Opinion
No. 14/3069.
06-08-2015
In the Matter of the Application of John LINDENTHAL and Kathleen Lindenthal and Lois Ballinger, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. The TOWN OF NEW CASTLE, The Town of New Castle Planning Board, Homeland Towers, LLC., Alfredo Landscape and Development Corp., and New York SMSA Limited Partnership, d/b/a Verizon Wireless, Respondents.
Clifford L. Davis, Esq., White Plains, Attorney for Petitioners. Robert D. Gaudioso, Esq., Snyder & Snyder LLP, Tarrytown, Attorney for Homeland Respondents. Allan D. Singer, Esq., Welby, Brady & Greenblatt, LLP, White Plains, Attorney for Alfredo Landscape & Development Corp. Edward J. Phillips, Esq., Keane & Beane, P.C., White Plains, Attorneys for Town of North Castle Respondents.
Clifford L. Davis, Esq., White Plains, Attorney for Petitioners.
Robert D. Gaudioso, Esq., Snyder & Snyder LLP, Tarrytown, Attorney for Homeland Respondents.
Allan D. Singer, Esq., Welby, Brady & Greenblatt, LLP, White Plains, Attorney for Alfredo Landscape & Development Corp.
Edward J. Phillips, Esq., Keane & Beane, P.C., White Plains, Attorneys for Town of North Castle Respondents.
BARBARA G. ZAMBELLI, J.
The following papers numbered 1–13 read on this on this petition for relief pursuant to CPLR Article 78:
| PAPERS | NUMBERED |
|---|---|
| Notice of Petition, Verified Petition with Exhibits A–P, & Memorandum of Law | 1–4 |
| Verified Answer of Town Respondents | 5 |
| Certified Record of Proceedings (pp. 1–933)–Two Volumes | 6–7 |
| Verified Answer of Homeland Towers LLC & Verizon Wireless | 8 |
| Gaudioso Affirmation with Exhibits A–D & Memorandum of Law | 9–11 |
| Verified Answer of Alfredo Landscape and Development Corp. | 12 |
| David Reply Affirmation with Exhibits A–D |
Five days after petitioners' submitted their reply in this proceeding, the Homeland Respondents submitted what they entitled a "Supplemental Affirmation" in this matter. However, as this submission is actually a sur-reply which is not provided for in the CPLR and was submitted without the permission of the Court, and because it refers to information de hors the record before the PB, the "Supplemental Affirmation was not considered by this Court.
Upon the foregoing papers it is ordered that this application is disposed of as follows:
The petitioners John and Kathleen Lindenthal ("Lindenthals") reside at 77 Whipoorwill Lake Road, Chappaqua, New York in the Town of New Castle; petitioner Lois Ballinger ("Ballinger", collectively with the Lindenthals, "petitioners") resides at 482 Armonk Road, Mount Kisco, New York, in the Town of New Castle. On July 30, 2014, the Planning Board of the Town of New Castle ("PB") passed a resolution granting respondents Homeland Towers, LLC ("Homeland"), Alfredo Landscape and Development Corp. ("Alfredo") and New York SMSA Limited d/b/a Verizon Wireless' ("Verizon", collectively with Homeland and Alfredo, "Homeland respondents") a special use permit for the construction of a monopole cell tower and related equipment ("monopole") on Alfredo's property located at 620 Armonk Road in the Town of New Castle; on that same date, the PB also issued a negative declaration pursuant to the State Environmental Quality Review Act ("SEQRA") in regard to the application. Petitioners, who reside adjacent to the Alfredo property, bring this Article 78 proceeding seeking to annul and vacate the special permit and the negative SEQRA declaration. The Alfredo property where the monopole is intended to be erected is located in an R–2A residential zone; however, while located in a residential zone, the Alfredo property contains a commercial nursery business which had been operating on the site pursuant to a previously granted special use permit since at least 1993. According to the record, the monopole will be located approximately 243' away from the nearest property line (CR, 80), with the nearest home approximately 500' away (CR, 270).
