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NEXTEL PARTNERS OF UPSTATE N Y v. TOWN OF CANAAN

August 13, 1999

NEXTEL PARTNERS OF UPSTATE NEW YORK, INC. AS SUCCESSOR-IN-INTEREST TO NEXTEL OF NEW YORK, INC., AND NEXTEL OF NEW YORK, INC., PLAINTIFFS,
v.
TOWN OF CANAAN AND THE TOWN OF CANAAN PLANNING BOARD AND THE TOWN OF CANAAN ZONING BOARD OF APPEALS, DEFENDANTS.



The opinion of the court was delivered by: Kahn, District Judge.

MEMORANDUM — DECISION AND ORDER

Nextel Partners of Upstate New York, Inc. and Nextel of New York, Inc. (collectively, "Nextel") commenced action against the Town of Canaan and its planning boards (collectively, the "Town") alleging that the Town denied Nextel's application for zoning variances and permits to construct a telecommunications tower in violation of the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. § 332, and 42 U.S.C. § 1983. Nextel has now moved for a declaratory judgment and injunctive relief from this Court. For the reasons explained below, Nextel's motion is denied.

I. BACKGROUND

Nextel provides wireless telecommunications, and is attempting to build a national telecommunications network. Each telecommunications facility in Nextel's network consists of an antenna mounted on a building, tower or other structure, connected to a small, nearby equipment shelter for transmission and routing. The antenna feeds a radio signal received from wireless handsets and telephones to the shelter. Signals are low power, high frequency radio waves, requiring relatively short distances between transmission sites. When a wireless user moves into a new cell, the transmission is automatically transferred to the cell site in the new geographic region. If no such site exists, the wireless telephone service is interrupted, creating a "coverage gap."

In 1998, Nextel moved to fill such a coverage gap in its network by constructing a telecommunication facility in the Town, leasing property in an area of the Town expressly zoned for this type of telecommunication facility. In order to construct the facility, the Town zoning code requires that Nextel obtain a Special Use Permit from the Zoning Board, as well as a height variance from the Zoning Board of Appeals since the antenna atop the facility would exceed 100 feet. On May 29, 1998, Nextel submitted the necessary applications for construction of a 180 foot tower to the Town Zoning Board. Shortly thereafter, the zoning board was designated the lead agency pursuant to the New York State Environmental Quality Review Act ("SEQRA"), N YEnvtl.Conserv.L. § 8-0101, et. seq., becoming responsible for assembling and considering information regarding the environmental impact of the Nextel project.

Over the course of the next nine months, numerous public hearings and meetings were held concerning Nextel's application. Nextel explained its design and concerns were expressed about the aesthetic, economic, health, and safety impact of the telecommunications tower. Nextel also presented a licensed real estate appraiser who testified that the tower would not adversely impact property values or sales and conducted a "balloon study" assessing potential visual impacts of the tower. Additionally, Nextel reviewed eleven alternate sites, but concluded that each would not fill the coverage gap in its network or result in diminished aesthetic impacts. The Town contends that these alternate sites were "strawmen" purposefully selected because they would not provide adequate coverage, thereby leaving the proposed site as the only viable one. On July 20, 1998, the Town recommended that Nextel consider an alternate site along the New York State Thruway right-of-way, and informed Nextel that its application would be incomplete until it received further information on co-location possibilities.

At a special meeting held August 24, 1998, Nextel presented the Zoning Board of Appeals with an amended application disclosing the need to construct an additional tower in the Mercer Mountain area, and its decision to lower the height of the tower located in the Town to 150 feet. On August 28, 1998, Nextel submitted its amended application, including an amended Environmental Assessment Form explaining the reduced tower height and analyzing the impact of the shorter tower. At a meeting on September 21, 1998, Nextel submitted a Draft Environmental Impact Statement ("DEIS") and the Town requested further information, including propagation studies of towers proposed by Nextel in other municipalities.

Various requests and responsive submissions were exchanged, and Nextel requested an adjournment on review of its application from November 13, 1998 until January 18, 1999. On January 25, 1999, Nextel submitted additional drive test data and propagation studies. Nextel provided more information in preparation for a February 15 zoning board meeting. At that meeting, the board decided to refer the DEIS and additional information to its own expert, Francis D. Letteri, who concluded that Nextel's submissions were deficient in several respects. The board notified Nextel about the Letteri report and its outstanding queries following a March 5, 1999 meeting.

Primarily, the board requested that Nextel (1) analyze the Thruway alternative and (2) one additional non-Thruway alternative consistent with the criteria outlined in the expert's report. The board also required more information concerning the second tower projected to be built in the Mercer Mountain area.

II. ANALYSIS

Nextel asserts that the Town has engaged in a strategy calculated to delay action on Nextel's application and to discourage Nextel from constructing a telecommunication facility at the proposed site. Accordingly, Nextel moves for preliminary and permanent injunctive relief based upon the Town's alleged violation of the TCA, § 1983, and SEQRA.

A motion for a preliminary injunction should not be granted unless the movant demonstrates (1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) "sufficiently serious questions" on the merits and a balance of hardships "tipping decidedly" in the movant's favor. See Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). Nextel must meet an even more rigorous standard here. A "clear" or "substantial" showing of a likelihood of success is required where the injunction sought "will alter, rather than maintain, the status quo" — that is, where the injunction is properly characterized as "mandatory" rather than "prohibitory." See Jolly v. Coughlin, 76 F.3d 468, 473-74 (2d Cir. 1996) (citing Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). The standard for a permanent injunction is essentially the same as for a preliminary injunction with the exception that the plaintiff must show actual success on the merits. See, e.g., University of Texas v. Camenisch, 451 U.S. 390, 392, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). Applying the foregoing standard, Nextel fails to show a likelihood of success on the merits, much less actual success.

A. Ripeness

The TCA provides that "[a]ny person adversely affected by any final action or failure to act by a state or local government . . . may . . . commence an action in any court of competent jurisdiction." See 47 U.S.C. § 332(c)(7)(B)(v). Because there has been no final decision with respect to Nextel's application, the Town maintains in its opposition papers that Nextel's claims are not ripe and should be dismissed. The Town also emphasizes that Nextel's application is in the information-gathering stage and therefore there has been no impermissible "failure to act" on its part.

Unless delay in the consideration of an application can be attributed to the applicant, such a position would run contrary to the express terms of ยง 332(c)(7)(B)(v)'s prohibition against a "failure to act." See, e.g., Cellco Partnership v. Russell, 1:98CV23, 1998 U.S. Dist. Lexis 11639 (W.D.N.C. June 24, 1998). As the statute itself recognizes, inaction can take not only the form of complete inactivity, but also the absence of any meaningful consideration of an application. Otherwise, a local zoning authority could indefinitely delay an application by a flurry of hearings, requests, and counter-submissions ...


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