Up State Tower Co. v. Town of Southport
| Decision Date | 25 September 2019 |
| Docket Number | 6:18-CV-06445 EAW |
| Citation | 412 F.Supp.3d 270 |
| 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 |
Jon P. Devendorf, Michael J. Balestra, Mitchell J. Katz, Maria Mastriano, Barclay Damon, LLP, Syracuse, NY, for Plaintiffs.
Alan J. Knauf, Jonathan R. Tantillo, Knauf Shaw LLP, Rochester, NY, for Defendants.
DECISION AND ORDER
Plaintiffs Up State Tower Co., LLC ("Up State") and Buffalo Lake Erie Wireless Systems Co., LLC ("Buffalo Wireless") (collectively "Plaintiffs") bring this action pursuant to the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 () ("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"), 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 for a site plan approval and area variance to erect a wireless telecommunications tower. (Dkt. 1).
Presently before the Court is the motion for summary judgment brought by Defendants pursuant to Federal Rule of Civil Procedure 56. (Dkt. 22). For the following reasons, Defendants' motion is granted in part and denied in part. Specifically, the Court grants summary judgment in favor of Plaintiffs as to the declaratory judgment claim that certain provisions of Southport's Town Zoning Law are unlawful under New York State law, denies without prejudice the summary judgment motion as directed to Plaintiffs' claim that the fees charged and the provisions of the Town Zoning Law allowing for those charges effectively prohibited service in violation of the TCA, and otherwise grants summary judgment in favor of Defendants on the remaining claims.
The following facts are drawn from Defendants' Statement of Material Facts (Dkt. 22-6) ("Defendants' Statement"), Plaintiffs' Response to Defendants' Statement of Undisputed Facts (Dkt. 26-10) ("Plaintiffs' Statement"), and the underlying Administrative Record (Dkt. 6).
On December 12, 2017, Plaintiffs submitted an application (the "Application") to construct a telecommunications tower (the "Tower") within Southport at the easterly terminus of Morley Place on property further identified as tax parcel number 109.07-5-45. (Dkt. 22-6 at ¶¶ 1-2). Plaintiffs submitted 18 copies of the Application. (Dkt. 26-10). On December 26, 2017, Defendants contacted Plaintiffs to ask where to send the special counsel bills generated from processing the Application, and Plaintiffs provided a billing address. (Dkt. 6-3 at 2).
The Application described the proposed project as a 160-foot "self-support telecommunications facility" that would be "surrounded by a fenced compound" and setback 47.59 feet from the western property line and 18.5 feet from the eastern property line. (Id. at ¶¶ 4, 8). The plans submitted with the Application also included a five-foot lightning rod (Dkt. 26-10 at ¶ 6), making the total height of the Tower 165 feet (Dkt. 22-6 at ¶ 6). Town of Southport Zoning Law ("Town Zoning Law") § 525-109(D) allows a maximum structure height of 120 feet and requires a setback of "[t]he tower height plus 1/2 the diameter" of an antenna installed above the tower. (Id. at ¶ 5 (alteration in original)). Thus, the Tower required a height and setback variance under the Town Zoning Law. (Id. at ¶¶ 7-8).
On January 2, 2018, the Planning Board held a meeting where Defendants requested that Plaintiffs clarify the height of the tower due to the discrepancy between the Application and the plans submitted with it, and Plaintiffs informed Defendants that the total height would be 165 feet.1 (Dkt. 6-1 at 107; Dkt. 22-6 at ¶ 9; Dkt. 26-10 at ¶ 9). During the week of January 1, 2018, Defendants requested seven additional copies of the Application. (Dkt. 22-6 at ¶ 3). Plaintiffs submitted the additional copies on January 9, 2018. (Id. ). The ZBA then held a meeting on January 17, 2018, where it advised Plaintiffs to provide additional information before the next month's meeting, including an assessment of alternative locations, evidence that Plaintiffs made attempts to co-locate on an existing tower, and reasons that co-location on different towers was not feasible. (Dkt. 22-6 at ¶ 10). Plaintiffs stated they would provide the information as soon as possible, but that they could not provide it before the February 5, 2018, Planning Board meeting. (Id. at ¶¶ 12, 14).
