Development

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to annul a determination that its arborist operation did not qualify as a nonconforming use, the village appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the petition, holding that the Supreme Court had improperly substituted its judgment for that of the zoning board of appeals.

The Landowner had operated a nursery on the subject parcel since 1972, when he obtained site plan approval from the Town of Ramapo to operate the premises as a plant nursery. In 1984, the Village of Wesley Hills adopted its own zoning ordinance, which no longer permitted plant nurseries on the landowner's parcel. Beginning in 2000, the village began issuing appearance tickets to the landowner for violation of the zoning code. The tickets contended that the landowner had intensified his nursery business into a commercial logging and chipping arborist business. The landowner appealed the tickets to the zoning board of appeals, which determined that the current arborist business did not qualify as a lawful pre-existing non-conforming use. The landowner then brought this article 78 proceeding, and the Supreme Court annulled the determination of the zoning board of appeals.

In reversing, the Appellate Division emphasized the broad discretion accorded to local zoning boards, and held that a zoning board's determination should be upheld if it has a rational basis supported by substantial evidence. Here, the court held that the zoning board's determination that the arborist business constituted an illegal non-conforming use was supported by substantial evidence.

Neighbors Lack Standing to Challenge Zoning Amendment

Olish v. Heaney

NYLJ 4/30/03, p. 24, col. 5

Supreme Court, Suffolk Cty

(Pines, J.)

In neighbors' article 78 proceeding to annul a town's zoning amendment for failure to comply with the State Environmental Quality Review Act (SEQRA), the town moved to dismiss for lack of standing. The court granted the town's motion, holding that neighbors had not demonstrated injury distinct from the injury felt by the public at large.

On its own motion and after a series of public hearings, the town rezoned 52 acres of land from its previous classification (which would have permitted single family homes on 5-acre lots) to a 'residential planned development district.' The rezoning was designed to permit a retirement community on the site, which currently houses the nonconforming 'Westhampton Drag Strip.' Neighbors, who own residences about one-half mile from the site, allege that the board's actions violated SEQRA, the Town Law, and the Open Meetings Law. The town moved to dismiss for lack of standing.

In granting the town's motion, the court noted that a neighbor lacks standing to challenge a zoning determination when the injuries alleged are likely to be suffered by the public at large, or where allegations of particular injury are unsubstantiated by any record. Here, the court noted that allegations of increased traffic, harm to groundwater, and alteration of the character of the area, were all shared by the community at large and did not, therefore, suffice to establish standing. The court noted, in fact, that many landowners were closer to the site than were the plaintiff-neighbors. The court went on to indicate that even if the neighbors surmounted the standing barrier, they failed to demonstrate any statutory violation. In particular, the court noted that an examination of the draft generic environmental impact statement and the final generic environmental impact statement demonstrated that the board had taken the requisite 'hard look' at the environmental impact of the zoning change.

Prohibition of Cell Phone Tower Violates TCA of 1996

New York SMSA LP v. Incorporated Village of Mineola

NYLJ 4/10/03, p. 29, col. 3

United States District Ct., EDNY

(Seybert, J.)

In an action by Verizon Wireless to enjoin the village of Mineola from enforcing its denial of a special use permit to erect a wireless antenna atop an existing utility pole, Verizon sought summary judgment. The court granted Verizon's motion, holding that the village's determination violated the Telecommunications Act of 1996 (TCA).

Upon determining that cellular phone customers in the village and surrounding areas were not receiving adequate service, Verizon sought a location for additional 'cell sites,' locations where cell phone antennae are placed. In light of the village ordinance encouraging use of existing towers as cell sites, Verizon located a suitable utility pole owned by the Long Island Power Authority. The pole was situated on a site located partly in a residential district and partly in a business district, but the pole itself was located entirely in the business district. Verizon then sought a special use permit for the tower. The village board denied the permit. In offering its reasons, the village expressly disclaimed reliance on health concerns raised by the towers, and instead concluded that the proposed site violated the village code's requirement that a new tower be separated from residential property by at least 200 feet, and that Verizon had failed to act in good faith by failing to make a written offer to a neighboring golf club to locate space on club grounds. Verizon then brought this action, contending that the village had violated the TCA.

