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

Filing 38

ORDER adopting 37 Report and Recommendations and granting 29 Motion for Summary Judgment and injunctive relief. Signed by Hon. Lawrence J. Vilardo on 1/5/21. (SG)

Case 1:18-cv-00952-LJV-MJR Document 38 Filed 01/06/21 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UP STATE TOWER CO., LLC, et al.,
Plaintiffs,
v.

18-CV-952-LJV-MJR
DECISION & ORDER

TOWN OF TONAWANDA, NEW YORK,
et al.,
Defendants.

On August 29, 2018, the plaintiffs, Up State Tower Co., LLC, and Buffalo-Lake
Erie Wireless Systems Co., LLC, commenced this action requesting injunctive relief
under the Telecommunications Act of 1996, 47 U.S.C. § 332. Docket Item 1.
On October 9, 2018, this Court referred the case to United States Magistrate Judge
Michael J. Roemer for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket
Item 8.
On July 8, 2020, the plaintiffs moved for summary judgment, Docket Item 29;
on August 10, 2020, the defendants responded, Docket Items 31, 32; and on August 24,
2020, the plaintiffs replied, Docket Item 35. On November 18, 2020, Judge Roemer
issued a Report and Recommendation (“R&R”) finding that the plaintiffs' motion should
be granted. Docket Item 37. The parties did not object to the R&R, and the time to do
so now has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party

Case 1:18-cv-00952-LJV-MJR Document 38 Filed 01/06/21 Page 2 of 3

objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). But neither 28 U.S.C. § 636
nor Federal Rule of Civil Procedure 72 requires a district court to review the
recommendation of a magistrate judge to which no objections are raised. See Thomas
v. Arn, 474 U.S. 140, 149-50 (1985).
Although not required to do so in light of the above, this Court nevertheless has
reviewed Judge Roemer's R&R as well as the parties’ submissions to him. Based on
that review and the absence of any objections, the Court accepts and adopts
Judge Roemer's recommendation to grant the plaintiffs' motion. Judge Roemer found
multiple reasons that the plaintiffs are entitled to relief and this Court agrees with each
of them. Likewise, this Court agrees that the plaintiffs are entitled to the injunctive relief
they request.
For the reasons stated above and in the R&R, the plaintiffs' motion for summary
judgment and injunctive relief, Docket Item 29, is GRANTED; the defendants shall grant
all permits and site approvals requested in the plaintiffs’ 20161 and 20172 applications;
and the Clerk of the Court shall close the file.

1

Application for a special use permit to replace an existing tower at 860 Niagara
Falls Boulevard, Town of Tonawanda, New York. See Docket Item 29-17 at 2.
2

Application for a special use permit to replace an existing tower at 203
Kenmore Avenue, Town of Tonawanda, New York. See Docket Item 29-17 at 4.
2

Case 1:18-cv-00952-LJV-MJR Document 38 Filed 01/06/21 Page 3 of 3

SO ORDERED.

Dated:

January 5, 2021
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

3