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LUCAS v. PLANNING BD. OF LAGRANGE

May 19, 1998

DIETER LUCAS, DANA LUCAS, GLENDON FRASER, JAMES BISCEGLIA, KRISTEN BISCEGLIA, JOSEPH DIPALO, NORMAN MACKAY, ROBERT TAFT, ELIZABETH PIERSON, NEIL PIERSON, ALFRED HEBERT, JOHN BRADBURY, JUDITH BRADBURY, and DR. SUSAN GRENELL, Plaintiffs, against THE PLANNING BOARD OF THE TOWN OF LAGRANGE, THE ZONING BOARD OF APPEALS OF THE TOWN OF LAGRANGE, JOACHIM S. ANSORGE, TOWN OF LAGRANGE PLANNER AND ZONING ADMINISTRATOR and SAMUEL SCHAFFER, TOWN OF LAGRANGE BUILDING INSPECTOR, DUTCHESS COUNTY CELLULAR TELEPHONE COMPANY, INC. d/b/a/ CELLULAR ONE, ORANGE COUNTY - POUGHKEEPSIE MSA LIMITED PARTNERSHIP d/b/a/ BELL ATLANTIC MOBILE, Defendants.


The opinion of the court was delivered by: BRIEANT

MEMORANDUM & ORDER

 Brieant, J.

 Presently before the Court for decision is (1) plaintiffs' motion for remand of this action to state court; (2) defendants' cross-motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6); and (3) defendants' oral cross-motion for a declaratory judgment to enjoin all present and future collateral attacks on the validity of a prior consent judgment entered by this Court. See Transcript and see Doc. No. 6 in Orange County-Poughkeepsie MSA Limited Partnership, et al. v. McCluskey et al., 97 Civ. 8650 (S.D.N.Y.) (Brieant, J.) (hereinafter the "BAM Action "). The motions were heard and fully submitted on April 17, 1998, and decision was reserved. See Transcript. After considering the issues raised by these motions, the Court concludes: (1) that remand to state court would be inappropriate; (2) that plaintiffs' claims are without merit; and (3) that defendants' motion for a declaratory judgment must be granted. A permanent injunction shall issue enjoining all collateral attacks on the validity of this Court's Consent Judgment.

 Background

 A. Prior Proceedings: The BAM Action

 In April of 1997, Orange County-Poughkeepsie MSA Limited Partnership d/b/a/ Bell Atlantic Mobile ("BAM") and Cellular One ("Cell-One") (collectively the "Phone Companies" or the "Companies") both applied independently to the Town of LaGrange for the necessary permits and approvals (the "Permits") to construct two separate telecommunications towers. See BAM Action Complaint at P28-P29. BAM applied for the Permits necessary to erect a 125 foot tower at a site which it calls the Freedom Plains Site, located in the Town of La Grange in Dutchess County. Cell-One applied for the Permits required to erect a 180 foot tower at a different site nearby, also in the Town of LaGrange.

 Both BAM and Cell-One are licensed to provide cellular telephone service by the Federal Communications Commission (the "FCC") under the Federal Communications Act of 1934, § 1 et seq., 47 U.S.C.A. § 151 et seq., as amended by the Federal Telecommunications Act of 1996, 47 U.S.C.A. § 332 (West 1998). That Act announces the federal policy of promoting the availability, "so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communications service with adequate facilities at reasonable charges, for the purpose of national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication." 47 U.S.C. § 151.

 At the time of the BAM and Cell-One applications, the only cellular facility existing in the Town of LaGrange was a single 150 foot tower, erected by BAM with the Town's approval in 1987, and located on Industry Street. Id. at P25, P26. The new BAM and Cell-One applications were based on objective radio frequency calculations which demonstrated that the cellular coverage provided by the existing tower was inadequate for the Town of LaGrange as a whole. Id. at P21, P27.

