NY Appellate Court Upholds Grant of Special Use Permit for Telecommunications Tower Finding Decision Consistent with the Comprehensive Plan

This post was authored by Matthew Loeser, Esq.

Petitioners commenced an Article 78 proceeding challenging the determination of respondent Zoning Board of Appeals of the Town of Amherst, which granted a special use permit to respondent Upstate Cellular Network, doing business as Verizon Wireless, for the construction of a wireless telecommunications tower on the property of respondent Public Storage, Inc. in the Town of Amherst. In this case, Petitioners appealed from a judgment dismissing their petition.
On appeal, Petitioners argued that the ZBA’s determination to grant the special use permit was inconsistent with the Town’s comprehensive plan. The record reflected that the Planning Department of the Town submitted an advisory written report to the ZBA containing its analysis of Verizon’s application. While the Planning Department initially concluded that aspects of the application would not be consistent with the Town’s comprehensive plan, it recommended approval of the application upon certain conditions, which included employing stealth design to disguise the tower as an evergreen tree and reconfiguring the site plan to move the tower as far away as possible from adjacent residences. Accordingly, the court held that there was no merit to petitioners’ contention that the special use permit granted by the ZBA was inconsistent with the Town’s comprehensive plan.
Petitioners next claimed that the ZBA, in granting the special use permit, issued certain “variances” to the Town’s zoning regulations that did not comply with the requirements of Town Law § 267–b(3). Here, the court found that the Town had properly exercised its discretion under Town Law § 274–b(5) by authorizing the ZBA, in considering whether to grant a special use permit, to waive “any aspect or requirement” for wireless telecommunications facilities as long as the applicant “demonstrates by clear and convincing evidence that, if granted, the relief, waiver or exemption will have no significant effect on the health, safety and welfare of the Town, its residents and other service providers”
Lastly, the record reflected that the ZBA properly “identified the relevant areas of environmental concern, took the requisite “hard look” at them, and made a “reasoned elaboration of the basis for its determination” to reject petitioners’ contention that the ZBA improperly issued a negative declaration pursuant to the State Environmental Quality Review Act.
Edwards v Zoning Board of Appeals of Town of Amherst, 2018 WL 3567434 (NYAD 4 Dept. 7/25/2018)