Petitioners argue that the special permit should be annulled for several reasons. They submit that the application should have been submitted to the Town of New Castle Architectural Review Board ("ARB") for their input prior to the PB issuing the special permit. While the PB resolution conditioned the issuance of a building permit upon a review of building permit application by the ARB, petitioners contend that this referral is ultra vires, because the ARB should have reviewed the special permit application prior to the issuance of the special permit itself. Petitioners also contend that the PB did not properly study and consider alternative technologies for the monopole or alternative locations for it in order to mitigate visual impacts, and allegedly "ignored its own law" in allowing for the construction of the monopole in a residential district. Petitioners further allege that PB improperly allowed the Homeland respondents to submit an untimely analysis regarding the impact on property values of the monopole without allowing petitioners to respond. They contend that the Board ignored its own expert, whom petitioners' contend, raised doubts as to whether there was a compelling public need to address a "gap" in cell phone coverage in the area. Petitioners further submit that the PB failed to comply with SEQRA and argue that the negative SEQRA declaration is arbitrary and capricious because the PB allegedly failed to set forth its analysis in writing and what documents it relied upon in reaching that analysis. They argue that the PB failed to take a "hard look" at the critical environmental issues raised by the application, including the visual impacts to petitioners' neighboring properties, the aesthetic impacts to the surrounding residential communities, and the impact upon neighboring property values; petitioners relatedly submit that had the PB taken a "hard look" at these issues, they would have required the issuance of a positive declaration. Lastly, petitioners argue that the SEQRA negative declaration is arbitrary and capricious because the PB failed to fill out parts two and three of the Environmental Assessment Form ("EAF").
The respondents oppose the petition and argue that it should be dismissed. As to the negative SEQRA declaration, the respondents argue that the resolution granting the special use permit incorporates it by reference and sets forth the written, reasoned elaboration therefor. They also argue that the record demonstrates that the PB took a hard look at the relevant environmental issues. As to the special use permit, respondents deny that the application was required to be submitted to the ARB prior to the PB granting the application. The respondents further submit that the record contains a rational basis for the granting of the permit, and deny petitioners' contentions that the PB merely "rubber-stamped" the application. The Homeland respondents also argue that the PB acted rationally, especially in regard to the fact that federal law provides that local regulation of the siting of wireless communication facilities shall not prohibit, nor have the effect of prohibiting, the provision of wireless services, and further requires that decisions on such applications be made within a reasonable period of time.
In reviewing the actions of an administrative agency, courts must assess whether the actions at issue were taken without sound basis in reason and without regard to the facts (Matter of County of Monroe v. Kaladjian, 83 N.Y.2d 185, 189 (1994), citing Matter of Pell v. Bd. Of Educ., 34 N.Y.2d 222, 231 (1974) ; Apkan v. Koch, 75 N.Y.2d 561, 570–71 (1990) ; Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers, 238 A.D.2d 417, 418 (2d Dept.1997) ). The agency's determination need only be supported by a rational basis (Matter of County of Monroe v. Kaladjian, supra; Matter of Jennings v. Comm. N.Y.S. Dept. of Social Svcs., 71 AD3d 98, 109 (2d Dept.2010) ). Unless the agency's determination was arbitrary and capricious, it must be sustained (see Matter of Jennings v. Comm. N.Y.S. Dept. of Social Svcs., supra; Matter of Cortlandt Nursing Care Center v. Whalen, 46 N.Y.2d 979, 980 (1979) ). If the determination is rationally based, a reviewing court may not substitute its judgment for that of the agency even if the court might have decided the matter differently (Matter of Savetsky v. Zoning Bd. of Appeals of Southampton, 5 AD3d 779, 780 (2d Dept.2004) ; Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers; supra ). It is not for the reviewing court to weigh the evidence or reject the choice made by the agency where the evidence conflicts and room for choice exists (Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers; supra, citing Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 424 (1996) ; Apkan v. Koch, supra ).
