Lucas v. Planning Bd. of Town of LaGrange, No. 98 Civ. 0862(CLB).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtBrieant
PartiesDieter LUCAS, Dana Lucas, Glendon Fraser, James Bisceglia, Kristen Bisceglia, Joseph DiPalo, Norman Mackay, Robert Taft, Elizabeth Pierson, Neil Pierson, Alfred Hebert, John Bradbury, Judith Bradbury, and Dr. Susan Grenell, Plaintiffs, v. The PLANNING BOARD OF THE TOWN OF LAGRANGE, the Zoning Board of Appeals of the Town of LaGrange, Joachim S. Ansorge, Town of LaGrange Planner and Zoning Administrator and Samuel Schaffer, Town of LaGrange Building Inspector, Dutchess County Cellular Telephone Company, Inc. d/b/a/ Cellular One, Orange County — Poughkeepsie M.S.A. § Limited Partnership d/b/a/ Bell Atlantic Mobile, Defendants.
Docket NumberNo. 98 Civ. 0862(CLB).
Decision Date19 May 1998
7 F.Supp.2d 310
Dieter LUCAS, Dana Lucas, Glendon Fraser, James Bisceglia, Kristen Bisceglia, Joseph DiPalo, Norman Mackay, Robert Taft, Elizabeth Pierson, Neil Pierson, Alfred Hebert, John Bradbury, Judith Bradbury, and Dr. Susan Grenell, Plaintiffs,
v.
The PLANNING BOARD OF THE TOWN OF LAGRANGE, the Zoning Board of Appeals of the Town of LaGrange, Joachim S. Ansorge, Town of LaGrange Planner and Zoning Administrator and Samuel Schaffer, Town of LaGrange Building Inspector, Dutchess County Cellular Telephone Company, Inc. d/b/a/ Cellular One, Orange County — Poughkeepsie M.S.A. § Limited Partnership d/b/a/ Bell Atlantic Mobile, Defendants.
No. 98 Civ. 0862(CLB).
United States District Court, S.D. New York.
May 19, 1998.

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John Holden Adams, Corbally, Gartland & Rappleyea, Poughkeepsie, NY, for Plaintiffs.

Ronald Blass, Van DeWater and Van DeWater, Poughkeepsie, NY, for Town of LaGrange

Christopher Fisher, Cuddy & Feder & Worby, White Plains, NY, for Dutchess County Cellular One.

Gordon Lang, Nixon Hargrave Devans & Doyle, Washington, DC, for Orange County-Poughkeepsie.

MEMORANDUM & ORDER

BRIEANT, District Judge.


Presently before the Court for decision is (1) plaintiffs' motion for remand of this action to state court; (2) defendants' cross-motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6); and (3) defendants' oral cross-motion for a declaratory judgment to enjoin all present and future collateral attacks on the validity of a prior consent judgment entered by this Court. See Transcript and see Doc. No. 6 in Orange County-Poughkeepsie M.S.A. § Limited Partnership, et al. v. McCluskey et al., 97 Civ. 8650 (S.D.N.Y.) (Brieant, J.) (hereinafter the "BAM Action"). The motions were heard and fully submitted on April 17, 1998, and decision was reserved. See Transcript. After considering the issues raised by these motions, the Court concludes: (1) that remand to state court would be inappropriate; (2) that plaintiffs' claims are without merit; and (3) that defendants' motion for a declaratory judgment must be granted. A permanent injunction shall issue enjoining all collateral attacks on the validity of this Court's Consent Judgment.

Background

A. Prior Proceedings: The BAM Action

In April of 1997, Orange County-Poughkeepsie M.S.A. § Limited Partnership d/b/a/ Bell Atlantic Mobile ("BAM") and Cellular One ("Cell-One") (collectively the "Phone Companies" or the "Companies") both applied independently to the Town of LaGrange for the necessary permits and approvals (the "Permits") to construct two separate telecommunications towers. See BAM Action Complaint at ¶ 28-¶ 29. BAM applied for the Permits necessary to erect a 125 foot tower at a site which it calls the Freedom Plains Site, located in the Town of La Grange in Dutchess County. Cell-One applied for the Permits required to erect a 180 foot tower at a different site nearby, also in the Town of LaGrange.

Both BAM and Cell-One are licensed to provide cellular telephone service by the Federal Communications Commission (the "FCC") under the Federal Communications Act of 1934, § 1 et seq., 47 U.S.C.A. § 151 et seq., as amended by the Federal Telecommunications Act of 1996, 47 U.S.C.A. § 332 (West 1998). That Act announces the federal policy of promoting the availability, "so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communications service with adequate facilities at reasonable charges, for the purpose of national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication." 47 U.S.C. § 151.

