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T-Mobile Northeast LLC, Eastern District of New York Long Island Office v. the Town of Islip and the Planning Board of the Town of Islip

September 21, 2012

T-MOBILE NORTHEAST LLC, EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE PLAINTIFF,
v.
THE TOWN OF ISLIP AND THE PLANNING BOARD OF THE TOWN OF ISLIP, DEFENDANTS.



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

FILED CLERK

9/21/2012 8:37 am

U.S. DISTRICT COURT

MEMORANDUM OF DECISION AND ORDER

In this case, the plaintiff T-Mobile Northeast LLC ("T-Mobile") alleges that the Town of Islip ("the Town") and the Planning Board of the Town of Islip ("the Board" and together with the Town, "the Defendants") denied its request for a special use permit to construct a public utility wireless telecommunication facility, in violation of the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. § 332(c) and Article 78 of the New York Civil Procedure Law and Rules. Presently before the Court are T-Mobile's motion for summary judgment and the Defendants' cross-motion for summary judgment. For the reasons set forth below, the Court denies T-Mobile's motion for summary judgment and grants the Defendants' cross-motion for summary judgment.

I. BACKGROUND

Unless otherwise indicated, the following constitutes the undisputed facts of the case derived from the administrative record in this case and the parties' submissions, accompanying affidavits and Rule 56.1 Statements.

A. The Parties

T-Mobile is a "telecommunications carrier" that is considered a public utility for zoning purposes. 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). T-Mobile is a wholly owned subsidiary of T-Mobile USA, Inc., and uses licenses issued to T-Mobile USA, Inc. by the Federal Communications Commission ("FCC"). These licenses were issued to T-Mobile, USA, Inc. and its affiliates to provide personal wireless services, as defined under federal law, within the state of New York, including Suffolk County and the Town of Islip.

The defendant Town of Islip delegates its local zoning decisions regarding the siting and construction of wireless communications facilities to the defendant Board. Article 68 of the Code of the Town of Islip (the "Town Code") contains a provision that addresses the regulation of the siting and installation of wireless telecommunications facilities. See Town Code, Chapter 68, Zoning, Article XXXIV, Miscellaneous Provisions, § 68-420.1 "Wireless communications facilities; amateur radio towers; satellite antenna." Pursuant to Town Code §68-420.1A(4)(a), all applications for siting and installing wireless communications facilities, regardless of location, are subject to both site plan approval and special permit approval by the Board.

B. T-Mobile's Network

As T-Mobile explains, to provide wireless service, T-Mobile creates a network of individual but interconnected "cell sites", which are antenna facilities consisting of radio antennas and equipment that sends and receives radio signals to and from customers' portable wireless communications handsets and mobile telephones. T-Mobile's wireless antennas receive and transmit low power radio signals from wireless telephones and relay the signals through the attached electronic equipment into the "land line" telephone infrastructure enabling wireless calls to be routed anywhere in the world. (Pl.'s 56.1 Stmt., ¶ 6.)

Each cell site serves a small geographic area and has height requirements that vary according to local topography, vegetation, and the configuration of existing structures. (Id., ¶ 7.) According to T-Mobile, due to federal licensing regulations, each cell site has limited transmission power and a limited number of channels thereby restricting the number of telephone calls the cell site can accommodate. (Id., ¶ 8.) If there are too few cell sites or if cell sites are located too far apart, wireless telephone users serviced by T-Mobile may experience what T-Mobile defines as "unreliable service", which includes "disconnection of calls and static and difficulty placing and maintaining calls." (Id., ¶ 9.)

C. T-Mobile's Application

T-Mobile purports to have identified a significant service gap in Bayport, which is a hamlet in the Town of Islip. To fill that gap, T-Mobile claims it must build a monopole or tower, affix to it public utility wireless telecommunications antennas and install related equipment on the ground (hereinafter "Proposed Facility"). The following description of the Proposed Facility is undisputed:

 The Proposed Facility would consist of a 120 foot brown monopole and ground-based equipment on a concrete pad and set within a 13 feet 6 inches by 28 feet 10 inches fenced communications compound. Six public utility wireless telecommunications antennas would be concealed with the monopole. The Proposed Facility would be surrounded by 8-foot tall shrubs around the perimeter of the compound to screen the equipment.

