Cuddy + Feder Secures Appellate Victory in White Plains Telecommunications Facility Approval

Cuddy & Feder’s telecommunications litigation team, led by Brendan Goodhouse and Christopher Fisher secured another court victory when the New York Appellate Division, Second Department unanimously upheld the City of White Plains Planning Board's approval of a special use permit for a DISH Wireless telecommunications facility, affirming a lower court decision that rejected challenges brought by neighboring residents based on claims regarding radiofrequency (RF) emissions.

The Court found that the Planning Board correctly concluded that the evidence in the record demonstrated the facility complied with Federal Communications Commission (FCC) RF standards.

"This decision confirms that with respect to RF emissions, municipal boards’ authority is limited to confirming compliance with federal standards,” said Brendan Goodhouse. “Even when there is local opposition, boards cannot demand additional site-specific testing or reports."

In the Supreme Court decision, that the Appellate Division affirmed, the lower court confirmed that where a municipality has a special permit process for wireless siting, an applicant need satisfy only the local permitting criteria and does not have to meet New York State’s public necessity test, applicable to variance requests. The combined holdings should provide clarity for applicants and local boards in addressing local opposition, which is often based on concerns about perceived effects from RF emissions and a misunderstanding of federal, state, and local legal standards.

Cuddy + Feder represented DISH Wireless before the Supreme Court and Appellate Division.