Posted by: Patricia Salkin | February 25, 2012

Fed. Dist. Court I NY Finds Town’s Slow Approval Process Violated Telecommunications Act and Ordered Permit to be Issued

Plaintiff, Bell Atlantic Mobile of Rochester, doing business as Verizon, hereinafter “Verizon,” proposed to build a cell tower to improve their networks and coverage area to provide essential services, such as facilitating 911 calls for a local fire district.  After considering numerous sites, and finding them inadequate to address the significant coverage gap, Verizon submitted an application to replace an existing eighty four foot emergency communications tower on the fire district site with a one hundred twenty foot tower that would allow for co-location, improving local emergency services communications.  In order for the application to be approved, Verizon would need to obtain a special use permit.  On July 26, 2010, the Planning Board made a positive referral to the Town Board.  After numerous hearings, the Town Board issued a positive declaration under SEQRA on February 15, 2011, and March 10, 2011 suggested Verizon utilize a different site.  On March 18, Verizon filed this lawsuit.

Before the United States District Court, Western District of New York, in this matter are the Town of Irondequoit’s and Verizon’s motions for summary judgment.  Verizon alleges two violations of the Telecommunications Act of 1996, unreasonable delay and failure to act on an application (47 U.S.C. § 332(c)(7)(B)(ii)), and unlawful prohibition of the provision of wireless services (47 U.S.C. § 332(c)(7)(B)(i)(II)).  The court, addressing the Town’s possible dilatory conduct, provided that the Town must act in a reasonable period of time, a term undefined by the statute.  The FFC has provided that it should take no more than 90 days to process a siting application and 150 days to process all other wireless applications.  If this time period is not met, there is a presumption that the municipality did not act in a reasonable time.  If this presumption is not rebutted by the Town, the court can provide the applicant with an appropriate remedy. 

In determining whether the Town’s actions were dilatory and in violation of the TCA, the court focused on the positive declaration made by the Town.  The court stated that SEQRA requires an initial determination be made as early as possible as to whether the proposed action will have a significant effect on the environment.  Verizon alleged, and the Court agreed, that the positive declaration was pretextual and without evidentiary support, as there were no other available sites that could remedy the gap, there were no safety concerns at the fire district site, and RF emissions could not be considered.  In sum, there was no “substantial controversy over a potential impact,” but a public controversy, which could not invoke the use of SEQRA.  Thus, SEQRA’s invocation was pretextual and dilatory.

Since there was a finding of dilatory conduct, the court found the Town of Irondequoit violated the TCA.  As a remedy, Verizon sought a permanent mandatory injunction, which requires a showing of irreparable harm and success on the merits.  The court found that this remedy would be appropriate in this case, as any further delay would only reward the Town for their improper conduct.

The Western District of New York ruled that the Verizon’s motion for summary judgment be granted and the Town’s motion for summary judgment be denied.  Further, the court ordered the approval of Verizon’s applications to build the one hundred twenty foot tower on the fire district site. 

Bell Atlantic Mobile of Rochester v. Town of Irondequoit, 2012 WL 289963 (U.S. Dist. Ct., W.D.N.Y. 1/31/ 2012),

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=5071739502735268435&hl=en&as_sdt=2&as_vis=1&oi=scholarr.


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