After initial consultation with the Planning Department, T-Mobile found an area to build the Proposed Facility within the Suffolk County Girls Scouts Camp Edey located at 1500 Lakeview Avenue, Bayport, New York (hereinafter "Premises" or "Camp Edey"), which is located in a Residential AAA zoning district. Camp Edey is a heavily wooded property spanning approximately 94 acres, which is surrounded by a camp ground, nature preserve, and residential uses. Approximately 125 feet from the site is the Sans Souci Nature Preserve and the Sans Souci Lakes.

According to T-Mobile, although the Premises is residentially zoned, it was chosen as the most favorable site inasmuch as it achieves an optimal balance between meeting T-Mobile's coverage needs and minimizing impact on the surrounding area because the Premises is large enough so that the Proposed Facility can be located far from residences and the Premises primarily consists of densely wooded land, which serves as a natural visual buffer for the Proposed Facility.

The Town of Islip regulates the approval of wireless telecommunication facilities within its borders through Article 68 of the Town Code. Pursuant to Section 68-420.1 of the Town Code, any construction of a wireless telecommunications facility requires a special use permit. Section 68-420.1(A)(1) states the "Purpose" of the ordinance as follows:

In recognition of advancing technology and the increased demand and need for wireless communications towers and facilities, the Town of Islip hereby determines that it is in the public interest to regulate the siting and installation of such facilities within the Town in order to protect the public health, safety and welfare. Therefore, the Board hereby determines to establish general guidelines for the siting of wireless communications towers that reflect two preferences: that wireless service providers utilize existing towers, buildings and structures to minimize the construction of new towers, and that wireless communications facilities are located in commercial and industrial districts rather than in residential districts. In furtherance of these objectives, due consideration shall be given to the Town's Comprehensive Plan, existing land uses and development, environmentally sensitive areas, aesthetics and other appropriate factors in approving sites for the location of towers and/or facilities.

Section 68-420.1(A)(4) provides specific objective requirements for the proposed wireless telecommunications facilities that differ based on whether the proposed facility is located in an area zoned as Residential, § 68-420.1(A)(4)(a), Commercial, § 68-420.1(A)(4)(b), Historic district, § 68-420.1(A)(4)(c), or Park and scenic vistas, § 68-420.1(A)(4)(d).

Because the Premises was zoned Residential AAA, the objective requirements were set forth in § 68-480.1(A)(4)(a), which provides:

Wireless communications facilities located in residential zoning districts are subject to site plan approval and special permit approval from the Planning Board, and must meet the following requirements:

(1) Wireless communications facilities on buildings shall be no higher than 20 feet above the maximum permitted height of the principal structure.

(2) A tower base shall be set back from the property line by a minimum distance of 110% of the height of the tower.

In addition to these objective requirements for constructing a facility in a Residential zone, there are a number of generally applicable provisions relating to collocation, design, removal, and applicable requirements. See § 68-420.1(A)(5)-(A)(8). Only the section relating to the "Design" of the proposed facility is relevant to the instant litigation. The parties agree that the portion of these provisions applicable to the Proposed Facility were as follows:

(a) The tower shall be designed in such a manner as to minimize any visual impacts pursuant to the Planning Board;

(c) Buildings accessory to wireless communications facilities shall be screened, landscaped and designed to minimize any visual impacts pursuant to the Planning Board;

(d) The base area shall be surrounded by a six-foot high fence. The surrounding fence shall be screened by a continuous row of evergreen trees of at least six feet in height and planted five foot on center at time of installation;

(f) A tower shall not be lighted unless required by the FAA.

Finally, section 68-420.1(A)(9) sets forth the following additional factors that the Board may consider in determining whether to grant a special use permit to construct a wireless communication facility:

(9) Considerations

(a) Priorities

[1] The Board may give priority to application for location on an existing structure or building.

