Orange County-Poughkeepsie Ltd. P'ship v. Town of E. Fishkill

• Decision Date: 30 January 2015
• Docket Number: Case No. 13–CV–4791KMK.
• Citation: 84 F.Supp.3d 274
• Parties: ORANGE COUNTY–POUGHKEEPSIE LIMITED PARTNERSHIP, d/b/a Verizon Wireless, et al., Plaintiffs, v. The TOWN OF EAST FISHKILL, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

84 F.Supp.3d 274

ORANGE COUNTY–POUGHKEEPSIE LIMITED PARTNERSHIP, d/b/a Verizon Wireless, et al., Plaintiffs

v.The TOWN OF EAST FISHKILL, et al., Defendants.

Case No. 13–CV–4791KMK.

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

Signed Jan. 30, 2015.

Scott P. Olson, Esq., Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany, NY, for Plaintiff Orange County–Poughkeepsie Limited Partnership, d/b/a Verizon Wireless.

Christopher B. Fisher, Esq., Andrew P. Schriever, Esq., Anthony B. Gioffre, III, Esq., Cuddy & Fedder, LLP, White Plains, NY, for Plaintiff Homeland Towers, LLC.

Paul Edward Svensson, Esq., Hodges, Walsh & Slater, L.L.P., White Plains, NY, for Defendants.

OPINION & ORDER

KENNETH M. KARAS, District Judge.

Plaintiffs, Orange County–Poughkeepsie Limited Partnership d/b/a Verizon Wireless (“Verizon”) and Homeland Towers, LLC (“Homeland”), bring this Action against Defendants, the Town of East Fishkill (“East Fishkill”) and the Town of East Fishkill Zoning Board of Appeals (the “Board”) (collectively, the “Town”), under Section 704 of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B) (the “Telecommunications Act” or the “TCA”), and Article 78 of the New York Civil Practice Law and Rules, N.Y. C.P.L.R. § 7803 (“Article 78”). Plaintiffs' claims arise from the Town's denial of Plaintiffs' application for a special permit, together with a 40–foot height variance and a wetland/watercourse disturbance permit, to install a wireless telecommunication facility. Plaintiffs move for summary judgment. For the following reasons, Plaintiffs' Motion is granted.

I. BACKGROUND

A. Factual History

1. The Application

Plaintiff Verizon is licensed by the Federal Communications Commission (“FCC”) to provide wireless telephone services throughout the State of New York, (see Pls.' Local Civil Rule 56.1 Statement (“Pls.' 56.1”) ¶ 61 (Dkt. No. 21); Decl. of Andrew P. Schriever in Supp. of Pls.' Mot. for Summ. Judgment (“Schriever Decl.”) Ex. C, Administrative Record (“Admin. R.”) 66, 1471 (Dkt. No. 22)), and Plaintiff Homeland is a business that constructs tower facilities for personal wireless services, (Pls.' 56.1 ¶ 62).¹ Plaintiffs seek to construct a new wireless telecommunications facility consisting of an approximately 150 foot tall monopole (the “Monopole” or the “Tower”) and associated equipment and installations (together the “Facility”), (Pls.' 56.1 ¶ 11; Admin. R. 119, 1491), at 23 Dartantra Drive, Hopewell Junction, New York, 12533 located in the Town's R–1 (Residential) Zoning District (the “Site”), (Pls.' 56.1 ¶ 7; Admin. R. 1491).

Under the Town of East Fishkill's Zoning Code (the “Code”), a special permit issued by the Board is required for the construction of a wireless communication facility within the R–1 (Residential) Zoning District. (Pls.' 56.1 ¶ 8; Defs.' Resp. to Pls.' Statement of Facts (“Defs.' 56.1 Resp.”) ¶ 8 (Dkt. No. 25); Schriever Decl. Ex. D, Code (“Code”) § 194–78(A).) Moreover, as provided by § 194–84(D)(6)(c) of the Code, the maximum height of a freestanding tower in a residential area is 110 feet. (Pls.' 56.1 ¶ 10; Code § 194–84(D)(6)(c).) East Fishkill is serviced by Verizon, AT & T, Sprint, and T–Mobile wireless service providers. (Admin. R. 689.)

On November 28, 2011, Plaintiffs submitted their joint application with a detailed cover letter to the Town for a special permit with requests for a 40 foot height variance and a wetland/watercourse disturbance permit to install the Facility on the Site pursuant to §§ 194–76 through 194–84 of the Code (the “Application”). (Pls.' 56.1 ¶ 3; Admin. R. 22, 33–34.) In the Application, Plaintiffs explained that the purpose of constructing the Facility is “to provide reliable wireless service along the Taconic State Parkway and Route 82 as well as the surrounding local roads, residences, and businesses located in the vicinity of [the Site].” (Admin. R. 22.) Similarly, Plaintiffs asserted that the Facility “will meet the primary objectives of Verizon Wireless'[s] target area because it will provide reliable wireless signal coverage to a significant portion of one of Verizon Wireless'[s] critical gaps in service coverage in the Town of East Fishkill, and offer new and improved service coverage” in three “spectrums.” (Id. at 45.) To support their assertions, Plaintiffs relied on a Radio Frequency (“RF”) Analysis and Statement of Need, dated November 15, 2011, (the “Initial RF Analysis”) prepared by Johnathan Edwards (“Edwards”), a Verizon Wireless Radio Frequency Design Engineer. (Id. at 43, 45–46, 49.)

