Cellco Partnership v. Town of Clifton Park, New York et al
Filing
31
MEMORANDUM-DECISION and ORDER granting 24 Motion by Plaintiff's for Summary Judgment and that the Clerk enter judgment and close case... Signed by Senior Judge Frederick J. Scullin, Jr on 2/6/2018. (bjw, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________________
CELLCO PARTNERSHIP doing business as
Verizon Wireless,
Plaintiff,
v.
1:17-CV-273
(FJS/DJS)
TOWN OF CLIFTON PARK, NEW YORK;
THE ZONING BOARD OF APPEALS OF THE
TOWN OF CLIFTON PARK; THE PLANNING
BOARD OF THE TOWN OF CLIFTON PARK;
THE DEPARTMENT OF PLANNING OF THE
TOWN OF CLIFTON PARK; and THE
DEPARTMENT OF BUILDING AND
DEVELOPMENT OF THE TOWN OF
CLIFTON PARK,
Defendants.
____________________________________________________
APPEARANCES
OF COUNSEL
YOUNG/SOMMER LLC
Executive Woods
Five Palisades Drive, Suite 300
Albany, New York 12205
Attorneys for Plaintiff
DAVID C. BRENNAN, ESQ.
KRISTIN CARTER ROWE, ESQ.
THE BARBER LAW FIRM
P.O. Box 1521
Guilderland, New York 12084
Attorneys for Defendants
PETER G. BARBER, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court is Plaintiff's motion for summary judgment pursuant to Rule 56 of
the Federal Rules of Civil Procedure. See Dkt. No. 24.
II. BACKGROUND
Plaintiff commenced this action on March 8, 2017, after Defendants (referred to collectively
as "Defendant Town") "denied its application for local zoning approvals to construct and operate a
new wireless telecommunications facility on a parcel of land in an area of the Town experiencing a
significant gap in service[.]" See Dkt. No. 1, Complaint, at ¶ 2. In its complaint, Plaintiff asserted
four causes of action: (1) Defendant Town "unlawfully prohibited the provision of personal wireless
services in violation of the [Telecommunications Act of 1996 ("TCA")], 47 U.S.C.
§ 332(c)(7)(B)(i)(II)," see id. at ¶¶ 155-167; (2) Defendant Town "unlawfully denied [Plaintiff]'s
application without substantial evidence in the written record in violation of the TCA, 47 U.S.C.
§ 332(c)(7)(B)(iii)," see id. at ¶¶ 168-175; (3) Defendant Town "is federally preempted from
denying [Plaintiff]'s application on technical grounds," see id. at ¶¶ 176-195; and (4) Defendant
Town's decision to deny Plaintiff's application "was not supported by substantial evidence in the
record, was arbitrary and capricious, was an abuse of discretion, was affected by an error of law
and/or was made in violation of lawful procedure" pursuant to Article 78, see id. at ¶¶ 196-199.
Based on these allegations, Plaintiff seeks an Order declaring (1) "that Defendants' denial of
[its] Application prohibits or has the effect of prohibiting the provision of wireless service in
violation of 47 U.S.C. § 332(c)(7)(B)(i)(II)," (2) "that Defendants' denial of [its] Application
constitutes a violation of 47 U.S.C. § 332(c)(7)(B)(iii) in that it is not supported by substantial
evidence contained in the written record," (3) "that . . . Defendants are federally preempted from
regulating the technological and operational standards of wireless carriers and are therefore
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preeempted from denying [Plaintiff]'s Application based on their independent determinations or
assessments concerning the wisdom or need for advanced wireless technologies authorized,
approved and/or licensed by the [Federal Communications Commission ("FCC")], such as
[Plaintiff]'s advanced 4G LTE services," (4) "that . . . Defendants are in violation of Federal and
New York State law," and (5) "that . . . Defendants' denial of [Plaintiff]'s Application was affected
by an error of law, was arbitrary and capricious and an abuse of discretion, and was not supported by
substantial evidence based on the entire record[.]" See id. at WHEREFORE Clause. In addition,
Plaintiff seeks an Order "directing . . . Defendants to immediately issue all approvals and permits
necessary to allow construction and operation of the proposed Communications Facility, including
(without limitation) all building permits, site plan approvals, special use permits, and variances" and
"[a]warding [Plaintiff] the costs, disbursements, and expenses of this action, including reasonable
attorneys' fees[.]" See id.
Pending before the Court is Plaintiff's motion for summary judgment with regard to all of its
claims on the ground that Defendant "Town's denial of [its] application should be overturned as a
violation of the TCA and Article 78 of the CPLR, with the issuance of an injunction ordering
[Defendant] Town to issue all necessary variances, permits and approvals to allow [Plaintiff] to
immediately commence construction of [its proposed] Facility and to close the identified gap in
service." See Dkt. No. 24-8, Plaintiff's Memorandum of Law, at 6-7.1 Defendants oppose Plaintiff's
motion and request that, if necessary, the Court return the matter to Defendant "Town for further
1
All references to page numbers of documents in the record are to the page numbers that
the Court's Electronic Filing System generates, except for the page numbers of any transcripts in
the record, in which case the references to the page numbers in the transcripts are to the actual
page numbers in the transcripts.
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administrative proceedings." See Dkt. No. 27-16, Defendant Town's Memorandum of Law, at 4.
III. DISCUSSION
A.
