Up State Tower Co. v. Town of Southport

• Decision Date: 25 June 2020
• Docket Number: 6:18-CV-06445 EAW
• Citation: 468 F.Supp.3d 583
• Parties: UP STATE TOWER CO., LLC and Buffalo-Lake Erie Wireless Systems Co., LLC, Plaintiffs, v. The TOWN OF SOUTHPORT, NEW YORK, the Zoning Board of Appeals of the Town of Southport, New York, and the Planning Board of the Town of Southport, New York, Defendants.
• Court: U.S. District Court — Western District of New York

468 F.Supp.3d 583

UP STATE TOWER CO., LLC and Buffalo-Lake Erie Wireless Systems Co., LLC, Plaintiffs,

v.The TOWN OF SOUTHPORT, NEW YORK, the Zoning Board of Appeals of the Town of Southport, New York, and the Planning Board of the Town of Southport, New York, Defendants.

6:18-CV-06445 EAW

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

Signed June 25, 2020

Courtney T. DeThomas, Pro Hac Vice, Thomas Scott Thompson, Pro Hac Vice, Davis Wright Tremaine LLP, Washington, DC, Jon P. Devendorf, Michael J. Balestra, Mitchell J. Katz, Barclay Damon, LLP, Syracuse, NY, for Plaintiffs.

Alan J. Knauf, Jonathan R. Tantillo, Knauf Shaw LLP, Rochester, NY, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiffs Up State Tower Co., LLC ("Up State") and Buffalo Lake Erie Wireless Systems Co., LLC ("Buffalo Wireless") (collectively "Plaintiffs") commenced this action pursuant to the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. § 151 et seq. , as amended) ("TCA"), the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, and Articles 30 and 78 of the New York Civil Practice Laws and Rules ("CPLR"), against defendants the Town of Southport, New York ("Southport" or the "Town"), the Zoning Board of Appeals of the Town of Southport, New York ("ZBA"), and the Planning Board of the Town of Southport, New York (the "Planning Board") (collectively "Defendants"). Plaintiffs allege Defendants unlawfully denied their application ("Original Application") for a site plan approval and area variance to erect a wireless telecommunications tower. (Dkt. 1).

Presently before the Court is a motion for summary judgment brought by Defendants pursuant to Federal Rule of Civil Procedure 56 (Dkt. 44) and a motion for relief from judgment pursuant to Rule 60(b)(3) brought by Plaintiffs (Dkt. 56). For the following reasons, Defendants’ motion is granted, and Plaintiffs’ motion is denied.

BACKGROUND

The factual and procedural background of this matter is set forth in detail in the Court's Decision and Order of September 25, 2019 (Dkt. 38 (hereinafter the "D & O")), familiarity with which is assumed for purposes of the instant Decision and Order. The Court sets forth below facts relevant to the pending motions.¹

Plaintiffs filed the instant lawsuit on June 15, 2018 (Dkt. 1), and Defendants answered on August 6, 2018 (Dkt. 6). On January 31, 2019, Defendants filed a motion for summary judgment (Dkt. 22), which the Court granted in part and denied in part on September 25, 2019 (Dkt. 38). Specifically, the Court granted summary judgment in favor of Plaintiffs as to the declaratory judgment claim that certain provisions of Southport's Town Zoning Law ("Zoning Law") were unlawful under New York State law, denied summary judgment without prejudice and with leave to renew as to Plaintiffs’ claim that the fees charged and the Zoning Law allowing for those charges effectively prohibited service in violation of the TCA, and granted summary judgment in favor of Defendants on the remaining claims. (Id. at 36-37).

After the Court issued the D & O, on October 9, 2019, Plaintiffs submitted to Defendants a new application (hereinafter "New Application") for a zoning variance in order to construct a wireless facility.

(Dkt. 55-10 at ¶ 3). Defendants sent Plaintiffs a notice of incompleteness regarding the New Application on November 5, 2019, to which Plaintiffs responded on November 13, 2019. (Dkt. 44-1 at ¶ 13). On November 20, 2019, Defendants sent a revised notice of incompleteness to confirm one more item for the New Application, and Plaintiffs orally provided the information at a Zoning Board of Appeals’ meeting that same day. (Id. ).

On November 12, 2019, Southport adopted revisions to the Zoning Law governing wireless facilities, including changes to its fee provisions. (Id. at ¶¶ 14-17; Dkt. 55-10 at ¶ 4). The fees charged to Plaintiffs regarding the New Application will be pursuant to the revised Zoning Law. (Dkt. 44-1 at ¶ 18; see Dkt. 55 at 13). Defendants’ counsel "has committed to fees which will not exceed $12,000 regarding review of the New Application." (Id. at ¶ 19; Dkt. 55-10 at ¶ 4). Additionally, Defendants’ outside consultants have reaffirmed their previous estimates of $7,500 for William Johnson and $5,300 for Saratoga Associates. (Dkt. 44-1 at ¶ 20; Dkt. 55-10 at ¶ 4).