The TCA expressly leaves to local governments the authority 'over decisions regarding the placement, construction, and modification of personal wireless services facilities.' The TCA includes, however, several exceptions. One exception provides that regulation of placement of a wireless service facility shall not have the effect of prohibiting the provision of personal wireless services. A second exception provides that any decision by a state or local government to deny a request to place a wireless service facility must be supported by substantial evidence in the record. A third provides that a request to locate a facility may not be denied on the basis of environmental effects of radio frequency emissions to the extent the facility complies with the FCC's regulations concerning emissions.

In this case, the court concluded that the village board's determination was not supported by substantial evidence. The court started by noting that the board had expressed concerns about health risks and about the adequacy of the federal government's research regarding those risks. The court evaluated the substantiality of evidence to support the board's findings of fact against the backdrop of the board's expressed health concerns ' concerns that would not justify denial of the permit. The court then concluded that the board had improperly treated Verizon's application as one for a new tower rather than an alteration of an existing utility tower. Moreover, the court noted that the village's response to Verizon's proposal was to suggest a site that would have required construction of a new tower, and that would not have eliminated the service deficiency. As a result, the court concluded that Verizon had made a good faith effort to find alternative sites, and that there was no substantial evidence to support the board's determination. Moreover, the court concluded that the board's action constituted a violation of 42 USC sec. 1983, entitling Verizon to attorneys' fees. Finally, the court awarded injunctive relief to Verizon as a remedy.

COMMENT

The Telecommunications Act of 1996 (TCA) restricts, in several respects, state and local power to regulate the construction of cellular phone service towers. First, the TCA provides that any restriction on construction of cell phone towers must be supported by substantial evidence. Second, a restriction 1) may not unreasonably discriminate between equivalent service providers; 2) may not have the effect of prohibiting personal wireless service; and 3) may not be based on health concerns.

Evidence that alternative plans for locating cell phone towers would be less intrusive can constitute substantial evidence supporting a permit denial. Thus, in Sprint Spectrum v. Willoth, 176 F.3d 630, Sprint applied for a permit to construct three towers to support its wireless network to fill service gaps. The town board denied the application on the grounds that alternate plans would be less intrusive. The board supported its denial with expert testimony and detailed alternative plans. The court held that the board had met the statute's 'substantial evidence' requirement.

A municipality may also invoke aesthetic concerns to support a permit denial, so long as the board does not discriminate among providers and so long as the permit denial would not deprive consumers of wireless service. Thus, in Sitetech Group LTD. v. The Board of Zoning Appeals of the Town of Brookhaven, 140 F. Supp. 2d 255, the board denied building permits for cellular towers after town historians and other experts concluded that a service tower would have damaged the aesthetic quality of the town. The court found that this expert testimony constituted substantial evidence to support the denial.

If, however, most of the opposition to the towers focuses on health concerns, courts may overturn a permit denial even if other evidence might support the board's determination. Thus, in Cellular Telephone Company v. The Town of Oyster Bay, 166 F.3d 490, the town board denied a cellular phone company's permit to build after significant public outcry focused principally on health concerns ' concerns the TCA prohibits boards from considering. Although the board sought to justify its decision as a response to concerns about aesthetics and property values, the Second Circuit reversed the board's decision, noting first that public outcry alone might not qualify as substantial evidence to support the denial, and that in any event, the overwhelming majority of expresses public concerns revolved around health issues.

NYLJ 4/10/03, p. 29, col. 3

United States District Ct., EDNY (Seybert, J.)

In an action by Verizon Wireless to enjoin the village of Mineola from enforcing its denial of a special use permit to erect a wireless antenna atop an existing utility pole, Verizon sought summary judgment. The court granted Verizon's motion, holding that the village's determination violated the Telecommunications Act of 1996 (TCA).