At the time of the BAM and Cell-One applications, the only cellular facility existing in the Town of LaGrange was a single 150 foot tower, erected by BAM with the Town's approval in 1987, and located on Industry Street. Id. at ¶ 25, ¶ 26. The new BAM and Cell-One applications were based on objective radio frequency calculations which demonstrated that the cellular coverage provided by the existing tower was inadequate for the surrounding geographic area as a whole. Id. at ¶ 21, ¶ 27.

The Town Board, Planning Board, Zoning Board and Town Planner and Zoning Administrator (collectively the "Town") all were involved in considering the two new independent tower proposals. From the outset, the Town presumed that the Phone Companies applications would bring the New York State Environmental Quality Review Act ("SEQRA") into play. See Environmental Conservation Law ("ECL") § 8-0101 et seq. SEQRA requires local planning boards to consider the potential environmental impact of a proposed project before granting site plan approval, see 6 N.Y.C.R.R. § 617.1;

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ECL 8-0103, subd. 7. The statutory scheme attempts to achieve this substantive goal by designating the public agency most significantly involved in a particular project as the "lead" agency and by obliging that body to go through a series of procedures intended to compel consideration of the environmental consequences of any determination which finally approves the project. The visual impact of a proposed project is one of the environmental factors that is properly considered within the SEQRA process. See WEOK Broadcasting Corp. v. Planning Board of the Town of Lloyd, 79 N.Y.2d 373, 583 N.Y.S.2d 170, 173, 592 N.E.2d 778 (1992); see also 6 NYCRR 617.2[b][1] (defining an "action" as including all "projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure." (emphasis added)).

As early as possible in the SEQRA process, the "lead" agency, see ECL 8-0111, subd. 6, must determine whether an Environmental Impact Statement ("EIS") should be prepared with reference to the proposal submitted. See ECL 8-0109, subd. 4; 8-0111, subd. 6. This determination is made according to whether a contemplated action falls within the definitions of "Type I actions," "Type II actions," or "unlisted" actions. (6 NYCRR 617.6[a][1]). "Type II actions" are those which "have been determined not to have a significant impact on the environment or are otherwise precluded from environmental review." See 6 NYCRR 617.5[a]. If an action falls within the Type II category, the lead agency has "no further responsibilities" under the SEQRA regulations. See 6 NYCRR 617.6[a][i].

On the other hand, "Type I actions" are those that will likely have a significant adverse impact on the environment, and ultimately require compilation of an EIS. The consequence of an "action" falling within Type I, or of its being "Unlisted," is that an "environmental assessment form" must be compiled, see 6 NYCRR 617.6, and a determination made as to whether the action "may include the potential for at least one significant adverse environmental impact." See 6 NYCRR 617.7[a]. If the lead agency determines that that is the case, that agency issues a "positive declaration" and either the agency or the applicant — at the latter's option — must prepare a draft environmental impact statement ("DEIS"). See ECL 8-0109, subds. 2, 4; 6 N.Y.C.R.R. §§ 617.7.

If the draft statement is accepted by the agency "as satisfactory with respect to scope, content and adequacy," it is then circulated to any other agencies having an interest in the proposal, and "interested members of the public."(see ECL 8-0109, subds. 4, 5; 6 NYCRR 617.8[b], 617.10). After allowing a period for comment, the lead agency must prepare a final environmental impact statement ("FEIS") and circulate it in the same manner as the draft statement. See ECL 8-0109, subds. 4, 5, 6; 6 NYCRR 617.10[h]. Upon adoption of the proposal by the lead agency, it is required to make explicit written findings that (1) the requirements of SEQRA have been met, and (2) adverse environmental effects revealed in the EIS process will be minimized or avoided to the maximum extent possible. See ECL 8-0109, subd. 8; 6 NYCRR 617.9[c].

In this case, in response to the initial applications by BAM and Cell-One, the Town invoked its SEQRA obligations to indicate that its preference was for a single co-located tower on which both BAM and Cell-One would fix their antennae. After a period of consultation with all parties, the Phone Companies agreed to propose a single co-located tower ("the Tower") with a height of 180 feet at BAM's Freedom Plains Site.

In preparation for that proposal, BAM conducted a balloon test to ascertain the visual impact of constructing such a Tower. See BAM Action Complaint at ¶ 38. BAM also created a "visual study" which "included a cross section analysis of where the tower would be visible, five photographs from five key view points in the Town within computerized photo realistic simulations of the proposed 180' foot tower, a viewshed map, identification of the distance from the tower to the key locations indicating the character of the visual impact ... and a description of the land uses in the areas where the tower would be visible." On the basis of this analysis, BAM concluded that "[a]ll significant views

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[of the Tower] in the foreground range (0-1/4 mile) [would be] blocked by vegetation and/or topography." BAM Action Complaint at ¶ 95(b). The results of BAM's analysis of the visual impact of the Tower were submitted to the relevant Town authorities.

