Development

Federal Telecommunications Act Does Not Negate 'Public Utility' Exception

Peck v. Lodge

2003 NY AppDiv LEXIS 11251

AppDiv, Third Dept.

(Opinion by Spain, J.)

In an article 78 proceeding by cell-phone provider challenging denial of a variance to permit construction of a cell phone tower, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the variance application should have been resolved in accordance with the “public utility” exception for use variances.

Nextel applied to the town board for a variance to erect a cell-phone tower in a residential area in the Lake George Park. The tower, to be disguised as a pine tree, was to be located in an area that prohibits industrial or commercial uses. At a hearing before the town board, Nextel submitted evidence detailing the cell phone coverage gaps in the surrounding area, and also demonstrating that no alternative site could eliminate those gaps. Nextel also submitted evidence, including simulated photographs, designed to show that the facility would not be visible from most residential areas. Local residents opposed to the facility submitted evidence – including expert opinions – challenging the need for the facility and raising concerns about effects on property values and aesthetics. The town board denied the variance, finding that adequate coverage existed in the town and that Nextel had not demonstrated that the facility would close significant gaps in coverage. Nextel brought this article 78 proceeding, and Supreme Court annulled the town board's determination, holding that Nextel was entitled to construct the facility under the “public utility exception,” which reduces the standard for use variances on applications by public utilities. The town appealed.

In affirming, the Appellate Division first held that the federal Telecommunications Act did not nullify New York's common law public utility exception. The court then held the public utility exception applicable even though the town's ordinance was enacted pursuant to General Municipal Law, sec. 280, which was designed to protect the Lake George Park. Finally, the court held that Nextel had made the showing necessary to warrant approval of the variance, in part because the town board did not adhere to the reduced showing required of a public utility. In particular, the court held that the opinions offered by the opposing residents' experts on the existence of coverage gaps and the feasibility of other sites were on their face speculative. Hence, the court concluded that the board's determination was not supported by substantial evidence, and that Supreme Court had properly annulled that determination.

COMMENT

Applicants for a use variance must generally show that the land cannot yield a reasonable return if used only for its zoned purpose. When a public utility seeks to locate a facility, the problem is not that the land cannot yield a reasonable return; the problem is that the typical local ordinance does not permit the facilities in any district. Hence, if public utilities were held to the usual standards, they might never satisfy them. As a result, the Court of Appeals, in Consolidated Edison Co. of New York, Inc. v. Hoffman, 43 N.Y.2d 598, articulated a public utility exception to the usual variance requirements. Con Ed had sought to add a 'natural draft, wet cooling tower' to its nuclear plant at Indian Point, but the village zoning board denied its variance application. The Court of Appeals held that although Con Ed might not have satisfied the traditional burden of unnecessary hardship, it had shown that there was a public necessity for the construction, and this was sufficient to establish its right to a variance.

Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364, extended the exception to cellular telephone companies for construction of antenna towers. After substantial testimony that the towers would have minimal aesthetic or community impact, the Village of Dobbs Ferry zoning board of appeals nonetheless denied a use variance to Cellular Telephone. Yet it based its determination on the general standard of unnecessary hardship, asserting that to qualify for the public utility exception, a company must provide an 'essential service' commonly recognized by the grant of 'governmental type' powers such as eminent domain or monopoly status. The Court of Appeals disagreed, holding that the exception in Con Ed v. Hoffman applied to all public utilities, which includes cellular telephone providers.

The federal Telecommunications Act of 1996, which was designed in part to assure that municipalities did not use their zoning authority to inhibit growth of cellular telephone networks, prevents localities from regulating placement of cell phone facilities in any way that has 'the effect of prohibiting the provision of personal wireless services.' 46 USC section 332(7)(B)(i). In addition, local zoning boards must support any decision to prohibit a cell phone facility with substantial evidence, and that evidence may not include any evidence of the facility's environmental effects. 446 USC section 332(7)(B)(iii) and (iv). The federal statute largely reinforces the public utility exception by making it more difficult for a municipality to deny a variance for construction of a cell phone facility. The statute does not, however prevent municipalities from invoking aesthetic concerns in regulating placement of cell phone facilities (see Sprint Spectrum v. Board of Zoning Appeals, 244 F.Supp 108 [upholding denial of a variance because municipality had provided substantial evidence that proposed monopole would not comply with a local ordinance that required such structures be set back from any adjoining lot be a distance of 150% of the height of the tower, and would be aesthetically incompatible with its historic surroundings]). See also Cellular Telephone v. Town of Oyster Bay, 166 F3d 490 [indicating that aesthetic concerns alone might support denial of a variance].