 The Town Board, Planning Board, Zoning Board and Town Planner and Zoning Administrator (collectively the "Town") all were involved in considering the two new independent tower proposals. From the outset, the Town presumed that the Phone Companies applications would bring the New York State Environmental Quality Review Act ("SEQRA") into play. See Environmental Conservation Law ("ECL") § 8-0101 et seq. SEQRA requires local planning boards to consider the potential environmental impact of a proposed "action" project before gra nting site plan approval, see 6 N.Y.C.R.R. § 617.1; ECL 8-0103, subd. 7. The statutory scheme attempts to achieve this substantive goal by designating the public agency most significantly involved in a particular project as the "lead" agency and by obliging that body to go through a series of procedures intended to compel consideration of the environmental consequences of any determination which finally approves the project. The visual impact of a proposed project is one of the environmental factors that is properly considered within the SEQRA process. Weok Broadcasting Corp. v. Planning Board of the Town of Lloyd, 79 N.Y.2d 373, 592 N.E.2d 778, 583 N.Y.S.2d 170, 173 (1992); see also 6 NYCRR 617.2 [B][1] (defining an "action" as including all "projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure." (emphasis added)).

 As early as possible in the SEQRA process, the "lead" agency, see ECL 8-0111, subd. 6, must determine whether an Environmental Impact Statement ("EIS") should be prepared with reference to the proposal submitted. See ECL 8-0109, subd. 4; 8-0111, subd. 6. This determination is made according to whether a contemplated action falls within the definitions of "Type I actions," "Type II actions," or "unlisted" actions. 6 NYCRR 617.6[a][1]). "Type II actions" are those which "have been determined not to have a significant impact on the environment or are otherwise precluded from environmental review." See 6 NYCRR 617.5[a]. If an action falls within the Type II category, the lead agency has "no further responsibilities" under the SEQRA regulations. See 6 NYCRR 617.6[a][i].

 On the other hand, "Type I actions" are those that will likely have a significant adverse impact on the environment, and ultimately require compilation of an EIS. The consequence of an "action" falling within Type I, or of its being "Unlisted," is that an "environmental assessment form" must be compiled, see 6 NYCRR 617.6, and a determination made as to whether the action "may include the potential for at least one significant adverse environmental impact." See 6 NYCRR 617.7[a]. If the lead agency determines that that is the case, that agency issues a "positive declaration" and either the agency or the applicant--at the latter's option--must prepare a draft environmental impact statement ("DEIS"). See ECL 8-0109, subds. 2, 4; 6 N.Y.C.R.R. §§ 617.7.

 If the draft statement is accepted by the agency "as satisfactory with respect to scope, content and adequacy," it is then circulated to any other agencies having an interest in the proposal, and "interested members of the public." see ECL 8-0109, subds. 4, 5; 6 NYCRR 617.8[b], 617.10). After allowing a period for comment, the lead agency must prepare a final environmental impact statement ("FEIS") and circulate it in the same manner as the draft statement. See ECL 8-0109, subds. 4, 5, 6; 6 NYCRR 617.10[h]. Upon adoption of the proposal by the lead agency, it is required to make explicit written findings that (1) the requirements of SEQRA have been met, and (2) adverse environmental effects revealed in the EIS process will be minimized or avoided to the maximum extent possible. See ECL 8-0109, subd. 8; 6 NYCRR 617.9[c].

 In this case, in response to the initial applications by BAM and Cell-One, the Town invoked its SEQRA obligations to indicate that its preference was for a single co-located tower on which both BAM and Cell-One would fix their antennae. After a period of consultation with all parties, the Phone Companies agreed to propose a single co-located tower (the Tower") with a height of 180 feet at BAM's Freedom Plains Site.

 In preparation for that proposal, BAM conducted a balloon test to ascertain the visual impact of constructing such a Tower. See BAM Action Complaint at P38. BAM also created a "visual study" which "included a cross section analysis of where the tower would be visible, five photographs from five key view points in the Town within computerized photo realistic simulations of the proposed 180' foot tower, a viewshed map, identification of the distance from the tower to the key locations indicating the character of the visual impact . . . and a description of the land uses in the areas where the tower would be visible." On the basis of this analysis, BAM concluded that "all significant views [of the Tower] in the foreground range (0-1/4 mile) [would be] blocked by vegetation and/or topography." BAM Action Complaint at P95(b). The results of BAM's analysis of the visual impact of the Tower were submitted to the relevant Town authorities.

