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NEW YORK SMSA LTD. PARTNER. v. TOWN OF CLARKSTOWN

May 26, 2000

NEW YORK SMSA LIMITED PARTNERSHIP D/B/A VERIZON WIRELESS (F/K/A BELL ATLANTIC MOBILE) AND CROWN ATLANTIC COMPANY LLC, PLAINTIFFS,
V.
THE TOWN OF CLARKSTOWN; THE TOWN OF CLARKSTOWN PLANNING BOARD; AND ADOLPH MILCH, BUILDING INSPECTOR OF THE TOWN OF CLARKSTOWN, DEFENDANTS.



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

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR INJUNCTIVE RELIEF AND GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs, a wireless provider and the builder of its monopole facilities, bring this action pursuant to the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 ("TCA") asking the Court for a mandatory injunction compelling Defendants to issue a permit for Plaintiffs to build a wireless monopole in the Town of Clarkstown. For the reasons stated below, the requested injunction is denied, Defendants' cross-motion for summary judgment is granted, and the case is dismissed.

I. The Parties and Procedural Posture

Plaintiff SMSA Limited Partnership ("SMSA"), doing business as Verizon Wireless (formerly known as Bell Atlantic Mobile, hereinafter "BAM"), is licensed by the Federal Communications Commission to provide wireless telecommunications service within the Town of Clarkstown and surrounding areas. Plaintiff Crown Atlantic Company, LLC ("Crown Atlantic") is a joint venture between Verizon Wireless and Crown Castle International Corporation, and is responsible for the construction of wireless facilities like the one at issue in this lawsuit.

Plaintiffs bring suit against Defendant Clarkstown, New York (the "Town"), the Clarkstown Planning Board, and Adolph Milch, Clarkstown Building Inspector, on the grounds that the Town's denial of Plaintiffs' application to construct a monopole that would provide wireless service in the Congers section of Clarkstown violated their statutory rights under the TCA and various state and federal constitutional rights under the United States and New York Constitutions.

Plaintiffs filed this action on April 20, 2000, together with an order to show cause seeking injunctive relief. On May 2, 2000, the Court determined that Goosetown Enterprises, Inc., doing business as Goosetown Communications ("Goosetown"), was a necessary party to this suit and granted it status as a Defendant Intervenor. Goosetown is a telecommunications company located in Clarkstown that, like Plaintiffs, submitted an application to construct a wireless facility that would provide coverage in Congers. Goosetown was the successful applicant.

II. The Facts

There is a gap in wireless telephone service in the Congers area of Clarkstown. In order to remedy the gap, three separate wireless providers, Goosetown, SMSA and Sprint Spectrum, LLP ("Sprint"), not a party to this suit, each sought approval from the Clarkstown Planning Board to construct a monopole wireless facility. Sprint applied on April 11, 1997 for permission to build at Lot 129.A5.5 at 33 Route 59 in Congers. Goosetown applied for a special use permit on June 3, 1999 to build at Lot 142/129.A.5.09 in Congers. SMSA proposed to build at 35 Hemlock Drive (the "Soffer site"). Plaintiffs were the last to apply for a special use permit, which they did on August 4, 1999.*fn1

According to the Clarkstown Wireless Law, co-location of wireless communications providers is the primary consideration in granting special permit approval, since co-location minimizes the number and visual impact of monopoles.*fn2 The Town therefore makes every effort to select a single tower location that meets the technical and coverage needs of the wireless carriers, while at the same time meeting the Town's safety and visual impact considerations. Clarkstown hoped to select only one applicant to build a monopole that would fill the coverage gap; the other carriers would be required to co-locate on that facility.

Defendant Goosetown first discussed its application with the Planning Board's Technical Advisory Committee on September 23, 1998. On March 3, 1999, another meeting with the Technical Advisory Committee was held, at which both Sprint and SMSA were also present (although SMSA had not yet filed an application to build a facility). Goosetown contends that, at this second meeting, the Advisory Committee stated its preference for the Goosetown site over the other two, on the grounds that it was in a more remote area and would have the least visual impact. According to Goosetown, the Committee also noted that the Goosetown site was the best situated with respect to businesses, schools and homes. After incorporating changes to its site plan recommended by the Technical Advisory Committee, Goosetown submitted its formal application for a special use permit on June 4, 1999.

A public hearing was held on the Goosetown application on July 14, 1999. Some members of the public expressed opposition to the site. At the conclusion of the public hearing, the Town's planning, environmental and wireless communications consultants all gave the Goosetown application a positive recommendation to the Planning Board.

In order to reach an agreement on co-location for the other wireless carriers in the Congers area, the Planning Board required Goosetown and other cellular carriers, including SMSA, to attend another Technical Advisory Committee meeting. The follow-up Advisory Committee Meeting was held on August 4, 1999. At that meeting, SMSA, Sprint, Nextel, AT & T Wireless and Omnipoint all indicated that the Goosetown site would meet their coverage needs.

