii) relocating the facility to other areas further
away from the existing search area would not be technologically feasible to resolve the wireless
service issues in the Mt. Marion area.
201. Defendant ZBA acknowledges that Plaintiffs justified the size of the search area
based on the capacity need and the fact that the mid-band frequencies (i.e., 2100 MHz) are
generally higher than other frequencies currently in use with wireless systems and that such
frequencies do not travel as far. Exhibit T, ¶ 95.
202. Without any reliable or expert evidence to the contrary, however, Defendant ZBA’s
claims are not supported by expert opinion.
203. Because the Industrial Drive Application was denied, Defendant Planning Board
also did not address Applicants’ application for a special use permit and site plan approval, nor did
the Defendant Building Department issue or deny a building permit – to the extent required.
IX. DEFENDANT’S PRIOR ATTEMPTS TO PROHIBIT WIRELESS SERVICES

AND DISCRIMINATORY CONDUCT
A. The Town’s History of Prohibiting Wireless Service in Town of Saugerties
204. Defendants have previously prohibited Verizon Wireless from providing its
essential wireless services to portions of the Town of Saugerties. Approximately six (6) years ago,
Verizon Wireless had applied for certain land use permits, approvals and variances for a new
facility to be constructed off of School House Road. That facility was separate and distinct from
the need for the facility proposed for the Mt. Marion area. At that time, John Greco, a local attorney
working for the Town of Saugerties with respect to the Town’s review of the Verizon Wireless
School House Road proposal, threatened Verizon Wireless that it needed “to find another town….
It will go a lot smoother.” A true and correct audio file of attorney John Greco’s comments are
43
provided in Exhibit X. The audio file in Exhibit W is a recording left on the School House Road
owner’s representative’s voicemail, which was provided to Applicants’ counsel.
205. Not surprisingly, shortly after the Town attorney’s threat to Verizon Wireless that
it needed “to find another town...” for its proposed site, the ZBA denied Verizon Wireless’
application for the School House Road proposal.
206. Significantly, John Greco, the Town attorney who previously threatened Verizon
Wireless “to find another town” has been a vocal opponent of the current proposal for the Industrial
Drive Property.
207. Mr. Greco’s strong opposition to the facility at the Industrial Drive Property is a
result of the fact that he purportedly co-owns an adjoining property to the south.
208. During the public hearing for the Industrial Drive Application, attorney Greco was
accused of making material misrepresentations concerning Tarpon Towers and alleged lease
negotiations for the water tank property referenced above. A true and correct copy of a November
19, 2021 letter prepared by counsel for Applicants and describing the alleged conduct of Mr. Greco
is annexed hereto as Exhibit Y.
209. In an attempt to make Plaintiff Tarpon Towers appear as if it was inappropriately
withholding information from Defendant ZBA about the water tank property being a potential
alternative, attorney Greco testified before Defendant ZBA that he had spoken to the owner of the
water tank property who had purportedly said that he had discussed a possible lease with Tarpon
Towers for the water tank property. Attorney Greco alleged further that Tarpon Towers cut off
lease discussions because, according to attorney Greco, Tarpon Towers was too cheap. Id.
210. Attorney Greco’s comments are patently false and misleading. During a Planning
Board meeting held on November 16, 2021, the owner of the water tank property, Arthur Greene,
44
was in attendance and confirmed that he had never discussed a possible lease with Tarpon Towers.
See, Planning Board draft meeting minutes for the November 16, 2021 meeting, a true and correct
copy of which are annexed hereto as Exhibit Z.
211. Attorney Greco’s false testimony to Defendant ZBA, combined with his prior
actions, highlights his willingness to go to extreme lengths to keep personal wireless service
facilities out of the Town of Saugerties.
B. Defendant ZBA unreasonably discriminated against Plaintiffs when it failed to apply