The same standard of review applies to SEQRA determinations. It is well settled that judicial review of the SEQRA process is limited to whether "a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.... [I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416 (1986) ). "The agency's substantive obligations under SEQRA must be viewed in light of a rule of reason' and agencies have considerable latitude in evaluating environmental effects and choosing among alternatives' [citation omitted]" (Eadie v. Town Bd. of Town of North Greenbush, 7 NY3d 306, 318 (2006) ). Although "[n]othing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence," the courts must review the record to determine if the 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 Jackson v. New York State Urban Dev. Corp., supra at 417; see also Matter of Merson v. McNally, 90 N.Y.2d 742, 751–52 (1997) ; Apkan v. Koch, supra; City of Rye v. Korff, 249 A.D.2d 470, 471–472 (2d Dept.1998), lv. denied, 92 N.Y.2d 808 (1998) ; Aldrich v. Pattison, 107 A.D.2d 258, 265–266 (2d Dept.1985) ).
When dealing with applications regarding the provision of wireless telecommunications services, in addition to state law, federal law must also be considered. Under federal law, the Telecommunications Act of 1996 provides at, 47 U.S.C. § 253(a), that "[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." In the section of the statute that addresses mobile services, the preservation of local zoning authority is expressly addressed and provides that "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" (47 U.S.C. § 332(c)(7)(A) ), with the caveats that the local regulation shall not unreasonably discriminate among providers of functionally equivalent services (47 U.S.C. § 332(c)(7)(B)(i) ) nor may it prohibit or have the effect of prohibiting the provision of personal wireless services (47 U.S.C. § 332(c)(7)(B)(ii) ). It is noted that federal law requires that requests to authorize the installation of wireless communications equipment must be acted upon in a "reasonable period of time" (47 U.S.C. § 332(c)(7)(B)(ii) ) and the FCC has issued a "Shot Clock Order" which interprets such time period to be 150 days for review of siting applications for new facilities (24 F.C.C.R. 13994 ).
The petition is without merit and is denied. Contrary to petitioners' allegation herein that the PB merely "rubber-stamped" the Homeland respondents application, the record herein reveals that the PB conducted a vigorous and thorough review of the application. The PB held multiple public hearings, hired their own experts to evaluate the Homeland respondents' submissions, considered the objections of petitioners, required the Homeland respondents to reduce the proposed height of the monopole from 150' to 130' to minimize its visual impact and even required them to create a landscaping fund to further mitigate the limited visual impact of the monopole on those properties most effected by it.
As to petitioners's contentions that the negative SEQRA declaration was not supported by a written reasoned elaboration, this argument is unavailing. The negative declaration was issued on July 30, 2014, the same day as the PB's resolution granting the special use permit (Certified Record of Proceedings ("CR"), 512–515). The resolution granting the special permit specifically references the negative SEQRA declaration and incorporates it by reference (CR, 507). The 12 page resolution sets forth the written, reasoned elaboration by the PB required by SEQRA (6 N.Y.C.R.R. § 617.7(b) ).
