Verizon Wireless, a telecommunications carrier, is considered a public utility for purposes of zoning.  Verizon identified a “coverage gap” in its services in the Village of Flora Park and sought to construct a telecommunications facility on the roof of a commercial building to resolve the coverage problem.  Since the village code provided that any “antenna support structure be at least 50 feet tall,” Verizon sought a special use permit to build their facility on the building, which was only 24 feet tall.  Upon Verizon’s application, the village board conducted an environmental assessment and issued a decision that the proposal would not negatively impact the environment.  The board also conducted a public hearing where Verizon’s experts explained that the facility: was necessary to resolve the coverage gap; would comply with the village noise ordinance; would not impact the neighborhood character or environment; would have very small visual impact, and that other sites in the area were either unable or unwilling to house the facility.  In opposition to Verizon, residents submitted letters and testified at the hearing. One concern was that Verizon had recently built a “Silo Site” intended to abolish the coverage gap; residents questioned whether there was a coverage gap at all.                     

The board ultimately denied Verizon’s application, concluding that the proposed facility does not “facilitate collocation of telecommunication facilities” nor meet “Verizon’s coverage requirements,” that there is no indication that there is a coverage gap, and Verizon failed to examine possible alternatives before applying for the special use permit.  Verizon filed this complaint, arguing that the denial violated the Telecommunications Act of 1996 and was arbitrary and capricious, a violation of state law Civil Practice Law and Rules Article 78.  

The district court begins by examining the Telecommunications Act of 1996 (“TCA”), and finds that a denial under the TCA must be supported by substantial evidence.  The court explains that it must look to the TCA for procedure and the local substantive law.  Thus, the court looks at the village code and determines that since Verizon is providing a public necessity, it must show a need for services and that the public would be benefited.  For telecommunications, this has been interpreted to mean there must be a showing that there are gaps in service, that the proposal will remedy the gaps, and that there will be minimum community intrusion.  Here, if Verizon meets these criteria, explains the court, the board does not have discretion to deny the permit.  

Next, the court goes through the reasons purported by the village for denying Verizon’s application.  First, the board stated that the proposed facility would not remain consistent with the overall characteristics of the neighborhood.  For this argument, the court finds that Verizon has submitted numerous expert testimony explaining that facility would have a very small impact on the community.  The only objections, found the court, were general objections from village residents.  Further, since the village initially issued a negative declaration relating to environmental concerns, it is clear that the board had determined there would be little negative effect on the community.  

The board’s second reason for denying Verizon’s application was that the facility would not help collocation and that Verizon had not established an existing coverage gap, as required under the village code.  The court finds that Verizon used both computer modeling system as well as drive tests to confirm that a coverage gap exists.  The board, however, failed to perform any tests and simply relied upon testimony of residents who had never experienced connectivity problems.  Further, the court finds that Verizon’s explanation of the ineffective Silo Site—mainly that technology and usage expanded after its installation—was satisfactory.  Although the board argues that Verizon’s proposal would not benefit its residents, the court finds that local concerns are not the primary inquiry.  Instead, explains the court, they must examine the extent of intrusion on the community.  Here, Verizon’s experts have shown that any community intrusion would be minimal. 

Third, the court examines whether there are other available sites for Verizon to construct its facility.  The court finds that Verizon has explored other means and they are either unwilling or unable to rent space for Verizon’s construction.  The court explains that Verizon need not explain why every potential site would not be viable; it is sufficient that Verizon explored other options and the board has failed to point to any specific alternatives.  Thus, the court holds that the board has not presented substantial evidence to support their findings. 

Finally, the court review’s Verizon’s claims under state law.  The court finds that the TCA and Article 78 require similar showings by the board and, thus, the board’s denial was not supported by sufficient evidence and, therefore, was arbitrary and capricious under state law.  Thus, the court grants summary judgment for Verizon on both claims. 

N.Y. SMSA Ltd. P’ship v. Vill. of Flora Park Bd. of Trs., 812 F. Supp.2d 143 (E.D.N.Y. 09/19/2011)