Opinion
No. K1–2016–484.
08-22-2016
In the Matter of the Application of Gerald FALCO, John Lanphere, Matthew Newton, Anthony Pulci, and Norma Pulci, Petitioners v. ZONING BOARD OF APPEALS OF THE TOWN OF POMFRET, Town of Pomfret, Upstate Tower Co. LLC, and Blue Wireless Co., LLC, Respondents.
Donald H. Michalak, Esq., Attorney for Petitioner. Jeffrey Passafaro, Esq., Attorney for Zoning Board of Appeals of the Town of Pomfret and the Town of Pomfret. Woods, Oviatt, Gilman, Attorneys for Upstate Tower Co., LLC and Blue Wireless Co., LLC. Reuben Ortenberg, of Counsel.
Donald H. Michalak, Esq., Attorney for Petitioner.
Jeffrey Passafaro, Esq., Attorney for Zoning Board of Appeals of the Town of Pomfret and the Town of Pomfret.
Woods, Oviatt, Gilman, Attorneys for Upstate Tower Co., LLC and Blue Wireless Co., LLC.
Reuben Ortenberg, of Counsel.
FRANK A. SEDITA III, J.
The principal question raised by this Article 78 Petition is whether the Zoning Board of Appeals of the Town of Pomfret (ZBA) lawfully sanctioned the planned erection of a cell-phone tower.
The Town of Pomfret's zoning ordinances are contained in Section 300 of its Town Code. § 300–118 of the Town Code sets forth the permissible design standards for telecommunications facilities; most relevantly, the erection of a tower in excess of 150' in height is prohibited. § 300–102 of the code sets forth the criterion for the issuance of use and area variances; most relevantly, factors the ZBA "shall" consider before issuing a variance are listed in § 300–102 C(2)(a.) through (e.). § 300–114 of the Town Code sets forth the criterion for the issuance of special use permits generally, while § 300–113 governs the issuance of permits for cell-phone towers. Most importantly, § 300–12 C. of the Town Code mandates that, "all applications for telecommunications facilities shall be treated as a Type 1 action under the State Environmental Quality Review Act" (SEQRA).
Buffalo–Lake Erie Wireless Systems Co., LLC d/b/a Blue Wireless Co., LLC (Blue Wireless) is a telecommunications carrier. Upstate Tower Co., LLC (Upstate Tower) develops and builds telecommunications facilities, including cell-phone towers, on behalf of Blue Wireless. On December 21, 2015, Upstate Tower applied to the ZBA for a public utility area variance and special use permit so that it could erect a 180' cell-phone tower (30' in excess of what is permitted in the Town Code) on a parcel of publicly-owned land at 9660 Chautauqua Rd. in the Town of Pomfret.
Blue Wireless does not currently provide wireless communication services in the Town of Pomfret. Upstate Tower claimed, in its application, that the 180' tower would, "remedy a significant service gap and provide access to voice and high-speed data services ." It is not clear whether this purported gap applies to only Blue Wireless or whether the town suffers from an overall lack of such services from other providers.
Upstate Tower submitted a "Full Environmental Assessment Form Part1—Project and Setting" (applicant EAF) as part of its December 21, 2015 application to the ZBA. It appears from the administrative record that Upstate Tower later submitted an amended applicant EAF, dated March 7, 2016. While the original applicant EAF was for a 180' monopole (which would require a variance), the amended applicant EAF was for a 150' tower (which would not).
The ZBA held the first of two public hearings seven days later, on March 14, 2016. It commenced at 6:30pm. The fourth order of business was the "Review of SEQRA and Determination of SEQRA (negative declaration was unanimously determined) (emphasis in original). According to the minutes, testimony from members of the public, which included all the individual petitioners in this lawsuit, was not taken until after the ZBA made its negative declaration under SEQRA. The excessive height and visual impact of the tower, fears over "cancer causing elements associated with these towers," and the prospect of declining property values, were among the citizen/petitioners concerns. The public hearing portion of the meeting ended at 7:37pm and gave way to "Discussion of the Board Members," who decided to adjourn the hearing to April 5, 2016, "for the purpose of collecting additional info mentioned above."
