Up State Tower Co., LLC v. The Town of Kiantone, New York et al

Filing 46

DECISION AND ORDER denying 39 Motion for Summary Judgment; granting judgment as a matter of law in Plaintiff's favor on Count V of the Amended Complaint because Defendants violated 47 U.S.C. § 332(c)(7)(B)(iii), insofar as the reasons fo r their written denial of Plaintiffs Application were not supported by substantial evidence in the record; vacating the Resolution of the Town Board of the Town of Kiantone denying Plaintiff's Application; and directing Defendants to promptly approve Plaintiffs Application and grant and issue all required variances. Signed by Hon. Michael A. Telesca on 3/11/19. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UP STATE TOWER CO., LLC,
Plaintiff,
DECISION and ORDER
No. 1:16-cv-00069-MAT

-vsTHE TOWN OF KIANTONE, NEW YORK; THE
TOWN BOARD OF THE TOWN OF KIANTONE,
NEW YORK; and THE BUILDING
DEPARTMENT OF THE TOWN OF KIANTONE,
NEW YORK,
Defendants.

INTRODUCTION
Up State Tower Co., LLC (“Plaintiff”) commenced this action
against the Town of Kiantone, the Town Board of the Town of
Kiantone and the Building Department of the Town of Kiantone
(collectively, “Defendants”) alleging that Defendants violated the
Telecommunications Act of 1996 (“TCA”), Pub. L. No. 104–104, 110
Stat. 56 (codified at 47 U.S.C. § 151 et seq., as amended), in
denying its application for a special use permit to construct a
public

utility

wireless

telecommunication

facility.

Presently

before the Court is Defendants’ Second Motion for Summary Judgment.
For the reasons discussed below, the motion is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff develops and builds telecommunications facilities on
behalf of Blue Wireless, a telecommunications carrier licensed by
the Federal Communications Commission (“FCC”) to operate in the

Jamestown, New York area, including the Town of Kiantone (“the
Town”). The Town is a municipal corporation in Chatauqua County,
New York. The Town Board of the Town of Kiantone (“the Board”) is
the Town’s governmental body.
At issue in this litigation is Plaintiff’s Tower Permit
Application

(“the

Application”)

dated

July

30,

2015,

seeking

permission to construct a wireless telecommunications tower at 1710
Foote Avenue, in Jamestown, New York (“the Proposed Site”).
On December 9, 2016, this Court issued a Decision and Order
granting Plaintiff’s motion for summary judgment on as to its first
cause of action and ordered, as a remedy, that the Town issue a
written decision on the Application within 20 days.
On December 19, 2016, the Board issued a “Resolution Denying
the Application of Up State Tower Co., LLC For Town Tower Permit,
Area Variances and Site Plan Review” (“the Resolution”) (Dkt #393). After making a number of factual findings, see id. ¶¶ 1-61, the
Board offered several reasons for denying Plaintiff’s Application,
including that Plaintiff “failed to establish that its proposed
facility is the least intrusive means to close Blue Wireless’ gap
in wireless coverage or that a tower at this location and height is
needed to solve Blue Wireless’ alleged gap in wireless coverage[.]”
Resolution at 13.
On January 9, 2017, Plaintiff filed a motion to reconsider
this Court’s December 9, 2016 decision. After the Court issued a

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Decision and Order denying reconsideration on March 31, 2017,
Plaintiff filed a notice of interlocutory appeal as to the December
2016 and March 2017 decisions. The United States Court of Appeals
for the Second Circuit affirmed both decisions on December 27,
2017.
Defendants now have filed their Second Motion for Summary
Judgment (Dkt ##39 - 39-20) asserting that they are entitled to
judgment as a matter of law on Count V of the Amended Complaint
(Dkt #24),

which

alleges that

the

denial of

the

Application

violated 47 U.S.C. § 332(c)(7)(B)(iii) because it is unsupported by
“substantial evidence.” Plaintiff has opposed the motion (Dkt ##42
through 42-5), and Defendants have filed a Reply (Dkt #43).

The

motion was submitted without oral argument on November 27, 2018
(Dkt #44). On February 15, 2019, Plaintiff filed a Response (Dkt
#45) presenting supplemental authority1 in further support of its
opposition.
The supplemental authority consists of a Declaratory Ruling
and Third Report and Order (“FCC Order”) adopted by the Federal
Communications

Commission

(“FCC”)

on

September

26,

2018,

and

effective January 14, 2019. Plaintiff notes that the FCC clarified
the

interpretation of what constitutes “an effective prohibition”

1

The FCC Order is entitled In the Matter of Accelerating Wireless
Broadband Deployment by Removing Barriers to Infrastructure Investment, WT
Dkt. No. 17-79 and WC Docket No. 17-84, FCC 18-133, available at
https://www.fcc.gov/document/fcc-facilitates-wireless-infrastructure-deploymen
t-5g.

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of wireless service for purposes of an “effective prohibition”
claim under 47 U.S.C. § 332(c)(7)(B)(i)(II). Defendants did not
respond to Plaintiff’s submission of the FCC Order. Defendants have
not moved for summary judgment on Plaintiff’s effective prohibition
claim, and it is unclear whether the FCC Order applies to the
Resolution issued in December 2016. The Court finds that while the
FCC Order is informative, it is not dispositive of this motion.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that
a 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).
A fact is deemed “material” for these purposes “if it might affect
the

outcome

of

the

suit

under

the

governing

law.”

