N.Y. Smsa Ltd. Partnership v. Town of Clarkstown

• Decision Date: 26 March 2009
• Docket Number: No. 07 Civ 7637(WGY).,07 Civ 7637(WGY).
• Parties: NEW YORK SMSA LIMITED PARTNERSHIP d/b/a Verizon Wireless, New Cingular Wireless PCS, LLC, Spring Spectrum, L.P., and Omnipoint Communications, Inc., a wholly owned subsidiary of T-Mobile USA, Inc., Plaintiffs, v. TOWN OF CLARKSTOWN, and The Town Board of the Town of Clarkstown, Defendants.
• Court: U.S. District Court — Southern District of New York

603 F.Supp.2d 715

NEW YORK SMSA LIMITED PARTNERSHIP d/b/a Verizon Wireless, New Cingular Wireless PCS, LLC, Spring Spectrum, L.P., and Omnipoint Communications, Inc., a wholly owned subsidiary of T-Mobile USA, Inc., Plaintiffs, v. TOWN OF CLARKSTOWN, and The Town Board of the Town of Clarkstown, Defendants.

No. 07 Civ 7637(WGY).

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

March 26, 2009.

COPYRIGHT MATERIAL OMITTED

John Eduard Barry, Andrew G. McBride, Jamie Alan Aycock, Joshua Scott Turner, Wiley Rein LLP, Washington, DC, Christopher B. Fisher, Cuddy & Feder, LLP, White Plains, NY, Gregory D. Meese, Price, Meese Shulman & D'Arminio, P.C., Woodcliff Lake, NJ, Michael Arthur Lampert, Michael Anthony Rowe, Charles Michael Rowan, Jr., Saul Ewing LLP, Princeton, NJ, Karl J. Nelson, Saul Ewing LLP, Baltimore, MD, for Plaintiffs.

Edward M. Ross, Megan Frances Carroll, Rosenberg Calica & Birney LLP, Garden City, NY, for Defendants.

Memorandum and Order

WILLIAM G. YOUNG, District Judge.¹

On February 1, 1996, Congress enacted the Telecommunications Act of 1996 ("Telecommunications Act"), Pub.L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. §§ 151 et seq., as amended), which made substantial changes to Federal regulation of telecommunications in order to facilitate the spread of new technologies nationwide. H.R. Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 10, 124. Recognizing that telecommunications technologies, which were once tightly compartmentalized, were beginning to converge, see Thomas G. Krattenmaker, The Telecommunications Act of 1996, 29 Conn. L.Rev. 123, 127 (1996), Congress sought to abolish artificial distinctions among signal delivery methods and "provide for a pro-competitive, deregulatory national policy framework ... by opening all telecommunications markets to competition." H.R. Conf. Rep. No. 104-458, at 113, 1996 U.S.C.C.A.N. at 124.²

Personal wireless service was one of the "advanced telecommunications technologies" for which Congress sought "to accelerate rapidly private sector deployment." H.R. Conf. Rep. No. 104-458 at 113, 1996 U.S.C.C.A.N. at 124; see 47 U.S.C. § 332(c)(7).³ Wireless service depends on a network of facilities of sufficient height, the siting of which often is hotly debated in local communities.⁴ To facilitate the spread of this technology, the Telecommunications Act imposes procedural and substantive obligations on local zoning authorities as set out in full in the margin.⁵ It provides that local regulation may not "unreasonably discriminate" among personal wireless service providers, nor may it "prohibit or have the effect of prohibiting" the provision of personal wireless services. 47 U.S.C. § 332(c)(7)(B)(i)(II). Any decision to deny an application for a facility must be "in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). Other than as delineated in section 332(c)(7)(B), the Telecommunications Act does not "limit or affect" State or local authority with respect to zoning and land use issues. See 47 U.S.C. § 332(c)(7)(A).

The central issue in this case is whether the Telecommunications Act expressly or impliedly preempts, under the Supremacy Clause of the United States Constitution, a local law enacted by the Town of Clarkstown ("Town") establishing a rigorous application and evaluation process for requests to install, modify, or renew permits for wireless telecommunications facilities. See Chapter 251 of the Clarkstown Town Code, as amended by Local Law No. 14, enacted July 26, 2007 ("Chapter 251") [Doc. No. 30 Attachment 3]. Chapter 251's stated purpose is:

to provide the Town of Clarkstown the authority to accommodate and regulate the necessary utility infrastructure for the provision of wireless telecommunications facilities within the Town ..., to encourage the siting of wireless telecommunications facilities in nonresidential areas on existing structures, to address the safety, visual and aesthetic aspects of ... facilities and to provide for public input in the process of siting ... towers.

Chapter 251 § 251-10(B). A further purpose is to "establish clear standards for the review and siting of ... facilities." Id. The law declares the protection of residential areas from "unsightly" and "intrusive" facilities to be "of paramount importance" and provides that the town planning board must satisfy itself, before issuing a special permit for a wireless facility in a residential area, "that all other alternatives have been exhausted." Id. section 251-10(D).

