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MAY 19 - MAY 26, 2015

A Tricky Plan Devised by Kimball, Motorola, Helps County Pull a Fast One on Lewiston, North Tonawanda

By Frank Parlato

May 26, 2015

The Upper Mountain site violated town law; county had an angle.

The expert, Michael Fogel, knew how to put a town in its place.

Jeffrey Glatz did heavy lifting.

Greg Sitek took the tower and the grief.

Kimball’s Mike Harper

Keep the location secret!

As they set out to fulfill the contract for a seven-tower digital emergency radio system, Niagara County, Motorola, and L.R. Kimball used the SEQRA law to get what they wanted and in so doing perverted the law and in the county's case - the fundamental rule of benevolent governance.

The $10 million contract had been signed with Motorola and the time had come - in early 2012 - to locate the seven radio tower sites.

Kimball and Motorola planned to please volunteer firemen by building towers on properties they owned and paying them rent - with the county's money of course.

After all, volunteer firemen came out to condemn Harris Corp. when that Motorola competitor almost swiped the county contract away from Motorola.

Volunteers were the ones who put pressure on their Niagara County representatives.

Motorola or nothing, they said.

In March, 2012, the Niagara County legislature appointed as the county's new Fire Coordinator and Director of Emergency Services, a volunteer fireman named Jonathan Schultz.

Shultz was a 20 year member of the Upper Mountain Volunteer Fire Co, of Lewiston,  the company's Engine Captain and formerly chief of the company. 

It would be Kimball, Matt Flag of Motorola, County Manager Jeffrey Glatz and Schultz who would accomplish the project's objectives, starting with securing sites for radio towers.

About a month after Shultz was hired, Kimball approached Shultz's fire company- the  Upper Mountain -  and advised its president, Greg Sitek, that Niagara County would like to build a 180 foot radio tower on fire hall property and pay rent - for decades to come.

The property was at the top of an escarpment and there was a break in radio communications to the north at the bottom of the escarpment.

A tower on Upper Mountain fire hall property would solve reception problems below, Kimball told Sitek.

Asked about the giant tower, Kimball said it would withstand 90mph winds. and 40 mph winds with a one inch radial ice load.

As part of negotiations, it was agreed that Niagara County would handle any ticklish problems that might crop up with the Town of Lewiston, the township where the fire hall was located.

Kimball and Motorola knew that to build a tower on the Upper Mountain fire hall site would be a violation of Lewiston's "tower law."

They'd have to get around that. But Motorola and Kimball were old hands at that.

The technical problem was this: The fire hall property was less than 500 feet from residential neighbors on Upper Mountain Rd. In fact it was about 60 feet from the nearest neighbor.

Lewiston's law required radio towers to be 500 feet from the boundaries of residential homes.

Putting aside the ticklish problem that the county would have to do an end run around the Town and leave in their dust some pretty chagrined neighbors, Glatz went over and negotiated with Upper Mountain Volunteer Fire Company President Sitek with the result that the county agreed to pay Upper Mountain Fire Company for 25 years $5,000 a year and adjusted each year for inflation.

The lease also contained a windfall provision for Upper Mountain.

The tower would hold Motorola antennas and microwave dishes but it was tall enough to hold other equipment too.

Kimball explained to the members of Upper Mountain, "The towers are designed to co-locate both the emergency radio equipment and other equipment including commercial purposes."

Upper Mountain and the county would split subleasing fees.

Verizon Wireless, AT&T, T-Mobile, US Cellular, Cricket, and Sprint Nextel pay as much as $50,000 - and more - sometimes $150,000 a year for prime locations. 

(And, as a critical point that will be addressed later, Motorola's desire to ensure a friendly relationship with volunteer fire companies in no small way influenced the decision on the team of Niagara County, Kimball and Motorola, not to seek out other potential tower sites, something that will factor more fully in a later story.)

The 45 members of Upper Mountain Volunteer Fire Company voted to lease a patch of land to Niagara County to host their tower.

Niagara County Emergency Safety Officer Jonathan Shultz, as member of the Upper Mountain Volunteer Fire Company, also voted yes.

On June 1, 2012, the lease was signed. 

Within two weeks the Upper Mountain tower lease, and six other locations were identified, secured and leases were signed by the county with the owners of the property.

Four of the tower leases were to go to volunteer fire companies: Upper Mountain, Olcott Fire Company, Terry's Corners Fire Company, in Royalton and Sweeney Hose Company in North Tonawanda.

The other sites were atop Niagara Falls Memorial Medical Center; beside the City of Lockport composting plant; at the Mount View campus off Upper Mountain Road in Lockport, a county-owned property.

Mount View and Niagara Falls Memorial already had towers.

The other five tower sites would be built at a cost, according to Motorola, of  $380,000 per tower.

When Glatz was asked, he said the owners of the tower sites are being paid small sums while others are allowing free use. He did not mention subleasing.

Before construction could begin, however, there was a tightrope act the county would have to perform

The NY State environmental assessment review.

Kimball and Motorola had done this before.

Wherever you go and try to put up towers there will always be neighbors who won't want a tower near them.

They will mess up a  $20 million project over a tower.

Then you get three or four wild ones - smart ones - and they organize and next thing you know you get before some local judge and a year goes by.

You have to outsmart them.
And don't pull your trump card unless you have to  - at the end.

This cryptic talk meant hardly nothing at all to the county legislators - but they trusted in Motorola, and Kimball, so much.

Harper of Kimball said he would do the Environmental Impact Study (EIS)  - a study whose purpose is to allow the public to know what is going on.

But Kimball and Motorola devised that this EIS would not name the tower sites but rather claim the tower sites had not been identified yet.

