Earth Matters - October 2012: Phillips Lytle Succeeds in Overturning a Zoning Denial for a Client

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Earlier this year, Phillips Lytle successfully challenged a Town’s denial of a client’s application for a zoning use variance to construct and operate a wireless telecommunications tower within a privately-owned, large rural wooded lot.

The client had sought a use variance from the Town’s Zoning Board of Appeals (“ZBA”). The client agreed to disguise the tower to look like a pine tree, and demonstrated that the tower would not be visible from most vantage points within the surrounding community. In the few locations where it would be visible, only the top portion of the disguised “monopine” could be seen above the surrounding tree line. With the assistance of three different experts, the client also demonstrated that eleven alternative locations suggested by the Town either were not capable from a technical perspective of providing the needed cell coverage to fill the coverage gap, or would be substantially more visible (and thus cause even greater visual impacts on the surrounding community) than the proposed facility.

Nevertheless, after three lengthy public hearings, and following the client’s submission of multiple expert reports, the ZBA rejected the application. Although the ZBA conceded that the proposed facility would not cause any negative environmental impacts, it nevertheless denied the application primarily based on the opposition of a single neighbor who lived near the proposed site.

Phillips Lytle challenged that denial under a Federal Telecommunications Act of 1996 (the “TCA”) on grounds that the ZBA’s decision was not supported by substantial evidence in a written record and, as a result, the ZBA was effectively prohibiting the provision of wireless telecommunication services in the surrounding area. The Court agreed with Phillips Lytle’s challenge, and ordered the Town not only to promptly approve the client’s zoning use variance, but also grant and issue all other permits that might be required by the client to construct and operate its telecommunications facility. The Court rejected the ZBA’s attempt to justify its denial by relying on reasons that had not been included in its written decision. In addition, although a ZBA can reject an expert’s analysis that is submitted in support of an application, the Court concluded that the ZBA nevertheless was required to rely on objective analysis for its denial, and subjective opinions and complaints from neighbors were not enough. Moreover, a single neighbor’s complaints about the aesthetics of a proposed facility did not constitute substantial evidence sufficient to justify the denial.

Although denials of Zoning Board variances for proposed telecommunications towers are not uncommon, until now it was relatively rare that a telecommunications service provider successfully challenged such a denial under the TCA. This decision, which was not appealed by the Town, creates strong precedence that should guide zoning boards and telecommunication service providers alike with regard to future zoning applications for cell towers, particularly when a service provider has selected an appropriate location and design to maximize coverage and minimize visual impacts.

If you would like more information about Land Use & Zoning law, contact Kevin M. Hogan, Partner and Team Leader of the Phillips Lytle Environment Practice at (716) 847-8331 or khogan@phillipslytle.com, or Adam S. Walters, Partner and Lead Attorney in the Land Use & Zoning practice area at (716) 847-7023 or awalters@phillipslytle.com.