T–Mobile Ne. LLC v. Town of Islip

• Decision Date: 21 September 2012
• Docket Number: No. 10–CV–692 (ADS)(WDW).,10–CV–692 (ADS)(WDW).
• Citation: 893 F.Supp.2d 338
• Parties: T–MOBILE NORTHEAST LLC, Plaintiff, v. The TOWN OF ISLIP and the Planning Board of the Town of Islip, Defendants.
• Court: U.S. District Court — Eastern District of New York

893 F.Supp.2d 338

T–MOBILE NORTHEAST LLC, Plaintiff,

v.The TOWN OF ISLIP and the Planning Board of the Town of Islip, Defendants.

No. 10–CV–692 (ADS)(WDW).

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

Sept. 21, 2012.

Re, Nielson, Huber & Coughlin, LLP, by: John Coughlin, Esq., Lawrence C. Re, Esq., of Counsel, Huntington, NY, Snyder & Snyder, LLP, by: Megan F. Carroll, Esq., of Counsel, Tarrytown, NY, for Plaintiff.

Rosenberg Calica & Birney LLP, by: Edward M. Ross, Esq., Judah Serfaty, Esq., of Counsel, Garden City, NY, for Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

In this case, the plaintiff T–Mobile Northeast LLC (“T–Mobile”) alleges that the Town of Islip (“the Town”) and the Planning Board of the Town of Islip (“the Board” and together with the Town, “the Defendants”) denied its request for a special use permit to construct a public utility wireless telecommunication facility, in violation of the Telecommunications Act of 1996 (the “TCA”), 47 U.S.C. § 332(c) and Article 78 of the New York Civil Procedure Law and Rules. Presently before the Court are T–Mobile's motion for summary judgment and the Defendants' cross-motion for summary judgment. For the reasons set forth below, the Court denies T–Mobile's motion for summary judgment and grants the Defendants' cross-motion for summary judgment.

I. BACKGROUND

Unless otherwise indicated, the following constitutes the undisputed facts of the case derived from the administrative record in this case and the parties' submissions, accompanying affidavits and Rule 56.1 Statements.

A. The Parties

T–Mobile is a “telecommunications carrier” that is considered a public utility for zoning purposes. See Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 371–72, 604 N.Y.S.2d 895, 624 N.E.2d 990 (1993). T–Mobile is a wholly owned subsidiary of T–Mobile USA, Inc., and uses licenses issued to T–Mobile USA, Inc. by the Federal Communications Commission (“FCC”). These licenses were issued to T–Mobile, USA, Inc. and its affiliates to provide personal wireless services, as defined under federal law, within the state of New York, including Suffolk County and the Town of Islip.

The defendant Town of Islip delegates its local zoning decisions regarding the siting and construction of wireless communications facilities to the defendant Board. Article 68 of the Code of the Town of Islip (the “Town Code”) contains a provision that addresses the regulation of the siting and installation of wireless telecommunications facilities. See Town Code, Chapter 68, Zoning, Article XXXIV, Miscellaneous Provisions, § 68–420.1 “Wireless communications facilities; amateur radio towers; satellite antenna.” Pursuant to Town Code § 68–420.1A(4)(a), all applications for siting and installing wireless communications facilities, regardless of location, are subject to both site plan approval and special permit approval by the Board.

B. T–Mobile's Network

As T–Mobile explains, to provide wireless service, T–Mobile creates a network of individual but interconnected “cell sites”, which are antenna facilities consisting of radio antennas and equipment that sends and receives radio signals to and from customers' portable wireless communications handsets and mobile telephones. T–Mobile's wireless antennas receive and transmit low power radio signals from wireless telephones and relay the signals through the attached electronic equipment into the “land line” telephone infrastructure enabling wireless calls to be routed anywhere in the world. (Pl.'s 56.1 Stmt., ¶ 6.)

Each cell site serves a small geographic area and has height requirements that vary according to local topography, vegetation, and the configuration of existing structures. ( Id., ¶ 7.) According to T–Mobile, due to federal licensing regulations, each cell site has limited transmission power and a limited number of channels thereby restricting the number of telephone calls the cell site can accommodate. ( Id., ¶ 8.) If there are too few cell sites or if cell sites are located too far apart, wireless telephone users serviced by T–Mobile may experience what T–Mobile defines as “unreliable service”, which includes “disconnection of calls and static and difficulty placing and maintaining calls.” ( Id., ¶ 9.)

