Up State Tower Co., LLC v. Village of Lakewood New York et al
Filing
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OPINION AND ORDER granting 16 Motion to Quash. Pretrial dispositive motions shall be filed within 60 days of this Opinion and Order. Signed by Hon. William K. Sessions III on 3/19/18. (SG)
UNITED STATE DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK
UP STATE TOWER CO, LLC, and
BUFFALO-LAKE ERIE WIRELESS
SYSTEMS, CO., LLC,
Plaintiffs,
v.
THE VILLAGE OF LAKEWOOD, NEW
YORK; THE VILLAGE BOARD OF
THE VILLAGE OF LAKEWOOD, NEW
YORK; and THE ZONING BOARD
OF APPEALS OF THE VILLAGE OF
LAKEWOOD, NEW YORK,
Defendants.
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Case No. 1:17-cv-47
OPINION AND ORDER
Plaintiffs Up State Tower Co., LLC and Buffalo-Lake Erie
Wireless Systems, Co., LLC (“Plaintiffs”) seek to place a
wireless telecommunications tower within the Village of Lakewood,
New York.
On January 17, 2017, they filed the instant lawsuit
claiming that the Village Board and the Village Zoning Board of
Adjustment (“Village ZBA”) had unreasonably delayed ruling on
their application, and sought judicial review under the federal
Telecommunication Act of 1996, 47 U.S.C. § 332(c)(7)(B)(v).
Shortly after Plaintiffs filed suit, and after a series of public
hearings, the Village ZBA issued an 11-page written decision (the
“Reasoned Elaboration”) denying their application for a use
variance.
Plaintiffs have since filed an Amended Complaint,
challenging not only the delay but also the application denial.
Now before the Court is Defendants’ motion to quash
subpoenas issued for the purpose of deposing three members of the
Village Board and one member of the Village ZBA.
Those four
individuals have each publicly expressed support for Plaintiffs’
application.
Plaintiffs therefore submit that these witnesses
are most likely to be forthcoming about
the decision-making process, including whether or not
there was a delay effort with respect to the
application, whether or not there was a predetermined
outcome with respect to the application, what evidence
was and was not considered in denying the application,
the acknowledgment of a [cell service] coverage gap
that would be remedied by the proposed [tower]
location, and the basis for certain statements made in
the [written ZBA decision] that are not supported by
any evidence in the record.
ECF No. 21 at 12.
The Village ZBA issued its Reasoned Elaboration after three
public hearings and, according to Defendants, a review of over
1,000 pages of documents.
The entire administrative record in
this case is reported to be over 2,400 pages.
When a party seeks
judicial review of an administrative determination such as the
ZBA’s Reasoned Elaboration, a court must determine whether the
ruling was supported by substantial evidence.
See 47 U.S.C. §
332(c)(7)(B)(iii) (“Any decision by a State or local government
or instrumentality thereof to deny a request to place, construct,
or modify personal wireless service facilities shall be in
writing and supported by substantial evidence contained in a
written record.”).
“In conducting substantial evidence review, a
reviewing court normally considers only evidence contained in the
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administrative record (i.e., the evidence presented to the ZBA).”
Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d
620, 628 (1st Cir. 2002); see also Omnipoint Commc’ns, Inc. v.
Planning & Zoning Comm’n of Town of Guilford, 156 F. Supp. 2d
212, 218 (D. Conn. 2001) (“Judicial review of agency action is
generally limited to review of the full administrative record
that was before the agency at the time it rendered its
decision.”).
Correspondingly, the Second Circuit has noted that
when conducting substantial evidence review, “we may neither
engage in our own fact-finding nor supplant the Town Board’s
reasonable determinations.”
Cellular Tel. Co. v. Town of Oyster
Bay, 166 F.3d 490, 494 (2d Cir. 1999).
Because the review of a town’s decision is generally limited
to the administrative record, deposition questioning about the
deliberative process would be improper.
That is particularly
true in this case, where deliberations were reportedly held in
public and made a part of the administrative record.
The Court
can review that record to determine, if necessary, whether
substantial evidence supported the Village ZBA’s decision.
A separate question, apart from the substantive bases for
the Village ZBA’s ruling, is the issue of delay.
Delay was the
initial impetus for the Complaint in this case, and Plaintiffs
suggest that there was a concerted effort by Village officials to
engage in delay as a means of effectively denying their
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application.