 It appears that at some early point in the process, the Town determined to oppose the construction of the Tower under all circumstances. While BAM was preparing its analysis, the Town, unbeknownst to the Phone Companies, undertook to do its own independent study, which included a balloon test by the Town Engineer. The results of that test were written up in what was termed a "Visual Impact Analysis." At the October 21, 1997 hearing to consider whether to issue a positive declaration under SEQRA, a Town Engineer summarized the Visual Impact Analysis for the Town Planning Board and recommended that the Board adopt a positive SEQRA declaration. The Phone Companies had not been provided with a copy of the Visual Impact Analysis, and objected to its admission. Nevertheless, relying on the Analysis as its sole justifying evidence, the Town Planning Board issued a positive SEQRA declaration.

 According to BAM, the Visual Impact Analysis was a "sham," which did not even "support the conclusions generated by the Planning Board[] and the Town Engineer." BAM Action Complaint at P86. In addition to issuing a positive SEQRA declaration, the Town adopted, pursuant to local law, a "moratorium" which became effective on September 19, 1997 and which suspended all Permits for telecommunications facilities without regard to the merits of the application (hereinafter the "Local Law Moratorium"). The Local Law Moratorium was apparently intended to be renewable on a continuos basis.

 In response to the positive SEQRA declaration and the Local Law Moratorium, BAM initiated the BAM Action against the Town in this Court under Docket No. 97 Civ. 8650. Cell-One subsequently intervened. Together, the Companies sought mandamus relief pursuant to the Federal Telecommunications Act of 1996, 47 U.S.C.A. § 332 (West 1998), and an order compelling the Town defendants to issue all necessary Permits for the construction of the Tower. Essentially, the Phone Companies asserted, and it was apparent to this Court, that the Town had not complied with: (1) the Telecommunications Act's provision which requires local municipalities to act on a carrier's request for permission to place its facilities within a reasonable time, see 47 U.S.C. § 332(c)(7)(B)(ii); (2) the provision that a municipality must deny such permission only in writing and only where that determination is supported by substantial evidence, see 47 U.S.C. § 332(c)(7)(B)(iii); and (3) the provision that the Town may not enact regulations which have the effect of prohibiting personal wireless services. See 47 U.S.C. § 332(c)(7)(B)(II). *fn1" In addition, BAM asserted, and the Court agreed, that there was no justification or authority for the so-called Local Law Moratorium.

 After this Court conducted a lengthy settlement conference between the parties on December 12, 1997, and after concessions were made by both sides, the parties resolved their differences and with the aid of this Court drafted a proposed consent judgment (the "Consent Judgment"). In its final form, the Consent Judgment modified the Phone Companies' "applications to the Planning Board and the Zoning Board . . . to provide that the height of the tower . . . . shall be 129 feet" rather than the 180 feet originally proposed. In exchange, the Town agreed to exempt the Companies from the Local Law Moratorium.

 In addition, the Consent Judgment provided that "as a reasonable consequence of the modifications of the [Tower] . . . the Planning Board's 'positive declaration' under SEQRA, dated October 21, 1997, is revoked, and the Planning Board hereby issues a "negative declaration" under SEQRA in accordance with the terms thereof." See Consent Judgment at PP 3-4. On January 21, 1998, this Court approved the Consent Judgment thereby concluding the litigation. Thereafter, the Town issued to the Phone Companies the Permits necessary for construction of the Tower.

 B. The Instant Case

 Plaintiffs in this case "are owners and residents of properties in the Town of LaGrange which are either adjacent to, in close proximity of, or within the viewscape of" the Tower site, who believe that the Tower will have an adverse effect on their property values. See Plaintiffs' Verified Petition (hereinafter the "Complaint") at P1, P45; see also Reply Affidavit of James Bisceglia at PP 3-4 [Doc. No. 23]. Apparently throughout the process associated with the Town's consideration of Phone Companies' original proposals, plaintiffs objected to the construction of any tower anywhere in the Town. See Complaint at P15. Plaintiffs attended the various Town meetings on the subject, and expressed their concerns in writing to various members of elected Town government. Id. at P16. According to plaintiffs, "at all times during the public hearings and deliberations, the Planning Board and Zoning Board advised [them] and other members of the public that the review process of all [Phone Company] applications . . . would be a deliberative process in which their concerns would receive full consideration." Id. at P17. Specifically, plaintiffs claim that they were assured by the Town that their "concerns would be addressed . . . in the planning, zoning and SEQRA process," Id. at P16.

