Opinion
27894/2007.
Decided June 25, 2008.
Respondent/Defendant: Henry Hocker, Central Islip, NY.
Attorney for Petitioner/Plaintiff: Amato Associates P.C., Garden City, NY.
Attorney for Respondents/Defendants The Town of Islip Planning Board, the Town of Islip Department of Planning and Development, the Town, the Town Clerk of the Town of Islip and the Town of Islip Building Department: Robert L. Cicale, Islip Town Attorney, By: Janet Ford, Assistant Town Attorney, Islip, NY.
Attorney for Respondent/Defendant McDonald's USA, LLC: Robert Bergen, Esq. Kirkpatrick Lockhart, Preston Gates Ellis LLP, New York, NY.
In a hybrid action/proceeding, the plaintiff petitioner seeks, inter alia, a judgment annulling the determination of the respondent/defendant the Town of Islip Planning Board ("Planning Board") dated August 3, 2007 which denied its application for a special use permit ("SUP") to construct a wireless telecommunications facility at property located at 13 West Suffolk Avenue, Central Islip, New York ("the property").
The petition herein was filed on September 6, 2007. Issue was joined by the service of the answer of the respondents Planning Board, the Town of Islip Department of Planning and Development, the Town Clerk of the Town of Islip and the Town of Islip Building Department on January 15, 2008. A separate answer was interposed by defendant McDonald's USA, LLC ("McDonald's"), which is the lessee of the property, on or about January 14, 2008. The matter was deemed submitted to this Court on February 13, 2008.
The petitioner is a provider of wireless telephone services in the Long Island region including the Town of Islip. Service is provided through the transmission of radio signals entailing the use of antenna facilities (consisting of radio antennas installed on existing building or other structures such as towers or monopoles) and equipment that sends and receives radio signals to and from customers' portable wireless communications handsets and mobile telephones. Due to a purported deficiency in signal strength in the Central Islip area, the petitioner applied to the Planning Board for a special use permit to locate a 90 foot "stealth tower" and associated "equipment cabinet" (the latter to be located on a 10' x 22' slab) on the property which at the time of the application was the location of a McDonald's restaurant. The property is leased by McDonald's from owner Hocker. The stealth tower as proposed by plaintiff would be located on an existing landscaped island adjacent to the drive through fast-food lane of said restaurant; the equipment cabinets would be located in the northwest corner of the property. The property lies wholly in the B-1 (Business 1) district of the respondent Town and is a roughly rectangular 1.6 acre parcel in a commercial area. The property abuts Suffolk Avenue, a four lane roadway.
The Federal Telecommunications Act of 1996, 47 U.S.C. § 332 ("the TCA"), which pertains in this case, provides in substance that decisions regarding placement of cell towers such as that proposed by petitioner are to be governed by the local zoning and land use regulations provided that such local regulations do not have the effect of unreasonably discriminating between service providers or prohibiting the provision of personal wireless services ( see, 47 U.S.C. § 332(c)(7)(a)). Generally, a determination denying permission to construct a telecommunications facility must be in writing and supported by substantial evidence ( see, 47 U.S.C. § 322(c)(7)(B)(iii); Matter of Khan v. Zoning Board of Appeals of Village of Irvington, 87 NY2d 344). Substantial evidence, while not as great as a preponderance, is more than a scintilla of evidence and is equated with adequate, relevant proof that a reasonable person would accept to support a conclusion ( see, Site Acquisitions, Inc. v. Town of New Scotland , 2 AD3d 1135 [3rd Dept., 2003] citing, inter alia, Cellular Tel. Co. v. Town of Oyster Bay, 166 F3d 490 [CA2, 1999]). In Omnipoint Communications, Inc. v. City of White Plains, 430 F3d 529, 533 [CA2, 2005] (quoting Cellular Telephone Co. v. Town of Oyster Bay, 166 F3d 490 [CA2, 1999]), the court stated that the substantial evidence standard is "a deferential standard and a court may neither engage in its own fact-finding nor supplant the Board's reasonable determinations . . . [it is] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
No issue is presented as to the appropriateness of this Court's review in this case involving the substantial evidence question ( see, generally, Matter of PDH Properties, LLC v. Planning Board of the Town of Milton, 298 AD2d 684 [3rd Dept., 2002]).
