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SITETECH v. BOARD OF ZONING APPEALS OF BROOKHAVEN

March 30, 2001

SITETECH GROUP LTD., NEXTEL OF NEW YORK, INC., AND SPRINT SPECTRUM, L.P., PLAINTIFFS,
V.
THE BOARD OF ZONING APPEALS OF THE TOWN OF BROOKHAVEN, DEFENDANT.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

I. BACKGROUND

For purposes of this decision, the record can be summarized as follows. Nextel and SSLP are licensed by the Federal Communications Commission ("FCC") to construct, maintain, and operate personal wireless telecommunications systems in the New York metropolitan area, including Suffolk County. As plaintiffs explain, to provide wireless service, each carrier creates a grid-like pattern of individual "cell sites," or facilities, where an antenna and related equipment are placed. A subscriber using a wireless telephone must be located a short distance from the cell site to receive service. The signal travels from the wireless telephone to the antennas and then connects to a land-based telephone system where the call is completed by a normal telephone route. As a subscriber travels from one area to another, the signal is handed off to the next adjacent cell site. For a subscriber to have continuous service, the area that each cell site covers must overlap to avoid having the call dropped from the service.

Nextel and SSLP determined that there was a "gap" in continuous service in the Miller Place area, and each developed a "search area" where the cell site would have to be located to "fill" that gap. Since their search areas were similar, they sought to co-locate their cell sites. They determined that there were no water towers, buildings, or other structures of sufficient height to service the gap, and they decided that they needed to construct a 150-foot monopole on which to locate their antennas. Eventually they chose the Aliano Shopping Center on Route 25A in Miller Place as the site, as it was located within their overlapping search areas and was zoned as a "J-3 Business" zone — a location where a communications tower may be situated in the Town.

Under the Brookhaven Town Code (the "Code"), communications towers are permitted in various zoning districts, including, inter alia, J-3 Business zones, upon the issuance of a special use permit by the BZA. In this respect, in March 1998, the Town added to the Code article XXXVIII, entitled "Wireless Communications Towers and Antennas." This article provides guidelines for the siting of wireless communications towers and antennas, and includes the following expression of legislative intent:

[T]he [BZA] hereby determines to establish general guidelines for the siting of wireless communications towers and antennas in order to: (1) protect residential areas and land uses from potential adverse impacts of towers and antennas; (2) encourage the location of towers in non-residential areas; (3) minimize the total number of towers throughout the Town; (4) encourage the joint use of new and existing tower sites as a primary option rather than construction of additional single-use towers; (5) encourage users of towers and antennas to locate them, to the extent possible, in areas where the adverse impact on the surrounding community is minimal; (6) encourage users of towers and antennas to configure them in a way that minimizes the adverse visual impacts of the towers and antennas through careful design, siting, landscape screening, and innovative camouflaging techniques; (7) enhance the ability of the providers of telecommunications services to provide such services to the community quickly, effectively, and efficiently; (8) consider the impacts upon the public health and safety of communication towers; and (9) avoid potential damage to adjacent and/or nearby properties from tower failure through appropriate engineering and careful siting of tower structures and/or facilities.

Code § 85-452. The Code also requires that new towers be set back from any adjoining lot line a distance equal to at least 150% of the height of the tower, although the BZA, in its discretion, may reduce the setback requirement to 75%, if "the goals of the local law, would be better served thereby." Id. § 85-457(B)(4)(a), (c). Consequently, for a 150-foot monopole, a 150% setback requires 225 feet of setback, and a reduced 75% setback requires 112.5 feet of setback.

In August 1999, Nextel and SSLP submitted an Application for a Building Permit to the Town's Building Inspector. The application was denied, and plaintiffs were advised to obtain a special use permit from the BZA. Plaintiffs then submitted an application for a special use permit to the BZA, and in December 1999, a public hearing was held on the permit application.

At the hearing, plaintiffs had a real estate appraiser, a planner, a registered architect, and two radio frequency engineers testify in favor of granting the permit. The real estate appraiser presented testimony that the proposed structure would not have a negative effect on existing property values. The planner testified that the proposed structure would not have a negative effect on the aesthetics of the location. The architect described the proposed building plan and presented evidence to support the soundness of the proposed structure. The radio frequency engineers testified as to the technological necessity of locating the cell site at the proposed location.

Testimony in opposition to the permit application was presented by a number of local residents, a local legislator, several members of the Board of Directors of the Miller Place Civic Association, a representative of the Miller Place Senior Citizens Club, and the President of the Miller Place Historical Society. Much of this testimony addressed the negative aesthetic impact of the proposed monopole, its incompatibility with existing architecture, and the existence of alternative sites. In this respect, a number of residents testified that the proposed monopole would have a negative aesthetic impact on the area. Testimony described the history of Miller Place; the prevailing architecture and its significance in light of that history; and the architecture of the Aliano Shopping Center and the incompatibility of the structure of the proposed monopole with that architecture and with efforts Miller Place had undertaken to make aesthetic improvements along Route 25A. In addition, members of the Civic Association also presented a visual impact study consisting of a balloon test and photographs to demonstrate the negative visual impact of the proposed monopole.

Evidence regarding the negative impact on property values included letters, petitions, and testimony of local residents that the monopole would negatively impact property values in the surrounding community. Martin Haley, a local legislator, testified that he believed property values would be negatively impacted. In addition, the record included a letter from a local real estate agent expressing the view that the proposed monopole would have a negative effect on surrounding property values.

Testimony also addressed the concern that the monopole did not meet the setback requirement. There was evidence demonstrating that the monopole was within 30 feet of retail stores, a beauty parlor, and restaurant — businesses patronized by local residents — and public parking spaces, and that local residents patronizing those businesses would be subject to danger should the monopole fail.

By written decision dated February 9, 2000, the BZA denied the application, concluding that: (A) the "granting of the special permit will impair the value of and have an adverse impact on neighboring residential properties"; the "proposed monopole will be in close proximity to residences and would be the tallest structure"; and "[t]here is insufficient tree coverage and foliage to adequately screen the monopole"; (B) the "proposed monopole will have a negative visual impact on the aesthetics of the Miller Place community"; (C) "since the monopole is operating below [FCC] guidelines, the [BZA] is preempted from addressing the health or environmental effects of radio frequency emissions"; and (D) although plaintiffs "have demonstrated a need for the monopole in ...


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