governmental immunity as it did with the Centerville Fire Department and SBA Towers
212. In addition to effectively prohibiting service to Plaintiffs, Defendant ZBA has also
unreasonably discriminated against Verizon Wireless and Tarpon Towers by refusing to afford the
same rights it previously afforded to a similar project at the Centerville Fire Company property
involving SBA Towers with respect to the issue of governmental immunity pursuant to § 245-38
of the Saugerties Code and The Matter of County of Monroe, 72 NY2d 338.
213. By Notice of Decision dated May 7, 2009, Defendant ZBA unanimously adopted a
motion to grant SBA Towers, a tower company, certain immunity from local zoning pursuant to
section 245-38 of the Saugerties Code and The Matter of County of Monroe case. A true and correct
copy of the ZBA’s May 7, 2009 Notice of Decision is annexed hereto as Exhibit AA.
214. Defendant ZBA, on the other hand, by its Findings and Determination dated
January 7, 2021 (Exhibit A) refused to afford the Applicants the same benefits as those provided
to SBA Towers, even though the two projects are strikingly similar in that both projects involve
local fire departments and the need for use variances, among other things. Such unreasonable and
disparate treatment is a violation of the TCA’s prohibition against unreasonable discrimination
among functionally equivalent providers.
45
X. DEFENDANTS’ REQUIRED ESCROW
215. Section 245-36 of the Town Code purports to require an applicant to submit an
initial escrow deposit to the Defendant ZBA to be used to reimburse costs incurred by consultants
retained by Defendant ZBA to assist with the review of an application for a personal wireless
service facility.
216. On or about February 23, 2021, Defendant ZBA Chair Jeanne Goldberg sent an
email to Applicants’ counsel requesting submission of $5,000.00 to be held in escrow pursuant to
Section 245-36(E)(3) of the Town Code. A true and correct copy of Chair Goldberg’s February
23, 2021 E-Mail is annexed hereto as Exhibit BB.
217. By letter dated February 24, 2021, counsel for the Applicants submitted the
$5,000.00 escrow payment while reserving the right to seek reimbursement from the ZBA of any
amounts deemed not reasonable or specifically authorized by law. A true and correct copy of
Verizon Wireless’ February 24, 2021 letter is annexed hereto as Exhibit CC.
218. Defendant original ZBA’s demand of $5,000.00 was not accompanied by any
documentation in support of the need for such payment, such as cost estimates for the anticipated
work to be performed by the ZBA’s consultants or scopes of work.
219. By email dated July 15, 2021, Defendant ZBA advised that the initial $5,000.00
escrow deposit had been depleted and requested an additional $5,000.00 escrow payment.
220. The request for additional escrow money was not accompanied by any supporting
documentation/audit indicating how the initial $5,000.00 was spent, nor did the request include an
estimate of potential future costs and expenses of its consultants for the remainder of the review.
221. By letter dated July 16, 2021, Applicants advised Defendant ZBA that it had still
not complied with Applicants’ request to receive not only cost estimates of all work to be
46
completed by Defendant ZBA’s consultants and professionals, but also detailed scopes of work of
each such consultant. A true and correct copy of Applicants’ July 16, 2021 letter is annexed hereto
as Exhibit DD.
222. Applicants’ original request for cost estimates and scopes of work was made on
February 24, 2021.
223. Defendant ZBA’s failure to provide the requested cost estimate is a violation of §
245-36(E)(3)(b) of the Town Code.
224. Upon information and belief, the open-ended escrow requirement contained in
Section 245-36(E)(3)(b) of the Town Code was not based on any reliable factual studies and
statistics.
225. The amount of escrow required by Defendant ZBA to review the Application, upon
information and belief, was also not based on any reliable statistics or studies to justify the
anticipated costs of reviewing the Application. Instead, Defendant ZBA simply expects Applicants
to pay all costs billed by Defendant ZBA’s consultants without any internal audits in place.
226. Defendants failed to utilize an independent administrative review or accounting to
review whether the invoices submitted by the Defendant ZBA’s consultants were reasonably
necessary.
XI. IRREPARABLE INJURY, PUBLIC INTEREST,