Thus, this matter must be determined with reference to both the TCA, the application of which is not in dispute, as well as Article 68 of the Town Code of the Town of Islip ("the Code") which is referred to as "the Wireless Ordinance".
The petitioner's application was heard by the Planning Board on May 4, 2006, May 17, 2007 and August 2, 2007.
At the initial hearing (May 4, 2006) petitioner presented testimony of its engineer (PierCon Solutions' Mike Littman) who testified, inter alia, concerning the existence of a coverage gap in service with a half mile radius in the area along Suffolk Avenue radius (R. 14). The representative of the Planning Department present at this initial hearing propounded consideration of alternative sites to ensure that the proposed tower is the least intrusive alternative and, following the hearing, the Planning Department proposed six alternate sites by letter to petitioner dated May 12, 2006, in response to which petitioner submitted a report dated January 30, 2007 by Mr. Littman of PierCon in which PierCon essentially ruled out four of the six alternate locations proposed by the Planning Department. PierCon's report was answered by a Planning Department memo dated February 16, 2007 which recommended denial of the subject application stating, in relevant part, as follows (R.387):
References herein to the return are denoted by the letter "R" followed by page number.
This Department has completed its review of the above application and has determined that it cannot be supported for the following reasons:
1.There is high density senior citizen development directly northwest of the site, and the proposed tower would be very visible to neighboring residents. Proximity to residential districts is one of the issues to be considered by the Planning Board on towerapplications such as this one pursuant to Town Code Chapter 68-420.1(A)(9)(b)[2]. The proposed tower would have a negative aesthetic impact for neighboring residents.
2.The location of the proposed tower in a landscaped strip adjacent to the drive way for a drive through fast food window does not allow enough room for the required stockade fence and evergreen screen around the base of the tower required as per Town Code Chapter 68-420(A)(6)(d). Site considerations are to be taken into account by the Planning Board on tower applications such as this one pursuant to Chapter 68-420.1(A)(9)(b)[4].
4.[sic]Based on coverage maps submitted by the applicant for alternative sites as requested by the Planning Department, it appears that the area of coverage for the proposed tower can be achieved by locating antennas on a number of existing locations surrounding the subject site. For this reason, The Planning Department does not believe the proposed tower is the least intrusive alternative for providing service in this area.
At the second hearing on May 17, 2007, petitioner's proof included testimony by a representative Donna Stipo of DMS Consulting Services. The thrust of the Stipo testimony was to attempt to demonstrate, inter alia, minimal visual impact upon the residential area to the northwest of the property; Stipo also opined that location of the tower at the so called MTA site would have greater impact on single family residential areas. Petitioner's architect, Miglino, testified concerning the height of the proposed tower (90') vis a vis the height of the existing light pole (25') in the subject location. Petitioner adduced the testimony of Andrew Overton which was inconclusive as to the two alternative sites not ruled out by petitioner's engineer (PierCon). Petitioner subsequently recalled Miglino whose testimony suggested (albeit vaguely) that maintenance of towers in an area of high tension power lines such as the proposed MTA right of way required use of specially trained or qualified workers. The hearing was adjourned to accord petitioner time to study and address certain "coverage maps" (generated by the Planning Department) purporting to address petitioner's coverage concerns in light of the Planning Department's proposed alternative locations (R.84); according to Dave Genaway, Town Planning Director, such maps supported use of the alternative locations proposed by the Planning Department (that is, when compared to the PierCon report prepared by witness Littman). The Planning Department's position was expressed as that the coverage deficiency or gap which the petitioner presented as the need for the tower would be addressed "if there were multiple locations [antennae] on existing structures they could cover it in pieces" (R.90), which, according to the Planning Department, would be the "least intrusive alternative" ( Id.). The hearing was adjourned.
