NYS’s legal advice to towns on how to deal with cell phone tower applications

Monday, April 21, 2014

Editor’s Note: From NYS’s Department of State, Office of General Counsel, comes this memo on the problems faced by municipalities in dealing with cell phone tower applications. One suggested tool is a “short-term moratorium” until the municipality “has had a chance to analyze the overall planning issue and to decide where, and under what conditions, tower construction may proceed”—and “only in cases where the municipality is actively engaged in a study of its comprehensive plan or its zoning regulations during the course of the moratorium, with particular attention being paid to the use or uses involved.”

From http://www.dos.ny.gov/cnsl/lu01.htm

MUNICIPAL REGULATION OF CELLULAR TELEPHONE TOWERS AND ANTENNAS

[Numbers in parentheses with asterisk (*  ) refer to footnotes at bottom.]

    Municipal regulation of cellular telephone towers and antennas is one of the most debated of current local government land use issues. During the past two decades there has been a great increase in the use and demand for cellular telephone service. One product of this growth has been a sharp acceleration of demand for new areas to be served and consequently an increase in the number of cellular telephone transmission facilities and antennas erected.

    Communities across the State have been presented with applications for cell phone tower sites. Many people believe that towers will spoil the landscape if unregulated, or that electromagnetic radio transmission is hazardous to health. Moreover, many municipalities do not have comprehensive regulations in place to deal with them. Yet cellular phone transmission has been declared by the state’s highest court to be a public utility, meaning that municipal zoning must allow it a reasonable opportunity to exist and to serve its market. In 1993, the New York Court of Appeals in Cellular Telephone Co. v. Rosenberg (*1) held that cellular telephone service is a public utility, and that cellular phone towers are “public utility facilities”, which gives them greater protection against restrictive zoning rules than if they were deemed instead to be ordinary commercial uses of land. If a community classifies cell towers as an allowed use in a given zoning district, reasonable standards may be enacted, and reasonable conditions may be imposed by the reviewing board. But even if a variance is necessary, a zoning board of appeals must grant approval if the cellular phone company is able to show that there are no reasonable alternative locations available which would allow the company to provide the same level of service to the cell (geographic area) in question.

    The Department of State’s Counsel’s Office has kept current with this issue, and has included it among our available presentation topics at local training seminars. One approach, taken by many communities, is the adoption of a short-term moratorium on cell tower permits. A moratorium on land use permit approvals effectively stops all new tower construction until the municipality has had a chance to analyze the overall planning issue and to decide where, and under what conditions, tower construction may proceed. It should be emphasized that moratoria have been upheld by the courts for only short durations. Also, the courts have allowed moratoria to exist only in cases where the municipality is actively engaged in a study of its comprehensive plan or its zoning regulations during the course of the moratorium, with particular attention being paid to the use or uses involved.(*2)

    One community came up with an innovative way to camouflage a tower while maintaining the rural character of the tower site: it permitted the construction of a farm silo to house and hide the tower. The decision of the Appellate Division, Fourth Department in Village of Honeoye Falls v. Town of Mendon Zoning Board of Appeals (*3) presents a textbook example of how the principles of administrative jurisprudence may work to bring about a satisfactory—as well as innovative—resolution of competing concerns in the field of zoning and the siting of telecommunications towers. In this case, Rochester Telephone Mobile Communications sought site plan approval and a conditional use permit to locate a cell tower in a rural area of the Town of Mendon. Central to the approved site plan was the construction of a farm-type silo which would essentially hide the 150-foot tall monopole tower. The zoning board of appeals determined that such a silo would not only provide visual screening, but would also be in keeping with the rural-agricultural nature of the area. Residents of a nearby residential subdivision, as well as the Village of Honeoye Falls, objected, and won a reversal at the State Supreme Court level. On appeal to the Appellate Division, Fourth Department, however, the board of appeals was upheld.

    The Appellate Division found that the approval of a silo was well within the board’s jurisdiction to impose reasonable conditions related to visual screening and character of the neighborhood. The Court reiterated the well-settled rule that the determination of a local zoning board of appeals should not be set aside unless clearly illegal, arbitrary, or an abuse of its discretion, where the decision is rational and supported by substantial evidence. The Court also restated the rule that it will not substitute its judgment for that of the board, even if an opposite conclusion could logically be drawn from the evidence, where the board’s determination falls within the parameters outlined above. (*4)

    You may also wish to read our Technical Series publication titled Planning and Design Manual for the Review of Applications for Wireless Telecommunications Facilities.

FOOTNOTES

1 82 N.Y.2d 364, 604 N.Y.S.2d 895 (1993)

2 Cellular Telephone Co. v. Village of Tarrytown, 209 A.D.2d 57, 624 N.Y.S.2d 170 (2nd Dept.,1995).

3 237 A.D.2d 929, 654 N.Y.S.2d 534 (4th Dept.,1997).

4 237 A.D.2d at 930, 654 N.Y.S.2d at 535

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