Up State Tower Co., LLC v. Village of Lakewood New York et al
Filing
57
ORDER granting 35 Motion for Summary Judgment; denying 36 Motion for Summary Judgment; denying 47 Motion to Strike ; denying 48 Motion for Leave to File. Defendants shall, within 45 days of the date of this Order, grant Plaintiffs' a pplication and issue the special use permit and/or variance and such other permits or licenses which are necessary to install the wireless telecommunications tower which is the subject of this action. Signed by Hon. William K. Sessions III on 1/6/20. (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, doing business as Blue Wireless
(“Plaintiffs”), seek to place a wireless telecommunications tower
within the Village of Lakewood, New York.
Plaintiffs filed the
instant lawsuit claiming that the Village Board of Trustees
(“Village Board” or “Board”) and the Village Zoning Board of
Appeals (“ZBA”) had unreasonably delayed ruling on their
application for a use variance.
Shortly after Plaintiffs filed
suit, the ZBA issued an 11-page written decision (the “Reasoned
Elaboration”) denying the application.
Plaintiffs have since
filed an Amended Complaint, challenging not only the delay but
also the application denial.
For relief, Plaintiffs seek a
permanent injunction requiring the Village to grant them the
necessary municipal permits.
Now before the Court are the parties’ cross-motions for
summary judgment.
For the reasons set forth below, Plaintiffs’
motion for summary judgment and corresponding request for
injunctive relief is granted, and Defendants’ motion for summary
judgment is denied.
Other pending motions are addressed below.
Factual and Procedural Background1
On August 27, 2015, Plaintiffs submitted an application
seeking approval for a 100-foot telecommunications tower to be
built in a central location in the Village.
The application
followed Plaintiffs’ identification of significant gaps in Blue
Wireless’s cellular phone coverage.
ROD 33-41.
Defendants
dispute whether there are, in fact, significant gaps in service
for Blue Wireless customers within the Village.
In the fall of 2015, Plaintiffs’ counsel appeared before the
ZBA to discuss the application.
ROD 57-70.
In response to
public criticism about the tower’s proposed location, Plaintiffs
subsequently asked that consideration of the application be
“tabled” while they explored alternative sites.
ROD 71.
Plaintiffs also asked the Village to provide a list of properties
that it would like included in the site evaluation process.
Id.
The Village Clerk responded with a letter explaining that the
1
The factual record in this case derives primarily from the
application proceedings before the Village Board and the ZBA, and
from the parties’ respective statements of material facts. The
administrative proceedings are memorialized in the “Record of
Decision” or “ROD.”
2
Mayor and the Village Board were not sufficiently familiar with
wireless communications and coverage issues to provide such a
list.
ROD 75.
Plaintiffs reviewed at least nine alternative sites,
including two possible co-location sites.
ROD 757-758, 802-804.
According to Plaintiffs’ representations, some potential site
owners were not interested in leasing access to their properties.
A vacant parcel on Fairmount Avenue was investigated, but the
Plaintiffs and the owner were reportedly unable to agree to lease
terms.
A school bus garage site was considered, but Plaintiffs
received no response to their proposal.
Plaintiffs also
approached the YMCA about a property on Fairmount Avenue but
received no response to their proposed lease.
ROD 802-804.
Plaintiffs ultimately identified the Lakewood Fire Company
property on Glenwood Avenue (“Glenwood Avenue site”) as the
preferred site.
That location had been suggested by the
Village’s former Mayor.
ROD 448, 2090.
The Glenwood Avenue site
was selected in part because of its distances from residences;
its close proximity to railroad tracks and a commercial district;
the presence of trees to create a natural buffer; the financial
benefit to the Volunteer Fire Company; and the ability to lease
the property.
ROD 449-450, 759-760.
Because the new proposed
location was farther away from the target coverage zone and at a
lower elevation than the site originally contemplated, Plaintiffs
3
anticipated a tower height of 180 feet.
ROD 416.
At a Village Board meeting on February 22, 2016, when asked
by Plaintiffs’ counsel to offer their initial thoughts, three of
the five Board members responded positively to the Glenwood
Avenue site.
ROD 2259-2260.
Specifically, one Board member
noted that “the cell tower is well hidden.”
ROD at 2260.
Another believed that “[w]ith the proposed cell tower location
back next to the railroad tracks, it should have very little
impact on nearby properties.”
Id.
A third Board member opined
that “a cell tower at that site would be the least obtrusive
location in Lakewood for [a tower].”
Id.
On April 12, 2016,
Plaintiffs formally submitted an amended application to construct
a 180-foot tower at the Glenwood Avenue site.
In December 2015, after Plaintiffs filed their initial
application, the Village enacted Local Law 2-2015 requiring
wireless telecommunications tower applicants to provide an $8,500
escrow deposit with any application.
The purpose of the deposit
was to offset the cost of hiring a technical consultant to assist
the Village with its review of the application.
ROD 96-97.
Plaintiffs did not initially provide the $8,500 escrow amount
with their amended application, as they believed the demand for a
deposit was unlawful.
ROD 220-222.
In a letter dated May 3,
2016, the Village Mayor informed Plaintiffs’ counsel that the
Village was unable to accept the amended application without the
4
deposit.
ROD 255.
The letter did not indicate whether any
substantive information was missing.
Approximately one month
later, Plaintiffs’ counsel submitted an escrow check under
protest in the amount of $8,500.
ROD 285.
In June 2016, the Village adopted Local Law 4-2016, which
established a new permit application and review process.
