HomeMy WebLinkAbout20230439 233 Lake Verizon Antenna Rosenberg StandardsDOCUMENTATION OF PUBLIC UTILITY STATUS
and
OVERVIEW OF ROSENBERG DECISION
In Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364 (1993), the New York Court of
Appeals determined that cellular telephone companies are public utilities. The Court
held that proposed cellular telephone installations are to be reviewed by zoning boards
pursuant to the traditional standard afforded to public utilities, rather than the
standards generally required for the necessary approvals:
It has long been held that a zoning board may not exclude a
utility from a community where the utility has shown a need
for its facilities. There can be no question of [the carrier’s]
need to erect the cell site to eliminate service gaps in its
cellular telephone service area. The proposed cell site will
also improve the transmission and reception of existing
service. Application of our holding in Matter of Consolidated
Edison to sitings of cellular telephone companies, such as
[the applicant], permits those companies to construct
structures necessary for their operation which are prohibited
because of existing zoning laws and to provide the desired
services to the surrounding community. . . . Moreover, the
record supports the conclusion that [the applicant] sustained
its burden of proving the requisite public necessity. [The
applicant] established that the erection of the cell site would
enable it to remedy gaps in its service area that currently
prevent it from providing adequate service to its customers
in the . . . area.
Rosenberg, 82 N.Y.2d at 372-74 (citing Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598
(1978)).
This special treatment of a public utility stems from the essential nature of its
service, and the fact that a public utility transmitting facility must be located in a
particular area in order to provide service. For instance, water towers, electric switching
stations, water pumping stations and telephone poles must be in particular locations
(including within residential districts) in order to provide the utility to a specific area:
[Public] utility services are needed in all districts; the service
can be provided only if certain facilities (for example,
substations) can be located in commercial and even in
residential districts. To exclude such use would result in an
impairment of an essential service.
Anderson, New York Zoning Law Practice, 3d ed., p. 411 (1984) (hereafter "Anderson").
See also, Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364 (1993); Payne v. Taylor, 178 A.D.2d
979 (4th Dep't 1991).
Accordingly, the law in New York is that a municipality may not prohibit
facilities, including towers, necessary for the transmission of a public utility. In
Rosenberg, 82 N.Y.2d at 371, the court found that "the construction of an antenna tower ...
to facilitate the supply of cellular telephone service is a 'public utility building' within
the meaning of a zoning ordinance." See also Long Island Lighting Co. v. Griffin, 272 A.D.
551 (2d Dep't 1947) (a municipal corporation may not prohibit the expansion of a public
utility where such expansion is necessary to the maintenance of essential services).
In the present case, Verizon Wireless does not have reliable service coverage in
areas of the City of Saratoga Springs. The communications facility proposed is
necessary to remedy this service problem and to provide adequate and reliable wireless
telecommunications service coverage to this area. Therefore, Verizon Wireless satisfies
the requisite showing of need for the facility under applicable New York law.