ExteNet Systems sued the Village of Flower Hill on Oct. 2 in federal court over the village’s denial last month of the 18 small cell nodes application made by ExteNet. The Village of Lake Success was also previously sued over a partial denial of ExeNet’s application in federal court and applications are currently in front of the Village of Plandome and Plandome Manor, the former making their decision on Nov. 18.
“We wanted to protect our rights under the FCC. I hope we come to an agreement with the village,” Richard Lamber, ExteNet Eastern Regional Director of External Communications, said. “We always prefer compromise over litigation, we don’t want to go to litigation, that’s not our desire.”
“Now that ExteNet has chosen to sue, it becomes evident that the lawsuit is entirely without merit and is another attempt by ExteNet to bully the very community and residents whom ExteNet supposedly sought to serve,” said Village of Flower Hill attorney Edward Ross. “The village will vigorously oppose the lawsuit, and will assert among other key factors that ExteNet’s entire narrative is fundamentally flawed and at odds with the facts and the law. ExteNet cannot escape its own failures, which included its abject failure to design a network to address any legitimate coverage needs while minimizing adverse aesthetic impacts. ExteNet’s team also repeatedly failed to respond to basic requests for information about ExteNet’s own proposal, despite numerous requests by the Village and its outside consultants.”
In the suit, ExteNet requests review and judgment on preempting the village’s regulatory scheme and municipal code requirements for small wireless facilities in whole or in part and as applied to ExteNet’s proposed small cell installations; overturning the village board’s denial of ExteNet’s proposed small cell application; and compelling the village to issue all permits and consents required for the denied small cell facilities as proposed in ExteNet’s initial submission and application.
The suit by ExteNet also states “The village has obdurately denied ExteNet access to its community through various means, including refusing to process permits, implementing an illegal moratorium on application to install wireless telecommunication facilities, using subject and undefined aesthetic standards in reviewing ExteNet’s application and ultimately denying ExteNet’s application based on claims ExteNet failed to meet phantom local requirements.”
ExteNet was hired four years ago by Verizon to fill in gaps of 4G LTE coverage on Long Island using small cell nodes. In May 2017, ExteNet filed their application to the Village of Flower Hill. On Aug. 1, 2017 the village board officially adopted a 12-month moratorium on wireless facility applications. In March 2019, the village adopted a local law that regulated small cell technology and required a special permit application be filed with the village.
ExteNet states in their suit that the new law violates the Telecommunication Act of 1996 by containing preferences for certain types of technologies and imposing vague standards for small cells; provisions which surpass permissible management of the village’s right-of-way and amount to an impermissible regulation of the provision of telecommunication services.
ExteNet also says they provided the village board with three alternate plans for the 18 small cell nodes as part of the special permit. They also say that three aesthetic design options were presented to the board for the decorative poles that the small cell nodes would be placed upon.
“We gave the board opportunities to provide guidance for what they wanted,” Lambert said. “Within their code, there is no code for guidance in their aesthetics. They wanted new poles instead of using existing poles, that was in their criteria, but there was no other aesthetic requirements.”
On Sept. 3, the Village of Flower Hill denied ExteNet’s special permit of 18 small cell nodes and ExteNet had 30 days to file suit in response.