223-242.
ROD
In a letter dated July 11, 2016, the Village’s hired
consultant, Center for Municipal Solutions (“CMS”), notified
Plaintiffs’ counsel that the pending application was incomplete
and that additional information was required in order to comply
with Local Law 4-2016.
application fee.
Among the new requirements was a $5,000
ROD 301-303.
On July 26, 2016, Plaintiffs’ counsel objected in writing to
the application fee, arguing in part that Plaintiffs’ application
was not subject to a local law imposed after the application was
submitted.
ROD 411-412.
That same day, the Village returned the
application fees that were submitted with Plaintiffs’ initial
application and informed Plaintiffs’ counsel that the required
fee was $5,000.
ROD 306.
On August 22, 2016, Plaintiffs’
counsel resubmitted those application fees and objected to the
Village’s enforcement of Local Law 4-2016.
ROD 307-309.
On September 7, 2016, the Village Board established itself
as the lead agency under the State Environmental Quality Review
Act (“SEQRA”), which pertains to the coordinated environmental
5
review of Plaintiffs’ application.
The Village Board also
authorized itself to determine the completeness of the
application.
ROD 413.
On October 4, 2016, the Village Board held a joint workshop
concerning Plaintiffs’ application.
for public comment.
The workshop did not allow
Richard Comi, the CMS consultant hired by
the Village, discussed with Board members the items and issues he
felt they needed to consider in making a determination.
Mr. Comi
also advised that Local Law 4-2016 applied to the amended
application.
ECF No. 41-1 at 10.2
Plaintiffs submit that under federal “shot clock” law, the
Village had until October 17, 2016 to make a decision on the
application.
Defendants dispute the deadline calculation.
On
October 24, 2016, Plaintiffs’ counsel and the Village attorney
agreed by email to a 60-day extension of the “shot clock” to
allow the Village extra time.
Notwithstanding this agreement,
the Village did not agree to Plaintiffs’ interpretation of when
the “shot clock” had commenced.
ECF No. 35-8.
The agreed-upon
deadline, acknowledging the “shot clock” dispute, was December
16, 2016.
2
On December 9, 2016, pursuant to a written settlement
agreement arising out of state court litigation between the
parties, the Village agreed to process Plaintiffs’ pending
application under the Village Code existing at the time of its
submission. ROD 798-799.
6
The ZBA held a public hearing on Plaintiffs’ application on
October 20, 2016.
Plaintiffs’ counsel appeared to discuss the
application, and delivered a letter discussing various issues
raised at the October 4, 2016 workshop.
ROD 415-420.
The letter
included supplemental information, including a Blue Wireless
Radio Frequency (“RF”) analysis and a Federal Communications
Commission (“FCC”) compliance report.
ROD 415-434.
During the public hearing, Plaintiffs’ counsel discussed the
alleged coverage gap and the corresponding need for a new tower.
Specifically, counsel discussed the RF propagation maps depicting
coverage from the proposed tower at heights of 180 feet and 150
feet, as well as coverage maps from two alternate locations.
Counsel explained that some of the proposed coverage would spill
over into other municipalities, since it is not possible to build
a network that confines itself to municipal boundaries.
ROD 470.
Counsel also argued that the 180-foot tower was needed to
“address the desired coverage objective.”
ROD 484.
The ZBA
requested additional information, and asked Plaintiffs to
consider flying a balloon to simulate the tower’s location and
height.
Plaintiffs’ representative explained that a balloon
float could be performed, and that photographs would be taken
from certain vantage points.
ROD 527.
On October 26, 2016, Plaintiffs conducted a balloon float
and prepared a photo simulation package that included photographs
7
from 48 different locations.
ROD 578-679.
Plaintiffs also
prepared supplemental RF propagation materials, including
propagation maps from the Glenwood Avenue site at 10 foot
intervals from a height of 180 feet down to a height of 150 feet.
ROD 567-577.
The supplemental RF propagation maps indicated that
as the tower height was lowered, the population and geographic
coverages decreased.
ROD 575.
On November 9, 2016, the ZBA sent Plaintiffs a letter
requesting more information.
Apparently unaware that the balloon
float had already taken place, the ZBA asked for advance notice
of the float so that residents and others could assess the visual
impact themselves.
ROD 562-564.
On November 10, 2016,
Plaintiffs’ counsel responded to the ZBA’s letter and attached
the completed photo simulations and supplemental RF
documentation.
ROD 565-684.
On November 22, 2016, the ZBA reconvened the public hearing.
Plaintiffs’ counsel again appeared and reviewed the RF
propagation maps.
Those maps, he argued, showed a “dramatic”
decrease in coverage as the tower height dropped from 180 feet to
150 feet.
ROD 710.
Counsel also explained that Plaintiffs did
not analyze below 150 feet because “it’s not worth it from a
coverage standpoint.
The difference between one-eighty and one-
seventy and even down to one-fifty is so dramatic, that it
doesn’t make sense to do any plots beyond that because it’s an
8
exercise of futility, for lack of a better term.”
Id.
In the course of the hearing, the ZBA again asked for
additional information from the Plaintiffs.
Among the
information sought was consideration of multiple tower locations,
as multiple locations would allow for shorter towers.
The ZBA
also requested propagation modeling for a Village-owned site on
Hunt Road in the Town of Busti.
ROD 785.
On December 6, 2016,
the ZBA sent a letter to Plaintiffs reiterating the request for
information about the Hunt Road site and seeking other
clarifications.