 Plaintiffs contend that the Town replaced the positive SEQRA declaration with a negative declaration without "public hearing, comment or participation." Id. at P21c. According to plaintiffs, "the Town unilaterally decided -- without any input from property owners who participated all along -- that a tower would be built in the specifications and location directed by the Town and self interested cellular telephone providers." Plaintiffs' Reply Memorandum at 14 [Doc. No. 22]. The Town denies plaintiffs' assertions in this regard and contends that it did in fact hold a public hearing to discuss the merits of the Consent Judgment.

 On January 20, 1998, plaintiffs filed a verified petition to initiate an Article 78 proceeding in New York Supreme Court, Dutchess County against the Town Defendants. That petition, which is now before this Court, asserts six causes of action. Causes of action (1) through (4) seek exactly the same relief: the issuance of "an order . . . rendering all approvals and permits under the [Consent Judgment] illegal null and void." Id. at P32, P36, P43, and P50.

 The first cause of action asserts that such an order is required, because by entering into the Consent Judgment the Town deprived plaintiffs of "due process of law by the denial to them of mandated forums for the consideration of the impact of the construction of towers such as BAM's on their property and neighborhoods." Id. at P29-P32. The second cause of action contends that "no provision of SEQRA permits the unilateral revocation by [the Town] of its positive declaration to facilitate the [Consent Judgment]." Id. at P33-P36. The third cause of action contends that "the rescission of the positive declaration was not supported by substantial evidence" and that at the time the Town rescinded it "no change of circumstances, except the existence of the legal proceedings constituting the BAM Action, existed." Id. at P37-P43. The fourth cause of action contends that before adopting the Consent Judgment, the Town "made no SEQRA analysis" and "had no public hearing in connection with said application," but instead "unlawfully agreed and conspired to subvert and suppress the planning process and the rights of [plaintiffs] to have the merits of their opposition and comment duly heard and considered." Thus, according to plaintiffs, "the entire settlement and all of its terms are illegal, affected by an error of law, the result of unlawful procedure, and arbitrary and capricious." Id. at P44-P50.

 Plaintiffs' two final causes of action are pled pursuant to 42 U.S.C. § 1983. The fifth cause of action contends that by adopting the Consent Judgment, the Town together with BAM and Cell-One "unlawfully under color of law agreed and conspired to subvert and suppress the planning process and the rights of [plaintiffs] to have the merits of their opposition duly heard and considered, denying [plaintiffs] both due process and equal protection." As a result of this denial, plaintiffs claim that they "have been deprived of the public forum provided by law and have and will continue to suffer irreparable harm and monetary damages including, but not limited to, reduction in property values . . . . in a substantial sum yet unascertained." Id. at P51-P56. The sixth and final cause of action seeks attorneys fees and costs pursuant to 42 U.S.C. § 1988.

 On February 6, 1997 the Town timely removed the plaintiffs' Article 78 proceeding to this Court. Thereafter, Cellular One and Bell Atlantic intervened as defendants to protect their interests in the Consent Judgment (collectively the Town, BAM and Cell-One will be referred to for convenience as the defendants). The motions presently before the Court followed.

 Discussion

 A. Plaintiffs' Motion for Remand

 Plaintiffs seek remand of this case on the grounds that removal was improper. The Court disagrees. "As a general matter, defendants may remove to the appropriate federal district court 'any civil action brought in a State court of which the district courts of the United States have original jurisdiction.'" City of Chicago v. International College of Surgeons, 522 U.S. , 139 L. Ed. 2d 525, 118 S. Ct. 523, 528 (1997) (quoting 28 U.S.C. § 1441(a)). The propriety of defendants removal in this case thus depends on whether the case originally could have been filed in ...


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