Posted by: Patricia Salkin | August 28, 2018

NY Appellate Court Upholds Special Use Permit for Wireless Telecommunications Tower Dismissing Claim of Inconsistency with the Comprehensive Plan and Failure to Comply with SEQRA

This post was authored by Matthew Loeser, Esq,

Petitioners commenced a CPLR article 78 proceeding challenging the determination of respondent Zoning Board of Appeals of the Town of Amherst (“ZBA”) granting 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.

Specifically, Petitioners alleged that the ZBA’s determination to grant the special use permit was inconsistent with the Town’s comprehensive plan. In Chapter 203 of the Code of the Town of Amherst, the Town authorized the ZBA to grant or deny special use permits for the construction of wireless telecommunications facilities (“WTF”), upon review of the application for compliance with various requirements. Here, 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, including: 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. Following the hearing, the ZBA approved the application subject to the recommended conditions and issued a written decision to that effect. Accordingly, the court held that there was no merit to petitioners’ contention that the special use permit ultimately granted by the ZBA was inconsistent with the Town’s comprehensive plan.

Next, petitioners contended that the ZBA issued certain “variances” to the Town’s zoning regulations that did not comply with the requirements of Town Law § 267–b(3). Here, Town Law § 274–b(3) provided that where, a proposed special use permit contains one or more features which do not comply with the zoning regulations, an application may be made to the zoning board of appeals for an area variance. Lastly, the court found that the record established the ZBA properly identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination.” As such, the court rejected 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, 163 A.D.3d 1511 (4th Dept. 7/25/2018)

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