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Case to tear down a Lewiston emergency tower is dismissed in State Supreme Court

NIAGARA FALLS – Since a 215-foot-tall emergency broadcasting tower went up on property of the Upper Mountain Road Fire Company, neighborhood residents have wanted it to come down. The Lewiston Town Board agreed with them, arguing that the tower commissioned by Niagara County was a violation of their town tower law.

But after nearly a year of contention, State Supreme Court Justice Mark A. Montour ruled against the residents and the Town of Lewiston on Wednesday, dismissing the lawsuit filed against Niagara County, the Upper Mountain Road Fire Company, L.R. Kimball and Motorola Solutions.

Montour agreed with assertions by the defendants that a four-month statute of limitations had expired to file a notice of claim in the case, although he did not specifically note when the clock started.

Throughout the proceedings Montour questioned why the Town of Lewiston didn’t take action to find out more about the matter in 2013 when Niagara County named itself as the lead agency in the state environmental quality review or even as far back in 2012 when attorney Michael L. Fogel, who represented Niagara County and Upper Mountain Road firefighters, said there were some documents that had notice of a location on Upper Mountain Road .

“They are trying to argue that the clock didn’t begin to run until they looked out the window and saw the tower,” said Fogel.

Attorney Adam S. Walter, who represented Motorola said construction started on May 19, 2014, with clearing of the property, but added, “The assertion of the neighbors is that no one knew until July 25. They still had two months left ... they still had six weeks left to get to court.”

Residents Barry Deal, Robert Nablo, William Bradfield, Peter Fortino and Jason Schnettler, along with the Town of Lewiston, all agree in principle with the emergency system, which rings the county with a series of towers to give police and first responders better radio communication. Their argument has been with the location, which puts the tower near the backyard of residents.

Lewiston Attorney Mark C. Davis said they should not have been held to the rules of a state law, because they are seeking to have their own town tower law enforced.

Fogel said they are not challenging the town law, but have immunity from that law because of the nature of the project. Davis said the immunity should have been argued, not presumed.

Residents who sat through the more than two-hour hearing were disappointed. They said in May they were unaware of what was being built.

Deal questioned the town’s inaction during the process, and questioned why the county didn’t even approach the neighbors to discuss the tower’s construction until it was done.

“They didn’t approach us because they knew it wouldn’t be approved,” said Deal.

“I don’t even know if I could sell my property. Who would want to buy it now?” said Jenevieve Nablo.

“It was my family’s dream to be where we are. But as soon as I moved there I get that going up in my face,” said Fortino of the tower near his backyard. “I’m stuck. I just moved there and put a ton of money into the place.”