- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Matter of Board of Mgrs. of Westage Towers E. Condominium v. Planning Bd. of the City of White Plains
- Docket
- 2024-07896
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03303
- Citation
- 2026 NY Slip Op 03303 (N.Y. App. Div. 2d Dep’t 2026)
Background
In May 2023, DISH Wireless, LLC submitted an application for a special use permit to the Planning Board of the City of White Plains, seeking to build a wireless telecommunications antenna facility on a rooftop within the city. DISH submitted reports concluding that expected radiofrequency (RF) exposure from the proposed installation fell below the limits mandated by the Federal Communications Commission (FCC). Following public hearings, the Planning Board granted the application.
The petitioners — residents and the managing board of a nearby condominium — commenced a CPLR article 78 proceeding challenging the Planning Board’s determination. They raised various objections, including concerns about the health effects of RF emissions from the proposed antenna facility. The Supreme Court, Westchester County denied the petition and dismissed the proceeding, and the petitioners appealed.
Holding
The Appellate Division, Second Department affirmed the judgment, with costs. The court applied the deferential standard of review for special use permit determinations, holding that judicial review is “limited to ascertaining whether the determination was illegal, arbitrary and capricious, or an abuse of discretion.” Under this standard, a determination is rational “if it has some objective factual basis, as opposed to resting entirely on subjective considerations such as general community opposition.”
The court specifically addressed the federal preemption issue under the Telecommunications Act of 1996, which provides that “[n]o State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC’s] regulations concerning such emissions” (47 USC § 332[c][7][B][iv]). Because DISH submitted evidence that the proposed facility would comply with FCC emission standards, the petitioners’ health-related objections to the RF emissions were preempted by federal law and could not serve as a basis for denying the permit.
The court found that the Planning Board’s determination was rational and supported by the evidence in the record, and that the petitioners failed to demonstrate that the determination was arbitrary, capricious, or contrary to law.
Takeaways
This decision provides important guidance on the intersection of local land use authority and federal telecommunications law. Under the Telecommunications Act of 1996, local governments may not deny permits for wireless facilities based on health concerns about RF emissions when the applicant demonstrates compliance with FCC emission limits. This federal preemption effectively removes health-based RF objections from the local permitting process, regardless of how strongly community members may feel about potential health effects.
The decision also reaffirms the limited scope of judicial review in article 78 proceedings challenging land use determinations. Courts will not substitute their judgment for that of the planning board and will uphold a determination so long as it has a rational basis supported by some objective evidence. General community opposition, without more, is insufficient to render a planning board’s approval arbitrary or capricious.
Why It Matters
As wireless telecommunications infrastructure continues to expand across New York, disputes between carriers seeking to install antenna facilities and nearby residents concerned about health and aesthetic impacts will remain common. This decision confirms that federal preemption under the Telecommunications Act significantly limits the grounds on which residents and local governments can challenge these installations. For telecommunications companies, the case provides assurance that compliance with FCC emission standards will protect against health-based challenges. For residents and community organizations, the decision underscores the need to focus objections on legitimate local land use considerations — such as aesthetics, property values, or zoning compliance — rather than health effects of RF emissions, which are governed by federal standards.