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Bell Atlantic Mobile of Rochester L.P. Doing Business As Verizon v. Tow N of Irondequoit

January 31, 2012

BELL ATLANTIC MOBILE OF ROCHESTER L.P. DOING BUSINESS AS VERIZON WIRELESS, PLAINTIFF,
v.
TOW N OF IRONDEQUOIT, NEW YORK; THE TOW N BOARD OF THE TOW N OF IRONDEQUOIT, NEW YORK; AND THE BUILDING DEPARTMENT OF THE TOW N OF IRONDEQUOIT, NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION and ORDER

Before the Court are Defendants' Motion for Summary Judgment, July 29, 2011, ECF No. 16, and Plaintiff's Motion for Summary Judgment, July 29, 2011, ECF No. 18. Both involve Plaintiff's application before the Town of Irondequoit for permission to install a cell phone tower in Irondequoit. For the reasons stated below, Plaintiff's motion is granted, and Defendants' motion is denied.

BACKGROUND

Pursuant to W estern District of New York Local Rule of Civil Procedure 56, both parties filed statements of fact and responses to one another's statements of fact. The Court must view the evidence in the light most favorable to the non-moving party, Stagl v. Delta Airlines, Inc., 52 F.3d 463, 466 (2d Cir. 1995), and will outline the facts below, identifying those facts the parties dispute.

Verizon Wireless

Plaintiff Bell Atlantic Mobile L.P., doing business as Verizon W ireless ("Verizon"), provides commercial mobile services and personal wireless services in and around Irondequoit, New York. Verizon operates a combined cellular and PCS (Personal Communications Service) personal wireless service network providing third-generation (3G) voice and data services to over 89.7 million Americans across the nation. Verizon also operates a 700 MHz LTE fourth generation (4G) network in the Rochester, New York area, including the Town of Irondequoit. Verizon customers use its services at work, while traveling, and at home.

A critical and growing use of wireless services is for public safety purposes. Verizon operates and maintains a network of wireless communications facilities, each consisting of antennas and related equipment designed to send and receive radio signals. The Federal Communications Commission ("FCC") has licensed Verizon to provide wireless communi- cations throughout the Rochester, New York area, including the Town of Irondequoit. More than 296,000 wireless 911 calls are placed from mobile phones nationally every day, which represents about 50% of all emergency services calls. Verizon claims that emergency service providers, such as the St. Paul Municipal Fire District in Irondequoit, site of the proposed cell tower, also need to improve their networks and coverage areas to adequately provide those essential services. The Town disputes that Verizon has submitted evidentiary proof of the "need" to improve the fire district's networks and coverage.

Verizon provides mobile services via a network composed of neighboring personal wireless service towers or other facilities that are sited based upon Radio Frequency ("RF") planning. Each facility can only cover a limited geographic area, the scope of which may be affected by topography, tree heights, existing structures, the frequency bands and other factors. Each facility's "cell" (or radius) of service must, from an RF perspective, be located sufficiently close to adjacent and nearby sites to hand off calls to the next facility to allow continuous wireless service as the mobile user travels from cell to cell. Thus, placement of cell sites is extremely location sensitive, as each site's coverage area must "interlock" with neighboring cells, yet not unduly overlap (which causes interference); nor be unduly distant (which causes service gaps or holes between cells). There is limited flexibility as to where a cell site can be located and provide effective service.

Zoning Authority of the Town

Defendants Town of Irondequoit, Town Board of Irondequoit and Department of Planning and Zoning of the Town of Irondequoit have zoning authority under New York law and pursuant to the Town's Zoning Code. The Town's Zoning Code, at Article XXII, provides Town policies and procedures relative to, inter alia, the location of wireless telecom- munications facilities, such as the Application at issue here. For zoning purposes, Verizon is a public utility.

The Hoover Road Gap

Verizon has a significant service gap for PCS spectrum in and around the central portion of the Town, including along Hoover Road, Titus Avenue, Cooper Road and the surrounding areas (the "Hoover Road Gap"). This gap is in a large commercial and residential area in the center of the Town comprising several hundred residences and businesses, as well as several schools, churches, and other institutions. The center of the gap is approximately in the location of Irondequoit High School.

In order to fill the Hoover Road Gap, Verizon RF engineers identified an approximately one-quarter mile radius "search area" for potential sites that could address the coverage problem. In evaluating potential sites for a wireless facility, Verizon considered many factors, including the most basic one, i.e., ensuring that the site will function effectively with other existing facilities in Verizon's network to satisfy network signal coverage requirements and thereby provide reliable and uninterrupted service to customers and other authorized users. In placing new wireless service facilities, the first preference is to place wireless equipment on an existing tower or structure of sufficient height (known as a "co-location"). There were and are no existing towers or structures of sufficient height or structural soundness for co-location in the search area. Thus, Verizon concluded that, as a first preference, it needed to construct a new, stand-alone structure. The Town disputes Verizon's conclusion, citing to alternative technologies, including a distributed antenna system ("DAS"), which the Town contends would not require the construction of one or more new tall cell towers.

