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The 2d U.S. Circuit Court of Appeals has ruled that a district court judge was wrong to set aside a planning board’s rejection of a 150-foot cellular phone tower. Omnipoint Communications Inc. v. The City of White Plains, No. 04-3286-cv. The court, in an opinion written by Judge Dennis Jacobs, said that the decision by the White Plains, N.Y., planning board was supported by substantial evidence within the meaning of the federal Telecommunications Act. The ruling effectively dooms Omnipoint Communications Inc.’s plan to erect the tower on a golf course. The company had claimed that the board gave improper deference to community opposition to the tower. Omnipoint had signed an agreement in 1999 with the Fenway Golf Club for an option to lease a site for the tower on the golf course. The company told the board that it needed the tower because it had a gap in service for cellphones. It assured the board that the tower would have minimal visual impact because it would be disguised as a tree. The company’s expert reported that, save for one house, the tower would not be visible from outside the course. Neighbors disagreed: Their expert said that the 150-foot tower would not blend in with the tree line because the tallest evergreen was only 51 feet. Following the board’s denial of the application in 2001, Omnipoint sued, claiming violation of the Telecommunications Act, and seeking damages under 477 U.S.C. 1983. Judge Colleen McMahon of the Southern District of New York found that the board’s decision was unsupported by substantial evidence. Omnipoint was awarded $1.3 million in damages for costs incurred during the zoning process and lost revenue. The 2d Circuit reversed. According to Jacobs, the board was entitled to reject the report of the company’s expert. First, “the observation points on which it was based was limited to locations accessible to the public-mostly public roads-and no observations were made from the residents’ backyards, much less from their second story windows.” Moreover, the expert failed to consider the tower’s visibility in winter, when deciduous trees are bare. “Here, the observations of self-interested neighbors conflict with an expert study submitted by a self-interested applicant,” Jacobs said. “Though a board is not required to give decisive weight to one over the other, Congress has definitely provided it the ultimate voice in the zoning decision-making process.” The court upheld the board’s finding that the company failed to show a “public necessity” for the tower. However, the court pointed out that the board had applied an incorrect standard that a company must meet for the granting of its application. The correct standard was set forth by the New York Court of Appeals in Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598 (1978). Hoffman requires that a utility must show that “there are compelling reasons, economic or otherwise, which make it more feasible” to build a new facility than to use “alternative sources of power such as may be provided by other facilities.” Omnipoint had failed to show that other potential sites were not feasible. “However, the record is clear that other cell companies serve the area in which Omnipoint has its gap,” Jacobs said. “From this, the board could infer that other towers erected by other companies are in the vicinity, and that Omnipoint had the burden of showing either that those towers lacked capacity for an Omnipoint facility or that . . . those towers were unavailable to bridge Omnipoint’s coverage gap.” Finally, the court said that even if the board’s decision were unsupported by substantial evidence, this year’s U.S. Supreme Court case of City of Rancho Palos Verdes v. Abrams, 125 S. Ct. 1453, holds that Section 1983 damages are not available for violations of the Telecommunications Act.

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