At the February 5, 2018, meeting, Plaintiffs requested that the Planning Board declare itself the lead agency under the State Environmental Quality Review Act ("SEQRA") and that Defendants adjourn discussion of the Application to a different date. (Dkt. 6-3 at 13). The Planning Board declared itself as the lead SEQRA agency. (Dkt. 22-6 at ¶ 15). The next day, because of the time it was taking for Plaintiffs to respond to the document requests, Defendants asked Plaintiffs whether they would consider extending the Shot Clock.2 (Id. at ¶ 16). The Shot Clock was set to expire on May 11, 2018. (Dkt. 22-6 at ¶ 38). Plaintiffs declined, stating that they wanted to "wait a month or so and see where things stand after the public hearing" (id. at ¶ 17), and requested that a joint public hearing of the ZBA and the Planning Board not be held until at least March 12, 2018 (id. at ¶ 18). A joint public hearing was scheduled for March 21, 2018. (Id. at ¶ 23).
On February 14, 2018, Defendants emailed Plaintiffs the "Special Consultant Fees Escrow Agreement" and requested that Plaintiffs withdraw the Application as incomplete and resubmit it. (Dkt. 6-3 at 26; Dkt. 22-6 at ¶¶ 19-20). The next day, Plaintiffs emailed Defendants to assert that because Defendants failed to inform Plaintiffs in writing within 30 days of the Plan's submission that the Application was incomplete, the Shot Clock rules required that the Application be deemed complete. (Dkt. 6-3 at 28; Dkt. 26-10 at ¶ 20). Plaintiffs also requested itemized copies of Defendants' invoices to date and a copy of any scope of work and fee schedule submitted by the Town's retained radiofrequency engineer. (Dkt. 6-3 at 28). Defendants responded on February 15, 2018, again requesting that Plaintiffs toll the Shot Clock, and sending the engineer's proposal. (Id. at 30).
Also on February 15, 2018, the County Planning Board resolved that: (1) Southport should discuss the visual impacts of the Tower with Plaintiffs and request it be as visually unobtrusive as possible; (2) Plaintiffs should submit a decommissioning plan; (3) Plaintiffs should use the appropriate radiofrequency threshold for the general public; and (4) Plaintiffs should provide data showing that co-location on an existing tower is not an option. (Dkt. 22-6 at ¶ 21).
On February 16, 2018, Defendants sent Plaintiffs the proposal from their visual impacts expert and their town counsel's January invoice. (Dkt 6-3 at 37, 45). Three days later, Defendants requested a list of items to be provided "with sufficient time" for Defendants' experts to review before the March 21, 2018, meeting. (Id. at 55). On February 27, 2018, March 5, 2018, and March 6, 2018, Defendants followed up with Plaintiffs regarding the proposed escrow agreements and the funds to be deposited. (Id. at 71-73). Defendants also requested that Plaintiffs produce the supplemental documents by March 12, 2018. (Id. at 73). Plaintiffs informed Defendants that they had "significant concerns with respect to the current and anticipated fees for this project." (Id. at 74).
On March 7, 2018, Plaintiffs asked for leave to submit soft copies of the escrow agreement and requested documents on March 12, 2018, and hard copies the next day, and Defendants agreed. (Id. at ¶¶ 25-26). On March 12, 2018, Plaintiffs' counsel told Defendants that the documents would not be ready in time and that Plaintiffs would be willing to extend the Shot Clock if necessary. (Id. at ¶ 27; Dkt. 26-10 at ¶ 27). Defendants recommended that Plaintiffs withdraw the Application and resubmit it once they had prepared the documents. (Dkt. 22-6 at ¶ 28).
On March 17, 2018, Defendants advised Plaintiffs that if payment was not received for the legal fee invoices, then Defendants "will need to think about denying the [A]pplication due to failure to comply with SEQRA and collections proceedings." (Dkt. 6-3 at 101). Plaintiffs' counsel replied on March 20, 2018, to ask for unredacted copies of the invoices, which Defendants refused to do, claiming attorney-client privilege. (Id. at 103, 105). Instead, Defendants sent redacted invoices, edited to indicate whether the redactions were attorney-client communications or work product, and requested that Plaintiffs pay the January invoice immediately and the February invoice within 30 days. (Id. at 108). The January invoice totaled $12,892.18, and the February invoice totaled $11,943.00. (Dkt. 6-1 at 218, 221). On March 26, 2018, Plaintiffs' counsel informed Defendants that Plaintiffs had been advised of the invoices. (Dkt. 6-3 at 111).
On April 16, 2018, Plaintiffs emailed a letter to Defendants objecting to the legal fees and declining to enter into the escrow agreement sent by Defendants. (Dkt. 6-1 at 231-33; Dkt. 6-3 at 123). Defendants responded to Plaintiffs' counsel the same day, stating Southport was "willing to reduce the fees, rather than drag this out any further." (Dkt. 6-3 at 124). After the reduction, the fees for Defendants' attorney totaled $22,362.77. (Dkt. 6-1 at 222, 224, 227, 230).
On April 17,...
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