Dellwood Road residents in Amherst were in State Supreme Court Thursday trying to stop the installation of a 92-foot-tall cellphone tower behind their homes.
Verizon Wireless plans to use the tower to plug a gap in its mobile coverage. The tower would be built at ground level on land owned by Public Storage, behind its storage units at 3671 Sheridan Drive. Dellwood runs behind the storage site, feeding into Millersport Highway at Duff’s Famous Wings.
The residents filed a petition in October, after the town’s Zoning Board of Appeals granted a waiver to Verizon to construct the tower. The site is fewer than 500 feet from the closest residences. Neighbors opposed to the tower claim they were never notified, as required by law, about the public hearing on whether to grant a special use permit.
Attorney Richard J. Lippes, speaking for the residents, told Justice Catherine N. Panepinto the tower would violate a fundamental tenet of Amherst’s comprehensive plan to “promote and encourage site development standards to maintain a residential atmosphere.”
That echoed a statement in the court filings, that “the mere fact of the industrial nature of the cellular tower being placed behind their residential homes on Dellwood Road clearly changes the character of the neighborhood.”
The plot where Verizon plans to raise the tower is nestled in a wooded area abutting the baseball fields of Amherst’s Garnet Park, a much-used public greenspace in the heavily developed area. According to the residents, the park itself was initially suggested as a site for the tower. The town rejected that idea.
Now the residents want the court to void the waiver for the site adjacent to the park.
Verizon and Amherst are opposing the petition and supporting the zoning board’s decision. Amherst Town Attorney Stanley Sliwa was adamant before the court that the zoning board’s actions were both legal and appropriate. He argued the Dellwood residents have no legal standing to oppose the cell tower and that their fears of being in the tower’s “fall zone” or being affected by ice shear are unfounded.
He said the closest house would be 200 feet from the tower.
At just under 100 feet high, “there’s no evidence it’s going to fall forward. It’s designed to collapse,” he said.
He also took issue with what he called the residents' lack of proof on such matters as wind speed and how the tower will look when there are no leaves on the surrounding trees. He was dismissive about the quality of the maps submitted by residents to show proximity and effect on the nearby homes.
Sliwa said the residents' entire petition sprang from “wishful thinking.”
Verizon attorney Laurie Bloom contended that when bringing a legal action, “you must not only plead injury, you must prove injury.”
The issues raised by the residents did not show that, she said.
“They are ‘concerns,’ ” she said. “And even if the things that concern them rose to the level of injury, there’s no basis in fact for them.
“There is zero evidence that the tower would not meet the requirements to prevent ice shear and ice throw," she said. "There is zero proof of any impact on flora, fauna, wetlands or the park. In essence, there is zero evidence of any injury.”
In her opinion, the only real complaint was aesthetics -- “We don’t want to see it, we don’t want to look at it” -- which Verizon says it will address by using “stealth” design that camouflages the tower as an exceptionally high evergreen tree.
Lippes countered that zoning board violated its own rules in approving the waiver and requested the judge to void it until the zoning board and town comply with town law regarding this type of development. He and the residents hope Verizon ultimately will opt for another location for the tower in a more commercial section of the neighborhood.
Panepinto reserved decision on the petition, but an answer is expected before the project is scheduled to begin construction. A Verizon Wireless spokeswoman said in an email that the company as a matter of policy declines comment on pending litigation.
Story topics: State Supreme Court