Calpeter v. Zoning Bd. of Appeals for Town of Verona (In re Decarr)

• Decision Date: 06 October 2017
• Docket Number: 1074 CA 16-02202.
• Citation: 154 A.D.3d 1311,62 N.Y.S.3d 244
• Parties: In the Matter of John J. DECARR, Kimberly Decarr, Steve Catello, Heather Catello, Marty Staple, Dawn Staple, Cody Staple, Gary Gaglianese, Teresa Daltmore, Robert Calpeter, Jr., Cynthia Calpeter, Mary Parry, Uli Aserian, Lynn Aserian, Charlotte Aserian, Almondie Shimpine, Damian Marino, Bob Grems, Debbie Grems, Lisa Gaudet, Dwight Davis, Monica Davis, Sue White, Robin Ropetski, Chris Ropetski, Jeff Stoffel, David Byrne and Margaret Byrne, Petitioners–Appellants, v. ZONING BOARD OF APPEALS FOR TOWN OF VERONA, Martin Schaub, Sal Sparce, Henry Gerwig, James Regan and Patrick Barker, Constituting Zoning Board of Appeals of Town of Verona, Vincent Rossi, as the Town Attorney for the Town of Verona, Town of Verona, Evolution Site Services, LLC, Upstate Cellular Partnership, doing business as Verizon Wireless, and William G. Frech Living Trust, Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

154 A.D.3d 1311

62 N.Y.S.3d 244

In the Matter of John J. DECARR, Kimberly Decarr, Steve Catello, Heather Catello, Marty Staple, Dawn Staple, Cody Staple, Gary Gaglianese, Teresa Daltmore, Robert Calpeter, Jr., Cynthia Calpeter, Mary Parry, Uli Aserian, Lynn Aserian, Charlotte Aserian, Almondie Shimpine, Damian Marino, Bob Grems, Debbie Grems, Lisa Gaudet, Dwight Davis, Monica Davis, Sue White, Robin Ropetski, Chris Ropetski, Jeff Stoffel, David Byrne and Margaret Byrne, Petitioners–Appellants,

v.ZONING BOARD OF APPEALS FOR TOWN OF VERONA, Martin Schaub, Sal Sparce, Henry Gerwig, James Regan and Patrick Barker, Constituting Zoning Board of Appeals of Town of Verona, Vincent Rossi, as the Town Attorney for the Town of Verona, Town of Verona, Evolution Site Services, LLC, Upstate Cellular Partnership, doing business as Verizon Wireless, and William G. Frech Living Trust, Respondents–Respondents.

1074 CA 16-02202.

Supreme Court, Appellate Division, Fourth Department, New York.

Oct. 6, 2017.

Campanelli & Associates, P.C., Merrick (Andrew J. Campanelli of Counsel), for Petitioners–Appellants.

Young/Sommer LLC, Albany (J. Michael Naughton of Counsel), Stockli Slevin & Peters, LLP, and Rossi & Rossi, New York Mills, for Respondents–Respondents.

PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Petitioners commenced this CPLR article 78 proceeding seeking to annul a determination of respondent Zoning Board of Appeals for Town of Verona (ZBA) granting a special use permit and an area variance to respondents Evolution Site Services, LLC, Upstate Cellular Partnership, doing business as Verizon Wireless, and William G. Frech Living Trust (collectively, Applicants) for construction of a wireless telecommunications facility. Supreme Court, upon the consent of all parties, adjourned the proceeding to permit the ZBA to issue a "more complete decision" upon the review of additional submissions from petitioners' attorney. Following that subsequent decision, petitioners requested to amend the petition to address deficiencies therein purportedly raised by the second decision. The court denied petitioners' request to amend the petition and dismissed the petition, ruling that the ZBA's determination to issue the special use permit and area variance had a rational basis and was based on substantial evidence. We now affirm.

"Where, as here, the zoning ordinance authorizes a use permit subject to administrative approval, the applicant need only show that the use is contemplated by the ordinance and that it complies with the conditions imposed to minimize anticipated impact on the surrounding area ... The [zoning authority] is required to grant a special use permit unless it has reasonable grounds for denying the application" (Matter of North Ridge Enters. v. Town of Westfield, 87 A.D.2d 985, 986, 450 N.Y.S.2d 112, affd. 57 N.Y.2d 906, 456 N.Y.S.2d 763, 442 N.E.2d 1274 ; see Matter of George Eastman House, Inc. v. Morgan Mgt.,

LLC,

130 A.D.3d 1552, 1554, 14 N.Y.S.3d 264, lv. denied 26 N.Y.3d 910, 2015 WL 6457246 ). Moreover, inasmuch as the Applicants include a public utility, the ZBA was further limited in its discretion to deny the area variance (see

Matter of Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 371–372, 604 N.Y.S.2d 895, 624 N.E.2d 990 ; see also Town Law § 274–b [1 ]; Matter of Lloyd v. Town of Greece Zoning Bd. of Appeals [appeal No. 1], 292 A.D.2d 818, 819, 739 N.Y.S.2d 303, lv. dismissed in part and denied in part 98 N.Y.2d 691, 747 N.Y.S.2d 407, 775 N.E.2d 1286, rearg. denied 98 N.Y.2d 765, 752 N.Y.S.2d 4, 781 N.E.2d 916 ). "A telecommunications provider that is seeking a variance for a proposed facility need only establish that there are gaps in service, that the location of the proposed facility will remedy those gaps and that the facility presents a minimal intrusion on the community" ( Matter of Site Acquisitions v. Town of New Scotland, 2 A.D.3d 1135, 1137, 770 N.Y.S.2d 157 ).

Contrary to petitioners' contentions, the Applicants were not required to establish that their proposal was the "least intrusive means" to address a "significant gap" in service in order for the ZBA to grant their application (see Omnipoint Communications, Inc. v. City of White Plains, 430 F.3d 529, 535 ). Those elements constitute "the showing an applicant must make before [the Telecommunications Act of 1996(TCA) ] § 332(c)(7)(B)(i)(II) will require a [zoning authority] to grant its application" (id.; see Sprint Spectrum, L.P. v. Willoth , 176 F.3d 630, 643 ). Thus, "[w]hen evaluating the evidence, local and state zoning laws govern the weight to be given the evidence[,] ... [and] the TCA does not affect or encroach upon the substantive standards to be applied under established principles of state and local law" ( Orange County–Poughkeepsie Ltd. Partnership v. Town of E. Fishkill, 84 F.Supp. 3d 274, 295, affd. 632 Fed Appx 1, [internal quotation marks omitted] ). We conclude that the determination that the Applicants established the existence of a gap in service, that the location of the proposed facility would remedy that gap, and that the facility presented a minimal intrusion "has a rational basis and is supported by substantial evidence" (Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 308, 746 N.Y.S.2d 667, 774 N.E.2d 732 ; see Matter of Expressview Dev., Inc. v. Town of Gates Zoning Bd. of Appeals, 147 A.D.3d 1427, 1428–1429, 46 N.Y.S.3d 725 ).

Petitioners contend that the ZBA's determination, as amplified by the second decision, addressed concerns that were not raised by petitioners but failed to address concerns that were in fact raised. Contrary to petitioners' contention, a significant...