# Opinion

> District Court, E.D. New York · March 31, 2026

URL: https://www.frixlaw.com/law-library/cases/11358254

## Case

- **Full name:** New Cingular Wireless PCS, LLC d/b/a AT&T Mobility v. The Village of Oyster Bay Cove, The Zoning Board of Appeals of the Village of Oyster Bay Cove, and The Planning Board of the Village of Oyster Bay Cove
- **Court:** District Court, E.D. New York
- **Decided:** March 31, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT For Online Publication Only
EASTERN DISTRICT OF NEW YORK
FILED
----------------------------------------------------------------------X
CLERK
NEW CINGULAR WIRELESS PCS, LLC
3/31/2026 12:32 pm
D/B/A AT&T MOBILITY,
U.S. DISTRICT COURT
Plaintiff, EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE

-against- MEMORANDUM & ORDER
22-cv-07807 (JMA) (ST)
THE VILLAGE OF OYSTER BAY COVE, THE
ZONING BOARD OF APPEALS OF THE VILLAGE
OF OYSTER BAY COVE, AND THE PLANNING
BOARD OF THE VILLAGE OF OYSTER BAY COVE,

Defendants.
----------------------------------------------------------------------X
AZRACK, United States District Judge:
In December 2022, Plaintiff New Cingular Wireless PCS, LLC d/b/a AT&T Mobility
(“AT&T”) filed this federal lawsuit against Defendants the Village of Oyster Bay Cove, the Zoning
Board of Appeals of the Village of Oyster Bay Cove, and the Planning Board of the Village of
Oyster Bay Cove, (collectively, “Defendants”). AT&T alleges that Defendants violated the
Telecommunications Act of 1996 (the “TCA”), 47 U.S.C. § 332, et seq., and New York law, when
they denied AT&T’s application to construct a wireless services facility on municipal property.
(See ECF No. 1 (“Compl.”).) AT&T seeks summary judgment on all claims brought pursuant to
the TCA and an injunction compelling Defendants to approve its application. (See ECF No. 55-
24 (“Mot.”).) For the reasons that follow, Plaintiff’s motion is GRANTED.
I. BACKGROUND
A. Factual Background
The following facts are taken from AT&T’s Rule 56.1 Statement, (ECF No. 55-1 (“Pl. 56.1
Stmt.”)); Defendants’ Response to AT&T’s Rule 56.1 Statement, (ECF No. 55-26 (“Def. Res. 56.1
56.1 Statement. Unless otherwise noted, each fact included below is undisputed.1

1. The Parties
Plaintiff AT&T is licensed by the Federal Communications Commission (“FCC”) to
provide wireless services. (Def. Resp. 56.1 Stmt. ¶ 1.) AT&T provides services through “an
interlocking network of line-of-sight transceiver facilities.” (Id. ¶ 2.) These transceivers send and
receive radio signals, which are “subject to disruption caused by topography, foliage, and man-
made structures, as well as range limitations inherent in the use of low-powered signals that permit
frequency reuse.” (Id. ¶ 3.) AT&T’s facilities enable it to provide access to 911 calls (at least
70% of which are made from wireless devices), as well as to support FirstNet, a national public
safety broadband network for first responders. (Id. ¶¶ 4, 7.)
Defendant the Village of Oyster Bay Cove (the “Village”) is an incorporated village located

within the Town of Oyster Bay in Nassau County, New York. (Compl. ¶ 2.) Defendant the Zoning
Board of Appeals of the Village of Oyster Bay Cove (the “Zoning Board”) is the Village’s duly
constituted zoning board of appeals, and the Planning Board of the Village of Oyster Bay Cove
(the “Planning Board”) is the Village’s duly constituted planning board, pursuant to New York
law. (Id. ¶¶ 3–4.)

1 Unless otherwise noted, a citation to a party’s Rule 56.1 statement indicates that the Court has deemed the relevant
fact undisputed. Any citation to a party’s Rule 56.1 statement incorporates by reference the underlying documents
cited in the statement. Where relevant, the Court may cite directly to an underlying document. The Court notes that,
although Defendants refer to a “Counter Rule 56.1 Statement” in their memorandum of law opposing Plaintiff’s
motion, Defendants did not in fact submit a Rule 56.1 statement of their own and instead cite directly to the record in
their opposition brief. (See ECF No. 55-25 (“Def. Opp.”) at 10). Defendants did submit a response to Plaintiff’s
Rule 56.1 statement. (See Def. Res. 56.1 Stmt.) The Court also notes that many of the responses where Defendants
purport to deny one of Plaintiff’s statements of material fact are improper in that they either do not actually controvert
the facts set forth in Plaintiff’s 56.1 Statement, or they purport to deny facts properly set forth by Plaintiff’s 56.1
statement with a citation to evidence that does not support the purported denial. See Potash v. Fla. Union Free Sch.
Dist., 972 F. Supp. 2d 557, 564 (S.D.N.Y. 2013). The Court deems undisputed Plaintiff’s facts that are supported by
citations to record evidence and are not specifically disputed with relevant citations to admissible record evidence.
See Santander Consumer USA, Inc. v. City of Yonkers, No. 22-cv-8870, 2024 WL 4817649, at *1 (S.D.N.Y. Nov.
18, 2024) (citing Mae v. Quickway Estates LLC, No. 22-cv-3048, 2023 WL 6162927, at *1 n.2 (S.D.N.Y. Sept. 21,
2023)).
In the Village of Oyster Bay Cove, there is an area adjacent to Route 25A—including a

1.14 mile stretch of road between Berry Hill Road and Cove Road, and a 0.4 mile stretch to the
south of the intersection of Berry Hill Road and Route 25A—where AT&T is unable to provide
reliable access to services from its network to either in-building or in-vehicle users (the “service
gap” or “gap”). 2 (Def. Res. 56.1 Stmt. ¶¶ 10–12, 63.) Over 16,000 vehicles a day travel through
the service gap. (Id. ¶ 18.)
Since at least 2021, AT&T has sought to remedy the service gap by constructing a wireless
services facility (the “Facility”) at the Village’s police department headquarters, located at 30
Northern Boulevard, Oyster Bay, New York (the “Site”). (Id. ¶ 23.) The Site is “municipal
property located in the center of the service gap in an area otherwise consisting of single-family
residential property.” (Id. ¶ 24.) The Village is zoned entirely residential, and therefore contains

no commercial, industrial, institutional or other nonresidential areas where a facility could be
placed away from residential users. (Id. ¶¶ 22.)
The Facility would consist of an 85-foot-tall monopole disguised as a pine tree (a
“monopine”) and be placed within a fenced area at the rear of the Site. (Id. ¶ 25.) The total height
of the Facility would be 85 feet above ground level, with an antenna height of 75 feet. (Id.) There
is a mixture of mature deciduous and evergreen trees on the Site ranging from 75 to 90 feet in
height, with foliage underneath the tree canopy.3 (Id. ¶ 27.) The Facility would not be widely
visible from adjacent neighborhoods nor from the Village in general. (Id. ¶ 73.)

