Cellco P'ship v. Town of Clifton Park
| Decision Date | 06 February 2019 |
| Docket Number | 1:17-CV-273 (FJS/DJS) |
| Citation | 365 F.Supp.3d 248 |
| Parties | CELLCO PARTNERSHIP Doing Business as Verizon Wireless, Plaintiff, v. TOWN OF CLIFTON PARK, NEW YORK; the Zoning Board of Appeals of the Town of Clifton Park; the Planning Board of the Town of Clifton Park; the Department of Planning of the Town of Clifton Park; and the Department of Building and Development of the Town of Clifton Park, Defendants. |
| Court | U.S. District Court — Northern District of New York |
OF COUNSEL, DAVID C. BRENNAN, ESQ., KRISTIN CARTER ROWE, ESQ., YOUNG/SOMMER LLC, Executive Woods, Five Palisades Drive, Suite 300, Albany, New York 12205, Attorneys for Plaintiff.
OF COUNSEL, PETER G. BARBER, ESQ., THE BARBER LAW FIRM, P.O. Box 1521, Guilderland, New York 12084, Attorneys for Defendants.
Pending before the Court is Plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. See Dkt. No. 24.
Plaintiff commenced this action on March 8, 2017, after Defendants (referred to collectively as "Defendant Town") "denied its application for local zoning approvals to construct and operate a new wireless telecommunications facility on a parcel of land in an area of the Town experiencing a significant gap in service[.]" See Dkt. No. 1, Complaint, at ¶ 2. In its complaint, Plaintiff asserted four causes of action: (1) Defendant Town "unlawfully prohibited the provision of personal wireless services in violation of the [Telecommunications Act of 1996 ("TCA") ], 47 U.S.C. § 332(c)(7)(B)(i)(II)," see id. at ¶¶ 155-167; (2) Defendant Town "unlawfully denied [Plaintiff]'s application without substantial evidence in the written record in violation of the TCA, 47 U.S.C. § 332(c)(7)(B)(iii)," see id. at ¶¶ 168-175; (3) Defendant Town "is federally preempted from denying [Plaintiff]'s application on technical grounds," see id. at ¶¶ 176-195; and (4) Defendant Town's decision to deny Plaintiff's application "was not supported by substantial evidence in the record, was arbitrary and capricious, was an abuse of discretion, was affected by an error of law and/or was made in violation of lawful procedure" pursuant to Article 78, see id. at ¶¶ 196-199.
Based on these allegations, Plaintiff seeks an Order declaring (1) "that Defendants' denial of [its] Application prohibits or has the effect of prohibiting the provision of wireless service in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II)," (2) "that Defendants' denial of [its] Application constitutes a violation of 47 U.S.C. § 332(c)(7)(B)(iii) in that it is not supported by substantial evidence contained in the written record," (3) "that ... Defendants are federally preempted from regulating the technological and operational standards of wireless carriers and are therefore preempted from denying [Plaintiff]'s Application based on their independent determinations or assessments concerning the wisdom or need for advanced wireless technologies authorized, approved and/or licensed by the [Federal Communications Commission ("FCC") ], such as [Plaintiff]'s advanced 4G LTE services," (4) "that ... Defendants are in violation of Federal and New York State law," and (5) "that ... Defendants' denial of [Plaintiff]'s Application was affected by an error of law, was arbitrary and capricious and an abuse of discretion, and was not supported by substantial evidence based on the entire record[.]" See id. at WHEREFORE Clause. In addition, Plaintiff seeks an Order "directing ... Defendants to immediately issue all approvals and permits necessary to allow construction and operation of the proposed Communications Facility, including (without limitation) all building permits, site plan approvals, special use permits, and variances" and "[a]warding [Plaintiff] the costs, disbursements, and expenses of this action, including reasonable attorneys' fees[.]" See id.
