[*1]

This motion by the plaintiff Port Washingtion Police District ("Police District"), in effect, for summary judgment on its complaint declaring that a radio antenna installation proposed to be placed by the plaintiff is either exempt or immune from the permit provisions contained in Chapter 75 of the Code of the Town of North Hempstead ("Code"), or that the proposed radio antenna installation is not a "wireless telecommunication facility" subject to such permit provisions is granted as indicated in this order and judgment. The cross motion by the defendant Town of North Hempstead ("Town") to dismiss, or, in the alternative, for judgment in its favor declaring that the Police District's proposed radio antenna is a wireless telecommunications facility subject to Chapter 75 is denied.

The facts of this matter are simple and undisputed. Plaintiff provides police services to residents and businesses within its district in the Port Washington, New York area, which is contained entirely within the boundaries of the Town. Its headquarters are located at 500 Port Washington Boulevard, and on its property there is presently located an antenna that is used exclusively for Police District purposes, including, most importantly, contact with its officers in the field.

According to William J. Kilfoil, its Chief of Police, for several years there have been persistent problems with communications between officers and headquarters associated with this antenna. One example he gives is that the District cannot place a police officer on foot patrol at the local Long Island Rail Road station because there is no radio contact in that area. [*2]Chief Kilfoil describes this as a safety peril for both police officers and the public. He also states that the current antenna is in danger of collapse.

The Police District has contracted with a company to install a new antenna at police headquarters to remedy this situation, which will be approximately 70 feet high, some 20 feet taller than the existing antenna. In an exchange of correspondence between the plaintiff's attorney and the Town Attorney, a dispute arose as to whether the Police District must apply for and be granted a permit to install the new antenna. Although the Town offered an expedited review of the application, it insisted that the Police District's proposed new antenna is subject to Article 75 of the Code. This litigation ensued.

Several procedural issues will be addressed first.

At the outset, the Court notes that issue had not been joined at the time this motion was made, which is a statutory prerequisite for summary judgment. CPLR 3212(a). However, an answer has been appended to the defendant's responsive papers. The defendant did not raise the initial absence of its answer as a bar to determination of the underlying issue by the Court, and its own papers make it clear that it was treating the application as if issue had been joined. Under such circumstances, the Court may consider the plaintiff's motion as one for summary judgment, as the parties have charted their own procedural course. See, Becher v Feller, _AD3d_, 2009 WL 2181676 (2d Dept. 2009); Roche v Claverack Co-op. Ins. Co., 59 AD3d 914 (3d Dept. 2009).

The Court disagrees with the defendant that the motion should be denied and the action dismissed because the plaintiff has failed to prove that a justiciable controversy exists. Viewing the complaint in a light most favorable to the plaintiff, as it must on the cross motion to dismiss (Leon v Martinez, 84 NY2d 83, 87-88 [1994]), a sufficient basis exists for finding that the question of whether the plaintiff must submit to the permit process of the Town prior to erecting the new antenna presents such a justiciable controversy, and may be resolved by the declaratory judgment sought. See, e.g., Rubinstein v Salomon, 46 AD3d 536 (2d Dept. 2007); cf., Ashley Bldrs. Corp. v Town of Brookhaven, 39 AD3d 442 (2d Dept. 2007). While it is true that the moving papers present only a hearsay statement from plaintiff's counsel regarding the Town's insistence that its permit process be followed, the Town acknowledges in its own opposing papers that counsel has not misrepresented the Town's position on the issue. In reply, the plaintiff also presents a letter from the Town Attorney dated June 10, 2009, prior to the commencement of this action, setting forth his insistence that Article 75 of the Code applies and that the permit process be followed. Accordingly, this Court has before it an issue that is ripe for judicial resolution.

The Court also disagrees with the defendant that the Police District may not maintain the action because it lacks the standing to do so. Pursuant to a recent amendment to the Nassau Civil Divisions Act (L 2002, ch 685) ^[FN1] actions by or against the Port Washington [*3]Police District may be maintained "for the breach of any contract or for any and all other legal obligations." Nassau Civil Divisions Act § 315.0. The Town interprets this to mean that a declaratory judgment action such as the one at bar cannot be maintained because it is not in furtherance of any Police District "legal obligation." However, at section 313.0 ("Duties of police district and powers of police force"), this Act provides that "It shall be the duty of the police district within its boundaries to promote public safety and welfare, detect crime and enforce and prevent the violation of all laws and ordinances in force in the police district." Given the allegations of the complaint and the affidavit of its Chief of Police regarding the need for the new communications antenna to carry out Police District functions, and the problems its absence is causing, the Court holds that the plaintiff's action to insure the placement of the antenna is in furtherance of its legal obligations under section 313.0.

Turning to the merits, the plaintiff contends that it is immune from the requirements of local zoning ordinances because it can demonstrate that its proposed wireless facility passes muster under the "balancing of public interests" analysis articulated by the Court of Appeals in Matter of County of Monroe (City of Rochester), 72 NY2d 338 (1988).

The Town counters that Chapter 75 of the Code, which is entitled "Wireless Telecommunications Facilities" mandates that, which the exception of those who are specifically exempt, any party seeking to locate a "wireless telecommunications facility" must comply with the process set forth in that Chapter. The Police District is not on the list of those entities which are exempt (§ 75-4), and thus it must comply. The Town further contends that Article 75 is not a "zoning ordinance" and for that reason the law expressed in County of Monroe is not applicable to the present dispute.

The Court first notes that under Article 75 the Police District, even if a "wireless carrier/service provider" technically is not eligible for a permit pursuant to § 75-5 of the Code. This is the case because those districts in which an antenna may be placed and thus are "eligible" for an antenna location permit issued by the Building Department are specifically named in § 75-5(A)(1)[nonresidential zoning districts] and (2)[residential districts], and the Police District is not among them.

