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T-Mobile Northeast LLC v. Town of Ramapo

September 28, 2009

T-MOBILE NORTHEAST LLC AND T-MOBILE LICENSE LLC, PLAINTIFFS,
v.
THE TOWN OF RAMAPO, THE TOWN OF RAMAPO PLANNING BOARD, PLANNING BOARD CHAIRMAN SYLVAIN KLEIN, MEMORANDUM OPINION BRACHA GOBIOFF, BRENDEL LOGAN, REV. AND ORDER WALTER BRIGHTMAN, JR., JOHN BRUNSON, RICHARD STONE, DORA GREENE, IN THEIR OFFICIAL CAPACITIES, CONSTITUTING THE TOWN PLANNING BOARD, THE TOWN OF RAMAPO TOWN BOARD AND LIBORIO DERARIO IN HIS OFFICIAL CAPACITY AS DIRECTOR OF BUILDING ADMINISTRATION AND CODE ENFORCEMENT, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

In this action, certain subsidiaries of T-Mobile USA, Inc., allege that the Town of Ramapo and related officials and entities violated various provisions of the federal Telecommunications Act ("the TCA"), 47 U.S.C. § 151 et seq., and New York state law when, after a twenty-two month application process, the Town rejected their application to construct a wireless communications tower on Town property. The plaintiffs seek summary judgment on all of their claims and an injunction compelling the Town to approve their application. For the reasons explained below, the plaintiffs' motion for summary judgment is granted, and the defendants are ordered to grant the special permit and site plan approval necessary to enable plaintiffs to build their tower.

I. BACKGROUND

The following facts are not in dispute. Nearly all are derived from the administrative record ("the Record") in this case, and the remainder have not been challenged by either party.

A. The Parties

T-Mobile Northeast LLC and T-Mobile License LLC*fn1 (collectively, "T-Mobile") are in the business of providing wireless telecommunications services. (Gaudioso Aff. ¶ 14.) That business requires T-Mobile to create and maintain a network of cell sites, each consisting of antennas and related equipment designed to send and receive radio signals.

(R. at 00066.) The FCC has licensed T-Mobile to provide wireless communications services throughout New York, including in Ramapo. (Gaudioso Aff. ¶ 14; R. at 00132.)

The defendants are Ramapo, an unincorporated town in New York, as well as Ramapo's Town Board, its Planning Board and that Board's members, and the Town's Director of Building Administration and Code Enforcement (collectively, "the Town"). Ramapo's Town Board is its governing body. (See Defs.' Failure to Deny ¶¶ 18--19 of 1st Am. Compl. in Answer.) The Town Board has delegated to the Planning Board the authority, inter alia, to grant special permits and site plan approvals for the construction and installation of telecommunications facilities like those T-Mobile has proposed here. (See Defs.' Failure to Deny ¶¶ 18--19 of 1st Am. Compl. in Answer.) Ramapo's Director of Building Administration and Code Enforcement bears responsibility for issuing building permits. (See Defs.' Failure to Deny ¶¶ 18--19 of 1st Am. Compl. in Answer.)

B. Ramapo's Regulation of Wireless Services

Since well before this litigation began, Ramapo has regulated the approval of wireless communication services facilities located within its borders. (R. at 00002.) Those regulations are contained in the Town's Zoning Law. (Id.) The content of the regulations has not changed during the period of this litigation. (Pltfs.' R. 56.1 Stmt. ¶ 3.)

Ramapo's zoning regulations prescribe specific height limitations and setback requirements for wireless communications facilities. (R. at 00678--00683.) An applicant may ask the Zoning Board of Appeals to grant it a variance for the height limitation and setback requirements. (Defs.' Opp. 5--6.) Each applicant must also submit an application for a special permit and site plan approval from the Planning Board. (R. at 00682.)

On or about March 30, 2005, the Town Board chose to enact, and later to extend, a law imposing a moratorium on wireless facilities in the Town. (Id. at 00001--00006, 00010--00011.) The moratorium's stated purpose was to allow for the Town's consideration of "additional provisions regarding siting of facilities." (Id. at 00002.) The moratorium precluded any final approval of a special permit or building permit for a wireless communications services facility (Id.), and it remained in effect for a total of nine months. (Pltfs.' R. 56.1 Stmt. ¶ 1.) To date, the Town has proposed no changes to its Zoning Law. (Id. ¶ 3.)

