Cellco P'ship v. Town of Colonie

• Decision Date: 28 November 2011
• Docket Number: 1:10-cv-581 (GLS/ATB)
• Parties: CELLCO PARTNERSHIP d/b/a VERIZON WIRELESS, Plaintiff, v. TOWN OF COLONIE, NY, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

CELLCO PARTNERSHIPd/b/a VERIZON WIRELESS, Plaintiff,

v.TOWN OF COLONIE, NY, et al., Defendants.

1:10-cv-581 (GLS/ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: November 28, 2011

APPEARANCES:

FOR THE PLAINTIFF:

Nixon, Peabody Law Firm

FOR THE DEFENDANTS:

Town of Colonie

OF COUNSEL:

ANDREW C. ROSE, ESQ.

RUTH E. LEISTENSNIDER, ESQ.

REBEKAH R.N. KENNEDY, ESQ.

Gary L. Sharpe

District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Cellco Partnership, d/b/a Verizon Wireless ("Verizon"), commenced this action against defendant Town of Colonie, New York("Town"), alleging violations of, inter alia, the Telecommunications Act of 1996 ("TCA"). (See Am. Compl., Dkt. No. 11.) Pending is Verizon's motion for summary judgment. (See Dkt. No. 18.) For the reasons that follow, Verizon's motion is granted.

II. Background¹

On July 11, 2008, Verizon, a federally licenced provider of wireless communications services, commenced a zoning review with the Town to obtain approval for the construction and operation of a wireless communication facility. (Pl.'s Statement of Material Facts ("SMF") ¶¶ 1-2, Dkt. No. 18, Attach. 59.) The facility, which "consists of a fully functioning 60 foot bell tower" with "camouflaged" telecommunications equipment on the inside, was to be "located on the property of the Loudonville Presbyterian Church ('Church')."² (Id. ¶¶ 4-8.) Specifically, the bell tower was "designed to match the color and architecture of the Church," and thus, the telecommunications equipment would be invisible to the public. (Id. ¶¶ 4-9.) Moreover, after Verizon's use ceases, the tower "will remain as a permanent improvement to the Church." (Id. ¶ 9.) Although theChurch welcomed what it called "an enhancement to [its] building," (see Dkt. No. 18, Attach. 12 at 52:1-4), some of the Town's residents were not as receptive.

1. Verizon's Application to the Town's Zoning Board

As part of its application to the Town's Zoning Board of Appeals ("ZBA") for a use and height variance,³ Verizon conducted a comprehensive study that found:⁴ (1) the bell tower "is needed in order to fill a significant gap in existing Verizon Wireless system coverage"; (2) no "feasible or less intrusive sites" exist to adequately address the coverage gap; (3) the bell tower complies with the applicable "exposure limits and guidelines adopted by the Federal Communications Commission ("FCC") governing human exposure to radio frequency electromagnetic fields"; and (4) the bell tower will not be visible from any of the Town's historic districts.⁵ (Pl.'s SMF ¶¶ 10-11, 13, 19-20.) In addition to the application materials submitted by Verizon, the ZBA received input from several independent sources, all of which corroborated Verizon's analysis. (See generally id. ¶¶ 21-36.)

For example, the Town's Planning and Economic Development Department ("PEDD") reported that the bell tower would "not have a significant effect on the environment." (Id. ¶ 21.) Furthermore, following a balloon test⁶ —which was conducted while the leaves were off the deciduous trees on the site⁷ —both Tectonic and C.T. Male, Verizon and the Town's respective engineering consultants, agreed "that the tower is not visible unless you are standing right beneath it." (Id. ¶¶ 24-25, 27, 33; see also Dkt. No. 18, Attach. 12 at 21:16-19.) Finally, C.T. Male, which completed an independent review of Verizon's ZBA application, also found that Verizon "provided the information required by the . . . Town Code to demonstrate that the tower is needed . . . . [and] the proposed siteintegrates well with [Verizon's] other telecommunications tower sites and solves some of their coverage objectives." (Pl.'s SMF ¶¶ 30-31.)

After considering Verizon's submissions, the recommendations of the PEDD and C.T. Male, and the live presentations at its June 18, 2009 public hearing, the ZBA unanimously approved Verizon's application and granted it an unconditional use and height variance. (Id. ¶ 36.) As no appeals were registered to the ZBA's decision, Verizon made its initial filing with the Town's Planning Board for approval of its Minor Site Plan Review ("Minor SPR") on June 25, 2009. (Id. ¶¶ 40-41.) While the Town's Land Use Law permits the PEDD to render a decision on a Minor SPR, it opted not to, and referred Verizon's application to the full Planning Board. (Id. ¶ 42.)

