Oyster Bay Cove Within Its ‘Local Zoning Authority’ to Deny AT&T Tower

The Telecommunications Act “expressly preserves local zoning authority and oversight concerning requests for permission to construct or install telecommunications facilities within local municipalities,” said Oyster Bay Cove, New York, in its answer Friday (docket 2:22-cv-07807) in U.S. District Court for Eastern New York in Central Islip. It was responding to AT&T’s Dec. 22 complaint that the village and its planning and zoning appeals boards subjected AT&T to an “unreasonably protracted” application process to approve an 85-foot-tall cell tower, in violation of the TCA.

AT&T alleges the village ultimately failed to act on the Dec. 6, 2021, application before the TCA’s shot clock ran out Nov. 23 after four deadline extensions (see 2212230054). The village’s zoning board voted unanimously to deny the application Nov. 22 before the application could progress to the planning board for consideration. The village’s actions “have not imposed an unlawful prohibition” on wireless telecommunications services, said its answer. Nor did it violate the TCA’s Sections 253 or 332 by “prohibiting or unlawfully delaying” AT&T’s ability “to provide interstate or intrastate telecommunications service,” it said.

New York’s Eastern District “lacks subject matter jurisdiction” over AT&T’s federal claims “for they are not ripe and, therefore, do not present a justiciable claim for relief” under Article III’s case or controversy clause, said Oyster Bay Cove. The village “fully complied with, and did not violate,” the TCA’s applicable shot clock provisions, it said. AT&T’s repeated extensions of the village’s time in which to review and consider the application “constitutes a waiver” of the shot clock, it said.

Where the interpretation of a statute or its application “involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom, the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute,” said the village. “If its interpretation is not irrational or unreasonable,” as is the case here, that interpretation “will be upheld,” it said.

Oyster Bay Cove denies AT&T’s allegation that failure to approve the proposed tower in a timely manner was arbitrary, capricious, unreasonable and an abuse of discretion in violation of Article 78 of New York’s Civil Practice Law and Rules, said the village. AT&T’s Article 78 assertion “fails to state a claim for which relief can be granted,” it said.

The village’s denial of the tower application was “neither arbitrary nor capricious and is supported by substantial evidence,” said Oyster Bay Cove. “Even where a contrary determination would be reasonable and sustainable, a reviewing court may not substitute its judgment for that of the agency if the determination is supported by substantial evidence.”

AT&T’s complaint said the zoning board’s Nov. 22 hearing record contains “credible evidence” that there's a 1.14-mile stretch to the east of the proposed tower in which there “is insufficient signal strength for an in-vehicle user to have reliable access to AT&T’s network, including FirstNet.” The hearing record contains no “substantial evidence of the existence of any viable, available, less intrusive, or more feasible alternate means to remedy the service gap” than to build the tower, said AT&T.

Oyster Bay Cove responded by attaching to its answer the 182-page transcript of the zoning board’s three-hour-long hearing on the evening of Nov. 22, in which board members and village residents appeared to cast doubts on AT&T’s claims about the severity of the service gap and the proposed tower’s ability to remedy it. During one exchange late in the hearing between Sheryl Lerner, the board’s chairwoman, and AT&T's outside counsel Matthew Fitzgerald of Phillips Lytle, Fitzgerald conceded “there’s no tower at any height that’s likely going to be able to remedy this entire gap across the entire area.” By the end of the evening, based partly on Fitzgerald's acknowledgments, the board unanimously denied the application on grounds the reduction in the service gap that the tower would render wasn't significant enough to justify its approval amid concerns about the tower's negative impact on local property values.

Before the vote, Fitzgerald warned board members they would be "in violation of federal law" if they failed to approve the tower that evening because the latest shot clock extension was expiring the next day, the transcript shows. The warning prompted village resident Dominick Lavelle to protest: “What kind of nonsense is this?” Chair Lerner assured Lavelle that “I don’t believe that he’s threatening to sue anybody.” AT&T nevertheless filed its complaint against Oyster Bay Cove exactly a month later.