ALBANY COUNTY — Artist Ann Wolf stands on the deck of the Rensselaerville home she shares with photographer Alberto Caputo and surveys the panoramic view of the Catskills. She points to an oak tree toward to the left of a field with a pond and says, “That’s where the tower would be.”

She said on Sunday, “This is the view the Hudson River School painted. A unique vision of America starts here. It’s not open season here.”

The latticed metal tower she speaks of would stand 180 feet tall on Edwards Hill; it is part of a plan by Albany County Sheriff Craig Apple for a countywide communication system. The plan calls for three new towers to be constructed — on Edwards Hill Road in Rensselaerville, on Biers Road in Coeymans, and on Jansen Lane in Berne.

“For countless years, our radio system has been sub-par,” Apple told The Enterprise on Tuesday. “Many fire departments and ambulance squads can’t talk to each other…We’ve tried to patch it, wasting taxpayers’ money…We need this to save lives.”

In December, Scenic Rensselaerville, a group that court papers describe as having 170 members, many of them artists, sued the sheriff, the Rensselaerville Planning Board that had granted a permit to build the Edwards Hill tower, and the owners of the property where the tower would stand. The group hired Rodenhausen Chale of Rhinebeck, New York, which filed an Article 78 petition, typically used by citizens to challenge government actions, in Albany’s State Supreme Court, the bottom tier of the state’s three-tiered court system.

“They hired an attorney from out of the county because of the sheriff’s involvement,” said Victoria Polidoro, the Rodenhausen lawyer handling the case.

In February, the Albany County Legislature passed a resolution stating that towers for the sheriff’s system would be “immune from local regulation.”

The resolution states, “Local land use regulation would negatively impact development of the Project in that it could delay or prohibit development of system infrastructure which, in turn, would deprive Albany County’s public safety agencies, law enforcement and emergency responders of adequate basic and emergency communication.”

Frank Commisso, a Democrat and majority leader of the county legislature, told The Enterprise he introduced the resolution because the sheriff requested it. Apple, also a Democrat, confirmed that he had. “Yes, absolutely, based on advice from counsel,” he said.

Commisso introduced the resolution on Feb. 9, the same day that the legislature passed it by unanimous vote. There was no public hearing on the resolution.

On Feb. 26, Thomas Fallati, with Tabner, Ryan and Keniry, representing the Rensselaerville Planning Board, filed for an order dismissing Scenic Rensselaerville’s petition. “This proceeding is moot because the Albany County facility that is the subject of the Petition is immune from the Town Planning Board’s jurisdiction and, as such, the challenged Permit is null and void,” wrote Fallati.

“They passed it after the fact, months after we filed,” said Polidoro of the county’s resolution. “It was in response to this suit.”

She noted the major points in the suit: that the planning board complied with neither the state-required environmental review nor with the town’s law on siting towers, and, further, that it violated the right to due process.

“Our suit seeks to have the negative declaration and the permit annulled, and to have a better review instead,” she said.

“Instead of responding,” said Polidoro, “the county and town filed a motion to dismiss….They never used the Monroe balancing test.”

The test for immunity was established in a 1988 case, Monroe v. City of Rochester.

“It’s a test you need to go through to be immune from local zoning laws. That determination was not completed until after the planning board granted permission and the lawsuit was filed.…They are just trying to defeat the claims,” said Polidoro.

Asked about the balancing test, which the resolutions references, Commisso said, “I believe we are covered pretty well; our legal department handled it.”

Asked if there had been discussion on the merits of negating home rule, he said, “No, we didn’t discuss it….I believe we’ve superseded local laws before…The existing system is inadequate,” he said of the radio system. “This is definitely needed.”

Commisso’s view of those objecting to the tower placement or process for granting a permit is, “They say, ‘Don’t site it in my backyard; site it in my neighbor’s backyard.”

Charles Burgess, a Rensselaerville resident who opposes building the tower on Edwards Hill spoke out at the public hearing and also wrote a letter to the Enterprise editor.  He wrote that there are places that would provide better communication coverage with less impact on the views.

“I work for the Open Space Institute,” he said, stressing that the institute had no involvement in the matter. “I do GSI work here,” he said, referencing a geographical information system. “I found several sites in Rensselaerville that would have better coverage in Potter Hollow and Preston Hollow.”

Commisso concluded, “We did this with all the best intent to serve the public better….The sheriff explained it to me; it’s mandated.”

On Friday, March 18, Polidoro filed an answer to the motion to dismiss. “The town and county have 20 days to respond to our answer,” she said. “The judge usually decides in three months. If the motion to dismiss is granted, it’s over. The motion to dismiss drags it out. It costs our clients a lot. It’s an effort to run our clients out of money without deciding on the true merits of the case.”

“This is not a ploy,” responded Apple through The Enterprise. “Our lawyer assured us this was the proper way to do it….We’re certainly not trying to be adversarial or ruin someone’s view. We’re not trying to bully anyone. It’s about saving lives.”

