Cuddy + Feder Obtains Second Circuit Victory for Homeland and Verizon in Cell Tower Zoning and Permitting Case

Cuddy + Feder LLP announced a victory on behalf of client Homeland Towers LLC and its tenant Verizon Wireless in obtaining permits for a 150‘ tower in the Town of East Fishkill, New York. On Nov. 10, 2015, the Second Circuit Court of Appeals affirmed the District Court’s Jan. 30, 2015, decision striking down the Town’s denial of Homeland and Verizon’s application. The tower is proposed by Homeland Towers and will be used by Verizon Wireless to provide reliable wireless services to the public along the Taconic State Parkway, as well as to commercial and residential areas of the community.

Cuddy + Feder LLP served as lead counsel. Attorneys Christopher B. Fisher, Anthony B. Gioffre, III, Andrew P. Schriever and Anthony F. Morando supported the zoning process and led the litigation team that resulted in a Federal Court decision issued by the US District Court for the Southern District of New York on Jan. 30, 2015. The District Court struck down the Town’s denial of Homeland and Verizon’s application under Section 332(c)(7) of the Telecommunications Act [TCA] and ordered the Town to issue any and all zoning and other permits for the facility within 30 days. Despite the District Court’s order, the Town refused to issue the required permits and instead, appealed the decision to the US Court of Appeals for the Second Circuit.

The Second Circuit, in affirming the District Court’s decision, adopted its reasoning and found the District Court “properly granted summary judgment in favor of Verizon and Homeland on their claim that the Town’s denial of their application constituted an effective prohibition of wireless services in violation of the TCA.” This decision is precedent for Section 332(c)(7) effective prohibition claims under the TCA and provides the first Second Circuit guidance in ruling there were significant gaps in service under the TCA.

“We are thrilled that the Second Circuit adopted Homeland and Verizon’s position regarding the significance of the service to be provided, looking at the gap’s physical size, the number of wireless users affected by the gap, the location of the gap, drop call or failure rates and other real metrics associated with providing reliable wireless services to the public. This is a critical advancement of the law, particularly when it comes to regulatory barriers to services being provided in all wireless infrastructure scenarios including towers, oDAS, small cells, whether it be coverage or capacity situations,” said Mr. Fisher.

“This case is also significant because the District Court decision was the first time that a Federal Court applied the Spectrum Act in the context of a new tower application. Congress passed the Spectrum Act to overcome bureaucratic delays in collocation of wireless infrastructure deployment, and the Court properly ruled it could not be used as a basis to deny a new tower application.”

About Cuddy + Feder

Cuddy + Feder LLP was founded in 1971 by William V. Cuddy and Robert Feder. The firm has offices in White Plains, Fishkill and New York City, as well as Stamford, CT and focuses its practice on Land Use & Zoning, Litigation, Real Estate/Transactional, Corporate, Private/Public Financing, Telecommunications Law, Environment & Sustainability, Trusts, Estates & Elder Law.