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

Filing 58

DECISION AND ORDER denying 49 Defendants' First Motion for Reconsideration and the Court adheres to its March 11, 2019 Decision and Order (Dkt #46) denying Defendants Second Motion for Summary Judgment. Signed by Hon. Michael A. Telesca on 11/26/19. (JMC)

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’ Motion for Reconsideration.
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 (Dkt #39-3) at 13.
On January 9, 2017, Plaintiff filed a motion to reconsider
this Court’s December 9, 2016 decision. After the Court issued a
Decision and Order denying reconsideration on March 31, 2017,

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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 filed a Second Motion for Summary Judgment (Dkt
##39 to 39-20) asserting entitlement 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 to 42-5), and
Defendants have filed a Reply (Dkt #43).
without

oral

argument

on

November

The
27,

motion was submitted
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 consisted 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 noted that the FCC clarified
the

interpretation of what constitutes “an effective prohibition”

of wireless service for purposes of an “effective prohibition”
claim under 47 U.S.C. § 332(c)(7)(B)(i)(II). Defendants did not

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.

-3-

respond to Plaintiff’s submission of the FCC Order. Defendants also
did

not

move

for

summary

judgment

on

Plaintiff’s

effective

prohibition claim. The Court found that it was unclear whether the
FCC Order applied to the Resolution issued in December 2016, and
thus determined it was not dispositive of Defendants’ summary
judgment motion.
In a Decision and Order (Dkt #46) dated March 11, 2019, the
Court denied Defendants’ motion for summary judgment as to Count V,
finding that the Board’s Resolution denying Plaintiff’s Application
was not supported by substantial evidence. Accordingly, the Court
determined, Defendants were not entitled to summary judgment with
respect to Count V of the Amended Complaint. As a remedy, the Court
vacated the Board’s Resolution denying the Application and directed
Defendants to promptly approve the Application and grant and issue
all required variances to Plaintiff. Judgment in Plaintiff’s favor
(Dkt #47) was entered on March 12, 2019.
On April 2, 2019, Defendants filed their First Motion for
Reconsideration (Dkt ##49 to 49-4). On April 15, 2019, Defendants
filed their First Motion to Stay the Judgment (Docket ## 50, 51).
By

order

dated

April

16,

2019

(Dkt

#52),

the

Court

granted

Defendants’ request to stay its obligation to issue the cell tower
permit until such time as the Court decided their reconsideration
motion. On April 17, 2019, the Court granted Plaintiff’s request
for an extension of time to respond to the reconsideration motion.

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Plaintiff filed its Memorandum in Opposition (Dkt #56) on April 24,
2019. Defendants did not submit any reply papers.
DEFENDANTS’ MOTION FOR RECONSIDERATION
I.

Standard on Reconsideration
The standard for granting a motion for reconsideration under

Federal Rule of Civil Procedure (“F.R.C.P.”) 59(e) “is strict, and
reconsideration will generally be denied unless the moving party
can

point

to

controlling

overlooked—matters,

in

decisions

other

words,

or

data

that

that

might

the

court

reasonably

be

expected to alter the conclusion reached by the court.” Shrader v.
CSX

Transp.,

Inc.,

70

F.3d

255,

257

(2d

Cir.

1995)

(citing

Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990) (“The
only proper ground on which a party may move to reargue an
unambiguous

order

is

that

the

court

overlooked

‘matters

or

controlling decisions’ which, had they been considered, might
reasonably have altered the result reached by the court.”); Adams
v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988) (same)).
“The provision for reargument is not designed to allow wasteful
repetition of arguments already briefed, considered and decided[,]”
Schonberger, 742 F. Supp. at 109 (citations omitted)), and “a
motion to reconsider should not be granted where the moving party
seeks solely to relitigate an issue already decided.” Shrader, 70
F.3d at 257.

-5-

II.

Asserted Grounds for Motion
Defendants

assert that the Court made the following “errors

of law” in its March 11, 2019 Decision and Order denying summary
judgment:

(1)

(“Carpenter”)
(Dkt

#42-3)

considering
dated

with

the

October

regard

to

Affidavit

30,

2018

of

Donald

(“Carpenter

Plaintiff’s

Carpenter

Affidavit”)

investigation

of

and

negotiations regarding a parcel (“Location 19” or “the Schuver
property”)

owned

by

George

Barton

Schuver,

Jr.

