Sprint Spectrum L.P. v. Willoth, 97-CV-6473T.

• Decision Date: 19 February 1998
• Docket Number: No. 97-CV-6473T.,97-CV-6473T.
• Citation: 996 F.Supp. 253
• Parties: SPRINT SPECTRUM L.P. d/b/a Sprint PCS, Plaintiff, v. Craig WILLOTH, Chairman, Thomas McCune, Craig Litt, William Quinn and Eduard Kerkhoven, Members, constituting the Town of Ontario Planning Board, and Edward Collins, Code Enforcement Officer for the Town of Ontario, Defendants.
• Court: U.S. District Court — Western District of New York

996 F.Supp. 253

SPRINT SPECTRUM L.P. d/b/a Sprint PCS, Plaintiff, v. Craig WILLOTH, Chairman, Thomas McCune, Craig Litt, William Quinn and Eduard Kerkhoven, Members, constituting the Town of Ontario Planning Board, and Edward Collins, Code Enforcement Officer for the Town of Ontario, Defendants.

No. 97-CV-6473T.

United States District Court, W.D. New York.

February 19, 1998.

Robert E. Hornik, Syracuse, NY, for Plaintiff.

John M. Wilson, II, Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP, Rochester, NY, for Defendants.

DECISION and ORDER

TELESCA, District Judge.

INTRODUCTION

Plaintiff, Sprint Spectrum, L.P. d/b/a Sprint PCS ("Sprint"), brings this action under the Federal Telecommunications Act of 1996 ("the Act") and Article 78 of the New York Civil Practice Laws and Rules, seeking to annul a decision of the Town of Ontario ("the Town") Planning Board which denied Sprint's applications for site plan approval of three cellular towers in the Town. Sprint asks this Court to grant its applications and direct the Town's Code Enforcement Officer to issue a permit for each site. Currently pending are the parties' motions for summary judgment. For the reasons discussed below, plaintiff's motion is denied and defendants' cross-motion for summary judgment is granted.

BACKGROUND

Sprint has obtained an exclusive license from the Federal Communications Commission ("FCC") to provide digital personal communications services ("PCS") for the Buffalo Major Trading Area ("MTA"), which encompasses most of Western New York, including the Town of Ontario. Sprint paid $19,000,000 for this ten-year FCC license, which requires it to provide PCS service to at least one-third of the population in the Buffalo MTA within five years of the issuance of its license. Sprint maintains that, in order to provide continuous uninterrupted service, it must develop an interconnected network of "cell sites" (i.e. antennae mounted on a pole or other structure) to provide overlapping coverage in a grid pattern. The coverage area provided by each antenna depends on the height of the antenna, density of population, and local topography.

On May 21, 1996, Sprint filed with the Town of Ontario Planning Board three separate applications for site plan approval to construct cell sites at 426 Ridge Road, 6954 Slocum Road, and 193 County Line Road. Although Sprint's applications sought individual permits to erect a 150-foot tall steel-gray "monopole" cell tower on each site, Sprint's counsel conceded at oral argument that it was submitted on an all or nothing basis. The Town Planning Board discussed the applications at meetings and/or public hearings on June 11, 1996; July 9, 1996; August 13, 1996; September 4, 1996; September 17, 1996; May 20, 1997; July 8, 1997; August 26, 1997; and September 25, 1997.

After each meeting, Sprint submitted additional information or responses to public comments as requested by the Town. Sprint provided, among other things, simulated photos showing the proposed towers both with foliage on the surrounding trees and without foliage, as requested by the Town. Sprint also completed detailed Draft and Final Environmental Impact Statements which included computer-generated maps showing the proposed service areas at the Town's request, as provided by the New York State Environmental Quality Review Act ("SEQRA"), Article 8, New York Environmental Conservation Law.

On September 25, 1997, the Town made its final findings which were transcribed and filed with the Ontario County Clerk on October 1, 1997. The Town Planning Board denied all three of Sprint's applications for site plan approvals based on its findings that (1) the Sprint project would have "a measurable and significant impact on property values"; (2) the "cumulative impact of multiple towers would have a significant environmental impact on the Town of Ontario"; and (3) there would be "visual impact from any tower that is visible over a wide area".

