Extenet Sys., Inc. v. Vill. of Pelham

• Citation: 377 F.Supp.3d 217
• Decision Date: 27 March 2019
• Docket Number: No. 18-CV-5281 (CS),18-CV-5281 (CS)
• Parties: EXTENET SYSTEMS, INC., Plaintiff, v. VILLAGE OF PELHAM, Defendant.
• Court: U.S. District Court — Southern District of New York

377 F.Supp.3d 217

EXTENET SYSTEMS, INC., Plaintiff,

v.VILLAGE OF PELHAM, Defendant.

No. 18-CV-5281 (CS)

United States District Court, S.D. New York.

Signed March 27, 2019

Christopher B. Fisher, Leanne M. Shofi, Cuddy & Feder LLP, White Plains, New York, Counsel for Plaintiff.

Kenneth E. Pitcoff, Morris Duffy Alonso & Faley, New York, New York, Counsel for Defendant.

OPINION & ORDER

Seibel, District Judge.

Before the Court are the motion for summary judgment of Defendant Village of Pelham, (Doc. 19), and the cross-motion for summary judgment of Plaintiff ExteNet Systems, Inc., (Doc. 29). For the reasons set forth below, Defendant's Motion is GRANTED IN PART and DENIED IN PART, and Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Facts

The following facts are taken from the parties' Local Civil Rule 56.1 Statements and supporting materials and are undisputed unless otherwise noted.

1. Parties

Plaintiff "designs, builds, owns, and maintains distributed networks for use by wireless carriers." (Doc. 21 ("Pitcoff Decl.") Ex. C ("2014 App.") at 1.)¹ To serve its wireless-carrier customers, Plaintiff installs in "the public right of way" "small cells" or "distributed antenna systems" ("DAS"), which typically consist of a "node" comprising "an antenna and equipment cabinet (typically a few cubic feet in volume) mounted to a utility pole, traffic stanchion or street light." (Doc. 30 ("Lambert Decl.") ¶¶ 8-9.) Nodes can accommodate "one or more FCC-licensed carriers to provide network wireless services to a discrete area." (Id. ¶ 10.) Several nodes together create a network, which can extend wireless coverage "where a traditional tower is not practical and/or cannot achieve targeted coverage." (2014 App. at 2.) Plaintiff obtained a certificate of public convenience and necessity from the New York State Department of Public Service to "operate in New York State as a facilities-based provider and reseller of telephone service." (Lambert Decl. Ex. 3 at 2.)²

The Village of Pelham is a municipality in the State of New York. (Doc. 2 ("Compl.") ¶ 17.) Plaintiff seeks to modify three of its existing DAS installations located on Village-owned rights of way. (Doc. 33 ("D's 56.1 Resp.") ¶¶ 17-18.)

2. 2014 Application

On August 25, 2014, Plaintiff submitted a letter to the Village Administrator with the subject line "Application for Special Permit for Wireless Telecommunications Facilities." (2014 App. at 1.) Plaintiff stated that it sought to "expand its existing Westchester County distributed antenna system (DAS) into the Village of Pelham Manor on behalf of its current and potential new wireless carrier clients" and therefore requested a "Special Permit" from the Village under Chapter 87 of the Pelham Village Code.³ (Id. ) Plaintiff proposed installing one twenty-nine pound antenna and one control cabinet on each of three existing utility poles, (id. at 2), "for the use of T-Mobile cellular service," (Pitcoff Decl. Ex. D ("Res.") ¶ 30). These installations would "provide area residents with improved wireless services and eliminate ‘dead’ spots that previously existed." (2014 App. at 2.) Plaintiff declared that the project met the requirements of § 87-6 of the Pelham Village Code and attached an environmental impact assessment, (id. at 18-38), an engineer's declaration and a structural report, (id. at 11-16, 101-107), and other information intended to comply with §§ 87-8 through 87-12, including a demonstration of the need for the proposed services in Pelham, (id. at 97-98).

The Village's Board of Trustees approved Plaintiff's initial application on December 16, 2014, (Res. at 3), after holding "seven meetings and three public hearings," (D's 56.1 Resp. ¶ 13 (emphasis omitted) ), and it issued a Resolution granting the Special Permit, (Res. at 10). The parties entered into an agreement governing Plaintiff's use of the right of way on February 17, 2015. (Pitcoff Decl. Ex. A ("ROW Agreement") at 1-2.)

