BERNE — The towers proposed for two Helderberg hilltops will “not have significant effect on the environment.”  That’s what  the Albany County Legislature decreed unanimously  at its monthly meeting Monday, giving the Sheriff’s Department further support in its drive to construct two 180-foot emergency communication towers, one on Edwards Hill in Rensselaerville, the other on U’hai Mountain overlooking Berne hamlet.

The towers — first proposed last year as links in a new modernized county-wide emergency communication system that includes a now-operational tower in Coeymans and nine existing updated towers in the rest of the county —  have staunch supporters and equally staunch opponents in both towns.

Although both sides agree that Hilltown first-responders need better radio communication, without frequently dropped calls and dangerous dead zones, they part company on siting of the towers.

One side feels public safety is paramount: the towers must be placed where they will perform best. The other side says yes but: the towers shouldn’t be placed where they spoil the natural beauty and scenic views treasured by Hilltowners.

Planning boards in both towns have approved the towers, after reviewing their environmental impact, especially their visual effects.

But still the towers remain unbuilt.  And even the Monday actions of the legislature — naming itself lead agency for environmental review and then greenlighting the towers — do not remove the main impediment: a suit by the citizens group Scenic Rensselaerville in Albany County Supreme Court challenging the town’s planning board approval of a tower at the Edwards Hill site. The suit contends 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.

Berne Town Supervisor Kevin Crosier told The Enterprise this week that the sheriff has said to him that the Berne tower construction is not likely to begin until a decision is handed down in the Scenic Rensselaerville case. That will not happen until some time after mid-October when briefs from both sides will have been submitted.

The system cannot be fully operational without a tower in Rensselaerville. It requires all twelve towers in order to complete a microwave relay that would make fast connections possible among all the users in the county.

In a preliminary ruling rejecting a county motion to dismiss the citizen action,  Supreme Court Judge Gerald Connolly indicated his final ruling may consider whether the county went too far in exempting itself and the tower project from local regulation, which it did in February.

Jacqueline Phillips Murray, an attorney for the county told The Enterprise  that, once the county had declared itself immune from local regulation of the project, the county necessarily had then  to make itself the lead agency for performing the state-required  environmental review. Both actions leave the town planning boards with only an advisory role, she said.

She said  in declaring itself immune from town regulation, the county had applied the Monroe balance test, referring to a judicial test weighing local regulatory authority against “the greater public good.”

But Victoria Polidoro, an attorney for Scenic Rensselaerville, argued in a March 25 statement to the court that “the county’s Monroe analysis was perfunctory at best. The county did not provide an opportunity for town residents to be heard on whether the county should exempt itself from the town’s zoning law, an ‘important factor’ in the Monroe analysis.”

One of the odder aspects of the ongoing furor over the towers, especially their siting, is  that the county’s assertion of jurisdiction “in furtherance of a greater public purpose”— public safety in this case — may be seen as unnecessary given that the towers proposed for Berne and Rensselaerville have both received local approval.

Sheriff Craig Apple told The Enterprise early this year that he asked the county legislature to pass the resolution quashing home rule because local officials were “getting a lot of pushback.”

Berne legislator on board

Chris Smith, Albany County legislator for Berne, said that he welcomes the tower and the efforts of the county and sheriff to make it happen.

He said the new system and Hilltowns towers “are needed for safety...public safety is number one obviously.”

But he also hopes that the towers could someday  be used to enhance cell phone and high-speed broadband service in Berne, where both are subpar. Co-location of commercial carriers and providers on the towers could happen but is not part of current planning.

Asked what sort of environmental review the county legislature had performed, Smith said members received information packets the week before the vote, consisting of all  the material, including visual impact studies,  upon which the local planning boards had based their approval of the towers. Murray said over 700 pages from one board were given to the legislators for their review.

Murray says the local planning board approvals  were part of the “county record of review” and lent further support to the legislature’s negative declarations; that is, declaring that the towers would have  no significant environmental effect.

The question of home rule and how to adjudicate disputes between jurisdictions is an ongoing theme in New York State case law.

Asked if  the county’s conferring upon itself immunity from local town regulation night set a bad precedent— for example what if a town bans fracking but the county decides it should go forward— Smith said, “I don’t see anything coming up in the future.”

He said he feels “this was a special circumstance” because it involved public safety and emergency services.

Now what happens?

If the court rules the Rensselaerville Planning Board must reconsider — but leaves the county’s assertion of immunity intact — any new decision by the board would still be only “advisory,” says Murray, with no impact on the final outcome.

On the other hand, if the judge rules local regulation must prevail,  it’s not clear either planning board would change its decision, though perhaps other sites might be proposed and approved.

Either way,  a long delay could ensue as pro- and anti-towers forces do battle and planning boards take up the matter once again.

Murray declined to speculate how the court might rule. But she contends, as does the county, that any delay  “would be a detriment to public safety, to residents and to first responders...on an individual basis or more widely in the event of a catastrophic event.”

The Albany County Sheriff and Victoria Polidoro did not respond to calls this week seeking comment.