In 2002, Nextel (an Omnipoint/T-Mobile competitor) commenced litigation against the Town of LaGrange after the Town had denied Nextel’s application to replace an existing radio tower with new tower. The Nextel/Town lawsuit was settled in 2004, with the Town agreeing to allow Nextel to construct a new 150 foot monopole tower to replace the radio tower. But that was as far as the settlement would go – the settlement agreement explicitly required that any future modifications or alterations at what is referred to in the opinion as the “ATC tower” must comply with the Town Zoning Code (and reserved all rights to challenge the Zoning Code as applied to any such modifications or alterations).
In 2003, T-Mobile attended a pre-application meeting with the Town to discuss three potential options for curing a gap in coverage by the installation of new wireless facilities: (1) collocation on the ATC tower (which was then the subject of ongoing litigation between Nextel and the Town); (2) construction of a new monopole tower at different site; and (3) collocation on a Con Ed transmission tower. T-Mobile’s engineers analyzed each potential option using sophisticated propagation tools, and determined that the ATC tower furnished the most complete remedy for the service gap. Nevertheless, and principally due to the ongoing litigation between Nextel and the Town, T-Mobile submitted an application to construct a new tower, which met with significant resistance.
After the Nextel/Town settlement, T-Mobile shifted its focus to the ATC tower, based on the Town Zoning Code’s expressed preference for collocation over new tower construction (the Zoning Code contains a hierarchical structure which compels collocation whenever possible). Notably, the Zoning Code also contains a provision, section 240-49(G)(5)(b), which prohibits “all communications facilities . . .within 500 feet of any occupied residential dwelling unless expressly permitted, in writing, by all the inhabitants of the dwelling within a radius of 500 feet of the proposed communication facility.” As observed by Judge McMahon, this section of the Code “literally requires an applicant to obtain even the signatures of children (some of whom may not be able to write), or else to receive a variance [from the signature requirement] from the ZBA.” On April 3, 2006, the Town Building Inspector informed T-Mobile that, since it had no chance of obtaining all the signatures required to authorize its collocation on the ATC tower, it must obtain a variance from the signature requirement. T-Mobile applied for the variance under protest. After a series of public hearings in which the public comment centered on the failed (from the Town’s perspective) Nextel litigation, and the alleged health impacts of RF emissions (a prohibited concern under the Telecom Act), the Town denied the variance request. In other words, T-Mobile was precluded from collocating on the ATC pole as required by the Zoning Code, and was sent back to the new tower proposal. The instant litigation ensued.
Judge McMahon ruled (1) the Town acted appropriately in requiring T-Mobile to apply for an area variance to authorize its proposed co-location of wireless facilities (antennae) on an existing monopole tower; but further held that the Town’s decision (2) was not supported by substantial evidence in the administrative record when measured under the Telecommunications Act of 1996 (TCA) or Article 78(The Town failed to give written reasons for its denial as required by the Section 332(c ) (7)(B)(iii) of the TCA, and the court found that every statutory factor required to be considered in the decision of whether to grant a variance pointed in the direction of granting the request. The Court further noted that “…public officials are supposed to carry out the mandate of the TCA and state law in face of community opposition…,” and that here there was unsubstantiated general community opposition that could not form the basis of evidence to support denial of the variance.); and (3) would have the effect of prohibiting T-Mobile’s provision of wireless service and causing unreasonable discrimination, both in violation of the TCA (the Court agreed that the evidence demonstrated a significant gap in T-Mobile’s wireless network; that co-location at the ATC site would be the least intrusive means for closing the gap; and that the denial of the application has the effect of unreasonably discriminating among providers of functionally equivalent services and that providers were treated unequally in violation of Section 332(c )(7)(B)(i)(I) of the TCA.).
Omnipoint Communications, Inc. v. Town of LaGrange, 2009 WL 2878010 (S.D.N.Y. 8/31/2009).
The opinion can be accessed here
The injunction order is available here
Special thanks to William A. Hurst, Esq. of Hiscock and Barclay for this update.