Standard of review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party
"bears the burden of establishing that no genuine issue of material fact exists." Eastman Mach. Co.,
Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988) (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970)). If the moving party satisfies its burden,
then the non-movant "'must set forth specific facts showing that there is a genuine issue for trial.'"
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotation and footnote omitted). A
genuine issue of material fact exists if "'the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.'" Giordano v. City of New York, 274 F.3d 740, 746-47 (2d Cir.
2001) (quotation omitted).
B.
Section 332(c)(7)'s substantial evidence requirement
Under § 332(c)(7) of the TCA, "Congress preserved the authority of state and local
governments over zoning and land use issues, but imposed limitations on that authority." N.Y.
SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 101 (2d Cir. 2010) (citing 47 U.S.C.
§ 332(c)(7) (which provides that, "[e]xcept as provided in this paragraph, nothing in this chapter
shall limit or affect the authority of a . . . local government . . . over decisions regarding the
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placement, construction, and modification of personal wireless service facilities")). However, given
Congress' goal of "'provid[ing] for a pro-competitive, de-regulatory national policy framework
designed to accelerate rapidly private sector deployment of advanced telecommunications and
information technologies and services . . . by opening all telecommunications markets to
competition . . .'" 47 U.S.C. § 332(c)(7) also "limits the state and local government's authority to
deny construction of wireless telecommunications towers, see [47 U.S.C.] § 332(c)(7)(B)(i), and
regulates how such decisions must be made, see [47 U.S.C.] §§ 332(c)(7)(B)(ii)-(iv)." Sprint
Spectrum, L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999). Thus, courts review "'denials subject
to the TCA . . . more closely' than . . . other types of zoning decisions to which federal courts
generally accord great deference." Id. (quoting Cellular Tel. Co., 166 F.3d at 493).
"A denial of a request to build [a] wireless facilit[y] must be 'in writing and supported by
substantial evidence contained in a written record[.]'" Id. at 638 (quoting [47 U.S.C.]
§ 332(c)(7)(B)(iii)). Specifically, a local government must articulate, with sufficient clarity, any
reasons for denying an application in a written decision "'so that no one has to parse a record and
guess which of the things [the local government] mentioned therein was ultimately found
persuasive.'" N.Y. SMSA Ltd. P'ship v. Town of Oyster Bay, No. 11-CV-3077, 2013 WL 4495183,
*20 n.11 (E.D.N.Y. Aug. 16, 2013) (quoting Omnipoint Commc'ns, Inc. v . Town of LaGrange, 658
F. Supp. 2d 539, 554 (S.D.N.Y. 2009)) (other citation omitted).
When determining whether there was "substantial evidence" to support a local government's
denial of an application, courts "must view the record in its entirety, including evidence opposed to
the [local government]'s view, and 'may neither engage in [its] own fact-finding nor supplant the
[local government]'s reasonable determinations.'" T-Mobile Northeast LLC v. Town of Islip, 893 F.
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Supp. 2d 338, 354 (E.D.N.Y. 2012) (quoting Town of Oyster Bay, 166 F.3d at 494). Additionally,
when reviewing the decision, "courts 'must employ "the traditional standard used for judicial review
of agency actions."'" Id. (quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d
Cir. 1999) (quoting H.R. Conf. No. 104-458, at 208 (1996), reprinted in 1996 U.S.C.C.A.N. 124,
223)). Under this standard, courts have generally construed substantial evidence "'to mean less than
a preponderance, but more than a scintilla of evidence.'" Town of Oyster Bay, 2013 WL 4495183,
at *11 (quoting Omnipoint Commc'ns, 430 F.3d at 533 (quoting Cellular Tel., 166 F.3d at 494))
(other citation omitted); see also Willoth, 176 F.3d at 638 (stating that substantial evidence "'"means
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"'"
(quotation omitted)). Moreover, "local and state zoning laws govern the weight to be given the
evidence." Town of Oyster Bay, 166 F.3d at 494. Therefore, although "[t]he TCA clearly
establishes procedural requirements that local boards must comply with in evaluating cell site
applications . . . the TCA does not 'affect or encroach upon the substantive standards to be applied
under established principles of state and local law.'" Id. (quoting Cellular Telephone Co. v. Zoning
Bd. of Adjustment, 24 F. Supp. 2d 359, 366 (D.N.J. 1998)) (footnote omitted).
The record in this case consists of the following: (1) Plaintiff's original and amended
application, see Dkt. No. 27-2, Exhibit "A," Plaintiff's Initial Application; Dkt. No. 27-3, Exhibit
"B," Plaintiff's Amended Application; (2) numerous petitions in the form of emails and letters
opposing and supporting construction of the facility, see Dkt. No. 27-8, Exhibit "G," ZBA
Comments; Dkt. No. 27-11 Exhibit "J," Plaintiff Board Comments; (3) the negative SEQRA
Determination, see Dkt. No. 27-7, Exhibit "F"; (4) the Planning Board's report, see Dkt. No. 27-10,
Exhibit "I"; (5) the ZBA's minutes and hearing transcript discussing the project, see Dkt. No. 27-5,
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Exhibit "D," ZBA Minutes; Dkt. No. 27-9, Exhibit "H," the ZBA Transcript; and (6) four reports
that Defendant Town's expert Mr. Johnson prepared regarding the project, see Dkt. No. 27-13.
