T-Mobile ‘Irreparably Harmed’ by Town’s Denial of Its Wireless Application: Complaint

T-Mobile filed suit Thursday against Oyster Bay, New York, for the town's “unreasonable and unsupportable denial” of T-Mobile’s application for a rear yard variance necessary to install and operate a wireless telecom facility to remedy a “significant gap in wireless services in the area.” The town also imposed “unreasonable, excessive, and prohibitive escrow charges and application fees,” alleged T-Mobile’s complaint (docket 2:23-cv-05339) in U.S. District Court for Eastern New York in Central Islip.

It’s at least the second known active case in the Eastern District of New York in which Oyster Bay is the named defendant. Crown Castle has a summary judgment motion pending against Oyster Bay stemming from a November 2021 complaint in which the company alleges the town unlawfully denied multiple applications to install a series of small wireless facilities in the public rights-of-way (see 2303130027). For T-Mobile, the lawsuit against Oyster Bay is the second it filed within the week against a small municipality outside New York City, that one for denying its application to build a 105-foot-tall cell tower (see 2307110008).

Thursday’s T-Mobile complaint alleged Oyster Bay’s “burdensome” municipal code requirements and application review processes, as they are applicable to T-Mobile’s proposed facility, “made it impossible to obtain all required approvals within the 90-day period set forth by the FCC for such applications.” The town’s zoning board of appeals (ZBA) denied the application “unreasonably and without substantial evidence in the written record,” said the complaint. Oyster Bay’s actions resulted in the town “effectively prohibiting T-Mobile’s telecommunication services and personal wireless services,” in violation of the Telecommunications Act, it alleged.

T-Mobile’s proposed facility is “the least intrusive means” to remedy Oyster Bay’s significant service gap, said the complaint. The town’s denial violated the TCA’s Sections 332(c)(7)(B) and 253(a), it said. The violations “warrant a reversal of the denial with injunctive relief” mandating that the town issue “all required approvals,” it said. Besides granting T-Mobile the requested rear yard setback variance from the ZBA, the carrier also seeks a building permit from Oyster Bay’s Department of Planning and Development, it said. The town didn’t comment Friday.

T-Mobile’s written submissions and presentation at the ZBA’s April 20 hearing “provided substantial and uncontroverted evidence” showing its application “satisfied the criteria and requirements for the requested rear yard setback variance under both state law and federal law,” plus Oyster Bay’s town code, said the complaint. There’s no substantial evidence in the administrative record “refuting T-Mobile’s evidence that it met the criteria for the requested rear yard setback variance,” it said.

The record shows there were no viable alternatives that would allow the facility to be located on the property at issue without the need for a setback variance, said the complaint. The ZBA, without notifying T-Mobile, voted and verbally stated on May 4 it would deny the T-Mobile application, it said. The only reason the ZBA gave for the denial was its objection to T-Mobile’s equipment being within 5 feet of the side yard property line, “which is wholly incorrect,” it said.

The written denial the ZBA issued to T-Mobile June 21 “ignores the facts in the record before it,” said the complaint. The written denial is “conclusory” and isn’t supported by “substantial evidence contained in the written administrative record,” as the TCA requires, it said. The denial gave “no discernable reasons” for the ZBA’s decision to deny the application, it said. The denial contained only “references to the public comments on the alleged environmental effects” of RF emissions, plus “personal anecdotal experiences with cellular service, and the misstatements regarding the availability of alternative locations,” it said.

T-Mobile has demonstrated “the need for the injunctive relief requested,” said the complaint. T-Mobile, its customers and the public “have been and will continue to be damaged and irreparably harmed absent the relief requested,” it said. The harm T-Mobile continues to suffer isn’t “reasonably susceptible to accurate calculation,” and can’t be “fully and adequately addressed through an award of damages,” it said. The public interest in promoting wireless competition “has been irreparably harmed and will continue to be irreparably harmed” by Oyster Bay’s “unlawful acts,” it said.