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‘Substantial Evidence’ Claim Moot

Judge Partially Grants AT&T Summary Judgment in Cell Tower Fight vs. N.Y. Town

U.S. District Judge Brenda Sannes for Northern New York in Syracuse granted in part and denied in part AT&T’s motion for summary judgment against the town of Corinth, New York, and denied the town’s cross-motion for summary judgment against AT&T, said her signed memorandum-decision and order Friday (docket 1:21-cv-00149). AT&T sued in February 2021, alleging the town violated the Telecommunications Act when it denied the carrier’s site plan application to build a 150-foot-tall monopole cell tower (see 2302060030).

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AT&T moved for summary judgment on grounds that the denial was an effective prohibition of services under the TCA and wasn’t supported by substantial evidence in the written record, as the statute requires. The town’s cross-motion argued the denial wasn’t an unlawful prohibition of covered services, the denial was supported by substantial evidence, and the town acted within a reasonable time to review the application.

Since the town concedes that a significant gap in AT&T’s coverage exists, the court need only determine whether the proposed tower is the least intrusive means to close that gap, said Sannes’ order. The administrative record shows neither tCorinth’s zoning board nor its planning board “meaningfully disputed” AT&T’s conclusion that the proposed site is the least intrusive means to remedy the service gap, said the judge. Neither board also ever proposed alternative sites for AT&T to investigate during their respective reviews, it said.

The town’s motion for summary judgment argues AT&T failed to meet its burden because it didn’t analyze any alternative sites, and failed to establish that a newly approved Verizon facility wouldn’t provide an adequate opportunity for collocation, said the judge’s order. But Corinth’s arguments “are belied by the administrative record,” it said. That record shows AT&T analyzed four sites located at various locations within the town near the gap in service, it said. The record also indicates AT&T “considered the guidelines put forth” by New York State’s Adirondack Park Agency despite its “desired site” being located outside the Adirondack Park, it said.

AT&T “in sum” described its search criteria, demonstrated with specific, objective evidence, “that it evaluated alternative sites, and complied with requests made” by the town through its RF consultant, said the judge’s order. The town didn’t recommend alternative sites for AT&T to analyze, nor did it otherwise suggest to AT&T it wasn’t happy with the company’s effort to evaluate alternative sites before the planning board issued its denial, it said.

The court also “must grapple with the difficult question of whether the specifically articulated and objectively supported evidence of aesthetic intrusion in the administrative record amounts to substantial evidence” supporting the town’s tower denial, said the judge’s order. To the extent Corinth’s denial was based on aesthetic concerns about the tower, the court said the denial was supported by substantial evidence, rejecting AT&T’s summary judgment claim it wasn’t supported.

But the town’s denial decision “cannot stand,” said the judge’s order. Having prevailed on its effective prohibition claim under the TCA’s Section 332, AT&T must be permitted to build the tower, it said. AT&T’s substantial evidence claim is moot because AT&T “is entitled to relief on its effective prohibition of service claim,” it said.