Verizon Wireless of the East LP v. Town of Wappinger

Background

Verizon Wireless of the East LP, doing business as Verizon Wireless, and Tarpon Towers II, LLC proposed constructing a 150-foot cell tower on land owned by a non-party. Tarpon would build and operate the tower, and Verizon would rent capacity on it for cellular service. The proposed site was approximately 550 feet from one home and within 750 feet of six homes.

The plaintiffs applied to the Town of Wappinger Planning Board for a special-use permit, site-plan approval, and a wetlands permit. They separately applied to the Town’s Zoning Board of Appeals for variances from the Town Code’s 750-foot setback requirement. The application included technical, environmental, radio-frequency, visual-impact, and site-selection materials. The application was complete by December 23, 2019.

The Planning Board conducted review under the New York State Environmental Quality Review Act, or SEQRA. It initially directed preparation of a negative declaration, meaning a determination that the project would not have a significant environmental impact. Later, after requesting additional visual and alternative-site information, the Planning Board adopted a positive declaration, meaning that an environmental impact statement would be required. The positive declaration cited possible conflicts with the Town Code and possible significant visual impacts but did not explain the basis for those conclusions. The Town and its boards then took no further action on the project after September 21, 2020.

Claims and Summary-Judgment Rulings

The plaintiffs brought claims under Section 332(c)(7) of the federal Telecommunications Act of 1996. The first claim alleged that the Town violated the requirement that local governments act within a reasonable time on wireless-facility applications. Federal Communications Commission rules generally create a 150-day processing period for applications other than requests to place equipment on existing structures. The parties agreed to several extensions of that period.

Judge Karas held that the plaintiffs established a presumption that the Town’s delay was unreasonable. By the time the complaint was filed, approximately 158 non-tolled days had passed. The court also considered that the Town had not issued a final decision and had removed the project from its agenda. The Town argued that the delay was justified by the need for an independent radio-frequency review, the COVID-19 pandemic, public complaints, and the SEQRA process.

The court rejected those explanations. The independent radio-frequency consultant had completed his work before the relevant deadlines. The pandemic did not explain much of the delay, and the plaintiffs had already granted extensions partly to account for pandemic-related difficulties. Public concerns had been raised months before the deadline. The court also concluded that the Planning Board’s late requests for information and its reversal from a proposed negative declaration to a positive declaration supported the conclusion that the SEQRA process was used to delay the application. The court therefore granted the plaintiffs’ motion on the unreasonable-delay claim and denied the Town’s motion on that claim.

The plaintiffs’ second claim alleged that the Town had effectively prohibited wireless service. The court held that this claim was not ready for judicial review because the Town had not issued a final decision on the application. Although the positive SEQRA declaration created additional obstacles and delay, the application still had to proceed through that process before the Town could issue a final decision. The court denied the plaintiffs’ motion on this claim and granted the Town’s motion on it.

The opinion also states that the plaintiffs did not separately assert a claim that a final Town decision lacked substantial evidence. Accordingly, the court denied the plaintiffs’ motion concerning a violation of that provision and granted the Town’s motion concerning the second claim as described in the conclusion.

Remedy and Disposition

The court declined to order the Town to approve the cell tower. It explained that, for an unreasonable-delay violation, the usual remedy is to require the municipality to make a decision rather than to order approval of the application. The court ordered the Town to render a final decision on the application within 60 days of the opinion and order.

The opinion’s overall disposition was that the plaintiffs’ summary-judgment motion was granted in part and denied in part, and the Town’s summary-judgment motion was granted in part and denied in part. Judge Kenneth M. Karas directed the clerk to terminate the pending motions.