Appendix — City of New Rochelle v. Crown Communication New York, Inc.

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STATE OF NEW YORK COURT OF APPEALS

HON. JUDITH S. KAYE, Chief Judge, presiding.

No.7

In the Matter of Crown

Communication New York, Inc.,

Respondent, |

Vv.

Department of Transportation of

the State of New York,

Respondent,

City of New Rochelle, et al.,

Appellants;

James Cavanaugh, &c.,

Intervenor-Respondent.

(Matter No.1)

In the Matter of Crown

Communication New York, Inc.,

Respondent,

Vv.

Department of Transportation of

the State of New York,

Respondent,

City of New Rochelle, et al.,

Appellants.

(Matter No.2)

The appellants in the above entitled appeal appeared

by the Hon. Bernis E. Shapiro, Corporation Counsel, City of

New Rochelle; the respondents appeared by Crane Greene &

Parente, Esqs. and the Hon. Eliot Spitzer, Attorney General

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of the State of New York; the intervenor-respondent

appeared by Wilson Elser Moskowitz Edelman & Dicker,

LLP; and the amicus curiae appeared by Riele J.

Morgiewicz, Esq.

The Court, after due deliberation, orders and adjudges

that the order is affirmed, with costs. Opinion by Judge

Graffeo. Judges G.B. Smith, Rosenblatt and Read concur.

Judge Ciparick dissents and votes to reverse in an opinion in

which Chief Judge Kaye and Judge R.S. Smith concur.

The Court further orders that this record of the

proceedings in this Court be remitted to the Supreme Court,

Westchester County, there to be proceeded upon according

to law.

I certify that the preceding contains a correct record

of the proceedings in this appeal in the Court of Appeals and

that the papers required to be filed are attached.

Stuart M. Cohen, Clerk of the Court

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State of New York

Court of Appeals

DECISION February 10, 2005

No.7

In the Matter of Crown

Communication New York, Inc.,

Respondent,

Vv.

Department of Transportation of

the State of New York,

Respondent,

City of New Rochelle, et al.,

Appellants;

James Cavanaugh, &c.,

Intervenor-Respondent.

(Matter No.1)

In the Matter of Crown

Communication New York, Inc.,

Respondent,

Vv.

Department of Transportation of

the State of New York,

Respondent,

City of New Rochelle, et al.,

Appellants.

(Matter No.2)

Order Affirmed, with costs. Opinion by Judge Graffeo.

Judges G.B. Smith, Rosenblatt and Read concur. Judge

Ciparick dissents and votes to reverse in an opinion in which

Chief Judge Kaye and Judge R.S. Smith concur.

4a

State of New York

Court of Appeals

No.7

In the Matter of Crown

Communication New York, Inc.,

Respondent,

v.

OPINION

Department of Transportation of

the State of New York,

Respondent,

City of New Rochelle, et al.,

Appellants;

James Cavanaugh, &c.,

Intervenor-Respondent.

(Matter No.1)

In the Matter of Crown

Communication New York, Inc.,

Respondent,

Vv.

Department of Transportation of

the State of New York,

Respondent,

City of New Rochelle, et al.,

Appellants.

(Matter No.2)

Kathleen E. Gill, for appellants.

Katherine H. Zalantis, for intervenor-respondent.

Sa

David Axinn, for respondent Department of Transportation.

Jacqueline P. Murray for respondent Crown Communication

New York, Inc.

New York State Conference of Mayors and Municipal

Officials, amicus curiae.

GRAFFEO, J.:

In this case we are asked whether the installation of

private antennae on two state-owned telecommunications

towers is exempt from local zoning regulation. Under the

particular facts and circumstances of this case, we conclude

that the commercial telecommunications providers involved

in this state project are not required to make applications for

special permits.

In 1997, the New York State Police, on behalf of

itself and participating state agencies including the

Department of Transportation (DOT or collectively the

State), entered into a Site Manager Agreement with Castle

Tower Holding Corporation to provide Castle with an

exclusive license to construct and operate telecommunications

towers on state-owned lands and rights-of-way. Castle

subsequently assigned the agreement to Crown

Communication New York, Inc. Under the terms of the state

contract, Crown was permitted to license space on the towers

to localities and commercial wireless providers, and the State

retained the right to co-locate its own communications

equipment on the towers.

After Crown identified two potential locations for

towers on state-owned property within the City of New

Rochelle (the City), the State granted Crown conceptual

approval to commence a preliminary site evaluation for the

construction of both towers. One proposed tower, consisting

of a 120-foot monopole, would replace an existing 110-foot

lattice communications tower located on a DOT right-of-way.

The other planned tower -- a lattice-type structure -- would

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be erected at a DOT maintenance yard. Both sites are

situated along the Hutchinson River Parkway.

In May 2000, Crown informed the City of its

telecommunications plans. The following month, Crown and

the State gave a public presentation to the mayor and city

council regarding the purpose and intended use of the two

proposed towers. At this meeting, the City voiced no

objection to the siting or construction of the towers and

Crown offered space on the facilities to the municipality for

use by its public safety agencies. This invitation was

reiterated in correspondence sent to the City. Thereafter,

DOT, as lead agency, performed an environmental review of

both sites pursuant to the State Environmental Quality

Review Act (SEQRA). DOT issued a negative declaration for

each location, finding that neither the replacement tower nor

the maintenance yard tower would result in any significant

adverse environmental or aesthetic impact based on the

nature and location of the sites.

Crown proceeded with the construction of the towers

and entered into license agreements with a number of

commercial wireless telecommunications providers to lease

space on the towers for their equipment.! After the

maintenance yard tower was completed, and during

construction of the replacement tower, the City issued a stop

work order, contending that the towers were subject to the

City’s zoning laws and that Crown must therefore apply for

a special permit from the City’s planning board.

In 2001, Crown commenced separate hybrid

declaratory judgment and CPLR article 78 proceedings

seeking a judgment prohibiting the City from enforcing its

' Both towers have been fully operational since March 2002. At oral

argument, the State indicated that five commercial wireless

telecommunications companies have installed equipment at the

replacement tower site and four companies have placed antennae on the

maintenance yard tower.

Ta

zoning regulations to halt construction of the towers and a

declaration that the towers were exempt from the local

zoning regulations. The two proceedings were later

consolidated. Although DOT was a named defendant, it

joined in the relief sought by Crown. The Supervisor of the

Town of Eastchester later intervened as an additional

defendant.

Supreme Court initially declared the towers immune

from local zoning regulations and enjoined the City from

interfering with their construction and operation. The court

applied the "balancing of public interests" test adopted by

this Court in Matter of County of Monroe (72 NY2d 338

[1988]) and determined that the State’s interests outweighed

the City’s interests. After reargument, Supreme Court

modified its prior order to the extent that it found that the

private telecommunications providers licensed to install their

equipment on the towers were subject to local zoning

regulation, concluding that there was no basis to exempt

them from such laws. The court, however, adhered to its

original determination that Crown need not comply with local

zoning requirements regarding the construction of the

towers.”

The Appellate Division modified by declaring that the

wireless telecommunications providers are not subject to

local zoning regulation and otherwise affirmed (309 AD2d

863 [2003]). The court held that the telecommunications

companies "are not precluded from enjoying the State’s

immunity simply because they are private entities or because

colloce*:x2 on the DOT’s towers will advance their financial

interests” Gd. at 866, citing County of Monroe, 72 NY2d

? Because the City failed to challenge the immunity of the towers

themselves on appeal, their exemption from local zoning regulation is not

at issue in this case.

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338; Murphy v Erie County, 28 NY2d 80 [1971]). Thus, the

court determined, "it is not the private status of the Wireless

Telephone Providers but, rather, the public nature of the

activity sought to be regulated by the local zoning authority

that is determinative of this case" (id.). We

granted the City leave to appeal and now affirm.

The City argues that, although the towers themselves

are exempt from regulation, no justification exists to extend

such immunity to the installation of commercial equipment

on the towers. Specifically, the City asserts that it has the

right pursuant to its zoning authority to evaluate whether

private antennae are necessary to close cellular

telecommunications coverage gaps or should be placed

elsewhere, and to require some form of aesthetic

camouflaging of equipment. In response, Crown and the

State contend that the private carriers are entitled to share in

the immunity already enjoyed by the state-owned towers.

They claim that the State’s plan envisions a public-private

partnership and that the joint use of its towers facilitates the

State’s public safety and environmental goals.

In County of Monroe, we addressed the applicability

of local zoning laws where a conflict arises between two

governmental entities. There, the issue was whether the

expansion and accessory uses of a county-owned airport

located within the City of Rochester were subject to the

City’s zoning regulations. Abandoning the traditional

governmental-proprietary classification standard used to

resolve competing land use claims between governmental

units, we articulated a "balancing of public interests" test

(County of Monroe, 72 NY2d at 341). Balancing a number

of factors, including “the nature and scope of the

instrumentality seeking immunity, the kind of function or

land use involved, the extent of the public interest to be

served thereby, the effect local land use regulation would

have upon the enterprise concerned and the impact upon

legitimate local interests," we held that they weighed in favor

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of granting the County immunity for the airport’s expansion.

(id. at 343 [quotation marks and citation omitted]). We also

concluded that such immunity extended to additional

structures, including an airport terminal, an air freight

facility and parking lots, and that such exemption was

appropriate despite the fact that portions of the new

structures were to be leased for use by commercial entities

(see id. at 344-345).

In this case, although we are faced not with a dispute

between two municipalities but between a state project and a

locality, County of Monroe informs the result. Here, the

State submitted evidence of numerous benefits the

government’s use of the towers would afford the public,

which Supreme Court took into account in finding the towers

immune from local regulation under the balancing test. For

example, the State is currently in the process of developing

its telecommunications infrastructure in anticipation of

establishing a Statewide Wireless Network (SWN), which

will replace outdated systems with a state-of-the-art digital

land mobile radio network designed to permit interagency

and intergovernmental communications across the state in

emergency situations. According to the affidavit of the State

Police’s Administrative Officer and Program Manager of the

Site Manager Agreement, the SWN will operate in the

700-800 megahertz frequency range, while the State Police’s

current communications system uses a 150 megahertz range.

