Posted by: Patricia Salkin | January 30, 2011

Federal District Court Finds Town Failed to Comply with Substantial Evidence Requirement of TCA in Denying Wireless Facility

In response to coverage gaps in the Bethpage area, Verizon Wireless submitted an application to the Town of Oyster Bay Zoning Board of Appeals to erect, operate, and maintain a public wireless communication facility with ten wireless panel antennas and an equipment shelter.  The Board denied the Application on the grounds that the facility would be out of character with the building it was to be built on, Verizon didn’t establish the need for the facility, and there was inadequate investigation of alternative sites.  Verizon commenced an action under the Federal Telecommunications Act of 1996 (TCA) and filed a motion for summary judgment seeking an injunction directing the Board to grant its application.                     

The federal district court in the Eastern District of New York issued a decision granting Verizon’s motion for summary judgment, noting that the Board, as a local zoning commission acting in its administrative capacity considering the application for a special permit, only had to cite one reason supported by substantial evidence to defend its decision denying the permit.  The Court, upon reviewing the record as a whole, overturned the board’s decision criticizing its position that the decision was based on substantial evidence as “preposterous”. 

Verizon had presented ample testimony from planning, zoning and visual impact experts and introduced several photo stimulations comparing the property before and after the facility would be built.  The simulations showed that the facility would look just like a part of the roof of the existed building and the antennas would be barely discernable or entirely concealed, and outweighed unsupported speculation from opposing residents.  

Defendants argued Verizon failed to satisfy the requirement of the Town Code demonstrating a public need for the tower, because it did not elicit testimony from any customers with a poor signal.  It merely established the “carrier’s need” for the cell site.  The Court disagreed with the “mincing” of defendant’s words, because the carrier, who only maintains service for its customers, shares the same needs as the public.  

In ascertaining whether there was substantial evidence to support the Board’s finding that alternative sites were not investigated properly, the Court found the Board presented no evidence that other sites were appropriate substitutes for the property.  Their suggestion of a viably alternative site was inappropriate because the owner insisted on a term in the lease agreement that would give either party the right to unilaterally terminate the agreement, forcing Verizon at any time to remove the facility and antennas causing a significant disruption in its service on its network.  

The Court concluded that Verizon had in fact met its burden and presented credible evidence, and ordered defendant to grant the application a special use permit necessary to effectuate the installation, with failure to do so 30 days resulting in a reopening of the case and sanctions. 

Verizon Wireless v. Oyster Bay Zoning Board of Appeals, 2010 WL 3837277 (E.D.N.Y. 9/30/10).

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