Holtz

v.

Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (citation
omitted). A factual issue is “genuine” if “a reasonable jury” could
find in favor of the nonmoving party based on that fact. Id.
(citation omitted). The initial burden of establishing the absence
of any genuine issue of material fact falls on the movant; after
that, the burden shifts to the nonmovant to establish the existence
of a factual question requiring resolution at trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). At the summary
judgment stage, “courts are required to view the facts and draw

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reasonable inferences ‘in the light most favorable to the party
opposing the [summary judgment] motion.” Scott v. Harris, 550 U.S.
372, 378 (2007) (quotation and citation omitted).
DISCUSSION
I.

Overview of the TCA
The TCA has been described as “an omnibus overhaul of the

federal regulation of communications companies,” Sprint Spectrum
L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999), intended “‘to
provide

for

a

pro-competitive,

de-regulatory

national

policy

framework designed to accelerate rapidly private sector deployment
of advanced telecommunications and information technologies and
services . . . .’” Id. (quoting H.R. Conf. Rep. No. 104–458, at 113
(1996); other citation omitted). To these ends, the TCA limits
State and local governmental authority to deny construction of
wireless

telecommunications

towers,

see

47

U.S.C.

§

332(c)(7)(B)(i), and prescribes how such decisions must be made,
see id. § 332(c)(7)(B)(ii)-(iv). “Although the TCA preserves local
zoning authority in all other respects over the siting of wireless
facilities, [47 U.S.C.] § 332(c)(7)(A), ‘the method by which siting
decisions are made is now subject to judicial oversight.’” Willoth,
176 F.3d at 637

(quoting Cellular Tel. Co. v. Town of Oyster Bay,

166 F.3d 490, 492 (2d Cir. 1999) (“Town of Oyster Bay”).
Substantively, the TCA provides that no State or local law may
prohibit or have the effect of prohibiting “the provision of

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personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). The
TCA procedurally requires that the denial of a request to construct
a

wireless

facility

must

be

“in

writing

and

supported

by

substantial evidence” in the record. 47 U.S.C. § 332(c)(7)(B)(iii).
II.

The “Substantial Evidence” Standard
When determining whether a denial of a wireless tower permit

application was supported by substantial evidence, courts “must
employ ‘the traditional standard used for judicial review of agency
actions.’” Town of Oyster Bay, 166 F.3d at 494 (quoting H.R. Conf.
No. 104–458, at 208 (1996), reprinted in 1996 U.S.C.C.A.N. 124,
223). Substantial evidence requires “less than a preponderance, but
more than a scintilla of evidence [and] ‘means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Id. (quoting Universal Camera v. NLRB, 340 U.S.
474,

477

(1951)

(internal

quotations

omitted

in

original)).

“Whether an administrative agency determination is shored up by
substantial evidence is a question of law to be decided by the
courts.” Willoth, 176 F.3d at 645 (quoting 300 Gramatan Ave.
Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181 (1978)).
When a Federal court evaluates the evidence underlying a zoning
decision in this area, local and State zoning laws “govern the
weight to be given the evidence.” Town of Oyster Bay, 166 F.3d at
494.
III. The Relevant Local and State Laws

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A.

State Law

In New York State, “cellular telephone companies are afforded
the status of public utilities[,]” Town of Oyster Bay, 166 F.3d at
494

(citation

omitted),

meaning

that

“a

cellular

telephone

company’s application for a variance must be judged by the [local
zoning board] on a different standard than that applied to the
usual application for a use variance.” Id. (citing Consolidated
Edison Co. v. Hoffman, 43 N.Y.2d 598, 611 (1978) (“Con Ed”)). Under
the Con Ed “public necessity” standard, a wireless provider or
other

public

utility

must

demonstrate

that

“(1)

its

new

construction ‘is a public necessity in that it is required to
render safe and adequate service’; and (2) ‘there are compelling
reasons, economic or otherwise, which make it more feasible.’”
Omnipoint Commc’ns, Inc. v. City of White Plains, 430 F.3d 529, 535
(2d Cir. 2005) (quoting Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d
364, 371–72 (1993)). This standard has been interpreted to require
that the provider establish the following: “[1] there are gaps in
service, [2] . . . the location of the proposed facility will
remedy those gaps and [3] . . . the facility presents a minimal
intrusion on the community[.]” T-Mobile Ne. LLC v. Town of Islip,
893 F. Supp.2d 338, 355 (E.D.N.Y. 2012) (quoting Site Acquisitions,
Inc. v. Town of New Scotland, 770 N.Y.S.2d 157, 160 (3d Dep’t 2003)
(citing Rosenberg, 82 N.Y.2d at 373-74)).

-7-

“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 at 355 (citing Omnipoint
Commc’ns v. Town of LaGrange, 658 F. Supp.2d 539, 555 (S.D.N.Y.
2009)). If, however, 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)); accord,
e.g.,

Cellco

P’ship

v.

