Plaintiff New York SMSA Limited Partnership, doing business as Verizon Wireless (“Verizon Wireless”), was denied a building permit by the Town of Oyster Bay, New York, Building Department because they were required to obtain a special use permit from the Board pursuant to § 245 – 18.104.22.168.1 of the Town Code. Verizon Wireless was seeking to construct and operate a public wireless communication facility within a steeple of an existing church, an equipment area secured with an 8 ft. high chain link fence within the basement, an emergency back up generator (“generator”) with sound enclosure on rooftop of the church, two global positioning satellite units to generator support framing, along with all other related structures, equipment, devices and cables (“facility”). According to the plan, the generator would have been three feet and eight inches above the top of the roof. In addition there was a preschool located at the site. The facility was to be unmanned, but a service person would check on the facility periodically. Verizon Wireless asserted that the permit would remedy a gap in service.
A hearing on the permit was held before the Board where Verizon Wireless was represented by a licensed engineer who testified about the facility and the general design. A surveying and landscape architecture company testified that the proposed alterations would not be visible from certain locations within the neighborhood. That the generator was visible from some vantage points, but the plan was to paint the generator black to blend in with the rooftop. Their expert opinion was that there would be no significant impact to the character of the church or the neighborhood. A health and safety expert testified that the application complied with Federal Communications Commission (“FCC”) guidelines for emissions. A radio frequency engineer discussed the service gap. An expert, who researched all the alternative sites, submitted an affidavit concerning the efforts to investigate potential locations for a wireless facility. A certified appraiser testified that the application would not impact real estate property values because it was concealed.
Community members opposed the facility because the neighborhood was residential and the structure would be visible and health related concerns. Also, many testified that they had Verizon Wireless service and never experienced a gap in service. There was a concern that if Verizon Wireless were allowed to use the church, other carriers would seek to use the church for similar purposes. There was also an argument that the target was the 27,000 drivers who use Route 106 and since talking on cellular telephones while driving is illegal in New York, it was not necessary to provide service. Additional Evidence was also presented including testimony that the generator would make noise, but it would be at 51 decibels and because the average general noise in the community was 58 decibels, the generator would not have a significant impact to the noise level in the area. Verizon Wireless told the Board that if there were a problem with the generator, they would be willing to remove it. A member of the church testified that the church supported the plan.
The Board denied the application basing its decision on the above and on their own personal knowledge of the premises and inspection of the site and surrounding neighborhood.
In their decision the Board first considered Section 9.4.1 of Town of Oyster Bay Zoning Code, which stated:
The proposed location and size of the special permit use, the nature and intensity of the operations involved in it or conducted in connection with it, the height, bulk, density, architecture and orientation of proposed structures, the size of the site in relation to it, the character of the district in which it is located, the location of the site with respect to places of worship, schools, recreation areas or other places of public assembly and the location of the site with respect to streets giving access to it shall be such that it will be in harmony, both visually and otherwise, with the appropriate and orderly development of other properties in the area in which it is located, consistent with any plans which may have been duly adopted by the Town Board for the hamlet or other geographic area in which the use will be located.
The existing building was used as a place of worship within a completely residential neighborhood that had been that way for decades and the attached structure to this 100 year old church was a pre-school which was shielded from commercial uses;
The nature and intensity of the proposed actions and the proposed structures did not conform to the character of the district. It was clearly not in harmony with the appropriate and orderly development of the area;
That given the generator’s location on the roof, the design was not stealth and was an over-intensification of use. Verizon Wireless’s plan to paint it black would not help because the roof was not black and it was not something that would be “stealth” to the naked eye.
The Board then considered the special use application in relation to Section 9.4.2 of Town of Oyster Bay Zoning Code, which stated:
The physical characteristics of the site, including its soils, vegetation, topography, wetlands and other environmental features and physical characteristics, shall be such that the land will be suitable and conducive to the orderly, safe and appropriate development of the proposed special permit use, including its proposed design and location on the site, its proper buffering from surrounding properties and land uses, and the protection provided for environmental features, including wetlands, steep slopes, and important vegetation, especially mature woodlands and specimen trees.
The Board found the offer to remove the generator from the application never happened. Therefore, the generator was part of the application and the generator would not have adequate buffering.
The Board then considered Section 9.4.3 of Town of Oyster Bay Zoning Code, which stated:
The proposed special permit use, including its design and location on the site, will not create a hazard to life, limb or property because of fire, flood, erosion or panic, or by its inaccessibility for the safe and convenient entry and operation of fire and other emergency apparatus, or by the overcrowding of land or undue concentration or assemblage of persons within such or upon such property.
The Board found that this had not been met since there was not an adequate emergency plan.
The Board also considered Section 9.4.5 of Town of Oyster Bay Zoning Code, which stated:
The location, nature and height of buildings, walls and fences and the nature and extent of existing or proposed plantings, including buffer screening, on the site shall be such that the special permit use will not hinder or discourage the appropriate development and use of adjacent land and buildings nor will it impair the value thereof.
The Board found that this proposal was a hindrance to the appropriate development and use of adjacent land because of the location of the generator, the building’s new height on the roof and the proximity to the residences. The generator would be directly in the line of sight of the residences across from it. Coupling that with the fencing on the interior would change the nature of the use of the existing building. This in return would affect property values.
The Board next considered Section 9.4.6 of Town of Oyster Bay Zoning Code that related to noise, traffic, fumes, vibration or other characteristics than would be the operations and impacts of permitted uses not requiring a special use permit in that zoning district. The Board noted that concerns about the proximity of the generator to homes had been raised.