Kimball and Motorola, and the county, had the advice of not only Kimball and Motorola but Syracuse attorney Michael Fogel, an environmental litigator with experience challenging compliance with the State Environmental Quality Review Act (SEQRA).

Fogel defended a New York county against a lawsuit challenging the siting of one of the county’s proposed emergency communications towers on the grounds that the county was exempt from local zoning.

It was a landmark decision.

It meant the county had the trump card -  that a county-wide wireless emergency telecommunications system was exempt from local zoning requirements.

But winning in court is a lengthy thing. It is better to take the sly path.

 It was clear that two towers on two fire companies' property would violate town and city law - in North Tonawanda and Lewiston.

The plan was hatched to use the SEQRA process in a different way: to reduce instead of  increase transparency.

Instead of the normal EIS, the county would use instead a "trick your neighbors" approach - the old "Generic" environmental impact statement.

"Generic" EIS are broader, general, not site specific. The law allowed the developer - in this case the county - to not include the location of the towers.

And if they did not have to name the tower sites and if neighbors were affected, how would they even know to object?

The Motorola-Kimball team advised the county to name itself “lead agency” for approving the environmental review. In other words, the county was defendant, prosecutor, judge, and jury.

The plan was worked that if anyone asked why there was a Generic EIS, instead of a regular EIS, the county would simply say that if the county had to change the location of a tower even a measly 100 feet, then the regular EIS where the tower locations are named would have to be done all over again.

Kimball wrote the Generic EIS, a princely 129 page document of obfuscation and submitted it to the county on Nov. 20, 2012.

In it Kimball admitted a tower could collapse and "people within a radius from the tower base equal to the tower height would be at risk."  

He admitted a tower would have negative visual impact.

But, he did not admit that the county knew where it would build five towers.

The Generic EIS read that the county will "seek existing towers rather than erect new ones since this is better for the environment, cost effective and less likely to disturb neighbors."

The Generic read: "It is proposed that several antennas be collocated on existing telecommunications towers and/or sited on new towers constructed at locations yet to be determined."

Yet to be determined?

Al the locations had been determined.

The Generic EIS mentioned time and again how the county would try to comply with "local zoning approval process" while neglecting to mention, for example, that the Upper Mountain Fire Company tower would be 60 feet away from its neighbors was not going to comply and they were not trying to comply.

The county went into this knowing that the tower there was not in compliance with Lewiston law, chapter 320-6 (E), which requires "(tower) shall be separated from residential dwellings by a distance of 500 feet."

Instead the Generic EIS stated, buried deep in the bowels of this report, "Generally, construction of a new tower…  is subject to a number of local zoning approval processes ….  However, New York law provides that governmental agencies, such as the County, are immune from local land use laws when the interests of the public outweigh the interests to be served by zoning and land use laws."

"The County will comply, to the extent practicable, with the substantive provisions …. of the zoning law or telecommunications ordinance that may be in effect."

"The County anticipates meeting lot size and setback requirements…  but due to the critical nature of this system, and the fact that it will serve the public safety needs of all emergency services in the County, the County will not be subject to the zoning requirements of the various municipalities."

The county legislature accepted the Generic EIS and scheduled the required public hearing - the one where those who were impacted by what the county was doing could cry out their objections.

And in this way the county, Kimball and Motorola could say the public had every opportunity to be heard.

The hearing was held at the Legislative Chambers, in Lockport, December 4, 2012, at 6:50 P.M.

There were few people in attendance outside of the moderator Glatz.

If the county had identified the actual tower sites the figure would have been, one suspects, substantially higher.

Glatz looked right at the 14 people in the audience and said to them the tower sites were not yet chosen.

He lied. A legal lie, yes, an authorized lie, yes. But it was nevertheless a lie.

He had signed leases with tower site owners on behalf of the county.

Glatz said, "The network would consist of a number of antennas collocated on existing telecommunications towers and/or sited on new towers constructed at locations yet to be determined."

Bill Rutland, head of the county's blue collar union, rose to make a comment.

He said, almost prophetically, "SEQRA, it's a funny name because it sounds like a secret plan…. I read this thing very carefully. When you have an impact on the environment, there is a lot of factors in that. ….  The biggest components are the radio towers that will be located throughout Niagara County and these things are in a lot of ways, yet there isn't a site identified in the SEQRA plan.

"I'm baffled that a plan could be complete. You hired a consultant to do this at a great expense for sure and they haven't picked out where the towers are going to be? If I'm wrong you are welcome to correct …. I think the 1ocation of the sites is important. I read they are considering the impact of the sites and they do take in consideration factors that such installation of on the environment but they still haven't identified where the sites are and that just seems like putting the cart before the horse…"

Rutland hit it on the nose.

How could you have a plan this far cooked without having tower locations?

Glatz looked at Rutland with a stony expression.

Rutland looked back and waited.

Glatz cleared his throat. Would he admit that the towers of course were selected - this was just our little ruse  - the way in which we treat the people of this county - we know of course - where the towers will be and because you are all our neighbors and friends- we will tell you of course.

I would like to report to you that that is what Glatz said.
But it was not what he said.

 He made no comment other than to say, "Thank you Mr. Rutland.  Is there anyone else that would like to make a comment?"

When no one else did , Glatz ended the public hearing 15 minutes after it began.

Kimball, Motorola, and Glatz had a momentary sense of gladness. They pulled it off.

But it was not to be so easy as that.

(Next week we will tell the next installment - of how the county - almost pulled it off and who got caught and who got punished and who just ran.)






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Publisher and Editor in Chief: Frank Parlato
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