It appears that at some early point in the process, the Town determined to oppose the construction of the Tower under all circumstances. While BAM was preparing its analysis, the Town, unbeknownst to the Phone Companies, undertook to do its own independent study, which included a balloon test by the Town Engineer. The results of that test were written up in what was termed a "Visual Impact Analysis." At the October 21, 1997 hearing to consider whether to issue a positive declaration under...

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34 practice notes
  • City of New York v. Beretta U.S.A. Corp., No. 00 CV 3641(JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 12, 2004
    ...from seeking injunctive relief to require corporations to remove same contaminants); cf. Lucas v. Planning Bd. of the Town of LaGrange, 7 F.Supp.2d 310, 328 (S.D.N.Y.1998) (town "adequately represented" its citizens so that they were bound by terms of consent decree in prior litigation). Su......
  • Nat'l R.R. Passenger Corp. v. McDonald, No. 12 Civ. 2731(CM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 26, 2013
    ...94th St. Grocery Corp. v. New York City Bd. Of Health, 685 F.3d 174, 185–86 (2d Cir.2012); Lucas v. Planning Bd. Of Town of LaGrange, 7 F.Supp.2d 310, 322 (S.D.N.Y.1998). And while Clean Air Markets Group v. Pataki, 338 F.3d 82 (2d Cir.2003) held that the New York Air Pollution Mitigation L......
  • Sprint Spectrum L.P. v. Mills, No. 99 CIV. 1041(BDP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 27, 1999
    ...v. Rosenberg, 82 N.Y.2d 364, 371, 604 N.Y.S.2d 895, 624 N.E.2d 990 (1993); see also, Lucas v. Planning Board of the Town of La Grange, 7 F.Supp.2d 310, 323 n. 8 (S.D.N.Y.1998) ("It should be noted that under New York law, cellular providers are considered `public utilities,' and are entitle......
  • Leonard v. Planning Bd. of Union Vale, No. 13-cv-6034 (NSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 4, 2016
    ...as to virtually assure conferral of the benefit.”) (internal quotation marks omitted); Lucas v. Planning Bd. of Town of LaGrange , 7 F.Supp.2d 310, 324 (S.D.N.Y.1998) (quoting Gagliardi v. Village of Pawling , 18 F.3d 188, 192 (2d Cir.1994) (“It is well settled in this Circuit that a consti......
  • Request a trial to view additional results
34 cases
  • City of New York v. Beretta U.S.A. Corp., No. 00 CV 3641(JBW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 12, 2004
    ...from seeking injunctive relief to require corporations to remove same contaminants); cf. Lucas v. Planning Bd. of the Town of LaGrange, 7 F.Supp.2d 310, 328 (S.D.N.Y.1998) (town "adequately represented" its citizens so that they were bound by terms of consent decree in prior litigation). Su......
  • Nat'l R.R. Passenger Corp. v. McDonald, No. 12 Civ. 2731(CM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 26, 2013
    ...94th St. Grocery Corp. v. New York City Bd. Of Health, 685 F.3d 174, 185–86 (2d Cir.2012); Lucas v. Planning Bd. Of Town of LaGrange, 7 F.Supp.2d 310, 322 (S.D.N.Y.1998). And while Clean Air Markets Group v. Pataki, 338 F.3d 82 (2d Cir.2003) held that the New York Air Pollution Mitigation L......
  • Sprint Spectrum L.P. v. Mills, No. 99 CIV. 1041(BDP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • August 27, 1999
    ...v. Rosenberg, 82 N.Y.2d 364, 371, 604 N.Y.S.2d 895, 624 N.E.2d 990 (1993); see also, Lucas v. Planning Board of the Town of La Grange, 7 F.Supp.2d 310, 323 n. 8 (S.D.N.Y.1998) ("It should be noted that under New York law, cellular providers are considered `public utilities,' and are entitle......
  • Leonard v. Planning Bd. of Union Vale, No. 13-cv-6034 (NSR)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 4, 2016
    ...as to virtually assure conferral of the benefit.”) (internal quotation marks omitted); Lucas v. Planning Bd. of Town of LaGrange , 7 F.Supp.2d 310, 324 (S.D.N.Y.1998) (quoting Gagliardi v. Village of Pawling , 18 F.3d 188, 192 (2d Cir.1994) (“It is well settled in this Circuit that a consti......
  • Request a trial to view additional results

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