The Board's main concern was apparently Sprint's unwillingness to consider alternatives (or, indeed, to even provide the Town with information about alternatives) with respect to the number, height, and placement of cell towers. Sprint made a business decision that the Town of Ontario should be classified as "suburban" and, thus, that a signal strong enough for "in-building" coverage (-99 dBm) was required. Accordingly, Sprint insisted upon the approval of all three towers as being necessary to provide adequate (i.e."in-building") coverage to the area it sought to service.

Sprint had classified the neighboring towns of Walworth and Macedon as "rural" and, thus, erected only one tower in each of those towns, which was sufficient to provide "in-vehicle" coverage (-103 dBm). The Town of Ontario Planning Board found that the population, topography, and other characteristics of Ontario were sufficiently similar to Walworth and Macedon that it should have also been classified as "rural" by Sprint, and that one tower would be sufficient. Sprint disputes the Town's authority to challenge its business decision regarding the level of coverage it decided to provide. Sprint insists that this Court's inquiry is limited to whether the Town's action in denying all three site plans was "supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii).

DISCUSSION

The central issue is whether the Town of Ontario exceeded its authority in denying Sprint's application for three cell towers on the basis that Sprint's evidence demonstrated that a single tower could adequately perform the function necessary to provide the desired level of service to its cellular customers. Sprint insists that the question of adequacy of service in determining the number of towers necessary is not a permissible area of inquiry by the Town. The issue exemplifies the tension between the competing interests of local home rule and the implementation of the Federal Telecommunications Act of 1996. "The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981).

However, a local government's power to regulate land use is not unlimited, especially with respect to "personal wireless services facilities" (i.e. cell towers). Cellular service facilities are entitled to special zoning consideration both under the Federal Telecommunications Act of 1996, 47 U.S.C. § 332, and New York law, which has classified cellular providers as "public utilities." Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364, 604 N.Y.S.2d 895, 624 N.E.2d 990 (1993).

The Telecommunications Act of 1996, 47 U.S.C. § 332

On February 8, 1996, President Clinton signed into law the Federal Telecommunications Act of 1996 ("the Act"), which has been characterized as "an unusually important legislative enactment" establishing national public policy in favor of reducing regulation and encouraging "the rapid deployment of new telecommunications technologies." See Reno v. American Civil Liberties Union, ___ U.S. ___, 117 S.Ct. 2329, 2337-38, 138 L.Ed.2d 874 (1997).

The Act was not intended to preempt the authority of state and local governments to make decisions regarding the placement of wireless communications facilities within their borders. BellSouth Mobility, Inc. v. Gwinnett County, Georgia, 944 F.Supp. 923, 927 (N.D.Ga.1996); Sprint Spectrum, L.P. v. Town of Farmington, 1997 WL 631104 (D.Conn.1997). Rather, the Act reserves zoning authority to local governments while placing certain limitations on the exercise of that authority with respect to the regulation of "personal wireless services."

The Act provides, inter alia,

(c)(7) Preservation of Local Zoning Authority.

(A) General Authority. Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government ... over decisions regarding the placement, construction, and modification of personal wireless service facilities.

(B) Limitations.

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —

(I) shall not unreasonably discriminate among providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services....

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence in a written record....

47 U.S.C. § 332(c)(7).

Sprint argues that the Town has violated the Act by (1) failing to support its decision by substantial evidence in a written record; (2) unreasonably discriminating among providers of wireless services; and (3) effectively prohibiting the provision of personal wireless services.

Decision Supported By Substantial Evidence in a Written Record: 47 U.S.C. § 332(c)(7)(B)(iii).

The Town's decision denying Sprint's applications for three site plan approvals is supported by "substantial evidence in a written record," as required by 47 U.S.C. § 332(c)(7)(B)(iii).

Sprint contends that the Town Planning Board acted beyond its authority because it based its decision on considerations not permitted by N.Y. Town Law § 274-a and the Town of Ontario Zoning Ordinance. Sprint insists that the Town's decision was based on the impermissible considerations of network design issues (i.e. Sprint's decision to provide "in-building" coverage) which were beyond the scope of the Town's statutory authority for consideration.

Sprint notes that it is a "public utility" and the applications at issue were "permitted land uses" for the parcels selected. Thus, Sprint argues...