[2] The Board may give priority to applications for collocation.

[3] The Board may give priority to a single application for multi-antenna proposals.

(b) Other Considerations

[1] The minimum height necessary to render adequate service.

[2] Proximity to residential districts and other structures.

[3] Nature of existing or proposed uses of adjacent property.

[4] Site and/or surrounding topography.

[5] Surrounding tree coverage and foliage.

[6] Design of tower, in particular the characteristics that have the effect of reducing or eliminating visual obtrusiveness.

[7] Availability of suitable existing towers and structures.

[8] Proposed ingress and egress.

(c) The Board may waive or reduce the burden on the applicant of one or more of these criteria if it concludes that the goals of this section are better served thereby.

On September 28, 2007, T-Mobile submitted an "Application for Modification of Land Usage" to the Planning Department seeking a special permit and modification of site plan approval to construct the Proposed Facility at the Premises ("the Application").

As part of the initial application, T-Mobile submitted the following documents:

(1) Affidavit of Radio Frequency (hereinafter "RF") Engineer Regarding Physical Need of Sean Reid, an RF Engineer for T-Mobile, stating the proposed antennae must be affixed at least as high as 120-feet in order to ensure reliable service for T-Mobile users in the vicinity of the site (R. at 30-32);

(2) Affidavit of Good Faith Effort to Colocate and Alternative Sites Considered, sworn to by James Korwan, the Vice President of JP&C Consulting Group, Inc., a site acquisition consulting firm representing T-Mobile in the Long Island market, stating that it had been unable to find a suitable location for collocation; Bayport had failed to respond to T-Mobile's request to identify municipal buildings that may be an option; that it had considered a number of properties owned by Suffolk County that the County refused to lease; and that potentially suitable properties in commercial areas were ruled out because they were closer to residences to the Premises (R. at 37-39);

(3) a One-Mile Radius Visual Study (hereinafter "One-Mile Study") prepared by Freudenthal & Elkowitz Consulting Group, Inc. (hereinafter "Freudenthal"), which relied on the results of a "crane test" in order to determine where, within a one-mile radius of the Proposed Facility, it would be visible (R. 766-777). The One-Mile Study concluded that the Proposed Facility would be at least partially visible from only three locations within a one-mile radius, and that all additional areas within the one-mile radius had no visibility due to vegetation and existing structures. (R. at 770.)

On July 29, 2008, T-Mobile submitted additional materials to the Planning Department including: (1) maps reflecting all of the existing, approved, and proposed facilities of telecommunications carriers other than T-Mobile within five miles of the Proposed Facility;

(2) information regarding property owners that live within 200 feet of the perimeter of the Premises; and (3) revised site plans.

D. The Hearing on T-Mobile's Special Use Permit Application

On August 7, 2008, the Board held a public hearing on the Application ("the Hearing"). At the Hearing, T-Mobile presented the live testimony of five expert witnesses.

First, T-Mobile offered the testimony of Neil MacDonald ("MacDonald"), a licensed New York State Registered Architect and partner in the firm of William F. Collins, AIA Architects, LLP, who testified that the Proposed Facility: was designed to minimize its intrusiveness; would be located 409 feet west of the nearest residential property in compliance with the setback requirements in the Town Code; included a 120-foot monopole designed as a "stealth structure" where the antennae were contained within the pole, and which would be painted brown to "blend in" with the surrounding trees and forests; and that the Proposed Facility would be surrounded by an opaque PVC vinyl fence, which in turn would be surrounded by landscaping to further screen the equipment.

In response to questions from the Board, MacDonald confirmed that other carriers would be able to collocate on the monopole and that there were no other existing structures within the fall zone that could be impacted if the tower fell, a probability that MacDonald testified was unlikely given that the pole was designed in compliance with New York State wind loading criteria. In addition, MacDonald stated that the estimated average height of the surrounding trees was 60 feet, (R. at 527), and did not deny that the monopole was visible, and would be more visible in the wintertime. Rather, MacDonald stated, because the pole was brown, "in the winter you may see more of a brown pole". (R. at 526.)

