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Cell firm: Magistrate erred in recommending suit dismissal

Cellphone equipment is mounted on poles across Oyster

Cellphone equipment is mounted on poles across Oyster Bay along Wolver Hollow Road in Upper Brookville, as seen on Sept. 12, 2017. Credit: Barry Sloan

A Texas-based company said in court filings a federal magistrate erred when she recommended that its lawsuit against Oyster Bay over cell phone antenna installation be dismissed.

Lawyers for Crown Castle NG East LLC argued that U.S. Magistrate Judge Arlene Lindsay should have considered the town’s motivation when Oyster Bay officials revoked highway access permits for cell phone repeaters in 2017.

Crown Castle sued the town in 2017 alleging the town had violated federal communications law that bars municipalities from restricting the installation of cell phone equipment for health reasons.

Lindsay, in her recommendation to the judge over the case in Central Islip, U.S. District Judge Sandra J. Feuerstein, said the federal court lacked jurisdiction because Crown Castle hadn’t yet applied for building and special use permits to install cell phone repeaters on the town’s utility strips. This meant, Lindsay wrote in her February recommendation, the issue hadn’t reached a point where federal laws came into consideration.

Crown Castle attorneys, from Tarrytown-based Snyder & Snyder, argued in their response to the judge's recommendation: “The timing of the town’s selective demand for building and special permits from Crown Castle … demonstrates that the town’s underlying motivation was in violation of federal law.”

A town “may not selectively enforce its code” under federal communications law regulating telecommunications, the attorneys wrote.

Crown Castle’s attorneys disagreed with Lindsay's conclusion that the town hadn’t imposed a de facto moratorium on the installation of cell phone equipment. That conclusion was based in part on an affidavit from Deputy Planning Commissioner Timothy Zike that the town had approved 13 building permits for telecommunications equipment filed in 2017.

Crown Castle’s attorneys said the town hadn’t disclosed whether those permits were for right of way installations, like Crown Castle’s, or on private property.

They also cited the deposition of Planning and Development Commissioner Elizabeth Maccarone in which she responded to a question whether the town had ever required a building permit for a utility pole, “Not to my knowledge.”

Newsday requested the permits Zike referred to as well as others from Oyster Bay under a Freedom of Information Law request in February. The town replied it would respond in April.

Lindsay wrote in her recommendation that just because the town hadn’t enforced its code before, didn’t preclude from enforcing it now.

Oyster Bay’s outside attorneys, Garden City-based Berkman, Henoch, Peterson, Peddy & Fenchel PC, said in their response, filed last week, that Lindsay’s recommendation was correct and should be adopted by Feuerstein.

“Because the required [building permit and special use permit] applications were never submitted, it is impossible and illogical for plaintiff to now argue that the public’s perceived health concerns played a role in the town’s denial of plaintiff’s applications,” the town’s outside counsel wrote.

The town hadn’t made a final determination because the applications hadn’t been filed and thus Lindsay had correctly concluded that the federal court had no jurisdiction in the case, the town outside counsel wrote.

They also argued that it was irrelevant whether the 13 building permits cited by Zike were on private property because the issue was whether Crown Castle had been issued building permits.

Crown Castle Lawsuit

• Oyster Bay issued 29 highway permits to Crown Castle to install cell phone repeaters

• Crown Castle installed 22 of them in 2017 before Oyster Bay revoked seven permits

• Crown Castle sued Oyster Bay alleging violation of federal communications law

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