Posted by: Patricia Salkin | October 26, 2012

Fed. Dist. Court in NY finds Aesthetics Sufficient to Deny Cell Tower Application

T-Mobile Northeast instituted this action to challenge the denial of their special use permit application.  Specifically, T-Mobile asserts the Town of Islip violated the Telecommunications Act of 1996 (hereinafter “TCA”) and Article 78 of the New York Civil Procedure Law and Rules.  In this opinion, the United States District Court, Eastern District of New York addresses the parties’ opposing motions for summary judgment.  The District Court denied T-Mobile’s motion for summary judgment and granted Islip’s cross-motion for summary judgment.

T-Mobile sought to construct a cell tower within the borders of Islip to remedy a “significant gap in service.”  T-Mobile proposed a fenced-in 120 foot tower sitting on a concrete pad roughly thirty by fifteen feet wide.  The antennas would be concealed within the camouflaged monopole and the site would be concealed by an eight foot tall enclosure of shrubs.  T-Mobile sought to site the tower on a ninety-four acre Girl Scouts reserve, as it would provide an optimal balance between cell coverage and visual impact.  The tower would be located in an AAA Residential Zone District, would be near a nature preserve and within sight of residential development.

In recognition of the growing need of cell towers, Islip enacted specific ordinances addressing the unique problems of tower construction.  In order to build a tower, the carrier must obtain a special use permit.  The permitting process is guided by two “preferences;” that existing towers be utilized to minimize the number of towers and that towers be located within industrial and commercial zone districts rather than residential.  During the special use permitting process, the Town is to take into consideration existing land uses and development, the comprehensive plan, and aesthetics.  Furthermore, towers sited in residential districts must also be setback more than 110% of the height of the structure.  Islip has also instituted design standards that require aesthetic impacts of the tower and facilities to be minimized, that the facility be fenced in and concealed by evergreens, and the tower cannot be lighted.  The code gives priority to applications that locate on an existing structure, collocate, or provide multi-antenna facilities, and additionally lists other considerations including height, proximity to other structures, use of adjacent property, surrounding topography and foliage, visual design, and facility access.

A hearing was conducted, and T-Mobile presented a wide range of information concerning the impacts of the facility, its characteristics, the lack of available collocation, location of municipal structures or other sites, the need for the tower, and that it would not adversely impact property value.  In addition, the President of the Girl Scouts of Suffolk County testified to the financial benefits of the plan, that the board had approved it, that the surrounding area was not used by the girl scouts and would become a prohibited area.

Nearby residents and a civil association spoke out against the application.  They claim T-Mobile did not engage in a serious effort to collocate, that the site would harm the environment because trees would need to be cleared and the tower was in the flight path of migratory birds, that the tower is in the flight path of a small runway, the tower is much higher than anything in the area, and the detrimental health effects of the tower due to radiation.  Other newspaper articles and letters were submitted, along with testimony, concerning aesthetics, radiation, pilot safety, children playing in the area, and property value.

After the hearing, the board required a second visual impact study when the leaves were off the trees, which found no significant visual impact.  T-Mobile further submitted additional information concerning the inadequacy of additional sites.  Additionally, T-Mobile submitted a letter from the Islip’s Department of Aviation that agreed with the FAA finding that the tower would not pose a threat to aviation.  A state assemblyman also submitted a letter in opposition.

Following all submissions, the staff of the Planning Department wrote a report advising the approval of the application.  The report stated that T-Mobile had satisfied the concerns relating to collocation, aesthetics, the environment, aviation, coverage gained, and the nature of the surrounding area.

At a second hearing, T-Mobile and the local civic association spoke about the application.  The Town Board voted on and denied the application citing aesthetic concerns and that T-Mobile failed to show the amount of coverage gained by the proposed tower.  The Board later rendered a written decision.  The denial was based on a failure to show that service was needed in the coverage gap, the tower “was not in keeping” with the area, that the tower “adversely impacted the park uses in the area,” adverse aesthetic impacts to nearby residents, and safety concerns related to a nearby grass airfield.

Following this denial T-Mobile filed suit alleging violations of the TCA, that it was based on improper reasons and without substantial evidence, and violations of Article 78, as the decision was not supported by substantial evidence, was an abuse of discretion, and was arbitrary and capricious.

The court first addressed T-Mobile’s claim that the Board relied on adverse health effects of the tower to support their denial, which is prohibited by the TCA.  The record clearly indicated that residents complained of the perceived health effects and that the Board members encouraged this testimony.  However, the Second Circuit has held that this conduct is alone insufficient to find a violation of the TCA.  The District Court stated, “Where, as here, the Board did not explicitly include environmental or health concerns as a basis for denying the Application, but ‘testimony is almost exclusively directed to health effects’, the Second Circuit has directed that ‘there must be substantial evidence of some legitimate reason for rejecting the applications to avoid the conclusion that the denials were based on the impermissible health effects ground.’”  Since the court found there was substantial evidence, as will be addressed below, the court determined this provision of the TCA was not violated, and granted summary judgment in favor of Islip.