ROD 794-795.
Plaintiffs’ counsel responded in a letter dated December 30,
2016.
ROD 800-807.
The letter specifically addressed the
question of multiple tower locations, noting first that there
were no co-location opportunities.
ROD 801 (“There are no towers
or other tall structures between existing [towers] and the
coverage objective area in Lakewood that could be used by Blue
Wireless to address the coverage gap.”).
Multiple towers would
therefore require construction of multiple sites, which according
to Plaintiffs would double the project cost and impose “an undue
economic burden.”
ROD 805.
Counsel also argued that the
proposed, single-tower facility would have a minimal impact on
the community.
ROD 805-806.
With respect to the Town of Busti
site, counsel explained that “[a]s stated at prior ZBA meetings,
that site is located too far away from the Village center to
9
provide reliable coverage to the coverage objective area.”
804.
ROD
Finally, the letter asserted that the 60-day extension of
the shot clock had expired.
ROD 806-807.
On January 17, 2017, Plaintiffs filed the instant lawsuit
claiming that the federal time period for consideration of the
application had expired, and that the application should
therefore be granted.
On January 23, 2017, the Village Board
voted to authorize the ZBA to act as lead agency for the SEQRA
review.
Plaintiffs submit that this authorization was enacted
unlawfully as it lacked their consent.
Defendants contend that
no consent was required.
The ZBA held a public hearing on February 9, 2017.
Witnesses at the hearing included the former Village Mayor, a
local engineer, and Mr. Comi from CMS.
The ZBA also presented a
letter from Mr. Comi, dated that same day, in which he opined
that Blue Wireless’s coverage objective could be met by locating
the proposed facility on the Village-owned property in the Town
of Busti.
ROD 2199-2200.
For support, Mr. Comi cited an
application submitted in 2003.
ROD 2199.
Plaintiffs contest the
merit of Mr. Comi’s conclusion, arguing that his analysis was
based upon information submitted years before by a different
applicant, and did not take into account recent changes in
telecommunications technology.
The ZBA adjourned the hearing after concluding SEQRA and
10
variance deliberations, and reconvened at a meeting on February
23, 2017.
The ZBA then issued a negative declaration on the use
variance pursuant to SEQRA, and denied the application based upon
the 11-page Reasoned Elaboration.
Briefly stated, the Reasoned
Elaboration concluded that Plaintiffs had failed to prove a
coverage gap, had failed to establish that a 180-foot tower was
necessary to achieve their coverage goals, and that the chosen
site was less feasible and more intrusive than at least one
alternative site.
ROD 2243-2253.
The SEQRA determination stated
that because the variance was being denied there would be no
adverse environmental impact, but if the variance had been
granted the ZBA would have found “potential significant adverse
impacts on the character of the host community and the enjoyment
of the community’s amenities.”
ROD 2242.
In finding no coverage gap, the ZBA relied in part on
statements from Dr. Jonathan Blasius, husband of the ZBA deputy
chairperson.
Dr. Blasius, who is not an engineer, stated during
a ZBA meeting on October 20, 2016 that he purchased a Blue
Wireless phone, drove throughout the Village, and did not
experience any dropped calls.
ROD 516.
According to the
Reasoned Elaboration, Plaintiffs informed the ZBA that roaming
agreements allow Blue Wireless to provide service in the Village
without dropped calls.
ROD 2248.
Plaintiffs also now argue that
Blue Wireless’s FCC license allows, and the Telecommunications
11
Act of 1996 (“TCA”) encourages, construction of its own network
to address coverage gaps so that it need not rely on roaming
agreements.
With respect to the height of the proposed tower, the ZBA
found:
Based upon propagation maps generated by the
consultant, the [ZBA] determined that if a single tower
solution was required, which they did not find
supported the Applicant’s submission, then alleged gaps
in coverage would have been substantially filled by a
Tower of less than the 180 feet requested. [ZBA]
members found the propagation maps would only support a
need at the lowest height modeled at 150 feet. The
Village requested the applicant to generate propagation
maps at 10 foot intervals from 180 to 100 feet.
However, the applicant did not adhere to the request,
and only produced propagation maps down to the 150 foot
height. The Applicant also never conducted drive
testing to corroborate their modeling . . . . [I]t
appears the bulk of the projected identified gap areas
are beyond the boundaries of the Village . . . . With
the limited modeling provided, and the refusal to
consider multiple tower/transmitter location[s], the
minimum height below 150 feet required to close the
modeled coverage gap in the Village cannot be
determined.
ROD 2250-2251.
the RF data.
Plaintiffs contest Defendants’ interpretation of
The data submitted by Plaintiffs to the ZBA speaks
for itself, and shows decreases in both population and geographic
coverage below 180 feet.
ROD 429-430, 567-577.
Plaintiffs also
contend that drive test data was not mandated by the applicable
Village ordinance.
Defendants submit that drive test data was
required in order to assess the statement of necessity and the
reliability of Plaintiffs’ computer modeling.
12
The Reasoned Elaboration further concluded, in part, that
the Hunt Road site in the Town of Busti remained available.
With regard to the Hunt Road Water Tower Site the
applicant’s consultant represented he considered and
rejected the same based upon lack of likely coverage,
however no propagation maps accompanied the assertion.
Subsequent review of records obtained from the Town of
Busti revealed that the Water Tower had previously been
determined to provide coverage throughout the Village
of Lakewood in a similar frequency range with a Tower
at 130 feet. The prior application to build on the
site was approved by the Town, but the Tower was never
built, and the site remains available.
