Thus, in separately dismissing the article 78 proceeding challenging the Town's permit and enforcing the restrictive covenants _- both on the same day _- Supreme Court correctly refused to allow the Town Board's decision that the Stone Hill lot was an appropriate site for the facility to override plaintiffs' right to enforce the restrictive covenants. Defendants and the Town cannot negate the restrictive covenants by ignoring them and proceeding with the permit process and construction.

Finally, in arguing that the restrictive covenants offend public policy, defendants misread Crane Neck Assn. v New York City/Long Is. County Servs. Group (61 2 154 [1984]). In Crane Neck, the property in issue _- leased to the government for use as a home for mentally disabled adults -- was subject to a restrictive covenant that allowed only single-family dwellings. There, however, Mental Hygiene Law § 41.34 (f) explicitly preempted local laws and ordinances, defining a community residence for this purpose as a family unit. This Court extended the statute's explicit preemption to private covenants restricting the use of property to single-family dwellings because those agreements posed the same deterrent to effective implementation of the State policy favoring residences for the mentally disabled as the preempted local laws and ordinances. By contrast, Congress expressly recognized the importance of local land use authority in TCA section 332 (c) (7) (A), which makes clear that nothing in the Act “shall limit or affect the authority of a State or local government * * * over decisions regarding the placement * * * of personal wireless service facilities.” Thus, here there is no comparable public policy being transgressed, indeed no preemption that might motivate the Court to extend a statutory mandate to extinguish private rights.

Under the Second Circuit's holding in Sprint, a provider must therefore make two showings in order to demonstrate that a permit denial prohibits or effectively prohibits service within the meaning of the TCA: that there is a significant gap in service coverage that the application seeks to fill, and that the application implements the least intrusive means necessary to fill the gap and provide the service. Put in another way, when a provider makes these showings, the TCA requires the locality to issue any necessary permits; a locality that nonetheless denies the necessary permits thereby effectively prohibits the provision of personal wireless services in violation of section 332 of the TCA.

In this case, it is undisputed that there was a significant gap in wireless coverage needing to be closed when SMSA filed its application. Further, the record fully supports the Town Board's conclusion that siting a tower at the Stone Hill Site represented the least intrusive means for closing this significant gap.

Specifically, in January 1999, SMSA applied for a special permit under the Town's local law entitled "Wireless Telecommunications Services Facilities," which amended the zoning law to establish special standards and requirements for such uses, subject to special permit approval. The Town Board subsequently requested additional information, held a public hearing and, in April 1999, forwarded SMSA's application to the Town Planning Board, as required by the zoning law.

The Town Planning Board discussed the application at numerous meetings, solicited additional information from SMSA and engaged special counsel as well as technical consultants to assist in its review. As part of that review, the Planning Board studied alternative sites.

In November 1999, the Town Planning Board issued an "Advisory Review and Recommendation." At the outset, the Board noted that siting a wireless communications facility in Pound Ridge, while necessary, was made particularly difficult by certain "givens": "Pound Ridge is overwhelmingly residential and topographically varied and relatively rural in character"; and "[m]uch of the Town's minimal commercial area, normally more compatible for [a wireless telecommunications service facility] locations, is either low in elevation or within 2500 feet of an historic district, both of which make siting problematic."

In light of these factors, the Board made findings as follows:

"In its effort to identify the least intrusive means of

closing the existing gap in wireless service, the

[Planning] Board evaluated not only [the Stone Hill

Site] as proposed and as modified through the

proceedings, but also a number (18) of alternative

sites, eventually narrowed down to eight" (emphasis

added).

Further, while "[o]n balance, the [Stone Hill Site], having been given more thorough consideration by [SMSA], seems to meet many of the Town's criteria, except in one glaring area -- residential location on a residential lot" (emphasis in original). Based on its evaluation of alternatives, the Planning Board recommended a preferred ranking of the DPW/Highway Garage Site alone; followed by the DPW/Highway Garage Site in combination with another site; and, finally, the Stone Hill Site, "but only with all of the [Planning Board's] suggested mitigation."

Based on the Town Planning Board's findings and recommendations, the Town Board amended its site inventory list and received and reviewed an application from SMSA for a special permit for the DPW/Highway Garage Site. SMSA thus made two special permit applications -- one for the Stone Hill Site; one for the DPW/Highway Garage Site -- with the understanding that only one application would be approved and that the other would be withdrawn as a condition of this approval. The Board then undertook a detailed review of SMSA's application for the DPW/Highway Garage Site, just as it had already done for the Stone Hill Site. At the end of this review, the Board held a joint public hearing on the applications for both sites.

