Omnipoint Communications, Inc. v. Town of Lagrange

• Decision Date: 31 August 2009
• Docket Number: No. 08 Civ. 2201(CM)(GAY).,08 Civ. 2201(CM)(GAY).
• Citation: 658 F.Supp.2d 539
• Parties: OMNIPOINT COMMUNICATIONS, INC., d/b/a T-Mobile, and Omnipoint N.Y. MTA License, LLC, Plaintiffs, v. TOWN OF LaGRANGE, Town of LaGrange Zoning Board of Appeals, Town of LaGrange Planning Board, and Town of LaGrange Zoning and Building Department, Defendants.
• Court: U.S. District Court — Southern District of New York

658 F.Supp.2d 539

OMNIPOINT COMMUNICATIONS, INC., d/b/a T-Mobile, and Omnipoint N.Y. MTA License, LLC, Plaintiffs, v. TOWN OF LaGRANGE, Town of LaGrange Zoning Board of Appeals, Town of LaGrange Planning Board, and Town of LaGrange Zoning and Building Department, Defendants.

No. 08 Civ. 2201(CM)(GAY).

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

August 31, 2009.

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Gabriel Mark Nugent, Jon Patrick Devendorf, Hiscock & Barclay, LLP, New York, NY, John Donald Cook, Hiscock & Barclay, LLP, Syracuse, NY, for Plaintiffs.

Rebecca Ann Valk, Van Dewater & Van Dewater, LLP, Poughkeepsie, NY, for Defendants.

DECISION AND ORDER GRANTING IN SUBSTANTIAL PART AND DENYING IN ONE PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING IN SUBSTANTIAL PART AND GRANTING IN ONE PART DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT AND DIRECTING THE ENTRY OF A PERMANENT INJUNCTION

McMAHON, District Judge.

Under the Telecommunications Act of 1996, 110 Stat. 56, 47 U.S.C. § 332 (hereinafter "TCA"), Congress expressed a desire to provide "for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services .... by opening all telecommunications markets to competition." Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 493 (2d Cir.1999) (citing H.R. Conf. Rep. No. 104-458 at 113 (1996), 1996 U.S.Code Cong. & Admin.News. 10, 80.) In furtherance of this goal, Congress added a subsection to the National Wireless Telecommunications Siting Policy, 47 U.S.C. § 332(c)(7)(A), which imposes limits on a state or local government's decisions regarding the location, construction and modification of personal wireless facilities. Id. Although the TCA preserves traditional local zoning authority over the siting of wireless facilities, 47 U.S.C. § 332(c)(7)(A), "the method by which siting decisions are made is now subject to judicial oversight. Therefore, denials subject to the TCA are reviewed by [a] court more closely" than are other types of zoning decisions, to which federal courts generally accord great deference. Id.

Plaintiffs Omnipoint Communications, Inc., d/b/a T-Mobile, and Omnipoint N.Y. MTA License, LLC (collectively, "T-Mobile") have been attempting for some six years to fill a significant coverage gap in the Town of LaGrange. The Town has a long history of hostility to cell phone providers within its borders; the very cell tower on which plaintiffs having been trying (for five years) to co-locate the equipment that would fill the coverage gap was constructed only after a long court battle and pursuant to an order of this court (Brieant, J.). According to plaintiffs, Defendants Town of LaGrange, Town of LaGrange Zoning Board of Appeals (the "ZBA"), Town of LaGrange Planning Board (the "Planning Board"), and Town of LaGrange Planning, Zoning and Building Department (the "Building Department") (collectively referred to as the "Town")—have done everything in their power to prevent T-Mobile from co-locating on the existing tower (known as the ATC Tower), even though LaGrange's Zoning Code expresses a preference for "collocation" (the Town's spelling) over other siting solutions. Plaintiffs sue seeking an injunction to compel the Town to let it place its antennas on the ATC Tower.

Both sides have moved for partial summary judgment: plaintiffs seek a declaration that the Town Defendants, particularly the ZBA, are in violation of the TCA and of New York state law; Defendants seek dismissal of some, but not all, of the claims asserted against them.

For the reasons set forth below, plaintiffs' motion is granted except insofar as they seek summary judgment on the Ninth Cause of Action; defendants' motion is denied in all respects except insofar as they seek dismissal of the Ninth Cause of Action.

A permanent injunction directing the Town of LaGrange and any and all agencies, boards and authorities acting on its behalf to issue all necessary orders such that T-Mobile's equipment can be in service within 90 days will issue as soon as plaintiffs submit a form of order and defendants have an opportunity to comment on it.

