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February 22, 2000


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


This is a case brought pursuant to the Telecommunications Act of 1996 (the "TCA") and various civil rights statutes, including, 42 U.S.C. § 1981, 1982, 1983 and 1985. Plaintiffs seek the right to construct a communications tower (the "Tower") in the Town of Southampton (the "Town"), as well as damages resulting from the Town's refusal to allow the proposed construction. Plaintiffs also seek attorneys' fees pursuant to 42 U.S.C. § 1988. Presently before the court is defendants' motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint in its entirety for failure to state a claim. For the reasons set forth below, the motion is granted in part and denied in part.


I. Factual Background

The facts alleged in support of plaintiffs' claims as set forth in the complaint, and accepted as true for the purposes of this motion, are as follows.

A. The Parties

Plaintiffs are Vertical Broadcasting, Inc. ("VBI") and Eric Ferrara ("Ferrara"). VBI is a New York corporation and Ferrara is VBI's president. Defendants are the Town, the Town Supervisor, Vincent Cannuscio ("Cannuscio"), and Town Board members Martha M. Rogers ("Rogers"), Patrick Heaney ("Heaney"), Steven S. Halsey ("Halsey") and James P. Drew ("Drew") (collectively the "Town Board"). Each of the aforementioned individual defendants are named in their official capacities. Additionally, Plaintiffs name Cannuscio and Halsey in their individual capacities.

B. The Subject Property and Plaintiffs' Lease

The property upon which plaintiffs seek to construct the Tower (the "Property"), is an approximate 50 acre parcel located on the north side of an unimproved portion of Middle Line Highway in the Town. The Property is located within a zone CR-200, which is a five acre residential zoning district. Sand Land Corporation ("Sand Land"), the owner of the Property, operates a sand mine on the property. To the northwest of the property is a 500 acre tract of land formerly occupied by Bridge-hampton Raceway. Three communications towers exist within a three mile radius of the Property. These towers are owned and operated by AT & T, Cablevision and radio station, WLNG.

C. Plaintiffs' Efforts to Obtain a Zoning Change and the Town's Denial

i. The Special Exception Application

In June of 1991, VBI submitted an application to the Town seeking "special exception" approval to construct a 360 foot communications tower as a public utility structure.*fn1 At the time the application was made, the Town Code permitted the construction of public utility structures on residentially zoned properties pursuant to such special exception approval by the Town Board. In February of 1992. The Town Planning Board and Building Department stopped processing VBI's special exception application because of the Building Department's insistence that VBI obtain an interpretation from the Town Zoning Board of Appeals, as to whether the Tower was properly considered a public utility structure.

ii. The QPSUD Application

In December of 1992, the Town Board amended the Town Code and changed the required approval process for a tower such as that sought to be erected by VBI from a special exception process, to require an application for a change of zoning to a zone labeled as a Quasi Public Service Use District ("QPSUD").

In March of 1993, VBI submitted an application to change the zone of the Property from its CR-200 zoning classification to a QPSUD zoning district. Two months later, the Town Planning Board issued a written report as required under the QPSUD ordinance. Thereafter, in July of 1993, a public hearing on VBI's QPSUD application was held.

iii. The SEQRA Declaration

One month after the hearing on VBI's QPSUD application, the Town Board issued declarations under the New York State Environmental Quality Review Act ("SEQRA"), requiring VBI to submit an environmental impact statement to the Town in connection with the construction of the Tower. Plaintiffs allege that at some point after issuance of this positive SEQRA declaration, then Town Supervisor, Fred Thiele, wrote a letter demonstrating the Town Board's intent to obstruct and oppose plaintiff's application for a QPSUD change of zoning.

In 1994 and 1995, VBI submitted both a Draft Environmental Impact Statement ("DEIS") and a Supplemental DEIS to the Town. In April of 1996, the Town adopted a resolution declaring these documents to be ready for public comment. Public hearings were thereafter held in May, June and July of 1996. The Town Board then extended the period of public comment through August 26, 1996. In November of 1996, VBI submitted written responses to the public comments on the DEIS and the Supplemental DEIS.

In January of 1997, the Town Board resolved to accept VBI's DEIS, Supplemental DEIS, the public comments thereto and the Final Environmental Impact Statement ("FEIS") of VBI. The Town further resolved to accept public comments to the FEIS until January 28, 1997. Three months later, in March of 1997, when the Town had taken no action on VBI's application, plaintiffs demanded that the Town Board render a decision on VBI's application for its QPSUD change of zoning application. In support of its demand, plaintiffs relied upon New York law requiring action on a SEQRA decision within thirty days of the filing of a FEIS and the Town zoning ordinance requiring approval or rejection of the establishment of a QPSUD application within sixty days of the close of public comment thereon.

In December of 1997, the Town Board resolved to re-open public comment on plaintiffs' application. This decision was based upon an alleged error made by the Town in preparing a notice regarding the FEIS. During this final period of public comment, December 9 through December 30, 1997, the Town received no further public comment regarding VBI's QPSUD zoning application.

iv. The Denial of the Change of Zoning

On January 7, 1998, VBI commenced a proceeding in New York State court, pursuant to Article 78 of the CPLR, to compel the Town to take action on the SEQRA declaration. The next day, the Town Board adopted a joint QPSUD/SEQRA resolution denying VBI's change of zoning application.