2. The Public Opposition to the Bell Tower

Despite the Church's enthusiasm for, and the ZBA's approval of, the bell tower, residents of the Town mounted a campaign to block its final approval. (See id. ¶¶ 35, 75, 79, 80-85, 100-01, 107-08.) This opposition was largely led by Gary Mittleman, who, at the ZBA's June meeting, declared "progress is great except when it's in my own backyard." (Id. ¶ 35.) But, Mittleman's opposition did not cease there. By the time the Planning Board scheduled Verizon's final hearing in May 2010, he, and hisfollowers, were responsible for: (1) an email listserv dedicated to raising opposition; (2) incendiary letters to the Church in which Mittleman threatened to organize televised protests during Sunday services; (3) a "notice of intended legal action regarding health traumas" accusing Verizon and the Church of "reckless endangerment and depraved indifference"; (4) a request for the installation of RF monitoring stations; (5) extensive media coverage of the issue, including the televised delivery of petitions to the PEDD; and (6) the creation of a community organization called S.A.F.E. (School Areas Free of Emissions). (See id. ¶¶ 75, 79, 80-85, 100.) Indeed, members of S.A.F.E. filed a petition⁸ and provided extensive testimony at the final Planning Board hearing that focused on the perceived adverse consequences of the bell tower. (See id. ¶¶ 100, 107.) In sum, this opposition—albeit concerned with more than just health risks—is best described by Mittleman's letter of March 14, 2010, in which he wrote that the community was "'outrage[d]' that 'a tower like this can possibly beconstructed in the midst of a residential neighborhood near an elementary school.'" (Id. ¶ 81.)

3. The Planning Board's Consideration of the Bell Tower

After submitting its Minor SPR application to the PEDD in August 2009, Verizon received a "Notice of Complete" application on December 21, 2009. (Id. ¶¶ 45, 48.) By this date, all of "the involved Town departments had reviewed [Verizon's Minor SPR application] and expressed 'satisfaction' with or 'no objection' to it." (Id. ¶ 47.) In fact, after reviewing the application, the PEDD recommended "a finding of no significant environmental impact and issuance of final approval." (Id. ¶ 50.) Accordingly, the PEDD notified the Planning Board of the ZBA's grant of "an unconditional area and use variance," and scheduled Verizon "for a January 12, 2010 appearance" in front of it. (Id. ¶¶ 50-52.)

Though the Planning Board discussed Verizon's Minor SPR application at its January 12 meeting,⁹ it requested the full application from the PEDD and thus, deferred final action until a later meeting. (Id. ¶¶ 53, 60.) The Planning Board was provided with the requested materials onFebruary 1, 2010, and Verizon was placed on the agenda for the February 9 meeting. (Id. ¶¶ 61-62.)

Again, Verizon presented a comprehensive overview of the project, highlighting the bell tower's "lack of visual impact," as well as the steps it took to ensure the tower would have "no effect" on the Town's historic resources. (Id. ¶ 64.) However, the Planning Board remained unconvinced, and openly expressed its concerns with the tower.¹⁰ (See id. ¶¶ 65-69.) While it acknowledged it lacked the authority to block the tower,¹¹ the Planning Board requested additional information, and asked Verizon to reappear at its March 9, 2010 hearing. (Id. ¶ 73.)

In response to the Planning Board's request, Verizon revised its proposal to further disguise the tower. (Id. ¶ 76.) To this end, C.T. Male conducted "a detailed environmental, engineering and planning" review, and articulated several design comments to reduce visibility and "effect compliance with the [Town's] Land Use Law." (Id. ¶¶ 87, 91.) On April 6,2010, Verizon pledged to implement C.T. Male's comments, and two days later, C.T. Male confirmed that it was compliant with the applicable Town Land Use Law. (Id. ¶¶ 88, 90.) The suggested modifications, as well as an updated compliance report on RF exposure, were incorporated into Verizon's final submission to the Planning Board on May 18, 2010. (See id. ¶¶ 94-97.) Seven days later, the Planning Board finally voted on Verizon's Minor SPR application. (Id. ¶¶ 103, 113.)

Unsurprisingly, given that one of its member expressed his intent to vote against Verizon's application two months earlier, the Planning Board voted to deny the application. (Id. ¶¶ 104, 112.) Although it promised to issue a written decision within a week—as it is required to do under New York Town Law § 274-a(8)—the Planning Board did not file its decision until July 29, 2010, over two months after the vote. (Id. ¶¶ 114-15.) The decision, which repeatedly cites to the S.A.F.E. petition,¹² concludes that "the proposed cellular tower would be a non-residential, commercial use of the property," and thus, "would fundamentally change the residential nature of the subject property, as well as . . . invite other non-residential and/orcommercial uses . . . further jeopardizing the residential and historic character of this portion of the Town." (Dkt. No. 18, Attach. 44 at 14.)

III. Standard of Review

Summary judgment is appropriate "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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). When evaluating the material facts, the court "construes all evidence in the light most favorable to the non-moving party, drawing all inferences...