Second Circuit Reverses Judgment for Denial of Wireless Telecommunications Tower

In a December, 2005 decision the Second Circuit Court of Appeals reversed the judgment of Omnipoint Communications against the City of White Plains. Omnipoint had been denied a permit to construct a 150 foot wireless communications tower on a local golf course. The Court noted that if supported by substantial evidence the decision of the local board was entitled to deference from the Court.

In reversing the decision of the district court, the Circuit Court noted that the tower would rise to three times the height of the tallest evergreen tree and “half again as tall as any other tree in the area”. Therefore it was held that the local board could reasonably conclude the tower would be “widely visible”. The Court found the study conducted by Omnipoint was flawed as it was taken only from public areas and not from residential back yards or second story windows of homes.

Perhaps most significantly the Court noted that the local board was free to reject the report of Omnipoint’s “expert” and credit the testimony of local residents and their landscape architect who had “limited qualifications” to address the issue. It noted that in the Second Circuit there was no requirement to use expert studies to support a local decision. Rather the Board could rely on the “aesthetic objections raised by neighbors who know the local terrain and the sightlines of their own homes” in reaching its decision.

Finally on the issue of public necessity for the proposed tower the Court ruled that Omnipoint’s examination of other potential sites was conclusory and lacked documentation as to the availability of other less intrusive structures. It held that since there were other towers in the area, Omnipoint had the burden of demonstrating that other towers in the vicinity were either unavailable to cover the gap in coverage or lacked the capacity for Omnipoint.