Defendant Town memorialized its decision in a "Notice of Decision," in which it denied
Plaintiff's application, concluding that Plaintiff's request for a use and area variance would produce
"an undesirable change or detriment to nearby properties." See Dkt. No. 27-6, Notice of Decision,
at 1. Defendant Town also found that Plaintiff "had not met the traditional standard for use
variances, as codified in Section 208-109(C)(2) of the Town's Code[.]" See Dkt. No. 24-3,
Plaintiff's Statement of Facts, at ¶ 135 (citing Brennan Aff., ¶ 94) (other citation omitted); see also
Dkt. No. 27-6, Notice of Decision.
Finally, the applicable local law in this case is the Town Code, which sets forth the
requirements for obtaining a special use permit or variance to construct a telecommunications
facility like the one that Plaintiff proposed. In addition, New York State law provides that wireless
service providers such as Plaintiff "are afforded the status of public utilities for the purposes of
zoning applications[.]" Town of Islip, 893 F. Supp. 2d at 355 (citing Cellular Tel. Co. v. Rosenberg,
82 N.Y.2d 364, 604 N.Y.S.2d 895, 624 N.E.2d 890 (1993)). Therefore, zoning boards or other
reviewing agencies must evaluate applications for telecommunications facilities under the "'public
necessity' standard established in Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 403
N.Y.S.2d 193, 374 N.E.2d 105 (1978)." Id. This means that the reviewing agency "must evaluate a
cellular telephone company's application . . . on the basis of whether the public utility has shown a
need for its facilities and whether the needs of the broader public would be served by [approving the
application]." Sprint Spectrum L.P. v. Bd. of Zoning Appeals of Town of Brookhaven, 244 F. Supp.
2d 108, 114 (E.D.N.Y. 2003) (citing Rosenberg, 82 N.Y.2d at 371-72, 604 N.Y.S.2d 895, 624
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N.E.2d 990 (citing Consol. Edison Co. v. Hoffman, 43 N.Y.2d 598, 611, 403 N.Y.S.2d 193, 374
N.E.2d 105 (1978))).
Courts have interpreted the "public necessity" standard to require that wireless service
providers establish "'"(1) that there are gaps in service, (2) that the location of the proposed facility
will remedy those gaps and (3) that the facility presents a minimal intrusion on the community[.]"'"
New Cingular Wireless PCS, LLC v. Town of Fenton, 843 F. Supp. 2d 236, 245 (N.D.N.Y. 2012)
(quotation omitted). "As a general rule, if the public utility makes the required showing, which
necessarily means the record is devoid of substantial evidence to support a denial, the [application]
must issue." Town of Islip, 893 F. Supp. 2d 355 (citing Town of LaGrange, 658 F. Supp. 2d at
555). However, "'[i]f the Court finds that even one reason given for the denial is supported by
substantial evidence, the decision of the local zoning body cannot be disturbed.'" Id. (quoting New
York SMSA L. P. v. Town of Oyster Bay Zoning Bd. of Appeals, No. 08-CV-4833, 2010 WL
3937277, *4 (E.D.N.Y. Sept. 30, 2010)).
There is no dispute that Plaintiff satisfies the first two elements of the "public necessity"
standard, i.e., (1) there is a gap in service in the Gap Area and (2) Plaintiff's proposed facility will
remedy that gap. See Dkt. No. 27-16, Defendant Town's Memorandum of Law, at 8-9 (conceding
that Plaintiff has established a "significant gap in wireless coverage in the Gap Area" and that "the
proposed new communications tower would satisfy the need"); Dkt. No. 27, Defendant Town's
Responsive Statement of Material Facts, at ¶ 79 (admitting that Parcel C, the proposed location for
the facility, "satisfies . . . coverage and capacity objectives"). However, Defendant Town argues
that the erection of the facility on Parcel C will present more than a minimal intrusion on the
community and that Plaintiff could have employed CRAN technology as a less intrusive means of
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meeting the needs of the Gap Area. See Dkt. No. 27-16, Defendant Town's Memorandum of Law,
at 9-10, 16.
Courts that have addressed whether proposed telecommunications facilities present more
than a minimal intrusion on a community have considered factors such as whether "(1) the proposed
facility would affect the aesthetics of the community; (2) the proposed facility would affect property
values in the community; (3) [the provider] failed to fully consider less intrusive alternatives; and
(4) the impact of the proposed facility on the health and safety of the community." Town of Oyster
Bay, 2013 WL 4495183, at *14.
1. Effect of the proposed facility on the aesthetics of the community
"Objections on aesthetic grounds must 'articulate specifically how the proposed cell sites
would have an adverse aesthetic impact on the community.'" Town of Islip, 893 F. Supp. 2d at 358
(quoting Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir. 1999)). Thus,
"[t]o deny a siting application on aesthetic grounds, there must be substantial evidence: (1) that
'residents will be able even to see the antennae' and (2) there will be an actual 'negative visual
impact on the community.'" Id. (quotation omitted). Moreover, "[i]t is well-settled that a 'few
generalized expressions of concern with "aesthetics" cannot serve as substantial evidence on which
the Town could base the denials.'" Id. (quotation omitted). In addition, "because 'it would be a rare
event to be able to buffer a communications tower so that it is not visible at all,' . . . and '[f]ew
people would argue that telecommunications towers are aesthetically pleasing', courts tend to
require objective evidence of a negative visual impact that is 'grounded in the facts of the case.' . . ."
