This case centers around an application for special use permit filed by MetroPCS with the city of Mount Vernon to authorize the installation and operation of six stealth panel antennas on the roof top of an existing building, on which antennas from three other competing wireless carriers are located. The application was originally filed on June 19, 2008. The city of Mount Vernon planning board denied the application of September 2, 2009.
Significantly, the city had retained the services of Richard Comi, one of the owners of the Center for Municipal Solutions.
The District Court found that the city of Mount Vernon failed to base its denial of the MetroPC's application on substantial evidence and such failure violated the TCA. It appears that one of the reasons for the denying the MetroPCS application related to the alleged failure of MetroPCS to provide the city with information about the viability of expanding the distributed antenna system ("DAS") network within the city.
The court also found that the city of Mount Vernon unreasonably discriminated against Metro PCS. The city acknowledged such discrimination but alleged that it was reasonable to treat MetroPCS differently than the other carriers who currently have antennas at the proposed site because MetroPCS is the only carrier with access to a DAS network. The Court rejected such an argument.
The court also found that the city unreasonably delayed review of the application. In doing so, the district court points out that
CMS and Mr. Comi delayed the application by repeatedly requesting unnecessary information and belaboring issues already resolved, resulting in a failure to put the application on the planning Board agenda for four months after MetroPCS made its final submission in February.
The District Court also tackled the issue of the reasonableness of Mr. Comi's consulting fees. In the view of the court, the assessment of fees was unreasonable. The special use permit application fee for a simple collocation in the city of Mount Vernon is $6000. On top of that outrageous fee, the city of Mount Vernon zoning law also requires an applicant to deposit $8500 to be used to pay the costs of the city's consultant. In striking down the city of Mount Vernon fee structure, it referenced Jewish Reconstructionist Synagogue case handed down by New York Court of Appeals in 1976. The District Court wrote that the fees charged should be reasonably necessary to accomplish the statutory command and fees should be assessed or estimated on the basis of reliable factual studies or statistics. The court was baffled by the fact that the city sought to charge a fee of $6000 for special use permit application for a collocation when a typical special use permit application for a non-telecommunications use was only $500.
In the end, the court struck down not only the $6000 application fee requirement but also the vague and limitless escrow requirement typically found in Mr.Comi's telecommunications laws. In fact, the court seemed so appalled with the fees charged by Mr. Comi that it ordered Mr. Comi to return a large portion of the fees charged.
Municipal agencies should carefully review this case to make sure that local telecommunications laws that may be in effect in their jurisdiction do not have similar problems as pointed out in the MetroPCS case. This is a good example to municipalities to remember to maintain control over the application review process and its consultants.