Town

of

Clifton

Park,

New

York,

No.

117CV273FJSDJS, 2019 WL 498754, at *4 (N.D.N.Y. Feb. 8, 2019).
B.

Local Law

The applicable local law in effect at the time of the Town
Board’s decision is Local Law No. 2 of 1999, An Amendment of the
Zoning

Ordinance

of

the

Town

Telecommunications Facilities,

of

Kiantone,

Article

XVI,

a copy of which is attached as

Exhibit A (Dkt #1-1) to the Complaint (Dkt #1). The short title of
this law is the Town of Kiantone Telecommunications Facilities Law
(“the TKTFL”). See TKTFL § 29.1.
Section 29.9 of the TKTFL pertains to “Permit Standards For
New Tower” and lists certain criteria to be considered by the Board
in approving or denying a request for a tower permit: siting;
aesthetics (which encompasses tower type, landscaping, co-locating,

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lighting, signs, and ancillary uses); traffic, access and safety;
removal of tower; structural safety; and maintenance. See id. §
29.9, ¶¶ A-F. The TKTFL does not state how these factors should be
weighed.
When evaluating the evidence supporting the denial of a
wireless provider’s application, “local and state zoning laws
govern the weight to be given the evidence” and the TCA does not
“affect or encroach upon the substantive standards to be applied
under established principles of state and local law.” Town of
Oyster Bay, 166 F.3d at 494. Because the TKTFL contains no specific
instructions as to the weighing of the relevant factors, the “only
limit” on the Board’s ability in this regard “is set by the TCA’s
restriction that municipalities cannot deny applications that would
result in the effective prohibition of wireless services, which
requires that certain allowances be made where there is a ‘need for
service’ that cannot be closed by ‘less intrusive means.’” Willoth,
176 F.3d at 647 (quotation omitted). The foregoing language is
reflected in the TKTFL’s special variance standard applicable to
public utilities. See TKTFL § 29.5(G)(1).
IV.

The Board’s Reasons for Denying the Application
The

Board’s

two

main

reasons

for

denying

Plaintiff’s

Application were that Plaintiff “failed to establish that [1] its
proposed facility is the least intrusive means to close Blue
Wireless’ gap in wireless coverage or [2] that a tower at this

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location and height is needed to solve Blue Wireless’ alleged gap
in wireless coverage.” Resolution at 13. The Board’s rationale for
these conclusions focused on what it perceived to be Plaintiff’s
failure to investigate other, less intrusive sites. The Court
addresses the reasons proffered by the Board in turn below.
A.

Proposed Site Not “Least Intrusive”

While the Board relied on its finding that Plaintiff failed to
show that its proposed facility is the least intrusive means to
close Blue Wireless’ gap in wireless coverage, courts in this
Circuit have found that the “least intrusive” standard is not the
correct standard in connection with a substantial evidence claim
under 47 U.S.C. § 332(7)(B)(iii). See, e.g., New York SMSA Ltd.
P’ship v. Vill. of Floral Park Bd. of Trs., 812 F. Supp.2d 143, 164
(E.D.N.Y. 2011). In Vill. of Floral Park Bd. of Trs., the district
court rejected an argument by the defendant zoning board that the
plaintiff wireless carrier “did not establish a need for the
special use permit because it did not establish that [its proposal]
was the ‘least intrusive and only feasible plan’ for closing the
coverage gap” because “on a substantial evidence claim like the one
[the plaintiff] asserts [under 47 U.S.C. § 332(7)(B)(iii)], a
public

utility

is

telecommunications

not

required

facility

is

to

the

show
‘least

that

its

intrusive

proposed
or

only

feasible plan’ of closing a coverage gap.” 812 F. Supp.2d at 164.
Rather, the district court observed, that standard is appropriate

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in the context of a prohibition-of-wireless-services claim under 47
U.S.C. § 332(7)(B)(i)(II). Id. (citing New York SMSA Ltd. P’ship v.
Inc. Vill. of Mineola, No. 01–CV–8211, 2003 WL 25787525, at *5
(E.D.N.Y. 2003)).
The Second Circuit has addressed the distinction between these
two standards. Floral Park Bd. of Trs., 812 F. Supp.2d at 164
(citing Omnipoint Commc’ns, Inc., 430 F.3d 529). In the context of
a substantial evidence claim brought by the plaintiff, the Second
Circuit in Omnipoint Commc’ns, Inc. agreed that the planning board
applied

“the

wrong

test”

when

it

required

the

plaintiff

to

establish public necessity by showing that its proposal would close
a coverage gap in the “least intrusive means.” 430 F.3d at 535. The
“least intrusive means” requirement “addresses the showing an
applicant must make before TCA § 332(c)(7)(B)(i)(II) will require
a planning board to grant its application.” Id. (emphasis in
original).

By

contrast,

the

Second

Circuit

explained,

the

applicable standard on a substantial evidence claim is the public
necessity standard under New York law “which concerns the showing
that a utility must make under New York law before a zoning board
may grant a use variance.” Id. (citing Con Ed, 43 N.Y.2d at 611).
To establish public necessity, the carrier must demonstrate not
that the proposed facility was the “least intrusive means,” but
rather that the proposed facility was “more feasible than other
options.” Id. (emphasis added).