AND BALANCE OF HARDSHIPS
227. As a result of the Defendants’ actions, Verizon Wireless has been, and will continue
to be, damaged and irreparably harmed absent the relief requested.
228. The harm caused by Defendants’ unlawful actions includes, but is not limited to,
an effective prohibition on the Verizon Wireless’ ability to provide personal wireless service in
the Gap Area of the Town, and impairment of Verizon Wireless’: (a) ability to provide the public
47
in the Town with adequate and reliable service; (b) ability to compete with other providers of
telecommunication services; (c) full use of its existing licenses and business investments; and (d)
good will and business reputation.
229. The harm that Applicants have suffered and is suffering from the Defendants’
actions is not reasonably susceptible to accurate calculation and cannot be fully and adequately
addressed through an award of damages.
230. Moreover, the public interest in promoting competition in the telecommunications
arena and the prompt deployment of services — the express goals of the TCA — has been
irreparably harmed and will continue to be irreparably harmed by Defendants’ unlawful actions.
Verizon Wireless’s present and future customers, the public at large and emergency service
providers are significantly prejudiced by the Defendants’ unlawful conduct.
231. In addition, wireless telecommunications are an important component of public
safety and emergency response systems and provide a vital alternative to traditional land lines
during times of public crisis. By delaying and preventing Applicants from installing equipment
needed to provide adequate and substantial wireless service, the Defendants’ unlawful actions are
causing irreparable harm to the public interest in deprivation of reliable emergency
communications.
232. Verizon Wireless’ original Application for approval of a facility in the Mt. Marion
area to remedy significant gaps in service and capacity issues in the Mt. Marion area was pending
since May 2019, a period of approximately twenty (20) months, with an approximately ten (10)
months toll period. The Town’s failure to render a decision on the Fire Department Application
and Defendant ZBA’s unlawful denial of the Fire Department Application is causing irreparable
48
harm to Verizon Wireless and Tarpon Towers and the public interest. This effective prohibition
and failure to act violates the TCA.
233. In contrast to the immediate and irreparable injury being suffered by Verizon
Wireless, its customers, Tarpon Towers and the public interest, the Defendants will not suffer any
significant injury if the Court issues the requested injunction. Applicants have met all of the
requirements for the land use approvals it seeks under controlling State and Federal law, including
the applicable public necessity standard.
XII. ALLEGATIONS SUPPORTING DECLARATORY RELIEF
234. At present, an actual controversy has arisen and now exists between the parties
regarding their respective legal rights and duties. Applicants contend that the Defendants’ actions
are in violation of the TCA and New York State law, and that Applicants are entitled to all of the
approvals necessary to proceed with the Facility.
235. Verizon Wireless, Tarpon Towers, the public and various emergency personnel
have been and will continue to be adversely affected by the Defendants’ unlawful acts and any
further delay in approval and construction of the project.
236. Accordingly, declaratory relief is appropriate and necessary to adjudicate the extent
of Applicants’ rights and Defendants’ duties and authority.
COUNT I
UNLAWFUL PROHIBITION ON THE PROVISION OF PERSONAL WIRELESS