The resolution and record itself demonstrates that the PB took a hard look at the relevant areas of environmental concern. As to whether there was a significant adverse environmental impact as a result of any physical change to the site, or any significant adverse environmental impact on any unique or unusual land forms, or exceptional or unique characteristics, the PB rationally found that there was not, given the size of the parcel (22 acres) and the area of disturbance (7,168 square feet), the fact that the utilities were to be located under an existing dirt drive, the absence of steep slopes, the depth of the ground water and the fact that the trees that were disturbed were being relocated elsewhere on the property (CR, 66–73, 186–207, 248, 506–507). The PB's determination that there was no significant adverse environmental impact on any body of water or groundwater, and that there would be no significant adverse environmental impact as a result of altered drainage flow or surface water runoff, was also rationally based upon evidence in the record (CR, 3–73, 186–210, 501), as was the PB's determination that there would be no significant impact on air quality, as the only emissions are from an emergency backup generator (CR, 242–244, 247–250). Similarly, the PB's determination that there would be no adverse environmental impacts as a result of objectionable odors, noise or vibration was rationally based, as no odors or vibrations would be produced by the monopole, and any noise from the generator which would occur during its limited operation would be in compliance with the Code's noise regulations (CR, 79, 242–244, 252). The PB's determinations that there were no significant environmental effects on agricultural land resources, upon future open spaces or recreational opportunities, upon existing transportation systems, upon the communities sources of fuel or energy supply and upon threatened or endangered species were all rationally based, given that the monopole is intended to be located on a small portion of a 22 acre pre-existing commercial property and given the limited operation of the generator on site (CR, 66–73, 81, 187–206, 211, 498). The PB also rationally found that there would be no adverse impact on any site or structure of historic importance, as it determined that the monopole would only be briefly visible from the Washington Rochambeau National Historic Trial and the New York State Historic Preservation Office, which reviewed the project, determined that there would be no adverse impact on historic properties (CR, 272–73). As to whether there would be a significant adverse environmental impact on public health and safety, the PB's determination that there would be no such adverse impact was rationally based upon the Radio Frequency Exposure ("RFE") reports in the record, which determined that the monopole, even if operating at full capacity with six carriers , would have radio frequency levels 120 times below the acceptable limit set by the Federal Communications Commission ("FCC") (CR, 130–145, 219–241, 251–252, 505, 538). Additionally, this determination is also supported by evidence that, in the event the monopole should collapse, it is designed with a hinge point so that it would fall upon itself instead of toppling over (CR, 507).
While the monopole will have the capacity to collocate up to six carriers, only four carriers currently operate in this area (CR, 530).
As to the PB's determination that the monopole would not have a significant adverse environmental impact on aesthetic or visual resources, the PB relied upon the Visual Resource Assessment report, which included a balloon test, and analysis by its own consultant in reaching this determination (CR, 268–313, 506–07). The Visual Resource Assessment report concluded, in relevant part, that:
The proposed telecommunications tower is sited within a steeply sloped valley surrounded by dense deciduous woodland. Consequently, the direct project visibility is limited to a small area along Armonk Road in the immediate vicinity of the Alfredo property. Views extend approximately 1,000 feet to the north and 1,000 feet south of the tower site for motorists traveling along Armonk Road. Travelers will have a view of the proposed telecommunications tower for approximately 15–20 seconds in both north and southbound directions as they pass the Alfredo property. Such views are further mitigated by the tendency of automobile occupants is [sic] to focus on the road rather than on the peripheral landscape.
Approximately 5–6 existing homes along Armonk Road will have direct or filtered views of the telecommunications tower. Discrete views may be possible from residential properties along Tripp Road which currently have open views overlooking the Wampus River Valley. No specific views from private property were discovered during this study.
The adjacent Whipporwill Lake Road residential neighborhood is heavily screened from the project site by intervening topography or dense deciduous vegetation. Although, two residential properties (80 and 77 Whippoorwill Lake Road) were found to be affected, views are heavily screened through approximately 1,000 feet of intervening deciduous forest under leaf-off conditions. These views will be completely obscured during leaf on season.
* * * *
Based on the foregoing, the Project will not create a significant adverse visual impact on the environment, character of the community or visual resources. (CR, 278).
