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New Cingular Wireless Pcs, LLC v. Town of Fenton and Zoning Board of Appeals of Fenton

January 4, 2012


The opinion of the court was delivered by: Andrew T. Baxter, U.S. Magistrate Judge


Presently before the court is plaintiff's motion, pursuant to Rules 52 and 58 of the Federal Rules of Civil Procedure, for, inter alia, a judgment declaring that the defendants violated the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. § 332, et seq., and New York law, by denying plaintiff's application for a zoning use variance to construct and operate wireless telecommunications equipment in the Town of Fenton, New York.*fn1 On August 12, 2011, the parties stipulated to the administrative record upon which the court could render judgment. (Dkt. Nos. 17, 19, 35). On October 7, 2011, plaintiff filed the instant motion, as well as a supporting attorney affidavit, memorandum of law, and proposed findings of fact and conclusions of law. (Dkt. Nos. 22-24). The defendants filed an attorney affidavit, memorandum of law, and proposed findings of fact and conclusions of law in opposition to plaintiff's motion in November 2011. (Dkt. Nos. 27-29, 31). Plaintiff filed a reply brief on December 5, 2011 (Dkt. No. 34), and on December 19, 2011, the court conducted oral argument and permitted closing statements by both sides.

Based on the administrative record, the submissions of the parties, and the arguments of counsel, the court finds that the denial of plaintiff's use variance by the Town of Fenton Zoning Board of Appeals ("ZBA") was not properly based on a written decision supported by substantial evidence in the record, contrary to both the TCA and New York law. Further, the ZBA's denial had the effect of prohibiting plaintiff from remedying a gap in its cellular telephone coverage in and around the Town of Fenton, also in violation of the TCA. Accordingly, the court orders, inter alia, that the defendants promptly approve plaintiff's zoning use variance and issue all other permits required by plaintiff to place, construct and operate its proposed cellular telecommunications facility in the Town Fenton. The following constitutes the court's supporting findings of fact and conclusions of law, as required by Fed. R. Civ. P. 52.


Plaintiff New Cingular Wireless PCS, LLC is a foreign limited liability company authorized to do business in New York. AT&T Mobility Corporation ("AT&T") is New Cingular's manager.*fn3 Defendant Town of Fenton is a municipal corporation located in Broome County, New York. The Town of Fenton Zoning Board of Appeals ("ZBA") is the town's duly constituted zoning board of appeals, established pursuant to New York Town Law § 267.

A significant gap in AT&T's wireless telecommunications service exists in and around the Town of Fenton. In an effort to remedy this service gap, AT&T proposed to construct and operate, inter alia, a telecommunications facility--a 150-foot cellular telephone tower--at 210 Steed Road in the Town of Fenton. It is not disputed that AT&T's proposed facility would significantly improve telecommunication service coverage in both buildings and vehicles in the Town of Fenton and surrounding areas and, therefore, would adequately remedy AT&T's service gap.

On or about September 16, 2009, AT&T applied to the Fenton Town Board for the creation of telecommunications districts for the construction of the proposed facility along Steed Road, as well as a cellular telephone tower at a separate location along Palmer Hill Road. On May 14, 2010, AT&T withdrew its Palmer Hill Road application. On July 7, 2010, the Town Board denied AT&T's application to create the telecommunications district to accommodate the Steed Road site.

On August 26, 2010, AT&T applied to the ZBA for a use variance to allow the construction of the proposed tower at the Steed Road location. In connection with the use variance application, AT&T made three substantial submissions to the ZBA, including affidavits from a radio frequency engineering expert, reports from a "balloon test" and photo-simulation consultant, and a report from a concealment technology expert. On September 15, 2010, November 16, 2010, and April 5, 2011, the ZBA conducted extensive public hearings devoted to the issues raised by the use variance application. During the three hearings, AT&T's representatives, including the radio frequency and concealment technology experts, testified in support of the variance. Various neighbors and members of the public asked questions and made comments about the proposed facility.

As modified, in response to feedback from the ZBA and the community, AT&T's proposed facility on Steed Road would consist of a 150-foot "monopine" (a monopole concealed to look like a pine tree), with related equipment, located within a fenced compound on a large wooded lot. AT&T's proposed facility would be well-screened from the surrounding community by the topography of, and the tall trees on, the Steed Road site. The balloon test and photo simulations presented by AT&T's experts indicated that, from most vantage points within the surrounding community, the proposed facility would not be visible. In the limited number of neighboring locations where the proposed facility would be visible, only the top portion of the disguised "monopine" would be visible above the surrounding tree line.

During the ZBA's review process, AT&T engaged in a thorough technical evaluation of eleven alternative "solutions" to its service gap, suggested by the ZBA or other town officials. AT&T considered five single-site alternatives, modifications to AT&T's existing facilities in another town, and five different two-site alternatives, evaluating the extent to which the various alternatives would remedy the service gap and/or would be visible to the surrounding community. None of the single-site alternatives was capable from a technical perspective, of adequately remedying AT&T's service gap. The only viable two-site solutions that adequately remedied AT&T's service gap would require the construction of two new 150-foot towers near existing power transmission lines--the "Power Line Solution."