In April 2000, the Town Board adopted a resolution, including a negative declaration under the State Environmental Quality Review Act, with respect to the Stone Hill Site.[5] The Board identified the Stone Hill Site as "the technologically best available site" in the Town in terms of coverage, and therefore as the site with the "best chance of being the only site necessary to meet the needs and demands for [the Town's] wireless communication services." The Board also noted that most of the tower would not be directly visible from adjoining residences; and that the Stone Hill Site "enjoys relatively large setbacks and few neighbors and is also separated from residences on adjoining lots by considerable topographic relief." Indeed, the Stone Hill Site was the potential site with the fewest existing dwellings within a 1,000-foot radius. The Stone Hill Site's only disadvantage was that "with the exception of the primary electric distribution lines which cross [it] within a 100 foot wide utility easement, the property is a vacant residential parcel in a residential area." Finally, the Board required SMSA to undertake numerous mitigation steps as a condition of the special permit, including landscaping and other aesthetic measures. The tower and its nearby equipment building, disguised as a barn, occupy roughly 2,000 square feet on 9.5 acres of land otherwise undeveloped except for the primary electric distribution lines and telephone poles.[6]

In short, SMSA, unlike Sprint, did not resist alternative sites or mitigation measures put forward by the local authorities, and, in fact, went so far as to apply for a special permit for a suggested alternative site. The Stone Hill Site -- the best site technologically; the site with the fewest residential neighbors; the only site with the potential to function as a sole site -- represented the least intrusive means to close the acknowledged significant gap in the Town's personal wireless services. The Board's denial of the special permit, under these circumstances, would have effectively prohibited the provision of personal wireless services within the meaning of section 332 of the TCA, as interpreted by the Second Circuit in Sprint. A restrictive covenant -- a private contract -- can not thwart a land use that federal law carrying out national telecommunications policy requires local authorities to approve.

In Crane Neck Assn. v New York City/Long Is. County Servs. Group (61 2 154, 166 [1984]), we addressed a restrictive covenant the enforcement of which would have "frustrate[d]" a State policy encouraging placement of the mentally disabled in the community. We focused on Mental Hygiene Law § 41.34(f), which deems a community residence a "family unit[] for the purposes of local laws and ordinances." This provision was prompted by resistance to the siting of group homes in the form of injunctive actions based upon local ordinances limiting the use of property to single-family residences. In light of the State's purpose in enacting the statute and because "[p]rivate covenants * * * pose the same deterrent to the effective implementation of the State policy as the local laws and ordinances that had actually been the subject of * * * legal challenges" ( id. at 164), we concluded that the covenant could not be equitably enforced as a matter of public policy.

Similarly, the proliferation of cell towers has prompted resistance and legal challenges on the grounds of unsightliness, perceived health risks and decreased property values. Indeed, respondents in this case have, at one time or another, opposed placement of the tower on the Stone Hill Site for each of these reasons. As the Second Circuit recognized in Sprint, while not allowing "the goals of increased competition and rapid deployment of new technology to trump all other important considerations, including the preservation of the autonomy of states and municipalities" ( Sprint, 176 F3d at 639), the Congress in the TCA chose to compromise and accommodate competing aims. Specifically, the Congress preserved local control over the placement, construction and modification of personal wireless service facilities, but subject to important limitations intended to make sure that rational siting decisions were not checked or delayed by local zoning regulation or litigation. These limitations include the anti-prohibition ban. The majority suggests that Crane Neck is inapposite because Mental Hygiene Law § 41.34(f) "explicitly preempted local laws and ordinances, defining a community residence * * * as a family unit" (majority opn at 8) while the TCA preserves local land use control. Congress, however, expressly and completely preempted local land use regulation insofar as it prohibits or effectively prohibits the provision of personal wireless service facilities. As was the case in Crane Neck, private individuals are here attempting to accomplish by restrictive covenant that which a statute (in this case, a federal statute implementing our national telecommunications policy) unequivocally forbids a locality from doing in the exercise of its police powers to regulate local land use.

Of course, as I noted at the outset, the majority and I disagree as to whether enforcement of the covenant would effectively prohibit delivery of wireless services in the Town within the meaning of section 332 of the TCA. The majority does not consider the anti-prohibition ban implicated here because alternative locations for siting the tower exist, even though no single site can replace the Stone Hill Site, and any other potential site (18 sites were reviewed originally; one alternative site -- the DPW/Highway Garage Site -- was reviewed intensively) is less optimal technologically, less secluded and otherwise less beneficially suited to the use. This reading of section 332 verges on limiting it to general bans. In any event, the majority's interpretation plainly conflicts with Sprint.

Finally, unlike the majority, I find merit in SMSA's related argument that enforcement of the covenant would impermissibly nullify the Town's ability to regulate local land use. The Town Board thoroughly examined and balanced the interests and concerns of the affected property owners with those of the entire Town before issuing the special permit to SMSA. When respondent challenged the permit in an article 78 proceeding, Supreme Court held in the Town's favor. While as a general rule restrictive covenants and zoning comfortably co- exist and zoning does not destroy a preexisting private covenant ( see generally Friends of the Shawangunks, Inc. v Knowlton, , 64 NY2d 387 [1985]), this case is unusual. The covenant directly conflicts with a special permit issued to provide a public utility in a way that takes into account the best interests of the community as a whole and furthers national telecommunications policy. As a consequence of this covenant's enforcement, multiple (and more intrusive) towers will now have to be sited in order to replace the Stone Hill Site and serve the community's needs for personal wireless services. In line with the approach advanced in the Restatement (Third) of Property (Servitudes), which considers public policy, broadly defined, as an independent basis for invalidating servitudes, I would hold that this restrictive covenant violates public policy and so is invalid and therefore unenforceable ( see Restatement [Third] of Property [Servitudes] § 3.1, Comments e and f; see also Restatement [First] of Property [Servitudes] § 568, Comment d).

Accordingly, I would reverse the order of the Appellate Division.