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In a watershed ruling dealing with the increasingly troublesome Telecommunications Act, the New York Court of Appeals Tuesday rejected an argument that the federal law pre-empts a restrictive covenant. A dissent said the ruling would only lead to a concentration of cell towers in areas where residents do not enjoy the extraordinary protection against federal law. Chambers v. Old Stone Hill Road Associates, 15, arose out of a dispute in Westchester County, and ended with New York’s highest court telling Verizon Wireless to remove a 120-foot cell tower from a rural residential section of Pound Ridge. Tuesday’s 6-1 opinion by Chief Judge Judith S. Kaye upheld both Supreme Court and an Appellate Division, 2nd Department, panel. Chambers v. Old Stone Hill Road Associates is rooted in the erection of a cell tower in the northern suburb township of Pound Ridge. After Verizon applied for and obtained a special use permit to erect the tower — which it said was necessary to provide town-wide cellular service — neighboring property owners John and Marsha Chambers sought to enforce a chain-of-title restrictive covenant. That covenant bars the use of land for any trade or business purpose and also prohibits buildings other than residences for single family use. Tuesday, the Court of Appeals’ majority said the covenant must be respected, notwithstanding the Telecommunications Act of 1996. The act was drafted to encourage expansion of telecommunication technologies and to discourage local micro-management and arbitrary regulation. “As Supreme Court and the Appellate Division correctly concluded, the [Telecommunications Act] does not pre-empt the power of private citizens to enforce their contractual rights, or limit judicial enforcement of those rights,” Chief Judge Kaye wrote. Judge Susan Phillips Read dissented. While agreeing that zoning does not usually “destroy a preexisting private covenant,” this matter is unusual, she said. “The covenant directly conflicts with a special permit issued to provide a public utility in a way that takes into account the best interests of the community as a whole and furthers national telecommunications policy,” Judge Read said. “As a consequence of this covenant’s enforcement, multiple (and more intrusive) towers will now have to be sited in order to replace the Stone Hill site and serve the community’s need for personal wireless services.” Appearing were: David L. Snyder of Snyder & Snyder in Tarrytown for Verizon; Mona D. Shapiro of Banks Shapiro Gettinger Waldinger & Brennan in Mount Kisko for Old Stone Hill Associates; and Steven M. Silverberg of Wilson, Elser, Moskowitz, Edelman & Dicker in White Plains for the residential property owners.

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