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Moreover, the “least intrusive” standard is not found anywhere
in the TKTFL. The only time “intrusive” is mentioned in the TKTFL
is in the section pertaining to variances requested by a public
utility such as Plaintiff. Specifically, Section 29.5(G) states
that if a public utility “demonstrates with substantial evidence it
cannot provide service by following all requirements” of the TKTFL,
the

Board

“may

grant

variances”

if

the

public

utility

“demonstrate[s] . . . public necessity in that the site is required
to render safe and adequate service, that there are compelling
reasons, economic or otherwise, which make the site more feasible
than properly zoned sites, and the site is no less intrusive

[sic]

of the local zoning than other viable sites.” TKTFL § 29.5(G)(1)
(emphasis supplied). The phrase “no less intrusive,” i.e., “not any
less intrusive,”2 does not mean that the public utility must
demonstrate that its proposed site is the “least intrusive.”
B.

Failure to Establish Public Necessity

The Board also found that Plaintiff failed to “establish a
need for this tower at this location and height is needed to solve
Blue Wireless’ alleged gap in wireless coverage.” Resolution at 13,
15. The Board’s description of the coverage gap as “alleged”
suggests it does not accept that Plaintiff has established a
coverage

gap. The Board noted that in its Application, Plaintiff

2

The Court believes that what the Board meant to say in this section is “no
more intrusive” rather than “no less intrusive.”

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asserted that “[t]he Blue Wireless network does not currently
provide adequate service in the area south of Newland Avenue.”
Resolution at 10, ¶ 47 (citation to record omitted). The Board
observed that Newland is located in the City of Jamestown one mile
north of the proposed site, id. ¶ 48, and the Jamestown city line
is

three-tenths

of

a

mile

north

of

the

proposed

site,

id.

Therefore, the Board concluded, a “significant amount of coverage
is for service outside the Town of Kiantone.” Id. However, in the
Resolution, the Board did not meaningfully or substantively dispute
the existence of a significant coverage gap.
In contrast, Plaintiff presented a series of Blue Wireless
radio

frequency

(“RF”)

propagation

maps

to

Defendants

which

depicted the existing and expected wireless coverage from the
proposed tower location at heights of 180 feet and 170 feet,
respectively. See Plaintiff’s Memorandum of Law (“Pl.’s Mem.”) (Dkt
#42) at 8 (citing Complaint (Dkt #1), Ex. 13; Amended Complaint
(“Am. Compl.”) (Dkt #24), Exs. 14 & 19). Eric Wong (“Wong”), an RF
engineer and Blue Wireless’ Network Director identified the area
around 1710 Foote Avenue as the necessary location for a new Blue
Wireless site based on RF studies he conducted. See Affidavit of
Eric Wong (“Wong Aff.”) (Dkt #1-6) ¶¶ 1, 3. These studies revealed
that the Town currently does not have coverage from Blue Wireless.
Id. ¶ 4. Based on the RF studies he conducted, id. ¶ 7 (citing Exs.
5C, 5D, 5H, & 5I to Dkt #1-6), Wong identified 1710 Foote Avenue as

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the necessary location for a new wireless tower; at a height of 180
feet, the proposed tower would “cover businesses along Foote
Avenue[;]”

“nearby

residential

neighborhoods

in

the

northern

section of the Town of Kiantone[;]” “vehicles moving through the
area on Foote Avenue[;]” and “would provide a seamless connection”
with Blue Wireless’ existing antennas in the City of Jamestown. Id.
¶ 5, which “would allow customers to move between the two coverage
areas without experiencing a dropped call or interruption in data
service[,]” id. ¶ 7. Wong further averred that if Plaintiff were to
site a new tower outside of the required search ring radius, it
would result in a coverage gap between the existing Blue Wireless
antennas as well as reduced coverage in the target areas. Id. ¶ 6.
As Wong acknowledged in his affidavit, Blue Wireless previously had
collocated antennas on an existing tower at the corner of Foote
Avenue and Brad Street; however, the antennas were removed because
this site did not fit with Blue Wireless’ network design. Id. ¶ 9.
Based on his RF propagation studies showing expected coverage from
the extant tower, Wong determined that there were too much overlap
with another Blue Wireless site in Jamestown and lack of coverage
over the targeted areas in the Town. Id.
Plaintiff notes that Defendants never requested supplemental
RF documentation during any of Plaintiff’s appearances before the
Board. See Pl.’s Mem. at 8 (citing Am. Compl., Ex. 13; Answer (Dkt
#26), Exs. 3, 4, & 7 (Dkt #26-1)). Nor did any other party submit

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evidence

contradicting

Plaintiff’s

RF

propagation

studies,

challenging Wong’s qualifications, or questioning the technological
foundation of the RF studies. Courts in this Circuit have found
this nature and type of evidence sufficient to support a finding of
a

“significant

gap”

in

wireless

coverage.