Consultants retained by the State Police have indicated that

in order to operate in the higher frequency range, it will be

necessary to construct three to four times the approximately

150 existing state-maintained radio sites. The State has

therefore reserved space on the replacement and maintenance

yard towers for anticipated SWN use when the network

becomes operational.

Additionally, DOT has developed an Intelligent

Transportation System (ITS), which monitors traffic flow,

weather and road conditions. DOT’s Director of Traffic

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Engineering and Safety stated that the collection of such data

aids DOT and public safety entities in being able to "respond

to emergency situations, manage and divert traffic, and

provide real-time traffic information to motorists," thereby

improving the safety of the traveling public and reducing

travel times. DOT explained that the maintenance yard tower

utilizes equipment that supports the ITS, and indicated its

intention to co-locate additional equipment on _ the

replacement tower. DOT has also placed a radio antenna on

the maintenance yard tower to improve the communications

range for its maintenance crews and installed video

surveillance cameras for improved security at its maintenance

yard.

Finally, the State has followed a policy of offering

space on its towers to local public safety authorities and

offered such space on the two towers to the City in this case.

Currently, Westchester County has placed antennae on the

replacement tower for use by its Department of Public

Safety.

Although Supreme Court determined on reargument

that no basis existed to exempt the wireless providers from

local zoning regulations, we agree with the Appellate

Division that the installation of licensed commercial antennae

on the towers should also be accorded immunity because

co-location serves a number of significant public interests

that are advanced by the State’s overall telecommunications

plan. At this time, there are apparently more private than

public antennae on the towers, but the presence of

commercial equipment does not exclusively serve private

interests. The private antennae will improve the availability

of 911 emergency cellular calls made by the public, thereby

promoting the public safety interest central to construction of

the State’s towers. The Highway Emergency Local Patrol

(HELP), consisting of a fleet of trucks which patrol

highways -- including the Hutchinson River Parkway -- relies

on wireless services provided by one of the carriers currently

lla

co-located on the towers. Numerous state agencies, including

the Thruway Authority, Dormitory Authority, Department of

Environmental Conservation and Department of Health utilize

cellular phone services supported by the carriers in this case.

Significantly, the co-location of public and private equipment

also eliminates the need for the proliferation of

telecommunications towers, an important environmental and

aesthetic public concern. Furthermore, profits derived from

licensing space to wireless providers will ultimately aid in

financing the construction of the State’s telecommunications

infrastructure plan.

The fact that the wireless providers will also realize

profit from their services does not undermine the public

interests served by co-location. Such shared use and benefit

is analogous to the airport development project in County of

Monroe, which likewise served both public and private

interests. Subjecting the private carriers to local regulation in

this case "could otherwise foil the fulfillment of the greater

public purpose of promoting" the State’s public safety and

environmental goals associated with its telecommunications

infrastructure development plan (County of Monroe, 72

NY2d at 344). In sum, the public and private uses of the

towers are sufficiently intertwined to justify exemption of the

wireless providers from local zoning regulations. *

> The dissent focuses on whether the State has preempted the

telecommunications field with regard to the construction of facilities. It

is true that where the State preempts a particular area and indicates an

intention to preclude local regulation, any inconsistent local law is

rendered inapplicable (see Incorporated Vil. of Nyack v Daytop Vil.,

Inc., 78 NY2d 500, 505 [1991]). We agree with the dissent that the State

has not preempted this area of the law. Nevertheless, preemption is not

the only means for determining whether a particular activity is exempt

from local zoning regulation. We find the principles outlined in County

of Monroe applicable to this case, such that the immunity afforded the

towers should extend to the wireless providers’ antennae.

12a

Vv (41

NY2d 738 [1977]), relied upon by the City, is

distinguishable. In that case, the issue was whether a town’s

zoning regulations applied to an asphalt plant operated for

private profit but located on town-owned land which had

been leased to a private entity. Applying the now-abandoned

governmental-proprietary function test, we held that the local

zoning laws were applicable, reasoning that because the plant

"was operated solely by and for the commercial benefit of .

. @ private entrepreneur," the lease arrangement "could not

serve to clothe [the entrepreneur] with immunity from the

zoning laws" (id. at 742 [emphasis added]). This case, by

contrast, does not merely involve the lease of

government-owned space to a private firm for the exclusive

purpose of making a profit. Rather, the licensing of space to

commercial wireless providers is an integral component of

the State’s plan of promoting public safety and reducing the

proliferation of cellular towers, clearly salient public

purposes.

Nor does the extension of immunity to the private

providers in this case conflict with the Telecommunications

Act of 1996 (TCA) (47 USC § 151 et seg.). Section 332 of

the TCA provides that, subject to enumerated exceptions,

“nothing in this chapter shall limit or affect the authority of

a State or local government or instrumentality thereof over

decisions regarding the placement, construction, and

modification of personal wireless service facilities" (47 UST

§ 332 (c] [7] [A]). While the TCA may not limit a

government’s zoning ability, it does not dictate that a

locality’s regulations trump State interests where competing

interests exist. Rather, consistent with County of Monroe, we

conclude that any income the wireless providers derive from

the antennae placed on the two towers does not subvert the

underlying public interests served by the enhancement of

wireless telecommunication, and such equipment is therefore

embraced within the immunity already afforded to the

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state-owned towers pursuant to the balancing test.‘

Accordingly, the order of the — Division

should be affirmed, with costs.

* We emphasize that our determination that immunity is warranted

in this case should not be taken as blanket authority for the placement of

state-owned towers at any location the State desires. Here, after

performing SEQRA review, DOT concluded that the towers would not

have any adverse aesthetic or environmental impact based on their nature

and location: one merely replaced an existing tower while the other was

placed in a DOT maintenance yard. Moreover, Supreme Court, in

applying the County of Monroe balancing test, found that the nature of

the towers’ locations did not weigh in the City’s favor.

eT |

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Matter of Crown Communication New York, Inc. v

Department of Transportation of the State of New York, et

al.

No.7

CIPARICK, J. (dissenting): a

Because I do not believe the exemption from local

zoning regulation accorded to the state-owned

telecommunications towers should be applied to the private

telecommunications providers here, I respectfully dissent.

Placement of private wireless service facilities are

ordinarily subject to local zoning requirements. This case

differs from the typical scenario because the private

providers locate their antennae on a state tower that is

immune from local regulation. The issue before this Court is

whether that immunity should be extended to benefit the

private providers -- allowing them immunity from local

zoning simply because they opt to co-locate on a State, rather

than a private, tower.

The City of New Rochelle Code contains zoning

regulations specifically pertaining to telecommunications

facilities (New Rochelle Code Article IXA). * While the

City understands the need for telecommunications services,

it "finds that these regulations are necessary to protect the

environmental, scenic and historical resources of the city and

to ensure that adverse visual and operational effects will not

contribute to blighting or deterioration of the surrounding

neighborhood" (New Rochelle Code § 331-64.2). The Code

* The regulations cited were the regulations in effect at the time of the

controversy. The provisions pertaining to wireless telecommunications

facilities have been amended and now appear at § 331-99 (amended

1-15-02 by Ord. No. 21-2002).

|

j

4

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states that shared use of existing towers (co-location) is

favored (see New Rochelle Code § 331-64.4 [B]). The Code

also provides that applications will be granted in order to fill

in gaps in service (see New Rochelle Code § 331-64.4 [C]).

The Code lists specific requirements for applicants seeking

to co-locate on existing telecommunications facilities (see

New Rochelle Code § 331-64.5).

The preliminary inquiry here should be whether the

State has preempted this area so that local zoning does not

apply. In Incorporated Village of Nyack v Daytop Village,

Inc., (78 NY2d 500 [1991]), we addressed whether the

operator of a state-licensed residential substance abuse

facility was subject to local zoning laws. We engaged in a

preemption analysis to determine whether the Nyack Zoning

Code was preempted by article 19 of the Mental Hygiene

Law (see Inc. Vil. of Nyack, 78 NY2d at 505). "Where the

State has demonstrated its intent to preempt an entire field

and preclude any further local regulation, local law

regulating the same subject matter is considered inconsistent

and will not be given effect" (inc. Vil. of Nyack, 78 NY2d

at 505). The Court found that the Village had an important

interest in regulating substance abuse facilities and that

"separate levels of regulatory oversight [could] coexist" (Inc.

Vil. of Nyack, 78 NY2d at 507).

Here, the state has not preempted the field of

regulating telecommunications facilities. The State

Department of Transportation (DOT) does have statutory

authority to lease property on or along special parkways --

which include the Hutchinson River Parkway (see

Transportation Law §§ 71 [2], 70 {2] [a]). In addition, the

DOT commissioner must also grant permits for any

construction or improvements on a state highway right of

way "notwithstanding any consent or franchise granted by

any town or county superintendent, or by any other

municipal authority" (Highway Law § 52). However, while

the State does have some measure of control over

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development in these areas, it does not rise to the level of

preemption.

The statutes do not explicitly limit local zoning

authority and do not demonstrate any specific intent to

preempt this area. Further, although the Commissioner has

the authority to lease state highway property, the statute

provides that development of such property “shall be subject

to the zoning regulations and ordinances of the municipality

in which said property is located and to the support,

protection or relocation of any public utility facilities within

the right of way of any highways within said property"

(Highway Law § 10 [38]). Thus, rather than preemption, the

statute contemplates that state and local zoning regulation can

coexist.

The federal Telecommunications Act of 1996 (TCA)

(47 USC §§ 151 et seq.) also specifically preserves local

zoning authority. The TCA states that the Act will not limit

local authority over the placement of private wireless service

facilities with limited exceptions pertaining to regulations that

are either discriminatory or prohibit service (see 47 USC §

332 [c] [7] ; see also 47 USC § 253 [c]; Chambers v Old

Stone Hill Road, 1 NY3d 424, 433 [2004]; majority op at

11).