The court next addressed the TCA substantial evidence claim.  This provision of the TCA requires a decision to be supported by relevant evidence adequate to lead a reasonable person to deny the application.  In evaluating the facts, the court will construe them in light of the applicable state and local laws.  Under New York law, since carriers are public utilities, T-Mobile needs to meet the public necessity standard.  As such, T-Mobile needs to show a gap in coverage, that the proposed site would meet the gap, and the plan would present minimal intrusion to the surrounding community.  Where this standard is met, the discretion of local bodies is narrowed, but a denial supported by substantial evidence will be upheld.

In light of the aforementioned facts, the District Court determined that the denial was based upon substantial evidence and granted Islip’s cross-motion for summary judgment.  In particular, the court found the aesthetic concerns significant, as well as the concerns related to the tower being sited near a pristine public nature preserve.  These adverse impacts, balanced against the Board’s finding that the increase in coverage would predominantly impact “passive areas,” provided substantial evidence in support of the Board’s denial.  Thus, the court found T-Mobile could not show that the tower would be minimally intrusive.

The court then addressed two of T-Mobiles concerns.  First, the court stated that it did not matter that the denial was “generalized” and did not cite specific facts, as the written record supported the denial.  Second, the court addressed T-Mobile’s three part claim that aesthetic concerns could not support the denial.  Addressing the first sub-claim, the court found the Board was permitted by the Town Code to address aesthetic concerns, even though the tower was permitted in the residential zone district by way of special use permit.  Next, the court found the aesthetic concerns were supported by objective evidence – far from being speculative – given pictures taken from the surrounding area during the crane tests, the fact that the tower is twice as tall as any tree in the surrounding area, and testimony of local residents stating they could see the tower site from their homes.  Thirdly, the court found that although there did not seem to be another feasible near-by location, it was not improper for the Board to weight that factor less than the Planning Department staff or T-Mobile had, as the code did not state how to weigh the factors.

Further addressing the third sub-claim, the court stated it also could not support a violation of TCA’s prohibition provision, as T-Mobile did not show a need of service that cannot be met by less intrusive means.  This argument would have been unavailing, as there are other potential sites along a nearby highway.  T-Mobile had not analyzed the utility of these sites because of their apparent close proximity to residential development.  T-Mobile’s interpretation of the local code resulted in a strategy that focused on sites that could be located a further distance from residential locations, such as on the Girl Scouts camp.  T-Mobile essentially gave more weight to proximity and less to visual aesthetics (although it appears T-Mobile took both seriously).  T-mobile was in a tough spot trying to figure out what would be more important to the Town, and it seems their interpretation was not in sync with the Town’s, as the Board seemed to prioritize aesthetic impacts.

Next, the District Court addressed the Town’s two arguments centering on the proposed coverage area and a lack of service therein.  First, the Town claimed their decision was supported by substantial evidence because T-Mobile failed to show a gap in coverage.  T-Mobile contended, and the court agreed, that this reason could not support the Board’s decision because it was not included as a ground for denial.  In any event, the court found the record indicated that T-Mobile had shown a gap in coverage.  Next, the Town alleged that many of the locations gaining coverage were “passive” locations, and thus T-Mobile did not adequately show a gap in coverage.  Although the town code does not list as a factor ‘the characteristics of the land covered,’ the court found it was a valid factor when determining if the tower was necessary under the public utility standard.  This was because it allowed the Board to balance the benefit of the increased coverage against the intrusion to the community.  In looking to the record, the court found the Board properly balanced the two sides and found the intrusion too great.  In addition, the court also found that record supported the position that the “active” areas of coverage could be serviced by alternative, and less intrusive, sites.  Thus, the court found this second argument provided substantial evidence in support of the denial.

Since the District Court found the Board’s denial was supported by substantial evidence on the aesthetics and need for service grounds, the court stated it was not necessary to address T-Mobile’s complaints concerning the adequacy of the other grounds for denial.  However, the court addressed these grounds for the sake of completeness.  First, the court found that danger to users of the nearby public park was a ground that was not supported by substantial evidence.  This is because any danger would be speculative, and the court seemed to question if this ground was even valid as those put in the speculative danger would be illegally trespassing on the Girl Scouts camp, in a prohibited area.  In addition, the court found the safety concerns relating to the nearby airport were not supported by substantial evidence.  The flight path above the 120 foot tower was at an altitude of 600 feet, hardly causing a danger.  Also, the FAA and the Town’s Aviation Department found there would be no hazard.  Any speculative testimony of nearby residents could not overcome the finding of no hazard.

Lastly, the court addressed T-Mobile’s assertion that the decision was in violation of Article 78 because it was arbitrary and capricious and not supported by substantial evidence.  The court held that this standard is analogous to the TCA standard, and that since the Board’s determination satisfied the TCA, the Article 78 claim must likewise fail.  Thus, the court granted summary judgment in favor of the Town.

T-Mobile Northeast v. Town of Islip, 2012 WL 4344172 (E.D.N.Y., Sept. 21, 2012).

The opinion can be accessed here.

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