See,

e.g.,

Nextel

Partners, Inc. v. Town of Amherst, NY, 251 F. Supp.2d 1187, 1196
(W.D.N.Y. 2003) (plaintiff’s RF propagation maps “clearly showed a
significant gap” in plaintiff’s wireless service in the Town of
Amherst where such gaps were “not limited to rural areas or the
interior of buildings in sparsely populated areas;” there were
“coverage holes near the intersection of New Road and Tonawanda
Creek

Road;”

and

tower

Tonawanda Creek Road and .

intended

to

provide

“coverage

along

. . at least in-vehicle coverage” on

three roads which were “well traveled and certainly [did] not
qualify as rural areas”); Omnipoint Commc'ns, Inc. v. Town of
LaGrange, 658 F. Supp.2d 539, 559 (S.D.N.Y. 2009) (finding a
significant gap where RF propagation maps showed “a complete
absence of coverage over a 3.5–mile area along State Route 55 and
in the center of the Town of LaGrange”).
In sum, the Court finds that Plaintiff presented substantial
evidence of a significant coverage gap in wireless coverage which
Defendants did not controvert. Accordingly, Defendants’ conclusion
that Plaintiff failed to establish a need for a wireless tower at

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the

height

and

location

proposed

in

its

Application

is

not

supported by substantial evidence.
C.

Failure to Investigate Other Viable Sites

Defendants

assert

that

Plaintiff

failed

to

adequately

investigate other potentially viable sites for constructing a new
tower or placing an antenna. In particular, Defendants fault
Plaintiff for failing to engage in good faith negotiations with
George Barton Schuver, Jr. (“Schuver”), the owner of the property
identified as Location 19 (“the Schuver property”) in Plaintiff’s
Supplemental Site Selection and Justification Report; failing to
explore the option of placing an antenna on a light tower at the
Jamestown Sports Complex; and failing to evaluate locations outside
of

the

Town’s

commercial

zoning

districts.

For

the

reasons

discussed below, the Court finds that none of the reasons are
supported by substantial evidence and instead, in some cases, rest
on mischaracterizations of the record.
1.

Investigation of Alternative Sites

As part of the public necessity test, a zoning board must
consider whether there is a more feasible, less intrusive option
for the wireless provider to site its facility. See, e.g., Vill. of
Floral Park Bd. of Trs., 812 F. Supp.2d at 164–65 (“A local board
is justified in considering the availability of alternatives that
might create less disruption to the community’s zoning plan.”)
(alterations omitted); N.Y. SMSA L.P. v. Town of Oyster Bay Zoning

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Bd. of Appeals, No. 08–CV–4833, 2010 WL 3937277, at *6 (E.D.N.Y.
Sept. 30, 2010) (same). “[T]he Court must ascertain whether there
is

substantial

alternative

evidence

sites

were

to

support

not

the

Board’s

investigated

finding

properly,

that

based

on

evaluation of the entire record, including opposing evidence.” Town
of Oyster Bay Zoning Bd. of Appeals, 2010 WL 3937277, at *6; see
also

N.Y.

SMSA

Ltd.

P’ship

v.

Inc.

Vill.

of

Mineola,

No.

01–CV–8211, 2003 WL 25787525, at *9 (E.D.N.Y. Mar. 26, 2003) (“The
court must ascertain whether there is substantial evidence to
support

the

Board’s

finding

that

alternative

sites

were

not

investigated properly, based on evaluation of the entire record,
including opposing evidence.”) (citing Am. Textile Mfrs. Inst.,
Inc.

v.

Donovan,

substantial

452

evidence

U.S.
review,

490,

523

“court

(1981)
must

take

(in

performing

into

account

Justification

Report,

contradictory evidence in the record”)).
In

its

initial

Site

Selection

and

submitted along with its Application, Plaintiff evaluated nine
commercial properties along Foote Avenue. To determine each site’s
viability, Plaintiff looked at whether the site could provide
reliable service to remedy Blue Wireless’ coverage gap, the land
uses surrounding the site, the presence of natural features that
could act as a buffer, the capability of constructing a tower on
the site, and Plaintiff’s ability to obtain a legal interest in the
property. Plaintiff found that, within the search ring, there were

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no towers or tall structures on which Blue Wireless might collocate
its antennas. See Wong Aff. ¶ 20. The Town was informed of
Plaintiff’s

conclusion

on

this

point

at

the

public

hearings

addressing the Application. Id.
The Board then asked Plaintiff to evaluate additional products
within a three-mile search ring around the proposed site on Foote
Avenue. Defendants requested that Plaintiff evaluate additional
properties that were not properly zoned—and which would have
accordingly required another variance under the TKTFL. Plaintiff
assessed ten additional properties, predominantly in the B-1 and B2 (commercial) zoning districts. Plaintiff also assessed three
sites that were not commercially zoned. On December 10, 2015,
Plaintiff submitted its Supplemental Site Selection Justification
Report (“SSSJR”), Am. Compl., Ex. 19 (Dkt #24-2) & Ex. 20 (Dkt #243), setting forth all the sites it had evaluated to date.
In the SSSJR Plaintiff explained in detail its rationale for
declining to assess properties that were not properly zoned or had
existing

residential

uses

and

would

in

turn

require

another

variance. Plaintiff cited TKTFL § 29.9(A) which states that the
Board “shall allow siting of new towers only in commercial areas.”
In addition, Plaintiff cited TKTFL § 29.6(B), which provides that
“[n]o new towers shall be allowed within a residential zoning
district, or within 250 feet of the boundary of a residential
zoning district.” Plaintiff also noted that the TKTFL contained a