ROD 2250.
Plaintiffs have offered evidence outside the record,
in the form of an expert affidavit, stating that the Hunt Road
site is too far away from the Village center to provide reliable
coverage to the target area and would cause network interference
issues as it is too close to Blue Wireless’s nearby facility.
Those are the same conclusions discussed in counsel’s December
30, 2016 letter.
ROD 804.
Defendants object to the expert’s
affidavit as beyond the administrative record.
It is undisputed that there are no existing towers or tall
structures within the Village that could be used for co-location
by Blue Wireless to achieve its coverage objective.
at 27, ¶ 108.
ECF No. 41-1
It is also undisputed that Plaintiffs agreed to
build a “monopole,” as opposed to a lattice tower design, and
that the Village could choose the color of the tower.
41-1 at 38, ¶ 133.
ECF No.
At the hearing before the ZBA, the Chief of
the Lakewood Fire Department commented that his fire company’s
13
property was located in one of the most obscure places in the
Village, in woods that are off limits to the public.
ROD 2063.
His comments echoed the initial sentiments of three Village Board
members.
Nonetheless, the Reasoned Elaboration stated that the
Lakewood Fire Department is “within the view-shed of multiple
passive and active outdoor recreational areas.”
The Reasoned
Elaboration concluded that
The proposed Project [] is more than three times taller
than the trees in the Village, and six times the height
of that allowed for any structure in a residential
zone. . . . The area in question appears to be in
close proximity to Federal and New York State wetlands.
. . . It is also adjacent to land approved for the
development of a linear park under the Village’s 2017
adopted Comprehensive Plan. It is also within 500 feet
of the Crescent Creek water quality improvement project
being developed by the Village with funding from New
York State. The Crescent Creek restoration project
provides a nature trail along a wetlands reconstruction
project to improve water quality along Crescent Creek
with discharges to Chautauqua Lake.
ROD 2247.
The Reasoned Elaboration further opined:
The Village’s character as a well preserved quaint
concentration of low elevation pre-WWII structures is
one of the characteristics that makes it a seasonal
destination. The Village has and is developing
interconnected parks, bikeways, and greenways to make
the Village a seasonal destination. The development of
the single pole 180'[,] six times the height of a
permissible structure in the residential zone, and
three times the height of the tree tops is inconsistent
with the enjoyment of nature in the Lakefront community
which makes the Village unique, and attractive to the
summer residents which support the local economy.
ROD 2251.
14
Plaintiffs argue that the only evidence concerning
aesthetics consisted of their own photo simulations depicting the
appearance of the tower from 48 different locations.
Plaintiffs
also contend that there was no evidence to show that the proposed
tower would have an adverse impact on tourism in the Village.
Discussion
I.
Telecommunications Act and Standard of Review
The TCA provides that no State or local law may prohibit or
have the effect of prohibiting “the provision of personal
wireless services.”
47 U.S.C. § 332(c)(7)(B)(i)(II).
Within
that fundamental framework, federal law does allow for
“substantial local control over siting of [wireless
telecommunication] towers.”
Omnipoint Commcn’s, Inc. v. City of
White Plains, 430 F.3d 529, 531 (2d Cir. 2005) (quoting Town of
Amherst, N.H. v. Omnipoint Commc'ns Enters., Inc., 173 F.3d 9, 13
(1st Cir. 1999)).
“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.’”
Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999)
(quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490,
492 (2d Cir. 1999)).
The TCA requires that any local zoning authority’s denial of
an application to construct a wireless facility be “in writing
15
and supported by substantial evidence” in the record.
§ 332(c)(7)(B)(iii).
47 U.S.C.
The decision must articulate its reasons
for denying an application “so that no one has to parse a record
and guess which of the things [the local government] mentioned
therein was ultimately found persuasive.”
Omnipoint Commc’ns,
Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 554 (S.D.N.Y.
2009).
“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)).
To determine whether substantial evidence supports a
decision, a court “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)).
When determining whether there
is “substantial evidence” to support a denial, courts “must view
the record in its entirety, including evidence opposed to the
[municipality’s] view, and ‘may neither engage in [its] own
16
fact-finding nor supplant the [municipality’s] reasonable
determinations.’”
T-Mobile Northeast LLC v. Town of Islip, 893
F. Supp. 2d 338, 354 (E.D.N.Y. 2012) (quoting Town of Oyster Bay,
166 F.3d at 494).
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.’”
F.3d at 494
Town of Oyster Bay, 166
(quoting Cellular Tel. Co. v. Zoning Bd. of
Adjustment, 24 F. Supp. 2d 359, 366 (D.N.J. 1998)).
The
applicable local law in this case is the Village Code, which sets
forth the requirements for obtaining a variance.
Additionally,
New York State law provides that wireless service providers “are
afforded the status of public utilities for the purposes of
zoning applications[.]”
Town of Islip, 893 F. Supp. 2d at 355.
Accordingly, local boards must evaluate an application for
telecommunications facilities under the “‘public necessity’”
standard and evaluate it “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 Town of Oyster Bay, 166 F.3d at 494).
17
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) (citations and quotation marks 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 at 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.”
II.
Id. (quotation marks and citation omitted).
Summary Judgment Motions
Both parties have moved for summary judgment.
As discussed
above, the facts of this case are based on the administrative
record.
Plaintiffs’ motion argues that the Defendants’ denial
was untimely and is not supported by substantial evidence.