STATUTORY SCHEME

The TCA limits state and local regulation "of the placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(B). Such regulation "(I) shall not unreasonably discriminate among providers of functionally equivalent services, and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i). Further, state and local government may not deny an application except in a written decision "supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii).

THE ADMINISTRATIVE RECORD

T-Mobile and the Town have agreed on the contents of the administrative record that existed during the consideration of T-Mobile's collocation application, a copy of which has been jointly submitted by the parties. The Court will refer to that submission in this opinion.¹

STATEMENT OF FACTS

The Code of the Town of LaGrange

Section 240-49 of the Code of the Town of LaGrange (the "Town Code") governs the siting and design of Wireless Communications Towers and Facilities. See LaGrange, N.Y., Town Code ch. 240, art. IV, § 240-49.

Section 240-49 expressly states that its purpose, among others, is to "[m]inimize the total number of communications towers located within the Town." Id. at § 240-49(A)(2). In addition, with respect to "Siting," Section 240-49 provides:

Communications facilities shall be sited, to the maximum extent feasible, on existing tall structures such as utility poles, silos, buildings, church steeples, water tanks, and the like: Applicants must demonstrate exhaustion of all reasonable efforts to site facilities on existing structures before approval shall be granted to construct a new communications tower.

Id at § 240-49(F) (emphasis added). Section 240-49 also includes a sub-section entitled "Collocation," which states:

(a) All wireless communications facility structures should be of a type and design that will maximize collocations;

(b) Collocation is required of a communications facility unless the applicant has provided clear and convincing evidence that:

[1] There are no other usable existing structures in service area.

[2] Collocation does not achieve the minimum reasonable technical needs of the proposed facility.

[3] Structural or other engineering limitations, absent reasonable refurbishment, are clearly demonstrated to be prohibitive to the proposed facility.

[4] After demonstrated thorough and good faith efforts, the applicant is unable to secure permission from another facility or structure owner to collocate.

Id. at § 240-49(G)(10) (emphasis added).

As the foregoing provisions make clear, the Town Code requires co-location of wireless services facilities in nearly every instance. An applicant may seek the installation of its facilities on something other than an existing structure only after overcoming significant hurdles.

There is a second provision of the Zoning Code that applies to wireless communications facilities. Section 240-49(G)(5)(b) prohibits "all communications facilities.... within 500 feet of any occupied residential dwelling unless expressly permitted, in writing, by all inhabitants of the dwelling within a radius of 500 feet of the proposed communication facility." A "wireless communications facility" is, "A term intended to include all of the various facilities that provide communications services, including tower, antenna, and any accessory structures or equipment designed and constructed for use by a commercial provider of such services." Town Code § 240-112. This provision—clearly intended to stop the construction of wireless facilities in as much of LaGrange as possible (perhaps in the entire town)—literally requires an applicant to obtain even the signatures of children (some of whom may not be able to write), or else to receive a variance from the ZBA.

The broad definition of "wireless communications facility" includes the antennas that the plaintiffs wish to install on the ACT Tower.

The ACT Tower and Judge Brieant's Order

This proceeding is not the first in which LaGrange has gone head to head with a wireless service provider. OmniAmerica Towers, Inc., a subsidiary of ATC, and Nextel (a competitor of T-Mobile) were forced to sue the Town after the Town denied their application for the installation of a new wireless services facility in LaGrange. ATC and Nextel had proposed to replace an existing radio tower located at 20 Vervalen Drive, on which Nextel was renting space, with a new tower on the same premises. Nextel of N.Y., Inc. v. Town of LaGrange, 02-civ-4260 (CLB) (S.D.N.Y. filed June 6, 2002).

This lawsuit was eventually settled by order of this court dated January 23, 2004. (R. 76-79.) The settlement provided, in pertinent part, that Nextel could construct a new monopole not to exceed 150 feet in height on the Vervalen site. The key paragraph of Judge Brieant's order for present purposes provides as follows:

The New Tower and the Nextel Facility shall be deemed to be legal conforming uses and structures [under the Town's Zoning Code]. However, any future modifications or additions to the New Monopole or the Nextel Facility shall comply with any existing Town Zoning Code; provided however nothing in this paragraph shall be deemed a waiver of the rights of any part or a prohibition to challenge any law, code or regulation or decisions rendered there under, with respect to any future modification of additions.

(R. 78 ¶ 4.)

The wording of this paragraph insured that the settlement applied only to Nextel's installation, leaving the Town free to fight another day against any Nextel competitors who might wish to comply with Town law by...