Id. 359 (internal quotations omitted). In other words, "[s]peculative concerns about the 'potential
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visibility' of a proposed tower are unlikely to constitute substantial evidence for denying an
application absent some form of objective support in the form of 'photographs, site plans, surveys,
and the like.'" Id. at 358 (quoting Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 54 (1st
Cir. 2012)) (other citation omitted). This is particularly the case when the service provider provides
expert testimony, technical reports, and other objective data demonstrating that the facility will
blend in with the surrounding community. See N.Y. SMSA Ltd. P'ship v. Vill. of Floral Park Bd. of
Trs., 812 F. Supp. 2d 143, 157-58 (E.D.N.Y. 2011) (citation omitted). However, under the TCA, a
reviewing court "can find that aesthetics qualify as a permissible ground for a denial of [an
application] only if [it] can conclude that there was 'more than a mere scintilla' of evidence,
Universal Camera, 340 U.S. at 477, 71 S. Ct. 456, before the [Town] Board on the negative visual
impact of the [proposed facility]." Town of Oyster Bay, 166 F.3d at 495 (footnote omitted); see also
Omnipoint Commc'ns, Inc. b. City of White Plains, 430 F.3d 529, 533-34 (2d Cir. 2005) (finding
that the City's denial of the plaintiff's application to construct a 150-foot communications tower on
aesthetic grounds was supported by "reasonable and substantial evidence" because the proposed
"tower would rise to three times the height of the tallest evergreen tree and would be half again as
tall as any other tree in the area" and the "aesthetic objections raised by the neighbors who know the
local terrain and the sightlines of their own homes").
In its Notice of Decision, Defendant Town stated that, if it were to grant Plaintiff a variance
to erect a telecommunications tower in an R-1 residential zone, the proposed facility would create
an "undesirable change or detriment to nearby properties[.]" See Dkt. No. 27-6, Notice of
Decision, at 1. Apart from this one general statement, however, the Notice of Decision does not
provide any information about what Defendant Town relied on to reach this conclusion other than
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the fact that the tower would be built in a residential zone, which would require a use variance. See
id.
Nonetheless, the record does contain multiple petitions from residents who objected to the
facility because of its purported negative aesthetic impact, the statement of one of the ZBA
members that the ZBA had received "at least 50" emails and/or letters in opposition to the project,
see Dkt. No., 27-9, ZBA Tr., at 57:21-58:18; Dkt. No. 27-8, ZBA Comments; Dkt. No. 27-11,
Planning Board Comments; and the testimony of several residents at the ZBA hearing that the
facility would be visible from several areas of Defendant Town, see Dkt. No. 27-9, ZBA Tr., at
64:16-65:14; 68:5-23; 72:13-15; 80:7-20. Therefore, the Court must consider whether there is
sufficient evidence in the record to support Defendant Town's finding that the facility would pose an
actual "negative visual impact on the community."
The record indicates that Plaintiff's proposed facility is a 100-foot tall stealth monopine tree,
purposefully designed to blend in with the surrounding mature trees on the site. See Dkt. No. 24-3,
Plaintiff's Statement of Facts, at ¶ 27 (citing Brennan Aff., ¶ 76) (other citation omitted); ¶ 33
(citing Brennan Aff., ¶ 17) (other citation omitted). Additionally, after conducting a "professional
drone test," Plaintiff confirmed that the trees around the facility average 85-feet in height, with one
tree reaching 100-feet, the same height as the proposed tower. See id. at ¶ 27 (citing Brennan Aff.,
¶ 76) (other citation omitted). Plaintiff also conducted multiple visual impact studies to determine
from which areas in Defendant Town the facility would be visible and demonstrated that it "w[ould]
be largely invisible to the surrounding community and w[ould] have a minimal visual or aesthetic
impact." See Dkt. No. 24-8, Plaintiff's Memorandum of Law, at 40 (citing [Plaintiff's Statement of
Facts] at ¶¶ 88-105, 133) (other citation omitted). Specifically, Plaintiff conducted two separate
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balloon tests and photo-simulations of the facility, both as originally proposed and later as the
modified stealth monopine structure, and confirmed that the structure would be "substantially
invisible." See id.; Dkt. No. 24-3, Plaintiff's Statement of Facts, at ¶¶ 89-105. Plaintiff also
conducted a "worst-case scenario" visual impact study, i.e., "in the winter season during 100% leafoff conditions" and maximum potential visibility, and still demonstrated that the facility would be
substantially screened from view. See Dkt. No. 24-8, Plaintiff's Memorandum of Law, at 40; Dkt.
No. 24-3, Plaintiff's Statement of Facts, at ¶ 88 (citing Brennan Aff., ¶ 53) (other citation omitted).
Furthermore, after neighboring residents threatened to cut down trees on their properties to
eliminate the "natural screening" the trees would provide to camouflage the facility, Plaintiff
conducted additional tests that supported its earlier findings. See Dkt. No. 24-8, Plaintiff's
Memorandum of Law, at 40 (citation omitted); Dkt. No. 24-3, Plaintiff's Statement of Facts, at
¶¶ 100-102 (citing Brennan Aff., ¶¶ 62-64) (other citations omitted). Moreover, notwithstanding
residents' photographs of Plaintiff's balloon test, which showed that the tower would be visible from
their properties, Plaintiff convincingly explained that, although the red balloon used during the test
was admittedly visible through the trees and from different locations, photo simulations of the
stealth monopine, designed so as to resemble the surrounding trees, conclusively demonstrated that
the tower would be "substantially screened or invisible to the majority of the locations." See Dkt.
No. 27-9, ZBA Tr., at 8:23-9:2.
