Posted by: Patricia Salkin | December 19, 2019

NY Appellate Court finds that Applicant for Wireless Communications Tower had Standing under SEQRA but Not Under Municipal Home Rule Law

This post was authored by Amy Lavine, Esq.

Petitioner had already applied for a permit to construct a wireless telecommunications facility when the village amended its zoning ordinances and imposed a variety of new restrictions and fees. While the court found that the petitioner lacked standing under the Municipal Home Rule Law, it concluded that the petitioner alleged sufficient injuries to bring claims for illegal fees and violations of the state’s environmental review procedures. The Appellate Division began its decision by dismissing the petitioner’s home rule claims. Contrary to the petitioner’s contentions, the court found that the petitioner lacked standing because it failed to show that it had been injured by the claimed violations of the Municipal Home Rule Law.

The court nevertheless found that the petitioner did have standing to challenge the zoning amendments under the State Environmental Quality Review Act because it had a property interest that would be impacted by the zoning amendments. The trial judge had dismissed the petitioner’s environmental review claims on the basis that it failed to allege any likelihood of environmental harm, but the court emphasized on appeal that such a showing was unnecessary.

The court also found that the trial judge erred in dismissing the petitioner’s illegal fee claim. As the court explained, the petitioner made a sufficient showing of standing because it had a property interest that would be affected by the fees and particularly because it had been required to comply with the amended fee requirements in order to continue with its pending application.


Matter of Up State Tower Co., LLC v Village of Lakewood, 175 A.D.3d 972

(4th Dept. 8/22/19).

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