Posted by: Patricia Salkin | February 23, 2015

Fed. Dist. Court in NY Orders Granting of Permits for Wireless Communications Tower Finding Gap In Service and No Other Suitable Location Available

Verizon sought to construct a new wireless telecommunications facility consisting of an approximately 150 foot tall monopole (the “Monopole” or the “Tower”) and associated equipment and installations (together the “Facility”). However, under the Town of East Fishkill’s Zoning Code (the “Code”), a special permit issued by the Board is required for the construction of a wireless communication facility within the R–1 (Residential) Zoning District, and the maximum height of a freestanding tower in a residential area is 110 feet. Plaintiffs submitted their joint application with a detailed cover letter to the Town for a special permit with requests for a 40 foot height variance and a wetland/watercourse disturbance permit to install the Facility on the Site. The Board retained its own wireless consultant, Ronald Graiff, P.E. to review and advise the Board on RF issues related to the Application. The Board relied on the conclusion in Graiff’s Initial Report that “the proposed site only provides approximately 20% new coverage (un-duplicated) and nearly 80% overlaps with existing coverage ….,“ and denied the Application.

Under the Telecommunications Act of 1996, the local governments retain authority over “decisions regarding the placement, construction, and modification of personal wireless service facilities,” 47 U.S.C. § 332(c)(7) (A), but may not, among other things, “prohibit or have the effect of prohibiting the provision of personal wireless services.” To establish the first prong of an effective prohibition claim, a plaintiff must establish that a significant gap in wireless coverage exists. At oral argument, Defendants conceded that despite the Denial’s conclusion, they were not contesting the gap. This concession, alone, was sufficient to satisfy the first Willoth prong under the effective prohibition test. Under the second prong of the Willoth test, a local government may deny an applicant’s proposal if an applicant may “select a less sensitive site, … reduce the tower height, … use a preexisting structure or … camouflage the tower and/or antennae.” The court found that the record demonstrated the Plaintiffs satisfied their obligation to make an effort to evaluate alternative locations, and the Board’s denial of the Plaintiffs’ application has left the Plaintiffs with no feasible means of filing the gap. Accordingly, Plaintiffs were granted summary judgment on their effective prohibition claim.

The Board also denied the application on the grounds that the proposed tower would lower property values. Here, the proposed Site is near four large ham radio towers in the neighborhood, and neighbors opposing the Application acknowledged that the ham towers existed on property along Dartantra Drive at the time they purchased their homes. Therefore, the court found the Board’s decision was not based on substantial evidence. Accordingly, the Court ordered that the Board to grant the application and issue all required permits.

Orange County-Poughkeepsie Limited Partnership v Town of Fishkill, 2015 WL 409260 (SDNY 1/30/2015)

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