Absent state preemption, the City has a legitimate

interest in regulating the placement of private wireless

facilities within its borders, and the wireless carriers should

have applied for a special permit through the City’s Planning

Board. Like Inc. Vil. of Nyack, there is no proof that the

City’s regulations would be inconsistent with the State’s

ultimate goal of setting up a Statewide Wireless Network

(SWN) (see 78 NY2d at 508). Thus, the City should be

permitted to exercise its authority to regulate the placement

of private wireless communications facilities.

Nor is there any other barrier to the application of

local zoning law. The test articulated in Matter of County of

Monroe (72 NY2d 338 [1988]) and adopted by the majority

17a

in this case, is inapplicable to this situation. The "balancing

of public interests" test applies to disputes between

"governmental units" -- specifically whether an "encroaching

governmental unit" will be subject "to the zoning

requirements of the host governmental unit" (see County of

Monroe, 72 NY2d at 343). By contrast, this case involves

the interests of the municipality. (New Rochelle) on the one

hand and the interests of the commercial wireless providers

on the other. As the majority notes, the immunity of the state

towers is not at issue (see majority op at 5, n 2). As the

Attorney General concedes, it is not at all clear that County

of Monroe is applicable to the State -- as the State is

sovereign rather than a "governmental unit."

Even applying County of Monroe, there is no basis to

cloak the private providers with the State’s immunity. The

factors to be weighed in the "balancing of public interests"

test include "the nature and scope of the instrumentality

seeking immunity, the kind of function or land use involved,

the extent of the public interest to be served thereby, the

effect local land use regulation would have upon the

enterprise concerned and the impact upon legitimate local

interests" (County of Monroe, 72 NY2d at 343 [quotation

marks and citation omitted]). Additional factors include "the

applicant’s legislative grant of authority, alternative locations

for the facility in less restrictive zoning areas, and alternative

methods of providing the needed improvement. . . [as well

as] intergovernmental participation in the project

development process and an opportunity to be heard"

(County of Monroe, 72 NY2d at 343).

The State undeniably has an important interest in the

SWN to improve State Police communications and in the

Intelligent Transportation System (ITS) to improve the safety

of travel. It also has an interest in improving 911 service.

These interests apply to the utility of the towers in general --

which is not at issue here. What is at issue here is whether

state immunity should be conferred upon private providers.

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The SWN is a prospective development in its planning

stages. Thus, the primary use of the tower is currently

private, making the majority of the benefits claimed to flow

from the tower speculative. The type of land use involved is

the placement of private wireless equipment -- typically an

area subject to regulation by localities. Indeed, such local

regulatory authority is specifically preserved by the TCA.

Here, there was a lack of intergovernmental participation as

to whether the private providers should be permitted to

co-locate on the towers.

Significantly, the majority fails to address what effect,

if any, the local zoning regulation would have upon the

proposed use. There is no indication that local zoning would

conflict with these purposes. The New Rochelle Zoning Code

reflects a preference for co-location -- making the application

procedure for shared use less rigorous than for a new tower

(see New Rochelle zoning Code §§ 331-64.5, 331-64.6). The

City also has legitimate interests in regulating

telecommunication facilities, such as "protect[ing] the

appearance and property value of neighborhoods" as well as

"protect[ing] the environmental, scenic and historical

resources of the city and to ensure that adverse visual and

operational effects will not contribute to blighting or

deterioration of the surrounding neighborhood" (New

Rochelle Zoning Code § 331-64.2). In addition, "once an

area is sufficiently serviced by a wireless service provider,

the right to deny applications becomes broader" (Sprint

v Willoth, 176 F3d 630, 643 [2d Cir 1999]).

There is no evidence that there were service gaps here that

would have required the private providers to place their

antennae in these particular locations. Here, given the

primarily private use of the towers and the absence of any

indication that the zoning provisions would conflict with State

purposes, there is an insufficient basis upon which to apply

the State’s immunity to the private providers.

The majority also contends that profits from granting

TIEN PCy And

Drs

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space to the private providers that "will ultimately aid in

financing the construction of the State’s telecommunications

infrastructure plan" is a consideration in determining whether

the private providers should benefit by the State’s immunity

(majority op at 9). To suggest that mere enhancement of the

State’s revenue is the sort of "public interest" that can justify

exemption from local regulation can lead to abuses if taken

to an extreme.

Nor should the private providers be considered an

accessory use, such as "(t]he airport terminal, parking

facilities, and air freight facility" in County of Monroe (72

NY2d at 345). The Court determined those uses were

accessory to the airport and should benefit by immunity,

deeming them "customarily incidental to an airport

operation” (County of Monroe, 72 NY2d at 345). Here, the

primary use of the towers is commercial and the SWN is a

speculative future project. The private providers are engaged

in their ordinary business which could be conducted on any

tower -- whether State or private. While the private providers

may confer a benefit, the tower could function without them.

Thus, these do not appear to be the type of accessory uses

contemplated by County of Monroe.

It is also persuasive that the parties provided for

compliance with local zoning requirements in the "tower

license agreement" between Crown and the private providers.

The agreement states that "[t]he access to, and installation,

maintenance and operation of, Licensee’s Site Equipment

must at all times be in strict compliance with the Technical

Standards, all applicable federal, state and local laws,

ordinances, and regulations (including without limitation the

FCC, Federal Aviation Administration, city zoning, building

and fire codes)... ."

The State’s conduct essentially amounts to selling its

immunity from zoning regulations. This particular conduct

was rejected by this Court in Little Joseph Realty, Inc. v

Town of Babylon (41 NY2d 738, 742 [1977]) and by the

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Southern District in Omnipoint Communications, Inc. v

Common Council of the City of Peekskill (202 F. Supp 2d

210, 225 [SD NY 2002] ["Non-governmental uses, such as

the lease of space to private corporations for the construction

of a personal wireless service facility, are not immune from

local zoning requirements"]). Little Joseph concededly relied

upon the since-rejected governmental- proprietary function

distinction. However, the premise that a government entity

should not be permitted to sell its own immunity from local

zoning regulations to private parties remains valid.

The State’s immunity from local zoning requirements

should not be extended to the private providers. The State

has not preempted this area and there is no indication that the

local zoning regulations would conflict with the State’s

purposes. Thus, I would reverse the order of the Appellate

Division and reinstate the order of Supreme Court.

FREER KKHKRRRKRKRRRRE RRR RR Re

Order affirmed, with costs. Opinion by Judge Graffeo.

Judges G.B. Smith, Rosenblatt and. Read concur. Judge

Ciparick dissents and votes to reverse in an opinion in which

Chief Judge Kaye and Judge R.S. Smith concur.

Decided February 10, 2005

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SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

_AD2d__ Argued - September 11, 2003

MYRIAM J. ALTMAN, J.P.

GABRIEL M. KRAUSMAN

GLORIA GOLDSTEIN

DANIEL F. LUCIANO, JJ.

2002-06435 DECISION & ORDER

In the Matter of Crown Communication New York,

Inc., petitioner-plaintiff-appellant, vy Department of

Transportation of the State of New York, respondent-

defendant-appellant, City of New Rochelle, et al.,

respondents-defendants-respondents; James

Cavanaugh, etc., intervenor-respondent

(Matter No.1)

(Index No. 7863/01)

In the Matter of Crown Communication New York, Inc.,

petitioner-plaintiff-appellant, v Department

of Transportation of the State of New York,

i respondent-defendant-appellant, City of New

Rochelle, et al., respondents-defendants-respondents.

(Matter No.2)

(Index No. 9166/01)

Crane, Greene & Parente, Albany, N.Y.

(John P. Stockli, Jr., and Jacqueline Phillips

Murray of counsel), for petitioner-plaintiff-appellant.

22a

Eliot Spitzer, Attorney-General, New York, N.Y.

(Michael S. Belohlavek, David Axinn, and Richard

Lombardo of counsel), for

respondent-defendant-appellant.

Kathleen E. Gill, New Rochelle, N.Y., for

respondents-defendants-respondents.

Wilson, Elser, Moskowitz, Edelman & Dicker,

White Plains, N.Y. (Steven M. Silverberg of

counsel), for intervenor-respondent.

In related hybrid proceedings pursuant to CPLR

article 78, inter alia, in the nature of prohibition to prohibit

the City of New Rochelle, J. Robert Dolan, as Commissioner

of the Department of Public Works of the City of New

Rochelle, and the Commissioner and/or Deputy

Commissioner of the Department of Development from

enforcing the City of New Rochelle’s zoning regulations

against the construction of two telecommunications towers,

and actions, inter alia, for a judgment, declaring that the two

towers are exempt from local zoning regulations, the

petitioner- plaintiff appeals, and the respondent-defendant

Department of Transportation of the State of New York

separately appeals, from an order of the Supreme Court,

Westchester County (Colabella, J.), entered July 2, 2002,

which, upon reargument, modified a prior order and

judgment (one paper) of the same court entered November

13, 2001, finding that the commercial telecommunications

providers licensed to install their equipment on the towers are

subject to local zoning regulations.

ORDERED that the order is modified, on the law, by

deleting the provision thereof which, upon reargument, found

that the commercial telecommunications providers licensed

to install their equipment on the towers are subject to local

zoning regulations, and substituting therefor a provision,

upon reargument, modifying the order and judgment by

declaring that the commercial telecommunications providers

23a

licensed to install their equipment on the towers are not

subject to local zoning regulations; as so modified, the order

is affirmed, with one bill of costs to the appellants.

In August 1997 the New York State Police

(hereinafter the State Police), on behalf of itself and

participating State agencies including the Department of

Transportation (hereinafter the DOT, entered into an

agreement with Castle Tower Holding Corporation

(hereinafter Castle), pursuant to which Castle was granted an

exclusive license to construct and operate telecommunications

towers on certain State-owned lands and rights-of-way. In

March 1998 Castle assigned the agreement to Crown

Communication New York, Inc. (hereinafter Crown). Under

the terms of the agreement, Crown was permitted to license

space on these towers to, among others, commercial Wireless

telecommunications providers, and the State retained the right

to collocate its own communications equipment on the

towers. The towers, nevertheless, remain the property of the

State.