Additionally, the PB required that the monopole be reduced in height from 150' to 130' to be more consistent with the existing tree line, and determined that with its proposed location "tucked into the hillside on a non-residentially used large parcel with extensive existing vegetation", its visibility from public thoroughfares, important view sheds and most surrounding properties was minimal. Similarly, the PB's determination that the monopole would not cause any significant adverse environmental impact on the character of the existing community is also rationally based and supported by evidence in the record such as the Visual Resource Assessment report, as well as the fact that it is proposed to be located on a 22 acre commercial property. Indeed, the PB conducted an exhaustive review of the aesthetic impact of the monopole, and the record demonstrates that the PB considered its visibility (CR, 268–78, 296, 300–313, 362–64, 368–69, 371–75, 467–75, 535, 539, 545, 548, 571.1–571.2, 573.1, 583–587, 594–596, 625–26, 903–916), color (CR, 362–364, 476–72.507, 533, 538, 560, 567, 625–26, 572.2), height (CR, 507, 546, 557–59, 625–26) as well as alternative sites for its location (CR, 335–358, 385, 427, 435, 529, 531–32, 536, 559, 563–64) and the suitability of alternative, less visually intrusive, technology (CR 533, 539–540, 546). The PB also considered what impact, if any, the monopole could have on property values in the area (CR, 441–57, 465–66, 473–474, 546, 548, 563, 566, 823). While petitioners may disagree with the PB's ultimate conclusion that the monopole would not have any significant adverse environmental impacts, it cannot be said that the PB's decision to issue a negative SEQRA declaration lacks a rational basis in the record, and thus, it must be upheld by this Court (see Matter of Jackson v. New York State Urban Dev. Corp., supra ).
As to petitioners argument that the negative SEQRA determination should be annulled based upon the PB's failure to fill out parts 2 and 3 of the EAF, this argument is also without merit. Where, as here, the record demonstrates that the PB considered the factors set forth in parts 2 and 3 and took the required "hard look" at them, the PB's determination will be upheld, even if it failed to fill out parts 2 and 3 of the EAF (Matter of Hartford /North Bailey Homeowners Assoc. v. Zoning Bd. of Appeals of the Town of Amherst, 63 AD3d 1721, 1723 (4th Dept.2009) ; Matter of Residents Against Wal–Mart v. Planning Bd. of Town of Greece, 60 AD3d 1343, 1344 (4th Dept.2009), lv. denied, 12 NY3d 715 (2009) ). As noted above, the record demonstrates that the PB considered the factors listed in parts 2 and 3 of the EAF and its determinations were supported by evidence in the record.
As to petitioners' argument that the PB resolution granting the special permit should be annulled because the application was not submitted to the ARB prior to the issuance of the permit, this argument is unavailing. In regard to special permits, Code § 60–430B provides, in relevant part, as follows:
Each application for a special use permit, together with a detailed development plan, shall also be referred to the Board of Architectural Review for report and recommendation on the architectural features of the proposed development in accordance with the purposes and criteria as set forth in § 60–550 of this chapter, which report shall be rendered within 45 days of the date such referral is received by the Board of Architectural Review.
In turn, Code § 60–550A provides that the purpose of the ARB is to guard against "excessive uniformity, dissimilarity, inappropriateness or poor quality of design in the exterior appearance of buildings or other structures erected or altered in any neighborhood." Code § 60–550E sets forth the powers of the ARB, and these powers are necessarily limited to the ARB's purpose. Thus, the ARB may only deny an application on the basis of excessive similarity or dissimilarity to certain other structures; apparently identical front, side or other elevations visible from a street; substantially identical size and arrangements of doors, windows, portico or other openings or breaks in the elevation facing the street; or other significant identical features of design, such as but not limited to material, roof line and height or other design elements (Code § 60–550E(1), (2)).