Upon determining that cellular phone customers in the village and surrounding areas were not receiving adequate service, Verizon sought a location for additional 'cell sites,' locations where cell phone antennae are placed. In light of the village ordinance encouraging use of existing towers as cell sites, Verizon located a suitable utility pole owned by the Long Island Power Authority. The pole was situated on a site located partly in a residential district and partly in a business district, but the pole itself was located entirely in the business district. Verizon then sought a special use permit for the tower. The village board denied the permit. In offering its reasons, the village expressly disclaimed reliance on health concerns raised by the towers, and instead concluded that the proposed site violated the village code's requirement that a new tower be separated from residential property by at least 200 feet, and that Verizon had failed to act in good faith by failing to make a written offer to a neighboring golf club to locate space on club grounds. Verizon then brought this action, contending that the village had violated the TCA.

The TCA expressly leaves to local governments the authority 'over decisions regarding the placement, construction, and modification of personal wireless services facilities.' The TCA includes, however, several exceptions. One exception provides that regulation of placement of a wireless service facility shall not have the effect of prohibiting the provision of personal wireless services. A second exception provides that any decision by a state or local government to deny a request to place a wireless service facility must be supported by substantial evidence in the record. A third provides that a request to locate a facility may not be denied on the basis of environmental effects of radio frequency emissions to the extent the facility complies with the FCC's regulations concerning emissions.

In this case, the court concluded that the village board's determination was not supported by substantial evidence. The court started by noting that the board had expressed concerns about health risks and about the adequacy of the federal government's research regarding those risks. The court evaluated the substantiality of evidence to support the board's findings of fact against the backdrop of the board's expressed health concerns ' concerns that would not justify denial of the permit. The court then concluded that the board had improperly treated Verizon's application as one for a new tower rather than an alteration of an existing utility tower. Moreover, the court noted that the village's response to Verizon's proposal was to suggest a site that would have required construction of a new tower, and that would not have eliminated the service deficiency. As a result, the court concluded that Verizon had made a good faith effort to find alternative sites, and that there was no substantial evidence to support the board's determination. Moreover, the court concluded that the board's action constituted a violation of 42 USC sec. 1983, entitling Verizon to attorneys' fees. Finally, the court awarded injunctive relief to Verizon as a remedy.The Telecommunications Act of 1996 (TCA) restricts, in several respects, state and local power to regulate the construction of cellular phone service towers. First, the TCA provides that any restriction on construction of cell phone towers must be supported by substantial evidence. Second, a restriction 1) may not unreasonably discriminate between equivalent service providers; 2) may not have the effect of prohibiting personal wireless service; and 3) may not be based on health concerns.

Evidence that alternative plans for locating cell phone towers would be less intrusive can constitute substantial evidence supporting a permit denial. Thus, in Sprint Spectrum v. Willoth, 176 F.3d 630, Sprint applied for a permit to construct three towers to support its wireless network to fill service gaps. The town board denied the application on the grounds that alternate plans would be less intrusive. The board supported its denial with expert testimony and detailed alternative plans. The court held that the board had met the statute's 'substantial evidence' requirement.

A municipality may also invoke aesthetic concerns to support a permit denial, so long as the board does not discriminate among providers and so long as the permit denial would not deprive consumers of wireless service. Thus, in Sitetech Group LTD. v. The Board of Zoning Appeals of the Town of Brookhaven, 140 F. Supp. 2d 255, the board denied building permits for cellular towers after town historians and other experts concluded that a service tower would have damaged the aesthetic quality of the town. The court found that this expert testimony constituted substantial evidence to support the denial.

If, however, most of the opposition to the towers focuses on health concerns, courts may overturn a permit denial even if other evidence might support the board's determination. Thus, in Cellular Telephone Company v. The Town of Oyster Bay, 166 F.3d 490, the town board denied a cellular phone company's permit to build after significant public outcry focused principally on health concerns ' concerns the TCA prohibits boards from considering. Although the board sought to justify its decision as a response to concerns about aesthetics and property values, the Second Circuit reversed the board's decision, noting first that public outcry alone might not qualify as substantial evidence to support the denial, and that in any event, the overwhelming majority of expresses public concerns revolved around health issues.

