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A decision by a city planning board to reject a 150-foot high cellular phone tower should not have been set aside by a district court judge, the 2nd U.S. Circuit Court of Appeals has ruled. Finding that the City of White Plains Planning Board’s decision was supported by substantial evidence within the meaning of the federal Telecommunications Act, the circuit reversed an order of summary judgment, effectively dooming a company’s plans to erect the tower on a local golf course. The decision in Omnipoint Communications Inc. v. The City of White Plains, 04-3286-cv, was based, in part, on rejecting Omnipoint’s claim that the planning board gave improper deference to community opposition to the tower. Dennis Jacobs wrote the decision. He was joined on the panel by Judges John M. Walker Jr. and Pierre Leval. 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 near the border of White Plains and Scarsdale. The option was for two years and was designed to give the company time to obtain government approval for the tower. The company told the board that it needed the tower because it had a gap in service for cell phones. It assured the board that the tower would have minimal visual impact because it would be disguised as a tree. The company’s expert parked a 150-foot crane on the site and drove around the surrounding neighborhood before concluding that, save for one house, the tower would not be visible from outside the course. Neighbors disagreed, saying that it would be an eyesore and decrease property values. Their own expert said a 150-foot tower would not blend in with the tree line because the tallest evergreen nearby topped out at 51 feet. When the board denied the application in 2001, Omnipoint sued, claiming that the board violated the Telecommunications Act. It sought damages under 477 U.S.C. �1983. One day before the expiration of the option period, Fenway signed a deal with residents in which it agreed not to allow cell phones on its property in return for the residents’ approval of the construction of a maintenance facility on the course. Southern District of New York Judge Colleen McMahon found that the board’s decision was unsupported by substantial evidence. A damages trial before Magistrate Judge George Yanthis on the �1983 damages claim ended with a directed entry of judgment in 2004 for Omnipoint, which was awarded $1.3 million in damages for costs incurred during the zoning process, lost revenue and the expense of locating another site. The company also was awarded $231,152 in attorney fees. The circuit reversed. “Given the 150-foot tower would rise to three times the height of the tallest evergreen tree … the board could reasonably conclude (especially given express testimony to that effect) that the tower would be widely visible,” Jacobs wrote. “In addition, the board received substantial evidence of the tower’s adverse aesthetic impact. We have no difficulty concluding that the board’s rejection was based on reasonable and substantial evidence.” DEFECTIVE STUDY The judge said the board was free to discredit the study conducted by the company’s expert because it was “conducted in a defective manner,” without notice to the board or the community, and “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,” he said, “the study suffered from the further defect that it failed to consider the tower’s visibility in winter, when deciduous trees are bare.” The board had the discretion to rely on the aesthetic objections made by neighbors of the golf course. “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.” PUBLIC NECESSITY The court then upheld the board’s finding that the company failed to show a “public necessity” for the tower, but not before it said the board made the mistake of applying a standard concerning a showing that a company must make before the Telecommunications Act requires a planning board to grant its application. The actual standard, Jacobs said, was set forth by the state Court of Appeals in Consolidated Edison Co. v. Hoffman, 43 NY2d 598 (1978). Hoffman requires that a utility must show the new construction is “a public necessity in that it is required to render safe and adequate service,” and “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.” While White Plains conceded there was a gap in service, Jacobs said the company failed the second part of the test, because Omnipoint only stated in “conclusory fashion” that other potential sites were unfeasible. “Similarly, Omnipoint stated (without documentation) that it was unable to build a less intrusive structure or combination of structures at the Fenway site,” he said. “However, the record is clear that other cell companies serve the area in which Omnipoint has its gap,” the judge 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 (for some other reason) 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, the intervening U.S. Supreme Court case of City of Rancho Palos Verdes v. Abrams, 125 S.Ct. 1453, holds that �1983 damages are not available for violations of the Telecommunications Act. Joseph A. Maria and Frances Dapice Marinelli of White Plains, N.Y., represented the city. Eric S. Aronson, Helen E. Kleiner and Jeffrey W. Greene of Greenberg Traurig represented Omnipoint Communications Inc.

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