Finally, as Plaintiff points out, Defendant Town's "expert agreed that '[t]he methodology
[Plaintiff employed] 'for the visual resource evaluation [was] an acceptable, commonly used
methodology for evaluation of potential visual impacts of an action or project and [was] generally
consistent with industry practices.'" See Dkt. No. 24-8, Plaintiff's Memorandum of Law, at 40
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(quoting [Plaintiff's Statement of Facts] at ¶ 95; Brennan Aff., ¶ 58) (other citation omitted).
Furthermore, Defendant Town did not object to or challenge the conclusions Plaintiff reached as a
result of its visual impact studies. See Dkt. No. 24-8, Plaintiff's Memorandum of Law, at 41 (citing
[Plaintiff's Statement of Facts] at ¶¶ 95, 112). Moreover, as Plaintiff points out, Defendant Town
"did not conduct any expert assessment of its own regarding visual or market value impacts" to
controvert Plaintiff's findings. See id. (citing [Plaintiff's Statement of Facts] at ¶¶ 95, 112). Instead,
Defendant Town, "after noting [Plaintiff's] visual mitigation efforts . . ., found under SEQRA that
the Facility would not 'result in significant adverse environmental impacts.'" See id. (quoting
[Plaintiff's Statement of Facts] at ¶ 133) (other citation omitted). In addition, the Saratoga County
Planning Board issued a decision in which it concluded that Plaintiff's project would have "No
Significant County Wide or Inter Community Impacts." See Dkt. No. 27-8, ZBA Comments, at 54.
After reviewing the entire record, the Court finds that, despite the comments of some of
Defendant Town's residents regarding the visual impact of the proposed facility, the objective
evidence convincingly demonstrates that Plaintiff's proposed structure would not have an actual
"negative visual impact" on the community. Therefore, the Court finds that there is not substantial
evidence in the record to support Defendant Town's conclusion that Plaintiff's proposed structure
would be more than minimally intrusive on the aesthetics of the community.
2. Effect of Plaintiff's proposed facility on nearby property values
"'[A] few generalized concerns about a potential decrease in property values" do not
constitute "substantial evidence" sufficient to support a decision denying construction of a
telecommunications facility. MetroPCS N.Y., LLC v. Vill. of E. Hills, 764 F. Supp. 2d 441, 452-53
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(E.D.N.Y. 2011) (quotation and other citations omitted); see also Vill. of Floral Park Bd. of Trs.,
812 F. Supp. 2d at 157 (noting that, "[a]lthough a few residents raised concerns about property
values, these were simply conclusory assertions that property values would decrease, which [did]
not amount to substantial evidence" (citation omitted)).
Defendant Town concedes that its residents did not provide "any appraisal reports or
objective evidence" to support their allegations that the proposed facility would have a negative
impact on property values. See Dkt. No. 24-3, Plaintiff's Statement of Facts, at ¶ 112 (citing
Brennan Aff., ¶ 71) (other citation omitted). Moreover, in its Notice of Decision, Defendant Town
did not include "reduced property values" as a reason for denying Plaintiff's application. Therefore,
the Court finds that there is not substantial evidence in the written record to support Defendant
Town's finding that the facility would have more than a "minimally intrusive" impact on the
community due to a decrease in property values.
3. Alternative, less intrusive sites
Mere speculation that alternative sites were more appropriate or that a wireless provider
could "have tried harder" to find other, less intrusive locations to construct its facility do not
constitute "substantial evidence" on which a defendant may rely to demonstrate that the facility
would have more than a "minimal intrusion" on the community. See Town of Oyster Bay, 2013 WL
4495183, at *18. Furthermore, courts have concluded that wireless providers do not need to
consider "every potential alternative" to satisfy the "least restrictive means test." Id. To the
contrary, "[t]he law only requires [the provider] to engage in 'a good faith effort to evaluate
alternative sites.'" Id. (quotation and other citations omitted).
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Plaintiff evaluated seven other potential sites, including those Defendant Town proposed,
such as Parcel B, and provided detailed reasons why each site would be unsuitable for the facility.
For example, Plaintiff's Radio Frequency ("RF") Design Engineer explained that Plaintiff could not
feasibly use Defendant Town's transfer station at Vischer Ferry Road, a preexisting structure, "due
to its distance from the Gap Area, combined with the rolling terrain and dense tree canopy," which
would prevent service from extending "far enough east to provide coverage to the whole of the Gap
Area." See Dkt. No. 24-1, Andras Affidavit, at ¶ 66 (citation omitted). In addition, Plaintiff
provided detailed reasons why it had eliminated other alternative sites from consideration. For
example, Plaintiff explained that it had removed Parcel D from consideration due to "the presence
of significant wetlands on the property and the need to cross them for site access," see id. at ¶ 69;
Parcel E was not feasible because "that property ha[d] been subdivided and [was] being built out as
a new housing community," see id.; Parcel A, although ideal, was unsuitable "because of its close
proximity to homes along several residential roads [and] because it would be far more visible over a
longer distance than the proposed Facility at the Site," see id. at ¶ 70, in addition to significant
zoning issues associated with building on Parcel A, see id.; and Parcel B "was not suitable because,
despite multiple conversations and correspondence with the property owners, they were not willing
to lease the property for the siting of a cell tower," see id. (citation omitted).
For all these reasons, the Court finds that there is not substantial evidence in the written
record to support Defendant Town's denial of Plaintiff's application based on the argument that
Plaintiff should have chosen another, less intrusive site for its facility.
