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.
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
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 § 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 that
effectively mask a denial. An inquiry into the ripeness of
Nextel's action therefore is inextricably connected to its claim
of unreasonable delay and violation of the TCA.
B. The TCA and Substantial Evidence
In the words of the Conference Committee, the TCA was intended
"to provide for a pro-competitive, de-regulatory national policy
framework designed to accelerate rapidly private sector
deployment of advanced telecommunications and information
technologies and services . . . by opening all telecommunications
markets to competition. . . ." H.R.Conf.Rep. No. 104-458, at 206
(1996). Although the TCA preserves local zoning authority over
the siting of wireless facilities, the process by which zoning
decisions are made is subject to judicial oversight under
47 U.S.C. § 332.
The TCA requires that denials be supported by substantial
evidence. See 47 U.S.C. § 332(c)(7)(B)(iii). In determining
whether the denial was supported by substantial evidence, courts
must employ "the traditional standard used for judicial
review of agency actions." H.R.Conf. No. 104-458, at 208 (1996).
This standard of review is deferential, and courts may neither
engage in their own fact-finding nor supplant the Town Board's
reasonable determinations. See Cellular Telephone Co. v. Town of
Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). Substantial
evidence, in the usual context, has been construed to mean less
than a preponderance, but more than a scintilla of evidence:
"[i]t means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Universal Camera v.
NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951)
(internal quotations omitted). The record, however, must be
viewed in its entirety, including evidence opposed to the Town's
view. See American Textile Mfr. Inst., Inc. v. Donovan,
452 U.S. 490, 523, 101 S.Ct. 2478, 69 L.Ed.2d 185 (1981).
In evaluating the evidence, local and state zoning laws govern
the weight accorded evidence. See Cellular Telephone, 166 F.3d
at 494. The TCA establishes the procedural requirements that
local boards must comply with in evaluating cell site
applications, but the statute does not "affect or encroach upon
the substantive standards to be applied under established
principles of state and local law." Cellular Telephone Co. v.
Zoning Bd. of Adjustment, 24 F. Supp.2d 359, 366 (D.N.J. 1998)
(internal quotations omitted). In New York, cellular telephone
companies are afforded the status of public utilities. See
Cellular Telephone Co. v. Rosenberg, 82 N.Y.2d 364, 371,
604 N.Y.S.2d 895, 624 N.E.2d 990 (1993). As such, a cellular
telephone company's application for a variance must be judged by
the Town's zoning boards on a different standard than that
applied to the usual application for a use variance. See
Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 403 N.Y.S.2d 193,
374 N.E.2d 105 (1978). A zoning board must consider whether
the public utility has shown a "need for its facilities" and
whether the public's need would be served by granting the
variance. See id. at 608-10, 403 N.Y.S.2d 193, 374 N.E.2d 105.
C. Success on the Merits
1. First Cause of Action
Section 332(c)(7)(B)(ii) provides that:
A State or local government or instrumentality
thereof shall act on any request for authorization to
place, construct, or modify personal wireless service
facilities within a reasonable period of time after
the request is duly filed with such government or
instrumentality, taking into account the nature and
scope of such request.
47 U.S.C. § 332(c)(7)(B)(ii). Nextel contends that the Town's
delay in approving its application violates this subsection.