2 As explained infra, Defendants dispute the existence of a “service gap” and claim that AT&T should have provided
additional evidence to confirm the gap in service. (See, e.g., Def. Res. 56.1 Stmt. ¶¶ 10–12; Def. Opp. at 7.) However,
Defendants do not cite to any evidence that AT&T can currently provide reliable service in the relevant area, and
AT&T produced propagation plots and drive tests showing that it cannot. (See Def. Res. 56.1 Stmt. ¶ 63; see infra
Part II.B). Accordingly, the Court deems it undisputed that there is a “service gap.”
3 Here, as in other instances, Defendants do not dispute the existence of trees of that height on the Site—but instead
claim that photo simulations provided by AT&T “clearly demonstrate” the Facility would “tower over nearby trees.”
On November 16, 2021, the Village Board of Trustees adopted a resolution authorizing the

Village to enter a lease with AT&T to construct, maintain, and operate the proposed Facility. (Def.
Res. 56.1 Stmt. ¶¶ 33–34; see also ECF No. 55-11.) As a condition for the lease, the Board of
Trustees limited the height of the monopole to 85 feet, the minimum height needed to remedy the
service gap, and required that it be covered by “extensive monopine camouflage.” (Def. Res. 56.1
Stmt.¶ 26.) The lease required AT&T to obtain necessary government approvals, including site
plan approval from the Planning Board and variances from the Zoning Board. 4 (Id. ¶¶ 34–39.)
On December 6, 2021, AT&T applied for the necessary approvals (the “Application”). (Id.
¶ 43.) The Application included an explanation of the factual and legal grounds for approval and
a site plan of the proposed Facility. (Id. ¶ 44; see also ECF No. 55-6.) The Application also
included: (i) a zoning, planning and visual impact analysis, containing photo simulations of the

Facility; (ii) an affidavit and report from Neil Arceo, a qualified radio frequency (“RF”) engineer,
containing predictive “propagation maps”; (iii) a certificate of compliance with FCC regulations;
(iv) a building permit application; (v) an environmental assessment form documenting that the
Facility would not have a significant adverse environmental impact pursuant to the State
Environmental Quality Review Act; and (vi) an “alternatives analysis” conducted by a site
acquisition specialist. (Def. Res. 56.1 Stmt. ¶¶ 44–49; see also ECF Nos. 55-6, 55-7, 55-8, 55-9,
55-10.)

(Def. Res. 56.1 Stmt. ¶ 27.) Because Defendants failed to specifically controvert the fact in question, and that fact is
supported by admissible record evidence, the Court deems it undisputed. (See supra n.1.)
4 The variances needed were to: (1) increase the Police station’s lot area coverage by approximately 0.1%; (2) reduce
rear-yard setback by 15 feet; (3) exceed the height to setback ratio variance; and (4) increase the height of a screening
fence from six feet to eight feet. (Def. Res. 56.1 Stmt. ¶ 40.) Because the Facility would be housed on municipal
property, AT&T was not required to obtain a special use permit. (Id. ¶ 36.)
corresponding affidavit and report, demonstrate both the existing gap in coverage and the extent

to which the Facility will improve coverage at two frequency bands, 700 MHz and 1900 MHz.5
(Def. Res. 56.1 Stmt. ¶¶ 13–14; ECF No. 55-9 (“Arceo Aff.”) ¶¶ 5–6.) The color-coded maps
demonstrate signal strength for in-building coverage (green), in-car coverage (yellow), outdoor
coverage (blue), and no reliable coverage (gray). (Arceo Aff. ¶ 6.) The report also includes a
“coverage summary table” showing projected in-building and in-vehicle coverage with the
Facility. (Id. ¶ 7.) The table shows the Facility would “introduce about 0.97 mile of new in-
vehicle coverage at 700 MHz along the major section of N Hempstead Turnpike” and about 0.38
miles of in-building coverage. (Id. ¶¶ 8, 10.) For comparison, the maps also depict what the
projected coverage would be if the antenna height was lowered from the proposed 75 feet to 65
and 55 feet. (Id. ¶¶ 7-8, 10; see also id., Ex. D-J). Those aspects of the maps demonstrate that

lowering the antenna height reduces both in-building and in-vehicle coverage within the service
gap. (Id.) Specifically, if reduced to 65 feet, in-vehicle coverage would decrease by approximately
34% for 700MHz and 24% for 1900MHz. (Id. ¶ 8.) If further reduced from 75 to 55 feet, in-
vehicle coverage would decline by approximately 59% for 700MHz and 44% for 1900MHz. (Id.)
AT&T’s Application also stated that the Facility was chosen as the least intrusive option
and would have limited visual impact on the Village and the surrounding community. (Def. Res.
56.1 Stmt. ¶ 44; ECF No. 55-6 at 24.) To support that conclusion, AT&T submitted photo
simulations of the proposed Facility prepared by an environmental engineer. (See ECF No. 55-8;
Mot. at 15; see Def. Res. 56.1 Stmt. ¶¶ 73–78.) The accompanying visual analysis notes that the

Facility was specifically designed “to resemble an evergreen tree of typical height for the area”

5 700 MHz is the lowest frequency band at which AT&T operates. (Def. Res. 56.1 Stmt. ¶ 13.) Higher-frequency
signals do not propagate as far as lower-frequency; therefore, areas of inadequate signal strength are more widespread
at higher frequencies, such as 1900 MHz, 2100 MHz, and 2300 MHz. (Id. ¶¶ 13–16.)
56.1 Stmt. ¶¶ 26–27.)

AT&T’s “alternatives analysis,” conducted by site acquisition specialist Victoria Brennan,
explains that the chosen Site—which would place the Facility “nested in the trees along a heavily
traveled thoroughfare”—was also chosen as the “least intrusive candidate.” (ECF No. 55-10
(“Brennan Aff.”) ¶¶ 8, 10.) The report explains that, given the predominantly residential nature of
the area, there were no existing structures tall enough to support an antenna that could remedy the
gap, and few sites that could accommodate a tower. (See id. ¶¶ 9, 11.) The report also notes that
all viable tower sites require a “a willing landowner with whom commercially reasonable lease
terms may be negotiated,” and explains that a church across from the proposed Site was deemed
unsuitable because the church was “not interested in having a cell site on the property” (and,
moreover, was considered less preferable under Village Code than the chosen proposal). (Id. ¶

10; see also Def. Res. 56.1 Stmt. ¶ 68.)
4. The Village’s Review of AT&T’s Application
The filing of AT&T’s Application commenced the running of the Federal Communications
Commission (“FCC”) “shot clock” rule, 47 C.F.R. § 1.6003(c), (e), which defines 150 days as the
“presumptively reasonable time” within which all Defendants were required to render their
decisions on the Application. (Def. Res. 56.1 Stmt. ¶ 51.) Under the “shot clock,” the initial time
for deciding the Application would have expired on or about May 5, 2022. (Id.)
The Village retained its own wireless consultant, CityScape Consultants, LLC, in
reviewing the application, and in January 2022, sent a letter prepared by CityScape to AT&T,

which commented on the Application and requested supplemental information. (Id. ¶ 52; see ECF
No. 55-12, Ex. A.) AT&T submitted responses to Defendant’s queries and additional
12, Exs. C–E.)

After multiple extensions of the Shot Clock—with a final agreed-upon deadline of
November 23, 2022—the Planning Board and Zoning Board each held two hearings on the
application. (Def. Res. 56.1 Stmt. ¶¶ 54-60.) The Planning Board held hearings on August 4,
2022, and October 6, 2022, without reaching a decision. (Id. ¶¶ 56, 59, 62; see also ECF No. 55-
32 (“8-4-22 Tr.”); ECF No. 55-33 (“10-6-22 Tr.”).) The Zoning Board held hearings on August
16, 2022, and November 22, 2022. (Def. Res. 56.1 Stmt. ¶¶ 57, 60; see also ECF Nos. 55-13 and
55-29 (together, “8-16-22 Tr.”); ECF Nos. 55-14 and 55-34 (together, “11-22-22 Tr.”).) At the
November 22, 2022, hearing, the Zoning Board voted to deny AT&T’s Application (the “Denial”),
and it issued a written decision denying the Application on April 23, 2023. (Def. Res. 56.1 Stmt.
¶ 61; see ECF No. 55-5 (“Bd. Dec.”).) The Planning Board still has not acted on the Application.

