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North Hempstead seeks dismissal of lawsuit filed by wireless company ExteNet

A utility pole on Richards Road in Port

A utility pole on Richards Road in Port Washington on Friday. Credit: Howard Schnapp

North Hempstead has asked a federal judge to dismiss a lawsuit ExteNet brought against the town over the wireless company’s request to install 16 cellular facilities on utility poles in Port Washington.

At issue is an ongoing dispute between the Illinois-based company and the town over the extent of control local municipalities have on the cell nodes’ placements.

In the past year, the company has also sued four villages — Lake Success, Flower Hill, Plandome and, most recently, Plandome Manor.

In the Jan. 22 suit ExteNet filed against the town, attorneys for the plaintiff alleged the town failed to respond to its application within 90 days, which they say constitutes a “shot clock” violation under federal rules.

Attorneys representing the town disputed the claim, contending the application ExteNet submitted to get a right of way agreement didn't trigger the shot clock.

Under town code, which was amended in March 2019, the applicant must secure a right-of-way use agreement with the town before it can apply for an antenna location permit or special permit for construction.

Christopher M. McDonald, an Albany-based attorney with Whiteman Osterman & Hanna LLP, wrote in court papers dated May 8 that federal and state laws “clearly reserved a municipality’s power to manage access” to its right of way.

“ExteNet has chosen to harp on a few facts which, taken out of context, attempt to suggest some nefarious plot on behalf the Town to block or delay ExteNet’s application,” McDonald wrote. “In truth, the Town has been more than patient with ExteNet’s complete disregard for the Town’s procedures and legal obligations.”

ExteNet argued in court filings that the town’s “tangled” process causes long delays and forces providers to expend “excessive resources,” in effect leading applicants to walk away entirely.

The town code “is prohibitory because it mandates an unreasonably long application process, contains discriminatory aesthetic requirements, and has technical requirements, which effectively ban certain technologies,” ExteNet’s White Plains-based attorney, Brendan Goodhouse, wrote in court documents dated May 22, noting the agreement is subject to the shot clock rule.

The town received ExteNet’s application on Oct. 1, though the company first approached the town in early 2017. On the same day ExteNet filed the lawsuit, the town board set a public hearing for March 19. But the hearing has since been “indefinitely” postponed due to the COVID-19 pandemic.

Both ExteNet representatives and town officials declined to comment.

Town Supervisor Judi Bosworth spoke of the matter publicly once, equating ExteNet’s action to “bullying” without mentioning the company’s name.

“Instead of listening and trying to address the concerns of the communities, they seem determined to sue their way into our backyards whether we like it or not,” Bosworth said in January. “We should have some say in where these installations can and cannot be placed.”

In a letter dated May 1, McDonald wrote the town is interested in pursuing mediation. Magistrate Judge Sanket J. Bulsara of the U.S. District Court for the Eastern District of New York last week ordered an in-person settlement conference for Oct. 14 in Brooklyn.

  • ExteNet sued Lake Success in June 2019, and the two parties are still in settlement discussions.
  • The company then sued Flower Hill in October, Plandome in December and Plandome Manor in March.
  • In all the lawsuits, ExteNet wants a court ruling to force the municipalities to give the company the permits necessary to install the cell nodes, which ExteNet said would improve wireless coverage and capacity.

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