Omnipoint Communications v. City of White Plains

• Decision Date: 04 December 2001
• Docket Number: No. 01 Civ. 3285(CM).,01 Civ. 3285(CM).
• Parties: OMNIPOINT COMMUNICATIONS, INC., Plaintiff, v. The CITY OF WHITE PLAINS, The Planning Board of the City of White Plains, and Mary Cavallero, James Gould, J. Russell Imlay, John Garmet, Terrence Guerriere, Robert Stackpole and Juan Carlos Roskell in their capacities as members of the Planning Board of the City of White Plains, Defendants.
• Court: U.S. District Court — Southern District of New York

175 F.Supp.2d 697

OMNIPOINT COMMUNICATIONS, INC., Plaintiff, v. The CITY OF WHITE PLAINS, The Planning Board of the City of White Plains, and Mary Cavallero, James Gould, J. Russell Imlay, John Garmet, Terrence Guerriere, Robert Stackpole and Juan Carlos Roskell in their capacities as members of the Planning Board of the City of White Plains, Defendants.

No. 01 Civ. 3285(CM).

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

December 4, 2001.

COPYRIGHT MATERIAL OMITTED

Robert I. Bodian, C. Anthony Mulrain, Lara M. Burnazian, Mintz Levin Cohn Ferris Glovsky and Popeo, PC, New York City, Joseph Maria, White Plains, New York.

MEMORANDUM, DECISION AND ORDER

McMAHON, District Judge.

Omnipoint Communications, Inc. ("Omnipoint") brings this action against the City of White Plains and its Planning Board (the "Board"), alleging violations of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (the "TCA"), Article 78 of The New York Civil Practice Laws and Rules, and 42 U.S.C. § 1983, for the Board's denial of Omnipoint's application for a permit to build a 150 foot monopole, with antennas and associated equipment, on certain premises owned by the Fenway Golf Club, located on Old Mamaroneck Avenue in the City.

Omnipoint alleges a violation of Section 704 of the TCA, 47 U.S.C. § 332(c)(7)(B)(iii), alleging that the Board's decision was not supported by substantial evidence (Count I); a violation of 47 U.S.C. § 332(c)(7)(B)(i)(I) for defendants' "unreasonable discrimination" against Omnipoint (Count II); a violation of 47 U.S .C. § 332(c)(7)(B)(i)(II) for defendants' "prohibit[ion] of the provision of personal wireless services" (Count III); a violation of 47 U.S.C. § 332(c)(7)(B)(ii) for defendants' unreasonable delay in its processing of Omnipoint's Application (Count IV); a violation of Civil Practice Laws and Rules Article 78 for the defendants' abuse of discretion in its denial of the Application (Count V); and, a violation of 42 U.S.C. § 1983 for defendants' violation of Omnipoint's rights, privileges, or immunities under the TCA (Count VI). Omnipoint sues for injunctive relief, declaratory relief, damages, costs and attorney's fees.

Omnipoint moves for partial summary judgment under Count I of its Complaint. Defendants cross-move for summary judgment to dismiss all six counts in Omnipoint's complaint.

For the reasons stated below, plaintiff's Motion for Partial Summary Judgment as to Count I is granted. Defendants' Motion for Summary Judgment as to Counts III, IV and V is granted. Defendants' Motion for Summary Judgment as to Count II is denied. Count VI is subsumed into Counts I and II.

FACTS PERTINENT TO THE MOTION

A. Local Rule 56.1(d)

Plaintiff has moved to strike defendant's Response to plaintiff's Rule 56.1 Statement of Facts and to deem defendants' unsupported general denials as admissions. Defendants failed to reply to plaintiff's motion to strike, and have supplied no explanation for this failure.

Local Rule 56.1(d) provides that "material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by opposing parties." In their response, defendants make general denials, and fail to, despite the voluminous record supplied by plaintiff in this matter, provide any record support or other basis for these denials. The Court is permitted to disregard such general denials when not supported by citations or if cited materials do not support factual assertions. See Watt v. New York Botanical Garden, Civ. No. 98-1095(BSJ), 2000 WL 193626, at *1 n. 1 (S.D.N.Y. Feb. 16, 2000); see also Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 292 (2000) (noting that statements filed under Local Rule 56.1 by party opposing summary judgment must be accompanied by citation to admissible evidence).

In their Response, defendants generally denied 41 of plaintiff's 61 statements of fact. The rest are admitted. They provided no record support for these denials. Defendants' unsupported general denials are not only unhelpful, they are misleading. For instance, defendants denied ¶ 21 of plaintiff's 56.1 Statement, which states: "[S]ection 1.3 of the Ordinance, setting forth the purposes of the Ordinance specifically provides that one purpose of the Ordinance is `[t]o regulate and restrict the location of trades and industries in the location of `buildings' designed for specified `uses,' and for said purposes to divide the City into districts and to prescribe for each such district the trades and industry that shall be excluded or subjected to special regulation and the `uses' for which `buildings' may not be erected or altered.'" Plaintiff cited to the City of White Plains Zoning Ordinance located in the Record at pages 1262-63 (the "Zoning Ordinance"). Except for one small and inconsequential typographic error (sentence should read "and the location of `buildings'," not "in the location of buildings"), Omnipoint accurately quotes the Zoning Ordinance.