In June 2000 Crown, the State Police, and the DOT

informed officials of the City of New Rochelle (hereinafter

the City) of their plans to construct a tower at a DOT

maintenance yard and to replace an existing tower on a DOT

right-of-way. Both sites are located within the City along the

Hutchinson River Parkway. Thereafter, Crown proceeded

with the plans to construct the towers and entered into license

agreements with four commercial wireless

telecommunications providers (AT&T Wireless Services,

Sprint Spectrum, L.P., Omnipoint Communications, Inc.,

and Nextel of New York, Inc.) (hereinafter the Wireless

Telephone Providers) to share space on the towers. No

zoning approval was sought from the City. When the towers

were under construction, the City withdrew its sidewalk

permit with respect to one tower and issued a notice of

violation and stop-work order with respect to the other

tower, contending that the towers were subject to the City’s

24a

zoning regulation requiring application for a special permit

from the Planning Board of the City of New Rochelle for the

construction of a wireless telecommunications facility (see

New Rochelle Code, article IXA, § 331-64.4[A]).

Crown then commenced these hybrid proceedings and

actions seeking, inter alia, to prohibit the City from

enforcing its zoning regulations against the towers and for a

judgment declaring that the towers are exempt from local

zoning regulations. By order and judgment entered

November 13, 2001, the Supreme Court applied the

“balancing of public interests" test adopted by the Court of

Appeals in Matter of County of Monroe (72, NY2d 338, 341)

and inter alia, found that the two towers were exempt from

local zoning regulations and enjoined the City from

interfering with the construction and operation of the towers.

By order entered July 2, 2002, the Supreme Court granted

the City’s motion for leave to reargue and, upon reargument,

modified the prior order and judgment to the extent that it

found that the Wireless Telephone Providers licensed to

install their equipment on the towers were subject to the

City’s zoning regulations, and otherwise adhered to its

Original determination.

Contrary to Crown’s contention, the Supreme Court

providently exercised its discretion in granting leave to

reargue (see CPLR 2221 [d] [2]; Matter of Eveready Ins. Co.

v Farrell, 304 AD2d 830; Rodney v New York Pyrotechnic

Prods., 112 AD2d 410).

However, we agree with the appellants that the

Wireless Telephone Providers who have licensed space on

the subject towers are not subject to the City’s zoning

regulations (see Matter of County of Monroe, supra). The

Wireless Telephone Providers are not precluded from

enjoying the State’s immunity simply because they are

private entities or because collocating on the DOT’s towers

will advance their financial interests (see Matter of County of

Monroe, supra; Murphy v Erie County, 28 NY2d 80). Thus,

25a

it is not the private status of the Wireless Telephone

Providers but, rather, the public nature of the activity sought

to be regulated by the local zoning authority that is

determinative in this case.

Moreover, the fact that collocation on the DOT’s

towers will further the private interests of the Wireless

Telephone Providers does not undermine the public purposes

underlying the licenses granted by the State. The DOT has

expressed its intention to locate its mew transit

communications system and Intelligent Traffic System on the

towers, the State Police will have the opportunity to collocate

its new communications equipment on the towers, the towers

have the potential to become part of a statewide wireless

network, and space on the towers has been offered to local

public safety agencies. The goals of the DOT and the State

Police to improve traffic flow, motorist safety, and

emergency response along the Hutchinson River Parkway

would be facilitated by, and partially financed by, the shared

use of the towers.

Furthermore, the present case concerns more than just

a municipality leasing space to a private entity (cf. Matter of

Foster v Saylor, 85 AD2d 876). The shared use of the towers

is integral to the State plan of improving its own

telecommunications infrastructure and furthers the State’s

goal of reducing the proliferation of towers. As in Matter of

County of Monroe, (supra at 344), allowing the City to

enforce its zoning laws against the Wireless Telephone

Providers under these circumstances would “foil the

fulfillment of the greater public purpose" in constructing

these facilities.

Finally, neither the Telecommunications Act of 1996

nor the license agreements mandate compliance with local

zoning regulations under the circumstances herein.

ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and

LUCIANO, JJ., concur.

October 20, 2003 ENTER: James Edward Pelzer, Clerk

26a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

Entered Nov 13, 2001

x

CROWN COMMUNICATION NEW YORK, INC.

Petitioner-Plaintiff,

-against- Index #7863/01

Decision, Order & Judgment

CITY OF NEW ROCHELLE, JAMES M. MAXWELL,

AS INTERIM/ACTING COMMISSIONER OF THE

DEPARTMENT OF PUBLIC WORKS OF THE CITY

OF NEW ROCHELLE, and DEPARTMENT OF

TRANSPORTATION OF THE STATE OF NEW YORK,

Respondents-Defendants.

-and-

JAMES CAVANAUGH, AS TOWN SUPERVISOR OF

THE TOWN OF EASTCHESTER AND JAMES

CAVANAUGH, INDIVIDUALLY,

Intervenor Respondents-Defendants.

x

CROWN COMMUNICATION NEW YORK, INC.

Petitioner-Plaintiff,

-against- Index #9166/2001

Decision, Order & Judgment

27a

CITY OF NEW ROCHELLE, THE COMMISSIONER

AND/OR DEPUTY COMMISSIONER OF THE

DEPARTMENT OF DEVELOPMENT OF THE CITY

OF NEW ROCHELLE, and THE DEPARTMENT OF

TRANSPORTATION OF STATE OF NEW YORK,

Respondents-Defendants.

x

The following papers numbered 1-74 were read on

petitions/complaints for injunctive and declaratory relief:

Notice of Amended Petition, Amended Summons, Amended

Petition/Complaint, Affidavits, Exhibits,

Memorandum [Index #7863/01] - 1-13

Order to Show Cause, Summons, Petition/Complaint,

Affidavits, Exhibits, Memorandum {Index #9166/01] -

14-23

Answers 24 [City], 25 [City] 26 [DOT], 27 [Cavanaugh], 28

[Crown]

Answering Affidavits, Exhibits, Memoranda - 29-43 [City],

44-67 [DOT], 68 [Cavanaugh]

Reply Affidavits, Exhibits, Memoranda - 69-70,70-72

[Crown]

Stipulation of Joinder & Order [6/18/01] - 73

Letter [Lombardo 7/27/01] - 74

Petitioner challenges the City of New Rochelle’s

("City") jurisdiction to regulate two cellular towers on

property owned by New York State and under the

28a

jurisdiction of the Department of Transportation ("DOT’).

The first cell tower replaces an existing tower at the

intersection of the Hutchinson River Parkway and Wilmot

Road in the City. The second cell tower is located at the

DOT Maintenance Yard at Exit 15 of the Hutchinson River

Parkway in the City.!

At issue is whether the towers are subject to local

regulation under the balancing test adopted in (County of

Monroe v. Rochester, 72 NY2d 338, which sets forth various

factors to consider in resolving a conflict between the zoning

jurisdiction of one political unit and proposed action of

another governmental unit that owns land within the former’s

boundaries. The following analyzes the application of those

factors to the facts at bar.

Although the subject proceedings are brought by

Crown Communication New York, Inc. ("Crown"), it does

SO in its capacity as an agent of the Department of

Transportation ("DOT") and DOT joins in the relief

requested by Crown. The Court, therefore, deems DOT to be

the instrumentality seeking immunity. As a state agency, the

Department of Transportation ("DOT") occupies the same

status as the State.* DOT is charged with the responsibility

of coordinating and developing a comprehensive

' The first tower is the subject of the proceeding under index

#7863/01; the second tower is the subject of the proceeding under index

#9166/01. These proceedings have since been joined.

* Cases cited by the City involving state authorities are

distinguishable. State authorities are not the same as the State, but

separate entities created by legislation.

29a

transportation policy for the State including maintenance of

the highways under its jurisdiction.

The kind of function of land use involved and the

legislative grant of authority to the encroaching governmen'

unit.

The development of cell tower sites along or near

transportation corridors, such as the Hutchinson Parkway,

falls within the ambit of authority of DOT and is consistent

with, and related to, its governmental function in managing

the transportation corridors under its jurisdiction.

The Court rejects the argument that DOT is required

under Highway Law section 10(38) to comply with local

zoning regulations. The provisions of the Highway Law in

question only apply in the case of a sale or lease of property

by DOT. DOT has done neither in this case. The

Telecommunications Site Manager Service Agreement makes

Crown responsible for the design, construction, operation,

marketing and maintenance of wireless telecommunications

facilities on State property, but Crown has no ownership or

possessory interest in the sites under its management.’

The further argument, that the arrangement violates

the federal Telecommunications Act of 1996, 47 U.S.C.

section 151, et seq ("TCA"), is specious. The preservation

of local jurisdiction in the TCA begs the question of whether

local regulation is applicable. Nor is there any basis to find

that either DOT or Crown have violated the prohibition in

the TCA against discrimination among cellular service

providers.

> The reliance by the City and Intervenors on language in the

licensing agreements, that the licensees will comply with local

regulations, is equally misplaced. Compliance need only be made with

“applicable” requirements. Whether a particular regulation is applicable

remains to be determined.

30a

The extent of the public interest to be served.

The towers in question will support DOT’s Intelligent

Transportation System and have the potential to support the

Statewide Wireless Network, thereby improving the

communication abilities of the State Police. The maintenance

yard tower will also increase the communication range for

DOT’s maintenance workers. In addition, use of the facilities

by wireless and cellular telecommunications carriers, inures

to the benefit of the public by closing coverage gaps that may

exist in the carriers’ networks, enhancing the public’s ability

to report emergencies from cellular phones.‘ By co-locating

equipment for both private and public telecommunications

needs, DOT is reducing the proliferation of towers as well.

