Communications infrastructure company ExteNet Systems filed a lawsuit against the Village of Lake Success and the village’s board of trustees after the board partially denied a proposal to install 4G-signal small cell nodes throughout the village.
The board of trustees decided not to approve nine of the 13 small cells that ExteNet Systems applied to install within Lake Success after a May 13 public hearing.
In the suit, filed in June, ExteNet alleges the village rejected the proposed nodes without providing any reason, discriminating unfairly against the company in the process. The complaint the company filed with the United States District Court for the Eastern District of New York shows ExteNet is seeking an expedited review and judgement that would preempt the village’s so-called “regulatory scheme,” overturn the board’s denial of the nine small cell nodes and make the village issue all permits and consents needed to install the devices.
“On its face and as applied in this instance, the village’s regulatory scheme discriminates against companies like ExteNet by placing a substantially higher procedural and substantive burden on them than the village applies to other companies installing similar telecommunications equipment in public rights of way,” attorneys Christopher B. Fisher and Brendan Markham Goodhouse, representing the plaintiff for the White Plains-based Cuddy & Feder LLP., wrote in the complaint.
The Yonkers-based ExteNet first came to Long Island when Verizon contracted it to set up small cell nodes in several villages on the north shore to improve service in those areas.
ExteNet and the Lake Success worked together since 2017 to find locations for the devices, but Lake Success ultimately voted down the proposal after hearing concerns from residents who worried about the potential negative impact they could have on their property values.
“They will have an adverse impact on nearby homes,” Andrew Campanelli, an attorney representing 20 Lake Success residents opposed to the installation of some of the cell nodes, said. “Unlike cell towers, these things can be placed unbelievably close to homes, and that will bring down property values and simultaneously have an adverse aesthetic impact on the homes.”
Both the federal government and organizations like the American Cancer Society claim there are no elevated health risks that stem from being near a cell tower, but that hasn’t stopped residents from raising concerns about potential adverse health effects the small cells could cause.
The Telecommunications Act of 1996 forbids governments from taking public health concerns into account if the facilities aren’t emitting radiofrequency (RF) above the limits set by the Federal Communications Commission (FCC). For standard cell towers this is generally not an issue, but since small cell nodes can be placed lower to the ground and closer to residential areas, Campanelli said they carry a greater risk of adverse health effects.
“The closer you get to being on an even plane with the transmitter, the greater the radiation you’re exposed to,” Campanelli said. “So if they put a wireless transmitter on a utility pole 30 feet high and you put it next to a house on a hill and the bedroom’s on the second floor, you’re basically putting the person’s bed on an even plane. So even though it’s a lower power output, they’re going to get maximum RF radiation exposure.”
While Campanelli is not a doctor or an RF engineer, he said his own efforts to investigate the effects of radiation from cell service devices have shown him there is “no question” the technology is harmful to people living nearby.
ExteNet claimed the devices were needed to patch service gaps in the area, but Campanelli suspects the cell nodes are being put in place in anticipation of 5G service capability down the line.
While not yet a reality, 5G has attracted controversy from activists around the nation, including Christina Calabrese at the Huntington-based Citizens for 5G Awareness, over concerns the higher frequencies employed by 5G service will harm the health of people near towers and other distribution devices.
“5G starts at around 25 gigahertz (GHz) and goes upwards to 90 and some are saying 200 GHz,” Calabrese said. “That spectrum used to be called the dirty spectrum, because that was the part that nobody wanted to use. I don’t think they’ve really gotten it down.”
ExteNet has filed for applications to install a total of 94 nodes in six villages, including Kings Point, which approved 31 nodes back in March.
The company files with villages in accordance with the Telecommunications Act of 1996, which mandates that authority over the placement of personal wireless service facilities remain with whatever local body is in charge of zoning for the area in question.
Both parties filed a joint discovery plan on Aug. 2, in which they laid out their schedule for exchanging evidence and information relevant to the case with one another. Agreeing no initial discovery was warranted, Lake Success and ExteNet decided on an Aug. 16 deadline to submit a joint record of all information the court will need to make a decision on the case. Court documents also revealed Lake Success and ExteNet have agreed to hold discussions about a possible settlement in lieu of a trial.
Both the Village of Lake Success and ExteNet declined to comment on the matter, citing the ongoing litigation, but Campanelli is drafting a motion for intervention that would give his clients a voice in the case.
Nearby villages Flower Hill and Plandome are also mulling over ExteNet installation proposals, and the attorney claimed this case may serve as a litmus test for the two villages.
“If the federal court rules against ExteNet, it will kind of take the wind out of their sails with the other two,” Campanelli said. “If the court rules in favor of ExteNet, it may make it more difficult for Flower Hill and Plandome to deny their applications.”