Posted by: Patricia Salkin | January 3, 2020

Fed. Dist. Court in NY Denies Reconsideration of Telecommunications Case Following the Denial of a Construction Permit

This post was authored by Matthew Loeser, Esq.

Up State Tower Co., LLC developed and built telecommunications facilities on behalf of Blue Wireless, a telecommunications carrier licensed by the Federal Communications Commission (“FCC”). In 2015, made an application which sought permission to construct a wireless telecommunications tower at 1710 Foote Avenue, in Jamestown, New York. The Town Board of the Town of Kiantone denied the application. The court denied reconsideration, and Plaintiff filed a notice of interlocutory appeal. The United States Court of Appeals for the Second Circuit affirmed both decisions.

Defendant first argued that plaintiff failed to adequately investigate other potentially viable sites for constructing a new tower or placing an antenna. The record reflected, however, that in its initial Site Selection and Justification Report, submitted along with its application, plaintiff evaluated nine commercial properties along Foote Avenue. The defendants then requested that plaintiff evaluate additional properties that were not properly zoned, and which would have accordingly required another variance. Plaintiff further demonstrated that, for the alternative sites evaluated, either suitable lease terms could not be reached with the property owners, the owners did not respond to the proposed leases sent to them, or the owners decided not to pursue entering into a lease. Based on the aforementioned, the court found the Board’s conclusion to the contrary was not based on substantial evidence.

Defendants next contended that there was not competent evidence to establish that Plaintiff’s Proposed Site was the least intrusive means to close a wireless coverage gap in the Town. Instead, the evidence indicated that the Proposed Site would not result in any significant adverse impacts on the environment so as to excuse Plaintiff from preparing an environmental impact statement. Here, in the SEQRA review, the Board evaluated and discussed each of the factors to be considered relative to potential environmental impacts. Furthermore, the Board considered the Proposed Site’s “Consistency with Community Plans” and “Consistency with Community Character” and found that it was consistent both with adopted land use plans and community character. Thus, the court found the negative SEQRA declaration was relevant to rebut Defendants’ conclusory and general assertions about intrusiveness of the Proposed Site and demonstrate that they were not supported by substantial evidence. The court therefore affirmed the denial of Defendants’ Motion for Reconsideration.

Up State Tower Co., LLC v Town of Kiatone, 2019 WL 6320335 (WDNY 11/26/2019)

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