The effect of local land use regulation would have on

the enterprise concerned and the impact upon legitimate local

interest. |

Subjecting the DOT sites to loca! regulation may have

a significant negative impact in that it could impede the

development of a comprehensive statewide system involving

transportation and related communications. On the other

hand, the City has failed to show that the cell towers will

have "a significant impact on any legitimate local interest.

One tower mere]y rep]aces a preexisting tower "located

along the Hutchinson Parkway while the other tower is

situated in a maintenance yard. As discussed below, DOT

also conducted a SEQRA review of the proposed actions and

found the towers would have no significant environmental

* Wireless telecommunications services fall within the definition

of “public utility” as services "essential to the public interest..." (Cellular

Tel. Co. v. Rosenberg, 82 NY2d 364).

3la

impacts.

Alternative locations for the facility in less restrictive

zoning areas and alternative methods of providing the needed

improvement.

The City has failed to show that there are alternative

locations or methods for achieving DOT’s telecommunication

goals. The facilities to be used to support the Intelligent

Transportation System (such as cameras) and the Statewide

Wireless Network, by necessity, belong in close proximity to

the highway corridor.

Intergovernmental participation _in project

development and ity t

The City was notified in May, 2000 and June 2000 of

the plans for the towers and invited to participate in their

development, but chose not to do so. The City’s Mayor, in

fact, advised DOT in June, 2000 that he only considered the

City an "interested" agency. This assessment effectively

conceded that the City lacked authority over the proposed

actions.°

Likewise, following notification that DOT had issued

negative declarations for the towers, the City took no steps

to challenge those determinations. Even in this proceeding,

> See 6 NYCRR section 617.2 (s) - (u). An “involved agency” is

one with jurisdiction by law to fund, approve or directly undertake an

action. The lead agency is an involved agency. An “interested agency",

by contrast, is one that lacks the jurisdiction to fund, approve or directly

undertake an action but wishes to participate in the review process

because of its specific expertise or concern about a proposed action. An

interested agency has the same ability to participate in the review process

as a member of the public.

32a

the City has failed to counterclaim to annul the SEQRA

determinations. To the extent, therefore, the City now raises

SEQRA objections in these proceedings, such objections are

not properly before the Court.

Conclusion

Although no one factor is dispositive (County of

Monroe, supra at 343), the Court finds that, on balance, the

interests of the State outweigh the interests of the City. The

cell towers that are the subject of these proceedings,

therefore, are exempt from local zoning regulation.

The City is enjoined from regulating the construction

and operation of the towers. The revocation of the March 23,

2001 Sidewalk Permit with respect to the replacement facility

at Wilmot Road and the Notice of Violation and Stop Work

Order issued May 18, 2001 with respect to the facility in the

DOT Maintenance Yard were in violation of law as these

actions were erroneously predicated on the applicability of

local regulation.

Petitioner’s request for attorney’s fees is denied.

Petitioner has failed to demonstrate any authority for such an

award.

The foregoing constitutes, the Decision, Order &

Judgment of the Court.

Dated: White Plains, New York

November 9, 2001

s/ Nicholas Colabella

Supreme Court Justice

CRANE, GREENE & PARENTE

Attorneys for Petitioner-Plaintiff by:

John P. Stockli, Jr., Esq & Jacqueline Phillips Murray, Esq.

90 State Street

Albany, NY 12207

33a

BERNIS S. NELSON

Corporation Counsel,

By: Kathleen E. Gill, D.C.C.

Attorney for Respondent/Defendants City of New Rochelie

515 North Avenue

New Rochelle, NY 10801

ELIOT SPITZER

Attorney General of the State of New York

By: Richard Lombardo, AAG

Attorneys for Respondent/Defendant New York State

Department of Transportation .

101 East Post Road

White Plains, NY 10601

WILSON, ELSER, MOSKOWITZ,

EDELMAN & DICKER, LLP

By: Steven Silverberg, Esq. and Katherine Zalantis, Esq.

Attorneys for Intervenor Respondent/Defendants Cavanaugh

3 Gannett Drive

White Plains, NY 10604

34a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

CROWN COMMUNICATION NEW YORK, INC.

Petitioner/Plaintiff, sean

-against- Index #7863/01

CITY OF NEW ROCHELLE, JAMES M. MAXWELL,

AS INTERIM/ACTING COMMISSIONER OF THE

UVEPARTMENT OF PUBLIC WORKS OF THE CITY

OF NEW ROCHELLE, and DEPARTMENT OF

TRANSPORTATION OF THE STATE OF NEW YORK,

Respondents/Defendants,

Assigned Judge

-and- Hon. Nicholas Colabella

JAMES CAVANAUGH, AS TOWN SUPERVISOR OF

THE TOWN OF EASTCHESTER AND JAMES

CAVANAUGH, INDIVIDUALLY,

Intervenors/Respondents-Defendants,

CROWN COMMUNICATION NEW YORK, INC.

Petitioner/Plaintiff,

-against- Index #9166/2001

CITY OF NEW ROCHELLE, THE COMMISSIONER

AND/OR DEPUTY COMMISSIONER OF THE

DEPARTMENT OF DEVELOPMENT OF THE CITY

OF NEW ROCHELLE, and THE DEPARTMENT OF

TRANSPORTATION OF STATE OF NEW YORK,

Respondents-Defendants.

35a

DAVID S. STEINMETZ, an attorney admitted to

practice law in the State of New York, affirms the following

under the penalties of perjury:

1. I am a member of Zarin & Steinmetz, Special

Counsel for Defendants the City of New Rochelle and the

Commissioner and/or Deputy Commissioner of the

Department of Development of the City of New Rochelle

(the "City" or "New Rochelle") in the above-captioned

matter.

2. I have chosen to submit this Affirmation because

I believe the Court needs to be apprised of a recent

telecommunications case involving the City of New Rochelle

and Nextel of New York, Inc.

3. The reason that case, and the decision of Southern

District Court, are significant here, quite simply, is because

New Rochelle exposed the fact that wireless

telecommunications providers will make representations

about public safety and the abundant need to fill gaps in

service coverage when it is simply not true at all.

4. Congress recognized the role of municipalities in

testing the veracity of telecommunications providers’ claims

of need when it amended Section 332(c)(7) of the TCA in

1999. See S. Res. 1538, 106th Cong. S10391 -

*S10458-10459 (August 5, 1999) (available at 1999 WL

593813). Congress’ express purpose for such amendments

was, among other things, "[t]o permit State and local

governments. . . to hold applicants for permits for the

placement, construction, or modification of such

telecommunications facilities, and provider of services

using such towers and facilities, accountable for the

truthfulness and accuracy of representations and statements

placed in the record of hearings for such permits, licenses or

approvals." Id. at $10460.

5. In the fast-paced, rapidly growing industry of

wireless communications, it would be easy for a modest

36a

municipality to give in to major private telecommunications

companies "banging the table" insisting upon the issuance of

a permit.

6. As our firm and the City of New Rochelle learned

in the Nextel case, Congress was wise to preserve local

zoning authority in situs, construction and modification

determinations. The lessons learned in that case are indeed

instructive in this one.

7. Our firm represented the City of New Rochelle in

a recent case before the Chief Judge of the Southern District

of New York, Nextel of New York. Inc. v. The City of New

Rochelle. et_al.. ("Nextel"), J. Mukasey, Case No.

01-CIV-10049 (S.D.N.Y. December 3, 2001).

8. The Honorable Michael B. Mukasey in that case

upheld New Rochelle’s enactment of a limited moratorium

prohibiting approval of wireless telecommunications facilities

for 90 days because he recognized the City’s important

interest in having an updated local ordinance designed to

adequately review issues such as a provider’s alleged need to

close gaps in service, or to consider less intrusive or

alternative locations and/or designs, and to take into account

recent advances in technology including stealth technology

and wireless PCS. A copy of the Transcript of the Decision

is annexed hereto as Exhibit "A."

9. Judge Mukasey rejected Nextel’s attempt to

extricate itself from the subject moratorium by arguing that

it had to relieve a serious "gap in coverage" and was thus

entitled to override the City’s zoning authority. In its

decision, the District Court found - despite

Nextel’s bald, conclusory allegations to the contrary - there

was no such gap in service. In so doing, Justice Mukasey

was persuaded by the sworn testimony elicited on

cross-examination at the evidentiary hearing of Nextel’s own

expert Robert Bertona, and by the City’s expert, Richard

Comi.

10. Mr. Bertona, a radio frequency engineer

37a

employed by Nextel, admitted on cross-examination "that he

is unaware of any complaints Nextel has received from

police, fire or school officials in New Rochelle. . . nor is he

aware of any particular complaints from customers"

pertaining to coverage gaps. (Decision at 9.) Additionally,

the Court was further persuaded by Mr. Comi’s testimony

that "he conducted a drive test, using a Nextel telephone, and

was able to complete and maintain telephone calls throughout

the area of the alleged gap. He testified that his Nextel

telephone registered at all times signal strength of five bars,

the strongest available signal." (id.)

11. When questioned by Judge Mukasey as to why

Nextel would want to go to the expense of installing an

antenna that is not "necessary," Mr. Comi testified "that the

real issue for Nextel is the capacity of one of its existing

antennas, which is overloaded - a condition that could be

mitigated by putting an antenna on top of 75 White Oak

Street (the location in question in that case), but could be

remedied as well by making adjustments to the existing

overloaded antenna." (Id.) Mr. Comi’s testimony was

significant because a local municipality cannot prohibit a

telecommunications provider from remedying a real "gap" in

service or coverage. But no such prohibition exists in, nor

does any protection emanate from, the TCA in connection

with a carrier’s attempt to increase its capacity in a particular

cell area.

12. If the private providers are permitted to bootstrap

onto the State’s immunity here, New Rochelle, and by

implication all municipalities, lose the opportunity to make

the critical determination as to whether the individual private

providers seeking to locate antennas within its borders are

doing so because of a real gap in coverage or merely because

of a commercial desire to increase capacity. Absent this

opportunity, the local land use authority specifically

preserved by the TCA’s savings clause becomes meaningless,

and Congress’ intent in enacting that provision would be

38a

frustrated.