Federal Telecommunications Act Does Not Negate 'Public Utility' Exception

Peck v. Lodge

2003 NY AppDiv LEXIS 11251

AppDiv, Third Dept.

(Opinion by Spain, J.)

In an article 78 proceeding by cell-phone provider challenging denial of a variance to permit construction of a cell phone tower, the town appealed from Supreme Court's grant of the petition. The Appellate Division affirmed, holding that the variance application should have been resolved in accordance with the “public utility” exception for use variances.

Nextel applied to the town board for a variance to erect a cell-phone tower in a residential area in the Lake George Park. The tower, to be disguised as a pine tree, was to be located in an area that prohibits industrial or commercial uses. At a hearing before the town board, Nextel submitted evidence detailing the cell phone coverage gaps in the surrounding area, and also demonstrating that no alternative site could eliminate those gaps. Nextel also submitted evidence, including simulated photographs, designed to show that the facility would not be visible from most residential areas. Local residents opposed to the facility submitted evidence – including expert opinions – challenging the need for the facility and raising concerns about effects on property values and aesthetics. The town board denied the variance, finding that adequate coverage existed in the town and that Nextel had not demonstrated that the facility would close significant gaps in coverage. Nextel brought this article 78 proceeding, and Supreme Court annulled the town board's determination, holding that Nextel was entitled to construct the facility under the “public utility exception,” which reduces the standard for use variances on applications by public utilities. The town appealed.

In affirming, the Appellate Division first held that the federal Telecommunications Act did not nullify New York's common law public utility exception. The court then held the public utility exception applicable even though the town's ordinance was enacted pursuant to General Municipal Law, sec. 280, which was designed to protect the Lake George Park. Finally, the court held that Nextel had made the showing necessary to warrant approval of the variance, in part because the town board did not adhere to the reduced showing required of a public utility. In particular, the court held that the opinions offered by the opposing residents' experts on the existence of coverage gaps and the feasibility of other sites were on their face speculative. Hence, the court concluded that the board's determination was not supported by substantial evidence, and that Supreme Court had properly annulled that determination.

COMMENT

Applicants for a use variance must generally show that the land cannot yield a reasonable return if used only for its zoned purpose. When a public utility seeks to locate a facility, the problem is not that the land cannot yield a reasonable return; the problem is that the typical local ordinance does not permit the facilities in any district. Hence, if public utilities were held to the usual standards, they might never satisfy them. As a result, the Court of Appeals, in Consolidated Edison Co. of New York, Inc. v. Hoffman, 43 N.Y.2d 598, articulated a public utility exception to the usual variance requirements. Con Ed had sought to add a 'natural draft, wet cooling tower' to its nuclear plant at Indian Point, but the village zoning board denied its variance application. The Court of Appeals held that although Con Ed might not have satisfied the traditional burden of unnecessary hardship, it had shown that there was a public necessity for the construction, and this was sufficient to establish its right to a variance.

Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364, extended the exception to cellular telephone companies for construction of antenna towers. After substantial testimony that the towers would have minimal aesthetic or community impact, the Village of Dobbs Ferry zoning board of appeals nonetheless denied a use variance to Cellular Telephone. Yet it based its determination on the general standard of unnecessary hardship, asserting that to qualify for the public utility exception, a company must provide an 'essential service' commonly recognized by the grant of 'governmental type' powers such as eminent domain or monopoly status. The Court of Appeals disagreed, holding that the exception in Con Ed v. Hoffman applied to all public utilities, which includes cellular telephone providers.

The federal Telecommunications Act of 1996, which was designed in part to assure that municipalities did not use their zoning authority to inhibit growth of cellular telephone networks, prevents localities from regulating placement of cell phone facilities in any way that has 'the effect of prohibiting the provision of personal wireless services.' 46 USC section 332(7)(B)(i). In addition, local zoning boards must support any decision to prohibit a cell phone facility with substantial evidence, and that evidence may not include any evidence of the facility's environmental effects. 446 USC section 332(7)(B)(iii) and (iv). The federal statute largely reinforces the public utility exception by making it more difficult for a municipality to deny a variance for construction of a cell phone facility. The statute does not, however prevent municipalities from invoking aesthetic concerns in regulating placement of cell phone facilities (see Sprint Spectrum v. Board of Zoning Appeals, 244 F.Supp 108 [upholding denial of a variance because municipality had provided substantial evidence that proposed monopole would not comply with a local ordinance that required such structures be set back from any adjoining lot be a distance of 150% of the height of the tower, and would be aesthetically incompatible with its historic surroundings]). See also Cellular Telephone v. Town of Oyster Bay, 166 F3d 490 [indicating that aesthetic concerns alone might support denial of a variance].