On October 25, 2019, Plaintiffs filed a notice of interlocutory appeal as to the D & O. (Dkt. 39). Defendants filed a cross appeal on November 8, 2019. (Dkt. 40). On November 29, 2019, Defendants filed a renewed motion for summary judgment. (Dkt. 44). The Court issued a Text Order on December 2, 2019, instructing the parties to submit briefing with respect to their positions on (1) whether the filing of the appeals divested the Court of jurisdiction to consider Defendants’ renewed motion for summary judgment, and (2) if not, whether further proceedings should be stayed while the appeals were pending. (Dkt. 45). Defendants filed their response on December 7, 2019 (Dkt. 46), and Plaintiffs responded on December 11, 2019 (Dkt. 48).

On December 19, 2019, the Court issued a briefing schedule with regards to Defendants’ renewed motion for summary judgment without opining on the merits of whether it retained jurisdiction over the motion. (Dkt. 50). On January 31, 2020, Plaintiffs filed their opposition to the motion for summary judgment (Dkt. 55), as well as a motion for relief from judgment (Dkt. 56). Defendants filed their reply to the motion for summary judgment on February 25, 2020 (Dkt. 58), and their response to the motion for relief from judgment on February 28, 2020 (Dkt. 59). Plaintiffs replied to the motion for relief from judgment on March 13, 2020. (Dkt. 65). On March 18, 2020, Defendants requested permission to file a surreply regarding the motion for relief from judgment (Dkt. 66), which the Court granted on March 19, 2020 (Dkt. 67). Defendants filed the surreply that same day. (Dkt. 68). Plaintiffs objected to Defendants filing a surreply, and requested permission to file a sur-surreply on March 20, 2020. (Dkt. 69). On March 26, 2020, the Court granted Plaintiffs’ request to submit a sur-surreply (Dkt. 71), which Defendants filed the same day (Dkt. 72).

On February 20, 2020, the Second Circuit granted Plaintiffs’ motion to hold the appeals in abeyance until the issuance by this Court of a decision on Plaintiffs’ motion for relief from judgment. Up State Tower Co., LLC v. Town of Southport, N.Y. , No. 19-3528, Dkt. 70-71 (2d Cir. Feb. 20, 2020).

DISCUSSION

I. Jurisdiction

As a preliminary matter, the Court must address whether the interlocutory appeals in this matter divest it of jurisdiction over the pending motions. Circuit courts have jurisdiction over "appeals from all final decisions of the district courts of the United States," 28 U.S.C. § 1291, as well as over "[i]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions," id. § 1292(a)(1). "Although it is commonly believed that the filing of a notice of appeal divests the district court of jurisdiction over a case and confers it upon the court of appeals, the notice of appeal only affects the jurisdiction of the courts over the subject matter of the appeal." In re Michaelesco , No. 3:08-CV-01766 (CSH), 2009 WL 10698308, at *1 (D. Conn. Aug. 13, 2009) (citing Griggs v. Provident Consumer Discount Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) ).

Both parties contend, and the Court agrees, that the Court retains jurisdiction to issue a decision on the pending motion for summary judgment. "The filing of a notice of appeal only ‘divests the district court of its control over those aspects of the case involved in the appeal.’ " Zhao v. State Univ. of N.Y. , 613 F. App'x 61, 62 (2d Cir. 2015) (quoting Griggs v. Provident Consumer Disc. Co. , 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) ). The Court has not yet issued a decision on the merits with regards to the claims before it in the pending motion for summary judgment. Accordingly, it retains jurisdiction over those claims. See Zhao , 613 F. App'x at 62 ("Because the fee appeal did not give [the Second Circuit] jurisdiction to consider the settlement agreement, the District Court retained jurisdiction over a motion seeking to vacate the settlement."); N.Y. State Nat'l Org. for Women v. Terry , 886 F.2d 1339, 1350 (2d Cir. 1989) ("[W]e have held that the filing of a notice of appeal only divests the district court of jurisdiction respecting the questions raised and decided in the order that is on appeal.").²

The Court also has jurisdiction over the motion for relief from judgment. Federal Rule of Civil Procedure 60(b) permits district courts to "relieve a party or party's legal representative from a final judgment." Although the Second Circuit has held that "docketing of a notice of appeal ousts the district court of jurisdiction except insofar as it is reserved to it explicitly by statute or rule," Toliver v. County of Sullivan , 957 F.2d 47, 49 (2d Cir. 1992) (quotation omitted), the Circuit has also found that a district court "may grant a rule 60(b) motion after an appeal is taken ... if the moving party obtains permission from the circuit court," Lipin v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA , No. 00 CIV.3457 LTS DFE, 2002 WL 31176862, at *2 (S.D.N.Y. Sept. 25, 2002). Additionally, the Circuit has "recognized the power of a district court to deny a Rule 60(b) motion after the filing of a notice of appeal from the judgment sought to be modified." Hyle v. Doctor's Assocs., Inc. , 198 F.3d 368, 372 n.2 (2d Cir. 1999).

In the instant matter, the parties moved for the Second Circuit to hold the appeals in abeyance until this Court issued its decision on the Rule 60(b) motion presently before it. Motion to Stay, Up State Tower Co., LLC v. Town of Southport, N.Y. , No. 19-3528, ...