Monroe Balance Test · Webster Civic

*New York State Acting Supreme Court Justice (2011-2019) UO EMSS *Moaroe County Court Judge (2014-2019)

f Hon. John L DeMarco (Ret.)* | ) DeMarco Taylor Kyle D. Taylor, Esq.

Of Counsel:

Paul Guerrieri, Esq. Melissa Wells-Spicer, Esq. Wiliam J. MacDonald, Esq

Privileged and Confidential June 30, 2025 Via email

Town Board of the Town of Webster 100 Ridge Rd. Webster, NY 14580

Creekside Verizon Cell Tower

The Town Board has two options in reviewing the proposed Creekside Verizon Cell Tower: 1.) it can make a referral to the Planning Board and Zoning Board for review and approval, or 2.) it can apply the Monroe Balance Test and find that it is in the public interest to avail itself of governmental immunity to the zoning requirements related to the proposed project from the applicable zoning laws and grant approval without referral to any other board.

1. Standard Approval Process under Town Code § 130-11

Under the approval process provided for in the Town Code, the Town Board would refer this application to the Planning Board for site plan review under Chapter 269 of the Town Code. Additionally, because the proposed cell tower exceeds the allowable 100’ maximum height, the Town Board would also make a referral to the Zoning Board for an area variance, Finally, if both the Planning Board and the Zoning Board approved the application, it would come back to the Town Board for the issuance a Special Use Permit under Town Law §274-b and approval of

the proposed land lease.

2. Monroe Balancing Test As this project, as proposed, would be sited on Town land, the Town Board also has the option to apply the Monroe Balancing Test to determine whether this project serves a public interest and thus, the Town may avail itself of governmental immunity in this project from the Town of

Webster Zoning Code.

The Monroe Balancing Test was established in a court case, Matter of City of Rochester, and set forth nine factors the Town Board should consider if it seeks to apply this test:

a. the nature and scope of the instrumentality seeking immunity; b. the encroaching government’s legislative grant of authority;

c. the kind of function or land use involved;

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d. the effect local land use regulation would have upon the enterprise concerned; e. alternative locations for the facility in less restrictive zoning areas;

f. the impact upon legitimate local interests;

g. alternative methods of providing the proposed improvement;

h. the extent of the public interest to be served by the improvements; and

i. intergovernmental participation in the project development process and an opportunity to be heard.

This analysis applies to telecommunications towers, including privately owned ones, such as what is currently proposed, and would be an appropriate use of the Town Board’s discretion.

Please let me know if you have any questions on this matter. I have included a list of applicable cases on the next page for your review.

Sincerely,

Kyle D. Taylor

Below is a brief list of cases in which courts have upheld a municipality’s use of the Monroe Balancing Test in approved telecommunication towers.

In Crown Comme’n New York, Inc. y. Dep't of Transp. of State, 824 N.E.2d 934 (2005). The Court of Appeals applied the Monroe balancing test and concluded the underlying public interest

served by the enhancement of wireless communications was sufficient to justify an exemption from local zoning regulations. Specifically, the Court referred to the State’s plan of promoting public safety including improving the availability of 911 emergency cellular calls and assisting local highway emergency patrols who relied on wireless services provided by cellular towers.

In Bruenn v. Town Bd. of Town of Kent, 997 N.Y.S.2d 668 (N.Y. Sup. Ct. 2014), the Putnam County Supreme Court applied the Monroe balancing test and held that a proposed telecommunications tower was in the public interest and therefore the Town was exempt from its own zoning laws. The Court stated the public benefits included “the enhancement of services of Town public safety entities to the community, the ability to allow five federally licensed public utility wireless providers to co-locate on the Tower which helps minimize the number of towers needed to effectuate widespread reliable cell service, and the ability to remedy a significant gap in service.” The Court issued this decision even though the tower was privately owned.

Similarly, the 2023 case of Matter of Town of Beekman v. Town Board of the Town of Union Dale, 219 A.D.3d 1430 (2023) continued the Court’s trend of extending zoning immunity under

the Monroe balancing test to private actors in pursuit of private telecommunications projects, where the balance of said project is in the State’s favor. In Town of Beekman, the Second Department upheld the Town Board of Union Dale’s finding that the construction of a privately- owned cell tower on land owned by the Town (but located within the nearby town of Beekman) was immune from Beekman’s zoning laws because the tower “would serve the public interest by, among other things, remedying a gap in cellular coverage and aiding emergency services, which would be allow to use the cell tower at no rental charge” Additionally, the Court stated, “the fact that the tower will benefit the private interest of [the tower’s owner] does not undermine the public purposes served by the tower.”

In Town of Hempstead v. State, 840 N.Y.S.2d 123 (2d Dept 2007), the NYS Appellate Division held that a State-owned telecommunications tower was immune from local zoning laws, The Court used the Monroe balancing test and concluded that the public benefit of more widespread cellular coverage in the subject area was a significant enough benefit to exempt the project from local zoning laws.

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