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VERTICAL BROADCASTING, INC. v. TOWN OF SOUTHAMPTON
February 22, 2000
VERTICAL BROADCASTING, INC., AND ERIC FERRARA, PLAINTIFFS,
THE TOWN OF SOUTHAMPTON, AND VINCENT CANNUSCIO, TOWN SUPERVISOR, MARTHA M. ROGERS, PATRICK HEANEY, STEVEN S. HALSEY AND JAMES P. DREW, CONSTITUTING THE TOWN BOARD OF THE TOWN OF SOUTHAMPTON, COUNTY OF SUFFOLK, STATE OF NEW YORK, THE TOWN CLERK OF THE TOWN OF SOUTHAMPTON, AND VINCENT CANNUSCIO AND STEVEN S. HALSEY, INDIVIDUALLY, DEFENDANTS.
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.
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.
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
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
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 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
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
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
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
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
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 ...