C. The Town's Review of T-Mobile's Application

When a gap in a provider's wireless communications coverage exists in an area, the provider's customers in that area experience inadequate service, including the inability to place or receive calls and the problem of interrupted or disconnected calls.

(R. at 00066.) A gap in T-Mobile's coverage exists in Ramapo. (Id. at 00065--00076, 00213--00226, 000347--00358; Pltfs.' R. 56.1 Stmt. ¶ 28.) The plaintiffs' proposed facility would remedy that gap in coverage. (Id.)

Since at least 2005, T-Mobile has sought to build a new wireless communications facility in Ramapo to address its coverage gap. (R. at 00007--00009.) In October of 2005, while the moratorium was still in place, T-Mobile asked the Board for a waiver to allow it to apply for approval to locate a wireless communications services facility at a public utility gas substation owned by Orange and Rockland Utilities ("O & R"). (Id.) The Board denied that request. (Id. at 00034.)

After the moratorium expired, on April 17, 2006, T-Mobile filed an application to the Planning Board for special permit and site plan approval to install a wireless facility at the O & R site. (Pltfs.' R. 56.1 Stmt. ¶ 4; R. at 00035--00146a.) The application included all required forms, a narrative summary in support of the application, an environmental assessment form, and a site plan. (R. at 00035--00146a.) The narrative summary contained a "technical demonstration that the Facility was necessary to remedy a significant gap in service." (Pltfs.' R. 56.1 Stmt. ¶ 6; see R. at 00065--00094.)

As originally formulated, the application proposed front yard, rear yard, and side yard setbacks-of 176.3, 178, and 104 feet, respectively-smaller than the minimum 200-foot setbacks the Zoning Law required. (Defs.' Opp. 5.) It also proposed a 120-foot tower, which exceeded the Zoning Law's 100-foot height limitation. (Id.) These issues required T-Mobile to apply to the Town's Zoning Board of Appeals for variances. (Id. 5--6.) During the course of the zoning appeals process, T-Mobile agreed to reduce the height of the proposed facility to 100 feet in order to comply with the Zoning Law's height limitation. (R. at 00331--00335, 00337, 00358a.) The Zoning Board eventually granted the other variances in April of 2007. (Id. at 00331--00335.)

The Planning Board initially met to discuss T-Mobile's application on July 11, 2006. (Id. at 00229--00231.) At that time, it asked the applicant to "submit a list of alternate sites that were investigated for placement of the tower." (Id. at 00229.) At the meeting, Raj Makhija, a radio frequency engineer for T-Mobile, explained to the Board how the site was selected. (Id. at 00231.) Mr. Makhija, in response to questioning, described the location of the coverage gap. (Id.) Several town residents voiced concerns about how the tower would look and about the risks it could lower property values in the surrounding area or create health hazards. (Id.) The Town's attorney, Alan Berman, explained that the TCA precluded the Board from considering the facility's possible impacts on health. (Id. at 00230.) The Board adjourned the matter to a September 12, 2006 meeting. (Id. at 00231.)

Following the July 11 meeting, T-Mobile submitted supplemental materials to the Planning Board in response to questions raised at the meeting. (Id. at 00234--00252.) The materials included a chart itemizing alternate sites that T-Mobile had considered and detailing their physical characteristics, square footage, property use, zoning use, and the reasons for their rejection. (Id. at 00241.) In response to a Planning Board member's request for T-Mobile to consider using a tree-pole facility similar to one already in place in Ramapo, T-Mobile agreed to use a tree-pole designed by the same manufacturer. (Id. at00236.)

At the continued public hearing on September 12, 2006, the Planning Board asked which of the alternate sites T-Mobile had visited. (Id. at 00254.) T-Mobile's counsel, Ms. Cara Bonomolo, named three sites. (Id.) She explained that each of those sites would require the construction of a new tower, and that they were located too far to the west to provide coverage to close T-Mobile's coverage gap in the area. (Id.) Ms. Bonomolo also explained that an existing tower located east of the proposed site would not be a feasible location, because the grade elevation there was too low to provide adequate coverage. (Id.) Another T-Mobile representative reviewed August 15, 2006 reports that calculated radio frequency omissions levels for the proposed facility; those reports determined that the site would easily be in compliance with FCC omissions standards. (Id. at 00255.) Still, various town residents voiced concerns that the tower would create health hazards and could spur a decline in the area's property values. (Id. at 00256.) The Planning Board adjourned the matter to October 17, 2006, so that the applicant could review the possibility of locating on other alternate sites with existing towers-specifically, the Summit Park Tank tower and existing towers already located on the O & R site-as well as the possibility of using alternate technologies, like cell towers on wheels ("COW"). (Id.)

