RENSSELAERVILLE —  A long battle against the erection of a 180-foot  lattice-work steel tower in a pristine landscape of this Hilltown may have ended.

Almost a year and a half after the Albany County Sheriff’s Office asked the town planning board to issue a permit to build a public-safety communications tower on Edwards Hill, near the hamlet of Preston Hollow,  the State Supreme Court has ruled against a local citizens group that had asked the court to invalidate  the board’s approval of the tower.

An 11-page decision handed down Dec. 20 by Judge Gerald Connolly of the Albany County State Supreme Court took pains to reject all possible grounds for blocking the tower, leaving the next move to Scenic Rensselaerville, the citizens group that had petitioned the court.

Asked if the 170-member group will appeal the decision to the Appellate Division, the middle-level  court in a three-tier system, Jeannette Rice, a spokesperson for the group, said that has yet to be determined. The donation-financed group has already spent “tens of thousands of dollars” in the legal action it chose to take, says Rice.  Rice called the expenditure “worth every penny.”   The Rhinebeck firm of  Rodenhausen Chale represents the group.

Asked what the next step is, Albany County Sheriff  Craig Apple said, “I have no intention of waiting to see if the decision is appealed….This tower will save lives.”

Apple  says work on the Rensselaerville tower will begin as soon as the Berne tower is completed. He said the foundation for the Berne tower is now laid and the tower will now quickly be erected. After it’s up, he explained, some additional time will be needed for installing the electronics, but once that too is  done the contractor will begin work on the Rensselaerville tower.

“There was no one against improved communication,” Rice wrote in an email, responding to Enterprise questions.  “Scenic Rensselaerville wanted the local zoning laws followed, having the tower sited outside of the main viewshed — one of the most beautiful views in Albany County."

She said Friday, “Had the planning board given a positive declaration requiring Albany County to thoroughly investigate other sites, then the tower would be up by now at a site that would be out of the scenic vistas.”

The group’s petition — an Article 78 proceeding, which  enables citizens  to challenge a decision by a governmental body or officer on grounds the decision was improperly reached — was countered by Jacqueline Phillips Murray of The Murray Law Firm, the attorney representing  the sheriff and the county, and by Thomas Fallati, the town’s attorney from Tabner, Ryan and Keniry.

Rensselaerville is not the only Hilltown where the sheriff met resistance to his plan for an interconnected ring of towers bearing the latest in radio and microwave equipment and supplying more reliable emergency communication to the entire county but especially to its rural south where such communication — by common agreement among residents and emergency response personnel alike — can be spotty, sometimes dangerously so.

The resistance has not been to the towers themselves—the need for them was widely accepted—  but to where the sheriff wanted to put them.  Artists — Rensselaerville has more than its share — and lovers of unspoiled rural landscape have been united in asking the sheriff to find  a better and less intrusive site than Edwards Hill, which  offers  long-vistas toward  the majestic Catskills  to the south.

A similar coalition, but one which never organized or initiated legal action, bedeviled the sheriff’s choice of another prominent site, the top of U’hai Mountain which looms directly over the hamlet of Berne, across from  Berne-Knox-Westerlo elementary, middle, and high schools.

A third new tower, in Coeymans, met with no opposition and is up and running.

The other eight towers in the network — the “metro” side of the network—   are located across the rest of the county. Not new, these existing towers have been upgraded.

The battle over the towers has been complex, involving  public-safety concerns and a desire to preserve a rural landscape where towers of any kind are rare — with the notable exception of the super-tall broadcast  towers that crown the Helderberg escarpment that demarcates where flatlands give way to the Hilltowns and the Catskills foothills.

The decision

Last week’s  decision was made on narrow grounds, the facts of which cannot be disputed. The planning board issued a negative declaration on Oct. 15, 2015, signifying that it saw no adverse environmental impact from the construction of the tower. On Feb. 9, 2016, an Albany County Legislature declared the sheriff’s plan for  improving and expanding public  safety communications to be immune from local regulation, in effect making local town approval of new towers unnecessary and making the county the lead agency for environmental review.

The  resolution also retrospectively nullified, the county claimed,  the decision of the Rensselaerville planning board, thus making the Scenic Rensselaerville petition moot.

In an earlier preliminary decision, Judge Connolly did not agree. The board acted before the resolution was enacted and so was not in violation of it, he ruled.

But in last week’s final decision, the judge found another reason to dismiss the Scenic Rensselaerville petition: the planning board had made no objection to the resolution that had stripped it of its authority concerning the tower proposal.  The board, through its attorney, had even supported the sheriff’s and county’s move to render the board’s  tower decision moot. The conclusion: No claimed authority means no decision open to challenge.

In so ruling, the judge also sidestepped an issue raised by Scenic Rensselaerville: the balancing-of-public-interests test. When two government entities are in disagreement, the dispute may be settled by determining which position better supports the greater public interest.  The judge ruled that the test could not be applied  “as there is no conflict between the two government entities [the sheriff and the planning board]  as to the issue of immunity.”

More broadly...

But the judge didn’t stop there. He also outlined how he would have ruled on the planning board’s action on Article 78 grounds if the had chosen to do so.  His conclusion: “...the relief requested in the petition would have been denied” anyway.

He found no grounds —  among those argued by Scenic Rensselaerville— for finding that the planning board had reached its decision improperly. He deemed the board’s environmental- impact  review to have been the “requisite ‘hard look’”; the public input to have been adequate; the permitting decision to have been made in a considered manner and not in “an arbitrary, capricious and unsupported manner” as claimed, and declared that the tower is not in violation of the town’s own tower siting law.

This hypothetical part of the ruling dismissed another main contention of the tower opponents: that the board’s decision ignored the town’s 2007 comprehensive plan, which calls for protection of scenic vistas. The plan’s scenic vistas overlay map, available on the town’s website,   shows that “the proposed tower site is either in or virtually surrounded by sensitive viewshed areas.” The board took the comprehensive plan into consideration, the judge found.

Rice calls “insufficient” the data collected for the Edwards Hills site and for alternate sites  that “the sheriff’s office claims they investigated.”

She added, “Scenic Rensselaerville  experts found other willing property owners outside of the viewshed where the tower could have been sited.  Furthermore, radio transmission maps submitted to the planning board show transmission [from the proposed tower] dead zones in the hamlet of Rensselaerville, Peasley Hill in Berne, and the hamlet of Potter Hollow where the need for improved communication is great.”

The judge says the record shows that the planning board requested the sheriff to explain “why certain alternate sites were not adequate.”

In another “anyway” observation, the ruling notes that “even petitioners acknowledge that decisions applying the Monroe balancing  test have uniformly ruled  in favor of immunity of county emergency telecommunications systems.” Safety comes first.

For now, it looks like the final verdict in a struggle that pitted proclaimed necessity, on the one hand, against celebrated beauty, on the other, won’t happen in a court. It may happen, instead, when a tower gets built on Edwards Hill.