TOWN BOARD HIRES TELECOMMUNICATIONS COUNSEL
The Town Board has hired experienced telecommunications counsel to assist in reviewing and deciding on the applications by NextG to site 20 DAS wireless facilities in residential areas. Andrew Rau, of Unruh Turner Burke & Frees, has litigated major federal court cases upholding a municipality's right to apply its local antenna zoning laws where wireless service already exists in the community. He has represented various municipalities in dozens of wireless facility applications. The scope of his representation will include working with and advising the Antenna Review Board, the Conservation Advisory Council, the Town's technical consultant and the Town Board, interaction with the applicant, and if necessary litigation.
The following is the resolution that was unanimously approved by the Town Board.
RESOLUTION OF THE TOWN BOARD OF THE TOWN OF GREENBURGH RETAINING ANDREW D. H. RAU, OF THE LAW FIRM OF UNRUH TURNER BURKE & FREES, AS TELECOMMUNICATIONS COUNSEL
WHEREAS, NextG has applied to site 20 Distributed Antenna Systems (DAS) in residential areas of unincorporated Greenburgh and, pursuant to the procedure in the Code of the Town of Greenburgh (Section 285-37, hereafter the “Antenna Law”), based on the information provided by the applicant, the Antenna Review Board deemed the 20 applications to be complete, but has not passed on the merits of the applications; and
WHEREAS, pursuant to the Town’s Antenna Law, the Town Board is the approving board with respect to these applications, which are the first applications proposing to site wireless facilities in residential areas of unincorporated Greenburgh and which appear to raise legal issues not heretofor faced by the Town Board, including legal issues under the Federal Telecommunication Act and/or the application of those issues to the NextG applications; and
WHEREAS, the Conservation Advisory Council which, under Chapter 520 of the Code of the Town of Greenburgh, advises the Town Board on environmental factors affecting the Town, in recognition of the precedential effect of the decisions on these applications, has recommended to the Town Board that it engage telecommunications counsel to assist the Town Board in arriving at the right answer, including the interplay of Federal telecommunications law and local zoning law; and
WHEREAS, the Town Attorney Office does not have experience in the telecommunication law issues which appear to be raised by these DAS applications; and
WHEREAS, Section 285-37A(26) of the Code of the Town of Greenburgh provides that the applicant shall pay “for professional services deemed necessary to assist in the review and evaluation of the application, including but not limited to review of . . . legal . . . issues;” and
WHEREAS, four potential counsel were interviewed; and
WHEREAS, on April 26, 2012, the Conservation Advisory Council recommended to the Town Board the engagement of Andrew Rau due to his experience in telecommunication law negotiations and litigation; and
WHEREAS, at a Special Meeting of the Town Board held on April 26, 2012, the Town Board, upon an affirmative vote of all three Town Board members present, engaged Mr. Rau as telecommunications counsel;
NOW, THEREFORE, BE IT RESOLVED, the Town Board of the Town of Greenburgh hereby:
1. Ratifies the engagement of Andrew D. H. Rau, of the law firm of Unruh Turner Burke & Frees, as its telecommunications counsel to advise the Town Board, the Town Attorney’s Office, the Building Department, the Antenna Review Board, the Conservation Advisory Council and the Town’s technical consultant with respect to these applications, to interact as appropriate with the applicant and its professionals, and, if necessary, to represent the Town in any litigation which may be brought by the applicant;
2. Ratifies the following principal financial terms of the engagement: (a) Mr. Rau’s fees shall not exceed $350 per hour, (b) in recognition of this being a municipal representation, absent litigation brought by the applicant, Mr. Rau shall not charge fees for travel time to and from the Town for one trip per month, and other trips in a month shall be made only with the approval of the Town Attorney, and (c) without further authorization from the Town Board, the maximum amount payable under this engagement shall not exceed Thirty-Five Thousand Dollars ($35,000), with the Town making direct payments to Mr. Rau upon presentation of proper bills, whether or not the applicant complies with its obligations under Section 285-37A(26), the Town reserving all rights of enforcement of Section 285-37A(26) against the applicant, and Mr. Rau agreeing to provide any reasonable cooperation requested by the Town if such enforcement should become necessary; and
3. Authorizes the Town Supervisor to enter into an engagement letter, subject to the approval of the Town Attorney as to form, consistent with the above financial terms.