The second public hearing took place on April 5, 2016. It again commenced at 6:30pm and ended 37 minutes later, at 7:07pm. The ZBA then "discussed" the imposition of conditions upon a special use permit and area variance, and voted to approve of the same by a three-to-one margin. By its April 13, 2016 "Decision by Resolution," the ZBA officially granted the special use permit and area variance, with several conditions, thus sanctioning the erection of a 180' cell-phone tower.
The administrative record is devoid of any factual findings made by the ZBA in connection with its zoning decision. There is no record as to whether the ZBA specifically considered any of the factors listed in § 300–102 C(2)(a.) through (e.) of the Town Code (regarding variances) and § 300–114 of the Town Code (regarding special use permits). The record is also devoid of any information regarding what, if any, environmental review was undertaken by the ZBA.
Petitioners filed this lawsuit on May 10, 2016. They seek to annul and vacate the granting of the variance and issuance of the special use permit by the ZBA, as well as its negative SEQRA declaration, pursuant to Article 78 of the CPLR. Defendants contend the ZBA acted lawfully in all respects and that petitioners lack standing.
All of the petitioners attended at least one of the public meetings and voiced their concerns, which included misgivings about the visual impact of the tower. All of the petitioners also have their homes on property in close proximity to the proposed site. The property owned by Gerald Falco and John Lanphere is adjacent to the site, while Matthew Norton's property is across the road from it. The property owned by Anthony and Norma Pulci wraps behind the Lanphere property and is 25' from the site. Petitioners thus have standing to seek judicial review "without pleading and proving special damage, because adverse effect or aggrievement can be inferred from the proximity" (Michalak v. Zoning Board of Appeals of the Town of Pomfret, 286 A.D.2d 906, 907 ; also see, Barrett v. Dutchess County Legislature, 38 AD3d 651 ).
Turning to the principal issue before the court—whether of the ZBA acted lawfully in sanctioning the project—such determinations are generally committed to the broad discretion of the local zoning board and judicial review of them is limited. Absent arbitrariness, it is for locally selected and locally responsible officials to determine where the public interest in zoning lies and their determinations are entitled to great deference (see, May v. Town Lafayette Zoning Board, 43 AD3d 1427 ; Concetta Irrevocable Family Trust v. Town of Perinton Zoning Board of Appeals, 6 AD3d 1091 ). Here, the ZBA was also obligated to apply the public necessity use variance test, which entitled Upstate Tower's application to a diminished standard of board scrutiny (see, Independent Wireless One v. City of Syracuse, 12 AD3d 1085, 1086 ; Lloyd v. Town of Greece Zoning Board of Appeals, 292 A.D.2d 818, 819 ).
Generally, a court may set aside a zoning board determination only where the record reveals that the board acted unlawfully, arbitrarily or abused its discretion. The board's determination should be sustained so long as it has a rational basis and is supported by substantial evidence (Pecoraro v. Zoning Board of Appeals of Town of Hemstead, 2 NY3d 608, 613 ). Formal findings of fact and conclusions of law are not required to be made when the record as a whole addresses the applicable considerations or otherwise provides a foundation for concluding that there was a rational basis for the board's determination (see, Dietrich v. Planning Board of West Seneca, 118 AD3d 1419 ; Fischer v. Markowitz, 166 A.D.2d 444 ). A reviewing court may not substitute its judgment for that of a local zoning board even if there is substantial evidence supporting a contrary determination (see, People, Inc. v. City of Tonawanda, 126 AD3d 1334 ; Conway v. Town of Irondequoit Zoning Board of Appeals, 38 AD3d 1279, 1280 ).
The administrative record is devoid of any factual findings made by the ZBA in connection with its zoning decision. There is no record as to whether the ZBA specifically considered any of the factors listed in § 300–102 C(2)(a.) through (e.) of the Town Code (regarding variances) and § 300–114 of the Town Code (regarding special use permits). Nonetheless, a review of the administrative record sufficiently demonstrates that Upstate Tower provided the ZBA with a rational basis upon which to grant an area variance and issue a special use permit. The same cannot be said, however, with respect to the ZBA's negative declaration under SEQRA.
