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North Hempstead appeals latest court ruling that favors ExteNet cell provider

A utility pole on Richards Road in Port

A utility pole on Richards Road in Port Washington, one of the 16 locations that Illinois-based wireless provider ExteNet wants to install its cellular facilities. Credit: Howard Schnapp

North Hempstead Town is appealing a federal judge’s court order that ruled in favor of an Illinois-based cell provider that wants to install 16 cellular facilities in Port Washington.

Attorneys representing the town filed an appeal on July 28 to the U.S. Court of Appeals for the Second Circuit to reverse the court order, which compelled the town to issue all approvals regarding ExteNet’s cell facility installation within 14 days.

“The Defendants, and its agencies and officials, shall cooperate in good faith to coordinate with ExteNet during construction and installation of the 16 small wireless facilities,” Judge Edward R. Korman wrote in a July 12 order.

Christopher M. McDonald, an Albany-based attorney with Whiteman Osterman & Hanna LLP representing the town, asked Korman to not enforce the order pending the appeal, a request the judge denied on Thursday.

McDonald argued that the judge’s order was “overbroad” and that to issue permits and allow construction of the facilities would render the town’s appeal moot, causing the town irreparable harm.

“If the Town issues the approvals, its appeal of the Court’s Judgement will be subject to a mootness argument in favor of dismissal,” he wrote in court documents filed Wednesday.

Town attorneys said to suspend the order would also allow time for public participation. The town has not held a public hearing about ExteNet’s application, as the one scheduled for March was cancelled due to the coronavirus pandemic. 

McDonald wrote that a temporary pause would also serve the interests of ExteNet as it would prevent costly removal of the facilities if the town were to win the appeal, a claim that ExteNet disputed.

“Quite simply, if Defendants were to prevail on appeal, ExteNet could remove the small cell Facilities at no expense to the Town at all,” the company’s White Plains-based attorney, Brendan Goodhouse, wrote in a July 29 letter to the judge.

Goodhouse also contended that “ExteNet is injured by every day of delay in deploying wireless services.” Installing the equipment, he wrote, would enhance wireless services, which he said are “relied on now more than ever” amid the coronavirus pandemic.

By stipulation, the town and ExteNet, which both declined to comment on the appeal, had agreed to forego enforcement of the court order until July 31.  

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