Under Monroe Doctrine, Government Immunity from Local Zoning May Extend to Private Projects

December 11, 2023

In Matter of County of Monroe, 72 NY2d 338 (1988), the New York Court of Appeals addressed the applicability of local zoning laws to actions undertaken by a government entity operating within a geographic area subject to another government entity’s zoning powers. The controversy in Monroe involved the expansion of a county-owned and operated airport located within the corporate boundaries of the City of Rochester. The Monroe Court established that governmental immunity from local zoning is determined based upon a “balancing of public interests” that requires the consideration of nine factors, including “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” 72 NY2d at 343 (citations omitted).

But can zoning immunity enjoyed by government entities extend to private actors in pursuit of private projects? The answer is “yes”.

In its recent decision in Matter of Town of Beekman v Town Board of the Town of Union Vale, 219 AD3d 1430 (Sept. 20, 2023) D72740, the Second Department ruled that a private cell tower to be constructed on parkland owned by the Town of Union Vale, but located within the Town of Beekman, was exempt from the Town of Beekman’s zoning because the project would provide a valuable public benefit. The Court wrote:

…the Supreme Court properly determined that the application of the balancing of public interest tests supports the Board’s finding that the project at issue is immune from [Beekman’s] local zoning laws … the record supports the Board’s determination that the installation of the tower would serve the public interest by, among other things, remedying a gap in cellular coverage and aiding emergency services … The fact that the tower will benefit the private interests of Homeland Towers, LLC does not undermine the public purposes served by the tower.

219 AD3d at 1432 (citations omitted).

Interestingly, the Second Department simultaneously rejected the Town of Union Vale’s attempt to annex the parkland in a separate proceeding brought pursuant to General Municipal Law 712. The Court ruled that Union Vale “did not meet its burden of showing that the annexation is in the overall public interest … [in that it] did not show … that unified government of the park encompassing the subject territory would benefit the public or provide significant public safety benefits, nor did it show that annexation is necessary to resolve a taxation dispute. Town of Union Vale v Town of Beekman, 219 AD3d 1433, 1434 (Sept. 20, 2023) D72228.

The Second Department’s decision in Town of Beekman is not the first time the courts have upheld zoning immunity for private telecommunications projects on government-owned property. See e.g. Crown Commc’n New York, Inc. v Dep’t of Transp. of State, 4 NY3d 159 (2005) (holding that the installation of private antennae by commercial wireless telecommunications providers on two state-owned telecommunications towers was exempt from local zoning regulation); Town of Hempstead v State, 42 AD3d 527 (2d Dept 2007) (holding that a private cell tower constructed on State land was immune from local zoning). However, none of these decisions limit the extension of government immunity to telecommunications projects specifically. Theoretically, government immunity from zoning could extend to other kinds of private projects on public property, if the project provides a public benefit.