Erin Duffy ("Duffy"), a project manager from Freudenthal, testified about the aesthetic and environmental impact of the Proposed Facility, and presented the results of a Planning, Zoning and Visual Impact Analysis ("the Visual Impact Analysis"). Included with Duffy's report were photographs of the existing conditions at the Premises, as well as photographic simulations of how the Premises might appear with the addition of T--Mobile's Proposed Facility. After discussing the surrounding area and design of the facility and the photosimulations, Duffy concluded that, based on the surrounding area and design of the facility, that:

"[t]he Proposed Facility will be visible from certain vantage points; however, there are many locations throughout the surrounding neighborhoods from which the proposed facility would not be visible. Moreover, given the proposed design of the facility, antennas concealed within a brown unipole, and the surrounding mature vegetation, the proposed facility in many areas will blend with the horizon. As such the overall potential visual impact would not be significant."

(R. at 541.) Duffy also testified that there would be no negative impacts on the surrounding wildlife or wetlands. Duffy further concluded that "the installation on the proposed facility will not result in substantial changes to the physical characteristics in the area, nor will it result in significant adverse impacts to the neighborhood character or the environmental conditions of the area." (R. at 542.)

Mitchell K. Baum ("Baum"), a RF engineer from T-Mobile, testified as to T-Mobile's need for the Proposed Facility, and submitted an Affidavit of Radio Frequency Engineer. Attached to the Baum Affidavit were maps that depicted T-Mobile's existing coverage and the current gap in service coverage, for both in-building and in-vehicle, as well as the coverage that would be afforded to residents of Bayport and current and future customers of T-Mobile by the Proposed Facility.

Finally, Michael Lynch ("Lynch"), a New York State certified commercial real estate appraiser, testified that given the design of the Proposed Facility, its setting in a heavily wooded pine evergreen-type parcel, and its distance to the nearest residences, the Proposed Facility would not result in any adverse effects to nearby property values. In addition, Lynch prepared and submitted a report (hereinafter "Real Estate Report") to the Planning Board at the Hearing, purporting to show that, based on studies of property values in other Long Island communities where similar towers were constructed, no correlation had been found between the presence of wireless telecommunication facilities and declining property values in the Long Island residential communities studied.

Also testifying in support of the application was Yvonne Grant, the president of the Girl Scouts of Suffolk County. Grant testified about the financial stability the Proposed Facility would provide to the Girl Scouts, as well as the fact that it had received strong approval from the Girl Scout board. When questioned by the Planning Board as to whether girls play in the area of the Proposed Facility, Grant answered, "To our knowledge no. The girls would not be playing in the woods themselves or in this area where the pole is to be located." (R. at 575.) At the Hearing, when asked by the Planning Board if the Girl Scouts would be willing to make the area around the pole a prohibited area, Grant responded, "Absolutely." (Id.)

Prior to the Hearing, T-Mobile became aware of a number of concerns in the community regarding the placement of the Proposed Facility in Camp Edey. In response, T-Mobile submitted the following additional documents to address these concerns:

 a letter from the New York State Office of Parks,

Recreation and Historic Preservation ("SHPO"), dated January 4, 2008, finding that T-Mobile's project would have no effect upon cultural resources in or eligible for inclusion in the National Registers of Historic Places. (R. at 507--08; 534; 824.)

 a letter of Determination of No Hazard to Air Navigation

(hereinafter "No Hazard Letter") from the Federal Aviation Administration ("FAA"), dated January 4, 2008, stating they had conducted an aeronautical study, which revealed that the structure would not exceed obstruction standards and would not be a hazard to air navigation. In addition, marking and lighting were not found to be necessary for aviation safety. (R. at 820--22.)  a Letter of Non-Jurisdiction from the New York State

Department of Environmental Conservation Division of Environmental Permits dated May 19, 2008, stating that the Department of Environmental Conservation (DEC) had determined that T-Mobile's Proposed Facility was more than 100 feet from regulated freshwater wetlands, and therefore an additional permit pursuant to the Freshwater Wetlands Act (Article 24) ...


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