Judge: Cellphone equipment requires permit in Oyster Bay

Cellphone antennas installed by a Texas-based company in Oyster Bay required building permits that they did not have, a federal judge said in a recent report.

U.S. Magistrate Judge Arlene Lindsay wrote in a Feb. 21 report and recommendation that the town had not violated federal communications law by stopping Crown Castle NG East LLC from installing cellphone repeaters on the town’s utility strips because the company had not obtained the proper town permits.

The repeaters, called distributed antenna system nodes, transmit cellphone signals. 

Lindsay recommended that the court dismiss the suit for lack of jurisdiction because the company had not been denied the proper permits, rather it hadn’t applied for them. The recommendations will be considered by U.S. District Judge Sandra J. Feuerstein, who is presiding over the lawsuit filed in the U.S. Eastern District court in Central Islip in 2017.

Town spokesman Brian Nevin said the town was pleased with the judge’s recommendation.

“The town issues building permits to protect the welfare and safety of the public, and in this case the town and its citizens have won,” Nevin said in an email.

Crown Castle spokeswoman Ana Rua said in an email the company was disappointed with the recommendation and will file objections.

“We remain committed to providing much-needed connectivity to Oyster Bay,” Rua wrote.

The company alleged in court filings that it followed the procedures required by town officials for years until 2017 when Town Supervisor Joseph Saladino changed the procedure for installing the equipment called DAS nodes. Lindsay wrote that the town code required building permits and special use permits and the town was not precluded from enforcing its code now just because it hadn’t in the past.

“The fact that the plaintiff was permitted to violate the town code in the past does not provide an excuse for its current failure to apply for the necessary permits,” Lindsay wrote. Lindsay wrote that the “erroneous assurances” given by town officials to Crown Castle that permits were not required “does not bind the town” to past practices.

The company installed more than 100 such nodes in the town from 2009 to 2016 without building permits.

Lindsay also wrote that the company could not claim the town had imposed a moratorium on cellphone equipment installation despite statements made by Saladino and the town attorney’s office in 2017 that the town would not allow installations. That is because their statements were not official actions approved by the Town Board and the fact that the town issued more than a dozen building permits for wireless facilities since then belied “any claim of a moratorium,” Lindsay wrote.