176 F.3d 630 (2nd Cir. 1999), 98-7442, Sprint Spectrum L.P. v. Willoth

Docket Nº:Docket No. 98-7442.
Citation:176 F.3d 630
Party Name:SPRINT SPECTRUM, L.P., d/b/a Sprint PCS, Plaintiff-Appellant, v. Craig WILLOTH, Chairman, Thomas McCune, Craig Litt, William Quinn, and Edward Kerkhoven, Members, Constituting the Town of Ontario Planning Board, and Edward Collins, Code Enforcement Officer for the Town of Ontario, Defendants-Appellees.
Case Date:May 24, 1999
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 630

176 F.3d 630 (2nd Cir. 1999)

SPRINT SPECTRUM, L.P., d/b/a Sprint PCS, Plaintiff-Appellant,

v.

Craig WILLOTH, Chairman, Thomas McCune, Craig Litt, William

Quinn, and Edward Kerkhoven, Members, Constituting the Town

of Ontario Planning Board, and Edward Collins, Code

Enforcement Officer for the Town of Ontario, Defendants-Appellees.

Docket No. 98-7442.

United States Court of Appeals, Second Circuit

May 24, 1999

Argued Nov. 23, 1998.

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John M. Wilson, II, Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP, Rochester, NY, (Richard A. Palumbo, Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP, Rochester, NY, on the brief), for Defendants-Appellees.

The Association of Towns of the State of New York and the National Association of Towns and Townships (Lori A. Mithen, for the Association of Towns in the State of New York, Albany, New York, Tom Halicki, Executive Director for the National Association of Towns and Townships, Washington, D.C.), filed a brief as Amici Curiae in support of defendants-appellees.

The Personal Communications Industry Association (John L. Bartlett, Eric W. DeSilva, Stephen J. Rosen, Wiley, Rein & Fielding, Washington, D.C.), filed a brief as Amicus Curiae in support of plaintiff-appellant.

Before: OAKES, WALKER, and McLAUGHLIN, Circuit Judges.

JOHN M. WALKER, Jr., Circuit Judge:

Sprint Spectrum, L.P., d/b/a/ Sprint PCS, appeals from the grant of summary judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Judge ) upholding the decision of the Planning Board for the Town of Ontario, New York, to reject Sprint PCS's application to build three communications towers. See Sprint Spectrum, L.P. v. Willoth, 996 F.Supp. 253 (W.D.N.Y.1998). Affirmed.

BACKGROUND

Sprint PCS ("Sprint") is licensed by the Federal Communications Commission ("FCC") to provide broadband personal communications services ("PCS"), a form of wireless telecommunications, to the Buffalo Major Trading Area ("Buffalo MTA"). The Buffalo MTA includes portions of northern Pennsylvania and most of the counties in Western and Central New York, including the Town of Ontario.

PCS services uses digital technology as opposed to the analog technology used in cellular telephones. Both PCS and cellular services require the user to be within range of a wireless telecommunications facility called a cell site. The geographic area covered by a particular cell site is called a cell, and a provider achieves seamless coverage throughout a greater area by constructing a grid-pattern of adjacent honey-comb shaped cells. Each cell site requires antennae and equipment to provide reliable coverage throughout the cell and to switch the signal from one cell to the next as a PCS user moves through an area. The antennae need not be placed

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exactly in the center of each cell, but can be placed anywhere within 25% of the radius of the hexagon to be covered. The antennae may be placed on preexisting structures such as a building or a billboard. But absent suitable preexisting structures within 25% of the cell radius, it is necessary to erect a tower for the antennae.

Numerous factors affect the size of a cell. The higher frequency and lower power of the digital signals means that the maximum effective distance between a cell site and a PCS wireless phone is shorter than for analog service, and the size of the cells correspondingly smaller. A PCS network within a given area therefore requires more cell sites and towers than an analog cellular system. Additional factors that affect the cell size are topography, building density and population density. Population density tends to factor into the cell size in two ways: (1) it is a rough measure of building density and type, and (2) it is also an indicator of how many telephone users will be located within a cell. As the distance and number of obstructions between a cell site and a PCS telephone increases, the signal becomes more attenuated. If it dips below a certain threshold, communication will be interrupted by static, become unreliable, and eventually disappear. In addition to signal strength, the limited bandwidth available to PCS providers can accommodate only a certain number of wireless phone calls within a particular cell at any one time. Therefore, as phone use within an area increases, it may become necessary to shrink the cell to ensure that the system has sufficient capacity to provide reliable service.