3. 2018 Application

On March 6, 2018, Plaintiff submitted what it called a "Building Permit Application" to the Village's Department of Buildings. (2018 App. at 1.)⁴ Plaintiff sought a building permit so it could "replac[e] antennas and add[ ] equipment at the three existing node locations," thereby making its equipment available for use by Verizon Wireless. (Id. ) In its application, Plaintiff explained the basis for its belief that its request constituted an "eligible facilities request under FCC regulations." (Id. at 1-2.) On the same day, ExteNet's counsel submitted a letter to the Village Administrator contending that the proposed modifications "qualify as a federal eligible facility request" under Section 6409 of the 2012 Middle Class Tax Relief and Job Creation Act, Pub. L. No. 112-6, 126 Stat. 156, 232 (codified at 47 U.S.C. § 1455 ) ("Section 6409"), and that they "meet the FCC regulations for mandatory approval," (Cuddy Feder 3/6/18 Letter at 10-11.)⁵

On April 9, 2018, the Village's Department of Buildings and Public Works sent a letter to Plaintiff indicating that "the addition of a new carrier ... must be supported by new/updated documentation of in-kind survey data" because "[t]he data used to support the 2013 [sic ] of T-Mobile, cannot reasonably establish Verizon has a current gap in coverage." (Senerchia 4/9/18 Letter at 12-13.)⁶ The Village instructed Plaintiff to comply with § 87-7(A) of the Village Code, which "requires proof that the wireless telecommunications facility continues to fill a significant gap in current wireless telecommunications services in the Village of Pelham." (Id. at 12.)

In response, Plaintiff's counsel wrote to the Village Administrator on April 30, 2018, and contended that "ExteNet's modifications to accommodate a second carrier on the DAS are governed by Section 6409(a) ... and Federal Communications Commission ("FCC") rules regarding the implementation of Section 6409." (Cuddy Feder 4/30/18 Letter at 15.)⁷ Plaintiff's counsel argued that "[o]nce ExteNet demonstrates that its proposal is an eligible facility and it will not cause a substantial change to the physical dimensions of the existing DAS, then the Village is required to approve ExteNet's request ..., notwithstanding any local laws that may include additional or different requirements." (Id. at 16.) On May 7, 2018, Plaintiff consented to a two-week extension to May 21, 2018, for the Village to "issue the Building Permit for ExteNet's approved modifications." (Cuddy Feder 5/7/18 Letter at 19.)⁸

By letter received by Plaintiff on May 21, 2018, (see D's 56.1 Resp. ¶ 25), the Village denied ExteNet's building permit application on the basis that "ExteNet has failed to provide in-kind survey data required by Village Code section 87-8(A) and has failed to establish that the wireless telecommunications facility continues to fill a significant gap in current wireless telecommunications services in the Village of Pelham," (Senerchia 5/21/18 Letter at 1).⁹

B. Procedural History

Plaintiff commenced this action on June 12, 2018, and asserted two causes of action. The first claim alleges that Defendant Village of Pelham violated of Section 6409 and 47 C.F.R. § 1.6100¹⁰ by denying and failing to approve an eligible facilities request ("EFR") for modification of an existing wireless tower that does not substantially change the physical dimensions of the tower. (Compl. ¶¶ 48-55.) The second claim alleges that Section 6409 creates a federal right because it requires state and local governments to approve a valid EFR application, and that by failing to approve the Application, the Village has deprived Plaintiff of a right, privilege, or immunity secured by the Constitution and laws of the United States in violation of 42 U.S.C. § 1983. (Id. ¶¶ 56-66.) Plaintiff seeks under its first claim an order requiring the Village to grant the application, (id. ¶ 55), and under its second claim money damages and attorneys' fees, (id. at 12).

II. LEGAL STANDARD

Summary judgment is appropriate when "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). "[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law .... Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505.

The movant bears the initial burden of demonstrating "the absence of a genuine issue of material fact," and, if satisfied, the burden then shifts to the non-movant to "present evidence sufficient to satisfy every element of the claim." Holcomb v. Iona Coll. , 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson , 477 U.S. at 252, 106 S.Ct. 2505. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Fed. Express Corp. , 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).

This standard applies to cross-motions for summary judgment. See Morales v. Quintel Entm't, Inc. , 249 F.3d 115, 121 (2d Cir. 2001) ; C & A Carbone, Inc. v. County of Rockland , No. 08-CV-6459, 2014 WL 1202699,...