The hearing resumed on August 2, 2007, at which time petitioner adduced additional testimony from witness Overton who testified in support of an affidavit he made (which was submitted by petitioner (R.160-162); however, Overton acknowledged that his affidavit, insofar as it addressed alleged public support for improvement to cell phone service through e-mail contact with area consumers, was nonspecific as to the subject application for installation of the 90' stealth tower (R.111-112); Overton's affidavit was deemed insufficient by the Chairman of respondent Planning Board. The Planning Department representative (Brennan) reiterated its position as follows:
. . . [b]ased on the coverage maps submitted by the applicant locating on alternative sites can accomplish the coverage that would be provided by the proposed tower. The applicant's analysis of the alternatives reject these sites, either because the provide redundant coverage, or they do not completely alleviate the coverage gap when taken individually.
With regard to the first reason, historically we have not considered provision of redundant coverage to be a valid argument against using an existing structure. While it may not be the most efficient means to providing coverage, this Board has determined on previous applications that the least intrusivealternative method of achieving coverage sometimes involves overlapping coverage areas.
With regard to the second reason, with the exception of the MTA poles, we agree that none of the alternatives when taken individually will achieve the applicant's coverage needs. However, based on the coverage areas shown on the maps submitted by the applicant, having antennas on multiple existing structures, for example on the St. John's Church Steeple, Carleton Avenue, the AT T tower, the existing tower on Briteside Avenue, and the LIPA site on the north side of Carleton Avenue, allows the applicant to achieve the coverage area of the proposed tower.
An important distinction between the proposed tower location and these alternative sites, is that the structures on the alternative sites for collocation are pre-existing. Therefore, for example, although the MTA pols are closer to residents and on properties zoned for residential use, whereas the subject site is zoned for commercial use, the fact that they are already there means that they would still be less a intrusive alternative than construction of a new tower.
For all of these reasons the Planning Department does not believe the proposed tower is the least intrusive alternative for providing services to this area.
It should be noted the Planning Department has offered numerous times in review of the application, to assist applicant to provide letters of support to owners of possible collocation sites, which we found to be helpful on previous applications. The applicant has not been receptive to this assistance.
In addition, following the May 17, 2007, Planning Board meeting, both myself and Commissioner Murphy had conversations with the representative from LIPA, who was amenable to sitting down with the applicant and discussing the possibility of locating on their site. This was related in an e-mail to this applicant on May 21, 2007, and no response was received.
In summary, the proposed tower is in close proximity to residences, it would be highly visible to neighboring residents, and will have a negative aesthetic impact. Its location is in a high traffic portion of a heavily-used site adjacent to the drive-up window of a fast-food restaurant is a concern.
An additional site concern is the lack of a required evergreen screening and six-foot fence surrounding the base of the tower, which is necessary to both visually screen the base of the tower and prevent access to it by nonauthorized personnel.
By "final resolution" dated August 2, 2007, the Planning Board unanimously determined as follows:
NOW, THEREFORE, BE IT RESOLVED, that this application is hereby denied for the following reasons:
1.There is high density senior citizen development directly northwest of the site, and the proposed tower would be very visible to neighboring residents. Proximity to residential districts is one of the issues to be considered by the Planning Board on tower applications such as this one pursuant to Town Code Chapter 68-420.1(A)(9)(b)[2].
2.The proposed tower would have a negative aesthetic impact for neighboring residents. The aesthetic impacts of the tower are in opposition to the stated intent of the town of Islip Design Submission and Improvement Standards in the Subdivision and Land Development Regulations, Section VI(A).
3.The location of the proposed tower in a landscaped strip adjacent to the drive way for a drive-through fast food window does not allow enough room for the required stockade fence and evergreen screen around the base of the tower required as per Town Code Chapter 68-420(A)(6)(d). Site considerations are to be taken into account by the Planning Board on tower applications such as this one pursuant to Chapter 68-420.1(A)(9)(b)[4].