(“Schuver”);

(2) considering the October 30, 2018 Affidavit of Eric Wong (“2nd
Wong Affidavit”) (Dkt #42-4) regarding the ability to collocate a
telecommunications tower on light poles at the Jamestown School
District Sports Complex (“Sports Complex”); and (3) considering the
Town’s

negative

determination

under

the

New

York

State

Environmental Quality Review Act (“SEQRA”), N.Y. Envtl. Conserv.
Law § 8-0109, et seq., as evidence that Plaintiff’s proposal was
the least intrusive means to close a wireless coverage gap in the
Town of Kiantone. Defendants argue that the Court considered
evidence that was not before the Board, or actually relied on by
the Board, when it arrived at its Resolution denying Plaintiff’s
Application.
Plaintiff counters that neither the Carpenter Affidavit nor
the 2nd Wong Affidavit introduced information that was outside the
record of what was considered by the Board—in other words, the
substance of the these two affidavits was already before the Board

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through Wong’s and Carpenter’s statements made at the various Board
meetings leading up to the Resolution. In addition, Plaintiff
argues, the Board’s findings with regard to the alleged failure to
properly investigate other sites are unsupported by substantial
evidence, even without considering the Carpenter Affidavit and
2nd Wong Affidavit. As to the Town’s negative SEQRA determination,
Plaintiff argues that it was relevant to demonstrating the lack of
substantial evidence supporting the Town’s assertion of generalized
concerns about the siting of the proposed tower.
III. Analysis
As

discussed

further

below,

the

Court

concludes

that

reconsideration is not warranted because none of grounds raised by
Defendants in their motion “might reasonably be expected to alter
the conclusion reached by the court[,]” Shrader, 70 F.3d at 257,
that the Board’s Resolution is unsupported by substantial evidence.
Even without considering the Carpenter Affidavit, the 2nd Wong
Affidavit, or the negative SEQRA determination, there is no genuine
issue of material fact that Defendants’ denial of the Application
was not based on substantial evidence, and therefore Defendants did
not establish their entitlement to summary judgment.
A.

Substantial Evidence Standard

Substantial evidence “has been construed to mean less than a
preponderance, but more than a scintilla.” Cellular Tel. Co. v.
Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). As the

-7-

Supreme Court has explained, substantial evidence “means such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Universal Camera v. NLRB, 340 U.S. 474, 477
(1951)

(internal

quotations

omitted).

While

deferential,

the

substantial evidence standard nevertheless demands that “the record
. . . be viewed in its entirety, including evidence opposed to the
Town’s view.” Town of Oyster Bay, 166 F.3d at 494 (citing Am.
Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981)).
B.

The Board’s Finding that Plaintiff Did Not Properly
Investigate Alternative Sites (the Schuver Property and
the Sports Complex) Is Unsupported by Substantial
Evidence
1.

According

The Finding Regarding the Schuver Property
Is
Unsupported by Substantial Evidence Even Without
the Carpenter Affidavit
to

Defendants,

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
Schuver, the owner of the property identified as Location 19 in
Plaintiff’s Supplemental Site Selection and Justification Report.
In the Resolution, the Board stated
Mr. Schuver also advised the Board that, in his opinion,
Up State was not willing to negotiate in good faith, as
Up State already had a very attractive agreement with the
owner of the proposed site at 1710 Foote Avenue, which
was an objectionable site . . . .

-8-

Resolution at 14 (Dkt #39-3, p. 14 of 15) (emphasis supplied). Mere
opinion, untethered to any record support, does not constitute
substantial evidence. See Hyundai Heavy Indus. Co. v. United
States, 393 F. Supp.3d 1293, 1308 n. 19 (Ct. Int’l Trade 2019)
(“ABB insists that ‘[r]ecord evidence shows that the OAF is a
direct reflection of the negotiation and assignment of costs and
revenues between HICO [America] and the U.S. customer.’ . . . The
‘evidence’ to which ABB cites is Commerce’s Issues and Decision
Memorandum, which, in itself and without record support (as is the
case here), does not constitute substantial evidence.”).
Here, not only is the opinion offered by a party with a
pecuniary interest in the matter, it is premised on speculation.
The Court cannot find that it is “such evidence as a reasonable
mind might accept as adequate to support [the] conclusion” that
Plaintiff did not conduct its investigation of alternative sites or
negotiate

with

Schuver

in

good

faith.

