Local Law Blogs

Nassau County Homeowners Association Fails in its Attempt to Stop Wireless Network Company From Installing Equipment on Existing Utility Poles in the Public Right of Way

By David J. Byrne

The Merrick Gables Homeowners Association's federal lawsuit against both a wireless and technology company, and the Town of Hempstead, was dismissed recently.  The association challenged the company's installation of DAS (digital antenna system) equipment on existing utility poles in the public right of way under an agreement with the Town of Hempstead.  The association claimed the network had caused property values to drop because of the perceived health risks of radio frequency (RF) emissions associated with the DAS equipment. The suit also alleged that the DAS installations amounted to a "nuisance" and an unconstitutional "taking" of their property and that Hempstead was negligent in allowing the deployment.  In defending itself, NextG Networks argued that there exists an overriding public policy promoting the deployment of broadband, competitive wireless networks such as NextG's DAS networks, which enable wireless carriers to add greater coverage and capacity to their networks.  On motion, the federal court dismissed the entire lawsuit and held that federal law "clearly prohibits" towns from regulating the installation of wireless facilities based on perceptions of health risks associated with RF emissions. The court also rejected claims that the Town was negligent in allowing the installations on utility poles in the public way.  At issue also was a special promise and/or agreement between Hempstead and the association, made in 2000, whereby Hempstead promised to impose a moratorium on wireless installations.  The court explained that the United States Telecommunications Act (the "Act") prohibited the Town from adopting such a moratorium on the installation of wireless facilities in the first place.  Lastly, the court ruled that this equipment could  not be a  "nuisance" in light of the Act which reflected congressional intent to promote and facilitate the deployment and improvement of wireless networks and technology.
 

The outcome of this association's suit reminds us of an association's need to consider federal law when dealing with issues that have been regulated by the federal government, such as telecommunications, fair housing, bankruptcy and mortgages.  Further, the outcome  is also further evidence of the questionable value of agreements made with municipalities to protect community values, in lieu of direct action by those communities themselves. 

Full post as published by New Jersey Law Blog on March 16, 2010 (boomark / email).