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4. Health concerns
"[T]he mere fact that members of the community raised health concerns does not violate the
TCA" and therefore cannot constitute substantial evidence to support the denial of a cell tower
application. Town of Islip, 893 F. Supp. 2d at 353-54 (citation omitted). In fact, the TCA expressly
prohibits zoning boards from denying an application for a telecommunications facility on
community health or safety grounds if the application is compliant with FCC emission regulation
levels. See 47 U.S.C. § 332(c)(7)(B)(iv) (providing that "[n]o . . . local government . . . 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 Commission's regulations concerning such emissions"); see also Nextel of N.Y.,
Inc. v. City of Mt. Vernon, 361 F. Supp. 2d 336, 341 (S.D.N.Y. 2005) (stating that "health concerns
expressed by residents cannot constitute substantial evidence" (citing 47 U.S.C.
§ 332(c)(7)(B)(iv))).
Plaintiff demonstrated, and Defendant Town did not dispute, that the proposed facility
would generate emissions levels far below permissible levels and would be compliant with FCC
emission regulations. See Dkt. No. 24-3, Plaintiff's Statement of Facts, at ¶ 113 (citing Brennan
Aff., ¶ 72) (other citation omitted). Thus, the Court finds that Defendant Town's residents'
generalized health concerns cannot form the basis for Defendant Town's denial of Plaintiff's
application.
5. Post hoc rationalizations
In addition to the reason that Defendant Town provided in its Notice of Decision denying
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Plaintiff's application, it now argues that it denied the application in part because Plaintiff did not
show that Parcel B, the location Defendant Town asserted was the "most feasible" location for the
project site, was not available. See Dkt. No. 27, Defendant Town's Responsive Statement of Facts,
at ¶ 134 (citing McCarthy Aff. Exh. A at R107). Additionally, Defendant Town asserts that
Plaintiff "failed to disclose or discuss the use of [CRAN technology] which [Plaintiff] has used in
other residential areas" across New York State. See id.; Dkt. No. 27 at 44-50, Defendant Town's
Statement of Additional Facts, at ¶ 17 (citing Johnson Aff. ¶ 17). Specifically, Defendant Town
claims that "[t]he Gap Area, including the area around [Plaintiff's] proposed new tower, has above
ground utility poles that could serve as the support for the multiple micro cells in a CRAN
network." See Dkt. No. 27, Defendant Town's Statement of Additional Facts, at ¶ 14 (citing
Johnson Aff., ¶ 20).
The Court rejects these "post-hoc rationalizations" for Defendant Town's decision. See New
Cingular Wireless PCS, LLC v. Town of Fenton, 843 F. Supp. 2d 236, 247 (N.D.N.Y. 2012) (noting
that "a post hoc rationalization . . . cannot . . . be raised to defend the ZBA's action" (citations
omitted)); see also Town of Islip, 893 F. Supp. 2d at 367 (stating that "'[a] board may not provide
the applicant with one reason for a denial and then, in court, seek to uphold its decision on different
grounds'" quotation and other citations omitted)).
There is nothing in Defendant Town's Notice of Decision to indicate that it denied Plaintiff's
application for either of the two aforementioned reasons. With regard to Parcel B, although
Defendant Town questioned the availability of Parcel B during the ZBA hearing discussing
Plaintiff's application, see Dkt. No. 27-9, ZBA Tr., at 47:25-48:5, there is nothing in the record to
indicate that Defendant Town's ZBA as a whole or any of its members rejected Plaintiff's
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application because of the availability of other "more feasible" or "less intrusive" site locations.
Rather, the Notice of Decision merely reflects a concern regarding the aesthetic impact of the
facility, i.e., that the facility would produce "an undesirable change or detriment to nearby
properties," see Dkt. No. 27-6, Notice of Decision, at 1, and that telecommunications facilities like
the one Plaintiff proposed are prohibited in residential zones, see id. at 2. Moreover, there is no
other contemporaneous writing that indicates that Defendant Town relied on this reason to deny
Plaintiff's application. Therefore, the Court finds that Defendant Town's assertion that it denied
Plaintiff's application, in part, because Plaintiff had not shown that Parcel B, an allegedly "more
feasible" location than the selected Parcel C, was not available, amounts to an impermissible post
hoc rationalization. Accordingly, the Court concludes that the purported availability or feasibility of
Parcel B cannot serve as a basis for denying Plaintiff's application.
Similarly, Defendant Town did not mention CRAN technology at any time prior to its
opposition to the pending motion, and there is nothing in the written record to indicate that
Defendant Town's ZBA's denial of Plaintiff's application had anything to do with CRAN technology
or Plaintiff's failure to consider the use of CRAN technology in Defendant Town. It is clear that
Defendant Town's attempt to justify its February 2017 denial of Plaintiff's application on this basis
is nothing more than an impermissible post hoc rationalization for its decision given that Plaintiff
first proposed to use CRAN technology in another town in April 2017, "several months after
[Defendant] Town issued its denial." See Dkt. No. 30, Plaintiff's Reply Memorandum of Law, at 6
(citing Affirmation of Thomas McCarthy, dated October 10, 2017 ("McCarthy Aff."), at ¶ 22;
Affirmation of William P. Johnson, dated October 10, 2017 ("Johnson Aff."), at ¶¶ 18-19)) (other
citations omitted). Therefore, this reason could not have possibly informed Defendant Town's
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decision. Accordingly, the Court rejects Defendant Town's assertion that Plaintiff should have
proposed CRAN technology as an alternative to the chosen facility because it is an impermissible
post hoc rationalization that did not form the basis for denying Plaintiff's application.
