Posted by: Patricia Salkin | May 1, 2012

Fed. Dist. Court in NY Finds ZBA Denial of Wireless Facility Violates both Federal and State Law and Orders Approval of Variance

AT&T, a telecommunications provider, discovered a coverage gap in the town of Fenton, New York.  To remedy the gap, AT&T proposed construction of a cellular phone tower and applied for a use variance.  AT&T submitted affidavits from several experts along with the result of a “balloon test.”  For the balloon test, AT&T raised a large balloon to the approximate height of the proposed tower and then drove around the town to see where the balloon, and ultimately the tower, was visible.  There were only a handful of places the balloon was noticeable.  The board conducted several hearings where some community members objected to AT&T’s proposal.  In response to these concerns, AT&T modified its proposal so the tower would be a monopine, or a pole that looked like a pine tree.  Further, the proposed tower was in a wooded lot, surrounded by large trees.  AT&T also presented evidence of the other possible alternatives they considered but ultimately ruled out.  Finally, the zoning board of appeals (ZBA) found that AT&T’s proposal would have no negative environmental impact.  On April 5, 2011, however, the ZBA denied AT&T’s application.  On June 27, 2011, the ZBA finally issued a written decision to the plaintiff, explaining its decision. 

AT&T brought this action against the ZBA, alleging violations of the Telecommunications Act of 1996 (“TCA”) and certain New York State law.  The Court explains that the TCA was intended to lessen impediments for the construction of telecommunication facilities, and under the statute a municipality may not deny a proposal unless it is in a written decision, supported by substantial evidence.  Similarly, a telecommunications provider must only show (1) that there is a gap in service, (2) that the proposal will remedy the gap, and (3) that the intrusion on the community will be minimal.  

The court finds, and defense counsel had conceded, that AT&T successfully established a gap in coverage and that their proposal would remedy the gap.  The ZBA’s written decision only referenced one alternative to AT&T’s proposal.  This alternative, explains the court, was a two-site alternative and would require the construction of two separate facilities. The court next examines the ZBA’s argument that the construction would have a negative visual impact.  The court finds that AT&T tried to limit the visual impact of its facility; they proposed construction in a wooded lot and even suggested constructing a monopine.  The court finds that ZBA has not provided substantial evidence that it is more than a minimal intrusion.  Further, although the ZBA disputes the findings from the balloon test, they presented no alternative expert testimony.  The only evidence they presented, finds the court, was conclusory, subjective, and generalized.  Also, once AT&T realized the ZBA disagreed with the balloon test findings, AT&T encouraged the ZBA to perform their own tests, at the expense of AT&T.  Thus, the court finds that the record clearly indicates that AT&T’s proposal would only minimally intrude on the community and that the ZBA’s finding to the contrary was not supported by substantial evidence. 

Next, the court turns to AT&T’s state law claims. Under state law, a ZBA must file a written decision with the town clerk within five days of issuing a decision.  Here, the court finds, the written decision was long after the alleged decisions.  The court also points out that under New York’s state law, cell phone companies are public utilities and, thus, to be granted a use variance, need only show that there is a need for the proposed facility and that the proposal would benefit the needs of the public.  Since the three elements under federal law are paralleled by state law, the only issue is whether there would be more than a minimal intrusion to the public.  Again, the court finds there is no substantial evidence showing more than minimal intrusion. 

Finally, the court considers AT&T’s claims that the ZBA’s denial constituted a violation of the TCA’s ban on effective prohibition of service.  To prevail on this claim, explains the court, AT&T must show there is a coverage gap and its proposal is the least intrusive means to remedy that gap.  Here, it is conceded that a coverage gap exists that would be remedied by AT&T’s proposal.  The ZBA argues that their “two-site alternative” would be less intrusive.  The court finds, however, that this proposal would require construction of two separate towers, resulting in greater visibility of the towers.  Further, the court finds that the ZBA’s alternative would be difficult to conceal either in a monopine or in a wooded area and, thus, would be more visible than AT&T’s proposal.  The court also finds that ZBA’s alternative would require months of negotiation with a new property owner and potential problems receiving a variance.  Thus, the court concludes that ZBA’s denial of AT&T’s application for a use variance was an effective prohibition of service. 

Although the town requests the court to require AT&T to seek approval by the planning board if they prevail on this lawsuit, the court decides to instead grant AT&T’s request of an injunction.  Thus, the court holds that defendant’s denial of plaintiff’s application violated both state and federal law and, thus, declares that decision void and orders the defendants to approve plaintiff’s zoning use variance. 

New Cingular Wireless PCS, LLC v. Town of Fenton, 2012 WL 13539 (N.D.N.Y. 01/04/2012) 

The opinion can be accessed at: http://scholar.google.com/scholar_case?case=4076381644222923729&q=new+cingular+wireless+v.+fenton&hl=en&as_sdt=2,33


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