Eisenbach v. Vill. of Nelsonville

• Decision Date: 01 November 2021
• Docket Number: 20 CV 8566 (VB)
• Court: U.S. District Court — Southern District of New York
• Parties: DAVID EISENBACH, GEORGE H. EISENBACH, JOANNE EISENBACH, JENNIFER YOUNG, DANA CARINI, ROSEMARIE OLSHAKOSKI, MICHAEL OLSHAKOSKI, JONATHAN D. CHAMPLIN, ANNE CHAMPLIN, RAYMOND H. CHAMPLIN, KENNETH LEVINE, CATHERINE POLERA, JULIEN DAVIES, HOPE ROGERS, PHIL WEISS, CYNTHIA KING, JO MANGO, and LAURALEE HOLMBO, Plaintiffs, v. VILLAGE OF NELSONVILLE; VILLAGE OF NELSONVILLE ZONING BOARD OF APPEALS; VILLAGE OF NELSONVILLE PLANNING BOARD; WILLIAM BUJARSKI, as Building Inspector of the Village of Nelsonville; HOMELAND TOWERS, LLC; NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS; and NEW CINGULAR WIRELESS PCD LLC d/b/a AT&T, Defendants.

DAVID EISENBACH, GEORGE H. EISENBACH, JOANNE EISENBACH, JENNIFER YOUNG, DANA CARINI, ROSEMARIE OLSHAKOSKI, MICHAEL OLSHAKOSKI, JONATHAN D. CHAMPLIN, ANNE CHAMPLIN, RAYMOND H. CHAMPLIN, KENNETH LEVINE, CATHERINE POLERA, JULIEN DAVIES, HOPE ROGERS, PHIL WEISS, CYNTHIA KING, JO MANGO, and LAURALEE HOLMBO, Plaintiffs,
v.
VILLAGE OF NELSONVILLE; VILLAGE OF NELSONVILLE ZONING BOARD OF APPEALS; VILLAGE OF NELSONVILLE PLANNING BOARD; WILLIAM BUJARSKI, as Building Inspector of the Village of Nelsonville; HOMELAND TOWERS, LLC; NEW YORK SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS; and NEW CINGULAR WIRELESS PCD LLC d/b/a AT&T, Defendants.

No. 20 CV 8566 (VB)

United States District Court, S.D. New York

November 1, 2021

OPINION AND ORDER

Vincent L. Briccetti, United States District Judge.

Plaintiffs David Eisenbach, George H. Eisenbach, Joanne Eisenbach, Jennifer Young, Dana Carini, Rosemarie Olshakoski, Michael Olshakoski, Jonathan D. Champlin, Anne Champlin, Raymond H. Champlin, Kenneth Levine, Catherine Polera, Julien Davies, Hope Rogers, Phil Weiss, Cynthia King, Jo Mango, and Lauralee Holmbo bring this action against the Village of Nelsonville (the “Village”); Village of Nelsonville Zoning Board of Appeals (“ZBA”); Village of Nelsonville Planning Board (“Planning Board”); and William Bujarski, as Building Inspector of the Village (the “Building Inspector, ” and, collectively with the Village,

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ZBA, and Planning Board, “Municipal Defendants”); and Homeland Towers, LLC (“Homeland”); New York SMSA Limited Partnership d/b/a Verizon Wireless; and New Cingular Wireless PCD LLC d/b/a AT&T (together, the “Wireless Defendants”).

Now pending is the Wireless Defendants' motion to dismiss the amended complaint pursuant to Rule 12(b)(6). (Doc. #42).

For the reasons set forth below, the motion is GRANTED.

BACKGROUND

For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the amended complaint and draws all reasonable inferences in plaintiffs' favor, as summarized below.

I. Factual Background

The Wireless Defendants planned to build a wireless service generating facility (the “Facility”) at 15 Rockledge Road (the “Premises”) in Nelsonville, New York. To that end, on July 20, 2017, they made three relevant applications: (i) to the ZBA for a special-use permit to construct the Facility; (ii) to the ZBA for a variance from New York State Village Law 7-736, which prohibits construction of any municipal utility or structure on landlocked property; and (iii) to the Planning Board for site plan approval of the Facility.

The ZBA and Planning Board conducted public hearings on the applications from November 15, 2017, to April 4, 2018. The ZBA and Planning Board denied the applications on May 30, 2018, and published notice of the denial on June 12, 2018.

On June 29, 2018, the Wireless Defendants sued the Municipal Defendants in a separate action before this Court. See N.Y. SMSA Ltd. P'ship v. Village of Nelsonville, No. 18-CV-5932 (S.D.N.Y. filed June 29, 2018). The Wireless Defendants alleged the denial of their applications

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violated, among other things, the federal Telecommunications Act. (See Doc. #29 (“Am. Compl.”) Ex. A). The case resolved on January 29, 2020, by the entry of a consent order (the “Consent Order”), which provided for the construction of a modified version of the Facility. (See Id. Ex. B).

Following the entry of the Consent Order, the Wireless Defendants applied to the Village Building Department for a building permit. The application was denied. Defendant Homeland supplemented the application by letter dated May 28, 2020. The supplemented permit application was granted, and the permit was issued on June 15, 2020.

Plaintiffs allege the Wireless Defendants made “significant and unstudied changes” to the project following the entry of the Consent Order. (Am. Compl. ¶ 88). For example, the new project provides for removal of sixty-six trees rather than the forty-three trees provided for in the Consent Order. (Id.).

II. Procedural History

Plaintiffs, who own property or reside near the Premises, commenced this action on October 14, 2020. Plaintiffs filed the first amended and operative complaint on February 10, 2021, and assert eight claims against defendants. The first five claims are styled as federal claims, and the remaining three are styled as state-law claims.

First, plaintiffs allege the Municipal Defendants violated the National Environmental Policy Act (“NEPA”) and the New York State Environmental Quality Review Act (“SEQRA”) by denying the Wireless Defendants' initial applications with respect to the Facility without appropriate environmental review. (Count I) (Am. Compl. ¶¶ 103-04, 106, 112-14). Plaintiffs also allege all defendants violated NEPA and SEQRA when they entered into the Consent Order without appropriate environmental review. (Id. ¶¶ 105-12, 114-16).

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Second, plaintiffs allege all defendants violated the Endangered Species Act (“ESA”) by failing to consider the impact of the Facility on the habitats of the Indiana Bat and Northern Long-eared Bat when entering into the Consent Order (Am. Compl. ¶¶ 118-25), and that adopting the Consent Order was arbitrary, capricious, and an abuse of discretion in violation of the Administrative Procedure Act (“APA”). (Count II) (Id. ¶¶ 126-27).

Third, plaintiffs allege the Consent Order constitutes illegal contract zoning and violates Section 188-70 of the Zoning Law of the Village of Nelsonville (the “Code”). (Count III) (Am. Compl. ¶¶ 129-45).

Fourth, plaintiffs allege the Consent Order is impermissibly vague because, among other things, it did not determine whether the Wireless Defendants possess the authority to begin construction on Rockledge Road. (Count IV) (Am. Compl. ¶¶ 147-53).

As relief for these four claims, plaintiffs seek to set aside the Consent Order (Am. Compl. ¶¶ 116, 127, 145, 153), as well as a declaratory judgment pursuant to the federal Declaratory Judgment Act. (Count V) (Id. ¶ 155).

In their remaining claims (Counts VI, VII, and VIII), plaintiffs allege the changes made to the construction plans for the Facility after entry of the Consent Order violate SEQRA and the Code. (Am. Compl. ¶¶ 157-59, 167-72). Plaintiffs further allege the Building Inspector acted ultra...