Roof Top Cell Phone Tower Does Not Interfere With Use and Enjoyment

In cities where backyards are sparse, perhaps “Not on my roof deck,” should replace “Not in my back yard.” Residents of The Salem House, a condominium located on New York City’s Upper East Side, were denied an injunction seeking to prevent cellular phone company T-Mobile from installing communications facilities atop the building’s roof deck.

Once the condo board informed the residents that they would be leasing a portion of the roof to T-Mobile for installation of a cell phone tower, the residents brought suit against the condo board and T-Mobile contending that the radio emissions would be dangerous to their health and safety and that T-Mobile was effectively admitting as much by placing FCC-required warning signs that addressed the potential dangers of the emissions. The residents also argued that the tower would interfere with their use and enjoyment of the roof deck, citing a declaration that had been issued to the residents regarding proper activities in the common areas.

Unfortunately for the residents, the court agreed with T-Mobile who argued that there was no evidence of the proven dangers of such radio emissions and that the FCC warning signs were not an admission because they were required by law. The court further held that federal law pre-empted the local court’s involvement in the matter stating that the proper remedy for the residents was to directly petition the FCC. The court also added that the unsigned and undated declaration had no authoritative value and that the condo board’s own bylaws, that gave the board the power to “curtail or relocate any portion of the common elements devote to store, recreation or service purposes,” would have superseded the declaration anyway.

It looks as if the Salem House residents will be stuck with an unwelcome addition to the New York City Skyline.

Thanks to Alex Niederman for his contribution to this post.