13. Sovereign immunity is not supposed to provide a

basis for some private carriers to obtain a competitive

advantage over others.

14. In exercising its authority under the TCA by

seeking to ensure that the individual providers comply with

New Rochelle’s Telecommunications Law, Respondent is not

trying to preclude wireless communications in the City of

New Rochelle. (See Affirmation of Bernis Nelson dated

November 15, 2001, submitted in connection with the Nextel

litigation and attached hereto as Exhibit "B".

15. Rather, the City is merely seeking to make certain

that any such facilities are located, designed and constructed

appropriately. There have been significant advances in

telecommunications technology, including collocation, stealth

technology, and towerless PCS-over-cable or PCS-over-fiber

phone service, which are designed to minimize the

proliferation of cellular towers and antennas and reduce their

aesthetic impacts. The requirement in local codes that

providers at least consider, if not implement, these

technologies is recognized by Congress and the courts

interpreting the TCA as a legitimate exercise of local

authority.

16. Thus, there is no reason why local zoning should

not apply here given the explicit language of Crown’s written

agreement and the TCA’s explicit delegation to localities of

the right to regulate the placement, construction and

modification of personal wireless service facilities.

Dated: April 12, 2001

s/ DAVID S. STEINMETZ

CITY OF NEW ROCHELLE, JAMES M. MAXWELL, AS

INTERIM/ACTING COMMISSIONER OF THE

DEPARTMENT OF PUBLIC WORKS OF THE CITY OF

NEW ROCHELLE,

Respondents-Defendants-Respondents,

Appellate Division Docket No. 2002-6435,

Westchester County Clerk’s Index No. 7863/01

B. Compliance with Local Regulations is Required by

Federal Law.

The Telecommunications Act expressly preserves

local jurisdiction with respect to telecommunications facilities

including the regulation of "the placement, construction and

modification of personal, wireless service facilities". 47 USC

Section 332(c)(7). Courts have recognized that the

Telecommunications Act specifically preserves the autonomy

of local municipalities. Sprint Spectrum L.P. v. Willoth, 176

F. 3d 630, on (2nd Cir. 1999); see aleo New_York SMA

2d 381 S. D. N.Y. 2000) (finding that és Town could

properly choose between competing proposals to build towers

and base its choice upon a desire to minimize the level of

radio frequency that would reach the surrounding area);

Omnipoint Commun. v. Newtown Township, 219 F.3d 240

(3d Cir. 2000); cert den’d 531 U.S. 985 (2000) (upholding

Town Board’s denial of building permit because the gap in

providers coverage of wireless services was insufficient alone

to establish a "significant" gap in wireless services); AT&T

Wireless, PCS, Inc. v. City Council of the City of Virginia

Beach, 155, F.3d 423 (4th Cir. 1998).

40a

Moreover, the Telecommunications Act prohibits

unreasonable discrimination against providers of functionally

equivalent services. 47 U.S.C. §332(c) (7)(B)(i) (); See

Willoth, 176 F .3d 630 (2d Cir. 1999).

Courts have specifically held that the location of

personal wireless service facilities on municipal buildings is

subject to local zoning regulations. Omnipoint

Vv

Peekskill, 202 F.Supp. 2d 210 (S.D.N.Y. 2002). In

Omnipoint_v. City of Peekskill, the City allowed several

wireless service carriers to place antenna on municipal

property without obtaining a building permit as is required

for such facilities pursuant to the Peekskill Zoning Code. Id.

The Court held that wireless service facilities located on

municipally-owned buildings were subject to local

regulations. Id. (citing Foster v. Saylor, 85 A.D.2d 876, 447

N.Y.S.2d 75 (4th Dept., 1981) (lease by a school district to

a private manufacturing company was subject to local

regulations). Moreover, the Court held that the City of

Peekskill unlawfully discriminated against other carriers by

attempting to extend its own immunity to private

telecommunications carriers. Id; see also Little Joseph

Realty. Inc. v. Town of Babylon, 51 A.D.2d 158,379

N.Y.S.2d 436 (2d Dept., 1976) aff'd 41 N.Y.2d 738, 395

N.Y.S.2d 428 (1977).

In Little Joseph Realty, this Court held that "a

municipality may not engage in the business of selling its

zoning exemptions to the highest bidder [and]... it cannot

immunize [such] activity from zoning law restrictions by

transfer to a private business entity". Little Joseph Realty

Inc. v. Town of Babylon, 51 A.D.2d 158, 164, 379

N.Y.S.2d 436,440 (2d Dept., 1976) app. dism’d 39 N. Y.2d

827, 385 N.Y.S.2d 768 (1976) aff'd 41 N.Y.2d 738, 395

N.Y.S.2d 428 (1977).

Thus, where a government enters into a lease with a

privately-operated commercial venture in exchange for

4la

licensing fees, such lease does not confer any special benefit

upon the licensee that it would not otherwise have if it were

on private property. Gannett Sattelite Information Network,

Inc. v. Metropolitan Transportation Authority, 745 F.2d 767

(2d Cir. 1984) (MTA’s management of train station facilities

and its lease to Gannett for newsracks is proprietary and not

governmental); Queens County Business Alliance, Inc. v.

New_York State Racing Association, 89 A.D.2d 46, 454

N.Y.S.2d 544 (2d Dept., 1982).

In Queens County Business Alliance, this Court held

that the operation of flea markets on racetrack parking lots

was subject to local zoning regulations even though the

operation of the racetracks was a governmental function. Id;

see e.g., Foster v. Saylor, 85 A.D.2d 876, 447 N.Y.S.2d 75

(4th Dept., 1981) (holding that use of unused school facility

to private corporation for limited industrial use was subject

to local zoning); People of the State of New York v. New

York Racing Association, 457 N.Y.S.2d 668 (App. Term

2nd and 11th District 1982) (finding that leasing of a race

track parking field for use as a flea market was not immune

from local regulations); People v. Witherspoon, 52 Misc. 2d

320, 275 N.Y.S.2d 592 (Dist. Ct., Suffolk Co. 1966) aff'd

60 N.Y.2d 70, 468 N.Y.S.2d 450 (the erection of

commercial billboards on property owned by the

Metropolitan Transportation Authority (MTA) had no direct

bearing on the MTA’s governmental function of providing

rail transportation services and as such was subject to local

regulations); County of Westchester _v. Village of

Mamaroneck, 22 A.D.2d 143, 255 N.Y.S.2d 290 (2d Dept.

1964) aff'd 16 N.Y.2d 940, 264 N.Y.S.2d 925 (1965);

Nehrbas v. Incorporated Village of Lloyd Harbor, 2 N. Y.2d

190, 159 N.Y.S.2d 145 (1957); People of the State of New

York v. Witherspoon, 52 Misc.2d 320, 275 N.Y.S.2d 592

(Dist. Ct., Suffolk Co. 1966) (use of MTA property for

erection of commercial advertising signs was merely

incidental to the governmental function and required use

42a

compliance with local zoning ordinance).

Therefore, the Telecommunications Act exclusively

reserves the right of local municipalities to regulate the

placement and siting of telecommunications uses and Courts

have held that such authority specifically includes facilities

located on government property. It is important to note that

the Telecommunications Act, while expressly preserving

local jurisdiction, specifically gives state and local

governments the right to allow private telecommunications

carriers to locate on government property "on a competitively

neutral and non-discriminatory basis..." 47 U.S.C. Section

253 (c). Thus, in contemplating the location of

telecommunications facilities on government property,

Congress never indicated that such facilities would be exempt

from local regulations. In fact, as previously stated, the

Telecommunications Act specifically preserves local

authority.

In light of the clear legislative intent of the

Telecommunications Act as well as the above-cited legal

precedent, it is respectfully submitted that Judge Colabella

properly held that the private telecommunications carriers

located on the two towers constructed by Crown are subject

to local regulations.

43a

Excerpts from the Motion for Leave to Appeal to the Court

of Appeals of the,

CITY OF NEW ROCHELLE, JAMES M. MAXWELL, AS

INTERIM/ACTING COMMISSIONER OF THE

DEPARTMENT OF PUBLIC WORKS OF THe CITY OF

NEW ROCHELLE,

Appellants,

POINT I

THE INDIVIDUAL TELECOMMUNICATIONS

CARRIERS ARE SUBJECT TO LOCAL

REGULATIONS.

A. Compliance with Local Regulations is Required by

Federal Law.

The Telecommunications Act expressly preserves

local jurisdiction with respect to telecommunications

facilities, including the regulation of "the placement,

construction and modification of personal, wireless service

facilities". 47 USC Section 332(c)(7). Courts have

recognized that the Telecommunications Act specifically

preserves the autonomy of local municipalities. Sprint

Spectrum L.P. v. Willoth, 176 F.3d 630,639, (2nd Cir.

1999); see also New York SMSA Limited Partnership v. The

Town of Clarkstown, 99 F.Supp. 2d 381 (S.D.N.Y. 2000);

Omnipoint Commun. v. Newtown Township, 219 F.3d 240

(3d Cir. 2000); cert den’d 531 U.S. 985 (2000); AT&T

Wireless, PCS, Inc. v. City Council of the City of Virginia

Beach, 155, F.3d 423 (4th Cir. 1998). Moreover, the

Telecommunications Act prohibits unreasonable

discrimination against providers of functionally equivalent

services. 47 U.S.C. §332(c) (7)(B)(i) (); See Willoth, 176

44a

F.3d 630 (2d Cir. 1999).

Courts have specifically held that the location of

personal wireless service facilities on public property is

subject to local zoning regulations. Omnipoint

Communications. Inc. v. Common Council of i

Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). In

Omnipoint _v. City of Peekskill, the City allowed several

wireless service carriers to place antenna on municipal

property without obtaining a building permit as is required

for such facilities pursuant to the Peekskill Zoning Code. Id.

The Court held that wireless service facilities located on

governmental property were subject to local regulations. Id.