In the Application, Plaintiffs described the Site as “an approximately sixteen (16) acre property ... consisting of underdeveloped forested land and a small wetland area and associated intermittent watercourse along its northern portion.” (Id. at 22.) The Application explained that the Monopole “will be engineered to accommodate [the Facility], as well as the future co-location of up to five (5) additional wireless carriers.” (Id. at 22–23.) Plaintiffs proposed to install twelve panel antennas at a centerline height of approximately 146 feet above grade level (“AGL”) on the Monopole (the “Antennas”), as well as an associated unmanned equipment shelter and a Global Positioning Satellite (“GPS”) system within the fenced-in compound. (Pls.' 56.1 ¶ 12; Admin. R. 23, 1492.) The Monopole is situated within an associated 65 foot by 78 foot fenced compound. (Pls.' 56.1 ¶ 11.)²

Plaintiffs explained to the Board how, in their view, the Facility and the Site conformed with the Code and the Telecommunications Act. (Admin. R. 23–24.) Plaintiffs advised the Board that “[b]ased on an extensive search of the area, [Plaintiffs] have confirmed that there are no available existing tall structures or towers that meet Verizon's radio frequency needs for purposes of providing reliable wireless coverage to the targeted area in the Town.” (Id. at 24.) To support their conclusion, Plaintiffs submitted a Site Selection and Alternate Site Analysis, prepared by Homeland (the “ASA”). (Id. at 121–25.) The ASA listed three alternative existing structures and ten alternative new tower sites that were evaluated, and concluded that “the proposed Site was selected as the optimal location because it met the criterion for site selection better than any other available property in the geographic area where the need for wireless service exists.” (Id. at 124).

Plaintiffs also advised the Board that because of its location and surrounding vegetation, the Facility “has been designed and sited with the goal of minimizing potential impacts on the surrounding area.” (Pls.' 56.1 ¶ 14; Admin. R. 24.) Moreover, the Application stated that the Site “complies with the parameters for the development of new towers” as provided by the Code. (Pls.' 56.1 ¶ 15; Admin. R. 124.) Specifically, Plaintiffs explained that the Facility “is located on a very large[ ] and well vegetated property in the R–1 zone, that provides excellent distance from residential homes,” the location “should minimize the potential visual impacts on these properties,” the “foliage should ... provide a natural cover that reduces the appearance of the tower from many perspectives,” and “[a]lthough the Site is located in relatively close proximity to the [Taconic State Parkway], it will be setback a substantial distance from certain scenic areas and ridge lines identified in the Code, including the intersection of Route I–84 and the Taconic State Parkway, the Appalachian National Scenic Trail, Hosner Mountain, Stormville Mountain and the Mountains of Wiccopee.” (Pls.' 56.1 ¶ 15; Admin. R. 124–25.) Plaintiffs also submitted a photograph of the Site to the Board. (Pls.' 56.1 ¶ 16.)

As relevant to their request for a height variance, Plaintiffs submitted that the Facility—“designed at a height of one-hundred and fifty (150) feet, with Verizon's antennas located at a centerline height of one-hundred and forty-six (146) feet,” (Admin. R. 25)—will “enable Verizon to provide the requisite service to its customers living in and traveling through the targeted area,” (Id. at 26). Moreover, Plaintiffs stated that “by designing the facility to accommodate the future collocation of up to five (5) additional wireless carriers, Homeland is complying with the intent of the Wireless Law by minimizing the potential need for future communication towers in this portion of the Town.” (Id. ) To support their assertions, Plaintiffs relied on the Initial RF Analysis. (Id. at 27, 46–47.)

The Application also requested a wetland/watercourse disturbance permit based on the September 19, 2011 wetlands investigation of the Site conducted by Tectonic Engineering & Surveying Consultants, P.C. (“Tectonic”), which found that “certain federal and town regulated freshwater wetlands and an associated intermittent watercourse are located within and around the proposed project area.” (Id. at 28, 133.)

Attached to the Application, Plaintiffs submitted: (1) a deed demonstrating ownership of the underlying premises, (id. at 29, 38); (2) the Initial RF Analysis, which included several RF signal propagation maps and images depicting the Site, and copies of Verizon's FCC Licenses, (id. at 29, 43); (3) an Antenna Site FCC RF Compliance Assessment and Report prepared by Pinnacle Telecom Group, dated October 26, 2011, explaining that the radio frequency emissions associated with the proposed Facility will not exceed federal or state regulations (the “FCC RF Compliance Report”), (id. at 29, 71); (4) a Full Environmental Assessment Form (“EAF”) and Visual EAF Addendum, dated October 25, 2011, prepared by Tectonic, (id. at 29, 95); (5) a letter dated October 14, 2011 certifying that the proposed Tower will be designed and constructed in accordance with applicable standards, (id. at 29, 119); (6) the ASA, (id. at 29, 121); (7) a letter from Homeland dated October 27, 2011 confirming that Homeland will coordinate to rent or lease available space on the Monopole to other telecommunications providers in the...