Defendants submitted a counter-statement of facts in support of their cross-motion for summary judgment. It it, they affirmatively pled statements of fact they had previously denied. For example, ¶ 7 of plaintiff's Rule 56.1 Statement avers: "On or about June 1, 2000, Omnipoint submitted the Application to the Board. The Application was submitted in accordance with Section 2.4 (Definitions), Section 6.2.25 (Special Permit Uses), and as required by Section 5.2 (List of Use regulations), Section 6.4 (Review Procedures), Section 6.5 (Standards), and Section 6.7.12 (Public Utility Standards) of the Ordinance." In their Response, defendants denied this paragraph. Yet, ¶ 5 of defendants' Rule 56.1 statement repeats this language verbatim.

This District has adopted Local Rule 56.1(d) for a reason: to supply the Courts with an accurate factual record and to prohibit parties from taking the kind of misleading and unfair "shortcuts" (i.e., unsupported denials) as defendants have used here. I will, therefore, accept all of plaintiff's proposed facts as true for purposes of this motion. See Watt, Civ. No. 98-1095(BSJ), 2000 WL 193626, at *1 n. 1; Monahan, 214 F.3d at 292.

B. Pertinent Facts

The following facts are taken from Plaintiff's Statement of Undisputed Material Facts made pursuant to Local Rule 56.1, such of Defendants' Statement of Undisputed Material Facts that are admitted by plaintiff, and the substantial record before the Court.

Omnipoint provides integrated wireless personal communication services ("PCS") through a national wireless network using PCS technology. [Pl. Facts, ¶ 1.] Omnipoint received a PCS wireless broadcast license from the Federal Communications Commission ("FCC") for several cities, including the New York Metropolitan area. White Plains is part of this area.

The defendant Planning Board is an agency of the City of White Plains, and the individually named defendants are all members of this Board, having been appointed by the Mayor of White Plains. [Def. Facts, ¶ 3.] The Board has the delegated authority to grant applications for special permits and site development approval under the City of White Plains Zoning Ordinance (the "Zoning Ordinance").

Based upon Omnipoint's research and analysis, and as part of an extensive site review, Omnipoint determined that a 150 foot unmanned telecommunications monopole, with associated equipment (the "Facility") was needed in order to fill a gap in its coverage in the City of White Plains. [Pl. Facts, ¶¶ 1 & 2.] The proposed type of monopole is designed to look like a tree, and the antennas on such a monopole are "hidden" or camouflaged. [Pl. Facts, ¶ 3.] At some point in 2000, Omnipoint entered into an agreement with Fenway Golf Club to lease space for the Facility.

1. The Application and Hearing Process

On or about June 1, 2000, Omnipoint submitted its Application to the Board requesting a special permit and any and all other necessary permits to construct the Facility. This Application complied with all of the requirements set out in the Zoning Ordinance. [Pl. Facts, ¶ 7.] Section 4.4.15.2 exempts Omnipoint's 150 foot monopole from the height limitations contained in the Ordinance. [Pl. Facts, ¶ 8.] As part of its Application, Omnipoint provided visual simulations of the proposed structure from various viewpoints. [Pl. Facts, ¶ 5.] Omnipoint presented evidence that the surrounding residential neighborhood is buffered by a mature and deciduous tree line. Id. It asserted that this natural buffer combined with the camouflaged monopole would mitigate the visual impact of the Facility to the greatest extent possible. Id. It showed that the greatest visual impact would be on the Fenway Golf Course itself, the lessor of the property. Id.

The Board held public hearings on the Application on July 11, 2000, September 12, 2000, October 10, 2000, November 14, 2000, December 19, 2000, January 16, 2001, February 13, 2001 and March 20, 2001. During the course of these hearings, extensive evidence, through both submitted reports and oral testimony, was presented to the Board on behalf of both Omnipoint and those residents opposed to the construction of the Facility.

(a) Gap in coverage evidencing a "public necessity"

Section 6.7.12.1 of the Zoning Ordinance requires a finding that a "public necessity" exists for the erection of the Facility. In its Application, Omnipoint submitted an engineering report written by Richard A. Conroy a senior Radio Frequency Engineer at Omnipoint. The Report explained, with the aid of maps and charts, that there was a gap in Omnipoint's coverage in the White Plains area. It analyzed the possible construction of monopoles at various sites in the community, and determined whether a monopole at a particular site would close the coverage gap. The report concluded that a facility located at the Golf Course "is necessary to provide coverage [necessary to close the gap] as...