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The presence of equipment from commercial telecommunication providers on a state-owned cell tower does not subject the tower to local zoning regulations, a state appellate court has ruled. The ruling by the Appellate Division, 2nd Department, the first of its kind in New York, came in a case in which New Rochelle sought to apply its zoning regulations to a state-owned property where two towers were being built. The 4-0 ruling reversed a decision last year by Supreme Court Justice Nicholas Colabella, who said individual telecommunication providers — but not the state — were subject to New Rochelle’s zoning. “The wireless telephone providers are not precluded from enjoying the state’s immunity simply because they are private entities or because collocating on the [state Department of Transportation's] towers will advance their financial interests,” the appeals panel said Monday in its unsigned memorandum in Matter of Crown Communication New York Inc. v. NYS Department of Transportation, 2002-06435. “[I]t is not the private status of the wireless telephone providers but rather, the public nature of the activity sought to be regulated by the local zoning authority that is determinative in this case,” the panel added, citing the New York Court of Appeals’ 1988 ruling, County of Monroe v. Rochester. The New York State Police, the state Department of Transportation (DOT) and other state agencies granted an exclusive license in 1997 to a company to build cell towers on certain state-owned lands and rights of way. The agreement was assigned a year later to Crown Communication. Crown was permitted to license space on the towers to commercial wireless providers, and the state also installed its own communications equipment on the towers. When Crown began construction of a tower at a DOT maintenance yard off the Hutchinson River Parkway and announced plans to replace an existing tower on the right-of-way, New Rochelle issued a stop-work order. The city contended that the towers were subject to its zoning regulations and that Crown had to apply for a special permit from its planning board. Crown brought a proceeding to prohibit New Rochelle from enforcing its zoning regulations against the towers, and sought a declaration that the towers were exempt from the city’s regulations. Justice Colabella in Westchester County initially applied a balancing of public interests test from the County of Monroe case and ruled that the two towers were exempt from the local regulations. But eight months later, after granting reargument to the city, he modified his order to say that the wireless providers licensed to install their equipment on the towers — AT&T Wireless Services, Sprint Spectrum L.P., Omnipoint Communications Inc., and Nextel of New York Inc. — were subject to the zoning regulations. The towers were constructed and began operating pursuant to an injunction of Colabella’s ruling while the appeal was pending. The 2nd Department, in the first ruling in the state on the application of local zoning regulations to the state-sponsored towers, pointed out that the state’s goals to “improve traffic flow, motorist safety and emergency response along the Hutchinson River Parkway would be facilitated by, and partially financed by, the shared use of the towers.” The shared use of the facilities also furthered the state’s goal of reducing the proliferation of cell towers, the court said. “[A]llowing the city to enforce its zoning laws against the wireless telephone providers under these circumstances would ‘foil the fulfillment of the greater public purpose’ in constructing these facilities,” the judges concluded. The appellate panel comprised Justices Myriam J. Altman, Gabriel M. Krausman, Gloria Goldstein and Daniel F. Luciano. John P. Stockli and Jacqueline Phillips Murray of Crane, Greene & Parente in Albany represented Crown. Assistant Attorneys General Michael S. Belohlavek, David Axinn and Richard Lombardo handled the appeal for the state agencies. Kathleen E. Gill of New Rochelle’s Corporation Counsel’s Office appeared for the city, and Steven M. Silverberg of Wilson, Elser, Moskowitz, Edelman & Dicker appeared for the Town of Eastchester, which adjoins the area where the towers were located. Eastchester supported New Rochelle’s position advocating the application of the local zoning rules.

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