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A Southern District federal judge has taken the Tarrytown Planning Board to task for giving the runaround to a wireless service provider seeking to erect antennas in the Westchester County, N.Y., village. U.S. District Judge Colleen McMahon said in a recent opinion that the experience of Omnipoint Communications follows “an all too familiar pattern” where a wireless provider does everything necessary to secure the appropriate approvals but is “confronted with politically motivated, interminable delays and ineffectual excuses by local officials.” McMahon said the town Planning Board “failed to offer one legitimate reason for its rejection of Omnipoint’s application.” Omnipoint v. Tarrytown, 03 CIV 6344, illustrates a tension that has occurred in several towns where local control bumps heads with the federal Telecommunications Act of 1996. The act was drafted to facilitate the expansion of telecommunications technologies and to shield carriers from arbitrary or provincial actions by local government. To a considerable degree, the act can preempt local zoning and planning concerns — a fact that often does not sit well with local officials and their constituents. In the Tarrytown case, Omnipoint sought to operate a “wireless telecommunications service facility” (WTSF) that would amount to installing some equipment in and antennas on an existing building on South Broadway, outside the residential district. The antennas would be flush-mounted to the exterior of the building. Omnipoint’s competitor, Nextel, already has a WTSF at the same location. Omnipoint filed an application for site plan approval on Sept. 3, 2002, in compliance with the village’s zoning ordinance. It explained in the application that the facility was needed to remedy existing coverage gaps, addressed environmental and health impacts, and requested a waiver from the village’s setback requirement. On Sept. 30, Omnipoint made its case before the Planning Board. Over the next year, it reappeared before the Planning Board six times, and continually responded to suggestions for alternate sites. For a variety of reasons, the alternate sites suggested by the village were not suitable. Finally, in August Omnipoint brought an action under the Telecommunications Act to enjoin Tarrytown from continuing to withhold the necessary permits. In court, Tarrytown acknowledged that Omnipoint had a significant coverage gap. However, the village attempted to rely on a 1999 opinion of the 2nd U.S. Circuit Court of Appeals, Sprint Spectrum v. Willoth, 176 F.3d 630. There, the 2nd Circuit held that the Telecommunications Act prohibits localities from denying an application for the least intrusive means of closing a significant coverage gap. The court also said, however, that “once an area is sufficiently serviced by a wireless service provider,” subsequent applications can be denied without violating the act. Tarrytown argued that Willoth required approvals only when no provider had access. It contended that Willoth had no bearing in a matter where, as here, a single provider had a coverage gap. Judge McMahon disagreed, but that still left a question of what constitutes a “coverage gap.” Some courts, for instance in the 3rd Circuit, have interpreted Willoth to mean that the gap should be measured from the perspective of the customer rather than the provider. Others, such as those in the 1st Circuit, suggest that the gap should be measured from the perspective of the provider rather than the customer. McMahon found that the gap should be construed from the perspective of the provider. She said Willoth “makes plain” that the thrust of the statutory subsection at issue “is not on an applicant provider’s competition with other providers, but on whether the applicant provider can [offer] area users some minimum level of service using the least intrusive means available. … Here, it is evident that a significant gap in Omnipoint’s coverage exists.” LEGAL BASIS With that holding, McMahon turned to the question of whether Tarrytown had any legal basis for denying Omnipoint’s application. After considering the various arguments of the village, she could find no legal basis for the denial. She found the Planning Board in violation of the TCA. “[T]his is not a case where the locality was merely conducting good faith information gathering,” McMahon wrote. “Rather, had Omnipoint not filed the instant suit, it is clear to me that Tarrytown would have ‘transform[ed] the application into a self-perpetuating, endless odyssey,’” she wrote, citing Nextel Partners v. Town of Canaan, 62 F. Supp. 3d 691, a 1999 Northern District decision.” Judge McMahon ordered Tarrytown to promptly “issue any and all approvals necessary for installation of … Omnipoint’s wireless telecommunications facility application.” Michael W. Peters of LeBoeuf Lamb Greene & MacRae in Albany argued for Omnipoint. The municipal defendants were defended by Darius Patrick Chafizadeh of Thacher, Proffitt & Wood in White Plains, N.Y., and Richard G. Corde of Boeggeman, George, Jannace & Hodges in White Plains.

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