Under the well-established statutory interpretation maxim of expressio unius exclusio alterius (cited by the Town itself for the proposition that the Police District is not exempt from the need to obtain a permit under another section of Article 75 ^[FN2] ), the absence of the Police District from the list of those districts in which an antenna location permit may be issued by the Building Department means that the Police District must apply for a special permit from the Town Board. Pursuant to Code § 75-6(A)(1) ("Special Permits"), the Town Board is authorized to review and approve, or approve with modifications, applications for all wireless telecommunications facility installations not eligible for an antenna location permit as provided for in § 75-5. However, the Police District also is absent from the list of [*4]districts named in Section 75-6(B), which provides a priority list for the granting of special permits for those facilities that do not qualify under § 75-5.

The papers submitted by the parties do not contain any information as to whether Police District headquarters are contained within one of the other zoning districts mentioned in Article 75, although likely it is given the fact that the police district clearly overlaps numerous other districts. Without this information, however, it is not possible for the Court to evaluate where the plaintiff's property is accounted for in the scheme set forth in that Article. The fact remains, however, that the police district is not mentioned, and thus a literal reading of the statute leaves the plaintiff in an uncertain position. The absence of any reference to the police district may have been an oversight by the drafters, but courts cannot in the guise of interpretation alter or enlarge the scope of a legislative enactment. See, e.g., Weinberg v D-M Restaurant Corp., 53 NY2d 499, 508 (1981).

This statutory conundrum is of some importance here because the plaintiff would have no clear and specific route to follow to obtain approval of its antenna. This leads directly to the key Court of Appeals decision on the subject of whether a zoning entity can impose its requirements on another arm of government seeking to fulfill its own function, Matter of County of Monroe (City of Rochester), 72 NY2d 338, supra . In that case, the Court had before it a challenge to the City of Rochester's attempt to control expansion of an airport through its site plan approval requirements. In finding that the City could not, the Court changed the law of this State so that when disputes of this type arise judges must apply a "balancing of public interests" analysis in determining whether the party seeking to undertake a project in the public interest should be subject to local zoning requirements.

The Court must reject the Town's attempt to distinguish regulation of antenna placement from zoning, and thus County of Monroe. The mere fact that these regulations are found in an Article separate from its zoning Article does not change the essential character of those regulations, which is Town control of how property is to be used. Indeed, in the statement of legislative intent found in § 75-1, the statute provides that it is enacted, inter alia, to insure "meaningful input by the community into important land use decisions..." It is therefore clear that as far as application of the balancing test is concerned, there is no meaningful distinction to be drawn between Chapter 75 and zoning regulations found elsewhere in the Code.

Any doubt about that is erased by a recent decision of the Appellate Division, Second Department, in which placement of an antenna was at issue, and a locality attempted to impose its land use requirements on the party seeking such placement. In resolving the case the Appellate Division cited the balancing test of County of Monroe, and a following decision involving private wireless service providers, Matter of Crown Communication NY, Inc. v Department of Transp. of State of New York, 4 NY3d 159 (2005). Town of Hempstead v State of New York, 42 AD3d 527 (2d Dept. 2007). Accordingly, this Court will follow and apply the law of County of Monroe.

As indicated, the "balancing of public interests" test calls on a court to determine [*5]whether an entity should be granted immunity from local zoning requirements. These factors include " the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests.' " Id., at 529, quoting Matter of County of Monroe, at 343. In the present case the Court holds that the balance here favors the plaintiff.

The Police District seeks to place a needed antenna in essentially the same location as the existing one. It is doing so to enhance the safety of the public and its own officers, which is now at some risk because of the gaps in coverage from the old antenna. Although the Court does not doubt the good faith of the Town, and notes its Attorney's offer to expedite review, there is some confusion in its regulatory scheme as to how it would be applied to the plaintiff, as noted above. Further, even if that proved not to be a hurdle, a decision on the antenna might be unacceptable to the Police District, and result in a court proceeding and even an appeal. All of this could take many months, or even years, during which time the communication problems would remain. Given the uncontradicted affidavit of Chief Kilfoil, this poses a continuing risk to the public and police alike.

As far as aesthetics is concerned, the property where the antenna is to be placed abuts a cemetery and what appears to be a main road, Port Washington Boulevard. The record is devoid of detail regarding the proximity of other private residences, schools or businesses, but it should be noted that there is no evidence that the existing antenna has been the subject of any complaints or concerns by any neighbor of Police District headquarters. Finally, there is little danger that if the plaintiff is held to be immune from Article 75 regulation the Town will lose any important right that might impact its ability to regulate other wireless carriers seeking to place facilities within its boundaries.

Accordingly, the Court holds that the "balancing of public interests" test favors the plaintiff in this case. See, Town of Hempstead v State of New York, 42 AD3d 527, supra .

Plaintiff's motion therefore is granted and the defendant's cross motion is denied. The Court declares that the Port Washington Police District is immune from the application of Town of North Hempstead's zoning and/or antenna placement regulations, and may proceed with the construction of the antenna on its property at 500 Port Washington Boulevard.

This shall constitute the Decision, Order and Judgment of this Court.

ENTER

DATED: August 12, 2009

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO:

Ressa & Aitken [*6]

Attorneys for Plaintiff

33 Main Street

Port Washington, NY 11050

Town of North Hempstead

Richard S. Finkel, Town Attorney

Attorney for Defendant

220 Plandome Road, P.O. B. 3000

Manhasset, NY 11030