To achieve its purpose, Chapter 251 establishes a multi-stage application process, starting with an initial "preapplication" stage during which an applicant must submit several pieces of information to the planning board of the Town ("Planning Board"), including, inter alia, a topographic map of the proposed site location, a diagram of the proposed site showing all lot lines and the proposed facility, the number, type and design of the antenna(s) proposed, and signal propagation or coverage maps of existing facilities around the site. Chapter 251 § 251-13. With this information and a screening value calculated through use of a preliminary site screening tool that scores criteria including aesthetic and safety impacts and landscaping, see section 251-14; Chapter 251 Table 1, the Planning Board sorts pre-applications into four categories, "A" through "D." Id. section 251-15(A).

From the applicant's perspective, Category A is best—pre-applications in this category require only Planning Board approval on aesthetic considerations, while those assigned a different category must complete a further, rigorous process to obtain a special use permit. Section 251-15(C). To obtain Category A status, a proposed facility must use a "preferred alternate technology" or be located on an existing site, and must have an acceptable minimum screening value. For example, a proposed facility using Distributed Antenna System (DAS),⁶ which is a "preferred alternate technology," see sections 251-15, 251-42, receives Category A assignment if it has a screening value of just sixty or greater, whereas a proposed co-location at an existing wireless facility or on a rooftop requires a screening value greater than 105. See sections 251-15(A)(1), 251-42. Regardless of category assignment, several provisions of Chapter 251, discussed in more detail below, require applicants to provide information about Radio Frequency (RF)⁷ interference and emissions.

Chapter 251 also sets out procedural requirements for the timing of the Planning Board's decisions and for fees. For example, the Planning Board must hold a public hearing within sixty-two days of submission of each formal application and either approve, approve with conditions, or disapprove each within sixty-two days after the hearing. Section 251-18(C-D). Chapter 251 establishes fixed application fees and requires applicants to provide funds to an escrow account "to allow the Town to retain such technical experts involving radio frequency as may be necessary to review the application." Section 251-40.

The plaintiffs contend that Chapter 251 is preempted by the explicit text of the Telecommunications Act, as well as by the implied intent of Congress.

I. PROCEDURAL HISTORY

Without having filed any application for a permit pursuant to Chapter 251, the plaintiffs, New York SMSA Limited Partnership d/b/a Verizon Wireless, New Cingular Wireless PCS, LLC, Sprint Spectrum L.P., and Omnipoint Communications, Inc., a wholly owned subsidiary of T-Mobile USA, Inc., four national wireless telecommunications service providers (collectively, "the Carriers"), filed this Complaint [Doc. No. 1] on August 28, 2007. On January 11, 2008, they moved for summary judgment [Doc. No. 25], supported by a memorandum of law ("Pls. Mem.") [Doc. No. 26].

On March 17, 2008, the Town filed a cross motion for summary judgment [Doc. No. 30] and a memorandum of law in support ("Town Mem.") [Doc. No. 32], accompanied by a Local Rule 56.1 statement ("Town Facts") [Doc. No. 30 Attachment 1] and several declarations and exhibits [Doc. No. 30 Attachments 2 through 10 and Doc. No. 34]. The Carriers opposed the Town's motion ("Pis. Opp'n") [Doc. No. 33] and submitted a response to the Town's Local Rule 56.1 statement ("Pls. Facts") [Doc. No. 33 Attachment 2]. The Town replied on May 9, 2008 ("Town Reply") [Doc. No. 35]. After the case was reassigned to this Court on December 1, 2008, the parties agreed to proceed as a case stated. By so agreeing, the parties have stipulated to a record for decision. The Court may decide any significant issues of material fact and draw all reasonable inferences from the record. See E.G. v. City Sch. Dist. of New Rochelle, No. 07-02696-WGY, ___ F.Supp.2d ___, ___ n. 2, slip. op. at 1 n. 2, 2009 WL 773960 at *1 n. 2 (S.D.N.Y. March 19, 2009). See also Boston Five Cents Sav. Bank v. Secretary of Dept. of Housing and Urban Development, 768 F.2d 5, 11-12 (1st Cir.1985) (Breyer, J.); Dickerson v. Prudential Life Ins. Co. of America, 574 F.Supp.2d 239, 241 (D.Mass.2008).

II. RULINGS OF LAW

Because the parties have stipulated to a record for decision, the Court may proceed directly to its Rulings of Law. Fed. R.Civ.P. 52(a)(1).

As the United States Supreme Court recently emphasized in Altria Group, Inc. v. Good, ___ U.S. ___, 129 S.Ct. 538, 543, ___ L.Ed.2d ___ (2008), "the purpose of Congress is the ultimate touchstone in every pre-emption case," and it may be indicated either expressly or by implication.⁸ Id. (internal quotations omitted); Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977); Clearing House Ass'n v. Cuomo, 510 F.3d 105, 113 (2d Cir.2007) ("Preemption can generally occur in three ways: where Congress has expressly preempted state law, where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room...