Pending before the Court is Plaintiff's motion for summary judgment with regard to all of its claims on the ground that Defendant "Town's denial of [its] application should be overturned as a violation of the TCA and Article 78 of the CPLR, with the issuance of an injunction ordering [Defendant] Town to issue all necessary variances, permits and approvals to allow [Plaintiff] to immediately commence construction of [its proposed] Facility and to close the identified gap in service." See Dkt. No. 24-8, Plaintiff's Memorandum of Law, at 6-7.1
Defendants oppose Plaintiff's motion and request that, if necessary, the Court return the matter to Defendant "Town for further administrative proceedings." See Dkt. No. 27-16, Defendant Town's Memorandum of Law, at 4.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party "bears the burden of establishing that no genuine issue of material fact exists." Eastman Mach. Co., Inc. v. United States , 841 F.2d 469, 473 (2d Cir. 1988) (citing Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970) ). If the moving party satisfies its burden, then the non-movant " ‘must set forth specific facts showing that there is a genuine issue for trial.’ " Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quotation and footnote omitted). A genuine issue of material fact exists if " ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ " Giordano v. City of New York , 274 F.3d 740, 746-47 (2d Cir. 2001) (quotation omitted).
Under § 332(c)(7) of the TCA, "Congress preserved the authority of state and local governments over zoning and land use issues, but imposed limitations on that authority." N.Y. SMSA Ltd. P'ship v. Town of Clarkstown , 612 F.3d 97, 101 (2d Cir. 2010) (). However, given Congress' goal of " ‘provid[ing] for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services ... by opening all telecommunications markets to competition ...’ " 47 U.S.C. § 332(c)(7) also "limits the state and local government's authority to deny construction of wireless telecommunications towers, see [ 47 U.S.C.] § 332(c)(7)(B)(i), and regulates how such decisions must be made, see [ 47 U.S.C.] §§ 332(c)(7)(B)(ii)-(iv)." Sprint Spectrum, L.P. v. Willoth , 176 F.3d 630, 637 (2d Cir. 1999). Thus, courts review " ‘denials subject to the TCA ... more closely’ than ... other types of zoning decisions to which federal courts generally accord great deference." Id. (quoting Cellular Tel. Co. , 166 F.3d at 493 ).
"A denial of a request to build [a] wireless facilit[y] must be ‘in writing and supported by substantial evidence contained in a written record[.]’ " Id. at 638 (quoting [ 47 U.S.C.] § 332(c)(7)(B)(iii) ). Specifically, a local government must articulate, with sufficient clarity, any reasons for denying an application in a written decision " ‘so that no one has to parse a record and guess which of the things [the local government] mentioned therein was ultimately found persuasive.’ " N.Y. SMSA Ltd. P'ship v. Town of Oyster Bay , No. 11-CV-3077, 2013 WL 4495183, *20 n.11 (E.D.N.Y. Aug. 16, 2013) (quoting Omnipoint Commc'ns, Inc. v. Town of LaGrange , 658 F.Supp.2d 539, 554 (S.D.N.Y. 2009) ) (other citation omitted).
When determining whether there was "substantial evidence" to support a local government's denial of an application, courts "must view the record in its entirety, including evidence opposed to the [local government]'s view, and ‘may neither engage in [its] own fact-finding nor supplant the [local government]'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 ). Additionally, when reviewing the decision, "courts ‘must employ "the traditional standard used for judicial review of agency actions." ’ " Id. (quoting Cellular Tel. Co. v. Town of Oyster Bay , 166 F.3d 490, 494 (2d Cir. 1999) (quoting H.R. Conf. No. 104-458, at 208 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 223) ). Under this standard, courts have generally construed substantial evidence " ‘to mean less than a preponderance, but more than a scintilla of evidence.’ " Town of Oyster Bay , 2013 WL 4495183, at *11 (quoting Omnipoint Commc'ns , 430 F.3d at 533 (quoting Cellular Tel. , 166 F.3d at 494 ) ) (other citation omitted); see also Willoth , 176 F.3d at 638 (). Moreover, "local and state zoning laws govern the weight to be given the evidence." Town of Oyster Bay , 166 F.3d at 494. Therefore, 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.’ " Id. (quoting Cellular Telephone Co. v. Zoning Bd. of Adjustment , 24 F.Supp.2d 359, 366 (D.N.J. 1998) ) (footnote omitted).
The record in this case consists of the following: (1) Plaintiff's original and amended application, see Dkt. No. 27-2, Exhibit "A," Plaintiff's...
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