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500-foot tower setback requirement from any public roadway. For
each of the possible locations, Plaintiff concluded that, based on
a 180-foot radius representing the full tower height setback, and
a 280-foot radius representing the additional 100 feet for the
fall-down zone as required by TKTFL § 29.8(F), none of the 19 lots
in the search area would accommodate these distances. See SSSJR at
1 (Am. Compl., Ex. 20 (Dkt #24-3)).
Defendants,

however,

focused

on

Plaintiff’s

purported

“fail[ure] to follow the Town Planning Board recommendations” “to
explore options that would be less intrusive, even if the site was
not located in a Business Zoning District.” Resolution at 14. The
Court questions the reasonableness of the Board’s demand that
Plaintiff

explore

locations

where

the

placement

of

wireless

facilities is expressly forbidden by the Town’s zoning law, given
that Plaintiff’s pending application for a site within the proper
zoning district already required six variances, see Resolution at
4-5, which the Board found too intrusive of the Town’s zoning.
Moreover, Plaintiff did explore three sites that were in noncommercially zoned districts but found them unsuitable, as set
forth in the SSSJR. The Resolution did not substantively contest
the reasons identified by Plaintiff in the SSSJR but instead
offered non-substantive, minor criticisms, such as that the maps
and drawings were not in the same scale. These criticisms were
effectively rebutted by Plaintiff in its opposition to the pending

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summary judgment motion. See Pl.’s Mem. at 19-22 (citations to
record omitted). After reviewing the record as a whole, the Court
is compelled to conclude that the Board’s rejection of Plaintiff’s
application for failing to investigate alternative sites or follow
the

Board’s

recommendations

was

not

supported

by

substantial

evidence.
2.

The Schuver Property

The Schuver Property consists of 87 acres of vacant land
located on the west side of Foote Avenue, opposite the proposed 30foot by 50-foot site on the east side of Foote Avenue. In the
Resolution denying Plaintiff’s Application, Defendants noted that
Schuver appeared at the December 10, 2015 Board meeting and stated
that he was willing to negotiate with Plaintiff regarding Lot 19.
See

Resolution

at

13.

However,

Defendants

stated,

Plaintiff

“indicated at the hearing that [it] was not willing to talk to Mr.
Schuver and just wanted the Board to make a decision on [its]
application within the 150-day time period of the ‘shot clock.’”
Id. Defendants concluded that Plaintiff “did not present to the
Board any

evidence

from

which

the

Board could

conclude that

[Plaintiff] was making a reasonable effort to locate on the less
intrusive Schuver property.” id. at 14; see also Am. Compl., Ex. 25
(Dkt #24-5).
In its opposition to Defendants’ request for summary judgment,
Plaintiff has provided more details regarding its evaluation of the

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Schuver property. With regard to the viability of the Schuver
property,

during

the

initial

lease

negotiations,

Schuver

had

informed Plaintiff that the tower needed to be located on the
northeastern portion of his property along South Avenue so as not
to impede any future development of the rest of parcel. See
Affidavit of Donald Carpenter (“Carpenter”) dated October 30, 2018
(“Carpenter

Aff.”)

consultant

on

(Dkt

site

#42-3)

¶

acquisition

21.
and

Carpenter,
design,

Plaintiff’s

averred

that

accommodating Schuver’s request would have located the tower in
plain view of multiple residences with no natural buffer and would
have required the same or similar variances needed for the 1710
Foote Avenue site. Id. Defendants’ assertion that the Schuver
property

was less intrusive was not supported by substantial

evidence.
With regard to Defendants’ accusation that Plaintiff did not
negotiate in good faith for the Schuver property, the Court finds
that this assertion is belied by the record. Carpenter, Plaintiff’s
consultant, has averred that the parties engaged in extensive
negotiations.

Schuver requested, and Plaintiff agreed to, a

monthly rental payment that exceeded Plaintiff’s standard rental
payment in the region. See Carpenter Aff. ¶ 23. After reaching
agreement on proposed lease terms with Carpenter, id. ¶ 24, Schuver
retained a company to renegotiate the lease terms, id. ¶ 25. About
a month after his last correspondence with Schuver, Carpenter

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received a proposed lease agreement from Schuver’s consultant which
contained several substantial revisions and new provisions that
were objectionable to Plaintiff, “including a 250% increase in rent
and a revenue sharing provision that would have increased Up
State’s monthly rent payment to Mr. Schuver by almost four times
what he had requested.” Id.
About a week later, on December 7, 2015, Carpenter presented
a counter-offer to Schuver which retained the revenue sharing
provision (albeit in a reduced amount). Carpenter Aff. ¶ 26 & Ex.
C. The next communication between Schuver and Carpenter occurred at
the December 10, 2015 Board meeting, at which time Carpenter
informed the Board about the lease negotiations with Schuver and
the fact that this property still required a number of variances.
Id. ¶ 27. When Schuver publicly stated that he was willing to
negotiate, Carpenter responded that he was not interested because
he believed Schuver “had not acted in good faith to that point” and
would not do so going forward. Moreover, because Carpenter had
received no response to his December 7, 2015 counter-offer, he
assumed negotiations had ended. Id. ¶ 29. Nevertheless, after the
meeting,