Defendants have opposed Plaintiffs’ summary judgment motion, and
have submitted their own cross-motion in which they focus
primarily on the timeliness question.
A.
Timeliness
18
Plaintiffs first argue that the Court should grant their
permits because Defendants took too long to produce a decision.
Plaintiffs base their argument on “shot clock” deadlines
established by the Federal Communications Commission (“FCC”).
Section 332(c)(7)(B)(ii) of the TCA provides that a local zoning
authority must act on an application “within a reasonable period
of time after the request is duly filed with such government or
instrumentality, taking into account the nature and scope of such
request.”
47 U.S.C. § 332(c)(7)(B)(ii).
The FCC has established
a presumption that a “reasonable period of time” means “90 days
to process personal wireless service facility siting applications
requesting collocations, and . . . 150 days to process all other
applications.”
See In the Matter of Petition for Declaratory
Ruling to Clarify Provisions of Section 332(c)(7)(b), 24 F.C.C.
Rcd. 13994, 14005 (2009) (“Shot Clock Order”).
The presumption
is rebuttable, and can be extended with the mutual consent of the
parties.
Id. at 14005, 14013.
The FCC also determined that when
a local authority requests additional information, the response
time may be excluded from the 90-day or 150–day time period, but
“only if that State or local government notifies the applicant
within the first 30 days that its application is incomplete.”
Id. at 14015.
Plaintiffs argue that there were a number of violations of
the FCC shot clock in this case.
19
First, they submit that their
application should have been deemed filed when it was first
submitted in April 2016, and that there was no notice within 30
days, aside from a demand for $8,500 in escrow money, that the
application was incomplete.
While Plaintiffs acknowledge the
agreement to extend the shot clock to December 16, 2016, they
object to Defendants’ failure to provide a decision until
February 23, 2017.
Defendants counter that any shot clock period
should not have commenced until September 7, 2016, when the Board
decided to move ahead with the application despite uncertainty
about whether it had been “duly” filed, and that the agreed-upon
60-day extension, when added to the applicable “shot clock”
period, carried the deadline into April 2017.
Defendants also
allege that Plaintiffs failed to provide certain requested
information, and that any resulting delays were reasonable.
The ZBA issued a written decision shortly after Plaintiffs
brought this action for injunctive relief.
The FCC has stated
that a “local authority’s exceeding a reasonable time for action
would not, in and of itself, entitle the siting applicant to an
injunction granting the application.”
F.C.C. Rcd. at 14005 n.99.
Shot Clock Order, 24
Instead, numerous federal district
courts have determined that the most reasonable relief is to
require a written decision.
See Crown Castle NG E. Inc. v. Town
of Greenburgh, 2013 WL 3357169, at *17 (S.D.N.Y. July 3, 2013)
(“the only reasonable [equitable] relief for such a failure
20
[would be] to require a written decision, which [the Town] ha[s]
already provided”), aff’d, 552 F. App’x 47 (2d Cir. 2014); see
also Omnipoint Commc’ns, Inc. v. Vill. of Tarrytown Planning Bd.,
302 F. Supp. 2d 205, 214 n.7 (S.D.N.Y. 2004) (claim for
injunctive relief mooted by denial of application); New York SMSA
Ltd. P’ship v. Town of Clarkstown, 99 F. Supp. 2d 381, 394
(S.D.N.Y. 2000) (claim of delay mooted because “[p]laintiffs
[could] no longer make the claim that the delay had the effect of
denial of wireless services”).
Because in this case the ZBA
issued a decision, which in turn gave rise to the Amended
Complaint, Plaintiffs’ request for injunctive relief on the basis
of an untimely decision is denied as moot.
B.
Application Denial
Plaintiffs next argue that the ZBA’s denial of their permit
application was improper.
As set forth above, in order to obtain
zoning approval a wireless services provider must show (1) gaps
in service, (2) that the proposed facility will remedy those
gaps, and (3) that the facility presents a minimal intrusion on
the community.
Town of Fenton, 843 F. Supp. 2d at 245.
1. Significant Gap
The gap requirement precludes “denying an application for a
facility that is the least intrusive means for closing a
significant gap in a remote user’s ability to reach a cell site
that provides access to land-lines.”
21
Willoth, 176 F.3d at 643.
“[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).
Willoth noted that a site
may not be the least intrusive means to satisfy the coverage gap
if the record shows there is a “less sensitive site” available,
the plaintiff could “reduce the tower height,” or plaintiff could
use a “preexisting structure” to address the gap.
643 (citations omitted).
176 F.3d at
That said, “[w]here the plaintiff’s
existing proposal is the only feasible plan to 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.
Here, both parties placed evidence into the record relevant
to cell phone coverage.
Plaintiffs relied primarily upon RF
data, which showed in-building and in-vehicle coverage gaps in
the Village at tower heights lower than 180 feet.
accepted RF data as evidence of a significant gap.
Courts have
See, e.g.,
Nextel Partners, Inc. v. Town of Amherst, 251 F. Supp. 2d 1187,
1191, 1196 (W.D.N.Y. 2003).
The Reasoned Elaboration criticized Plaintiffs for failing
to provide evidence of dropped network calls either within the
22
Village or along major and minor arterial roads.
Specifically,
the Reasoned Elaboration noted the lack of “drive testing” such
as that performed by Dr. Blasius.
ROD 2248.
As noted above,
Plaintiffs explained that calls would not be “dropped” because of
the company’s roaming agreements with other providers.