(Id. ¶ 62.)
5. The Hearing Record
At the hearings, AT&T’s RF engineer spoke about the service gap shown in the
propagation maps, and how the Facility was the minimum height needed to remedy it. (Id. ¶¶ 64–
65; see also, e.g., 8-16-22 Tr., 26:20–36:13.) AT&T also expanded on the Application’s
alternatives analysis, explaining why various alternative sites were not viable and could not
remedy the gap. (Def. Res. 56.1 Stmt. ¶¶ 66–68.) For example, during the first Planning Board
and Zoning Board meetings, each Board asked about the potential of placing an antenna on a water
tower in a neighboring town. In response, AT&T submitted an additional alternatives analysis and

RF report explaining that the water tower was too short and too distant to remedy the service gap,
and too close to an existing AT&T facility to integrate into the AT&T network. (Id. ¶¶ 66–67;
ECF No. 55-18, Ex. D ¶ 8; id. Ex. E, 3-4; see also 11-22-22 Tr., 14:14–16:21.)
“outdoor distributed antenna system,” or ODAS, as an alternative to the Facility. (See, e.g., 8-16-

22 Tr., 31:22–32:8, 36:14–37:11; 11-22-22 Tr., 17:1–18:7; Def. Res. 56.1 Stmt. ¶¶ 81–92.) An
ODAS is a network of interdependent “nodes” which are typically mounted on existing utility
poles at heights of twenty to forty feet. (Def. Res. 56.1 Stmt. ¶ 81.) In response to questions
raised at the first hearings, AT&T submitted additional documentation explaining why an ODAS
system would not provide sufficient coverage to remedy the in-building service gap, as the
relatively short poles could not “provide reliable in-building service to homes on large lots set back
from roads in a heavily-wooded setting.” (Id. ¶ 81; see also ECF No. 55-18, Ex. E ¶ 5; 11-22-22
Tr., 17:1–18:7.) Moreover, because some roads in the service gap are private and lack existing
utility poles, installing nodes there would require AT&T to secure individual leases and municipal
approvals for each location. (Def. Res. 56.1 Stmt. ¶¶ 84, 89–91.) ODAS nodes also lack adequate

backup power, which are critical to public safety uses.6 (Id. ¶ 83.)
Several members of the public spoke before the Planning and Zoning Boards and voiced
concerns regarding the Facility. Several residents challenged AT&T’s conclusions derived from
the propagation maps and questioned the existence of a service gap that the proposed Facility
would address. For example, the Zoning Board chairperson, Sheryl Lerner, testified that several
Board members commented that AT&T’s maps showed a broader coverage gap that the Facility

6 In support of its summary judgment motion, AT&T submitted two expert reports, prepared by a landscape architect
and RF engineer, which further explain why an ODAS system is not a viable alternative and would not remedy the
service gap. (See ECF No. 55-20 (“Allen Report”) at 27–29; ECF No. 55-23 (“Villecco Report”) at 28–30.)
Defendants argue that these “belatedly submitted reports” are “worthless to resolving [AT&T’s] failure to
meaningful[sic] investigate less intrusive alternatives.” (Def. Res. 56.1 Stmt. ¶ 82.) Although Defendants are correct
that these reports are not relevant to the “substantial evidence” analysis (which is limited to the record before the
Zoning Board), the reports are relevant to the Court’s analysis of whether the denial constitutes an effective prohibition
of service under the TCA. See New Cingular Wireless PCS, LLC v. Inc. Vill. of Muttontown, No. 22-cv-5524, 2025
WL 2467044, at *6 (E.D.N.Y. Aug. 27, 2025) (“For a prohibition of services claim, district courts may consider
‘additional evidence beyond that which was introduced at the local level . . . and on a de novo basis.’”) (citing Green
Mountain Realty Corp. v. Leonard, 750 F.3d 30, 39 (1st Cir. 2014).
42:24. Dec. 6, 2023.) Others countered AT&T’s evidence of poor signal strength, citing their own

personal experience successfully making calls. (Def. Res. 56.1 Stmt. ¶ 96; see e.g., 11-22-22 Tr.,
135:9–136:16; Lerner Dep. 45:7; see also 8-16-22 Tr. 143:3–144:3.)
Residents also expressed concern that the Facility would be an “eyesore” for the
surrounding area, that it would be even more visible in winter with less tree coverage, and that
surrounding property values would decline. (See, e.g., 8-16-22 Tr. 145:11–145:24; see id. 88:13–
88:25, 115:12–119:2.) Some residents also submitted exhibits in opposition to the Application.
Two nearby homeowners submitted “adverse aesthetic impact letters” claiming that they would be
able to see the tower from their homes and that their homes’ values would decrease. (See ECF
No. 55-36, Ex. A.) Residents also submitted photographs and drone footage taken from nearby
homes. (ECF No. 55-40; see, e.g., 11-22-22 Tr., 76:14–82:23; id. 108:2–115:20; 10-6-22 Tr. 93:1–

94:24).
David Savetz, a nearby homeowner, submitted an appraisal report prepared by appraiser
Oleg Sorkin. Relying on a property in a neighboring town following the installation of a water
tower, Sorkin opined that, if the proposed Facility were constructed, Savetz’s home value could
decline by as much as 9.5% to 20%.7 (See ECF No. 55-31, Ex. B; Bd. Dec. at 8–9; see also 8-4-
22 Tr., 89:1–89:11.). AT&T submitted both a response and its own “rebuttal appraisal report.”
(ECF No. 55-31 at 5–6; see id. Ex. C.) AT&T argued that Sorkin’s analysis was unreliable because
the purported “comparable” property was not, in fact comparable—as it was located in a different
Village, school district, and on materially different acreage—and that the “comparable” Facility,

a large and highly prominent water tower, was also not comparable to the proposed “stealth

7 Savetz did not submit the report directly to the Board, but AT&T placed it into the record in responding to Sorkin’s
findings.
more analogous facilities and concluded that installations of the type proposed do not adversely

impact property values. (Id. at 6.)
6. The Zoning Board’s Denial
Although the Zoning Board voted to deny AT&T’s application at its November 22, 2022
hearing, it did not issue a written decision until nearly five months later, on April 14, 2023. (Def.
Res. 56.1 Stmt. ¶ 61; see Bd. Dec.). In its decision, the Zoning Board stated:
The Board understands that, in accordance with Federal law and judicial precedent,
it is the Applicant’s burden to demonstrate based upon substantial evidence in the
record that there is a ‘public necessity’ for the proposed facility in that: (i) there are
significant gaps in coverage within the geographic range to be served by the project;
and (ii) that the wireless facility in the specific location chosen is the least intrusive
means of providing coverage within the affected area . . . While the Board
recognizes that the applicant does not need to guarantee that the facility will provide
perfect coverage within the Village, the Applicant must demonstrate that coverage
will be significantly improved.

(Bd. Dec. at 6 (emphasis added).)
The Zoning Board concluded that AT&T failed to meet that standard. (Id.) Initially, the
Board determined that AT&T “failed to meet the threshold requirement for its application in that
it has failed to demonstrate a lack of coverage.” (Id. at 7.) The Board reasoned that Arceo testified
“he had prepared the RF propagation maps . . . using computer simulation software and not actual
drive test data . . . for only the 700MHz and 1900 MHz bands.” (Id.) The Board also stated that,
based on its own review of the propagation maps, it had determined “there would be minimal if
any increase in coverage to those areas on the map shown in gray as having ‘no reliable service’”
were the Facility installed. (Id.) The Board cited members’ comments that there appears to be
only a “‘very slight’” increase between the existing and projected coverage maps, and that the two
diagrams “‘look the same’” and “do[] not show ‘a lot of additional coverage.’” (Id.) The Board
also cited members’ perceptions that the maps also showed only a “nominal” improvement in
AT&T “failed to demonstrate why a monopine of a lower height could not be constructed.” (Id.)

