Metropcs N.Y., LLC v. Inc. Vill. of Southampton

• Decision Date: 25 April 2013
• Docket Number: INDEX NO.: 26595/12
• Citation: 2013 NY Slip Op 30993
• Court: New York Supreme Court
• Parties: METROPCS NEW YORK, LLC and FIRST PRESBYTERIAN CHURCH OF SOUTHAMPTON, Petitioners-Plaintiffs, For an Order and Judgment under Articles 30 & 78 of the New York State Civil Practice Law and Rules, v. THE INCORPORATED VILLAGE OF SOUTHAMPTON, THE INCORPORATED VILLAGE OF SOUTHAMPTON BOARD OF TRUSTEES, THE INCORPORATED VILLAGE OF SOUTHAMPTON CLERK/ADMINISTRATOR, THE INCORPORATED VILLAGE OF SOUTHAMPTON BUILDING DEPARTMENT AND THE INCORPORATED VILLAGE OF SOUTHAMPTON BOARD OF HISTORIC PRESERVATION & ARCHITECTURAL REVIEW, Respondents-Defendants.

2013 NY Slip Op 30993

METROPCS NEW YORK, LLC and FIRST PRESBYTERIAN CHURCH OF SOUTHAMPTON Petitioners-Plaintiffs, For an Order and Judgment under Articles 30 & 78 of the New York State Civil Practice Law and Rules, v. THE INCORPORATED VILLAGE OF SOUTHAMPTON, THE INCORPORATED VILLAGE OF SOUTHAMPTON BOARD OF TRUSTEES, THE INCORPORATED VILLAGE OF SOUTHAMPTON CLERK/ADMINISTRATOR, THE INCORPORATED VILLAGE OF SOUTHAMPTON BUILDING DEPARTMENT AND THE INCORPORATED VILLAGE OF SOUTHAMPTON BOARD OF HISTORIC PRESERVATION & ARCHITECTURAL REVIEW, Respondents-Defendants.

INDEX NO.: 26595/12

SUPREME COURT - STATE OF NEW YORK I.A.S. PART XXXVI SUFFOLK COUNTY

MOTION DATE: January 24, 2013

Dated: April 25, 2013

PRESENT:

HON. PAUL J. BAISLEY, JR., J.S.C.

MOTION NO.: 001 Continued

002 MD 003 MOT D

PETITIONERS' ATTORNEY:

BROWN & ALTMAN, LLP

RESPONDENTS' ATTORNEY:

TWOMEY, LATHAM, SHEA, KELLEY,

DUBIN & QUARTARARO, LLP

Upon the following papers numbered 1 to 33 read on this motions to dismiss and for an order to annul based on conflict of interest and other relief: Notice of Motion/ Order to Show Cause and supporting papers 1-6; 12-27; Notice of Cross Motion and supporting papers _ ; Answering Affidavits and supporting papers 7-9; 28-31 ; Replying Affidavits and supporting papers 10-11; 32-33; Other__; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that the motion (motion sequence no. 002) of respondents/defendants for dismissal and the motion (motion sequence no. 003) of petitioners/plaintiffs for an order annulling the July 30, 2012 decision of the Incorporated Village of Southampton Board of Historic Preservation & Architectural Review are consolidated for the purposes of this determination; and it is further

ORDERED that the motion (motion sequence no. 002) of respondents/defendants for an order pursuant to CPLR R. 3211(a)(7) dismissing the petition/complaint in its entirety is denied; and it is further

ORDERED that the motion (motion sequence no. 003) of petitioners/plaintiffs for an order annulling the July 30, 2012 decision of the Incorporated Village of Southampton Board of Historic Preservation & Architectural Review based on the failure of certain members of said Board to recuse themselves from hearing and voting on their application, and to strike and add certain documents to the certified return, is determined herein.

In this hybrid CPLR Article 78 proceeding and plenary action for declaratory relief petitioners/plaintiffs seek, among other things, a judgment annulling the July 30, 2012 decision of respondent/defendant Incorporated Village of Southampton Board of Historic Preservation & Architectural Review (the "Board") denying their application for a certificate of appropriateness and directing that it issue a certificate of appropriateness and that respondent/defendant Incorporated Village of Southampton Building Department (the "Building Department") issue a building permit to permit petitioners/plaintiffs to construct, operate and maintain a public utility wireless communication facility on the property located at 2 South Main Street, Southampton, New York. Said property is owned by petitioner/plaintiff First Presbyterian Church of Southampton (the "Church") and is improved by, among other things, a sanctuary building that has an approximately 70-foot-high steeple. Petitioner/plaintiff MetroPCS New York, LLC ("MetroPCS"), a lessee of the property owner, is licensed by the Federal Communications Commission to construct, maintain and operate wireless telecommunications systems in the New York area and seeks to provide reliable wireless telephone service within the geographic boundaries of the Incorporated Village of Southampton (the "Village").

