Cellular Telephone Co. v. Town of Oyster Bay

• Decision Date: 29 January 1999
• Docket Number: Docket No. 98-9009
• Citation: 166 F.3d 490
• Parties: 15 Communications Reg. (P&F) 6 CELLULAR TELEPHONE COMPANY, doing business as AT & T Wireless Services, Plaintiff-Appellee, v. The TOWN OF OYSTER BAY and The Town Board of the Town of Oyster Bay, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 490

166 F.3d 490

15 Communications Reg. (P&F) 6

CELLULAR TELEPHONE COMPANY, doing business as AT & T Wireless Services, Plaintiff-Appellee, v. The TOWN OF OYSTER BAY and The Town Board of the Town of Oyster Bay, Defendants-Appellants.

Docket No. 98-9009

United States Court of Appeals, Second Circuit.

Argued Jan. 4, 1999.

Decided Jan. 29, 1999.

Perry S. Reich, Lindenhurst, N.Y. (Schapiro & Reich, Steven M. Schapiro, of Counsel), for Defendants-Appellants.

Robert D. Kaplan, New York, N.Y. (Friedman Kaplan & Seiler LLP, Nicole L. Gueron, of Counsel), for Plaintiff-Appellee.

Before: FEINBERG, PARKER and SACK, Circuit Judges.

FEINBERG, Circuit Judge:

Defendant Town of Oyster Bay (Town) and defendant Town Board of the Town (Town Board) appeal from a judgment of the United States District Court for the Eastern District of New York, Joanna Seybert, J., granting the motion for summary judgment of plaintiff Cellular Telephone Company d/b/a AT & T Wireless Services (AT & T) and entering an injunction against the Town. The district court found that the Town's denials of two special permits were not based on substantial evidence under the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(TCA), and ordered issuance of the permits. Cellular Telephone Co. v. Town of Oyster Bay, No. 97-CV-641 (E.D.N.Y. June 17, 1998). For the reasons set forth below, we affirm.

I. Background

AT & T is a provider of cellular telephone service across Long Island. As a licensee of the New York State Public Service Commission, AT & T is obligated to provide reliable wireless communications service throughout the New York metropolitan area. To achieve this goal, AT & T needs to create a network of individual "cell sites," which consist of radio antennae and related equipment that send and receive radio signals to and from customers' cellular phones. The signals are low power, high frequency radio waves, necessitating rather short distances between cell sites. In urban areas, analog cell sites must be within a few miles of one another. Additionally, the cell sites need to be sufficiently high to allow the antennae to successfully transmit and receive the radio signals. Height requirements vary due to local topography, but usually fall in the range of 80'-150' above ground level.

Since each site can process only a limited number of calls at any one time, additional cell sites must be added as cellular service usage increases. If a network contains too few cell sites or sites too far apart from one another, customers living or working in or traveling through these "coverage gaps" experience inadequate service, including static, inability to place calls and mid-call disconnection. At some point prior to 1995, AT & T identified two such coverage gaps within the Town of Oyster Bay--one in Glen Head and one in South Farmingdale. AT & T sought to remedy these gaps by placing two new cell sites in the Town.

AT & T identified existing structures, two water towers, that could serve as the base mounts for the cellular antennae, eliminating the need to construct a monopole or latticed tower to meet cell site height requirements. AT & T privately contracted with the owners of the water towers for the right to install the cell sites. In May 1995, AT & T applied to the Division of Building of the Oyster Bay Department of Planning and Development for a building permit for the Glen Head site. A similar application was filed in January 1996 for the Farmingdale site. Both applications were rejected, necessitating petitions to the Town Board for special use permits. AT & T filed the Glen Head petition in September 1995 and the Farmingdale petition in March 1996.

The Town Board held public hearings on each of the petitions, for the Glen Head site in February 1996 and for the Farmingdale site in January 1997. At each hearing AT & T presented evidence as to the need for the cell site to assure uninterrupted coverage of the area. AT & T also presented evidence suggesting that the cell sites would not adversely affect the character of the neighborhood or the real estate value of nearby property. Finally, AT & T presented scientific evidence on radio frequency emissions (rfes), intended to allay residents' fears of adverse health effects from the sites.

The Town did not present evidence at either hearing. Instead, at each hearing, the floor was opened to the public to speak for or against the petitions. In both cases, the only speakers were those opposed to granting the petitions. Of the comments, the vast majority were addressed to the perceived health threat that the sites might pose. Specifically, the residents of Oyster Bay expressed concern that the rfes emitted by the cell sites might cause cancer. At the Glen Head hearing a petition was introduced into evidence bearing 640 signatures, all from residents opposed to the cell sites because of concern over potential health risks. Occasional remarks were made as to the effect of the sites on property values and/or the aesthetics of the community. However, health concerns dominated the speakers' statements at each hearing.

In February and May of 1997, the Town Board by resolution denied the Glen Head and Farmingdale petitions, respectively. In addition to citing "safety issues" as a ground for each denial, the resolutions also listed, among other things, the failure to provide parking, the need for a full environmental impact statement, the need to address traffic, air quality and noise issues, and aesthetic concerns as reasons for denying the petitions. In response, AT & T filed the instant action in the district court, alleging that the denials violated the TCA. AT & T moved for summary judgment in September 1997. In a thorough opinion filed in June 1998, the district court granted AT & T's motion for summary judgment, holding that the Town had violated the TCA and ordering the Town to issue all necessary permits and licenses to AT & T so that it could construct the two cell sites. The Town appeals that decision.

II. The Governing Law

A. Standard of Review

On a motion for summary judgment, this Court reviews the district court's determination de novo, D' Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998), and reviews facts in the light most favorable to the losing party. Sullivan v. Town of Salem, 805 F.2d 81, 82-83 (2d Cir.1986).

B. The Telecommunications Act of 1996

The TCA is an omnibus overhaul of the federal regulation of communications companies. The TCA was intended, in the words of the Conference Committee:

to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services ... by opening all telecommunications markets to competition....

H.R. Conf. Rep. No. 104-458, at 206 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 124. In furtherance of this goal, Congress added a subsection to the National Wireless Telecommunications Siting Policy, 47 U.S.C. § 332(c), which provides as follows:

(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 or instrumentality thereof 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.

(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.

(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 contained in a written record.

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. ¹

(v) Any person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis. Any person adversely affected by an act or failure to act by a State or local government or any instrumentality thereof that is inconsistent with clause (iv) may petition the Commission for relief.

Traditionally, the federal courts have taken an extremely deferential stance in reviewing local zoning decisions, limiting the scope of inquiry to the constitutionality of the zoning decision under a standard of rational review. See, e.g., Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Although Congress explicitly preserved local zoning authority in all other respects over the siting of wireless facilities, § 332(c)(7)(A), the method by which siting decisions are made is now subject to judicial oversight. § 332(c)(7)(B)(v). Therefore, denials subject to the TCA are reviewed by this court more closely than standard local zoning decisions. Here, the issue is...