Moreover,

Schuver’s

statements at the December 10, 2015 Board meeting imply that it was
he who terminated negotiations with Plaintiff. See December 10,
2015 Meeting Minutes at

3 (Dkt #39-10, p. 3 of 4) (“Mr. Burt

Shuver [sic], land owner that had been in talks with Blue Wireless
regarding the placement of the tower on his property added comments
regarding financial matters with Blue Wireless . . . and that he
hasn’t ‘closed the door’ to Blue Wireless.”).

-9-

The Board further asserted, in regard to the Schuver property,
that
Up State did not present to the Board any evidence from
which the Board conclude that Up State was making a
reasonable effort to locate on the less intrusive Schuver
property. Up State cannot simply prefer its business
interests over the interests of the residents of the Town
of Kiantone. Up State has an obligation to negotiate in
good faith and pay a reasonable amount for the less
intrusive site if one is available.
Resolution at 14 (Dkt #39-3, p. 14 of 15) (emphasis supplied). This
rationale offered by the Board reflects a misunderstanding of the
applicable

legal

principles

and

is

not

based

on

substantial

evidence.
“A plaintiff need not evaluate every potential alternative in
order to demonstrate that its proposal meets the least restrictive
means test.” 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) (citing New York SMSA Ltd. P’ship v. Vill. of Floral Park Bd.
of Trustees, 812 F. Supp.2d 143, 165 (E.D.N.Y. 2011) (rejecting
board’s argument that “substantial evidence supported its denial
because
evidence

[wireless
about

alternative

provider]’s

why

the

demonstrated

failure

to

present

affirmative

Verizon

Building

was

that

did

diligently

it

not

not

a

viable
examine

alternative sites” since “there is no requirement in the Code that
[wireless provider] evaluate every potential location where the
[wireless tower] hypothetically could be constructed, and submit
evidence showing why each site is not a viable alternative”)
-10-

(emphasis in original). “The law only requires a plaintiff to
engage in ‘a good faith effort to evaluate alternative sites.’”
Town of Oyster Bay, 2013 WL 4495183, at *18 (quoting Vill. of
Floral Park Bd. of Trs., 812 F. Supp.2d at 165 (“Although the Board
questioned

why

[wireless

provider]

did

not

spend

a

‘million

dollars’ trying to change the minds of these property owners rather
than seeking a special use permit for the Property, the Board did
not present any evidence that either of these sites were feasible
substitutes”); citations omitted).
In contrast to the Board’s finding regarding Plaintiff’s
evaluation of the Schuver property—which relies solely on the
unsupported opinion of Schuver himself—the record contains ample
evidence demonstrating that Plaintiff engaged in a good faith
effort to investigate alternative sites. As the Court explained in
its March 11, 2019 Decision and Order,
In its initial Site Selection and Justification Report,
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 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
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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 B-2
(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 #24-3), 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 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 #243)).
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
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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
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.
March 11, 2019 Decision and Order at 17-19 (Dkt #46) (emphases in
original).
In addition, Plaintiff indicated in the SSSJR that, for the
alternative sites evaluated, either suitable lease terms could not
be reached with the property owners, or the owners did not respond
to the proposed leases sent to them, or the owners decided not to
pursue entering into a lease. With particular regard to Location
19, the Schuver property, Plaintiff noted that “[a]fter extended
discussions with the property owner, acceptable lease terms could
not be reached.” SSSJR at 44 (Dkt #24-2, p. 45 of 48).
The Court has no difficulty concluding that the Board’s
finding with regard to Plaintiff’s evaluation of the Schuver
property was not supported by substantial evidence. See New York
SMSA L.P. v. Town of Oyster Bay Zoning Bd. of Appeals, No.
08-CV-4833 JS AKT, 2010 WL 3937277, at *6 (E.D.N.Y. Sept. 30, 2010)
(finding that wireless carrier met its burden of investigating
alternatives
infeasibility

and
of

presented
the

sites

credible
where
-13-

evidence

carrier

regarding

offered

the

“good-faith

justifications for why all other sites . . . would not substitute
for the Property” including the fact that one alternative site
wanted the ability to terminate the agreement without cause);
New

York

SMSA

Ltd.