FirstNet

Apple said the Albany County system — an 800-megahertz radio system — will cost $19.3 million, and $6.5 million of that is being covered with federal funds from the Department of Homeland Security.

In 2012, Congress created the First Responder Network authority, known as FirstNet, allotting $7 billion and 20 megahertz of radio spectrum to build a nationwide broadband network for public safety.

Each state will have to have a Radio Access Network, or RAN, to be part of the national network. Currently, explained FirstNet spokesman Ryan Oremland, FirstNet is doing “outreach” to learn about needs from “key stakeholders.” It won’t be until the middle or end of 2017 that FirstNet has a plan for New York State, he said.

“We do requests for proposals to get partners,” Oremland said. Once FirstNet develops a plan, it will be presented to the governor who then has 90 days to accept it or not.

“They can accept FirstNet’s plan or build it themselves,” said Oremland. “We’ll be a data network first.” He also said, “We might be using satellite in some rural areas.”

When asked if a 180-foot tower for an 800-megahertz system would be useful as part of the FirstNet network or would be likely to be replaced, Oremland responded the next day with a written statement. He said he had looked up and read online Enterprise coverage of the Hilltown tower controversy.

“When the FirstNet network is launched,” he wrote, “it will be a high-speed data network that will complement the use of radio systems, and not replace them at first. Our guidance to the states and local jurisdictions is that they should continue to support their Land Mobile Radio systems in the near term.”

Tom Dickens of Rensselaerville, in comments submited to the Rensselaerville Planning Board last September, quoted from FirstNet.gov: “Today, first responders rely on more than 10,000 separate, incompatible, and often proprietary land mobile radio networks. This makes it difficult, and at times impossible, for emergency responders from different jurisdictions to communicate, especially during major emergencies. FirstNet devices will work anywhere on the network and will save time when seconds matter.”

Dickens wrote, “When masons build walls, they put footings beneath everything, to spread out the load. FirstNet’s network is similarly broad-based. It does not rely on two, three, or four very tall towers, but on multiple, relatively short antennas. This makes the system more flexible and more nimble and more secure….In sum, the board should not approve an application that relies on a technology that is already outdated and is ill-equipped to meet the needs of first responders.”

Apple said of FirstNet, “They’re guess-timating that’s 10 years away. And that’s data, not voice transmission…FirstNet is pie in the sky…They’ll be putting up towers, too, not just using satellites.”

The suit

Filed on Dec. 2, 2015, the Scenic Rensselaerville suit notes that the town adopted a new comprehensive plan in 2007, which has as its principal theme “to protect the abundant natural features and resources that contribute to those aspects of life in Rensselaerville most valued by residents.” The plan identified scenic vistas, which includes Edwards Hill.

The sheriff applied to the planning board on July 2, 2015 for a special-use permit to build the tower, noting that the tower may be leased to at least two commercial cell phone carriers; the drawings with the application show two future “commercial carrier” lease areas.

The planning board said it would serve as lead agency and set a public hearing for Aug. 6, 2015. At the hearing, Steven Elsbree, with Pyramid Network Services, working with the applicant on the project, believed the application was exempt from the town’s law on siting towers.

At a Sept. 17, 2015 planning board meeting, community members presented an alternative site, 500 feet higher than Edwards Hill at the same elevation as a tower on Pond Hill near the Rensselaerville hamlet, also part of the system. The willing owners left contact information but were never contacted by the sheriff, court papers say.

At the Oct. 15, 2015 planning board meeting, the board voted on a negative declaration, meaning environmental impact would not be significant. And also approved a special-use permit. Scott Kunkler and Barry Kuhar voted against granting the permit, and the other board members — Dorothea Cotter, Travis Smigel, Sherri Pine, Walter Cook, and Rich Amedure — voted in favor.

The suit states that the planning board did not comply with the requirements of the State Environmental Review Act. When one or two members raised concerns about compliance or lack of sufficient information, “they were quickly shut down or often met with laughter from the majority,” the petition says, and the hearing was closed before critical coverage and visual impact information was received.

The suit also says the planning board “failed to take a hard look at potentially significant adverse environmental effects.” This includes visual and community character impacts.

“Even its Resolution, which was prepared after the meeting and filed with the Town Clerk three weeks later, only restates the criteria for a negative declaration without any analysis or application to the facts whatsoever,” says the memorandum in support of the petition. It also says the planning board failed to comply with mandatory procedures for the State Environmental Quality Review Act.

The suit also says that the town did not comply with Rensselaerville’s tower siting law.

“The Planning Board assumed erroneously that the proposed tower did not have to comply with the Tower Siting Law, because it was to be used by the applicant for purposes of public safety,” says the petition. “However, the exception to the Zoning Law does not apply….The Tower will not be used exclusively by fire, police and other dispatch services.” The application depicts two future “commercial carrier” lease areas.

The town’s law states, “No new telecommunication tower which would have an adverse visual impact upon sensitive areas…shall be approved.” It sites the “Scenic Views and Vistas” map in the comprehensive plan, which includes Edwards Hill.