Arborist Nursery Does Not Constitute Pre-Existing Nonconforming Use

Matter of Wickes v. Kaplan

NYLJ 4/28/03, p. 29, col. 3

AppDiv, Second Dept

(memorandum opinion)

In landowner's article 78 proceeding to annul a determination that its arborist operation did not qualify as a nonconforming use, the village appealed from Supreme Court's grant of the petition. The Appellate Division reversed and dismissed the petition, holding that the Supreme Court had improperly substituted its judgment for that of the zoning board of appeals.

The Landowner had operated a nursery on the subject parcel since 1972, when he obtained site plan approval from the Town of Ramapo to operate the premises as a plant nursery. In 1984, the Village of Wesley Hills adopted its own zoning ordinance, which no longer permitted plant nurseries on the landowner's parcel. Beginning in 2000, the village began issuing appearance tickets to the landowner for violation of the zoning code. The tickets contended that the landowner had intensified his nursery business into a commercial logging and chipping arborist business. The landowner appealed the tickets to the zoning board of appeals, which determined that the current arborist business did not qualify as a lawful pre-existing non-conforming use. The landowner then brought this article 78 proceeding, and the Supreme Court annulled the determination of the zoning board of appeals.

In reversing, the Appellate Division emphasized the broad discretion accorded to local zoning boards, and held that a zoning board's determination should be upheld if it has a rational basis supported by substantial evidence. Here, the court held that the zoning board's determination that the arborist business constituted an illegal non-conforming use was supported by substantial evidence.

Neighbors Lack Standing to Challenge Zoning Amendment

Olish v. Heaney

NYLJ 4/30/03, p. 24, col. 5

Supreme Court, Suffolk Cty

(Pines, J.)

In neighbors' article 78 proceeding to annul a town's zoning amendment for failure to comply with the State Environmental Quality Review Act (SEQRA), the town moved to dismiss for lack of standing. The court granted the town's motion, holding that neighbors had not demonstrated injury distinct from the injury felt by the public at large.

On its own motion and after a series of public hearings, the town rezoned 52 acres of land from its previous classification (which would have permitted single family homes on 5-acre lots) to a 'residential planned development district.' The rezoning was designed to permit a retirement community on the site, which currently houses the nonconforming 'Westhampton Drag Strip.' Neighbors, who own residences about one-half mile from the site, allege that the board's actions violated SEQRA, the Town Law, and the Open Meetings Law. The town moved to dismiss for lack of standing.

In granting the town's motion, the court noted that a neighbor lacks standing to challenge a zoning determination when the injuries alleged are likely to be suffered by the public at large, or where allegations of particular injury are unsubstantiated by any record. Here, the court noted that allegations of increased traffic, harm to groundwater, and alteration of the character of the area, were all shared by the community at large and did not, therefore, suffice to establish standing. The court noted, in fact, that many landowners were closer to the site than were the plaintiff-neighbors. The court went on to indicate that even if the neighbors surmounted the standing barrier, they failed to demonstrate any statutory violation. In particular, the court noted that an examination of the draft generic environmental impact statement and the final generic environmental impact statement demonstrated that the board had taken the requisite 'hard look' at the environmental impact of the zoning change.

Prohibition of Cell Phone Tower Violates TCA of 1996

New York SMSA LP v. Incorporated Village of Mineola

NYLJ 4/10/03, p. 29, col. 3

United States District Ct., EDNY

(Seybert, J.)

In an action by Verizon Wireless to enjoin the village of Mineola from enforcing its denial of a special use permit to erect a wireless antenna atop an existing utility pole, Verizon sought summary judgment. The court granted Verizon's motion, holding that the village's determination violated the Telecommunications Act of 1996 (TCA).

Upon determining that cellular phone customers in the village and surrounding areas were not receiving adequate service, Verizon sought a location for additional 'cell sites,' locations where cell phone antennae are placed. In light of the village ordinance encouraging use of existing towers as cell sites, Verizon located a suitable utility pole owned by the Long Island Power Authority. The pole was situated on a site located partly in a residential district and partly in a business district, but the pole itself was located entirely in the business district. Verizon then sought a special use permit for the tower. The village board denied the permit. In offering its reasons, the village expressly disclaimed reliance on health concerns raised by the towers, and instead concluded that the proposed site violated the village code's requirement that a new tower be separated from residential property by at least 200 feet, and that Verizon had failed to act in good faith by failing to make a written offer to a neighboring golf club to locate space on club grounds. Verizon then brought this action, contending that the village had violated the TCA.