P’ship

v.

Inc.

Vill.

of

Mineola,

No. 01-CV-8211(JS)(WDW), 2003 WL 25787525, at *9 (E.D.N.Y. Mar. 26,
2003) (finding the expert’s testimony that an alternative site was
“disinterest[ed]” was sufficient to find that it was not a feasible
alternative, especially when “[t]he [b]oard did not request any
additional evidence from either [the expert] or Verizon regarding
the availability of the site throughout the two public hearings”).
The Board’s conclusion to the contrary was not based on substantial
evidence, even without consideration of the Carpenter Affidavit.
2.

The

The Finding Regarding Collocation on the Light
Poles at the Jamestown School District Sports
Complex Is Unsupported by Substantial Evidence Even
Without the 2nd Wong Affidavit

Board

Plaintiff’s

also

purported

denied

Plaintiff’s

failure

to

Application

investigate

based

collocating

on
its

antennas on an existing light pole at the 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 (Dkt #39-3,
p. 14 of 15). The Board stated that the “light poles on the
football field are located at an elevation of 130' to 150' higher
-14-

than

the

proposed

site”

and

the

“Sports

Complex

is

located

approximately 1/4 of a mile from the proposed site.” Id. From this,
the Board reasoned that the light poles at the Sports Complex were
viable sites and proceeded to fault Plaintiff for
fail[ing] to make contact with the school. The Board had
also been informally advised that the school district
would be interested in talking about a lease with Up
State. The Board also advised Up State of the school
district’s willingness to discuss the situation.
Id.
The Board’s assertion that the light poles at the Jamestown
School District Sports Complex were viable alternative sites is not
based

on

substantial

evidence

inasmuch

as

it

relies

on

an

overstatement of comments by Wong, Plaintiff’s radio frequency
(“RF”) engineer,

at

the

December

10, 2015

Board

meeting.

In

contrast to what the Board assumed to be true in its Resolution,
Wong did not say that it would in fact be feasible to collocate
Blue Wireless’s tower on the light poles at the Jamestown School
District Sports Complex, let alone any particular light poles or
pole-like structures:
Question was also raised about the possibility of
placement on telephone poles. Response from “Eric” [Wong]
that this could work if proper height and if poles can
hold equipment.
December 10, 2015 Board Meeting Minutes at 3 (Dkt #39-10, p. 3 of
4) (emphases supplied). There is no evidence in the record that the
light poles were the proper height and could support the necessary
equipment.
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Moreover,

there

is

no

evidence

to

support

the

Board’s

assumption that light poles were located in a place that would
provide

adequate

Application,
“search

wireless

Plaintiff

ring”

it

coverage.

submitted

created

to

In

connection

documentation

identify

the

with

its

regarding

the

radius

in

which

a

potential tower would have to be located in order to meet the
coverage objectives. Affidavit of Eric Wong (“1st Wong Affidavit”)
(Dkt #1-6) ¶ 6 (citing Ex. 4E (search ring map). Wong explained
that “[s]iting a tower outside of the search ring would result in
a coverage gap between the existing Blue Wireless antennas and
would reduce coverage to the target areas.” Id. Within the search
ring, there were no existing towers or other structures on which to
collocate a tower. See Plaintiff’s Letter of Intent dated July 30,
2015 (Exhibit 4 to Application) (Dkt #1-1), pp. 3, 6, 10. Plaintiff
indicates, and Defendants do not dispute, that the Sports Complex
is outside of the search ring. See Plaintiff’s Memorandum of Law
(Dkt #42) at 21 (citing 1st Wong Affidavit (Dkt #1-6)). In fact, the
Sports Complex property is as far north as the existing tower at
839 Foote Street where Blue Wireless previously had collocated.
Plaintiff’s Memorandum of Law (Dkt #42) at 21 (citing 1st Wong
Affidavit (Dkt #1-6)). However, as the Board was made aware in
connection

with

Plaintiff’s

Application,

“the

Blue

Wireless

antennas were removed [from that tower] because the site did not
fit with the Blue Wireless network design, and the existing tower