SERVICES IN VIOLATION OF THE TCA, 47 U.S.C. §332(c)(7)(B)(i)(II)
237. Plaintiffs repeat and reallege each and every allegation above with the same force
and effect as if set forth in full herein.
238. The TCA provides, in relevant part, that “[t]he regulation of the placement,
construction, and modification of personal wireless service facilities by any State or local
49
government or instrumentality thereof…shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.” 47 USC § 332(c)(7)(B)(i)(II).
239. The proposed Fire Department Application and Industrial Drive Application both
involve “personal wireless service facilit[ies],” which provide “personal wireless services” within
the meaning of the TCA.
240. A prohibition on the provision of personal wireless services occurs within the
meaning of the TCA when a carrier is denied the right to install a personal wireless service facility
even though it has demonstrated that there is a significant gap in a wireless carrier’s service and
the proposed facility is the least intrusive means to fill that gap. Gaps in service are just one
indicator of an effective prohibition of service in violation of federal law. See, In the Matter of
Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33
FCCR 9088, 9104 (2018).
241. Defendant ZBA correctly found that Verizon Wireless has a significant gap in
service in the Mt. Marion area of the Town of Saugerties.
242. The record also demonstrates that Verizon Wireless’ local network is also
experiencing substantial capacity issues in the Mt. Marion area of the Town that require a remedy
(i.e. network densification).
243. The Town Code expressly authorizes the installation and operation of
communications facilities in the OLI zoning district, in which the Industrial Drive Property is
located.
244. The record conclusively establishes that the Industrial Drive Facility cannot be
developed in the search area or any available properties along Industrial Drive without the need
for area variances.
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245. A facility at the Fire Department requires a use variance, area variances and a site
plan approval.
246. A facility at the Industrial Drive Property does not require a use variance from
Defendant ZBA.
247. The comprehensive visual analysis demonstrates that the Industrial Drive Facility
will not result in any significant aesthetic impacts.
248. The SEQRA Negative Declaration confirms that the proposed Industrial Drive
Facility will not result in any significant adverse impacts.
249. The Defendants’ unsupported and legally unsustainable denial of Plaintiffs’
Industrial Drive Application has had and will have the continued effect of prohibiting Verizon
Wireless from providing wireless services pursuant to its FCC license in violation of 47 USC §
332(c)(7)(B)(i)(II).
250. Defendant ZBA’s delay and failure to render a decision on the Fire Department
Application within the applicable timeframe manded by the FCC Shot Clock represents a separate
and independent claim of effective prohibition of wireless services to an area confirmed to need
such services to reduce significant gaps in service and network capacity issues.
251. Applicants have suffered and will suffer irreparable injury as a result of
Defendants’ violation of the TCA.
252. Applicants’ Fire Department and Industrial Drive Applications fulfill all of the
criteria and requirements for approval under the Town’s Code and New York State law.
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COUNT II
THE TOWN’S DENIAL OF THE APPLICATION WITHOUT SUBSTANTIAL

EVIDENCE TO SUPPORT ITS DECISION VIOLATES 47 USC § 332(c)(7)(B)(iii)
254. The Industrial Drive Facility is a “personal wireless service facility” as defined in
the TCA.
255. Defendant ZBA voted to deny Plaintiffs’ Industrial Drive Application for certain
area variances on January 6, 2022.
256. Defendant ZBA’s Denial violates Section 332(c)(7)(B)(iii) of the TCA because its
denial of Plaintiffs’ Industrial Drive Application is not based on substantial evidence and is, in
fact, contrary to the substantial evidence in the record, including the SEQRA Negative Declaration
and the expert opinions of the ZBA’s independent RF Engineer.
257. To support the ZBA Denial, Defendant ZBA relied upon outdated opinions of its
expert and intentionally ignored the fact that such opinions had been subsequently revised to
confirm that Verizon Wireless had established a minimum tower height, and in doing so ignored
the substantial evidence in support of the Industrial Drive Application.
258. Defendant ZBA’s findings concerning the tower safety and design for the Industrial
Drive Facility are conclusory in nature and not supported by the record evidence.
259. The ZBA Denial completely ignores the only expert opinion in the record regarding
tower safety and relies, instead, on unsupported, conclusory statements and conjecture.
260. Applicants have suffered and continue to suffer irreparable injury as a result of
Defendants’ violation of the TCA.
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COUNT III
UNREASONABLE DELAY AND FAILURE TO ACT ON THE VERIZON WIRELESS

