N.Y. Village Opposes AT&T’s Request for Pre-Motion Conference on Denied Cell Tower

Oyster Bay Cove, New York, its zoning board of appeals (ZBA) and planning board are opposing AT&T’s Feb. 15 request for the court to schedule a pre-motion conference to set a briefing schedule for AT&T’s anticipated motion for summary judgment (see 2402160028). AT&T’s December 2022 complaint alleges the village and its boards subjected AT&T to an “unreasonably protracted” application process to approve an 85-foot monopine cell tower, ultimately failing to act on the application before the last-extended expiration of the Telecommunication Act’s shot clock (see 2212230054). AT&T contends it needs the tower to remedy a service gap that's “significant in terms of size, number of persons affected, and degree of service deficiencies.” But while AT&T submits there’s “undisputed expert testimony” that there’s a gap in coverage, despite repeated requests by ZBA members for evidence, neither AT&T nor its experts were able to “demonstrate a significant gap,” counsel for the village wrote U.S. District Judge Joan Azrack for Eastern New York in Central Islip in a letter Thursday (docket 2:22-cv-07807). The ZBA found that AT&T failed to present “credible evidence of the true signal strength” in the village, it said. AT&T contends that the village’s denial of the cell tower application was based on “unsupportable lay opinions” that before and after service maps looked the same, it said. But the ZBA members specifically asked AT&T’s expert to opine on what they were reviewing in the service maps, and that expert “was unable to articulate a response supported by credible evidence,” said the letter. AT&T argued in its Feb. 15 request for a pre-motion conference that the proposed monopine tower is “minimally intrusive” and that the ZBA’s “preferred option” of a distributed antenna system (DAS) wasn’t “feasible,” the letter said. But AT&T’s expert subsequently told the ZBA that AT&T hadn’t conducted a design study to determine the feasibility of a DAS, it said. AT&T “now takes the opposite view” of its expert to support its argument that the ZBA’s denial of the cell tower violated Section 332 of the Telecommunications Act, it said. Oyster Bay Cove acknowledges the need for the court to determine whether it violated the “relevant terms” of the TCA, said the letter. But it submits that a pre-motion conference isn’t required and that the parties should meet and confer on a briefing schedule to be approved by the court, it said.