Verizon Wireless of the East LP, doing business as Verizon Wireless (Verizon) and Tarpon Towers II, LLC, brought a civil complaint against the Town of Wappinger, and its planning and zoning boards for the delay of and failure to approve the plaintiffs’ application to erect a cellular tower or monopole in a town area with poor cell reception. In so doing, the plaintiffs contend, the town violated Section 332 of the Communications Act of 1934. For the town’s “unjustifiable” delay, the plaintiffs seek an order permitting them to install the monopole.
Tarpon is a Florida-based company that “owns and operates personal wireless service facilities across the country.” The town is located in Duchess County, New York.
The plaintiffs explained that under Section 332, it is unlawful “for a municipality to fail to act on or fail to approve applications to install infrastructure to support wireless services within a certain time period or absent a recognized justification.” They contend that the town violated this provision “through its continuing and unjustifiable failure to act on Plaintiff’s application to install a wireless communications facility—a 150 foot tall monopole on an approximately 48 acre horse farm—to address what the Town’s own wireless consultant confirmed is an area of deficient wireless service for residents and visitors in the Town and neighboring Fishkill.”
The factual history of dispute dates to August 2019 when Tarpon reportedly met with town representatives to discuss erecting the monopole after it secured both a ground lease option with the owner of the proposed site and Verizon as the “anchor” tower tenant.
At Wappinger officials’ direction, Tarpon submitted a detailed application, including a radiofrequency report, site selection analysis, environmental assessment, and map of the proposed location. It also asked the planning and zoning boards for the various permits and variances it needed to install the tower.
Over the following months, Tarpon fielded comments from various entities including the town planner, engineer, and fire prevention bureau, the complaint explains. Tarpon also allegedly submitted a number of design options for the monopole, a revised site plan addressing comments made, and a stormwater management plan. The complaint states that Tarpon attended meetings and workshops with town officials to move the project forward. It also reportedly agreed to extend the town’s action deadline, as set forth by Federal Communications Commission (FCC) rules, by an extra 45-days.
According to the plaintiffs, in May 2020, local “NIMBY” (not in my backyard) opposition grew. Citizens reportedly expressed concern over “generalized aesthetic objections, health and safety concerns regarding (radiofrequency) exposure, and conclusory assertions regarding diminution of property values.”
Over the summer, the plaintiffs made more planning submissions and engaged in further discussions with the town and stakeholders, and reportedly spent much time and money doing so. Yet, the plaintiffs’ efforts stalled out. The process culminated in September when, contrary to its former position, the planning board directed the town planner to prepare a positive declaration under New York’s State Environmental Quality Review Act, halting the project.
In turn, the plaintiffs avered that the town used these procedures to stall the process in response to NIMBY opposition. They argue that this violates “Congress’s express intent to promote the rapid deployment of wireless infrastructure to provide service to communities.” Thus, they seek an order that “will allow Tarpon to install the wireless facility to provide wireless services to the public in an area of admitted and acknowledged need.”
The plaintiffs are represented by Cuddy & Feder LLP.
