US Dist. Court, ED New York, No. 10-CV-692, September 21, 2012: NY Town denial of cell tower siting permit on aesthetic grounds upheld.

The Defendant Town of Islip, through its Planning Board (“the Board”) denied a request by plaintiff T-Mobile Northeast LLC (“T-Mobile”) for a special use permit to construct a 120-foot monopole cell tower within a 94 acre Girl Scouts camp surrounded by a nature preserve and residential uses, with the Sans Souci Nature Preserve and the Sans Souci Lakes “approximately 125 feet from the site”, in a Residential AAA zoning district. T Mobile brought this action alleging the denial was in violation of the Telecommunications Act of 1996 (the “TCA”), 47 U.S.C. § 332(c) and Article 78 of the New York Civil Procedure Law and Rules. This decision was on motions for summary judgment by both parties. The Court granted the Town’s motion and denied T-Mobile’s motion, thereby upholding the Board’s decision.

The Town Code provides that in the siting of cell towers, “due consideration shall be given to … environmentally sensitive areas, aesthetics and other appropriate factors”. The parties agreed that relevant provisions of the town code included, “The tower shall be designed in such a manner as to minimize any visual impacts pursuant to the Planning Board” and that in making its permit decision the Board should consider, among other things, “Nature of existing or proposed uses of adjacent property; Site and/or surrounding topography; Surrounding tree coverage and foliage; Design of tower, in particular the characteristics that have the effect of reducing or eliminating visual obtrusiveness.”

The Board’s written denial included the following conclusions:

“1. The applicant failed to establish a need for service within the coverage gap given the abundance of passive areas where wireless communications service is not needed. 2. The Planning Board determined the proposed 120′ tower was not in keeping with the nature and character of the area. 3. The Planning Board determined that the proposed tower adversely impacted the park uses in the area which are permitted in a residential zone. … 5. There were significant adverse aesthetic impacts to nearby residential properties.”

The Court noted that under the TCA local governments have siting decision authority, but may not take actions that “prohibit or have the effect of prohibiting the provision of personal wireless services” and the TCA requires that the denial of a request to construct a cell tower must be “in writing and supported by substantial evidence” in the record.  The Court further noted that New York State law requires, in the context of zoning decisions for cell towers, that the telecommunications provider establish: “[1] that there are gaps in service, [2] that the location of the proposed facility will remedy those gaps and [3] that the facility presents a minimal intrusion on the community”.  T-Mobile’s claimed that the denial was not “Supported by Substantial Evidence”

Using the standards for deciding about summary judgment motions and about challenges to a local board’s decisions, the Court concluded, “a review of the record reveals that a reasonable mind could conclude that the impact of the Proposed Facility was more than ‘minimally intrusive’ based on evidence that the 120-foot monopole, which would be located in a pristine parkland and visible from a number of streets and residences, was not in the nature and character of the surrounding area and would have a negative aesthetic impact on the scenic view of the Sans Souci Nature Preserve and Sans Souci Lakes enjoyed by residents in the community.”

As to the question of whether the Board’s decision was supported by substantial evidence in the record before the Board, the Court (citing other cases) held that the Board, “acted within its discretion in choosing between ‘the observations of self-interested neighbors’ and ‘an expert study submitted by a self-interested applicant’.”  Local and state zoning laws govern the weight to be given to the evidence, the Court said. The Court noted that, “a number of courts have held that a negative aesthetic impact is alone sufficient to uphold the denial of a siting application, without any consideration of existing alternatives or the wireless carrier’s ‘need’ for the facility.”

The Court also wrote that while T-Mobile’s “need for the facility” and the amount of service actually provided are relevant to the inquiry, that because T-Mobile did not claim the Town’s decision resulted in a prohibition of service, there does is not “a set rule for the corresponding increase in service that must be provided for a public utility to show a ‘need’…  Rather, it appears to be a sliding scale, balanced against the intrusion on the community.”

Decision available at http://docs.justia.com/cases/federal/district-courts/new-york/nyedce/2:2010cv00692/301090/32/


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