Long Island Village Sat on Proposed Tower Application, Alleges AT&T
The village of Oyster Bay Cove, New York, and its planning and zoning appeals boards subjected AT&T to an “unreasonably protracted” application process to approve an 85-foot-tall cell tower, ultimately failing to act on the application before the last-extended expiration of the Telecommunication Act’s shot clock Nov. 23, alleged the carrier in a Dec. 22 complaint (docket 2:22-cv-07807) in U.S. District Court for Eastern New York in Central Islip.
AT&T needs to build the tower to remedy a service gap that's “significant in terms of size, number of persons affected, and degree of service deficiencies,” said the complaint. The absence of a facility capable of providing reliable wireless services to the service gap “materially impairs AT&T’s ability to engage in a variety of activities related to its provision of services covered by its FCC licenses,” it said. Without the tower, it said, “there are no existing structures in the area of sufficient height to host an AT&T facility that would remedy the service gap.”
Oyster Bay Cove, on Long Island’s north shore, sits about six miles northwest of Muttontown, where AT&T is engulfed in another cell tower fight with the municipality and about 30 of its residents over their right to intervene in the case to protect their property interests (see 2212140001). The residents say they are seeking to thwart what they call an alarming number of out-of-court settlements reached in the Eastern District of New York that they say prioritize the interests of the wireless carriers over those of local property owners. AT&T on Friday asked the court to reject Muttontown's request to seek dismissal of its complaint (see 2212270002)
AT&T’s Dec 6, 2021, filing of its Oyster Bay Cove application started the running of the shot clock, which was extended four times by mutual agreement, through June 6, then Aug. 31, again through Oct. 6 and finally Nov. 23, said the complaint. But the Nov. 23 deadline came and went without the required written denial of the application from the Oyster Bay Cove zoning board, it said. Though the zoning board, without the written denial, did summarize its rejection of the tower as being based on “inadequate proof of need,” there was never a vote up or down on the application from the planning board, it said.
The zoning board’s Nov. 22 hearing record contains “credible evidence” that there's a 1.14-mile stretch to the east of the proposed tower in which there “is insufficient signal strength for an in-vehicle user to have reliable access to AT&T’s network, including FirstNet,” said the complaint. The hearing record “does not contain substantial evidence of the existence of any viable, available, less intrusive, or more feasible alternate means to remedy the service gap” than to build the tower, it said.
The village’s failure to approve the proposed tower “materially inhibits AT&T’s activities related to its provision of covered services, as it has prohibited AT&T’s ability to permit its customers in the service gap to access covered services consistently and reliably,” said the complaint. “The ability of first responders to access FirstNet services is also compromised.”
AT&T seeks “expedited disposition” of the complaint under the TCA, plus an order directing the village and its boards to grant “all variances, permits, and approvals necessary to allow construction, operation, and maintenance” of the proposed tower. Oyster Bay Cove representatives didn’t comment.