The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
In this case, the plaintiff Sprint Spectrum L.P. ("Sprint" or the "plaintiff") alleges that the Board of Zoning Appeals of the Town of Brookhaven (the "BZA" or the "defendant") denied its request for a special use permit to build a 60-foot monopole in East Setauket located in the Town of Brookhaven, New York (the "Town"), in violation of the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. § 332(c). Presently before the Court are Sprint's motion for partial summary judgment and the BZA's cross-motion for partial summary judgment.
The facts are taken from the pleadings, affidavits and exhibits submitted in support of the parties' respective motions. Sprint provides, among other things, personal wireless telephone services to its customers. Pursuant to the rules and regulations of the Federal Communications Commission (the "FCC"), Sprint is licensed to construct, maintain and operate a personal communications service in the New York metropolitan area, including Suffolk County.
Sprint identified a significant service "gap" for its customers in East Setauket. To fill that gap, Sprint claims that it must build a monopole or tower in the "gap" area because the structures in that area were not high enough. Sprint found a site to build a monopole on the west side of South Jersey Avenue in East Setauket which was zoned "J-2 Business"-a location where a communications tower may be located in the Town.
Pursuant to the Brookhaven Town Code (the "Code"), a carrier may construct a communications tower in various zoning districts, including among others, J-2 Business zones, provide that the BZA issues to the carrier a special use permit. The Code provides guidelines for the construction of wireless communications towers and antennas. In that regard, the BZA provides:
[G]eneral 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. Further, the Code 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).
On December 20, 2000, Sprint submitted an application to the Town's Building Inspector for a building permit allowing the construction of a 120-foot monopole, camouflaged as a flagpole. That application was denied. Sprint then filed an application with the BZA seeking a special use permit and in May 2001 a public hearing on the permit application was held. Prior to the hearing, Sprint redesigned its proposed cell site by reducing the height of the monopole from 120 to 60 feet and located the necessary ancillary equipment inside a building instead of on the monopole.
In opposition to the application, a planning consultant, a real estate appraiser, local legislators, a representative from the Setauket Civic Associations and a number of residents testified. Their testimony focused predominately on the negative aesthetic impact of the proposed monopole, its incompatibility with the historic character of the area and alternative options available to Sprint.
In a written decision dated June 13, 2001, the BZA denied the application based on the following conclusions:
A. . . . that 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 in the East Setauket
B. . . . that other wireless communications carriers
are currently providing service to the area of the
subject premises. Moreover, the roaming feature of the
applicant allows a customer to still obtain wireless
services in the `gap' area. Therefore, any gap in
service is entirely limited to the applicant. Thus,
the denial of this application will not have the
effect of prohibiting wireless services in the East
C. . . . that the proposed monopole will have a
negative visual impact on the aesthetics of the East
Setauket community. The testimony and evidence
submitted clearly demonstrated that the subject
premises is located between the East Setauket and Old
Setauket historic district transition zones where the
majority of the buildings are one-story with colonial
facades. Thus, a 60-foot monopole will adversely
impact this area.
D. [t]hat since the proposed monopole would operate
below the required Federal Communication Commission
guidelines, the Board of Zoning Appeals is preempted
from addressing the health or environmental effects of
radio frequency emissions.
In Re Sprint Spectrum, L.P., BZA Conclusions at 6 (June 13, 2001).
On July 6, 2001, Sprint filed the instant complaint against the BZA. The complaint asserts six claims. The first claim alleges that the BZA's denial of Sprint's application was not supported by substantial evidence in violation of 47 U.S.C. § 332(c)(7)(B). The second claim alleges that the BZA discriminated against Sprint because it prevented Sprint from competing in the East Setauket area. The third claim alleges that the BZA's denial of the application violated Sprint's due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. The fourth claim alleges that the BZA's denial violated the "Takings Clause" of the Fifth Amendment to the United States Constitution and Article 1, Section 7 to the New York State Constitution. The fifth claim alleges that the BZA's denial of the application without substantial evidence under the TCA violated 42 U.S.C. § 1983. The sixth claim seeks to set aside the BZA's denial of the application pursuant to Article 78 of the New York State Civil Practice Law and Rules.