Defendants argue in part that because Blue Wireless
customers are able to obtain coverage through roaming, there is
no need for an additional tower.
ECF No. 41 at 6.
Plaintiffs
contend that although they have been able to provide roaming
coverage through another carrier, Blue Wireless itself has
significant gaps in coverage.
In sum, Defendants submit that
from the customer’s perspective there are no gaps, while
Plaintiffs counter that from the provider’s perspective
significant gaps exist.
Prior to 2009, courts held divergent views as to whether a
gap must be determined from the perspective of a cell phone
customer or from the perspective of the provider.
Compare Nextel
W. Corp. v. Unity Twp., 282 F.3d 257, 265–66 (3rd Cir. 2002)
(favoring customer’s perspective) with Second Generation
Properties, LP v. Town of Pelham, 313 F.3d 620, 633-35 (1st Cir.
2002) (favoring provider’s perspective); see also Omnipoint
Commcn’s, 430 F.3d at 535 n.3 (noting that the question of
perspective was “unsettled”).
In 2009, the FCC rejected the
user-based approach, and instead determined that State and local
23
authorities cannot prohibit “the provision of services of
individual carriers solely on the basis of the presence of
another carrier in the jurisdiction.”
F.C.C. Rcd. at 14017.
Shot Clock Order, 24
In doing so, the FCC cited Section
332(c)(7)’s use of the plural in “personal wireless services,”
the policy goal of not “leav[ing] segments of the [local]
population unserved or underserved,” and the TCA’s goal of
“promoting the construction of nationwide wireless networks by
multiple carriers.”
See id.
The FCC also acknowledged local
authority “where a bona fide local zoning concern, rather than
the mere presence of other carriers, drives a zoning decision.”
Id.
The FCC ruling cited with approval the First Circuit’s
decision in Town of Pelham, where the court rejected the argument
that “if any coverage is provided in the gap area by any carrier
(including roaming service through a tower in a different town)
then there can be no effective prohibition.”
n.13.
313 F.3d at 632
Courts have held that the FCC’s interpretation of the
statute is entitled to Chevron deference.
See Town of
Greenburgh, 2013 WL 3357169, at *19.
The Reasoned Elaboration does not dispute that according to
Plaintiffs’ RF data, there are gaps in Blue Wireless service in
the Village.
While other carriers may be providing service for
their customers within the Blue Wireless coverage gaps, and may
also provide roaming for Blue Wireless customers, significant
24
gaps exist from the perspective of the provider.
The Court
therefore finds that the Reasoned Elaboration’s finding of no
significant gap was not supported by substantial evidence.
2.
Feasability and Intrusiveness
a.
Siting
With respect to siting, Plaintiffs highlight their numerous
efforts to identify a feasible, unintrusive site.
In searching
for a feasible site Plaintiffs reportedly assessed at least nine
alternatives (including two co-location sites).
Plaintiffs’
initial application identified a central site that received
negative feedback from the Village.
When Plaintiffs asked the
Board to suggest specific sites, the Board declined due to its
lack of knowledge about telecommunications coverage.
Defendants submit that they asked Plaintiffs to provide
proof of their search process and that Plaintiffs failed to
provide any such documentation.
Defendants also suggest that
they were misled about alleged communications between Plaintiffs
and the school superintendent with regard to the bus garage site.
Plaintiffs subsequently clarified that an inquiry about leasing
the school bus garage site was emailed to the President of the
District Board of Education, who did not reply.
ROD 803.
Defendants are also critical of Plaintiffs’ evaluation of
the various sites.
Their briefing asserts in part that over 27%
of the Village is zoned such that a cellular telephone tower
25
would not need a variance.
The record shows, however, that
Plaintiffs explored sites both within and outside such zoned
areas.
The ZBA also asked Plaintiffs to consider a multiple-site
placement.
In the letter dated December 30, 2016, Plaintiffs’
counsel responded that there were no co-location opportunities,
and that a multi-site construction would impose “an undue
economic burden.”
ROD at 805.
Reasons for excluding existing
structures were discussed with the ZBA.
ROD 758-759.
The Reasoned Elaboration concluded that instead of the
Glenwood Avenue site, a facility at the Hunt Road site in the
Town of Busti would be more feasible.
The Town of Busti site was
formally proposed by Mr. Comi at the final ZBA hearing.
The
validity of Mr. Comi’s, and correspondingly the ZBA’s,
conclusions about the Hunt Road site are highly questionable.
As
Plaintiffs point out, there is little evidence that the 2003
application relied upon by Mr. Comi and the ZBA was materially
similar to the application at issue here.
Furthermore, Mr. Comi
offered no present-day evidence that the Hunt Road site would be
feasible.
See New York SMSA Ltd. P’ship v. Town of Oyster Bay,
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.”).
“[T]he Court must ascertain whether there is substantial
evidence to support the Board’s finding that alternative sites
26
were not investigated properly, based on evaluation of the entire
record, including opposing evidence.”
New York SMSA Ltd. P’ship
v. Town of Oyster Bay Zoning Bd. of Appeals, 2010 WL 3937277, at
*6 (E.D.N.Y. Sept. 30, 2010); see New York SMSA Ltd. P’ship v.
Inc. Vill. of Mineola, 2003 WL 25787525, at *9 (E.D.N.Y. Mar. 26,
2003) (a court must look at the whole record to determine if
“there is substantial evidence to support the Board’s finding
that alternative sites were not investigated properly”).