4.Based on coverage maps submitted by the applicant for alternative sites as requested by the Planning Department, it appears that the area of coverage for the proposed tower can be achieved by locating antennas on a number of existing locations surrounding the subject site. For this reason, the proposed tower is not the least intrusive alternative method of providing service in this area.
Contrary to the petitioner's contentions in this proceeding, the Planning Board's denial of its application was supported by substantial evidence and was not arbitrary, capricious or an abuse of its discretion. The Planning Board and Planning Department advanced proposals for six alternative locations for augmentation of petitioner's network of coverage, specifically, the six alternate sites initially suggested by Planning Department and the subsequent multi-location approach which essentially would have dispersed the antenna service need which petitioner desired to address through one 90' stealth tower among several locations (i.e., multiple smaller antennae at existing locations).
The petitioner has failed to demonstrate that the Board's alternative solution to petitioner's purported network coverage need was not viable or reasonable. Two of the six alternate sites for location of facilities which were advanced by the municipal respondents, specifically, the school location and the MTA right of way, were not adequately debunked or discounted by petitioner as viable locations which would be less intrusive than the 90' stealth tower adjoining the traffic lane of a McDonald's restaurant. The record amply supports the Planning Board's view of the petitioner's proposed location as implicating legitimate concerns of safety and welfare of the public, a valid and most legitimate, pertinent factor to be considered in the exercise of its discretion and in its determination of what the least intrusive alternative is in promoting telecommunications services in accordance with the TCA ( see, Matter of Site Acquisitions, Inc., v. Town of New Scotland , 2 AD3d 1135 [3rd Dept., 2003] citing, inter alia, Sprint Spectrum v. Willoth, 176 F3d 630 [CA2, 1999]). As aptly noted by the court in Site Acquisitions, Inc. (which the Appellate Division, Second Department most recently cited on another issue in Costantino v. Goord , 38 AD3d 659 [2nd Dept., 2007]), "[a] telecommunications provider is not, however, granted carte blanche authority to dictate the number and locations of its facilities [citations omitted]. When weighing the extent of intrusion of a proposed facility, the municipality may consider, among other things, the aesthetic impact of a facility [citations omitted] and it may reject construction of a particular facility if there is evidence establishing that a service gap can be closed by a less intrusive means [citations omitted]. A denial of permission to construct a telecommunications facility must be in writing and supported by substantial evidence [citations omitted]. Substantial evidence, while not as great as a preponderance, nevertheless requires more than a mere scintilla and must reflect adequate relevant proof that a reasonable person would accept to support a conclusion [citations omitted]." [ id.]
The Planning Board's determination that the installation of petitioner's stealth tower at the "particular place" ( Matter of Pleasant Valley Home Const. v. Van Wagner, 41 NY2d 1028 citing Lemir Realty Corp. v. Larkin, 11 NY2d 20) of the McDonald's drive-through location was a matter within its discretion and the record reflects that it had "reasonable grounds" ( Carrol's Development Corp. v. Gibson, 73 AD2d 1050, aff'd 53 NY2d 813 [4th Dept., 1980]) to deny petitioner's application to place the tower at such location. Therefore, this Court denies the petition in toto and dismisses the petition and complaint ( see, Omnipoint Communications, Inc. v. City of White Plains, 430 F3d 529 [CA2, 2005]; SiteTech Group Ltd. v. Board of Zoning Appeals of Town of Brookhaven, 140 F.Supp2d 255; Town of Amherst, New Hampshire v. Omnipoint Communications Enterprises, Inc., 173 F3d 9 [CA1, 1999]); cf, Omnipoint Communications, Inc. v. The Village of Tarrytown Planning Board, 302 F.Supp2d 205 [SDNY, 2004]).
Settle judgment ( see, 22 NYCRR § 202.48).