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New York SMSA Limited Partnership v. Town of Oyster Bay Zoning Board of Appeals

September 30, 2010


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


On December 1, 2008, Plaintiff, New York SMSA Limited Partnership ("Verizon") commenced this action under the Federal Telecommunications Act of 1996 ("TCA") against Defendant, Town of Oyster Bay Zoning Board of Appeals ("Defendant" or "Board"). Plaintiff claims that Defendant unlawfully denied its application for a special use permit, which would enable it to install the requisite equipment to eliminate a coverage gap in its cellular network. Pending before the Court is Verizon's motion for summary judgment, wherein it seeks an injunction directing the Defendant to grant its application and issue the special use permit and/or variance and such other permits or licenses that are necessary to complete the installation. For the reasons set forth herein, the Court GRANTS Verizon's motion.


Verizon is considered a public utility under the laws of the State of New York. See Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 371-72, 604 N.Y.S.2d 895, 624 N.E.2d 990 (1993). Additionally, Verizon is considered a "telecommunications carrier" under the Communications Act of 1934, the United States Telecommunications Act of 1996 (the "TCA") and the rules, regulations and orders of the Federal Communications Commission (the "FCC"). As such, Verizon Wireless is licensed by the FCC, to provide wireless telephone service throughout New York, including the Bethpage area. (Pl.'s 56.1 Stmt. ¶¶ 1-3.)

The Board is responsible for, inter alia, the review of Special Use Permit ("SUP") Applications submitted in connection with the construction of wireless communication facilities, pursuant to Town Code § 246- (Def.'s 56.1 Counter-Stmt. ¶ 4.) According to the Town Code, cellular communications towers and antennas are permitted in the General Business zoning district when approved as a special use by the Board. (Id. ¶ 13.)*fn1

As of 2007, Verizon was experiencing coverage gaps in the Bethpage area. To completely or partially eliminate these coverage gaps, Verizon sought to erect, operate, and maintain a public wireless communication facility ("Facility") at 40 Seaman Avenue, Bethpage, New York ("Property"). On or about March 8, 2007, Verizon submitted an application ("Application") to the Board to obtain a SUP for the Facility. The Facility would be designed as follows: ten wireless panel antennas, designed using stealth technology, equipment within an equipment shelter and related appurtenances.

Stealth material will be used to hide the antennas and will be designed to resemble the existing bricks on the Building. Two antennas will be mounted flush to the wall of the Building facing Central Avenue and painted to match the Building. Eight antennas will be placed on the existing penthouse of the Building and concealed within stealth material. The equipment shelter will be 12 feet by 30 feet and located on the Building rooftop. Equipment shelter will match the facade of the Building. (Pl.'s 56.1 Stmt. ¶¶ 22-24.)

On March 27, 2008, the Board held a public hearing on the Application ("Hearing"). At the Hearing, Verizon presented substantial evidence that (1) the Facility would be largely concealed, so as to minimize the visual impact on the surrounding area, (2) Verizon considered other proposed sites for the Facility's placement, and (3) the other proposed sites were inappropriate for several reasons, including, most importantly, that placement of the Facility at any of the other proposed sites would not remedy the coverage gaps or could result in future coverage gaps. In response, several residents opined as to why the Property was an inappropriate site for the facility. They provided no evidence to support their positions, and no experts testified except for those called in support of Verizon's Application. Nevertheless, by written decision dated October 16, 2008 ("Denial"), the Board denied the Application on three grounds: (1) the aesthetic appearance/visual aspect of the proposed Facility would be "out of character" with the Building;

(2) Verizon did not sufficiently establish the need for the Communication Facility; and (3) there was an "inadequate investigation" of alternative sites. (Pl.'s 56.1 Stmt. ¶ 58; Def.'s 56.1 Counter-Stmt. ¶ 58.)


I. Federal Rule of Civil Procedure 56: Summary Judgment

Summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d 265, 273 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202, 213 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). "In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). Once that burden is met, the non-moving party must "come forward with specific facts," LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to demonstrate that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson, 477 U.S. at 258, 106 S.Ct. at 2515, 91 L.Ed. 2d at 218. "Mere conclusory allegations or denials will not suffice." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). And "unsupported allegations do not create a material issue of fact." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).

II. TCA Claim

A. Court Review of Zoning Decisions ...

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