T-Mobile sought variances and a special use permit to permit it to co-locate panel antennas on the roof of an office building and to install related equipment in the building’s basement. Two other carriers maintain sites on the roof of the same building, having received requisite variances and permits, and a third obtained variances to collocate but did not install. Nevertheless, the Village Zoning Board of Appeals (ZBA), on the advice of its consultant, denied T-Mobile’s applications.
T-Mobile brought an action in federal court alleging violations of the Telecommunications Act (TCA). The Court adopted the Magistrate’s Report and Recommendations in its entirety, which, among other things, provided that T-Mobile’s Motion for Summary Judgment be granted and that an order be issued directing the Village to issue all necessary variances and permits. In so ruling, the Court held that the ZBA’s decision was not based on substantial evidence, that it unreasonably discriminated against T-Mobile and that it effectively prohibited service by T-Mobile, all in violation of the TCA.
The Court noted that despite the opinion of the Village’s consultant, the site would not have a negative impact on property values and would not have a substantial visual impact. The Court also held that T-Mobile had proven that the site was needed to eliminate a substantial service gap, notwithstanding the Village’s consultant’s opinion to the contrary.
The Court also recognized that apart from a few low commercial buildings in the vicinity of the proposed site, the Village is comprised almost exclusively of private residences. T-Mobile provided proof that it approached the Village to offer to affix antennas to the existing tower on Village property, but the Village was not open to the proposal. Based on these facts, the Court held that the proposed site was the least obtrusive available.
T-Mobile v Village of East Hill, 2011 WL 1102759 (E.D.N.Y. 3/22/2011).
Special thanks to Lawrence Re of Ré, Nielsen, Huber & Coughlin, LLP who represented T-Mobile and who provided this update and the links below to the decision.
The Report and Recommendation can be accessed here
The Order can be accessed here