APPLICATION IS A VIOLATION OF 47 U.S.C. §332(c)(7)(B), THE 2009 FCC ORDER,
THE 2014 FCC ORDER AND THE 2018 FCC ORDER
261. Plaintiff repeats and realleges each and every allegation above with the same force
262. 47 U.S.C. § 332(c)(7)(B)(ii) states, “[a] state or local government or instrumentality
thereof shall act on any request for authorization to place, construct, or modify personal wireless
service facilities within a reasonable period of time after the request is duly filed with such
government or instrumentality, taking into account the nature and scope of such request.”
263. The 2009 FCC Order declares that if a local government, such as Defendants here,
do not act upon an application within the shot clock period, “then a ‘failure to act’ has occurred”
and personal wireless service providers, like Verizon Wireless, may seek judicial redress pursuant
to 47 U.S.C. § 332(c)(7)(B)(v). See 2009 FCC Order at ¶ 49; 2014 FCC Order at ¶ 265.
264. The Fire Department Application constitutes a request for the placement of personal
wireless services facility and, as such, Verizon Wireless is entitled to the benefits and protections
of the TCA, the 2009 FCC Order, the 2014 FCC Order, and the 2018 FCC Order with respect to
such application.
265. The original Fire Department Application was submitted in May 2019.
266. The Fire Department Application has been pending for far more than the requisite
150 days identified in the 2009 FCC Order, and the Defendants have failed to render a decision on
it within the required mutually extended timeframe.
267. On January 7, 2021, Defendant ZBA and Applicants verbally agreed to toll all
applicable timeframes within which the ZBA was required to render a decision, including, but not
53
limited to, the applicable FCC Shot Clock subject to Applicants’ submission of a letter requesting
the tabling of the Fire Department Application and the tolling of the FCC Shot Clock. See, Exhibit
F.
268. By letter dated January 28, 2021, Applicants confirmed in writing that they agreed
to table the Fire Department Application and suspend, inter alia, the 150 FCC Shot Clock pursuant
to the ZBA’s request. See, Exhibit G.
269. In its January 28, 2021 letter, Applicants agreed to the ZBA’s request that should
the Applicants decide to subsequently rescind such suspensions, Applicants will provide a
minimum of fourteen (14) days’ notice. Id.
270. Taking into account the fourteen (14) days’ notice required by Defendant ZBA, the
applicable timeframes within which the ZBA was required to render a decision on the Fire
Department Application began to run as of December 6, 2021, except that Applicants agreed to
further extend the FCC Shot Clock through and including January 6, 2022.
271. During its January 6, 2022 meeting, the day upon which the mutually extended Shot
Clock was scheduled to expire, Defendant ZBA failed to render a decision on the Fire Department
Application.
272. Defendant ZBA ignored Applicants’ request for the ZBA to issue a decision on the
Fire Department Application, and instead of complying with the federal Shot Clock mandate, took
actions to further delay the review of the Fire Department Application by scheduling a new public
hearing on the application for February 7, 2022, despite the fact that several public hearings were
previously held on the Fire Department Application and ultimately closed in February 2021.
273. When counsel for Applicants questioned the need for a new hearing on the Fire
Department Application, Defendant ZBA and its counsel took the position that the prior public
54
hearings were only for the governmental immunity request and not the Fire Department
Application. Defendant ZBA’s own minutes of its January 7, 2021 meeting demonstrate that this
is false. See, Exhibit F.
274. The initial public hearing notice for the Fire Department Application is proof
positive that the public hearings previously held for the Fire Department Property were not limited
to only the governmental immunity request, as incorrectly suggested by Defendant ZBA and its
counsel. See, Exhibit I.
275. The prior hearings on the Fire Department Application included the substance of
the Application. In fact, the large majority of comments received were on the substance of the
Application and not the governmental immunity request.
276. Defendant ZBA’s refusal to acknowledge the prior public hearings held on the Fire
Department Application and its scheduling of additional and unnecessary hearings at this late stage