Verizon states that the second preference from a zoning standpoint is to rebuild or extend an existing tower that is structurally deficient or too short to accommodate the new antennae. In this case, Verizon identified such a tower at the St. Paul Boulevard Fire District site at 433 Cooper Road ("the Fire District Site"). The Fire District Site has an existing 60 foot high open lattice work communications tower (plus antennae with its top at approximately 82 feet above ground level). W hile this tower was too short to serve Verizon W ireless' needs, removing the existing structure and replacing it with a taller monopole not only worked from a technical standpoint, but provided minimal aesthetic intrusion. The Town disputes Verizon's contention that the second preference is to rebuild an existing tower, and cites to its Town Code § 235-135(C), which the Town contends makes locating a cell tower in an industrial or commercial zoning district the second preference from a Zoning perspective. Further, the Town disputes Verizon's assertion that the proposed cell tower will be minimally aesthetically intrusive.

Cooper Road Site

Verizon identified locations within the search area where a wireless facility could be located. Of all the locations examined, the only site that meets Verizon's technical needs and is actually available for use is the Fire District Site. This conclusion was reached after analyzing the factors described above, the network coverage potential of the site candidates, and the willingness of the land owners of potential sites to enter into a lease with Verizon. The Town disputes this, and claims that Verizon has refused to consider a site identified by it as the Joshua Park site, owned by the Town and zoned as commercial.

According to Verizon, it selected the Cooper Road location since: it met the RF coverage objective with the lowest tower height compared to other potential sites; there is already an existing telecommunications tower on the property that will be replaced; it is located on municipal property; it provides a co-location opportunity to emergency services providers, such as the Fire District and Monroe County and others; the site is already devoted to a utility/public safety use as a fire station with an existing tower (that will be replaced); and significant vegetation and trees provide an aesthetic buffer for most of the monopole from the residential areas. The Town also disputes this assertion, stating that Verizon prematurely ended its consideration of alternative sites and that the proposed location does not have significant vegetation and trees to provide an aesthetic barrier from the adjacent residential areas.

Pre-Application Meeting with the Town

On June 3, 2010, Verizon had a preliminary meeting with Town officials regarding the need for the Monopole, as well as the site selection and application process. The June 3, 2010, meeting was attended by Town officials, including Larry Heininger (Director of Development -- Town of Irondequoit), Patrick Meredith (Town of Irondequoit Commissioner of Public W orks), and Donna Martello, Planning Assistant, who met with Verizon's Kathy Pomponio (Verizon W ireless Manager Real Estate (Consultant)), Brett Morgan (Verizon W ireless Site Acquisition Consultant) and Jared Lusk, Esq. (Verizon W ireless' counsel from the law firm Nixon Peabody LLP). At that meeting, the Fire District Site was specifically discussed as the proposed location for the new monopole, and Town officials were receptive to Verizon's proposal to erect a tower at that location.

Alternative Sites Considered

Verizon explored a number of sites in or near the Hoover Road search area. Included were seven sites at the Irondequoit High School, one site at the United Church of Christ on Titus Avenue, and eight other sites. Verizon looked into every alternative suggested by the Town Board, the Town Board's consultant, and the public, and found that, other than the Fire District Site, none of the other fifteen potential locations was viable to address the Hoover Road Gap. The Town contends that Verizon did not give consideration to the proposed Joshua Park site, and further characterizes Verizon's decision that the other fifteen sites are not suitable as premature. Verizon did consider that several sites at the high school would have been suitable, but school officials declined to enter into a lease with Verizon. Verizon also ruled out placing a sixty foot steeple tower at the United Church of Christ, because that location would have required a second tower to the north to address the Hoover Road Gap. Verizon considered the Irondequoit Town Hall, but found that site was too far to the east to address the Hoover Road Gap. During public hearings on Verizon's application, the Pinegrove Community Center, also known as the Helmer Nature Center on Pinegrove Road, and the St. Paul Fire District Property on W ashington Avenue, were suggested as a potential sites, but Verizon determined they were too far from the search area to solve the Hoover Road Gap. Town Board member Paul Marasco suggested the St. Paul Exempt Assoc. Firemen's Homes, Inc., on Thomas Avenue, but Verizon found it was too far removed to cover the Hoover Road Gap. Verizon also considered combining parcels owned by the Genrich family, but determined that even if all the parcels were combined, Verizon could not meet the setback requirements, and, in any event, the Genrich family advised Verizon it was not interested in permitting a tower on the property.

Verizon's Application

On or about June 18, 2010, Verizon submitted to the Irondequoit Town Board an application to build a 120-foot wireless telecommunications facility (a cell phone tower) at the Fire District Site. On July 2, 2010, Verizon provided the Town Board propagation data in support of its application, which had been inadvertently omitted from the original application package.

The 120 foot monopole and equipment shelter, which Verizon proposed, would replace an existing open lattice work tower at the Fire District Site. The existing open lattice work tower, located on the roof of the Fire District building, has been in place since 1991, is 60 feet tall, and has antennae extending to 82 feet. Verizon proposes to place the new monopole and equipment shelter in a new location on the same property, and states that the new monopole will stand approximately 40 feet higher than the existing tower. Verizon explains that once the monopole is installed, the existing lattice work tower will be removed and its antennae placed on the new monopole. Verizon further maintains that the height of the new monopole is necessary to address the Hoover Road Gap and that the proper height is 120 feet.*fn1 Further, Verizon states that the Fire District needs to move its antennae to improve its emergency communications capabilities. The Town disputes both the ...


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