SEQRA provides that no state or local governmental agency may undertake, fund or approve an action unless and until that agency has performed an adequate environmental review. SEQRA requires government agencies, including zoning boards, to consider the potential environmental impact of a proposed project before granting site plan approval (see, ECL §§ 8–0109, et. seq. ; 6 NYCRR § 617; Scott v. City of Buffalo, 20 Misc.3d 1135 ; aff'd., 67 AD3d 1393 ).
It is undisputed that the project in question is a "Type 1 Action." SEQRA Type I actions are those that will presumptively have a significant adverse impact on the environment (see, New York City Coalition to End Lead Poisoning, Inc. v. Vallone, 293 A.D.2d 85, 90–91 ). The State Legislature, by its enactment of SEQRA, implicitly declared that aesthetic preservation is a matter of public concern no less than physical threats to the environment. Thus, the visual impact of a project, such as telecommunications tower, may constitute a significant adverse environmental impact (see, New York SMSA Limited Partnership v. Town of Riverhead Town Board, 118 F.Supp.2d 333, 336 ).
The public agency most significantly involved in a particular project often designates itself as the "lead agency" under SEQRA. It is the responsibility of the lead agency to make the initial determination as to whether a full environmental impact statement (EIS) should be prepared. A "positive declaration" will trigger the EIS process, while a "negative declaration" will usually end it. A negative declaration is properly issued when the agency has made a thoughtful investigation (see, Chinese Staff v. Burden, 19 NY3d 922, 924 ; Spitzer v. Farrell, 100 N.Y.2d 186, 190 ).
Either declaration is often preceded by the preparation and review of environmental assessment forms (EAF). A full EAF must be used to determine the significance of Type 1 actions. The project sponsor must complete Part 1 of the full EAF (i.e. the applicant EAF), while the lead agency is responsible for preparing Part 2 (lead agency EAF) and, as needed, Part 3 (6 NYCRR § 617.6(a)(2) ). The lead agency EAF is a ten-page form "containing questions designed to walk a reviewer through the assessment process" (see form) and is essentially an outline of what the lead agency must do, at a minimum, to satisfy its obligations under SEQRA.
Respondents suggest that the court's holding in Lucas v. Planning Board of the Town of LaGrange, 7 F.Supp.2d 310, stands for the proposition that the federal Telecommunications Act of 1996(TCA) pre-empts review under SEQRA or otherwise excuses the ZBA from fulfilling its obligations as the lead agency. However, "there is simply nothing in the TCA supporting such a broad pre-emption doctrine." (New York SMSA Limited Partnership v. Town of Riverhead Town Board, 118 F.Supp.2d 333, 342 ). Judicial review of whether the ZBA performed its obligations under SEQRA is therefore warranted.
While the court must meaningfully review whether a lead agency fulfilled its obligations under SEQRA, it is not the province of the court to second-guess thoughtful agency decision-making. Judicial review is limited to whether the lead agency, "identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination" (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231–232 ; Chinese Staff v. Burden, 19 NY3d 922, 924 ). The court's review is limited to the record made before the agency ( Scott v. City of Buffalo, 20 Misc.3d 1135 ; aff'd., 67 AD3d 1393 ).
The record is completely devoid of any analysis or discussion by the ZBA supporting its negative declaration. There appears to have been no look, let alone a "hard look," at the relevant areas of environmental concern. There was no elaboration, let alone a "reasoned elaboration" regarding the basis of the ZBA's determination. The ZBA did not even bother to fill out the mandatory lead agency EAF. The ZBA's environmental review was cursory at best and its decision-making, despite being emphatically pronounced in bold font, appears to have been well short of thoughtful.
The ZBA failed to undertake an adequate environmental review and thus acted in an arbitrary and capricious manner when it issued its negative declaration under SEQRA. Accordingly, the ZBA did not lawfully sanction the project. The relief requested by the petitioners is therefore granted and the use variance, as well as the special use permit, is annulled and vacated.
The foregoing shall constitute the order of this court.