– after the conclusion of the FCC mandated Shot Clock – is an abuse of process and an unnecessary
delay, which is prohibited by law.
277. Applicants have comprehensively demonstrated that they are entitled to all
authorizations necessary for the deployment of the facility at the Fire Department Property.
278. Defendant Town’s failure to grant all necessary authorizations, including a building
permit – to the extent required - constitutes a continuing violation of the TCA and the 2009 FCC
Order, the 2014 FCC Order and the 2018 FCC Order.
279. Defendants’ acts and omissions described herein have delayed and prevented
Applicants from securing the necessary approvals to construct the Fire Department facility and fill
a significant gap in service and address serious capacity deficiencies and such delay will continue
without judicial intervention.
55
280. By its acts and omissions, the Defendants have violated 47 U.S.C. §332(c)(7)(B)(ii)
as authoritatively interpreted by the 2009 FCC Order, 2014 FCC Order and 2018 FCC Order.
281. Defendants’ continued failure to grant all necessary authorizations for the Fire
Department facility have and continue to violate effective prohibition provisions of 47 U.C.C.
§332(c)(7)(B)(i)(II).
COUNT IV
ARTICLE 78 OF THE NEW YORK CIVIL PRACTICE LAW AND RULES
283. Article 78 of the New York Civil Practice Law and Rules (“CPLR”) provides a
device for challenging the official acts of State and local officials, including the Defendants herein.
284. CPLR §7803 provides a right of action against a government body or officer where
a question is raised as to (i) whether officials or a government body “failed to perform a duty
enjoined upon it by law”; (ii) whether it has “proceeded, is proceeding or is about to proceed
without or in excess of jurisdiction”, (iii) whether “a determination was made in violation of lawful
procedure, was affected by an error of law or was arbitrary and capricious or an abuse of
discretion..”; or (iv) whether “a determination made as a result of a hearing held, and at which
evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial
evidence.”
285. Defendants’ determination to deny Applicants’ Application was arbitrary and
capricious, was an abuse of discretion, and was affected by an error of law.
56
286. Defendant ZBA’s purported attempt to apply the public necessity standard of
review under New York State law while ignoring substantial and reliable expert opinions on
various subjects was arbitrary, capricious, and abuse of process and error of law.
287. Applicants have suffered injury and continue to suffer injury as a result of
Defendants’ violation of Article 78 of the CPLR and have timely commenced this action.
COUNT V
DEFENDANT TOWN’S ESCROW REQUIREMENT UNLAWFULL AND EXCESSIVE
289. In response to demands by Defendant ZBA, Tarpon Towers has paid a total of
$10,000.00 in escrow which is intended to be used to reimburse the consultants retained to assist
the Defendant ZBA with the review of the Application.
290. Defendant ZBA has failed to provide a proper accounting of the escrow account for
the Application.
291. Section 245-36(E)(3) of the Town Code which purports to require an applicant to
remit certain fees to be held in escrow to pay the consultants retained to review the Application
establishes an open-ended and unlimited obligation on behalf of applicants to pay the costs billed
by the consultants uncontrolled by any specific standards in Chapter 245 of the Town Code.
292. Upon information and belief, the open-ended fees required by section 245-36(E)(3)
of the Town Code are not reasonably necessary to the accomplishment of any specific regulatory
program and, therefore, the fees are unlawful.
293. The requirement for applicants to remit certain fees in section 245-36(E)(3) of the
Town Code are not based on factual studies or statistics as required under New York Law.
57
294. The excessive fees required to date by Defendant Town are oppressive and have
the effect of discouraging applicants from seeking relief under the applicable zoning ordinance.
295. Based on the foregoing, the fees required by section 245-36(E)(3) and the
Defendant ZBA totaling $10,000.00 are excessive, arbitrary and capricious and unlawful.
296. Applicants have suffered injury as a result of Defendants’ actions and have timely
commenced this action.
COUNT VI
DEFENDANT HAVE VIOLATED NEWLY ENACTED LEGISLATION CONCERNING

