Crown Castle NG E. LLC v. Town of Oyster Bay
| Decision Date | 11 May 2020 |
| Docket Number | 17-CV-3445(SJF)(ARL) |
| Parties | CROWN CASTLE NG EAST LLC, Plaintiff, v. THE TOWN OF OYSTER BAY, THE TOWN OF OYSTER BAY TOWN BOARD, RICHARD LENZ, in his official capacity as Commissioner of the Town of Oyster Bay Highway Department and Department of Public Works, and JOHN BISHOP, in his official capacity as Deputy Commissioner of the Town of Oyster Bay Highway Department, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Pending before the Court are the objections of plaintiff Crown Castle NG East LLC ("plaintiff") to so much of the Report and Recommendation of the Honorable Arlene R. Lindsay, United States Magistrate Judge, dated February 21, 2020 ("the Report"), as recommends: (i) that plaintiff's claims pursuant to the Telecommunications Act be dismissed for lack of jurisdiction; (ii) that plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure be denied; and (iii) that the motion of defendants the Town of Oyster Bay (the "Town"), the Town of Oyster Bay Town Board, Richard Lenz, in his official capacity as Commissioner of the Town of Oyster Bay Highway Department and Department of Public Works, and John Bishop, in his official capacity as Deputy Commissioner of the Town of Oyster Bay Highway Department, (collectively "defendants") seeking summary judgment dismissing plaintiff's remaining claims against them pursuant to Rule 56 of the Federal Rules of Civil Procedure be granted. For the reasons set forth below, the Report is accepted in its entirety.
Any party may serve and file written objections to a report and recommendation of a magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no specific, timely objection has been made, the district judge need only be satisfied that there is no clear error apparent on the face of the record. See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) ()
Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Plaintiff contends, inter alia, that Magistrate Judge Lindsay erred: (i) in holding that the Town's motivation in revoking the Road Opening Permits issued to plaintiff on April 5, 2017 "is irrelevant for purposes of the Court's evaluation of its jurisdiction," (Report at 23; see Plf. Obj.at 2-4, 6, 10-11), and in purportedly ignoring or disregarding evidence showing "that the Town's actions were based on the residents' fear of radio frequency emissions," (Plf. Obj. at 11); (ii) in purportedly "disregard[ing] the timing" of evidence demonstrating "that the Town issued the cease and desist letter, revoked the [Road Opening] permits, and removed two of [plaintiff's] facilities in response to the residents' concerns over radio frequency emissions[,] . . . [and then] tried to revise history by claiming that the revocation of the Highway Permits and the removal of some of [plaintiff's] equipment was because [plaintiff] had not applied for a building permit or special use permit[,]" (id. at 5-6); (iii) in finding "that the Town code was not discriminatorily enforced against [plaintiff]," (id. at 6); (iv) in overlooking plaintiff's explanation that the thirteen (13) building permits issued by the Town out of the twenty-one (21) applications it reviewed between May 2017 and August 2017 were "likely" issued for structures on private property, and not in the public right-of-way, (id. at 6-7; see also id. at 13); (v) in concluding that plaintiff "provides no support for [its] conclusory statement" that "no other utility is required to obtain a permit," (Report at 20), since plaintiff "cited to the sworn testimony of the Town's Planning and Development Commissioner,"1 (Plf. Obj. at 8-9); (vi) in finding that "Defendants [w]ere left with no other choice but to remove Plaintiff's property," (Report at 36 n. 13), and that plaintiff's two (2) installed telecommunication facilities "were not wrongfully seized," (Plf. Obj. at 10; see also id. at 19); (vii) in recommending that the branch of plaintiff's motion seeking summary judgment on its claim pursuant to Section 253(a) of the Telecommunications Act be denied on the basis that plaintiff "failed to demonstrate that the Town is seeking to enforce anunconstitutional ordinance, let alone any ordinance,"2 (Report at 29; see Plf. Obj. at 11-13); (viii) in finding that "nothing in the record indicates that Plaintiff was given similar guidance [that permits were not required] with respect to the installation of its own utility poles in the Town right of way,"3 (Report at 18; see also Plf. Obj. at 13-14); (ix) in concluding that there is no dispute of material fact with respect to the size of the antennas and whether a building permit and special use permit were required, (see Plf. Obj. at 14-15); (x) in holding that there was no subject matter jurisdiction over plaintiff's claims pursuant to Section 332(c)(7)(B) of the Telecommunications Act because there is no "'final action or failure to Act' by the Town,"4 (Report at 23-24); and (xi) in finding that plaintiff did not have a property interest in the Highway Permits because it cannot satisfy the entitlement test set forth in Yale Auto Parts, Inc. v. Johnson, 758 F.2d 54 (2d Cir. 1985). (See Plf. Obj. at 17-19). In addition, plaintiff contends that to the extent the Report recommends granting so much of defendants' motion as seeks summary judgment on their state law counterclaims against plaintiff, such recommendation is internally inconsistent with the recommendation that the Court decline to exercise supplemental jurisdiction over all remaining state law claims, including defendants' counterclaims. (Id. at 20-21).
Initially, although the introductory paragraph of the Report may be somewhat ambiguous with respect to granting defendants' motion for summary judgment, (see Report at 2), it is clear from the body of the Report that Magistrate Judge Lindsay does not recommend that defendants be granted summary judgment on their counterclaims against plaintiff. Rather, the Report recommends that this Court decline to exercise supplemental jurisdiction over the counterclaims pursuant 28 U.S.C. § 1367(c) and dismiss the counterclaims without prejudice, and the Court accepts that recommendation.
Plaintiff correctly asserts that the Telecommunications Act provides, in relevant part:
"No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions."
47 U.S.C. § 332(c)(7)(B)(iv). Nonetheless, Magistrate Judge Lindsay correctly found that plaintiff did not satisfy its burden of establishing that this Court has subject matter jurisdiction over its claims under Section 332(c)(7)(B) of the Telecommunications Act since, inter alia, the undisputed evidence demonstrates that plaintiff never applied for the requisite building permits. Accordingly, so much of the Report as recommends that plaintiff's claims pursuant to Section 332(c)(7)(B) of the Telecommunications Act be dismissed for lack of subject matter jurisdiction, and that the branch of plaintiff's motion seeking summary judgment on such claims be denied as moot, is accepted and, for the reasons set forth therein, plaintiff's claims pursuant to Section 332(c)(7)(B) of the Telecommunications Act (Counts I, II, III and V) are dismissed in their entirety for lack of subject matter jurisdiction and the branch of plaintiff's motion seeking summary judgment on its claims pursuant to Section 332(c)(7)(B) of the Telecommunications Act is denied as moot.
Moreover, even assuming, arguendo, that the finding regarding the guidance plaintiff was allegedly given from Town officials with respect to the installation of its utility poles in the Town right-of-way is erroneous, Magistrate Judge Lindsay correctly found that such guidance does not bind the Town. "[E]rroneous advice given by an employee of a governmental agency is not considered to rise to the level of an unusual circumstance warranting invocation of the doctrine of estoppel." Matter of Ryan v Tax Appeals Tribunal of State of N.Y., 133 A.D.3d 929, 930, 18 N.Y.S.3d 797 (N.Y. App. Div. 2015); see also Matter of Parkview Assocs. v City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372 (N.Y. 1988) (); Petruso v. Schlaefer, 474 F. Supp. 2d 430, 439 (E.D.N.Y. 2007), aff'd, 312 F. App'x 397 (2d Cir. Feb. 26, 2009) (); Wilson v Neighborhood Restore Hous., 129 A.D.3d 948, 949, ...
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