6. Summary
In sum, after reviewing the entire written record, the Court concludes that Defendant Town
has failed to raise a genuine issue of material fact regarding whether there is "substantial evidence"
in the record to support its denial of Plaintiff's application. To the contrary, the record demonstrates
that Plaintiff has satisfied the "public necessity" standard because its proposed facility would only
create a "minimal intrusion" on the community. Accordingly, the Court grants Plaintiff's motion for
summary judgment.2
C.
The effective prohibition provision of the TCA
Section 332(c)(7)(B)(i)(II) of the TCA limits the power of local governments to deny the
construction of wireless telecommunications facilities and subjects their decisions to judicial
review. See Willoth, 176 F.3d at 637 (citations omitted). One such limitation, the so-called
2
Since the Court has granted Plaintiff's motion for summary judgment with regard to its
TCA claim, it need not consider Plaintiff's Article 78 claim separately. See Town of Oyster Bay,
2013 WL 4495183, at *12 (stating that "[c]ourts have found that[,] where lack of substantial
evidence is established under [the] TCA, the determination will also be arbitrary and capricious
and lack substantial evidence under Article 78" (citing Town of Islip, 893 F. Supp. 2d at 373
("Although 'Article 78 imposes its own requirement that local decisions be supported by
substantial evidence[,]' the test for relief from a zoning board's decision under Article 78 'is
essentially the same as that under the TCA'" (citations omitted))) (other citations omitted).
Therefore, the Court grants Plaintiff's motion for summary judgment with regard to its Article 78
claim.
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"effective prohibition provision," provides that "local regulation of 'the placement, construction, and
modification of personal wireless service facilities . . . shall not prohibit or have the effect of
prohibiting the provision of personal wireless services.'" Id. at 638 (quoting 47 U.S.C.
§ 332(c)(7)(B)(i)). In Town of East Fishkill, the court noted that "the Second Circuit ha[d] held that
the TCA's 'ban on prohibiting personal wireless service precludes denying an application for a
facility that is the least intrusive means of closing a significant gap in a remote user's ability to reach
a cell site that provides access to land-lines.'" Town of E. Fishkill, 84 F. Supp. 3d at 296 (quoting
Willoth, 176 F.3d at 643). In other words, "[u]nder the Willoth standard . . . a plaintiff will prevail
on an effective prohibition claim 'if it shows both that a significant gap exists in wireless coverage
and that its proposed facility is the least intrusive means to close that gap.'" Id. at 296-97 (quoting
Town of Ramapo, 701 F. Supp. 2d at 456).3
"[I]f an applicant's proposal is not the least intrusive means of closing a significant gap in
coverage, a 'local government may reject [the] application . . . without thereby prohibiting personal
wireless services. . . .'" T-Mobile Northeast LLC v. Town of Ramapo, 701 F. Supp. 2d 446, 456-57
(S.D.N.Y. 2009) (quoting [Willoth, 176 F.3d at 643]). For example, in Willoth, the court suggested
that a plaintiff may fail to show that its proposed cell tower facility is the least intrusive means to
satisfy the coverage gap if the record demonstrates that there is a "less sensitive site" available for
the facility's construction, if the plaintiff could "reduce the tower height," or if it could use an
already "preexisting structure" to address the gap in wireless coverage. Willoth, 176 F.3d at 643
(citations omitted). However, "[w]here the plaintiff's existing proposal is the only feasible plan to
3
As previously noted, there is no dispute that a significant gap exists in wireless
coverage; therefore, the Court need only consider the parties' arguments regarding the issue of
whether the proposed facility is the least intrusive means to close that gap.
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close the relevant coverage gap, it seems evident that no less intrusive means is possible, and the
application must be granted." Town of Ramapo, 701 F. Supp. 2d at 457.
In Town of Ramapo, the court found that the plaintiff had presented "overwhelming
evidence that its proposed facility would be the least intrusive means of closing the identified
coverage gap." Id. at 459. In reaching that conclusion, the court underscored the fact that the
plaintiff had provided an affidavit from an RF engineer detailing why the proposed facility was the
only feasible option to meet the relevant coverage needs and why other site locations were
inadequate. See id. To demonstrate that other site locations were inadequate, the plaintiff
submitted a chart to the planning board listing the alternate sites it had considered, some on its own
initiative and others the planning board had suggested that it consider, followed by specific reasons
it had rejected each site. See id. The plaintiff also reviewed two alternative technologies that the
planning board had suggested during the application process and provided reasons why neither
would be feasible to meet the area's coverage needs. See id. The court also noted that, throughout
the entire application process, the plaintiff "accommodated Town officials' and Town residents'
suggestions in an attempt to craft a less intrusive but still feasible plan," such as offering to design
the town as a "tree-pole" to blend in which the surrounding area. Id. Lastly, the planning board, in
issuing a negative SEQRA declaration with regard to the proposed project, found, among other
things, that the site was "'well screened from the surrounding neighborhood'"; "'the location [would]
be minimally noticed during the leaf on seasons'"; and the "'evergreen antenna [would] help mitigate
visual impacts for leaf off times[.]'" Id.