Next, the Zoning Board found that AT&T had failed to “fully address[] the feasibility of
other technologies,” such as the potential use of an ODAS system. (Id.) The Board explained that
its members had requested more information on the ODAS alternative, but that AT&T provided
“no technical reports or data” supporting its claim that a shorter monopine and DAS system would
provide worse coverage, and noted that Arceo had conceded that AT&T had not “conducted such
design study to determine whether a DAS system could indeed help provide coverage via a less
intrusive means.” (Id. at 7–8 (citing ECF No. 55-18, Ex. E ¶ 5).)
Finally, the Board found that AT&T had failed to prove the Facility would not
“significantly and adversely affect views from residential properties in the Village” or impact
property values. (Id. at 8–9.) The Board stated that it was in receipt of several letters from Village

residents claiming the Facility would “fundamentally alter” surrounding residential properties. (Id.
at 8.) The Board reasoned that, “while the Applicant performed a visual sight test using a balloon
for visibility testing, no notice was given to this Board or to the surrounding residents of the sight
test and no views from the adjoining residential properties were taken.” (Id.) The Board also
noted that an adjoining property owner submitted an appraisal showing that “a reduction in the
value of his home as being approximately 9.5%.” (Id. at 8–9.) Although the Board noted the
appraisal’s limitations (namely, that the comparator property used by the appraiser was not actually
comparable “due to differences such as school district, acreage and its location outside the
Village”), the Board found that the appraiser had accounted for some limitations and that the report

still “demonstrates that the public may be disinclined to purchase a home near a cell tower.” (Id.)
In sum, the Board asserted that because AT&T failed to show a lack of coverage, the
necessity of the proposed Facility height, and the absence of available alternatives, it had “not
any of the criteria under the Code for its requested height and setback variances.” (Id. at 8.)

B. Procedural History
AT&T filed its Complaint on December 22, 2022. (See Compl.) In its Complaint, AT&T
alleges violations of TCA Sections: 332(c)(7)(B)(ii) (“Count I”); 332(c)(7)(B)(i)(II) (“Count II”);
and 332(c)(7)(B)(iii) (“Count III”), as well as Article 78 of the New York Civil Practice Laws and
Rules (“CPLR”) (“Count IV”). (See id.) Defendants answered the Complaint on February 24,
2023. (ECF No. 19.) Plaintiff now moves for summary judgment. (See Mot at 1.) The fully
briefed motion was filed on July 18, 2025. (See ECF No. 55.)

II. DISCUSSION
A. Applicable Law
1. Summary Judgment Standard
Summary judgment is proper only when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Capitol
Recs., LLC v. Vimeo, Inc., 125 F.4th 409, 418 (2d Cir. 2025) (quoting Fed. R. Civ. P. 56(a)). “A
dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such
that a reasonable jury could decide in the non-movant’s favor.” Beyer v. Cnty. of Nassau, 524
F.3d 160, 163 (2d Cir. 2008). In considering a summary judgment motion, the Court “is required
to view the record in the light most favorable to the party against which summary judgment is

contemplated and to resolve all ambiguities and draw all factual inferences in favor of that party.”
NetJets Aviation, Inc. v. LHC Commc’ns, LLC, 537 F.3d 168, 178 (2d Cir. 2008). If the moving
party meets its burden of demonstrating the absence of a disputed issue of material fact, then the
burden shifts to the nonmoving party to present “specific facts showing a genuine issue for trial.”
Sheet Metal Workers’ Nat’l Pension Fund v. Accra Sheetmetal, LLC, 993 F. Supp. 2d 245, 248
“conclusory allegations or unsubstantiated speculation” to defeat a motion for summary judgment.

Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
“On a motion for summary judgment, a fact is material if it might affect the outcome of the
suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene
of City of New York, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). “The
role of the court is not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (citing Wilson v. NW
Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Therefore, the Court’s goal at summary judgment
“should be ‘to isolate and dispose of factually unsupported claims.’” Orange Cnty.-Poughkeepsie
Ltd. P’ship v. Town of E. Fishkill, 84 F. Supp. 3d 274, 294 (S.D.N.Y. 2015), aff’d sub nom.,
Orange Cnty.-Cnty. Poughkeepsie Ltd. P’ship v. Town of E. Fishkill, 632 F. App’x 1 (2d Cir.

2015) (citing Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004)).
2. The Telecommunications Act of 1996
The Telecommunications Act of 1996 (“TCA”), codified in part at 47 U.S.C. § 332, was
enacted “to promote competition and higher quality in American telecommunications services and
to encourage the rapid deployment of new telecommunications technologies.” City of Rancho
Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115 (2005) (citations and quotation marks omitted).
The TCA was intended “to provide for a pro-competitive, de-regulatory national policy framework
designed to accelerate rapidly private sector deployment of advanced telecommunications and
information technologies and services . . . by opening all telecommunications markets to

competition[.]” Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir. 1999)
(internal citations and quotation marks omitted.) “One of the means by which [the TCA] sought
to accomplish these goals was reduction of the impediments imposed by local governments upon
end, the TCA “preserved the authority of state and local governments over zoning and land use,

but imposed limitations on that authority.” New York SMSA Ltd. P’ship v. Town of Clarkstown,
612 F.3d 97, 101 (2d Cir. 2010).
a. Effective Prohibition Provision
Under the TCA, local governments retain discretionary authority regarding the “placement,
construction, and modification of personal wireless service facilities” in their towns. 47 U.S.C. §
332(c)(7)(A). However, the TCA provides that “the regulation of the placement, construction, and
modification of personal wireless service” cannot “prohibit or have the effect of prohibiting the
provision of wireless services.” Id. § 332(c)(7)(B)(i)(II). This provision, known as the effective
prohibition provision, “precludes denying an application for a facility that is the least intrusive
means for closing a significant gap in a remote user’s ability to reach a cell site that provides access

to land-lines.” Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999). “To prevail on
an effective prohibition claim, a plaintiff must demonstrate both that a significant gap exists in
wireless coverage and that the proposed facility is the least intrusive means to close that gap.”
Indus. Tower & Wireless, LLC v. Roisman, No. 24-cv-2512, 2025 WL 3002379, at *1 (2d Cir.
Oct. 27, 2025) (citing Willoth, 176 F.3d at 643; see also, e.g., T-Mobile Northeast LLC v. Town
of Ramapo, 701 F. Supp. 2d 446, 456-57 (S.D.N.Y. 2009) (citing Willoth, 176 F.3d at 643).
“Although the TCA does not specify a remedy for violations of [this] subsection . . . the majority
of district courts that have heard these cases have held that the appropriate remedy is injunctive
relief in the form of an order to issue the relevant permits.” T–Mobile Northeast LLC v. Inc. Vill.

of E. Hills, 779 F. Supp. 2d 256, 275 (E.D.N.Y. 2011) (internal citation and quotation marks
omitted).
The TCA also requires that “[a]ny decision by a State or local government to deny a request

to place, construct, or modify personal wireless service facilities” must be: (i) “in writing” and (ii)
“supported by substantial evidence contained in a written record.” See 47 U.S.C. §
332(c)(7)(B)(iii). “Substantial evidence requires less than a preponderance of the evidence, but
more than a scintilla of evidence, and requires evaluation of the entire record.” Indus. Tower &
Wireless, LLC, 2025 WL 3002379, at *3 (citing Cellular Tel. Co., 166 F.3d at 494). In determining
whether a denial was supported by substantial evidence, “the record should be viewed in its
entirety, including evidence opposed to the [local government’s] view.” Cellular Tel. Co., 166
F.3d at 494. The Court must overturn a local government’s decision “if it cannot conscientiously
find that the evidence supporting that decision is substantial, when viewed in the light that the
record in its entirety furnishes, including the body of evidence opposed to the [local government’s]

view.” New York SMSA Ltd. P’ship v. Inc. Vill. of Mineola, No. 01-cv-8211, 2003 WL
25787525, at *5 (E.D.N.Y. Mar. 26, 2003). On the other hand, “[i]f the Court finds that even one
reason given for the denial is supported by substantial evidence, the decision of the local zoning
body cannot be disturbed.” Id.
“When evaluating the evidence, state and local zoning laws govern the weight to be given
the evidence.” Cellular Tel. Co., 166 F.3d at 494. Under New York law, wireless providers are
public utilities for the purposes of zoning applications. Id. (citing Cellular Tel. Co. v. Rosenberg,
82 N.Y.2d 364, 371 (1993)). As such, providers’ applications are reviewed under New York’s
“public utility standard,” which provides that, “a local zoning board must consider whether the