THE HOLDING OF VIRTUAL PUBLIC MEETINGS
298. On or about September 2, 2021, Governor Kathy Hochul signed legislation
(S.50001/A. 40001) extending virtual access to public meetings under New York State’s Open
Meetings Law during the COVID-19 pandemic.
299. Part E of such legislation places an affirmative obligation on a local administrative
board, such as Defendant ZBA, to record and transcribe all virtually held public meetings.
300. Prior to the enactment of S.50001/A.40001, local administrative boards were
required to record and transcribe all virtually held public meetings pursuant to New York State
Executive Order No.202.1 which was effective as of March 12, 2020.
301. Defendants ZBA and Planning Board have failed to transcribe its public meetings
that have been held virtually with respect to the Fire Department Application and the Industrial
Dr. Application.
302. Applicants have suffered injury as a result of Defendants’ failure to transcribe its
virtual meetings.
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303. Defendant ZBA claims not to have a recording of one of its meetings that was held
remotely pursuant to Executive Order No. 202.1. Defendant ZBA’s failure to abide by the legal
requirement to record and transcribe all meetings held virtually pursuant to the above-referenced
authorities has injured Applicants by failing to properly memorialize evidence from the official
record of proceedings.
WHEREFORE, Plaintiffs respectfully request that this Court issue an Order and
Judgment:
a. Declaring and adjudging that Defendants have unreasonably delayed and failed to
act on the Fire Department Application in violation of 47 USC § 332(c)(7)(B)(ii),
the 2009 FCC Order, the 2014 FCC Order, and the 2018 FCC Order;
b. Declaring that Defendants’ delay and failure to act on the Fire Department
Application prohibits, or has the effect of prohibiting, the provision of wireless
service in violation of 47 US § 332(c)(7)(B)(i)(II);
c. Declaring that Defendant ZBA is in violation of 47 USC § 332(c)(7)(B)(i)(I) for
unreasonably discriminating against Applicants relative to the applicability of the
governmental immunity standard;
d. Declaring that Defendants’ denial of Plaintiffs’ Industrial Drive Application
prohibits, or has the effect of prohibiting, the provision of wireless service in
violation of 47 USC § 332(c)(7)(B)(i)(II);
e. Declaring that Defendant ZBA’s Denial is not supported by substantial evidence in
the record in violation of 47 USC § 332(c)(7)(B)(iii);
f. Declaring that the Defendants are in violation of Federal and New York State law;
59
g. Declaring that the Defendants’ denial of Applicants’ Application was affected by
an error of law, was arbitrary and capricious and an abuse of discretion, and was
not supported by substantial evidence based on the entire record;
h. Ordering and directing the Defendants to immediately issue all local approvals and
permits necessary to allow construction and operation of the Facility on the
Industrial Drive Property, including (without limitation) all building permits, site
plan approvals, special use permits, and variances without any unlawful or
unenforceable conditions; or alternatively, ordering and directing Defendants to
immediately issue all local approvals and permits necessary to allow construction
and operation of the facility proposed for the Fire Department Property, including
(without limitation) all building permits – to the extent necessary – site plan
approvals, special use permits, and variances without any unlawful or
unenforceable conditions;
i. Annulling the ZBA Denial in its entirety;
j. Declaring that section 245-36(E)(3) of the Town Code is void and of no effect;
k. Ordering and directing the Defendants to return all escrow monies paid to date to
Tarpon Towers;
l. Awarding Plaintiffs the costs, disbursements, and expenses of this action, including
reasonable attorneys’ fees; and
m. Granting such other and further relief as this Court deems just and proper.
60
DATED: February 4,2022
YOUNG / SOMMER,LLC
—•>
By:
ScoTfP. Olson
Bar Roll No. 507030
Attorneysfor PlaintiffTarpon Towers II, LLC and Cellco
Partnership d/b/a Verizon Wireless
5 Palisades Dr., Suite 300
Albany, New York 12205
Tel.:(518)438-9907
Fax:(518)438 9914
Email: solson@voungsommer.com
61

