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.
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
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.
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 ...