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December 4, 2001


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


0mnipoint Communications, Inc. ("Omnipoint") brings this action against the City of White Plains and its Planning Board (the "Board"), alleging violations of the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (the "TCA"), Article 78 of The New York Civil Practice Laws and Rules, and 42 U.S.C. § 1983, for the Board's denial of Omnipoint's application for a permit to build a 150 foot monopole, with antennas and associated equipment, on certain premises owned by the Fenway Golf Club, located on Old Mamaroneck Avenue in the City.

Omnipoint alleges a violation of Section 704 of the TCA, 47 U.S.C. § 332 (c)(7)(B)(iii), alleging that the Board's decision was not supported by substantial evidence (Count I); a violation of 47 U.S.C. § 332 (c)(7)(B)(i)(I) for defendants' "unreasonable discrimination" against Omnipoint (Count II); a violation of 47 U.S.C. § 332 (c)(7)(B)(i)(II) for defendants' "prohibit[ion] of the provision of personal wireless services" (Count II); a violation of 47 U.S.C. § 332 (c)(7)(B)(i) for defendants' unreasonable delay in its processing of Omnipoint's Application (Count IV); a violation of Civil Practice Laws and Rules Article 78 for the defendants' abuse of discretion in its denial of the Application (Count ND; and, a violation of 42 U.S.C. § 1983 for defendants' violation of Omnipoint's rights, privileges, or immunities under the TCA (Count VI). Omnipoint sues for injunctive relief, declaratory relief, damages, costs and attorney's fees.

Omnipoint moves for partial summary judgment under Count I of its Complaint. Defendants cross-move for summary judgment to dismiss all six counts in Omnipoint's complaint.

For the reasons stated below, plaintiffs Motion for Partial Summary Judgment as to Count I is granted. Defendants' Motion for Summary Judgment as to Counts III, IV and V is granted. Defendants' Motion for Summary Judgment as to Count II is denied. Count VI is subsumed into Counts I and II.


A. Local Rule 56.1(d)

Plaintiff has moved to strike defendant's Response to plaintiffs Rule 56.1 Statement of Facts and to deem defendants' unsupported general denials as admissions. Defendants failed to reply to plaintiff's motion to strike, and have supplied no explanation for this failure.

Local Rule 56.1(d) provides that "material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by opposing parties." In their response, defendants make general denials, and fail to, despite the voluminous record supplied by plaintiff in this matter, provide any record support or other basis for these denials. The Court is permitted to disregard such general denials when not supported by citations or if cited materials do not support factual assertions. See Watt v. New York Botanical Garden, Civ. No. 98-1095 (BSJ), 2000 WL 193626, at *1 n. 1 (S.D.N.Y. Feb. 16, 2000); see also Monohan v. New York City Dep't of Corrections, 214 F.3d 276, 292 (2000) (noting that statements filed under Local Rule 56.1 by party opposing summary judgment must be accompanied by citation to admissible evidence).

In their Response, defendants generally denied 41 of plaintiff's 61 statements of fact. The rest are admitted. They provided no record support for these denials. Defendants' unsupported general denials are not only unhelpful, they are misleading. For instance, defendants denied ¶ 21 of plaintiffs 56.1 Statement, which states: "[S]ection 1.3 of the Ordinance, setting forth the purposes of the Ordinance specifically provides that one purpose of the Ordinance is [t]o regulate and restrict the location of trades and industries in the location of `buildings' designed for specified `uses,' and for said purposes to divide the City into districts and to prescribe for each such district the trades and industry that shall be excluded or subjected to special regulation and the `uses' for which `buildings' may not be erected or altered.'" Plaintiff cited to the City of White Plains Zoning Ordinance located in the Record at pages 1262-63 (the "Zoning Ordinance"). Except for one small and inconsequential typographic error (sentence should read "and the location of `buildings'," not "in the location of buildings"), Omnipoint accurately quotes the Zoning Ordinance.