Here,
Plaintiffs tabled consideration of their initially-proposed site,
sought input from the Village, followed suggestions from the
Mayor, explored multiple sites, and identified a location that
several Board members initially deemed appropriate.
While the
Hunt Road site was proposed as an alternative, the present-day
feasibility of that site was not established.
Consequently,
substantial evidence does not support the Reasoned Elaboration’s
conclusion that Plaintiffs’ siting efforts were insufficient.
See New York SMSA Ltd. P’ship v. Town of Oyster Bay, 2013 WL
4495183, at *18 (noting that “[t]he law only requires a plaintiff
to engage in a good faith effort to evaluate alternative sites”
and that such requirement was met when the plaintiff submitted
reports that discussed eight alternative locations); cf. Town of
Fenton, 843 F. Supp. 2d at 254.
b.
Aesthetics
The Reasoned Elaboration’s most detailed objection is to the
27
proposed tower’s aesthetic impact.
With little record evidence
in support, the Reasoned Elaboration states that the Glenwood
Avenue site is “within the view-shed of multiple passive and
active recreational areas.”
ROD at 2243.
The Reasoned
Elaboration also generally describes the facility as “out of
scale, incongruous, and overwhelming,” as well as “inconsistent
with the enjoyment of nature.”
ROD at 2246, 2251.
The Village of Lakewood is a popular summer recreation area,
in large part because of its location on Chautauqua Lake.
Consequently, concerns about aesthetics may be particularly
acute.
The Second Circuit has held, however, that “generalized
expressions of concern . . . cannot serve as substantial
evidence” to support denial of a wireless provider’s application.
Town of Oyster Bay, 166 F.3d at 496; see also Town of Ramapo, 701
F. Supp. 2d at 462 (concluding that the Town’s concerns “were
generalized and failed to identify specific aesthetic problems”).
Furthermore, “[s]peculative concerns about the ‘potential
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.’”
T-Mobile Northeast LLC v. Town of
Islip, 893 F. Supp. 2d 338, 358–59 (E.D.N.Y. 2012) (quoting Green
Mountain Realty Corp. v. Leonard, 688 F.3d 40, 54 (1st Cir.
2012)).
28
“To 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.’”
Town of Oyster Bay, 166 F.3d at 496).
Id. at 358 (quoting
“[B]ecause it would be a
rare event to be able to buffer a communications tower so that it
is not visible at all, and few 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. at 359 (internal
quotations omitted).
The strongest evidence of aesthetic impact was submitted by
Plaintiffs in the form of photo simulations.
Those simulations,
utilizing the balloon float, show the tower’s visibility from 48
different locations around the Village.
ROD 580-679.
Defendants
contend that the photographs are inadequate because they do not
include waterfront vantage points.
Although the photo
simulations were provided at the request of the ZBA, the ZBA did
not ask Plaintiffs to provide simulations from any specific
locations.
Indeed, when the question of a balloon float was
raised, Plaintiffs’ representative explained that it would
provide photographs from numerous locations, and there was no
suggestion at the time that particular locations be included.
ROD 527.
29
Defendants’ conclusions with respect to aesthetics rely
primarily on current and expected recreation in the area.
The
Reasoned Elaboration refers to the proposed tower site as
“adjacent to” outdoor recreation fields and a potential future
“Linear Corridor Park.”
It is undisputed that the recreation
fields are several hundred feet away from the proposed tower
location, on property that currently contains an 80-foot fire
training tower.
ECF No. 41-1 at 40, ¶ 136.
The Village’s
Comprehensive Plan, which was not adopted until after Plaintiffs
filed their 2016 application, discusses a linear corridor to be
developed in the future near existing railway tracks: “[w]hen
rail service is no longer necessary, the corridor should be
acquired and turned into a linear park with a multiuse trail
surrounded by a thin tree-lined buffer.”
ROD Item 71, at 99.3
The Court questions whether such speculative language carries
much weight in the substantial evidence analysis.
In any event,
the record shows that the proposed linear park (railroad line) is
adjacent to the Village’s developed commercial district.
ECF No.
41-1 at 40, ¶ 136.
The Reasoned Elaboration also makes reference to nearby
wetlands and the Crescent Creek Wetlands Restoration Project.
ROD 2245.
Specifically, the Elaboration states that “[t]he area
3
The Village of Lakewood Comprehensive Plan is located at
http://www.lakewoodny.com/complandraft.pdf, and is referenced in
the ROD Table of Contents as Item 71.
30
in question appears to [be] in close proximity to Federal and New
York State wetlands.”
ROD 2247.
Defendants do not contend that
the tower itself is to be built on wetlands, or that any of the
proposed construction will involve dredging or other activities
on wetlands.
On February 23, 2017, counsel for Plaintiffs
offered the ZBA a Wetland Delineation/Determination Report
allegedly establishing that the project site is 450 feet from any
wetlands.
ROD 2255.
The ZBA noted receipt of the report.
Id.
As evidenced by Plaintiffs’ photo simulations, the proposed
tower will be visible from various locations in the Village.
That said, the Reasoned Elaboration makes no reference to other
objective evidence of a negative visual impact.
In the Second
Circuit, evidence of aesthetic injury may include “objections
raised by neighbors who know the local terrain and the sightlines
of their own homes.”
City of White Plains, 430 F.3d at 534.
“Other evidence can include ‘beautification efforts’ or the
‘actual character of the immediate neighborhood.’”
Town of
Islip, 893 F. Supp. 2d at 359 (quoting T–Mobile Central, LLC v.