public utility has shown a ‘need for its facilities’ and whether the needs of the broader public would
be served by granting the variance.” Id. (quoting Consol. Edison Co. v. Hoffman, 43 N.Y.2d 598
(1978)).
AT&T argues that the Denial constitutes an effective prohibition of services, in violation
of 332(C)(7)(B)(i)(II) of the TCA, and was not supported by substantial evidence, in violation of
§ 332(c)(7)(B)(iii) of the TCA. (Mot. at 1). The Court agrees and will address each argument in
turn.
1. Effective Prohibition Claim
AT&T argues that the Denial had the effect of a prohibition of services because the
identified service gap is significant and Defendants failed to show a viable, available, less intrusive
alternative. (Mot. at 18-23.) The Court agrees.
a. Significant Gap in Coverage
To establish the first prong of an effective prohibition claim, a plaintiff must demonstrate

the existence of a significant gap in wireless coverage. The determination of whether such a gap
exists is fact-bound, and “[t]here are no magic numbers or percentages that constitute a significant
gap.” Orange Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 297 (citing Liberty Towers, LLC
v. Zoning Hearing Bd. of Falls Tp., Bucks Cnty., Pa., No. 10-cv-7149, 2011 WL 6091081, at *8
(E.D. Pa. Dec. 6, 2011)). In assessing whether a coverage gap is significant, courts consider factors
such as the physical size of the gap, the geographic area affected, the number of users impacted,
and whether all of the carrier’s users in the area are similarly affected by the gap. See Omnipoint
Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49 (1st Cir. 2009). Courts also consider whether
the alleged gap impairs the plaintiff’s ability to provide reliable outdoor, in-vehicle, and in-

building coverage. Orange Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 297. To make these
determinations, courts commonly rely on RF reports, expert testimony, propagation maps, and
field test data. Id. at 298.
propagation maps—demonstrate the existence of a significant gap in the relevant service area. The

initial RF analysis submitted with the Application identified an over one-mile stretch of road
between Berry Hill Road and Cove Road, traveled by over 16,000 vehicles per day, where AT&T
is unable to provide reliable in-vehicle service. (See Pl. 56.1 Stmt. ¶¶ 10, 18 (citing Arceo Aff. ¶¶
4, 9, Ex. C, D).) It also identified an additional 0.4-mile stretch south of that intersection where
AT&T cannot provide reliable in-building coverage. (Id. ¶ 11.) That analysis included
propagation maps documenting gaps in current coverage. (Arceo Aff. Ex. C, D.). AT&T also
provided the Boards with multiple additional RF analyses and propagation maps, as well as expert
testimony from Arceo confirming the gap. In connection with the instant motion, AT&T submitted
an additional expert report from another qualified RF engineer incorporating RF modeling and
drive testing, which confirms the existence and scope of the gap. (See Villecco Report at 8–9, 11,

16.)
Courts have repeatedly found gaps of comparable size and impact to be “significant” under
the first prong of the effective prohibition analysis. See, e.g., Orange Cnty.-Poughkeepsie Ltd.
P’ship, 84 F. Supp. 3d at 299 (finding “significant” a gap comprised of two stretches of highway
that were 1.6 and two miles long and used by approximately 35,000 commuters per day); New
York SMSA Ltd. P’ship v. Vill. of Floral Park, 812 F. Supp. 2d 143, 154 (E.D.N.Y. 2011) (finding
“significant” a gap measuring “approximately 1.2. miles north to south . . . and approximately .6
miles east to west”). Here, the gap is not confined to a remote or “sparsely populated rural area”;
rather, it affects a heavily trafficked area, impacting thousands of daily commuters along Route

25A. See Willoth, 176 F.3d at 643–44 (explaining that “[w]here the holes in coverage are very
limited in number or size (such as the interiors of buildings in a sparsely populated rural area, or
confined to a limited number of houses or spots as the area covered by buildings increases) the
necessary to fill these holes will not amount to a prohibition of service”).

Defendants do not seriously dispute that, if established, the gap would be “significant.”
Instead, Defendants challenge the reliability of AT&T’s evidence demonstrating the existence of
a gap. Specifically, Defendants contend—as the Zoning Board concluded in its Denial—that
AT&T’s showing is insufficient because: (1) its propagation studies analyze only certain
frequencies and therefore do not demonstrate a lack of signal strength across all relevant
frequencies; and (2) the maps are computer-generated and are not supported by adequate “real
world” testing data. 8 (Def. Opp. at 5–8, 14.) Both arguments fail.
First, it is undisputed that 700 MHz is the lowest frequency band at which AT&T operates
to provide access to its network. (Def. Resp. 56.1 Stmt. ¶ 13.A). It is also undisputed that higher-
frequency signals propagate over shorter distances than lower-frequency signals. (Id. ¶ 13.)

Accordingly, if a gap exists at lower frequencies, it necessarily would be equal or greater at higher
frequencies. (Id. ¶ 13.B.) AT&T was not required to model every possible frequency band to
establish a coverage gap, as including higher bands would only confirm the existence of the gap.
See, e.g., Orange Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 299 (provider established the
proposed facility was necessary to provide coverage at 700, 850, and 1900 MHz).9

8 Defendants also claim, in response to multiple of AT&T’s 56.1 statements, that “[t]he unreliable propagation maps
reflect the fact that reliable access is provided” to both in-vehicle and in-building users. (See, e.g., Def. Resp. 56.1
Stmt. ¶¶ 10–12.) For those propositions, Defendants cite, without explanation, “See Exhibit C; Exhibit G at
VOBC.1389–1391.” (Id.) Defendants’ “Exhibit C” is AT&T’s own propagation maps and Defendants’ “Exhibit G”
contains a citation to AT&T’s counsel’s explanation of those maps at the Zoning Board’s November 22, 2022 hearing.
Defendants’ citations do not support the proposition for which they are offered and therefore fail to raise a genuine
dispute of material fact.
9 Defendants’ reliance on Crown Castle NG LLC v. Town of Hempstead, No. 17- cv-3148, 2018 WL 6605857, at *8
(E.D.N.Y. Dec. 17, 2018), is misplaced. In that case, the provider premised its alleged coverage gap on an inability
to provide “4G LTE” service, and the court held no actionable gap existed because voice calls could still be carried
over 3G networks. Id. (explaining that “[a] gap in 4G coverage does not establish that the target area is underserved
by voice cellular telephone service,” and that the TCA affords heightened protection only where there is a deficit in
“‘the ability of wireless telephones to have access to land-lines’”) (quoting Willoth, 176 F.3d at 643). That reasoning
does not apply here. As AT&T explains, the distinction between 3G and 4G is conceptually different from the use of
different frequency bands. (Mot. at 5, n.7.) Moreover, AT&T does not premise its Application on any single
better. Defendants do not identify any admissible evidence in the record contradicting AT&T’s

propagation maps or suggesting that the gap is materially different from what AT&T’s RF analyses
demonstrate. Nor do they offer any evidence that undermines the reliability of the maps. Instead,
Defendants rely, as the Board did, on residents’ lay observations about coverage and subjective
assertions that the maps are confusing and “look the same.” (Bd. Dec. at 7–8; see Def. Res. 56.1
Stmt. ¶ 96 (citing Lerner Dep. 45:7).) Those assertions are plainly insufficient to rebut
uncontroverted evidence from AT&T’s qualified RF engineers. For example, the residents’
testimony about making calls or having coverage does not specify key details such as their exact
location at the time of call, the time of day, the device model used, or whether they were even
using AT&T. (See e.g., 11-22-22 Tr., 135:9–136:16; Lerner Dep. 45:7; 8-16-22 Tr. 143:3–144:3).
Moreover, the mere fact that some users can make calls does not undermine AT&T’s claim that it

