Zoning Law and Practice § 11.24.]; Genesee Telephone Co. v. Szmigel, 174 Misc. 2d 567, 667 N.Y.S.2d 588, Slip Op. Index No. 6707/96, Sup. Ct., Monroe County, Feb. 6, 1997 (Calvaruso, J.)[Holding that "it is incumbent on Cellular One to show compelling reasons why the proposed [cell tower site] request is more feasible than other options."].
Sprint achieved "in-vehicle" coverage (-103 dBm) with one tower in the similarly-constituted neighboring towns of Walworth and Macedon. However, throughout this litigation, Sprint has consistently referred to the "in-building" level of coverage (-99 dBm) as Sprint's "goal" or "objective," for the Town of Ontario without providing any authority (FCC regulation, license condition, etc.) as to why that higher level of coverage is the minimal level which would be "adequate" for the Town of Ontario. Even so, the Town still had the authority to determine whether Sprint could provide that level of service with fewer than three towers.
Finally, the Town has shown by substantial evidence that Sprint can provide the "in-building" level of service to Ontario with sufficient overlap of coverage to neighboring towns by erecting only one centrally located tower.
Evidence in the record which supported the Town's decision includes computer-generated diagrams prepared and submitted by Sprint (Figures F-2 and F-5, attached as Exhibit L to the Hornick Affidavit), which show the comparative areas of "in-building" coverage achieved with Sprint's proposed three towers (Fig. F-2) as opposed to the Town's proposed single, centrally-located 250-foot tower in an industrial zone (Fig. F-5). A comparison of each alternative shows that the area of in-building coverage is substantially similar under both options. Particularly noteworthy is the fact that both options clearly provide the "in-building" level of service to the most heavily-populated (western) portion of the Town, which according to Sprint's own testimony before the Board, was its primary objective. [See Minutes of May 20, 1997 Board Metting, attached at Exhibit I to Hornick Affidavit, in which Sprint's attorney told the Board that "the PCS license requires Sprint to cover people rather than a requirement to cover an area. The goal is to be where the people are."]
I find that the Town Planning Board's denial of site plan approval for Sprint's proposed three towers was supported by substantial evidence in a written record as required by § 332(c)(7)(B)(iii) of the Act. The Town made specific written findings after conducting no less than nine lengthy meetings or hearings on Sprint's applications. Those findings were based on the evidence submitted to the Planning Board by Sprint and by other interested parties which supported the conclusion that the proposed towers would have a cumulative economic, environmental and visual impact on the Town.
Guided by the traditional zoning factors set forth for site plan approval in N.Y. Town Law § 274-a and the 1996 Ontario Zoning Ordinance, the Town considered the cumulative impact of three towers and determined that the project as a whole was not entitled to site plan approval. The Town found that Sprint could provide the same or similar "adequate" service with substantially less economic, environmental, and aesthetic impact by erecting one 250-foot tall tower in the Town's industrially zoned district. The Town was left with no option but to deny Sprint's applications because Sprint insisted on an "all-or-nothing" approval of all three sites.
Discrimination Among Providers: 47 U.S.C. 332(c)(7)(B)(I)(I)
Sprint maintains that the Town's denial of its applications "unreasonably discriminate[s] among providers of functionally equivalent services" in violation of 47 U.S.C. § 332(c)(7)(B)(I)(I). Sprint argues that Frontier Cellular was granted a permit by the Town in 1993 to erect a 250-foot cellular tower without having to provide much of the information (including the detailed environmental data) which was required of Sprint. It complains that the Town's actions have the effect of denying Sprint the opportunity to compete for cellular customers in Ontario.
The record shows that Frontier erected a single tower within the Town's public utility corridor in an industrially zoned area - the exact proposal which Sprint has rejected in this case. In support of its actions, the Town cites the Congressional Conference Committee Report explaining that it was Congress' intent that the phrase "unreasonably discriminate between providers" would
provide localities with the flexibility to treat facilities that create different visual, aesthetic or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor's 50-foot tower in a residential district.
H.R. Rept. No. 458, 104th Cong., 2nd Sess. 208 (1996).
I find that the Town has not "unreasonably discriminated" among providers of personal communications services. Although the Town did not require Frontier to submit the lengthy Draft and Final Environmental Impact Statements and other supporting documentation which Sprint was required to provide, the circumstances of the Frontier application were significantly different than those of the Sprint applications. The Town Planning Board's status as the SEQRA "Lead Agency" required it to mitigate adverse environmental impacts to the maximum extent possible. The Board's determination that the Sprint applications for construction of three towers in residential zones required submission of the detailed Environmental Impact Statements did not constitute an "unreasonable discrimination" among providers. Likewise, the Town's approval of a singular tower in the public utility corridor of an industrial zone for Frontier and denial of Sprint's applications for three towers in residential zones is not an "unreasonable discrimination," even if it places Sprint at a competitive disadvantage.
Prohibiting Wireless Services: 47 U.S.C. § 332(c)(7)(B)(I)(II)
Sprint claims that the Town's decision also violates the Act by "prohibiting or having the effect of prohibiting the provision of personal wireless services," as proscribed by 47 U.S.C. § 332(c)(7)(B)(I)(II). Sprint contends that in denying its applications, the Town has prohibited Sprint from providing digital PCS service which is an advance in cellular communications technology over the analog technology now being used by other cellular companies in the Town.
There is no question of Sprint's need to erect a cell site in the Town of Ontario to eliminate service gaps and to integrate its service with the neighboring townships. But, the Town was left with no choice but to reject Sprint's "all or nothing" applications for three towers. The record is clear that the Town would grant Sprint's application for one 250-foot tower in the Town's industrial zone but Sprint has refused to modify its request for anything less than three towers. I find that the Town has not violated the Act by "prohibiting the provision of personal wireless services."
The Town has not violated any provision of the Federal Telecommunications Act, New York state law, nor the Town of Ontario Zoning Ordinance. The Town's denial of Sprint's applications was based on substantial evidence in the written record, did not unreasonably discriminate among cellular providers, and did not have the effect of prohibiting the provision of personal wireless communication services. Although Sprint is entitled to deference, as a public utility, to locate a cellular facility in the Town of Ontario, it is not entitled to dictate the number and placement of those facilities. Sprint consistently rejected the Town's proposed alternative of one facility, insisting on its right to singularly determine the level of service and the number of towers necessary to achieve that level of service. Accordingly, it is hereby
ORDERED that plaintiff's motion for summary judgment is denied and the defendants' motion for summary judgment is granted and the complaint is dismissed.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
Dated: Rochester, New York
February 19, 1998
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