Carpenter

continued

to

communicate

with

Schuver’s

consultant, and they exchanged further revisions to the proposed
lease agreement. However, the parties could not reach mutually
acceptable terms. Id. ¶ 30. Carpenter also had suggested that

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Plaintiff could purchase an easement for the use of a portion of
the property, but Schuver rejected this idea. Id. ¶ 31.
Based on a review of the record as a whole, the Court finds
that the Board’s rejection of the Application on the basis that
Plaintiff failed to negotiate in good faith with Schuver regarding
Location 19 is unsupported by substantial evidence. Moreover,
substantial evidence does not support the Board’s finding that the
Schuver property was actually available or viable, particularly in
light of the parties’ inability to reach agreement on lease terms.
See, e.g., New York SMSA L.P. v. Town of Oyster Bay Zoning Bd. of
Appeals, 2010 WL 3937277, at *6 (substantial evidence did not
support board’s finding that alternative sites not investigated
properly where board focused on a local mattress store as a viable
alternative site, but the wireless provider “clearly explained” why
the site was inappropriate: after significant negotiation, the
store owner insisted on a term in the lease agreement that gave
either party the right to unilaterally terminate the agreement,
meaning that provider could be forced to remove the antennas);
Inc. Vill. of Mineola, 2003 WL 25787525, at *9 (“Verizon met its
burden

of

investigating

alternatives

and

presented

credible

evidence regarding the infeasibility of the sites and the Board
presented no evidence to the contrary.”).
3.

Jamestown Sports Complex

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The

Board

also

denied

the

Application

because

Plaintiff

purportedly failed to investigate locating its antennas on an
existing light pole at the Jamestown Sports Complex, as suggested
by the Town’s consultant, Richard Comi. Defendants noted that “Up
State’s own RF Engineer, Mr. Wong, . . . indicated at the December
10, 2015 hearing that the gap in coverage could be solved by
placing an antenna on a light pole if of proper height and if the
pole could hold the equipment.” Resolution at 14. Defendants stated
that the “light poles on the football field are located at an
elevation of 130' to 150' higher than the proposed site” and the
“Sports Complex is located approximately 1/4 of a mile from the
proposed site.” Id.
In
Plaintiff

opposition
has

to

submitted

Defendants’
another

summary

affidavit

judgment
from

Wong,

motion,
its

RF

engineer, clarifying his statements at the December 10, 2015 Board
meeting. See Second Affidavit of Eric Wong (“2nd Wong Aff.”) (Dkt
#42-4) ¶¶ 16-18. Wong averred that he advised the Board that “some
level of service could theoretically be obtained by collocating on
a

light

pole

provided

the

pole

was

structurally

capable

of

accommodating an antenna array installation and had the height
required to provide reliable service[,]” id. ¶ 16, but he “did not
state that any specific light pole(s) in the surrounding area,
including any light pole located at the Jamestown Sports Complex,
located approximately 1/2 mile away and well outside of the search

-24-

ring, could be used to address” the coverage gap. Id. ¶ 17. Since
the property was outside of the search ring and as far north as the
existing tower at the intersection of Foote Avenue and Brad Street,
it presented the same coverage issues as the existing tower, which
had been rejected by Blue Wireless for collocation because it
overlapped too much with another of its towers and thus did not
work within its network. Wong further explained in his affidavit
that, in his experience, standard light poles are generally not
suitable collocation alternatives because they are designed to
accommodate only the lights positioned at the top of the pole and
lack the

structural

integrity

for

the

collocation

of

a

full

wireless antenna array. Id. ¶ 18.
The Board concluded that Plaintiff “failed to make contact
with the [Jamestown] school [district]” even though the Board had
been

“informally

advised

that

the

school

district

would

be

interested in talking about a lease,” which information the Board
passed on to Plaintiff. Id. Plaintiff responds that on May 9, 2016,
Carpenter met with the District’s Director of Finance and Business
Affairs, Vernon Connors (“Connors”) about leasing space for a new
tower in the southeast corner of the Jamestown Sports Complex.
Carpenter Aff. ¶ 33. Carpenter provided a proposed lease agreement
to Connors, and they exchanged emails; however, on November 16,
2016, Conners informed Carpenter by email that the District was not

-25-

interested in pursuing a lease agreement with Plaintiff. Id. ¶ 34
& Ex. D.
The Court finds that the Board’s rejection of the Application
on the ground that Plaintiff failed to investigate siting its
wireless facility on a light pole or other existing structure is
unsupported

by

substantial

evidence.

