Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP
You’ve heard them all — the grudgingly glib NIMBY, Not In My Back Yard; the benignly banal BANANA, Build Absolutely Nothing Anywhere Never Again; the naysayers nomen NOTE, Not Over There Either; but wait there’s more… the decidedly derisive DUDE, Developer Under Delusions of Entitlement; and the characteristically cryptic CAVEmen, Citizens Against Virtually Everything. If that isn’t enough for you, it should be, but for more see Ric Stephens article, “From NIMBYs To Dudes: The Whacky World of Plannerese” at
But just last Wednesday, December 10th., Judge Alan D. Scheinkman added his own new acronym to the mix in a case where owners of residential condominium battled their own board over the decision to let a telecommunications company install cellular antennas on the roof. Kaung et al. (a whole lot of als.) v. Board of Managers of the Biltmore Towers Condominium Association et al. (many more als.), 2008 NY Slip Op 28490, 2008 N.Y. Misc. LEXIS 7006 (Supreme Court of N.Y., Westchester County). N.B. In case no one briefed you, New York is confusing – the Supreme Court is the trial court and the Supreme Court is the Court of Appeals.
The Biltmore Towers Condominium in White Plains is 12 stories and 131 units. You can see it by going to Google.com, enter the address 30 Lake Street, White Plains, NY and click on “Satellite” and then dive down on it by hitting the “+” button underneath the little orange guy. What jumps out at you is a really nice roof for antennas.
That’s exactly what MetroPCS New York LLC thought, too. The condo Board entered into a 25-year lease to let Metro install and maintain eight antennas on the roof.
I lived in a great National Register building in downtown Hartford for 11 years, but with just 59 condo units, about half as many as in the Biltmore, there were still enough controversies to feed a reality television show for several seasons. When you have 131 units, there’s bound to be some folks who will object to anything and seven of them and something called the Biltmore Towers Owners Coalition rose up and went after Metro and the Board, seeking to undo the contract. Although it had no effect (so the court said), the owners also submitted a petition signed by more than half of the unit owners opposing the antennas, suggesting that if the deal had been put to a vote, it would not have passed. The chief objection was the fear of health hazards from the electromagnetic radiation. That’s an issue already put to rest – these things don’t cause harm…unless of course you go up on the roof to sneak a smoke and use an antenna as a leaning post…. Go to the American Cancer Society site for information: http://www.cancer.org/docroot/PED/content/PED_1_3X_Cellular_Phone_Towers.asp.
Follow the money. The Blagojevichesque twist in the deal is that the condo association would get $270,000 over the first term of the lease. Condo boards love to find easy cash to offset snowplowing, asphalt repairs, security and all of those other common expenses.
In the end, it all came down to an interpretation of this particular condo’s documents. Providing cellular service to a large part of White Plains, said the court, was not – check the magic words – “incidental to” the residential use….so, the court held the Board simply didn’t have the authority to enter into the contract.
Oh, the new acronym? Judge Scheinkman just couldn’t resist. After saying this case is a “classic case of NIMBY” he corrected himself by offering that it is “more precisely a case of NOMR Not On My Roof….”