(citing Foster v. Saylor, 85 A.D.2d 876, 447 N.Y.S.2d 75

(4th Dept., 1981) (lease by a school district to a private

manufacturing company was subject to local regulations).

Moreover, the Court held that the City of Peekskill

unlawfully discriminated against other carriers by attempting

to extend its own immunity to certain private

telecommunications carriers located on City property. Id; see

also Little Joseph Realty. Inc. v. Town of Babylon, 51

A.D.2d 158, 379 N.Y.S.2d 436 (2d Dept., 1976) aff’d 41

N.Y.2d 738, 395 N.Y.S.2d 428 (1977).

Similarly, other jurisdictions have held that

telecommunications facilities constructed on state-owned

property are subject to the zoning regulations of the local

government. Board of Supervisors of Fairfax County v.

Washington. D.C. SMSA_L.P., 258 Va. 558, 522 S.E.2d

876 (S.C. Va. 1999). In Fairfax County, the Supreme Court

of Virginia held that where individual telecommunications

Carriers share use of a telecommunications tower on

state-owned land with the Department of Transportation,

such carriers are not immune from local regulations. Id. The

Court held that the "mere fact that the towers are

conveniently, or even necessarily, located on state-owned

rights-of-way is irrelevant to the question whether they fall

within the regulatory authority of the planning

45a

commission..." Id. at 881. The court specifically held then

that, although the Department of Transportation itself was

immune from local regulations, such immunity did not

extend to the individual telecommunications carriers. Id.

Moreover, in Little Joseph Realty, the Second

Department held that "a municipality may not engage in the

business of selling its zoning exemptions to the highest

bidder [and]. ..it cannot immunize [such] activity from zoning

law restrictions by transfer to a private business entity”.

Joseph Realty Inc. v. Town of Ba , 51 A.D.2d 158,

164, 379 N.Y.S.2d 436, 440 (2d Dept., 1976) app. dism’d

39 N.Y.2d 827, 385 N.Y.S.2d 768 (1976) aff'd 41 N.Y.2d

738, 395 N.Y.S.2d 428 (1977). Thus, where a government

enters into a lease with a privately-operated commercial

venture in exchange for licensing fees, such lease does not

confer any special benefit upon the licensee that it would not

otherwise have if it were on private property. Gannett

Sattelite Information Network. Inc. v. Metropolitan

Transportation Authority, 745 F.2d 767 (2d Cir. 1984)

(MTA’s management of train station facilities and its lease to

Gannett for newsracks is proprietary and not governmental);

ueens County Business Alli Vv Ww

Racing Association, 89 A.D.2d 46, 454 N.Y.S.2d 544 (2d

Dept., 1982).

ounty Business Alli , the Second

Department held that the operation of flea markets on

racetrack parking lots was subject to local zoning regulations

even though the operation of the racetracks was a

governmental function. Id; see e.g., Foster v. Saylor, 85

A.D.2d 876, 447 N.Y.S.2d 75 (4th Dept., 1981) (holding

that use of an unused school facility to private corporation

for limited industrial use was subject to local zoning); People

of the State of New York v. New York Racing Association,

457 N. Y.S.2d 668 (App. Term 2nd and 11th District 1982)

(finding that leasing of a race track parking field for use as

a flea market was not immune from local regulations);

46a

People v. Witherspoon, 52 Misc. 2d 320, 275 N.Y.S.2d 592

(Dist. Ct., Suffolk Co. 1966) aff'd 60 N.Y.2d 70, 468

N.Y.S.2d 450 (the erection of commercial billboards on

property owned by the Metropolitan Transportation Authority

(MTA) had no direct bearing on the MTA’s governmental

function of providing rail transportation services and as such

was subject to local regulations); County of Westchester v.

Village of Mamaroneck, 22 A.D.2d 143, 255 N.Y.S.2d 290

~ (2d Dept. 1964) aff'd 16 N.Y.2d 940, 264 N.Y.S.2d 925

(1965); Nehrba In llage of Lloyd Harbo

N.Y.2d 190, 159 N.Y.S.2d 145 (1957).

Therefore, the Telecommunications Act exclusively

reserves the right of local municipalities to regulate the

placement and siting of telecommunications uses and courts

have held that such authority specifically includes facilities

located on government property. It is important to note that

the Telecommunications Act, while expressly preserving

local jurisdiction, specifically gives state and local

governments the right to allow private telecommunications

carriers to locate on government property and to require the

payment of fair and reasonable compensation "on a

competitively neutral and non-discriminatory basis..." 47

U.S.C. Section 253(c). Thus, in contemplating the location

of telecommunications facilities on government property,

Congress never indicated that such facilities would be exempt

from local regulations. In fact, as previously stated, the

Telecommunications Act specifically preserves local

authority.

In its decision, the Appellate Division held that the

activities of the private telecommunications carriers were

immune from local regulations based upon the “public

nature" of the services they provide and that the revenue

from such services may provide financing for a potential

State use of the towers in the future. (Appellate Division

Order, page 3, annexed heretc). In light of the clear

legislative intent of the Telecommunications Act as well as

47a

the above-cited legal precedent, it is respectfully submitted

that such finding is in violation of federal law which

expressly reserves the right of local governments to regulate

such activities while recognizing that such activities may be

located on government land for a reasonable fee. Thus,

Congress recognized that the location of private

telecommunications facilities on government property would

provide a source of revenue for the government, yet never

indicated that such arrangement would immunize the private

carriers from local regulations. In fact, Congress specifically

and expressly preserved local authority to regulate such

Carriers.

Moreover, the State has _ violated the

Telecommunications Act by extending its immunity to the

particular carriers located on state property to the clear

disadvantage of other telecommunications carriers who are

required to comply with local regulations in order to operate

in New Rochelle. Based upon the foregoing, it is respectfully

submitted that this Court grant the City leave to appeal.

B. Compliance with Locai Regulations is Required Under

the Clear Language of the State’s Own Agreements.

The individual telecommunications carriers are subject

to local regulations as required by the language of the State’s

own agreements. Paragraph 10 of the Agreement between the

State and Crown, specifically provides that Crown shall

comply with all applicable local, state, and federal laws. (R.

325, omitted and filed separately). Annexed to the

Agreement is a Form User License to be executed by Crown

when granting a user license to a private telecommunications

carrier for use of any of the proposed towers. (R. 327).

Paragraph 7 of the Form User License provides:

the installation, maintenance, and operation of

48a

Licensee’s Site Equipment must at all times be

in strict compliance with the Technical

Standards, all applicable federal, state, and

local laws, ordinances, and _ regulations

(including, without limitation, the FCC,

Federal Aviation Administration, city zoning,

building, and fire codes...)

(R. 330). (emphasis added). This Form User License with

the provision requiring compliance with local regulations was

executed by Crown when it granted user licenses to AT&T,

Voicestreami and Nextel. (R. 341, 356 and 373).

Thus, pursuant to the provisions of its own

agreements, the State required compliance with local

regulations and AT&T, Voicestream and Nextel have

expressly agreed to said requirement. Judge Colabella then

simply enforced the plain language of the State’s agreements

rejecting the State’s position that the provisions of its own

agreements should not be given full force and effect. Since

Crown, the State, AT&T, Voicestream and Nextel have

previously agreed that the individual telecommunications

carriers shall comply with local regulations, the decision of

Judge Colabella should have been affirmed. The Appellate

Division has held that the State’s agreements do not require

compliance with local regulations. (Appellate Division Order,

page 4, annexed hereto) However, as provided herein, the

plain language of the State’s agreements executed in

connection with the subject matter requires strict compliance

with local regulations. Based upon the foregoing, Judge

Colabella properly held that although the State’s use of the

proposed towers was immune from local regulations, any use

of the towers by individual telecommunications carriers was

in fact subject to local regulations.

49a

Exc from th 1 brief in ourt of A

the,

CITY OF NEW ROCHELLE, JAMES M. MAXWELL, AS

INTERIM/ACTING COMMISSIONER OF THE

DEPARTMENT OF PUBLIC WORKS OF THE CITY OF

NEW ROCHELLE,

_ Appellants,

STATEMENT OF FACTS

This matter involves two telecommunications towers

constructed on state-owned property located entirely within

the City of New Rochelle. The first site is located at Exit 15

of the Hutchinson River Parkway (the "Maintenance Yard

Site"). The second site is located at the intersection of the

Hutchinson River Parkway and Wilmot Road (the "Wilmot

Road Site”).

On August 25, 1997, Castle Tower Holding

Corporation and the State of New York under the jurisdiction

of the Department of Police (collectively, the "State")

entered into a Telecommunications Site Manager Agreement

(the "Agreement"), which was subsequently assigned to

Crown Communication of New York Inc. ("Crown"). (R.

24, 632).!

Pursuant to paragraph 2 of the Agreement, Crown

enjoys, "an exclusive license to use all rights of the State in

and to the Sites which are necessary for CTHC’s [Crown’s]

full use and exploitation of the Sites for the purposes set

forth in this Agreement...". (R. 637) (emphasis added). In

' All references to the record below will be referred to as "(R._)

The additional papers filed in this Court that are submitted as part of the

record herein will be referred to as "(CA _)".

50a

compensation for exclusive rights, paragraph 3 requires

Crown to pay the State 30% to 50% of the gross revenue

generated from user licenses granted by Crown to private

telecommunications providers for use of the towers.

(R.639-640).

The interest granted to Crown in the Agreement is

exclusive even in relation to the State’s interest.

Significantly, paragraph 13 of the Agreement provides that

the State must submit a formal request for use of any

proposed tower. (R. 645). Such request may besdenied by

Crown based upon "space availability, Capacity and the rights

of any then existing users." (R. 645).

Additionally, the Agreement requires strict

compliance with local regulations with respect to all user

licenses granted by Crown. (R. 642, 671). Specifically, the

State annexed to the Agreement a Form User License to be

used by Crown when entering into user licenses with private

telecommunications carriers. (R. 668). The State’s Form

User License provides as follows:

Licensee’s site equipment must at all times be

in strict compliance with the Technical

Standards, all applicable federal, state and

local laws, ordinances, and regulations

(including, without limitation, the FCC,

Federal Aviation Administration, city zoning,

building and fire codes).