Tarpon Towers v. Town of Saugerties Federal Complaint

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Tarpon Towers v. Town of Saugerties Federal Complaint

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Case 1:22-cv-00107-DNH-DJS Document 1 Filed 02/04/22 Page 1 of 61

UNITED STATES DISTRICT COURT

CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS

TOWN OF SAUGERTIES, NEW YORK, THE ZONING

Department Property or the Industrial Drive Property.

1. The Nation’s wireless infrastructure is a critical communications pathway that is

alternative in clear violation of 47 USC § 332(c)(7)(B)(i)(II).

in the TCA against local governments unreasonably discriminating among providers of

functionally equivalent service. See, 47 USC § 332(c)(7)(B)(i)(I).

7. This action also involves Defendants’ unlawful denial of Plaintiffs’ application to

independent violation of federal law warranting injunctive relief. See, 47 USC §

telecommunications facilities, particularly through calculated inaction, the imposition of

uncontroverted coverage gaps and capacity issues.

carriers seeking to locate a telecommunications facility, as articulated in Cellular Tel. Co. v

Rosenberg, 82 NY2d 364, 372 [1993].

II. JURISDICTION AND VENUE

Plaintiffs’ claims under New York State law.

personal wireless service facility.

situated in this District.

III. EXPEDITED PROCEEDING

16. Pursuant to 47 USC § 332(c)(7)(B)(v) of the TCA, Plaintiffs respectfully request

expedited treatment of this Complaint.

Saugerties, Ulster County, New York 12477.

for the Industrial Drive Property.

24. Defendant Town of Saugerties Code Enforcement Department (“Code

Enforcement Officer for the Town of Saugerties.

A. The Wireless Industry

442.5 million subscriber connections active in the United States.

multiple members of a household (that previously were addressed by a single household

connection to the landline system).

27. Verizon Wireless provides an important service to emergency first responders,

See, https://www.fcc.gov/files/12thannual911feereport2020pdf, Table 3. An overwhelming

were made from a wireless device. Id.

B. Federal Preemption of Local Roadblocks to Competition

created a new telecommunications regulatory regime intended to foster competition in local

C. Relevant TCA Provisions

34. The critical importance of wireless communications systems is recognized,

framework designed to accelerate rapidly private sector deployment of advanced

Rep. 104-230, at 1 (Feb. 1, 1996) (Conf. Report).

No. 8460, 74 Fed. Reg. 234 (Dec. 8, 2009).

36. To foster a pro-competitive, deregulatory national wireless policy, Congress

38. Section 332(c)(7)(B)(i) states:

“The regulation of the placement, construction, and modification of

(I) shall not unreasonably discriminate among providers of

(II) shall not prohibit or have the effect of prohibiting the

40. Section 332(c)(7)(B)(ii) states:

“A State of local government or instrumentality thereof shall act on

41. Section 332(c)(B)(iii) states:

“Any decision by a State or local government or instrumentality to

42. Section 332(c)(7)(B)(iv) states:

“No State or local government or instrumentality thereof may

43. Section 332(c)(7)(B)(v) states:

“Any person adversely affected by any final decision or failure to

application for a wireless communications facility or site.

2009 FCC Order at ¶ 32 (emphasis supplied).

local governments or instrumentalities thereof, “a strong incentive to resolve each application

FCC Order at ¶¶ 32, 37.

2018 FCC Order.

D. State and Local Government Zoning Requirements

(i) Verizon Wireless is a Public Utility for Purposes of Zoning

v Rosenberg, 82 NY2d 364, 372 [1993] (citation omitted).

is clearly arbitrary and capricious.

York are regulated under Section 245-11(p) of the Town Code.

sites. Town Code, § 245-11(P)(6)(d).