The Board then considered Section 9.4.8. of Town of Oyster Bay Zoning Code that pertained to the limitations of smoke, gas, dust, odors, noise, waste, vibration, heat, electromagnetic interference, fire, radiation and traffic. The Board found it had failed here because other than a report about electromagnetic interference, there was no actual analysis about the standards. The Board found that there was not enough information in the record to determine whether the special use permit met Section 9.4.13 of Town of Oyster Bay Zoning Code.
The Board next considered whether Section 9.4.14 of Town of Oyster Bay Zoning Code was implicated, which stated: The safety, health, welfare, comfort, convenience and order of the Town will not be adversely affected by the proposed special permit use and its proposed location on the site. The Board found that based on the public testimony this provision was implicated because the neighborhood would be detrimentally impacted because adding another commercial use, in addition to the pre-school, would set an unwanted precedent.
The Board then considered whether the proposed use would provide economic benefits to the Town and its residents, and at the same time, would avoid adverse economic impacts of other existing uses pursuant to Section 9.4.15 of Town of Oyster Bay Zoning Code. The Board found that there was no economic benefit to the Town and its residents because it was not shown how this application would avoid adverse economic impacts on the value of the residences surrounding it.The Board considered whether the application was in line with Section 5.5.9 of Town of Oyster Bay Zoning Code, which stated:
The applicant shall also prepare and submit a study which demonstrates a public need for each such tower based upon an area service plan which minimizes the number of such facilities within the Town, maximizes co-location and shared use of existing or proposed towers and analyzes alternatives which may be available to minimize visual impacts and exposure levels.
The Board found that this standard was not met since there was no need for a wireless tower in the location and that it was not shown that sufficient due diligence was done of the shared use of existing or proposed towers.
The Board disagreed with the assertion of a service gap because the Board found the models used in the report were not an accurate representation of the service in the area. Based on the board’s own investigation, the gap occurred further south of the site. The Board noted there was scarce traffic in the area that would be using cellular service due to the preserve.
Subsequently, Verizon Wireless commenced an action against the defendants pursuant to the Telecommunications Act of 1996 (“TCA”) and Article 78 of the New York Civil Practice Law and Rules (“Article 78″). Verizon Wireless asserted that the Board unlawfully rejected its application. They moved for summary judgment and requested that the United States District Court order the Board to issue a special use permit. Wireless carriers are public utilities under New York law and their application must be evaluated under the standard articulated by the Court of Appeals in Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598. Under the Consolidated Edison ‘public necessity’ standard, a utility must show that (1) its new construction ‘is a public necessity in that it is required to render safe and adequate service’; and (2) ‘there are compelling reasons, economic or otherwise, which make it more feasible’ to build a new facility than to use ‘alternative sources of power such as may be provided by other facilities.’” Here, this meant that Verizon Wireless had to prove three elements: a coverage gap, that the proposed facility would remedy the coverage gap, and that the proposed facility would have a negligible impact on the community.” The court held contrary to the Board’s decision, the Consolidated Edison test was satisfied.
On the matter of the gap in service, Verizon Wireless had established it. Other than the expert testimony that supported there was a gap; the Board had no evidence before it to conclude otherwise. The Board’s conclusion, which was based on its own test and analysis, was unsupported by substantial evidence in the record. Therefore, there was a need for a facility to remedy the gap.On the matter of the proposed facility remedying the gap in Service, the evidence showed that the gap would be remedied. But, because the Board determined that there was no gap in the service, it did not reach the question of whether the existing gap would be remedied by the proposed facility.
However, substantial evidence in the record supported the conclusion that the gap in service would be remedied. On the matter of the proposed facility being a minimal intrusion on the community, the only visible aspect of the proposed facility was the generator, which was to be painted black to match the color of the roof. In addition, the facility was to be unmanned, which would not increase traffic in the community. The Board’s additional considerations were grouped into four categories under the minimally intrusive category: (1) the proposed facility would affect the aesthetics of the community; (2) the proposed facility would affect property values in the community; (3) less intrusive alternatives were not considered; and (4) the impact of the proposed facility on the health and safety of the community.
On the matter of aesthetics, the Board’s concerns were not supported by substantial evidence in the record. Speculative concerns about the ‘potential visibility’ of a proposed tower was not sufficient enough to deny an application absent some form of objective support in the form of ‘photographs, site plans, or surveys. The Board failed to rely on actual evidence in the record when making its determination that the generator was not stealth. On the matter of property values, the Board’s determination that property values would be negatively affected was not supported by substantial evidence in the record. There was no substantial evidence in the record that buyers were known to have decided not to buy a property when it was located next to a wireless facility. On the matter of alternative sites, there was no substantial evidence to support the Board’s assertion that Verizon Wireless failed to conduct due diligence to find an alternative site.
Other than speculation that the alternative sites were more appropriate and Verizon Wireless should have tried harder, the Board presented no evidence that the other sites were feasible or appropriate alternatives. With respect to health and safety concerns, there was no indication in the record that the Board was unduly swayed by health and safety concerns. Under the law, a zoning board in rendering a decision may not consider community concerns that wireless emissions may affect the health of the community and the environment when the emissions are within FCC emission regulation levels. The Board stated at the Hearing and in its decision that it was aware that it could not consider health concerns.
For the reasons set forth above, Verizon Wireless’s motion was granted and issuance of a special use permit was ordered.
N.Y. SMSA Ltd. P’ship v. Town of Oyster Bay & Oyster Bay Zoning Bd. of Appeals, 2013 WL 4495183 (E.D.N.Y. 8/16/2013)