Posted On: February 28, 2012

Congress Limits Municipal Authority To Deny Modification of Telecommunications Facilities

Last week President Obama signed the ‘‘Middle Class Tax Relief and Job Creation Act of 2012’’ which included provisions limiting municipal authority over modification of existing telecommunications facilities.

The new provisions read as follows:


SEC. 6409. WIRELESS FACILITIES DEPLOYMENT.
(a) FACILITY MODIFICATIONS.—
(1) IN GENERAL.—Notwithstanding section 704 of the Tele-
communications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.
(2) ELIGIBLE FACILITIES REQUEST.—For purposes of this subsection, the term ‘‘eligible facilities request’’ means any request for modification of an existing wireless tower or base station that involves—
(A) collocation of new transmission equipment; (B) removal of transmission equipment; or
(C) replacement of transmission equipment.

-Steven M. Silverberg

Posted On: February 4, 2012

Court Reverses Denial of Special Permit

The Appellate Division Fourth Department reversed the denial of a special permit when it found the denial to be based upon "generalized community objections." In Matter of Young Development, Inc. v. Town of West Senaca, the Court held:

"Contrary to respondents' contention, petitioners established that the sewer system of respondent Town of West Seneca would have sufficient capacity to support the project and, in any event, petitioners agreed to engage in remediation efforts recommended by the [*2]New York State Department of Environmental Conservation. There is no expert evidence in the record that the remediation proposed by petitioners is unsatisfactory. With respect to the comprehensive plan issue, it is well settled that the inclusion of a permitted use in a zoning code "is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" (Matter of North Shore Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238, 243). Given the absence of support in the record for the Board's determination, we conclude that the Board impermissibly based its determination on "generalized community objections" (Matter of Ifrah v Utschig, 98 NY2d 304, 308). "

There is, however, one aspect of the decision which this writer finds puzzling. The Town raised the issue that the Article 78 proceeding was untimely because it was commenced more than thirty days after the decision denying the special permit. The Court found:

"Preliminarily, we reject respondents' contention that the petition was not timely filed within 30 days of the Board's determination pursuant to Town Law § 274-b (9). Rather, we conclude that, "[b]ecause the petition seeks to review the determination of the . . . Board, the four-month limitation period of CPLR 217 applies" (Matter of Sucato v Town Bd. of Boston, 187 AD2d 1045), thus rendering the petition timely filed."

Yet, Town Law 274-b states with regard to special permit applications:

"9. Court review. Any person aggrieved by a decision of the planning board or such other designated body or any officer, department, board or bureau of the town may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the town clerk."

-Steven M. Silverberg