After a six-year court battle between Clifton Park (New York) and Cellco Partnership (dba Verizon Wireless) over the placement of a 91-foot monopine in a residential zone, Senior U.S. District Judge Fredrick Scullin Jr. ruled in favor of the carrier, reported the Olean Times Herald.
The lawsuit came about because town code does not allow cell towers in R-1 zones and previously when companies have requested this type of project, the town has stuck by the code and helped the companies find alternative spots nearby that would solve transmission gap problems.
Although Verizon entertained two alternative locations, the carrier said in its filing that these locations, “would not equal the service that would be provided by putting up the new tower” at the proposed location.
Verizon also noted that the proposed wireless antenna would clear up a transmission gap in the central part of town as well as add capacity to the southern part of the community.
New York law states wireless carriers are provided the status of public utilities for the purpose of zoning applications. Courts, Scullin wrote, have interpreted the public necessity standard to require the wireless service providers establish that there are gaps in service, that the locations of the facility will remedy the gaps, and that the facility presents a minimal intrusion on the community.
The town argued the cell tower would present more than a minimal intrusion on the community, claimed it would affect the aesthetics of the community, property values, and create health concerns, reported the Herald.
In his decision, Scullin concluded that the town failed to raise a genuine issue of material fact regarding whether there is substantial evidence in the record, to support its denial of the application.
With Scullin’s ruling, the town Planning Board approved a special-use permit and the site plans for the tower, reported the Herald.
April 1, 2019
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