Contrary

to

Defendants’

assertion, Plaintiff did explore leasing space on the light tower
at

Jamestown

agreement

Sports

with

the

Complex,
School

but

it

was

District.

unable

Moreover,

to

reach

an

Defendants’

contention that the light tower at the Sports Complex was a viable
alternative for placement of Plaintiff’s wireless facility appears
to have been based purely on speculation by the Board. See New York
SMSA Ltd. P’ship v. Town of Oyster Bay, No. 11-CV-3077 MKB, 2013 WL
4495183, at *18 (E.D.N.Y. Aug. 16, 2013) (“The Board is required to
support its decision with substantial evidence that the alternative
sites were feasible.”) (citing Town of Oyster Bay Zoning Bd. of
Appeals, 2010 WL 3937277, at *6 (noting that “[t]he Board presented
no evidence that other sites were appropriate substitutes for the
Property”)).
D.

Generalized Statements of Concern

The

Resolution

throughout

contains

references

to

the

intrusiveness of the Proposed Site and asserts that other viable,
less intrusive sites are available. However, the Court has not been
able to discern specific reasons based on substantial evidence why

-26-

1710 Foote Avenue was more intrusive than other sites. The Second
Circuit has held that “generalized expressions of concern . . .
cannot serve as substantial evidence” on which a municipal planning
board may deny a wireless provider’s application. Town of Oyster
Bay, 166 F.3d at 496. Other than conclusory assertions that the
alternatives were more suitable and Plaintiff should have tried
harder, the Board did not present substantial evidence that the
other sites were feasible. In contrast, Plaintiff investigated the
alternatives suggested by the Board, documented its findings,
analyzed them, and presented its conclusions in writing and in
person to the Board as to why these alternatives were not feasible.

Moreover, the Court notes that the Town’s own determination
under

the

New

York

State

Environmental

Quality

Review

Act

(“SEQRA”), N.Y. Envtl. Conserv. Law § 8-0109, et seq., tends to
undermine Defendants’ position that Plaintiff’s proposed facility
“is going to cause numerous zoning problems.” Defs.’ Mem. at 9. In
Part 3-Evaluation of the Magnitude and Importance of Project
Impacts on the Full Environmental Assessment Form, the Town, as
“Lead Agency,” stated as follows: “Because the tower exceeds 175
feet in height, it is considered a Type I action under SEQR by the
Town of Kiantone, and a full EAF [Environmental Assessment Form]
has been completed. Part 2 of the EAF identifies that the project
will

have

no

significant

impacts

-27-

or

small

impacts

on

the

environment.” SEQRA Determination, Ex. A to Declaration of Jon
Devendorf (Dkt #42-2, p. 30 of 33) (emphasis supplied). The Town
further

concluded

that

“[t]his

project

will

result

in

no

significant adverse impacts on the environment” and therefore a
“negative declaration [was] issued.” Id. (Dkt #42-2, p. 31 of 33).
E.

Conclusion and Remedy

For the foregoing reasons, the Court finds that the Board’s
Resolution denying Plaintiff’s Application is not supported by
substantial evidence. Accordingly, Defendants cannot be granted
summary judgment with respect to Count V of the Amended Complaint.
E.g.,

T-Mobile Ne. LLC v. Inc. Vill. of E. Hills, 779 F. Supp.2d

256, 272 (E.D.N.Y. 2011).
The TCA does not specifically provide a remedy for violations
of the various provisions of 47 U.S.C. § 332(c)(7). At least for
violations of the substantial evidence provision, 47 U.S.C. §
332(c)(7)(B)(iii), “almost all courts to address the question 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. Town of Ramapo, 701 F. Supp.2d 446, 463 (S.D.N.Y. 2009) (quoting
Town of Oyster Bay, 166 F.3d at 497 (collecting cases)); see also
Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp.2d 539,
562 (S.D.N.Y. 2009) (declining town’s request to remand matter to
planning board; remand would “be both futile and inappropriate” due
to the “considerable evidence of past delay on the [t]own’s part

-28-

and the only ‘useful purpose’ that would be served by remand” would
be “allowing local officials to delay the inevitable for as long as
possible”).
The record before the Court compels the conclusion that, in
denying the Application, the Board did not adduce “such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion,” Town of Oyster Bay, 166 F.3d at 494 (citations
omitted). The Court is further convinced, given the completeness of
the record, that the Board could not find substantial evidence in
the record on which to deny the Application again, should the
matter be remanded. Therefore, the Court finds, further proceedings
before the Board would be futile. Accordingly, the Court grants
Plaintiff’s request for injunctive relief and directs the Town to
grant the Application and issue all necessary variances. See, e.g.,
New Cingular Wireless PCS, LLC v. Town of Fenton, 843 F. Supp.2d
236, 258 (N.D.N.Y. 2012).
ORDERS
For the foregoing reasons, it is hereby
ORDERED that Defendants’ Second Motion for Summary Judgment is
denied; and it is further
ORDERED that judgment as a matter of law is granted to
Plaintiff on Count V of the Amended Complaint because Defendants
violated 47 U.S.C. § 332(c)(7)(B)(iii), insofar as the reasons for

-29-

their written denial of Plaintiff’s Application were not supported
by substantial evidence in the record; and it is further
ORDERED that the Resolution issued by the Board denying the
Application is vacated; and it is further
ORDERED

that

Defendants

promptly

approve

Plaintiff’s

Application and grant and issue all required variances.
The Clerk of Court is directed to close this case.
SO ORDERED.
s/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 11, 2019
Rochester, New York.

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