Our Denial of AT&T Tower Did Not Run Afoul of TCA: Town of Corinth, N.Y.

The Corinth, New York, planning board's denial of AT&T’s site plan review application to build a 150-foot-tall monopole wireless telecommunications tower in the middle of a residential neighborhood “must not be disturbed,” said the town’s opposition Friday (docket 1:21-cv-00149) in U.S. District Court for Northern New York in Syracuse. AT&T had filed an Oct. 14 motion for summary judgment. Friday's filing also was in support of the town's own cross-motion for summary judgment.

The planning board “had multiple reasons, supported by substantial evidence,” to deny AT&T’s tower application, said the town. Photo simulations that AT&T submitted with its application in December 2020 “depicted the proposed tower looming over surrounding residences,” it said. The “numerous objections” from town residents, plus “documentation from local real estate agents indicating the tower’s impact on the surrounding property values,” prompted the planning board to reject the tower in January 2021, it said.

The courts have found that if “even one reason for the denial is supported by substantial evidence,” as Corinth maintains that it is in this case, “the decision of the local zoning body cannot be disturbed,” said the town. Even comments that amount to no more than “generalized hostility from residents” over aesthetic objections may serve as a basis for denial of a permit under the Telecommunications Act, said the town. Under the TCA, a reviewing court “can find that aesthetics qualify as a permissible ground for denial of an application if it can conclude that there was more than a mere scintilla of evidence” available attesting to “the negative visual impact of the proposed facility,” it said.

The planning board’s January 2021 written decision denying AT&T’s tower application was supported “by substantial evidence in the written record,” said the town. Articulated within the written decision were the evidence and comments presented to the planning board, “including several letters from neighborhood residents documenting the impact the tower would have on their property values and the visual impact of the tower on their quality of life,” it said.

Also included were letters from area real estate agents “attesting to the negative impact of the proposed tower on property values,” said the town, as well as a signed petition opposing the tower's location in a residential neighborhood, it said.

The planning board’s denial “does not amount to an unlawful prohibition of covered services” under the TCA, said the town. A plaintiff may prevail on a TCA claim only if it can demonstrate that “a significant gap exists in wireless coverage and that its proposed facility is the least intrusive means to close that gap,” it said.

A local government may reject an application “without thereby prohibiting personal wireless services if the service gap can be closed by less intrusive means,” said the town. “An applicant may be required to pursue a less intrusive alternative by selecting a less sensitive site, reducing the tower height, or using a preexisting structure,” it said. It is AT&T’s “burden” to show that other potential sites are unfeasible, and AT&T “has not made the requisite showing here,” it said.

Failing to consider locations within nearby Adirondack Park demonstrates by itself that AT&T “cannot establish that the proposed facility is the least intrusive means to close its identified coverage gap,” said the town. Though AT&T analyzed three alternative sites “after being criticized for failing to consider any alternatives in its original submissions,” it appears the company “very selectively considered options” other than within Adirondack Park, in an effort to avoid regulatory approval from New York’s Adirondack Park Agency (APA), it said. It’s “noteworthy” that the tower that Verizon proposed around the same time that AT&T’s application was before the planning board “received the necessary approvals” from the town and the APA.