AT&T's expert presented evidence indicating that the two separate towers required to implement the Power Line Solution would have a substantially greater visual impact on the surrounding community than the single-site facility proposed by AT&T. Although the ZBA and some community members criticized the analysis of AT&T's expert regarding the visual impacts of the proposed facility and the Power Line Solution, the ZBA declined AT&T's suggestion that the ZBA engage its own expert, at AT&T's expense, to evaluate the technical issues relating, inter alia, to the visual impact of the various facilities under consideration.

At the conclusion of its meeting on April 5, 2011, the ZBA issued a negative "SEQRA" declaration, finding that AT&T's proposed facility had no negative environmental impact. At the same time, the ZBA also voted to deny AT&T's application for the use variance. On June 27, 2011, the ZBA provided plaintiff with a copy of a undated written decision supporting its denial of the use variance.


A. Overview of the Applicable Legal Framework

1. The Telecommunications Act of 1996

The Telecommunications Act of 1996 ("TCA") is "an omnibus overhaul of the federal regulation of communications companies," the purpose of which is to "provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services . . . by opening all telecommunications markets to competition. . . ." Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999) (citations and internal quotations omitted). "One of the means by which [Congress] sought to accomplish these goals was reduction of the impediments imposed by local governments upon the installation of facilities for wireless communications, such as antenna towers." City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115 (2005). "In section 332(c)(7) of the [TCA], Congress preserved the authority of state and local governments over zoning and land use issues, but imposed limitations on that authority." New York SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 101 (2d Cir. 2010). The Supreme Court has explained the limitations of section 332(c)(7) that are relevant to this action:

Under this provision, local governments may not . . . take actions that "prohibit or have the effect of prohibiting the provision of personal wireless services," § 332(c)(7)(B)(i)(II) . . . . They must act on requests for authorization to locate wireless facilities "within a reasonable period of time," § 332(c)(7)(B)(ii), and each decision denying such a request must "be in writing and supported by substantial evidence contained in a written record," § 332(c)(7)(B)(iii).

City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. at 116.

2. Applicable State and Local Law

a. Standard of Review for Local Zoning Decisions

When a town renders a decision on a use variance application, it must comply with New York Town Law § 267-a(9), which requires the ZBA to file a written decision in the office of the town clerk within five business days after the decision is rendered, and to mail a copy of the decision to the applicant. New York Civil Practice Law and Rules, Article 78, affords relief from local zoning (or other) decisions that are "affected by an error of law," are "arbitrary and capricious," or are not supported by "substantial evidence." N.Y.C.P.L.R. § 7803(3) & (4).

The Second Circuit has summarized the substantive provisions of New York State zoning law that would apply both to plaintiff's state law claim and to its TCA/substantial evidence claim:

In New York, cellular telephone companies are afforded the status of public utilities. . . . As such, a cellular telephone company's application for a variance must be judged by [a] Town Board on a different standard than that applied to the usual application for a use variance. . . . Rather than granting a variance only on a showing of "unnecessary hardship," a local zoning board must consider whether the public utility has shown "a need for its facilities" and whether the needs of the broader public would be served by granting the variance. . . .

However, aesthetic concerns can be a valid basis for zoning decisions. Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999) (citations omitted).

b. Town of Fenton Zoning Requirements

Pursuant to § 261 of New York Town Law and Municipal Home Rule Law, a town has the authority to adopt zoning regulations that govern, among other things, the location and use of buildings, structures and land for trade, industry or other purposes. Pursuant to this authority, the Fenton Town Board enacted Chapter 150 of the Town Code ("Zoning Code"), to regulate the use of land and the location, use and occupancy of buildings within the town. The Zoning Code prohibits telecommunications facilities anywhere in the town except in approved telecommunications districts. Zoning Code § 150-20.6(A). In order to construct and operate a wireless telecommunications facility in the town, a wireless service provider must select an appropriate location in which to construct such a facility and then either obtain a telecommunications district designation from the Town Board or obtain a use variance from the Town ZBA. (R. 4, 49).*fn5

B. The ZBA's Denial of Plaintiff's Use Variance

At the conclusion of the April 5, 2011 hearing, the ZBA issued a negative SEQRA declaration, finding that the proposed facility had no negative environmental impact. (R. 494-495). State Environmental Quality Review Act (SEQRA), N.Y. Envtl. Conservation Law (ECL), Article 8. The ZBA members present then proceeded to vote unanimously to deny plaintiff's application for a use variance, after which the Town Attorney reminded the board members that they were required to produce a detailed written statement of the reasons for the denial. (R. 499). It was not until June 27, 2011, following a Freedom of Information Law Request and the filing of the instant action by AT&T, that the ZBA provided plaintiff with a copy of a undated written decision. (Graham Aff. ¶¶ 19-20, Dkt. No. 24). The "Decision" portion of the ZBA's written denial reads as follows:

Pursuant to Town Code §150-45, The Town of Fenton Zoning Board of Appeals hereby denies the Use Variance.

The Board considered all of the information as presented by AT&T and appreciated the additional ...

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