lacks reliable service in the area, even if it were supported by competent evidence (which it is not
here). Several courts in this Circuit have held that a gap in service under the TCA must be
evaluated from the perspective of the provider, so the fact “that that other wireless providers
already have service in that area” does not defeat a provider’s coverage gap claim. See Inc. Vill.
of E. Hills, 779 F. Supp. 2d at 272 (citing MetroPCS New York, LLC v. Vill. of E. Hills, 764 F.
Supp. 2d 441, 456 (E.D.N.Y. 2011)).
Defendants also argue, as the Zoning Board concluded in its Denial, that AT&T should
have submitted additional evidence in the form of “dropped call rates” or “actual drive test data.”10

frequency band. Rather, as AT&T’s RF engineer explains, AT&T analyzed 700 and 1900 MHz because those are the
primary and most widely used frequency bands on which AT&T relies to provide service, and because 700 MHz is
the lowest frequency band at which AT&T operates to provide reliable access to its network. (Pl. 56.1 Stmt. ¶ 13.A;
see ECF No. 55-18, Ex. E ¶ 7.)
10 Defendants also argue that AT&T should have provided “substantiated NTSB data as to the amount of traffic on
Route 25A.” (Def. Opp. at 7.) However, Defendants do not dispute that “[o]ver 16,000 vehicles a day travel through
the Service Gap on Rt. 25A.” (Def. Res. 56.1 Stmt. ¶ 18.)
the submission of propagation maps, not drive-test data, and neither Board requested drive testing

results during the application process. See, e.g., Village of Oyster Bay Cove, N.Y., Code § 320-
28(I), https://ecode360.com/10369297 (providing that applicants must provide “‘[b]efore’ and
‘after’ propagation studies prepared by a qualified radio frequency (RF) engineer demonstrating
existing signal coverage, contrasted with the proposed signal coverage resulting from the proposed
telecommunication facility”). Moreover, Defendants point to no evidence in the record
establishing that propagation studies are less reliable than, or inferior to, drive-test data.
“[W]here, as here, the Village Code does not require a showing of a coverage deficiency
by a specific type of evidence, ‘[t]he fact that the Board apparently would have preferred some
other type of data . . . does not provide a valid basis for denying plaintiff’s application.’” Extenet
Sys., LLC. v. Vill. of Kings Point, 2022 WL 1749200, at *13 (E.D.N.Y. May 31, 2022), aff’d sub

nom. Extenet Sys., LLC. v. Vill. of Kings Point, No. 22-1265, 2023 WL 4044076 (2d Cir. June
16, 2023) (quoting ExteNet Systems, Inc. v. Vill. of Plandome, No. 19-cv-7054, 2021 WL
4449453, at *17 (E.D.N.Y. Sept. 29, 2021)); see also Orange Cnty.-Poughkeepsie Ltd. P’ship, 84
F. Supp. 3d at 304–05 (“[N]othing in the Code or the TCA requires that Plaintiffs present data on
dropped calls or customer dissatisfaction, and, accordingly, it is not, without more, an adequate
basis on which to deny the Application.”). Additionally, although they were not required to, the
Court notes that in connection with the instant motion, AT&T submitted another RF report, which
provides drive test data reflecting the “actual field measured signal level of the AT&T service in
the area” in all four frequency bands and confirms the propagation studies’ results. (See Villecco

Report at 7–8 (summarizing the drive test results and explaining that they confirm “that AT&T
lacks reliable wireless service throughout a substantial area in and around Oyster Bay Cove.”))
contrary technical evidence, Defendants’ speculative criticisms about AT&T’s evidence do not

create a genuine dispute of material fact.
b. Least Intrusive Means
Under the second prong of the effective prohibition analysis, “a local government may
deny an applicant’s proposal if an applicant may ‘select a less sensitive site, . . . reduce the tower
height, . . . use a preexisting structure or . . . camouflage the tower and/or antennae.” Orange
Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 300 (citing Willoth, 176 F.3d at 643). An
applicant “need not evaluate every potential alternative,”” but must instead make “‘a good faith
effort to evaluate alternative sites.’” New York SMSA Ltd. P’ship v. Town of Oyster Bay, No.
11-cv-3077, 2013 WL 4495183, at *18 (E.D.N.Y. Aug. 16, 2013) (citing Vill. of Floral Park, 812
F. Supp. 2d at 166) (finding Verizon was not required to “evaluate every potential location where

the Facility hypothetically could be constructed, and submit evidence showing why each site is not
a viable alternative.”).
Here, AT&T made a good faith effort to evaluate available alternatives. As discussed
above, AT&T investigated numerous alternative sites and reasonably concluded that no viable
alternatives existed and that there were no preexisting structures capable of hosting the Facility.
(See e.g., ECF No. 55-10.) AT&T selected what it deemed the least intrusive option: a
camouflaged “monopine” on a non-residential lot, designed to blend in with nearby tall trees. (See
id.)
Defendants do not dispute that no “less sensitive site” was viable. Instead, they argue that

AT&T failed to justify why a shorter tower, an ODAS system, or a combination of the two, could
not remedy the gap. (Def. Opp. at 15.) Defendants’ arguments are squarely foreclosed by the
record.
tower height from 75 to 55 feet would significantly decrease both in-building and in-vehicle

coverage and would substantially undermine the Facility’s ability to remedy the gap. (Arceo Aff
¶¶ 7-8, 10, Ex. D–J; see Villecco Report at 25.) Defendants offer no contrary evidence and appear
to concede that a shorter tower would reduce coverage. Defendants argue that the TCA does not
require “100% coverage.” (Def. Opp. at 17 (citing SiteTech Grp. Ltd. v. Bd. of Zoning Appeals
of the Town of Brookhaven, 140 F. Supp. 2d 255, 265 (E.D.N.Y. 2001)). That argument is
inapposite; the question for this Court to consider is whether the shorter tower is a viable
alternative. AT&T has shown that reducing the monopole’s height would result in a “substantial
reduction” in service and therefore it is not a viable alternative. (See Villecco Report at 25).
Defendants have failed to put forth evidence to the contrary. In any event, Defendants have not
even shown that reducing the height would make the monopine any less intrusive. According to

AT&T’s unrebutted evidence, because any views from neighboring homes “would be of the
middle of the monopine through the trees,” visibility to nearby residences would not change.
(Allen Report at 18.).
The same is true of the ODAS alternative. AT&T submitted evidence that the ODAS
system, like the shorter monopine, would be ineffective because antennas below the tree line
cannot provide reliable in-building service in heavily-wooded settings like the service gap area—
a fact that Defendants do not rebut. (Def. Resp. 56.1 Stmt. ¶ 81 (citing ECF No. 55-18, Ex. E ¶
5).) AT&T also submitted evidence that the ODAS system suffers from multiple other deficiencies
and practical barriers, such as its lack of backup power and the need to secure independent leases

and separate approvals for every node. Defendants offer no evidence to rebut AT&T’s
submissions, and instead merely cite the Board’s baseless conclusion that AT&T failed to fully
address the ODAS alternative. (See Def. Resp. 56.1 Stmt. ¶¶ 90–92.)
combined with ODAS—is also unavailing. Initially, this alternative appears to have been raised

for the first time in this motion, so Defendants cannot plausibly assert that AT&T refused to
investigate it. In any event, it is contradicted by AT&T’s evidence that both a shorter tower and
an ODAS system would fail for the same reason: insufficient height above the tree line. (See Mot.
at 14; see also ECF No. 55-18, Ex. E ¶ 5.) Defendants provide no explanation for why combining
two ineffective solutions would produce an effective one. The TCA does not allow denial based
on speculative or impractical alternatives that are unlikely to succeed. See, e.g., MetroPCS N.Y.
LLC v. City of Mount Vernon, 739 F. Supp. 2d 409, 423 (S.D.N.Y. 2010) (finding “it was improper
for the City to insist on the use of alternative technology because there was no evidence that
MetroPCS’s application was otherwise deficient”); cf. Town of Clarkstown, 612 F.3d at 105–107
(holding that the TCA preempted a town statute setting forth a preference for alternate technologies

over other FCC-authorized technologies).
In sum, the record establishes that Plaintiff made the required good-faith effort to evaluate
alternatives and reasonably concluded that none would remedy the gap in a less intrusive manner
than the proposed Facility. Because AT&T has established that the service area suffers from a
significant service gap and that its proposed Facility is the least intrusive means for closing that
gap, AT&T is entitled to summary judgment on its effective prohibition claim.
2. Substantial Evidence Claim
As mentioned, in evaluating a substantial evidence claim under the TCA, courts look to the
applicable standard under state law. Cellular Tel. Co., 166 F.3d at 494. Here, the Court looks to