Petitioners argue that Code § 60–430B requires that an application for a special permit be referred to the ARB prior to the issuance of a special permit and because the PB here referred the application to the ARB for review only as a condition to the Homeland respondents obtaining a building permit (CR, 509), their determination to issue the special permit should be annulled. While petitioners submit that the special permit should be annulled based upon the PB's procedural failure to make the referral prior to the issuance of the special permit, they make no substantive arguments that the application was in any way deficient so as to justify any denial by the ARB, had the application been so referred.Petitioners' argument ignores the limited jurisdiction of the ARB. Pursuant to Code § 60–430B, the ARB is constrained to providing a report and recommendation to the PB regarding the "architectural features of the proposed development." The "proposed development" herein, of course, relates to the construction of a monopole wireless communications facility, an object, which by its very nature, has, at best, limited architectural features. Indeed, it is clear that the majority of the factors that the ARB would look at in reviewing an special permit application simply do not apply to this application to construct a monopole wireless communications facility. While the ARB may consider a structure's height as part of its review, here the PB specifically addressed that consideration during its special permit review. Indeed, the height of the monopole herein involved more than a design consideration, as given that the purpose of the monopole is for the mounting of wireless telecommunications equipment, height is a necessary consideration in regard to the equipment's intended functionality (CR, 546). Moreover, the time frames set forth in the Code regarding referral of applications to the ARB and the scheduling of public hearings thereon create a potential issue as to the application of any "shot clock" which may be applied should the Homeland respondents bring an action in federal court arguing that the Town has unreasonably delayed a determination on their application. Thus, given the limited jurisdiction of the ARB, the fact that most of the ARB considerations simply do not apply to the proposed monopole, the fact that the PB actually addressed the monopole's height (as well as color) during the several public hearings on the application, and the fact that the PB also had to consider the constraints of federal law in determining the application, it cannot be said that the PB acted arbitrarily and capriciously in referring the application to the ARB as a condition of the Homeland respondents obtaining a building permit for the construction of the monopole.
While the PB referred the application to the ARB, and after the ARB was provided the Homeland respondents application, the ARB failed to act upon the application at its regular public meetings on October 15, 2014 and November 19, 2014 (Gaudioso Affirmation in Opposition, ¶ 176); Davis Reply Affirmation, ¶ 10, 12). Pursuant to Code § 60–550F, "[i]f the [ARB] shall fail to disapprove any such application referred to it within 45 days of the date of the public meeting of the Board at which such application is received ... the Building Inspector shall forthwith issue the building permit...." Thus, contrary to petitioners' argument, the ARB's failure to act does not amount to a denial of the application.
Petitioners argue in reply that respondents have conceded that ARB approval was required prior to the PB's determination to issue the special permit. Petitioners base their argument upon the fact that, by letter dated October 2, 2015, the Homeland respondents wrote to the PB to request that "to the extent necessary", the PB place the matter back on its October 7, 2015 agenda for referral to the ARB, and upon receipt of the ARB's report and recommendation, requested that the PB rescind its prior determination, re-open the hearing for the sole purpose of comment upon the ARB report and then re-approve the applications (Davis Reply, Exhibit B). As an initial matter, these submissions are de hors the record before the PB herein, and thus are improperly raised in this matter. In any event, the letter does not amount to a concession, as the request was made to the extent the PB deemed such a process necessary. Moreover, as conceded by petitioners, the request was rescinded five days later (Davis Reply, Exhibit C). To the extent petitioners argue in reply that the draft ARB resolution (Davis Reply, Exhibit A) which was allegedly submitted to that board supports their allegations that the PB issued the special permit in error, aside from also being de hors the record before this Court, this resolution was not acted upon by the ARB and indeed, it is also unclear as to who drafted the resolution and submitted it to the ARB in the first place. In any event, as the resolution was not enacted, contrary to petitioners' contentions, it contains no findings by the ARB, and indeed, has no evidentiary value.
As to petitioners' argument that the PB also violated Code § 60–550H because, they submit, this section requires the ARB to consult and advise the PB regarding site plan applications, this argument is easily rejected. The plain language of Code § 60–550H requires the ARB to consult with the PB regarding site plan applications only "[u]pon request of the Planning Board." No such request was made herein; thus, there was no requirement that the ARB consult and advise the PB in this regard.