The denial of VBI's application is set forth in a twenty-four page resolution of the Town Board. That resolution details the events and hearings preceding the resolution and discusses, inter alia, the Tower's impact on health, bird migration, aesthetics and real property values. The resolution also discusses available alternatives to the Tower. Ultimately, the resolution concludes that the change of zoning application should be denied to avoid adverse environmental effects of the Tower on property values, the aesthetic values of the community and the character of the residentially zoned areas around the site of the Tower.

II. The Criminal Prosecution and Acquittal of Eric Ferrara

In January of 1997, in the midst of the foregoing proceedings, plaintiff Ferrara was arrested and indicted in connection with certain activities related to Ferrara's application before the Town Board. Pursuant to an investigation of the United States Attorney's office for the Eastern District of New York, Ferrara was charged with offering bribes, in violation of 18 U.S.C. § 666, to Cannuscio and Halsey in exchange for favorable votes in connection with VBI's then-pending application. Ferrara was tried before a jury and acquitted of all charges on December 7, 1998.

III. Plaintiffs' Complaint

As noted above, plaintiffs' complaint seeks an injunction requiring issuance of whatever permit is necessary to allow construction of the Tower. Damages and attorneys fees are sought as well. In support of plaintiffs' claims, it is alleged that the actions of defendants were "outrageously arbitrary, capricious, irrational and discriminatory" in violation of plaintiffs' substantive and procedural due process and equal protection rights under the Federal and New York State Constitutions. Plaintiffs further claim that they were unconstitutionally deprived of rights guaranteed to them by the TCA, the Supremacy Clause and the Commerce Clause of the United States Constitution. These claims are alleged to form the basis of plaintiffs' claims against the Town and the Town Board pursuant to 42 U.S.C. § 1981, 1982, 1983 and 1985.

Plaintiffs' claims against Cannuscio and Halsey arise from the alleged bribery that resulted in Ferrara's prosecution. Specifically, it is alleged that these two defendants extorted money from Ferrara in exchange for a favorable vote on VBI's application. Cannuscio and Halsey are alleged to have made false representations that triggered the investigation of Ferrara, his subsequent indictment and trial. Such actions are alleged to have violated Ferrara's rights under the due process and equal protection clauses of the Constitution. Plaintiffs also claim civil rights violations arising from the Town's passage of the QPSUD ordinance and alleged disparate treatment of VBI in comparison to the treatment of all others seeking to erect communications towers in the Town.

In addition to civil rights claims, plaintiffs allege that defendants have violated the TCA. Specifically, plaintiffs seek to impose liability pursuant to section 101 of the TCA, which forbids local governments from prohibiting the ability of any entity to provide interstate or intrastate telecommunications services.

IV. Defendants' Motion

Defendants seek dismissal of the entire complaint for failure to state a claim upon which relief may be granted. First, defendants seek dismissal of any claim brought pursuant to the TCA on statute of limitations grounds. Specifically, defendants reject plaintiffs' characterization of their complaint as brought pursuant to section 101 of the TCA, codified at 47 U.S.C. § 253 and referred to herein as "Section 253." Defendants argue that any claim pursuant to the TCA is properly brought only pursuant to section 704 of the TCA, codified at 47 U.S.C. § 332 and referred to herein as "Section 332." Section 332 is argued to apply to the claims here because it references and regulates, to a certain extent, local zoning decisions made in connection with the siting of communications towers. See 47 U.S.C. § 332. Defendants seek dismissal of any Section 332 claim on the ground that any such claim is barred by that section's thirty day statute of limitations. It is also argued, in the alternative, that to the extent that any Section 332 claim is timely, defendants have complied fully with that section of the TCA.

Defendants seek dismissal of plaintiffs' civil rights claims pursuant to 42 U.S.C. § 1981, 1982 and 1985 and the equal protection claim under 42 U.S.C. § 1983 ("Section 1983") on the ground that plaintiffs have not alleged the required racial or class-based discrimination. Dismissal of plaintiffs' Section 1983 substantive and procedural due process claims are sought on the ground that plaintiffs cannot show the required "entitlement" to the zoning change sought.

Defendants' motion further argues that the Town's enaction of the QPSUD ordinance had the required rational basis and, moreover, that passage of the ordinance constitutes a legislative act for which the Town Board is entitled to absolute legislative immunity. Defendants seek dismissal of the complaint as against Town Board members Rogers, Heaney and Drew on the ground that plaintiffs' action against these defendants is in their "official capacities" only and should therefore be dismissed as redundant. Finally, defendants seek dismissal of the complaint as against defendants Cannuscio and Halsey on the ground of qualified immunity.

Before deciding the merits of the motion, the court turns to a discussion of the applicable law.


I. Standard For Motions To Dismiss

A motion to dismiss is properly granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). When ruling on a motion to dismiss, the court must accept as true all factual allegations in the complaint. All reasonable inferences must be drawn in favor of the non-moving party. Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 62 (2d Cir. 1997).

When considering a motion to dismiss for failure to state a claim, the court considers the facts as set forth in the complaint, documents attached thereto and incorporated by reference therein. Automated Salvage Transp., Inc. v. Wheelabrator Envl. Systems, Inc., 155 F.3d 59, 67 (2d Cir. 1998). Additionally, the court may consider matters of public record, such as case law and statutes. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998); Magee v. Nassau County Medical Center, 27 F. Supp.2d 154, 160 (E.D.N.Y. 1998). If the court intends to consider other documents, the court must give notice to the parties that the motion will be considered a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and afford the ...

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