MetroPCS applied on July 26, 2011 to the Building Department for a building permit for the project. Prior thereto, on March 22, 2011, MetroPCS applied to the Board for a certificate of appropriateness pursuant to Village Code §65-4 describing the nature of the proposed work as reconstruction or alteration to install wireless antennas within the church's bell tower. Petitioners/plaintiffs claim that the project involves the removal of less than one percent of the exterior sheathing of the Church steeple in order to replace the same with radio frequency transparent fiberglass reinforced polymer ("RFP") identically matching the exterior sheathing based on size, thickness and texture to be painted white to match the current sheathing material.

After four hearings before the Board, MetroPCS submitted an alternate design to the New York State Office of Parks, Recreation and Historic Preservation (NYSHPO) on March 19, 2012 which reduced the number of antennas from eight to four and lowered the height of the antennas ten feet to minimize any potential impact to the Church building, the Village's historic district and its surroundings, which was purportedly found by NYSHPO to have no adverse effect. MetroPCS resubmitted its application to the Board on May 8, 2012 based on said alternate design. At the next hearing before the Board on June 27, 2012 MetroPCS submitted a sample of painted RFP material to enable the Board to compare it to the existing facade, members of the Church testified in support of the application, some neighbors testified against it, and Ken Wedholm of Stealth Concealment Solutions testified in support, providing photographs of other similar projects, such as the East Hampton Presbyterian Church, where historic structures were used to house a wireless communication facility and the same material was used to camouflage the wireless antenna. The hearing was adjourned to July 11, 2012 for a final hearing during which Ken Wedholm testified again and MetroPCS submitted its "Findings of Fact and Conclusions of Law." At the hearing, the Board voted to deny the application and subsequently rendered its decision, which was filed with the Village Clerk on July 30, 2012.

In its decision, the Board noted that due to the landmark status of the church building and steeple and their location within the Village's historic district, approval by the Board of a certificate of appropriateness was a condition precedent to the issuance of a building permit forthe installation of the proposed facilities. The Board indicated that the second application submitted on May 8, 2012 was dissimilar to the first inasmuch as it proposes to install the antennas in the area below the steeple roof next to the four clock faces. It explained that,

The specific proposal of this application is to remove the exterior sheathing from the four sides of the steeple surrounding the respective clock faces and replace the wood and boards with the RFP material which will be milled to the specifications of the boards being replaced and paint the RFP material the same color as the rest of the steeple, white. In addition, the applicant proposes to remove the sheathing with a high degree of care to minimizing [sic] any damage during the removal process and store the boards in labeled crates within the church for restoration of the boards on the steeple in the same order as removed when the lease term expires.

The Board noted that the purpose or reason for the alteration was not restoration, rehabilitation or for general maintenance of the existing sheathing or structure but rather was for a voluntary or elective alteration to the church exterior. It distinguished this application from instances where historic material in need of maintenance, repair or replacement can no longer be obtained and a synthetic or non-historic material represents either a viable or the sole available replacement. Based on the purpose or reason for the alteration, "a voluntary elective alteration to the church exterior," the Board found that the proposal was not "appropriate" to the property as the term is contextually used in Village Code §65-5(C)(1). In addition, the Board disagreed that the area affected by the project represented a small percentage of the size of the building, finding that the appropriate basis for measuring the impact or scale of the application was limited to the steeple itself, the architectural centerpiece of the sanctuary, and that the central focus of the steeple was the clock. The Board in considering the scale of the proposed project under Village Code §65-5(C)(2) explained,

From the perspective of an observer on the ground, the clock area is one-third of the architectural presence of the steeple. Defining the area of the project in terms of square feet of sheathing to be replaced, as the applicant advocates, does not provide a realistic comparison of the scale of the project based upon the visual impact the clock area makes in relation to the steeple itself and the Board determines the scale of the proposal is large and characteristically significant in relation to the section of the church in which it is located.

Next, the Board expressed significant reservations concerning the ability of MetroPCS or the Church to assure that at the end of the lease, the original sheathing would be properly restored, particularly because MetroPCS declined to provide relevant sections of the text of the lease and it was disclosed that the lease could potentially be renewed for 25 or 30 years, approximately one-fifth of the time that the steeple has existed. The Board determined that an approval of the application for an indefinite period of time cannot reasonably be temporary as MetroPCS asserted and that the approval would, instead, be more in the nature of a permanent grant.

The Board expressed its concern that MetroPCS had not shown how the restoration of the church building as close as possible to its present condition at the end of the lease therebypreserving the historic material and character of the building would be monitored and accomplished over a period of 20 or 30 or more years of successive administrations of the Church, changes in the corporate structure of MetroPCS, and administrative...