Court Expands ‘Monroe’ Test For Zoning Immunity

The demand for mobile devices and our increasing reliance on them in our everyday lives has brought with it the proliferation of “cell phone towers.” What were at one time novel structures have now blended into the landscape. They hide in plain sight on top of light poles and buildings, and alongside highways, providing connectivity for arguably the most important technological invention in the last 40 years. Yet, they continue to face opposition by many local regulatory boards.

Last fall, New York’s Second Department issued a decision regarding the application of the Monroe balancing of public interests test to a proposed cell tower project situated on public parkland. In Matter of Town of Beekman v. Town Board of the Town of Union Vale, 219 A.D.3d 1430, the court held that the Town of Union Vale’s lease to a private company of parkland located in the Town of Beekman for the construction of a cell tower was immune from Beekman’s zoning regulations.

Much like the cell tower at the center of its controversy, Beekman is hiding in plain sight as more than an appellate decision about the location of a single tower. It is, in fact, one of a growing number of appellate decisions that may serve to provide private projects in New York with the same zoning immunity afforded to municipalities under the Monroe balancing test.

Thirty-five years ago, a seminal Court of Appeals case established a new balancing test for deciding zoning conflicts between municipalities

Before discussing Beekman, it is important to understand the seminal case Matter of County of Monroe (City of Rochester), 72 N.Y.2d 338 (1988), in which the New York Court of Appeals considered whether property owned by a municipal government but physically located in another municipality should be subject to the “host” municipality’s land use and zoning laws.

In Monroe, the County of Monroe sought to expand the Greater Rochester International Airport. Monroe County owned the airport, but it was located both in the county and, concentrically, within the boundaries of two separate townships and the City of Rochester. Monroe County argued that the planned expanded uses were governmental in nature and, therefore, immune from the land use regulations of the City of Rochester. The county claimed its prior practice of submitting expansion plans to the city was a courtesy rather than acquiescence to the city’s zoning review.

Prior to Monroe, municipalities were considered exempt from zoning laws when carrying out governmental functions, but not when engaged in corporate or proprietary functions, such as the operation of an asphalt plant. New York courts, such as the Appellate Division earlier in the Monroe litigation, applied the “governmental-proprietary” function test to determine whether a municipality’s project was exempt from zoning restrictions. The Appellate Division determined that operating the airport was a governmental function, and that the New York State legislation that authorized Monroe County to operate and maintain the airport freed it from Rochester’s zoning requirements.

In affirming the Appellate Division’s decision, the Court of Appeals retired the “governmental-proprietary” function test in favor of a new multi-factor test that involved the balancing of public interests to determine which governmental interest should prevail in a conflict between the zoning ordinances of one municipality and the statutory authority of another.

The new test first considered whether there was a legislative intent to subject the encroaching municipal entity to the zoning requirements of the host municipality. Next, courts were to consider nine factors:

• The nature and scope of the instrumentality seeking immunity;
• The kind of function or land use involved;
• The extent of the public interest being served by the proposed land use;

• The effect of the local land use laws on the enterprise seeking the proposed land use;

• The impact of the proposed land use on legitimate local interests;

• The encroaching municipality’s legislative grant of authority;

• Alternative locations for the proposed land use in less restrictive zoning areas;

• Alternative methods for providing the governmental service; and

• Intergovernmental participation in the development process and whether the host municipality had an opportunity to be heard.

Under the new test, an encroaching municipality had to show that, on the balance of the factors, the proposed land use in another municipality benefited the public. Although no one factor was controlling, based on the facts of a case, one factor could overshadow the others. As a result, beneficial land uses could enjoy limited immunity from some or all local land use regulations. Although municipal agencies are still presumed to remain subject to their own zoning laws when developing municipal-owned property within their own boundaries, they may also consider employing the immunity balancing test of Monroe when they do so.