even if the Board did not approve the permit application at the
December 1 meeting, it violated the TCA by failing to either
approve or deny their application by February 2, 2000, or 62 days
from the date of the public hearing.
Defendants respond that Plaintiffs cannot come to federal court
and cry "unreasonable delay" under the TCA when, in fact, their
application was the last of the three Congers proposals received
by the Board, and the Board acted on their application as
promptly — if not more promptly — than it did the Sprint and
Goosetown applications. Further, Defendants note that there can
be no claim under the "unreasonable delay" provisions of the TCA
where the coverage requirements are met by another facility —
which was approved on the very day that Plaintiffs' application
was denied. Finally, Defendants contend that the 62-day time
period for rendering a decision does not run until the
municipality makes the SEQRA determination.
The record indicates that a public hearing was held on December
1, 1999, and at the close of that meeting, the Board voted to
continue the matter. The next meeting held to discuss the matter
was on March 29, 2000. This meeting was not a public hearing.
Thus, under the Town Law, Clarkstown was under an obligation to
reach a decision on the special use permit within 62 days, unless
an extension was agreed to by mutual consent of the applicant and
There is plenty of evidence in the record that changes to the
composition of the Planning Board, the appointment of the new
attorneys and the dispute over the moratorium delayed the
scheduling of the follow-up discussions of the Conger monopoles.
There is, however, no evidence that either party consented to
extend the statutory deadline.
I am therefore convinced by Plaintiffs' reasoning that failure
to reach a decision within 62 days of the public hearing could be
construed as an "unreasonable delay" under the TCA. As such, if
Plaintiffs had been the only applicant with a permit application
before the Board, and they had come before this Court on the 63rd
day seeking injunctive relief, this Court would have looked
favorably on such a request. That is because, where a plaintiff
is the only applicant before a Board, and the Board fails to
reach a decision within the statutorily proscribed period, the
failure to reach a decision may have the de facto effect of
prohibiting wireless services in violation of the TCA.
However, Plaintiffs' claim that the failure to reach the
decision by the 63rd day entitles them to injunctive relief is
without merit for two reasons. First, Plaintiffs did not bring
this suit on the 63rd day. Instead, thinking that they were going
to win final approval for the construction of their monopole,
SMSA waited until after the Board had made its decision on March
29 to bring this lawsuit. The problem Plaintiffs now face is
that, having waited until the Goosetown monopole was selected
over their site, Plaintiffs can no longer make the claim that the
delay had the effect of denial of wireless services. Indeed, the
claim of delay is as moot as the claim of failure to make
findings in writing.
The subsection of the TCA under which Plaintiff brings its
claims for unreasonable delay applies siting criteria to those
zoning decisions that prohibit or have the effect of prohibiting
wireless services in a given area. See
47 U.S.C. § 332(c)(7)(B)(i)(II). 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)(5). As a matter of
logic, a final action resulting in denial gives rise to a claim
of improper denial. A failure to act resulting from delay gives
rise to a claim of unreasonable delay and constructive denial.
Congress could not have intended for plaintiffs to bring a claim
that a Board's action was both a final denial of their
application and a delay that had the effect of a denial. By
waiting until after the final decision was rendered, Plaintiffs
forwent a claim of "unreasonable delay."*fn8
Second, even if Plaintiffs had moved for injunctive relief on
the 63rd day they would not have been entitled to it. Under
Plaintiffs' interpretation of the TCA and its effect on the Town
Law, all three carriers with applications before the Board —
Goosetown, Sprint and Plaintiffs — would have been entitled to a
mandatory injunction on the 63rd day, because, all three had been
subjected to an "unreasonable delay." Plaintiffs' suggested
result, if carried to its logical extreme, would have federal
courts ordering towns to permit multiple wireless facilities
every time a board failed to reach a decision by the 63rd day.
Such a rule would be preposterous, and clearly against the
holding in Willoth.
The New York State Legislature did not provide for the "default
approval" of special use permits where a Board fails to reach a
decision. Indeed, had it so intended, the legislature could have
written it into the Town Law, as it did in the case of
subdivision approvals. See N.Y. Town L. § 276(3) (a planning
board which fails to act on a preliminary subdivision plat
application within 45 days is deemed to have approved the
preliminary plat). Thus, while mandatory injunction is the proper
form of relief where the application is not acted on and a gap in
coverage ensues, it would inappropriate to order said relief in
these circumstances where several applications remained pending
before the Board.
Finally, Defendants argue that the 62-day time limit did not
begin to run on December 1, because the public hearing was not
"closed" until the SEQRA determination was made. And they argue
by analogy that, because the approval process cannot come to a
conclusion until the negative resolution passes, see Honess 52
Corp. v. Widholt, 176 Misc.2d 57, 672 N.Y.S.2d 237 (Sup.Ct.
Duchess County 1998) (62-day review period under Section 276
governing approval of subdivisions does not begin to run until
enactment of SEQRA findings), the public hearing must necessarily
remain open until that act is accomplished. See 61 McKinney's
Consl Laws of N.Y., § 274-b, Supp.Prac.Comm., T. Rice, p. 205
(noting that the time requirement for commencing a public hearing
does not run until the SEQRA determinations have been made). And
it is clear that SEQRA determinations are the sine qua non of
special permit approval. Having found that Plaintiffs state no
claim under the TCA, however, I need not reach this interesting
question of New York law.
4. Goosetown's Ability to Meet SMSA's Coverage Requirements
Finally, Plaintiffs argue that Goosetown may not be capable of
installing its facility in a timely manner, which would create an
unreasonable delay in BAM's offering service in the gap area.
However, there is not a shred of evidence in this record to
support SMSA's bare-bones contention that Goosetown will not be
able to build its monopole in a timely manner. The record
reveals that Goosetown was the first applicant, having begun the
process almost two years prior to Plaintiffs. It has already
taken title to its site. Intervenor avers, without contradiction,
that it is ready to go — and would have started construction but
for this lawsuit. The Planning Board conditioned its approval of
the Goosetown site on Goosetown installing its facility and
making it available for co-location within six months of the date
that its permit was approved.
Plaintiffs' speculation would appear to boil down to "we are
big and they are small, and small can't guarantee getting the job
done." But as Goosetown points out, one of the express goals of
the TCA was to promote competition among cellular service
providers. And, although Plaintiff seems to make an issue out of
the fact that they are a federally licensed wireless provider
whereas Goosetown in not federally licensed, the TCA does not
provide for preferential treatment of licensed carriers. Thus,
bigger is not necessarily better.
Summary judgment is entered for Defendants and all claims
against them are dismissed.
This constitutes the decision and order of this Court.