Unified Gov’t of Wyandotte County, 546 F.3d 1299, 1312 (10th Cir.
2008)).
Here, the Reasoned Elaboration makes reference to
efforts to bury power lines in the Village as it approaches the
waterfront, but it is not clear whether those efforts extended to
the Glenwood Avenue area.
ROD 2251.
Aside from the recreational
concerns discussed above, which are largely generalized, the
31
Reasoned Elaboration cites little evidence, and certainly less
than substantial evidence, to support its finding of aesthetic
harm.
c.
Tower Height
Relevant to both feasability and intrusiveness is the matter
of the tower’s height.
The Court is sensitive to the fact that a
180-foot monopole will be several times taller than any tree or
building in the Village.
Plaintiffs have supported their
argument for a 180-foot tower with RF propagation maps.
Initially, they provided data for towers at 180 feet and 150 feet
to show that a 150-foot tower was inadequate.
At the request of
the ZBA, they submitted additional maps showing existing and
proposed coverage from the Glenwood Avenue site at descending 10foot intervals between heights of 180 and 150 feet.
ROD 567-577.
The Village conceded that those maps “do highlight variances in
coverage areas between 180 feet and 150 feet.”
ROD 2251.
Although the Village concluded that “the bulk” of the gap
areas extended beyond the boundaries of the Village, ROD 2251,
the RF propagation maps show the existing gaps within the
Village, and that a 180-foot tower would address the target
geographic and population goals.
The RF data also indicates that
coverage decreases significantly with each 10-foot reduction in
tower height.
ROD 575, 709-711.
The Reasoned Elaboration concluded that the height of the
32
proposed tower could have been reduced by using a second
transmitter such as the one modeled at the Village’s clock tower.
ROD 2251.
This finding contradicts the ZBA’s prior discussion
with Plaintiffs’ counsel, wherein counsel explained that the
clock tower was too low and that its close proximity to the
Glenwood Avenue tower would actually result in interference, thus
providing poor quality service.
ROD 758-759.
Similarly, the
Reasoned Elaboration criticizes Plaintiffs for failing to model
their tower height at maximum signal strength, ROD 2248, yet the
record again reflects a letter from Plaintiffs’ counsel
confirming that the propagation maps were prepared at maximum
power output.
ROD 800.
The Court therefore finds that the
Reasoned Elaboration’s conclusion with respect to tower height
was not supported by substantial evidence.
C.
Injunctive Relief
The Second Circuit has held that an injunction is the proper
remedy for violations of the TCA.
Cellular Telephone Company v.
The Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999); see
Town of Ramapo, 701 F. Supp. 2d at 463 (“[U]nder Willoth, a
violation of the effective prohibition provision requires
injunctive relief: an application proposing the least intrusive
means for closing a significant coverage gap cannot be denied—or,
put differently, it must be granted.”).
Because the Court finds
that the Village’s determination was not supported by substantial
33
evidence, it will provide Plaintiffs their requested injunctive
relief and, as set forth below, order the Village to grant the
necessary permits and approvals.
III. Other Pending Motions
Two additional motions are pending before the Court, both of
which relate to the summary judgment filings.
First, Plaintiffs
have moved to strike Defendants’ allegedly-untimely submission of
their statement of undisputed materials facts.
ECF No. 47.
Defendants did not submit such a statement with their summary
judgment motion, as required by this Court’s Local Rules, and
instead filed it with their reply memorandum.
The facts set forth in the statement of undisputed facts are
fundamentally the same as those stated in the body of Defendants’
motion for summary judgment.
Consequently, while Plaintiffs can
argue procedural error, they cannot claim prejudice.
Furthermore, since the Court is denying Defendants’ summary
judgment motion, the propriety of their factual statement is
moot.
The motion to strike is therefore denied.
Plaintiffs also ask the Court to strike a statute of
limitations argument set forth in Defendants’ reply memorandum.
That same statute of limitations argument is asserted in
Defendants’ motion for leave to file an Amended Answer.
The
substance of the statute of limitations argument is that if the
Court adopts Plaintiffs’ calculation of the “shot clock” and
34
deems the administrative action as commencing in April 2016, the
“shot clock” expired in December 2016 and Plaintiffs failed to
file their federal Complaint within 30 days of that date as
required by statute.
Plaintiffs submit that Defendants have miscalculated, and
that their filing of the Complaint on January 17, 2017 was
timely.
In any event, the Court has deemed the “shot clock”
issue moot and has not accepted either party’s arguments as to
the dates of commencement or expiration.
Moreover, the TCA
provides that “[a]ny person adversely affected by any final
action or failure to act” shall file an action “within 30 days
after such action or failure to act,” 47 U.S.C. § 332(7)(B)(v).
Here, Plaintiffs filed their Amended Complaint with respect to
Defendants’ “final action,” being the issuance of the Reasoned
Elaboration, within the 30-day limitations period.
Accordingly,
Defendants’ motion for leave to file an Amended Answer is denied,
and Plaintiffs’ motion to strike the advancement of new arguments
in a reply brief is denied as moot.
Conclusion
For the reasons set forth above, the Plaintiffs’ motion for
summary judgment is granted and the remaining pending motions are
denied.
Defendants shall, within 45 days of the date of this
Order, grant Plaintiffs’ application and issue the special use
permit and/or variance and such other permits or licenses which
35
are necessary to install the wireless telecommunications tower
which is the subject of this action.
DATED at Burlington, in the District of Vermont, this 6th
day of January, 2020.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
36
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