Following the September 12 meeting, T-Mobile submitted supplemental materials for the Planning Board to review, including an affidavit by Mr. Makhija. (Id. at 00258, 00274--00305.) Mr. Makhija's affidavit described the unfeasibility of Summit Park Tank's tower, which Mr. Makhija said was too far to the north, and the O & R towers, which he said were not tall enough. (Id.) The submission also contained coverage maps simulating the coverage that various extensions to the existing O & R utility tower would provide. (Id.) Finally, the submission contained a review of cell towers on wheels ("COW"), concluding that it was not a feasible alternative because COW would not remedy the coverage gap-the proposed tower would need to be built in any case-and because COW requires the use of a generator, creating additional and unnecessary noise. (Id. at 00258, 00277.)

On October 13, 2006, the Town's planning consultant, John Lange, submitted a letter to the town's planning attorney that summarized T-Mobile's progress. (Id. at 00309--00310.) That letter stated that the applicant addressed six possible alternatives . . . . Cell coverage maps were provided for each alternative[,] including coverage for each additional 10[-]foot increment to the [existing] O&R Tower locations. With the exception of the O&R sites, none of these sites provides adequate coverage to service the known gaps. With the [existing] O&R locations, the O&R Towers['] height would have to be increased dramatically to provide the coverage. . . . O&R has signed an exhibit stating that the height of these Towers could not be increased to the extent required, eliminating these as alternatives. (Id.) Mr. Lange concluded that, "[w]ithin the limited review parameters available to the Planning Board, the applicant has provided sufficient information on alternative locations to support [its] contention that the proposed site is one that meets [its] coverage requirements with the least impact upon the environment." (Id. at 00310.)

At the continued public hearing on October 17, 2006, the Planning Board adopted a negative declaration pursuant to New York's State Environmental Quality Review Act ("SEQRA")*fn2 which found that T-Mobile's proposal would "not have a significant adverse impact on the environment and . . . no environmental impact statement need be prepared." (Id. at 00311.) Among the Board's reasons for issuing the negative declaration were that

[t]he applicant has selected a site that is a current utility site which is well screened from the surrounding neighborhood. The visual analysis shows that the location will be minimally noticed during the leaf on[-]seasons. . . . The evergreen antenna will help mitigate visual impacts for leaf off[-]times. The antenna has been placed as close as possible to the middle of the site to again mitigate impacts. . . . No residences will be closer than 200 feet of the tower. The applicant has provided alternative site evaluation and co-location information on known and planning board[-]suggested sites. This site provides the best option for closing the coverage gap. No other location could provide the coverage required with the exception of the existing O&R towers number 1 and 4, but each would have required altering the towers to increase their height to one hundred seventy five feet, one hundred feet higher than their current level, an impractical solution. (Id.)

At the October 17 meeting, Ms. Bonomolo described T-Mobile's review of alternative sites and its reasons for finding that each of those sites was unfeasible. (Id. at 00314.) A Board member asked Mr. Lange if he thought that T-Mobile had "exhausted all research to find an alternative site for a cell tower." (Id.) Mr. Lange responded that "T-Mobile had done intense research" and "this proposed site would be the most adequate." (Id.) Mr. Lange added that because "there are no existing structures in the vicinity of this proposed site, . . . new construction is needed by the applicant." (Id. at 00314--00315.) Mr. Lange said that if other companies need service in that area in the future, they may co-locate on T-Mobile's tower. (Id. at 00315.) Several town residents voiced opposition to the construction of a tower in their "back yard[s]," and one resident said he "does not use a cell phone" and thus does not need a facility in the area. (Id.)

Another resident said that the applicant needed to figure out a way to co-locate on an existing tower; Ms. Bonomolo again explained that T-Mobile had considered a number of alternative sites, and that none would close the coverage gap. (Id.) Several residents again said they opposed the tower because of "health issues" or "health risks" from the proposed site, although one person acknowledged that "radio frequency levels are well below the Federal Guidelines." (Id.)

On March 9, 2007, T-Mobile asked the Hillcrest Fire Department if it would be interested in leasing Fire Department property to T-Mobile for construction of its facility there. (Id. at 00330.) The ...


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