The Court notes that the ultimate decision-makers
in this matter were the Village ZBA members who voted down the
application, and that only the dissenting member has been
subpoenaed.
Nonetheless, Plaintiffs submit that the dissenting
voter, together with three members of the Village Board, may have
information about the actions and motives underlying the alleged
delay.
In support of the motion to quash, counsel for Defendants
has set forth a detailed time-line, all of which appears to have
been culled from the public record, depicting the procedural path
of Plaintiffs’ application.
Briefly stated, Plaintiffs first
submitted an application on or about April 12, 2016 without
paying the application fee, and the application was returned to
them.
Plaintiffs re-submitted their application with a partial
application fee on or about June 11, 2016, and on July 11, 2016
were advised of the application’s deficiencies.
Plaintiffs
dispute whether the application was, in fact, deficient.
On September 7, 2016, despite what Defendants claim was only
a partial payment of the application fee and Plaintiffs’ alleged
refusals to comply with other application requirements, the
Village Board deemed the application complete and agreed to
proceed.
On October 20, 2016, noting a disagreement as to when
the federal “shot clock” for ruling on the application should
have commenced, the parties agreed to a 60-day extension of that
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“shot clock.”
On February 9, 2017, after a third public hearing
on the matter, the Village ZBA closed the hearing and publicly
reviewed the application on the record.
The Village ZBA issued
its written decision on February 23, 2016, which Defendants
contend was within the “shot clock” period when the 60-day
extension is taken into account.
Plaintiffs did not appeal the
denial of the variance in state court.
Plaintiffs claim that, throughout this process, there was a
concerted effort by certain Village officials to delay and
obstruct the application.
That effort reportedly included the
passage of special laws applicable only to wireless
telecommunications applicants, as well as needless requests for
additional fees and information.
Plaintiffs also contest the
legality of the Village Board’s transfer of authority for
environmental review to the Village ZBA (which Defendants contend
was the result of a settlement agreement arising out of a
parallel state action).
Like the rest of the permitting process,
these events appear to be memorialized in meeting minutes,
transcripts, correspondence between the parties, and/or other
readily-available documentation.
Plaintiffs argue that with respect to delay, it is “somewhat
obvious” that additional discovery is permissible “given that the
standard is one of reasonableness.”
ECF No. 21 at 18.
case citations, however, do not support this point.
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Their
In Upstate
Cellular Network v. City of Auburn, 257 F. Supp. 3d 309 (N.D.N.Y.
2017), there is no reference to testimony from city officials as
to the reasons underlying the delay.
Moreover, the court was
able to determine reasonableness by reviewing the public record
and communications between the parties leading up to the lawsuit.
Id. at 315-16.
Similarly, Bell Atl. Mobile of Rochester L.P. v.
Town of Irondequoit, 848 F. Supp. 2d 391, 403 (W.D.N.Y. 2012)
gives no indication that town officials were asked in depositions
about the motives underlying their actions.
Plaintiffs also allege that they are entitled to discovery
when they have made a showing of bad faith.
ECF No. 21 at 19.
However, their allegations of bad faith are largely speculative.
Plaintiffs describe their bad faith claim as based upon “serious
questions about the motives surrounding the delays in processing
the 2016 Application and abrupt change in lead agency
designations from the Village Board to the ZBA.”
Id. at 20.
For
support, they cite a newspaper editorial written by the three
subpoenaed Village Board members, in which it is alleged that
certain Village officials and Village counsel conferred during
meetings and conference calls, without notice to the Board.
The
writers of the editorial were not present during those meeting
and calls, and do not purport to know what was said.
The Village’s reasons for the alleged delay are largely set
forth in the administrative record and related materials, and
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Plaintiffs’ speculation about underlying motives does not provide
a basis for issuing subpoenas to Village officials.
See, e.g.,
Cleveland-Goins v. City of New York, 1999 WL 673343, at *2
(S.D.N.Y. Aug. 30, 1999) (“Discovery, however, is not intended to
be a fishing expedition, but rather is meant to allow the parties
to flesh out allegations for which they initially have at least a
modicum of objective support.”).
therefore granted.
Defendants’ motion to quash is
Pretrial dispositive motions shall be filed
within 60 days of this Opinion and Order.
DATED at Burlington, in the District of Vermont, this 19th
day of March, 2018.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
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