Opinion
January 31, 1994
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the judgment is affirmed, without costs or disbursements.
The Planning Board of the City of Glen Cove (hereinafter the Planning Board) contends that its own determination was void because the petitioner failed to give proper notice of the hearing. The Planning Board argues that the petitioner failed to mail notice of the public hearing to owners of adjoining property within 200 feet of the exterior limits of the total property, a country club, as required by the Glen Cove Municipal Code. Notice was given by publication, but the petitioner apparently mailed notice only to persons owning property within a radius of 200 feet of the proposed construction. However, the notice requirement is not "jurisdictional" in the sense that the appellants seek to use that term (see, Matter of Velez v. Board of Appeals, 147 A.D.2d 648; Matter of Gaona v. Town of Huntington Zoning Bd. of Appeals, 106 A.D.2d 638; Zelenski v. Incorporated Vil. of Patchogue, 51 A.D.2d 1055; Matter of Sarah Lawrence Coll. v. City Council, 48 A.D.2d 897). Therefore, the determination was not void on that ground.
The Planning Board's contention that the petitioner is not a public utility entitled to favored status when considering its site plan application is without merit. The Court of Appeals recently held in Matter of Cellular Tel. Co. v. Rosenberg ( 82 N.Y.2d 364) that a cellular telephone company falls within the definition of a public utility.
Furthermore, the proposed cell site presented a minimal intrusion into the community. The petitioner is mandated to provide its cellular service (see, Public Service Law § 91), and the cell site was necessary to fill gaps in the grid, so that service may be adequately provided. "[I]n resolving the question of hardship, the effect on the utility's customers is a significant factor to be considered by local zoning boards" (Matter of Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 608). Given the very minimal intrusion into the community, we find that the petitioner's showing was sufficient to warrant the granting of its application for approval of an amended site plan, and the Planning Board's determination to the contrary was arbitrary and capricious.
We have examined the appellants' remaining contentions and find them to be without merit. Bracken, J.P., Balletta, Copertino and Santucci, JJ., concur.