Cellular Telephone Co. v. Rosenberg

• Citation: 624 N.E.2d 990,82 N.Y.2d 364,604 N.Y.S.2d 895
• Parties: , 624 N.E.2d 990 In the Matter of CELLULAR TELEPHONE COMPANY, Doing Business as Cellular One, Respondent, v. Armand ROSENBERG et al., Constituting the Zoning Board of Appeals of the Village of Dobbs Ferry, Appellants.
• Decision Date: 18 November 1993
• Court: New York Court of Appeals Court of Appeals

Page 895

604 N.Y.S.2d 895

82 N.Y.2d 364, 624 N.E.2d 990

In the Matter of CELLULAR TELEPHONE COMPANY, Doing Business

as Cellular One, Respondent, v. Armand ROSENBERG et al., Constituting the Zoning Board of

Appeals of the Village of Dobbs Ferry, Appellants.

Court of Appeals of New York.

Argued Oct. 5, 1993.

Decided Nov. 18, 1993.

[82 N.Y.2d 365] [624 N.E.2d 991] Richard M. Gardella, While Plains, for appellants.

[82 N.Y.2d 366] Keane & Beane, P.C., White Plains (Edward F. Beane and Judson K. Siebert, of counsel), for respondent.

[82 N.Y.2d 367] Rice & Amon, Suffern (Terry Rice, of counsel), for New York Planning Federation, amicus curiae.

Donovan Leisure Newton & Irvine, New York City (Louis C. Lustenberger, Jr., Susan Hart-White and Christoph C. Heisenberg, of counsel), for The Children's Village, amicus curiae.

OPINION OF THE COURT

SMITH, Judge.

The primary issue on this appeal is whether the siting of a cellular telephone facility qualifies as a "public utility" use variance exception under Matter of Consolidated Edison Co. v. Hoffman 43 N.Y.2d 598, 403 N.Y.S.2d 193, 374 N.E.2d 105.

Respondent Cellular Telephone Company (Cellular One), formerly known as Metro One, is a telephone corporation (Public Service Law § 2[17]; Transportation Corporations Law § 25) and a public utility company (Public Service Law § 2[23]; ¹ see also, Village Law § 5-524[6] [defining public utility services to include telephone services]. Cellular One is licensed by the Federal Communications Commission (FCC) and the New York Public Service Commission (PSC) to provide cellular telephone service to subscribers throughout the New York-New Jersey metropolitan area. The FCC has authorized respondent "to establish a new cellular system operating on frequency Block A in the Domestic Public Cellular Radio Telecommunications Service" to serve the New York metropolitan area. The PSC has issued respondent a certificate of public convenience and necessity, as is required for every telephone corporation (Public Service Law § 99). In addition, the PSC is authorized to prescribe respondent's service and rate standards (see, Public Service Law § 91). Cellular One operates more than 100 cell sites with over 3,500 transmitters in the New York-New Jersey area.

On July 20, 1990, Cellular One informed the Dobbs Ferry Planning Board of its proposal to establish a cellular telephone cell site on the 209-acre grounds of Children's Village, a not-for-profit corporation licensed to provide treatment and a home for neglected children. Erection of the cell site would enable respondent to expand and fill gaps in its service area. Presently, due to the large intervals between its existing antennas, respondent cannot adequately transmit or receive calls in the area of the proposed site. Calls of respondent's customers in that area are often interrupted or disconnected due to the scarcity of antennas, and interference from static. In addition, cross talk and intermodulation render inaudible calls that are connected. On September 26, 1990, pursuant to a lease agreement, Cellular One leased approximately 800 square feet of land from Children's Village. The lease agreement allowed respondent to establish and operate the cell site on the grounds.

The proposed cell site involves the installation of nine cellular antennas, measuring 4 feet 1 inch by approximately 10 inches, which would be attached to an existing 70-foot water tower. The antennas would not increase the height of the water tower. A one-story 14-feet by 28-feet modular building would house computer equipment adjacent to the water tower. Located at approximately 400 to 500 feet from the nearest private residential dwelling, the water tower would also be at a higher elevation than residential dwellings in the area. In addition, the proposed site requires the enhancement of an existing dirt road to facilitate access to the site, and the installation of fencing.