The TCA expressly leaves to local governments the authority 'over decisions regarding the placement, construction, and modification of personal wireless services facilities.' The TCA includes, however, several exceptions. One exception provides that regulation of placement of a wireless service facility shall not have the effect of prohibiting the provision of personal wireless services. A second exception provides that any decision by a state or local government to deny a request to place a wireless service facility must be supported by substantial evidence in the record. A third provides that a request to locate a facility may not be denied on the basis of environmental effects of radio frequency emissions to the extent the facility complies with the FCC's regulations concerning emissions.

In this case, the court concluded that the village board's determination was not supported by substantial evidence. The court started by noting that the board had expressed concerns about health risks and about the adequacy of the federal government's research regarding those risks. The court evaluated the substantiality of evidence to support the board's findings of fact against the backdrop of the board's expressed health concerns ' concerns that would not justify denial of the permit. The court then concluded that the board had improperly treated Verizon's application as one for a new tower rather than an alteration of an existing utility tower. Moreover, the court noted that the village's response to Verizon's proposal was to suggest a site that would have required construction of a new tower, and that would not have eliminated the service deficiency. As a result, the court concluded that Verizon had made a good faith effort to find alternative sites, and that there was no substantial evidence to support the board's determination. Moreover, the court concluded that the board's action constituted a violation of 42 USC sec. 1983, entitling Verizon to attorneys' fees. Finally, the court awarded injunctive relief to Verizon as a remedy.

COMMENT

The Telecommunications Act of 1996 (TCA) restricts, in several respects, state and local power to regulate the construction of cellular phone service towers. First, the TCA provides that any restriction on construction of cell phone towers must be supported by substantial evidence. Second, a restriction 1) may not unreasonably discriminate between equivalent service providers; 2) may not have the effect of prohibiting personal wireless service; and 3) may not be based on health concerns.

Evidence that alternative plans for locating cell phone towers would be less intrusive can constitute substantial evidence supporting a permit denial. Thus, in Sprint Spectrum v. Willoth, 176 F.3d 630, Sprint applied for a permit to construct three towers to support its wireless network to fill service gaps. The town board denied the application on the grounds that alternate plans would be less intrusive. The board supported its denial with expert testimony and detailed alternative plans. The court held that the board had met the statute's 'substantial evidence' requirement.

A municipality may also invoke aesthetic concerns to support a permit denial, so long as the board does not discriminate among providers and so long as the permit denial would not deprive consumers of wireless service. Thus, in Sitetech Group LTD. v. The Board of Zoning Appeals of the Town of Brookhaven, 140 F. Supp. 2d 255, the board denied building permits for cellular towers after town historians and other experts concluded that a service tower would have damaged the aesthetic quality of the town. The court found that this expert testimony constituted substantial evidence to support the denial.

If, however, most of the opposition to the towers focuses on health concerns, courts may overturn a permit denial even if other evidence might support the board's determination. Thus, in Cellular Telephone Company v. The Town of Oyster Bay, 166 F.3d 490, the town board denied a cellular phone company's permit to build after significant public outcry focused principally on health concerns ' concerns the TCA prohibits boards from considering. Although the board sought to justify its decision as a response to concerns about aesthetics and property values, the Second Circuit reversed the board's decision, noting first that public outcry alone might not qualify as substantial evidence to support the denial, and that in any event, the overwhelming majority of expresses public concerns revolved around health issues.

New York

NYLJ 4/10/03, p. 29, col. 3

United States District Ct., EDNY (Seybert, J.)

In an action by Verizon Wireless to enjoin the village of Mineola from enforcing its denial of a special use permit to erect a wireless antenna atop an existing utility pole, Verizon sought summary judgment. The court granted Verizon's motion, holding that the village's determination violated the Telecommunications Act of 1996 (TCA).