Defendants submitted a counter-statement of facts in support of their cross-motion for summary judgment. It it, they affirmatively pled statements of fact they had previously denied. For example, ¶ 7 of plaintiffs Rule 56.1 Statement avers: "On or about June 1, 2000, Omnipoint submitted the Application to the Board. The Application was submitted in accordance with Section 2.4 (Definitions), Section 6.2.25 (Special Permit Uses), and as required by Section 5.2 (List of Use regulations), Section 6.4 (Review Procedures), Section 6.5 (Standards), and Section 6.7.12 (Public Utility Standards) of the Ordinance." In their Response, defendants denied this paragraph. Yet, ¶ 5 of defendants' Rule 56.1 statement repeats this language verbatim.

This District has adopted Local Rule 56.1(d) for a reason: to supply the Courts with an accurate factual record and to prohibit parties from talking the kind of misleading and unfair "shortcuts" (i.e., unsupported denials) as defendants have used here. I will, therefore, accept all of plaintiffs proposed facts as true for purposes of this motion. See Watt, Civ. No. 98-1095 (BSJ), 2000 WL 193626, at *1 n. 1; Monahan, 214 FM at 292.

B. Pertinent Facts

The following facts are taken from Plaintiffs Statement of Undisputed Material Facts made pursuant to Local Rule 56.1, such of Defendants' Statement of Undisputed Material Facts that are admitted by plaintiff, and the substantial record before the Court.

Omnipoint provides integrated wireless personal communication services ("PCS") through a national wireless network using PCS technology. [Pl. Facts, ¶ 1.] Omnipoint received a PCS wireless broadcast license from the Federal Communications Commission ("FCC") for several cities, including the New York Metropolitan area. White Plains is part of this area.

The defendant Planning Board is an agency of the City of White Plains, and the individually named defendants are all members of this Board, having been appointed by the Mayor of White Plains. [Def. Facts, ¶ 3.] The Board has the delegated authority to grant applications for special permits and site development approval under the City of White Plains Zoning Ordinance (the "Zoning Ordinance").

Based upon Omnipoint's research and analysis, and as part of an extensive site review, Omnipoint determined that a 150 foot unmanned telecommunications monopole, with associated equipment (the "Facility") was needed in order to fill a gap in its coverage in the City of White Plains. [Pl. Facts, ¶¶ 1 & 2.] The proposed type of monopole is designed to look like a tree, and the antennas on such a monopole are "hidden" or camouflaged. [Pl. Facts, ¶ 3.] At some point in 2000, Omnipoint entered into an agreement with Fenway Golf Club to lease space for the Facility.

1. The Application and Hearing Process

On or about June 1, 2000, Omnipoint submitted its Application to the Board requesting a special permit and any and all other necessary permits to construct the Facility. This Application complied with all of the requirements set out in the Zoning Ordinance. [Pl. Facts, ¶ 7.] Section exempts Omnipoint's 150 foot monopole from the height limitations contained in the Ordinance. [Pl. Facts, ¶ 8.] As part of its Application, Omnipoint provided visual simulations of the proposed structure from various viewpoints. [Pl. Facts, ¶ 5.] Omnipoint presented evidence that the surrounding residential neighborhood is buffered by a mature and deciduous tree line. Id. It asserted that this natural buffer combined with the camouflaged monopole would mitigate the visual impact of the Facility to the greatest extent possible. Id. It showed that the greatest visual impact would be on the Fenway Golf Course itself, the lessor of the property. Id.

The Board held public hearings on the Application on July 11, 2000, September 12, 2000, October 10, 2000, November 14, 2000, December 19, 2000, January 16, 2001, February 13, 2001 and March 20, 2001. During the course of these hearings, extensive evidence, through both submitted reports and oral testimony, was presented to the Board on behalf of both Omnipoint and those residents opposed to the construction of the Facility.

(a) Gap in coverage evidencing a "public necessity"

Section of the Zoning Ordinance requires a finding that a "public necessity" exists for the erection of the Facility. In its Application, Omnipoint submitted an engineering report written by Richard A. Conroy a senior Radio Frequency Engineer at Omnipoint. The Report explained, with the aid of maps and charts, that there was a gap in Omnipoint's coverage in the White Plains area. It analyzed the possible construction of monopoles at various sites in the community, and determined whether a monopole at a particular site would close the coverage gap. The report concluded that a facility located at the Golf Course "is necessary to provide coverage [necessary to close the gap] as well as overlap with existing and planned sites." [Pl. Facts, ¶ 27.] The report stated that tower on any of the other sites examined would fail to close the gap.