As to petitioners' argument that the resolution granting the special permit should be annulled because the PB allegedly failed to consider alternative locations for the monopole and "ignored its own law" in allowing the construction of the monopole in a residential district, this argument also lacks merit. While Code § 60–430O(14) "encourages" the siting of wireless telecommunications facilities in non-residential districts and establishes priorities of preferences for the location of such facilities, with the second to last preference being "lands used for non-residential purposes in a residence district" (Code § 60–430O(14)(l)(1)(d)), the Code clearly recognizes that under certain circumstances, it may be necessary to locate such a wireless telecommunications facility in a residence district. Here, the record provides a rational basis for the PB's determination that, in order for the Homeland respondents to achieve the goal of remedying the existing gaps in cell phone coverage in the area, it was necessary to locate it on the Alfredo property. The record provides support for the PB's determination that it was not feasible to collocate the facility on an existing monopole or other already existing telecommunications facility, nor was it feasible to locate the monopole in a non-residential district (CR, 85–121, 377–395, 536). To the extent that petitioners' argue that there was no actual gap in cell phone service based upon their call logs, wherein they were allegedly able to obtain cell phone service on their phones at certain locations, and which logs, they submit, belie the Homeland respondents claim of a gap in service, petitioners' logs are anecdotal and the record sets forth a rational basis as to why such logs are not reliable predictors of service (CR, 389, 397–398, 438–439, 562). The record further provides a rational basis for the PB's determination that there is a gap in service in the area (CR, 85–94, 377–395, 398–399, 424–440, 545, 549–550, 556–558, 572, 572.1, 598–613, 625). The record further demonstrates that the PB inquired as to whether other, less intrusive technologies (such as a distributed antenna system ("DAS"), a flag pole or internal mounting) could be used and the record provides a rational basis for the decision to proceed with the monopole design (CR, 533, 539–540, 546).
As to petitioners' contentions that the PB failed to comply with the Code requirements to "minimize adverse visual and aesthetic impacts of wireless telecommunication facilities to the maximum extent possible through careful design, siting, landscaping, screening and innovative camouflaging techniques" (Code § 60–430O(14)(e), and to "protect the physical appearance of the Town and preserve its scenic and natural beauty" as noted above, the record demonstrates that the PB thoroughly considered these issues and required that the Homeland respondents to lower the height of the monopole from 150 to 130' in order to bring it in line with the existing tree canopy (CR, 559, 572.1, 573.1), considered whether less intrusive technologies were available to create the needed coverage and considered and chose the best color for the monopole in order to best integrate into the landscape (CR, 560). To the extent that petitioners argue that the PB ignored its own experts, as an initial matter, petitioners are cherry-picking the expert reports to support their own arguments, as the expert reports, read as a whole, support the PB's determination (CR, 594–596, 598–613). In any event, it is noted that the Homeland respondents also submitted an expert report on the visual impact of the monopole and, where expert reports conflict, it is within the PB's discretion to chose which expert report upon which to rely (Matter of Brooklyn Bridge Park Legal Defense Fund v. N.Y.S. Urban Development Corporation, 50 AD3d 1029, 1031 (2d Dept.2008), lv. denied, 10 NY3d 714 (2008) ) and thus, the determination herein was rationally based.To the extent that petitioners contend that the PB erroneously accepted submissions from the Homeland respondents without allowing petitioners to respond, the record demonstrates that petitioners agreed to the schedule regarding the submission of materials and then attempted to submit documents after the agreed upon deadline (CR, 566–567, 570–571). While petitioners argue herein that the extension was for "public comment" and that the Homeland respondents should not be considered part of the public, it cannot be said that the PB acted arbitrarily or capriciously in considering them to be so for purposes of accepting their submissions as part of the record. Given that petitioners attempted to submit materials after the deadline, the PB acted appropriately in refusing to accept petitioners' late submissions.
Accordingly, the petition is denied and the proceeding is dismissed in its entirety.This Decision and Judgment constitutes the Order of the Court.