Plaintiff filed an action against Village alleging violations of the Telecommunications Act of 1996 (TCA) after the Zoning Board of Appeals (ZBA) denied its application for a special exemption permit. Plaintiff, a wireless communication services company, wished to fill gaps in service and applied for a permit to attach six antennas on three additional pipe mounts to existing bulkheads. The Village, denied the permit stating that the antennas would exceed the height limits in the Zoning Code. When plaintiff applied for the required variances and special exemption permit, the application was denied on the grounds that approval would “worsen a continuing adverse effect and/or negative impact in neighborhood aesthetic conditions.” The ZBA also stated that the marketability of neighborhood homes would be impacted and that the potential benefit to the plaintiffs was outweighed by the detriment posed to the community’s health, safety and welfare. Plaintiff appealed and noted that the same variances had previously been granted to another wireless communication company and that decision violated the restrictions on community zoning of wireless communication services pursuant to the TCA.
The Court found that the ZBA failed to provide substantial evidence for denying plaintiffs applications particularly in light of the fact that several other wireless communication providers had been approved for similar variances and permits. The Court determined that same with regard to the ZBA’s determination that an approval would cause an “unsightly” effect on the neighborhood. Further, the Court said that the ZBA relied on unsupported expert testimony when it determined that plaintiff did not lack a gap in coverage and used this rationale to deny plaintiff’s application. As such, the Court stated that the ZBA’s finding that plaintiff had not established a significant gap in coverage was not supported by substantial evidence. As to the health, safety and welfare issue, again the Court noted that the ZBA’s decision was not supported by substantial evidence because the decision does not suggest any manner in which the antennas would affect the health, safety and welfare of the residents.
MetroPCS New York, LLC v. Village of East Hills, 2011 WL 251105 (E.D.N.Y. 2011)