C. T–Mobile's Application

T–Mobile purports to have identified a significant service gap in Bayport, which is a hamlet in the Town of Islip. To fill that gap, T–Mobile claims it must build a monopole or tower, affix to it public utility wireless telecommunications antennas and install related equipment on the ground (hereinafter “Proposed Facility”). The following description of the Proposed Facility is undisputed:

• The Proposed Facility would consist of a 120 foot brown monopole and ground-based equipment on a concrete pad and set within a 13 feet 6 inches by 28 feet 10 inches fenced communications compound. Six public utility wireless telecommunications antennas would be concealed with the monopole. The Proposed Facility would be surrounded by 8–foot tall shrubs around the perimeter of the compound to screen the equipment.

After initial consultation with the Planning Department, T–Mobile found an area to build the Proposed Facility within the Suffolk County Girls Scouts Camp Edey located at 1500 Lakeview Avenue, Bayport, New York (hereinafter “Premises” or “Camp Edey”), which is located in a Residential AAA zoning district. Camp Edey is a heavily wooded property spanning approximately 94 acres, which is surrounded by a camp ground, nature preserve, and residential uses. Approximately 125 feet from the site is the Sans Souci Nature Preserve and the Sans Souci Lakes.

According to T–Mobile, although the Premises is residentially zoned, it was chosen as the most favorable site inasmuch as it achieves an optimal balance between meeting T–Mobile's coverage needs and minimizing impact on the surrounding area because the Premises is large enough so that the Proposed Facility can be located far from residences and the Premises primarily consists of densely wooded land, which serves as a natural visual buffer for the Proposed Facility.

The Town of Islip regulates the approval of wireless telecommunication facilities within its borders through Article 68 of the Town Code. Pursuant to Section 68–420.1 of the Town Code, any construction of a wireless telecommunications facility requires a special use permit. Section 68–420. 1(A)(1) states the “Purpose” of the ordinance as follows:

In recognition of advancing technology and the increased demand and need for wireless communications towers and facilities, the Town of Islip hereby determines that it is in the public interest to regulate the siting and installation of such facilities within the Town in order to protect the public health, safety and welfare. Therefore, the Board hereby determines to establish general guidelines for the siting of wireless communications towers that reflect two preferences: that wireless service providers utilize existing towers, buildings and structures to minimize the construction of new towers, and that wireless communications facilities are located in commercial and industrial districts rather than in residential districts. In furtherance of these objectives, due consideration shall be given to the Town's Comprehensive Plan, existing land uses and development, environmentally sensitive areas, aesthetics and other appropriate factors in approving sites for the location of towers and/or facilities.

Section 68–420.1(A)(4) provides specific objective requirements for the proposed wireless telecommunications facilities that differ based on whether the proposed facility is located in an area zoned as Residential, § 68–420. 1(A)(4)(a), Commercial, § 68–420.1(A)(4)(b), Historic district, § 68–420.1(A)(4)(c), or Park and scenic vistas, § 68–420.1(A)(4)(d).

Because the Premises was zoned Residential AAA, the objective requirements were set forth in § 68–480.1(A)(4)(a), which provides:

Wireless communications facilities located in residential zoning districts are subject to site plan approval and special permit approval from the Planning Board, and must meet the following requirements:

(1) Wireless communications facilities on buildings shall be no higher than 20 feet above the maximum permitted height of the principal structure.

(2) A tower base shall be set back from the property line by a minimum distance of 110% of the height of the tower.

In addition to these objective requirements for constructing a facility in a Residential zone, there are a number of generally applicable provisions relating to collocation, design, removal, and applicable requirements. See § 68–420.1(A)(5)-(A)(8). Only the section relating to the “Design” of the proposed facility is relevant to the instant litigation. The parties agree that the portion of these provisions applicable to the Proposed Facility were as follows:

(a) The tower shall be designed in such a manner as to minimize any visual impacts pursuant to the Planning Board;

(c) Buildings accessory to wireless communications facilities shall be screened, landscaped and designed to minimize any visual impacts pursuant to the Planning Board;

(d) The base area shall be surrounded by a six-foot high fence. The surrounding fence shall be screened by a continuous row of evergreen trees of at least six feet in height and planted five foot on center at time of installation;

(f) A tower shall not be lighted unless required by the FAA.

Finally, section 68–420.1(A)(9) sets forth the following additional factors that the Board may consider in determining whether to grant a special use permit to construct a wireless communication facility:

(9) Considerations

(a) Priorities

[1] The Board may give priority to application for location on an existing structure or building.

[2] The Board may give priority to applications for collocation.

[3] The Board may give priority to a single application for multi-antenna proposals.

(b) Other...