Goosetown's application came before the Planning Board at the September 29, 1999 meeting, during which additional public comments on the Goosetown proposal were allowed. The Town's consultants reiterated their opinion that Goosetown was the preferred site, but no final vote was taken.

On October 21, 1999, BAM's Executive Vice President and Chief Technical Officer wrote to Goosetown expressing an interest in co-locating should Goosetown be the winning applicant:

I appreciate the opportunity to have discussed the Congers, N.Y. cell site with you over the last few days.
Bell Atlantic Mobile did engage Crown Castle to find us a cell site location in your town. In spite of that engagement, please be assured that Bell Atlantic Mobile is willing to go on any one of the sites that is approved by the town.

(Lynch Letter to Buto, October 21, 1999, attached to Gottlieb Decl. at Ex. I) (emphasis added).

On October 27, 1999, the Planning Board held a public hearing to discuss, seriatim, the pending applications of Sprint, SMSA and Goosetown. At that meeting, a few members of the public expressed concern about the visual impact and the possible health effects of SMSA's proposed site. But no decision was taken on the SMSA site and no date was set for further consideration of SMSA's application.

It was also at this meeting that the so-called "theory of prudent avoidance," which lies at the heart of this litigation, was first advanced to the Board. Members of the Board were given a copy of a chart prepared by Goosetown, which showed the distances of Goosetown's proposed monopole site from neighboring schools, business, ballfields and residences. Using the Goosetown chart as an aid, Morton Leifer, the Town's electronic communications consultant, told the Board that, while the SMSA site complied with FCC requirements, the Planning Board should adopt a policy of "prudent avoidance" to minimize the radio frequency emissions in the neighborhood. He argued, in essence, that if all applicants complied with the FCC radio frequency exposure limits (as they did), the Town could consider which site was situated farthest from key residential, business and recreational locations. He therefore recommended that the Board consider approving the Goosetown site, because it would produce the lowest level of radio frequency emissions at the schools, businesses and residences in Congers.

At the meeting, it was made clear that emissions levels themselves could not be the legal basis for approving or denying an application for a permit. In addressing that point, Leifer stated:

Every site that is considered can only be considered if the exposure is below the [maximum exposure limits], then the town tries to mitigate even further the exposure by trying to maximize the distance from areas of interest. So we know that, and again, we don't claim any site is unsafe. We're not permitted to do that, but what we can do is mitigate the exposure, limit the exposure even further by making the distances as great as possible.

(Transcript of Oct. 27, 1999, Planning Board Meeting at 43, attached to Snyder Decl. at Ex. 4.)

After the public portion of the meeting was closed, the Planning Board discussed the Goosetown site, which was on the agenda for final review of its special permit application. The Board voted 4 to 3 to deny the application, on the basis that Goosetown had failed to comply with the local Wireless Law. Upon reconsideration, one member changed his vote and the Board voted to continue the matter.

On November 16, 1999, the CEO of Bell Atlantic Mobile wrote to Goosetown indicating that BAM was "prepared to locate on whatever tower is approved in Congers, provided it meets with our coverage requirements and the business terms are in line with industry norms." (Strigl Letter to Gottlieb, Nov. 16, 1999, attached to Gottlieb Decl. at Ex. F.) Goosetown exercised its option on the property for its proposed monopole on November 30, 1999.

The Planning Board's discussion of the SMSA, Goosetown and Sprint sites continued on December 1, 1999. At that meeting, counsel for SMSA told the Board that it could mitigate the visual impact of its site by constructing the 150-foot monopole to look like an evergreen tree. She also stated that SMSA would shift the location of the monopole so that it was further from the school and business sites than the Goosetown proposal. These revised plans were submitted for consideration.

The Town consultants present at the discussion stated that they had no further comments or questions of SMSA's counsel concerning the SMSA site. Planning Board member Heim inquired, however, whether a negative declaration under the New York State Environmental Quality Review Act ("SEQRA") would be prepared for the SMSA site.

The Chair of the Planning Board, Rudolph Yacyshyn, then noted that he had consulted with the Town Attorney, Paul Schofield, and that the Board was in a position, "officially for the record and formally" to "take a consensus of the Board" regarding the Congers monopole site selection. (Transcript of Dec. 1, 1999 Planning Board Meeting, attached to Snyder Decl. at Ex. 10, p. 16.) Board Member Richard Paris then moved: "I will make a motion, Mr. Chairman. My preference is for the Crown Atlantic [SMSA] site." (Id. at 17.) The motion carried by a vote of 3 to 2. (Id.) Mr. Paris continued:

I further recommend, Mr. Chairman, that the three matters be continued until our consultants have an opportunity to review the minutes and develop the proper negative declarations, the proper resolution for special permit, resolutions for the denial for the two applications that were not selected, and that the application that was accepted tonight is on the basis of the revised location submitted with the camouflaged rendering as provided just as direction.

(Id. at 18.) (emphasis added).

The Board adopted this resolution by ...


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