July 9, 2015

In Orange County-Poughkeepsie Limited Partnership v. Town of Fishkill, 2015 WL 409260 (SDNY 1/30/2015), the Court ordered the Zoning Board of Appeals to grant the application for a cell tower and issue all required permits. Verizon Wireless had sought to construct a new wireless telecommunications facility consisting of an approximately 150 foot tall monopole and associated equipment and installations (collectively, the “Facility”). However, under the Town of East Fishkill’s Zoning Code (the “Code”), a special permit issued by the Zoning Board of Appeals is required within the R–1 (Residential) Zoning District, and the maximum height of a freestanding tower in a residential area is 110 feet. Plaintiffs submitted their joint application with a detailed cover letter to the Town for a special permit with requests for a 40 foot height variance and a wetland/watercourse disturbance permit to install the Facility at the site.

The Zoning Board retained its own wireless consultant, Ronald Graiff, P.E., to review and advise the Zoning Board on RF issues related to the application. The Zoning Board relied on the conclusion in Mr. Graiff’s initial report that “the proposed site only provides approximately 20% new coverage (un-duplicated) and nearly 80% overlaps with existing coverage ….,” and denied the application.

Local governments retain authority over “decisions regarding the placement, construction, and modification of personal wireless service facilities,” but may not, among other things, “prohibit or have the effect of prohibiting the provision of personal wireless services.” See Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7) (A).

To establish the first prong of an effective prohibition claim, a plaintiff must establish that a significant gap in wireless coverage exists. Defendants conceded that despite the Zoning Board’s conclusion, they were not contesting the gap, which was sufficient to satisfy the first prong under Willoth’s effective prohibition test.

Under the second prong of the Willoth test, a local government may deny an applicant’s proposal if an applicant may “select a less sensitive site, … reduce the tower height, … use a preexisting structure or … camouflage the tower and/or antennae.” The Court found that Plaintiffs satisfied their obligation to make an effort to evaluate alternative locations, and the Zoning Board’s denial of Plaintiffs’ application has left the Plaintiffs with no feasible means of filing the gap. Accordingly, the Court granted Plaintiff summary judgment on their effective prohibition claim.

The Zoning Board also denied the application on grounds that the Tower would hurt property values. However, the proposed site is proximate to four ham radio towers, and neighbors opposing the application acknowledged that the ham radio towers existed at the time they purchased their homes. Therefore, the court found the Zoning Board’s decision was not based on substantial evidence in the record.

Based on the foregoing, the Court ordered the Zoning Board to grant the application and issue all required permits.

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