Lucent Technologies, the designer of Sprint's PCS system in the Buffalo MTA, has developed guidelines to determine the appropriate cell radius based on the population density of a particular area. Lucent defines a rural morphology as an area in which the population density is less than 250 people per square mile, and the recommended cell radius is set at 4 miles. A suburban morphology corresponds to a population density between 250 and 1778 people per square mile, and a cell radius of 1.5 miles. Where the number of people per square mile is over 1778 but less than 7111, the morphology is urban and the cell radius is set at 0.75 miles. Since Ontario has a population density of approximately 261 per square mile, it is just within the numerical limits for a suburban morphology according to Lucent's criteria. The Lucent Technology criteria are only estimates of use and building size and type, and where the population density is near the line between two morphologies, the smaller cell and larger number of cells may constitute a substantial overbuild.

On or about May 5, 1996, Sprint presented its proposal to build three cell sites to representatives from Ontario as part of its plan to provide PCS services to the town. It was agreed at that meeting that, to proceed with the construction, Sprint needed a site plan approval from the Town of Ontario Planning Board ("Planning Board" or "Board"). Subsequently, Sprint filed three applications for site plan approval, proposing to construct a 150 foot tall antennae tower at three separate locations: 426 Ridge Road, 6954 Slocum Road, and 193 County Line Road.

The Planning Board first considered Sprint's three applications at its public meeting on June 11, 1996. At the meeting, Sprint generally described the PCS technology and reviewed its plans. The Board decided to hold a public hearing on Sprint's application on July 9, 1996, and asked Sprint to submit a Full Environmental Assessment Form ("FEAF") and visual addendum for each application so that the Planning Board could determine whether Sprint was required to file an environmental impact statement ("EIS") pursuant to New York's State Environmental Quality Review Act ("SEQRA"). See N.Y. Envtl. Conserv. L. § 8-0101 et seq. (McKinney 1997).

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SEQRA requires agencies to evaluate whether pending actions have significant environmental consequences, see Village of Westbury v. Department of Transp., 75 N.Y.2d 62, 68, 550 N.Y.S.2d 604, 549 N.E.2d 1175 (1989), and, if so, requires the agency to go through an EIS procedure beginning with a draft EIS ("DEIS") and continuing through a final EIS ("FEIS") aimed at ferreting out the environmental consequences of approving a project as well as practicable mitigating measures, see Society of the Plastics Indus., Inc. v. County of Suffolk, 77 N.Y.2d 761, 769-70, 570 N.Y.S.2d 778, 573 N.E.2d 1034 (1991). See also N.Y. Envtl. Conserv. L. § 8-0109; id. § 8-0109 note (McKinney 1997) (Background, Purpose and Construction).

Following the public hearing, the Board met to review Sprint's applications on August 13, 1996 in accordance with SEQRA's requirements. That meeting primarily revolved around alternative sites and network designs for the Town of Ontario which the Board had asked Sprint to consider. The discussions included whether two 250 foot towers located in the industrial or industrial transitional zone would meet Sprint's needs, and whether it would be feasible for Sprint's proposed towers to be lower.

At a special meeting held on September 3, 1996, the Board adopted a resolution "to declare a positive environmental impact" pursuant to SEQRA regarding the three proposed sites. The resolution indicated that there might be some potentially significant adverse environmental impact associated with Sprint's proposals, roughly described as impact on property values, visual impact and "cumulative impacts" of the proposed facilities and possible future facilities. Subsequently, the Board determined to hold a "scoping session" pursuant to SEQRA requiring Sprint to perform visual simulations of the proposed towers. The "scoping session" was conducted on September 17, 1996.

The visual impact analysis by balloon tests and photographic simulations was completed by February, 1997 and Sprint submitted the DEIS for each site on or about April 20, 1997. At its May 20, 1997 meeting, the Board accepted the DEIS as complete, and, after a public hearing on July 8, 1997, Sprint submitted a FEIS to the Board on August 8, 1997.

At a special meeting on August 26, 1997, the Board considered the FEIS together with signal propagation data submitted by Sprint, detailing why Ontario should be treated as suburban, requiring more towers, rather than rural. At the meeting, town representatives pointed out that neighboring towns, similar in many respects to Ontario, were classified as rural and requested that Sprint submit signal propagation data for the other towns as well, which Sprint did on September 24, 1997. However, the propagation data submitted by Sprint depicted only areas covered by signals strong enough to penetrate buildings ("in-building coverage"), as compared to signal propagation data for the lesser signal strength required to penetrate the skin of a vehicle ("in-vehicle coverage"). The Board was able to obtain...

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