The Children's Village site is located in the E (Educational District) Zone under the Dobbs Ferry Zoning Code. The proposed cell site is not a permitted use in this zone. Thus, in October 1990, Cellular One applied for a permit to begin the installation. By letter dated October 9, 1990, the Dobbs Ferry Building Inspector informed respondent that its cell site proposal had to be denied because such business was not a permitted use in the zone.

On October 18, 1990, Cellular One applied for a use variance to construct the cell site on the Children's Village property. A series of public hearings regarding respondent's application commenced on November 14, 1990 and continued on January 9, 1991 and February 13, 1991. During the hearings, the Chairman of the Zoning Board questioned the authority of the Board to grant the variance, in light of this Court's holding in Matter of Otto v. Steinhilber 282 N.Y. 71, 24 N.E.2d 851. He also inquired about alternate sites and required the submission of the lease between Children's Village and Cellular One. Several people who owned homes near the Children's Village site raised concerns about noise, reception interference and health risks. Cellular One objected to the submission of the lease and its viewing by the public, but subsequently surrendered it to the chairman. In addition, respondent argued that other alternative sites were not suitable, and that the holding in Matter of Otto did not apply to its variance request since it is a "public utility." Cellular One also offered expert testimony to show that the granting of the application will have no negative impact on the neighborhood and that any concerns in that respect were unwarranted. The experts stated that the proposed cell site would have no effect on washing machines, telephones, radios or televisions, that there would be no disruption of any other frequencies, and that there would be no effect of any of the transmissions on humans or animals or any other organisms. In addition, the experts explained that the additional traffic flowing from the installation of the cell site would be limited to one vehicle accessing the site once or twice a month for routine maintenance. Respondent asserted that it selected the Children's Village site because of its natural elevation, its location in a heavily wooded area and proximity to highways, and the existing water structure, which would mean that Cellular One would not have to create a tower elsewhere.

Appellant Zoning Board denied the use variance, finding that Cellular One offered insufficient evidence to establish (1) "that the land at issue cannot yield a reasonable return if used only for the purpose allowed by the applicable zoning statute," (2) "that its circumstance (or that of the Children's Village) is due to a unique situation and not to the general condition of the neighborhood," (3) "that there exists a public necessity for its service, or what the need of the broader public is relating to such service, or that it is a public utility relating to the zoning ordinance," (4) "the absence of possible future hazards to the health and welfare of the community," and (5) "the lack of alternate sites (i.e. on other than Children's Village land) which would accommodate [Cellular One's] needs for its business."

This CPLR article 78 proceeding challenging the Board's determination followed. Cellular One alleged that the Board's actions in denying the use variance were arbitrary and capricious, unsupported by the record, not supported by substantial evidence, and contrary to law. Cellular One asserted that the Board failed to apply the appropriate standard of public necessity set forth in Matter of Consolidated Edison Co. v. Hoffman (supra), and, instead, erroneously applied the test of unnecessary hardship applicable to nonutility applications for use variances. Supreme Court granted the petition and directed appellants to issue the use variance, finding, as a matter of law, that Cellular One is a public utility and that the Board's finding and conclusions to the contrary were incorrect, and that the Board's decision was "significantly flawed in its analysis and conclusions" and "arbitrary and capricious." (153 Misc.2d 302, 309, 581 N.Y.S.2d 554.) The Appellate Division affirmed, stating that Supreme Court properly determined that Cellular One is a public utility, that the test for a use variance set forth in Matter of Consolidated Edison Co. v. Hoffman is applicable, that Cellular One made a sufficient showing to warrant the issuance of the use variance, and that the Board's determination to the contrary was arbitrary and capricious (188 A.D.2d 648, 591 N.Y.S.2d 526). This Court granted leave to appeal.

On this appeal, appellants contend that the determinations of Supreme Court and the Appellate Division unnecessarily expand the test for entitlement to a use variance in Matter of Consolidated Edison (supra) to include the facilities of all public utilities, regardless of whether they provide essential services to the community. Appellants urge that the exception should be used to protect only public utilities, such as electric, gas, steam and water corporations, that supply essential services which are commonly recognized by the grant of "governmental type" powers, including the power of eminent domain, monopoly status, and partial zoning exemption...