July 7, 2015

In Bruenn v. Town Bd. of Town of Kent, 44 Misc.3d 1214(A) (2014), the Supreme Court, Putnam County, affirmed the Town of Kent Board of Trustees’ decision to exempt a proposed cell tower from the Town’s zoning requirements.

Homeland Towers LLC sought to construct a 150 foot tall wireless telecommunications facility (the “Tower”) on Town owned property currently used as a highway department garage. The Tower was designed to support the Town’s public safety antennas as well as the five federally licensed wireless telecommunications providers.

Neighbors commenced a hybrid Article 78 proceeding and declaratory judgment action seeking to annul the Town’s decision to permit the construction of the Tower.

Plaintiffs argued that Homeland’s application for the erection of the Tower should have been subjected to the review of the Zoning Board of Appeals and that the Town lacked authority to perform the “immunity balancing test” established in the landmark case entitled, “Matter of County of Monroe (City of Rochester), 72 NY2d 338 (1988).” Plaintiffs also argued that the Town Board’s determinations were arbitrary and capricious and not supported by substantial evidence.

The Court affirmed the Town’s decisions to allow the Tower. Specifically, the Court found that the Town Board has the authority to perform the immunity balancing test and, upon doing so, properly conducted same. Its determinations are rational, supported by substantial evidence in the record and are neither arbitrary nor capricious.

Even though the Tower would advance the private interests of the tenant/tower company (Homeland), and the five federally licensed public utility wireless providers in furtherance of their commercial enterprises, the Court held that such private benefit “does not undermine the public purposes” for which the Tower will be erected and maintained.

The public benefits include the enhancement of services of Town’s public safety entities to the community, the ability to allow five federally licensed public utility wireless providers to co-locate on the Tower which helps minimize the number of towers needed to effectuate widespread reliable cell service, and the ability to remedy a significant gap in service. The Court held that it is the “public nature of the activity sought to be regulated by the local zoning authority that is determinative.”

While the Monroe immunity balancing test initially arose out of a conflict between competing government entities or subdivisions with differing interests, the Court found that its application was not limited to such situations.

While the Court agreed with Petitioner’s arguments regarding Zoning Board of Appeals’ powers, the Court found that such powers do not vitiate the power of the Town Board of Trustees to employ the immunity balancing test to determine whether, in the first instance, an entity should be granted immunity from local zoning requirements.

The Court further held that the Town’s decisions were neither illegal, arbitrary, nor capricious, they did not constitute an abuse of discretion, and they were also supported by substantial evidence in the record. The Court further held that record clearly reflects an exhaustive six-year process involving seven public hearings before the Town Board of Monroe balancing test issues alone.

The Court also addressed in detail Plaintiffs’ remaining issues regarding alternatives, environmental impacts, ice fall, gap in service, property value impacts, finding that “the record, as a whole, adequately supports the Town’s position that the public in general and the homeowners specifically were accorded an adequate opportunity to have any relevant and material concerns raised and addressed over the six-year review process, which included seven duly noticed public hearings.”

If you have any questions about zoning or other real estate matters, please do not hesitate to contact an experienced attorney at (914) 338-8050. For more information about our firm please visit www.betenskylaw.com.