The suit also says that the planning board violated the right to due process of law, stating that the planning board closed the public hearing on Oct. 1, 2015 without having a complete application.

The sheriff’s view

“The number-one thing that came out of the 9/11 tragedy,” Apple said of the 2001 terrorists’ attacks, “is the need for interoperability….Everybody in the county needs to be able to talk to everybody else. If there’s a flood in Cohoes and Rensselaerville is fine, they’ll be able to talk to each other. If Cohoes needs bicycle racks, Rensselaerville can deliver them.”

The northern part of Albany County is already on the new system, including Cohoes, Watervliet, and Green Island, he said; the city of Albany will be next followed by Colonie.

“As soon as we’re done, we’ll plug into Saratoga County,” Apple said. Schenectady and Rensselaer counties are currently working on similar systems as well, he said.

Asked about his schedule for completing the project, Apple said, “I did have a schedule prior to being inundated by lawsuits.” The system was supposed to be up and running by late summer, he said. “Now, I don’t know,” he said.

“We purchased a lot of equipment for everybody….This isn’t just a sheriff’s thing,” said Apple. “We do dispatch for fire departments and ambulance squads.”

Asked about the suit’s contention that many other sites hadn’t been considered, Apple said,  “We did an in-depth engineering study. We went to locations that best provide coverage for the sheriff’s, fire, and EMS.” He went on about selected tower locations, “If I move it, I’m losing coverage.”

Of the tower planned for Jansen Lane, Apple said, “The tower in Berne — I know that’s not popular with some — is purposely planned for, A, coverage, and, B, to get over the escarpment.”

On leasing tower space to current carriers, Apple said, “We have no agreement with anybody. But, once it’s completed, I want to push high-speed broadband for people. I’m reaching out to Senator Amedore and Assembly members. My goal is to provide a super-efficient system.”

Asked how Motorola became involved in the project, Apple said it was through a bidding process and said, “They may have been on state contract.”

Apple concluded, “I thought people would praise us up and down for this. We busted our butts to do this. They always say they’re forgotten in the Hilltowns. We truly thought we were providing the best service to save lives….I stand by it.”

An artist’s view

“This tower is in an important scenic view,” said Polidaro. “Our clients are artists and photographers. They get inspiration from it; they paint it. They would acutely feel this loss. They want it moved or lowered.”

One of those artists is Ann Wolf. She spoke to The Enterprise for Scenic Rensselaerville because she said many of its members don’t want to be named since they are afraid of repercussions from the town. Many of them are, however, named in court records.

“We kept going to the meetings and we got the sense this was a done deal.” Wolf said of the suit, “This was to make sure the democratic process was being followed.”

Caputo runs an art gallery in Rensselaerville and an email list of patrons was used to solicit contributions, which so far total about $20,000, Wolf said. “People were pretty upset and gave money,” she said.Rensselaerville and an email list of patrons was used to solicit contributions, which so far total about $20,000, Wolf said. “People were pretty upset and gave money,” she said.

Wolf also asked, “Is it democracy if we had to raise thousands and thousands of dollars?”

The house she lives in was built by Caputo, who grew up in Argentina. Modeled on a barn, the home sits on 160 acres. Inside, it looks like a cross between an art gallery and a cathedral with its soaring space and white walls hung with photographs.

Wolf is a painter with a studio in the woods. She does small paintings of nature, some of them based on photographs taken by Caputo.

The paintings capture minute and realistic details while at the same time having an otherworldly quality. A scene awash in violet, as if veiled, portrays tree trunks with porcupine scat at the base of the largest central tree.

“Being in the woods, you’re in a different world,” said Wolf of her studio. “You’re in the forest.”

Wolf, who is 48, grew up in Pleasant Valley, outside of Poughkeepsie. “What makes this area special,” she said of Rensselaerville, “is there is no suburban sprawl. We see bear, bobcats, deer. We have a family of six ravens in the forest.”

She continues, “The wilderness of the country is disappearing. If it’s not in a park, anything goes….I came from a place downstate that was very beautiful and is now covered in suburbia. I’ve seen the future.”

Wolf graduated with a bachelor of fine arts degree in pattern design from Syracuse University and worked in New York City designing patterns for material. She then got a master of fine arts degree from the University at Albany and worked as a visual resources curator at UAlbany and Vassar College.

She prefers painting pictures to designing patterns. “I like the intellectual, philosophical journey you take when you make a painting,” she said.

Wolf moved to her Rensselaerville home seven years ago.

“Since I’ve been here, I’ve come to realize how fragile and magical the forest is,” said Wolf. “I’ve become protective. This is under siege.”

Wolf’s love of nature has combined with activism in her upbringing. Her uncle, John Mylod, was director of the Sloop Clearwater, which plies the Hudson River to educate and inspire people about the need to protect it.

“I watched him for years fighting GE for removal of PCBs from the Hudson,” said Wolf of her uncle. “I was living at his house in Poughkeepsie. I watched him fight every day. I’ve seen what it takes to push back.”

She also said, “Nature is sublime. We need to protect it.”