New York law, which provides the requirements that a public wireless services provider, like
AT&T, must meet to establish the need for a variance, and provides that “[r]ather than granting a
variance only on a showing of ‘unnecessary hardship,’ a local zoning board must consider whether
would be served by granting the variance.” Id. (quoting Consol. Edison Co., 43 N.Y.2d at 608–

10). “[W]here the intrusion or burden on the community is minimal, the showing required by the
utility should be correspondingly reduced.” Town of LaGrange, 658 F. Supp. 2d 539, 555
(S.D.N.Y. 2009) (quoting Consol. Edison Co., 43 N.Y.2d at 611).
Under this standard—sometimes referred to as the “public necessity” or “public utility”
standard—a provider seeking a variance for a facility “‘need only establish [1] that there are gaps
in service, [2] that the location of the proposed facility will remedy those gaps and [3] that the
facility presents a minimal intrusion on the community.’” Vill. of Floral Park, 812 F. Supp. 2d at
154 (quoting Site Acquisitions, Inc. v. Town of New Scotland, 2 A.D.3d 1135 (3d Dep’t 2003)).
“If the public utility makes the required showing, which necessarily means the record is devoid of
substantial evidence to support a denial, the variance must issue.” Id.

The Court concludes that the reasons for the Board’s denial—that (1) there was no
significant gap; (2) AT&T failed to show the Facility would result in more than nominal
improvement in coverage; (3) AT&T failed to adequately investigate alternatives; and (4) the
Facility would cause aesthetic harm and a decrease in property values—are not supported by
substantial evidence under these substantive standards.11

11 AT&T also argues that the Zoning Board applied the wrong standard of review. (See Mot. at 9–11.) The Board
appears to have articulated a formulation of the “effective prohibition” standard, requiring AT&T to demonstrate the
existence of “significant gaps” in service and that the proposed facility was the “least intrusive means” of remedying
those gaps. (Bd. Dec. at 6.) AT&T is correct that this is not the applicable standard. As many courts have recognized,
“[i]n the context of a substantial evidence claim involving the public necessity standard applicable to utilities in New
York, ‘the carrier must demonstrate not that the proposed facility was the ‘least intrusive means’ [to remedy the service
gap] but rather that the proposed facility was ‘more feasible than other options.’” New Cingular Wireless PCS, LLC
v. Town of Fenton, 843 F. Supp. 2d 236, 245 (N.D.N.Y. 2012) (citing Vill. of Floral Park, 812 F. Supp. 2d at 164).
However, later in its decision, the Board concluded that AT&T had not met its burden because it failed to demonstrate
“the overall public necessity for the project” and “the absence of other available alternatives,” which more closely
resembles the public necessity standard. The Board’s analysis appears to conflate the two standards. Because the
Court resolves AT&T’s motion on other grounds, it need not address whether the Board’s misstatement of the
applicable standard of review provides an independent basis for deciding the motion.
The Board’s first three stated reasons for denying the Application all rest on its conclusion

that there was no demonstrated need for the Facility.
First, the Denial asserts that AT&T’s “failed to substantiate its conclusory statement that
there is a significant coverage gap.” (Bd. Dec. at 7.) That assertion is not supported by the record.
As discussed above, AT&T submitted detailed evidence showing the gap’s size, its location, and
the population impacted. Although the Board was not required to accept AT&T’s expert
testimony, there was no contrary expert testimony (or indeed, any evidence at all) to contradict it.
See Vill. of Floral Park, 812 F. Supp. 2d at 161 (“To refute the expert testimony, the Board could
have presented its own expert testimony or evidence.”). Indeed, the Village’s planning consultant
acknowledged that a service gap exists in the area. (See ECF No. 55-12 Ex. A.)
The Board bases its conclusion on the assertions that: (1) AT&T’s propagation studies

covered only two of four frequency bands; and (2) were not backed up by real-world drive-test
data. The Court already explained why these arguments are meritless in the context of AT&T’s
effective prohibition claim. For similar reasons, these arguments also fail under the substantial
evidence framework. AT&T presented evidence that the gap was significant at 700 MHz, the
lowest frequency band at which it operates, and the Board had no reason to believe the gap would
somehow be smaller at higher frequencies. (See Def. Resp. 56.1 Stmt. ¶ 13.) Moreover, nothing
in the Code or the TCA requires an applicant to present drive-test data, and the absence of that
data is not, by itself, a valid basis for the Board’s Denial. See, e.g., MetroPCS New York, LLC,
764 F. Supp at 454 (holding the absence of customers’ testimony regarding poor coverage was

“not fatal to the application” where plaintiff’s other evidence showed a coverage gap).
The Board’s second and third reasons fail for similar reasons. The only record support for
the Board’s assertion that the Facility would result in merely a “nominal” improvement in service
and any improvement would be “‘very slight.’” (Bd. Dec. at 7.) These conclusory statements and

observations have no probative value and are certainly insufficient to constitute substantial
evidence. These lay observations do not undermine the conclusions in the report and maps which
show that AT&T lacks reliable in-building and in-vehicle coverage in the service gap and that the
Facility would improve coverage. The Board gives no explanation for why those members were
qualified to interpret technical propagation studies, nor does it offer evidence rebutting the expert
testimony from AT&T’s qualified RF engineers about the service improvement from the Facility.
(See, e.g., Orange Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 309 (citing Vill. Of Floral
Park, 812 F. Supp. 2d at 160) (“Indeed, the Board was entitled to question [AT&T’s] ‘experts
credentials or the methodology used by the experts in arriving at their opinions,’ but it did not.”).
The Board’s claim that AT&T failed to adequately investigate alternative options—

specifically, a shorter antenna and the ODAS system—is likewise not supported by the record.
Under New York’s public necessity standard, AT&T was not required to show that the Facility
was the “‘least intrusive means’” to remedy the service gap, but rather that it was “‘more feasible
than other options.’” Town of Fenton, 843 F. Supp. 2d at 245, citing Vill. of Floral Park, 812 F.
Supp. 2d at 164. The record shows that AT&T more than met that burden.
As discussed, AT&T put forth evidence showing that both a shorter antenna and an ODAS
system would fail to remedy the service gap and would substantially diminish the service
improvements the proposed Facility would provide. The Board’s assertion that AT&T failed to
submit “technical reports and data supporting this claim” is contradicted by the record. AT&T

submitted propagation maps and supporting data quantifying the reduction in coverage associated
with a shorter tower. AT&T also provided a sufficiently detailed technical explanation as to why
an ODAS system would be ineffective for same reasons. AT&T was not required to submit precise
be effective, and there was no evidence to the contrary before the Board. See, e.g., Town of Oyster