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at 839 Foote Avenue resulted in too much overlap with another Blue
Wireless site in the City of Jamestown and did not cover the
targeted areas in the Town of Kiantone.” 1st Wong Affidavit (Dkt #16) ¶ 9.
At most, Plaintiff’s RF engineer acknowledged that some level
of service theoretically could be obtained by collocating on a
light pole if it was structurally capable of supporting the tower
and if had the required height to provide reliable service. “The
conceptual, theoretical and/or hypothetical does not constitute
substantial evidence.” Lehigh Valley Farmers v. Block, 640 F. Supp.
1497, 1512 (E.D. Pa. 1986), aff’d, 829 F.2d 409 (3d Cir. 1987). The
Board’s conclusion that the light poles at the Sports Complex were
viable location, and that Plaintiff failed to properly investigate
them,

is

not

based

on

substantial

evidence,

even

without

consideration of the 2nd Wong Affidavit.
3.

Consideration of the Negative SEQRA Determination
Was Proper

Defendants criticize the Court for considering the Town’s
negative SEQRA Declaration2 in its March 11, 2019 Decision and
Order. Defendants assert that it was not competent evidence to
establish that Plaintiff’s Proposed Site was the least intrusive
means to close a wireless coverage gap in the Town; rather, it only
meant that the Proposed Site will result in no significant adverse
2

The SEQRA Declaration was submitted by Plaintiff as Exhibit A to the
Declaration of Jon Devendorf, Esq. (“Devendorf Decl.”) (Dkt #42-2).

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impacts on the environment so as to excuse Plaintiff from preparing
an environmental impact statement.
Under New York law, “[w]hen weighing the extent of intrusion
of a proposed facility, the municipality may consider, among other
things, the aesthetic impact of a facility.” Site Acquisitions,
Inc. v. Town of New Scotland, 2 A.D.3d 1135, 770 N.Y.S.2d 157, 160
(3d

Dep’t

2003).

However,

a

“few

generalized

expressions

of

concern” by residents with respect to aesthetics or visual impact
“cannot

serve

as

substantial

evidence

on

which

the

[the

municipality] could base the denials.” Town of Oyster Bay, 166 F.3d
at 496. In other words, there must be “more than a scintilla of
evidence before the Board on the negative visual impact of the cell
sites.” Id. at 495 (citation and internal quotation marks omitted).
Defendants’ argument about the irrelevance of the negative
SEQRA review is unfounded, particularly since the Board asserted in
its Resolution that the Proposed Site would be “intrusive” to the
community and “is going to cause numerous zoning problems.”

Here,

in the SEQRA review, the Board evaluated and discussed each of the
factors

to

be

considered

relative

to

potential

environmental

impacts. These factors included an entire section on “Impact on
Aesthetic Resources,” which considered factors such as whether the
proposed action may be visible from any designated scenic or
aesthetic resource, obstruct or eliminate scenic views, be visible
from publicly accessible vantage points, be seen during travel or

-18-

recreational or tourism based activities, and diminish the public’s
enjoyment and appreciation of a designated aesthetic resource. See
SEQRA Declaration, p. 6 of 10, Devendorf Decl., Ex. A (Dkt #42-2,
p. 25 of 33). The Board determined that “[n]o, or small impact may
occur.” Id. The SEQRA evaluation also considered the “Impact on
Open Space and Recreation” and concluded there would be no impact.
See id., p. 7 of 10. Moreover, the Board also considered the
Proposed Site’s “Consistency with Community Plans” and “Consistency
with Community Character” and found that it was consistent both
with adopted land use plans and community character; the Board
found no impacts on either of these areas. Id., p. 9 of 10
(Dkt #42-2, p. 29 of 33). The negative SEQRA declaration thus
certainly was relevant to rebut Defendants’ conclusory and general
assertions about intrusiveness of the Proposed Site and demonstrate
that they were not supported by substantial evidence.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

First

Motion

for

Reconsideration (Dkt #49) is denied, and the Court adheres to its
March 11, 2019 Decision and Order (Dkt #46) denying Defendants’
Second Motion for Summary Judgment.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

November 26, 2019
Rochester, New York.
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