Upon determining that cellular phone customers in the village and surrounding areas were not receiving adequate service, Verizon sought a location for additional 'cell sites,' locations where cell phone antennae are placed. In light of the village ordinance encouraging use of existing towers as cell sites, Verizon located a suitable utility pole owned by the Long Island Power Authority. The pole was situated on a site located partly in a residential district and partly in a business district, but the pole itself was located entirely in the business district. Verizon then sought a special use permit for the tower. The village board denied the permit. In offering its reasons, the village expressly disclaimed reliance on health concerns raised by the towers, and instead concluded that the proposed site violated the village code's requirement that a new tower be separated from residential property by at least 200 feet, and that Verizon had failed to act in good faith by failing to make a written offer to a neighboring golf club to locate space on club grounds. Verizon then brought this action, contending that the village had violated the TCA.

The TCA expressly leaves to local governments the authority 'over decisions regarding the placement, construction, and modification of personal wireless services facilities.' The TCA includes, however, several exceptions. One exception provides that regulation of placement of a wireless service facility shall not have the effect of prohibiting the provision of personal wireless services. A second exception provides that any decision by a state or local government to deny a request to place a wireless service facility must be supported by substantial evidence in the record. A third provides that a request to locate a facility may not be denied on the basis of environmental effects of radio frequency emissions to the extent the facility complies with the FCC's regulations concerning emissions.

In this case, the court concluded that the village board's determination was not supported by substantial evidence. The court started by noting that the board had expressed concerns about health risks and about the adequacy of the federal government's research regarding those risks. The court evaluated the substantiality of evidence to support the board's findings of fact against the backdrop of the board's expressed health concerns ' concerns that would not justify denial of the permit. The court then concluded that the board had improperly treated Verizon's application as one for a new tower rather than an alteration of an existing utility tower. Moreover, the court noted that the village's response to Verizon's proposal was to suggest a site that would have required construction of a new tower, and that would not have eliminated the service deficiency. As a result, the court concluded that Verizon had made a good faith effort to find alternative sites, and that there was no substantial evidence to support the board's determination. Moreover, the court concluded that the board's action constituted a violation of 42 USC sec. 1983, entitling Verizon to attorneys' fees. Finally, the court awarded injunctive relief to Verizon as a remedy.The Telecommunications Act of 1996 (TCA) restricts, in several respects, state and local power to regulate the construction of cellular phone service towers. First, the TCA provides that any restriction on construction of cell phone towers must be supported by substantial evidence. Second, a restriction 1) may not unreasonably discriminate between equivalent service providers; 2) may not have the effect of prohibiting personal wireless service; and 3) may not be based on health concerns.

Evidence that alternative plans for locating cell phone towers would be less intrusive can constitute substantial evidence supporting a permit denial. Thus, in Sprint Spectrum v. Willoth, 176 F.3d 630, Sprint applied for a permit to construct three towers to support its wireless network to fill service gaps. The town board denied the application on the grounds that alternate plans would be less intrusive. The board supported its denial with expert testimony and detailed alternative plans. The court held that the board had met the statute's 'substantial evidence' requirement.

A municipality may also invoke aesthetic concerns to support a permit denial, so long as the board does not discriminate among providers and so long as the permit denial would not deprive consumers of wireless service. Thus, in Sitetech Group LTD. v. The Board of Zoning Appeals of the Town of Brookhaven, 140 F. Supp. 2d 255, the board denied building permits for cellular towers after town historians and other experts concluded that a service tower would have damaged the aesthetic quality of the town. The court found that this expert testimony constituted substantial evidence to support the denial.

If, however, most of the opposition to the towers focuses on health concerns, courts may overturn a permit denial even if other evidence might support the board's determination. Thus, in Cellular Telephone Company v. The Town of Oyster Bay, 166 F.3d 490, the town board denied a cellular phone company's permit to build after significant public outcry focused principally on health concerns ' concerns the TCA prohibits boards from considering. Although the board sought to justify its decision as a response to concerns about aesthetics and property values, the Second Circuit reversed the board's decision, noting first that public outcry alone might not qualify as substantial evidence to support the denial, and that in any event, the overwhelming majority of expresses public concerns revolved around health issues.