A review of the record demonstrates that Defendant Town has failed to raise a triable issue
of material fact with regard to whether Plaintiff's proposed facility would be the "least intrusive"
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means of fulfilling the needs of the Gap Area. First, Plaintiff attempted to address Defendant
Town's and its residents' aesthetic concerns at every step of the application process, including
changing the original tower design from a "steel monopole" to a "stealth monopine tree" so that the
facility would more effectively blend in with the surrounding area at the site. See Dkt. No. 24-8,
Plaintiff's Memorandum of Law, at 34. Moreover, Defendant Town has admitted that the new
design would have a minimal visual impact because it (1) would be surrounded by a set of mature
trees that average 85 feet in height, with one tree reaching 100 feet, see Dkt. No. 24-3, Plaintiff's
Statement of Facts, at ¶¶ 26-27 (citing Brennan Aff., ¶¶ 28, 63, 76) (other citations omitted), ¶ 117
(citations omitted); (2) the tree screen would have a depth of between 35 feet and 120 feet on site,
see id. at ¶ 26 (citing Brennan Aff., ¶¶ 28, 63) (other citation omitted); ¶ 101 (citing Brennan Aff.;
¶ 63) (other citation omitted); (3) the facility would blend into the natural environment with
minimal visual impacts because it is only marginally taller than the surrounding trees and would be
the same height as at least one other nearby tree, see id. at ¶ 98 (citing Brennan Aff., ¶¶ 67, 76)
(other citation omitted); (4) the on-site stand of mature trees would effectively shield the facility
from view, see id. at ¶¶ 102-103 (citing Brennan Aff., ¶¶ 64, 75) (other citations omitted); ¶ 116
(citing Brennan Aff., ¶ 75) (other citation omitted); (5) the facility would be at least 700 feet from
the nearest residential structure and set back from all lot lines by a distance equal to at least 110% of
its height, see id. at ¶ 28 (citing Brennan Aff., ¶ 16; Andras Aff. at ¶ 12) (other citation omitted);
¶ 118 (citing Brennan Aff., ¶ 78) (other citation omitted); (6) it would not disturb any vegetation,
wetlands or historic resources, see id. at ¶¶ 30-31 (citing Brennan Aff., ¶¶ 32, 79, 80) (other
citations omitted); (7) Plaintiff modified the facility design and reduced its height to accommodate
aesthetic concerns, see id. at ¶ 34 (citing Brennan Aff., ¶ 17) (other citation omitted); and (8) a
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visual impact analysis confirmed that the facility would be substantially screened from view and
would not result in significant visual impacts even pre-modification, see id. at ¶¶ 87-94 (citations
omitted).
Furthermore, Defendant Town issued a negative SEQRA declaration, which concluded,
among other things, that "(1) [Plaintiff] reduced the tower height 'to the lowest possible height to
still allow for the tower to be functional and serve its intended purpose'; (2) [Plaintiff] modified the
Facility 'to align more aesthetically with the surrounding wooded land uses', as confirmed by 'an
additional balloon test'; (3) 'other alternate locations would not provided [sic] the needed service to
this specific area'; and (4) 'the proposed [project] . . . [would not] result in significant adverse
environmental impacts.'" See id. at ¶ 133 (citing Brennan Aff., ¶ 87) (other citation omitted). In
addition to these reasons and because Plaintiff has explained, and Defendant Town does not dispute,
that no "preexisting structure" or further reduction in tower height would be feasible, the Court finds
the Defendant Town has not raised a material issue of fact with regard to Plaintiff's claim that its
proposed facility is the "least intrusive" means of meeting the Gap Area's coverage needs.
Therefore, the Court grants Plaintiff's motion for summary judgment as to its "effective prohibition"
claim.4
D.
The appropriate remedy
If a plaintiff demonstrates that there is substantial evidence in the record to support its
application under the TCA, courts have found that the appropriate remedy is injunctive relief in the
4
Since the Court has granted Plaintiff's motion for summary judgment with regard to both
Plaintiff's "substantial evidence" and "effective prohibition" claims, it does not need to address
Plaintiff's federal preemption argument.
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form of an order requiring the local authorities to grant the plaintiff's application. See Town of
Oyster Bay, 2013 WL 4495183, at *20. In other words, "[a]lthough the TCA 'does not specify a
remedy for violations of the cellular siting subsection,' . . . 'the majority of district courts that have
heard these cases have held that the appropriate remedy is injunctive relief in the form of an order to
issue the relevant permits.'" T-Mobile Northeast LLC v. Inc. Vill. of E. Hills, 779 F. Supp. 2d 256,
275 (E.D.N.Y. 2011) (quoting Town of Oyster Bay, 166 F.3d at 497) (collecting cases)); see also
Town of Fenton, 843 F. Supp. 2d at 258 (noting that courts customarily grant injunctive relief and
require the relevant zoning boards to issue necessary variances and permits).
In light of the foregoing, the Court concludes that injunctive relief is the appropriate remedy
in this case. Therefore, the Court orders that Defendant Town issue all approvals and permits
necessary to allow Plaintiff to construct and operate its proposed facility.
IV. CONCLUSION
Having reviewed the entire record in this case, the parties' submissions, and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion for summary judgment is GRANTED; and the Court
further
ORDERS that Defendants immediately issue all approvals and permits necessary to allow
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Plaintiff to construct and operate its proposed Communications Facility, including, without
limitation, all building permits, site plan approvals, special use permits, and variances; and the
Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Plaintiff and close this
case.
IT IS SO ORDERED.
Dated: February 6, 2019
Syracuse, New York
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