Case Law Update 2015

Zoning, SEQRA and Telecommunications Law: The firm’s litigation team, including Robert D. Gaudioso and Douglas W. Warden, successfully defended an Article 78 petition brought by neighboring property owners challenging the Town of New Castle’s zoning approval of a telecommunications tower and personal wireless service facility. The firm represented a wireless telecommunications tower developer and a major wireless telecommunications provider during the zoning process and in the litigation.

The Supreme Court of Westchester County, New York addressed several unsettled issues in the controversial arenas of wireless telecommunications siting and State Environmental Quality Review Act (“SEQRA”) litigation. SEQRA contains a strict requirement that any SEQRA negative declaration contain a reasoned elaboration in writing of the reasons for the determination. See 6 N.Y.C.R.R. Section 617.7(b). This decision represents the first instance where a New York court has held this requirement to be satisfied by the mere reference in a negative declaration to a completely separate document (a separate approval resolution in this case). The Decision also represents the first time that a court outside of the 4th Department has held that a municipal board’s failure to fill out parts 2 and 3 of the SEQRA Environmental Assessment Form (“EAF”) will not serve as a basis to overturn municipal action where the board has otherwise considered the factors listed in parts 2 and 3 of the EAF. In short, this decision represents several significant developments in New York SEQRA jurisprudence. Moreover, the Court addressed various federal law issues, including the proof of need for wireless service in the zoning context, alternative technologies such as Distributed Antenna Systems (“DAS”) and the federal Shot Clock Order. The current citation to the case is Lindenthal v. Town of New Castle, 48 Misc. 3d 1231(A).