(R. 671) (emphasis added).

Thus, when the Agreement was executed, the State

and Crown clearly intended that any use of the proposed

towers by private telecommunications carriers would be

subject to local regulations. Thereafter, AT&T, Voicestream

and Nextel executed user licenses expressly agreeing to

comply with local regulations. (R. 341,356 and 373).

Sla

On June 13, 2000, representatives of Crown and the

State met with the New Rochelle City Council. (R.386). At

that meeting, Charles L. White, a state official, presented a

conceptual plan to construct telecommunications towers on

State-owned property throughout the State of New York.

(R.386). The State then sent the City a four-page Negative

Declaration of Environmental Significance indicating that the

environmental review was complete, one month after having

this first and only informational meeting with City Council.

(R. 272).

However, the documents reviewed by the State in its

environmental review, including without limitation, the

construction drawings, visual analysis and full environmental

assessment form, were not submitted to the City until twenty

(20) days after the completion of construction with respect to

the Maintenance Yard Site and after the State authorized the

commencement of construction with respect to the Wilmot

Road Site. (R.388). Thus, the State and Crown proceeded to

construct the towers without affording the City a meaningful

opportunity to participate in its environmental review.

The State and Crown argued before the Court below

that pursuant to Matter of the County of Monroe, the City

was preempted from regulating the construction and

operation of the towers. The City argued that Matter of

County of Monroe does not apply to this matter since the use

of the towers by the private telecommunications providers is

neither governmental nor accessory to a governmental use.

(R. 402, 404). The City also argued that compliance with

local regulations was required by federal law as well as the

agreements executed by the State, Crown and the private

telecommunications providers associated with this matter.

The City respectfully submits that the, holding in

Matter of County of Monroe, does not apply because this

matter does not involve a governmental use that is the

primary use of the property. Moreover, the order of the

Appellate Division is contrary to the Telecommunications Act

52a

as well as the clear language and intent of the State’s own

Agreement.

POINT I

EVEN IF APPLICABLE, MATTER OF COUNTY

OF MONROE REQUIRES COMPLIANCE

WITH LOCAL REGULATIONS.

Even under the standards set forth in Matter of

County of Monroe, compliance with local regulations is

required.

A. Authorizing Statute: Legislative Intent.

Here, unlike Matter of County of Monroe, there is no

evidence of legislative intent to exempt the private

telecommunications carriers from local regulation. 72

N.Y.2d 338. To the contrary, the Telecommunications Act

expressly preserves local jurisdiction with respect to

telecommunications facilities, including the regulation of "the

placement, construction and modification of personal,

wireless service facilities" while recognizing that such

facilities may be located on government land for a fee. 47

U.S.C. § 332(c) (7) & 47 U.S.C. § 253(c).*

Additionally, the Telecommunications Act prohibits

unreasonable discrimination by government entities against

providers of functionally equivalent services. 47 U.S.C.

§332(c) (7)(B)(i)@). Thus, granting governmental immunity

* See Sprint Spectrum L.P. v. Willoth, 176 F.3d 630 (200 Cif.

1999); Omnipoint Commun. v. Newtown Township, 219 F.3d 240 (3d

Cir. 2000); cert den’d 531 U.S. 985 (2000); AT&T Wire!

vy. City Council of the City of Virginia Beach, 155 F.3d 423 (4th Cir.

1998).

53a

to some private telecommunications carrieis but not others,

based only upon whether they pay a fee to the State, clearly

violates this prohibition.

Moreover, courts have specifically held that the

location of personal wireless service facilities on public

property is subject to local zoning regulations. Omnipoint

Communications, Inc. v. Common Council of the City of

Peekskill, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). In

Omnipoint v. City of Peekskill, the City of Peekskill allowed

several wireless service carriers to place antennae on

municipal property without obtaining a building permit as is

required for such facilities pursuant to the Peekskill Zoning

Code. Id. The Court held that wireless service facilities

located on government property were subject to local

regulations. Id. (citing Foster v. Saylor, 85 A.D.2d 876, 447

N.Y.S.2d 75 (4th Dept., 1981).° Moreover, the Court held

that the City of Peekskill unlawfully discriminated against

other carriers by attempting to extend its own immunity to

certain private telecommunications carriers located on City

property. Id. at 226.

Therefore, the Telecommunications Act, while

expressly preserving local jurisdiction, specifically gives state

and local governments the right to allow private

telecommunications carriers to locate on government property

and to require the payment of fair and reasonable

compensation "on a competitively neutral and

> Other jurisdictions have similarly held that telecommunications

facilities constructed on state-owned property are subject to the zoning

regulations of the local government Board of Supervisors of Fairfax

County v. Washington. D.C. SMSA L.P., 258 Va. 558, 522 S.E.2d 876

(S.C. Va. 1999) ("The mere fact that the towers are conveniently, or

even necessarily, located on state-owned rights-of-way is irrelevant to the

question whether they fall within the regulatory authority of the planning

commission..." Id. at 566).

54a

non-discriminatory basis". 47 U.S.C. Section 253(c). In

contemplating the location of : telecommunications facilities

on government property then, Congress never intended

that such facilities would be exempt from local regulations.

Rather, the Telecommunications Act expressly preserves

local authority. Therefore, unlike the statute governing

municipal airports at issue in the Matter of County of

Monroe, the Legislature clearly intended that

telecommunications facilities located on government land

would be subject to local regulations.

In any event, under the balancing approach, the scales

tip in favor of compliance with local regulations.

B. Nature and Scope of the Instrumentality Seeking

Immunity.

The instrumentality seeking immunity here is clearly

private. Although the individual telecommunications carriers

provide a service to the public, they are not governmental

entities performing a governmental function.

The Agreement between the State and Crown

demonstrates that the State itself deemed the use of the

towers by the individual telecommunications carriers to be

private when it required such carriers to comply with local

regulations. (R. 642, 671). Indeed, this accords with the

intent of the Telecommunications Act to subject private

carriers located on government land to local regulations.

Specifically, the State annexed to its Agreement a

Form User License to be executed by Crown when granting

user licenses to private telecommunications.

55a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER

CROWN COMMUNICATION NEW YORK, INC.

Index #7863/01

Petitioner/Plaintiff, Decision & Order

-against- Motion Date

4/12/02

CITY OF NEW ROCHELLE, JAMES M. MAXWELL,

AS INTERIM/ACTING COMMISSIONER OF THE

DEPARTMENT OF PUBLIC WORKS OF THE CITY

OF NEW ROCHELLE, and DEPARTMENT OF

TRANSPORTATION OF THE STATE OF NEW YORK,

D

Respondents/Defendants,

-and-

JAMES CAVANAUGH, AS TOWN SUPERVISOR OF

THE TOWN OF EASTCHESTER AND JAMES

CAVANAUGH, INDIVIDUALLY,

Intervenors/Respondents/Defendants,

CROWN COMMUNICATION NEW YORK, INC.

Petitioner-Plaintiff, Index #9166/02

Decision & Order

- against - Motion Date

4/12/02

CITY OF NEW ROCHELLE, THE COMMISSIONER

AND/OR DEPUTY COMMISSIONER OF THE

DEPARTMENT OF DEVELOPMENT OF THE CITY D

OF NEW ROCHELLE, and THE DEPARTMENT OF

TRANSPORTATION OF STATE OF NEW YORK,

Respondents-Defendants.

56a

The following papers numbered 1-33 were read on

motion to reargue the Order and Judgment of the Court dated

November 13, 2002:

Notice of motion, affidavit, exhibits, memorandum - 1-7

Affirmations in opposition, exhibits, memorandum -8-11,12

Affirmations in support, exhibit, memorandum - 13-14

Reply memorandum - 15

Supplemental affirmations/affidavits in opposition, exhibits,

memoranda - 16-26, 27-28

Supplemental affirmations in support, exhibits,

memorandum - 29, 30-33

Leave to reargue is granted and, upon reargument, the

Court modifies the Order and Judgment dated November 13,

2002 to the extent that the Court finds that the individual

telecommunication providers are subject to local regulations

including, but not limited to, the act known as the

"Regulation of Telecommunication Facilities for Personal

Wireless Services and Other Communications Services in the

City of New Rochelle."' The Court otherwise adheres to

it’s original decision.

The Telecommunications Site Manager Agreement as

well as the Form User License require compliance with all

applicable local, state and federal laws. The wireless service

providers have also agreed in the license agreements to

compliance. There is no basis to exempt individual wireless

service providers from such requirements.

' New Rochelle Code, Telecommunications Facilities

sections 331-64.1 et seq. At issue are the attachment of

ancillary commercial antennas to the State towers.

57a

Dated: White Plains, New York, 6/28/02

Nicholas Colabella

Supreme Court Justice

Crane, Greene & Parent

Attorneys for Petitioner-Plaintiff

By: John P. Stockli, Jr., Esq. and Jacqueline

Phillips Murray, Esq.

90 State Street

Albany, New York 12207

Bernis S. Nelson

Corporation Counsel

By: Kathleen E. Gill, D.C.C.

Attorneys for Respondent/Defendants City of New Rochelle

515 North Avenue

New Rochelle, Nev. York 10801

Zarin & Steinmetz.

Of Counsel to Respondent/Defendants City of New Rochelle

By: David S. Steinmetz, Esq.

81 Main Street, Suite 415

White Plains, New York 10601

Eliot Spitzer

Attorney General of the State of New York

By: Richard Lombardo, AAG

Attorneys for Respondent/Defendant New York State

Department of Transportation

101 East Post Road

White Plains, New York 10601

Wilson, Elser, Moskowitz

Edelman & Dicker, LLP

by: Steven Silverberg, Esq. and Katherine Zalantis, Esq.

Attorneys for Intervenor Respondent/Defendants Cavanaugh

3 Gannett Drive

White Plains, New York 10604