Zoning Immunity: The firm’s litigation team, including Robert D. Gaudioso and Douglas W. Warden, recently achieved a landmark victory which benefitted the firm’s client, a wireless telecommunications tower owner, and a large local municipality. The resulting decision involved previously unsettled issues in the arenas of wireless telecommunications facility siting and municipal immunity from zoning regulations. Petitioners in the matter commenced a hybrid Article 78 Proceeding / Declaratory Judgment Action to annul municipal resolutions authorizing the use of municipal property for wireless communications services that would enhance the municipality’s public safety services. We persuaded the Supreme Court of Putnam County that the municipality was immune from its own zoning ordinance under the Court of Appeals matter of County of Monroe, 72 N.Y.2d 338, 533 N.Y.S.2d 702 (1988) which articulated a “balancing of public interests” test allowing a municipality to obtain zoning immunity after consideration of various factors. We further persuaded the Court that Petitioners’ taxpayer cause of action, brought under General Municipal Law Section 51, was deficient in that Petitioners’ failed to plead or establish the necessary elements of “fraud, collusion, bad faith or public mischief.” The Supreme Court of Putnam County dismissed the Petitioners’ claims on the basis of these arguments and on our litigation team’s creative and aggressive advocacy techniques. The current citation to the case is Bruenn v. Town Bd. of Town of Kent, 44 Misc.3d 1214(A), Slip Copy, 2014 WL 3671324 (Table) N.Y.Sup., 2014.
The Tax Relief Act: The firm’s litigation team, including Robert D. Gaudioso and Douglas W. Warden, again obtained swift and uncontested relief on behalf a wireless telecommunications carrier client this summer. A municipality refused to approve the client’s request for approval to conduct minor modifications of an existing approved wireless telecommunications facility unless the client agreed to construct a full stealth enclosure around facility. The underlying approval required no such measures but the municipality had amended its code such that full stealth enclosures were required for any facility modification. We brought federal suit in the United States District Court for the Eastern District of New York to challenge the municipality’s refusal to consent to the modifications. The suit was one of the first federal cases ever filed under the Middle Class Tax Relief and Job Creation Act of 2012 and was also filed under the Telecommunications Act of 1996 and Article 78 of the New York Civil Practice Law and Rules. Faced with a voluminous federal Complaint and, prior to even filing an Answer, the municipality relented and agreed to immediately issue a building permit for the modifications. The Village also agreed that its code would not apply to future modifications that otherwise comply with the Middle Class Tax Relief and Job Creation Act of 2012.