Bay, 2013 WL 4495183, at *18 (“The Board is required to support its decision with substantial
evidence that the alternative sites were feasible.”); cf. MetroPCS New York, LLC v. City of Mount
Vernon, 739 F. Supp. 2d 409, 420 (S.D.N.Y. 2010) (MetroPCS was not required to demonstrate
why a distributed antenna system was less feasible than its proposed facility because the City failed
to present any evidence that MetroPCS’s proposal was either infeasible or overly obtrusive).
In sum, the Court finds that AT&T sufficiently established “‘that there are gaps in service’
along the targeted area, and that ‘the location of the proposed [F]acility will remedy those gaps,’
as required by State law.” Orange Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 306 (quoting
Vill. of Floral Park, 812 F. Supp. 2d at 154). The Board’s decision to the contrary was not
supported by substantial evidence.

b. Intrusion on the Community
Finally, the Court finds that the Board’s claims about aesthetics and property values were
not grounded in substantial evidence and do not support a finding that the Facility would result in
more than a minimal intrusion.
“In evaluating a denial of a permit pursuant to the TCA, a court ‘can find that aesthetics
qualify as a permissible grounds for denial of a permit only if [it] can conclude that there was more
than a scintilla of evidence before the Board on the negative visual impact of the cell sites.’”
Orange Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 309 (quoting Cellular Tel. Co., 166
F.3d at 495). “In other words, ‘aesthetic concerns must be grounded in substantial evidence in the

record.’” Id. (citing Town of Oyster Bay, 2013 WL 4495183, at *14). “Objections based on
aesthetic grounds should be ‘articulate[d] specifically,’ and cannot be premised on a ‘few
generalized expressions of concern.’” Id. (quoting Cellular Tel. Co., 166 F.3d at 495–96).
significantly and adversely affect views from residential properties in the Village” or impact

property values. (Bd. Dec. at 8–9.) However, the Board failed to articulate any specific aesthetic
objections to the Facility. Instead, it relied solely on generalized statements that it had received
letters from residents claiming the Facility would “fundamentally alter” their properties. (Id. at 8.)
The Board did not explain the basis for those assertions, nor did it meaningfully engage with
AT&T’s contrary evidence, including photo simulations demonstrating the Facility would be
barely visible and masked from most angles by nearby tall trees. (See ECF No. 55-8.) Rather than
address that evidence, the Board merely noted that AT&T “performed a visual sight test” but that
“no notice was given” to the Board and “no views from the adjoining residential properties were
taken.” (Id.). These criticisms do not constitute substantial evidence of an adverse aesthetic
impact.

Defendants similarly rely on boilerplate assertions in response to multiple statements of
fact, claiming that “[a] plethora of testimony, documentary evidence, drone footage, and
photographs demonstrate that the monopole will be highly visible to residents, drivers, and other
pedestrians during each season (more visible in winter because of less coverage), will not simply
blend into the background, will not be invisible from nearby houses . . . and will be an absolute
eyesore for this historically bucolic area.” (Def. Resp. 56.1 Stmt. ¶¶ 74–80.) These conclusory
characterizations are insufficient to create a genuine dispute of fact.
Indeed, Defendants concede the Facility would not be widely visible from the Village in
general or from adjacent neighborhoods and would not have any significant environmental impact.

(Id. ¶¶ 72–73.) Courts have found that facilities with such limited visibility are no more than
minimally intrusive, even facilities that rise far taller above the tree line than this one. See, e.g.,
Cellco P’ship v. Town of Clifton Park, New York, 365 F. Supp. 3d 248, 259 (N.D.N.Y. 2019)
Orange Cnty.-Poughkeepsie Ltd. P’ship, 84 F. Supp. 3d at 308–310 (approximately 150-foot

monopole that will extend “at least up to 75 to 85 feet above the tree line” was no more than
minimally intrusive).
There is likewise no substantial evidence supporting the Board’s reliance on the Sorkin
appraisal over AT&T’s appraisal, which concluded that the proposed Facility would have no
impact on property value and identified significant methodological flaws in the Sorkin report.
Specifically, AT&T’s appraisal notes that the purported “comparable” Facility which the Sorkin
appraisal based its findings on was a large, highly prominent water tank. The Board’s decision to
deny the Application on property value grounds is, therefore, not supported by substantial
evidence. Cf. id. (concluding that an appraisal report which presented “generalized concerns about
a potential decrease in property values, especially in light of [Plaintiffs’] contradictory expert

testimony, was not adequate to support a conclusion.”).
Therefore, AT&T is entitled to summary judgment on its substantial evidence claim.
C. Remedy
AT&T also argues that an order mandating approval is the proper remedy. (Mot. at 23–
24.) The TCA does not specify a remedy for violations; however, “almost all courts to address the
question have held that ‘the appropriate remedy is injunctive relief in the form of an order to issue
the relevant permits.’” Town of Ramapo, 701 F. Supp. 2d at 463 (citing Cellular Tel. Co., 166
F.3d at 497); see also Vill. of Kings Point, 2022 WL 1749200, at *13 (“Courts have consistently

found that a mandatory injunction is an appropriate remedy for violations of the TCA.”) (cleaned
up). “Moreover, under Willoth, a violation of the effective prohibition provision, 47 U.S.C. §
332(c)(7)(B)(i)(II), requires injunctive relief: an application proposing the ‘least intrusive means
Id. (citing Willoth, 176 F.3d at 643).

Here, as the Denial violates the effective prohibition provision and is not supported by
substantial evidence, the Court finds that Defendants should be ordered to grant AT&T all permits
and approvals necessary for the construction, operation, and maintenance of the proposed
Facility.12
III. CONCLUSION
For the reasons stated above, AT&T’s motion for summary judgment and request for
injunctive relief, (ECF No. 55), are GRANTED. The Court orders that the Board shall, within
thirty days of this order, grant the Application and issue all permits and approvals necessary for
the construction, operation, and maintenance of the Facility that is the subject of this Action. The

Clerk of the Court is respectfully requested to terminate the pending motion, enter judgment for
Plaintiff, and close this case.
SO ORDERED.
Dated: March 31, 2026
Central Islip, New York

12 Defendants do not address this issue of remedy, never responded to AT&T’s arguments, and have never offered
any reason why injunctive relief compelling approval of the Application should not be entered against all Defendants.
Although the Planning Board has not yet reached a decision on AT&T’s Application, the time for doing so has passed,
as it ran concurrently with the Zoning Board’s deadline and therefore expired on November 22, 2022. (Def. Resp.
56.1 Stmt. ¶¶ 51, 62; see 47 C.F.R. § 1.6003(c), (e) (defining 150 days as the presumptively reasonable time for review
of an application to deploy a facility using a new structure); see also FCC Declaratory Ruling, 24 FCC rcd. 13994,
14006 (¶¶ 32, 45) (2009) (“FCC Shot Clock Ruling”) (explaining that a reviewing authority has 150 days to act on a
new tower application, and that failure to do so is presumptively unreasonable under Section 332(c)(7)(B) of the
TCA)). Even when a Board has not yet reached a decision on an Application, courts have granted injunctions ordering
approval when there is both a “shot clock” violation and a violation of the TCA’s “effective prohibition” provision.
See, e.g., Bell Atl. Mobile of Rochester L.P. v. Town of Irondequoit, N.Y., 848 F. Supp. 2d 391, 403 (W.D.N.Y.
2012); Upstate Cellular Network v. City of Auburn, 257 F. Supp. 3d 309, 315 (N.D.N.Y. 2017); see also Masterpage
Commc’ns, Inc. v. Town of Olive, N.Y., 418 F. Supp. 2d 66 (N.D.N.Y. 2005) (granting injunctive relief for the
violation of § 332(c)(7)(B)(ii)’s requirement to act “within a reasonable time”). Given that the “shot clock” has clearly
expired, the record is fully developed, and effective prohibition has been established, the Court finds that further
review by the Planning Board “would serve no useful purpose and would greatly prejudice [AT&T] by encouraging
additional delay in its ability to provide service to the public in a non-covered area.” Bell Atl. Mobile of Rochester
L.P., 848 F. Supp. 2d at 403.
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11358254. Public record. Not legal advice.