Pursuant to the Board's request at the July 11, 2000 hearing, Omnipoint also submitted an Addendum to this report, dated July 20, 2000, describing six alternative installation scenarios with maps showing the coverage provided at each alternative location and combination of these locations, and finding that coverage lacking.

Chris Olson, a Radio Frequency Engineering Consultant for Omnipoint responsible for Omnipoints radio frequency design New York, testified at various hearings that he was familiar with the zoning Ordinance, the existing Facilities in White Plains, and the proposed Facility at the Golf Course. Mr. Olson testified to the existence of a gap in Omnipoint's coverage which needed to be filled by a new monopole facility. He also testified that the 150 foot tall proposed Facility on the Golf Course would fill this gap in Omnipoint's coverage. At the Board's suggestion, Olson tested additional sites, and combination of sites as alternative locations of an antenna facility. Of the sites that Omnipoint could possibly lease, Olson found that only two "combination" scenarios would close the coverage gap, and none of the individual sites would close the gap. Omnipoint's project planner later determined that the combination' scenarios would have a greater visual impact upon the community, and they were rejected as viable sites.

The evidence submitted by Omnipoint to demonstrate a significant gap in coverage and the necessity of the Facility to close such a gap included detailed analyses submitted by licensed radio frequency engineers. It was never rebutted by another radio frequency engineer. [Pl. Facts, ¶ 29.] The Board, however, rejected the evidence presented by Omnipoint. Id. Instead, based on testimony and letters from the public stating that cellular telephones serviced by other providers currently operated in the vicinity, the Board determined that no public necessity existed because other wireless providers were able to serve the "gap" area. Id. Nothing in the language of the Ordinance provides any requirement that there be no other provider in the area. [Pl. Facts, ¶ 30.] In previous Board decisions granting permits to similar monopole installations, the Board analysis related only to whether the applicant had demonstrated a gap in its service. See White Plains Planning Board Resolution approving SMSA Ltd. Partnership's Special Permit Use application for a Public Utility Structure consisting of a Cellular Radio Facility to be located on Old Road to Kensico, dated February 15, 1995, p. 7; White Plains Planning Board Resolution approving SMSA Ltd. Partnership's Special Permit Use application for a Cellular Facility/Public Utility to be located on North Street, dated June 10, 1998, p. 3, found at Mulrain Aff., Exhs. A & B; Pl. Facts, ¶ 33 [hereinafter "Kensico Road Decision" and "North Street Decision"].

(b) Visual/aesthetic impact

Prior to submitting its Application, Omnipoint engaged a professional planner, Donna Marie Stipo, to perform an evaluation of the aesthetic impact associated with installing the Facility on the Golf Course. Pl Facts, ¶ 39.] Stipo is the President of DMS Consulting Services, Inc. and a member of the American Planning Association. She is responsible for project planning for Omnipoint in Westchester, Rockland, Orange, Putnam, Nassau, Suffolk, Ulster and Duchess Counties.

As Stipo testified before the Board, to evaluate the aesthetic impact associated with the Facility, Stipo conducted a crane test which involved raising a crane the height of 150 feet. [Pl. Facts, ¶ 39.] With the crane mast lifted to 150 feet, Stipo traveled to each street within a one-mile radius of the Golf Course to determine the area from which the Facility would be visible. Id. In any instance where Stipo observed the crane, she then used a 50 mm camera to photograph it. Thereafter, Stipo utilized computer software to insert into her photographs a simulation of the Facility in the precise location and at the exact height that the crane and its mast were located. Id.

Stipo concluded that the greatest impact on the Facility would be to the Golf Course itself. self [Pl. Facts, ¶ 40.] In addition, Stipo testified that "Soundview is the closest or nearest residential roadway and that roadway was driven numerous times to make sure that [Stipo] would be able to spot the crane." Id. Based on Stipo's analysis and photo simulations, Stipo testified that "the crane is located or has a view with respect to one property and the property would be the closest home 258 Soundview Avenue." Id. 258 Soundview Avenue is situated approximately 350 feet "from the edge' of the Facility's compound." Id. Stipo further testified that the neighboring Temple Kol Ami "would not have a view of the structure [because] they have a heavily wooded area that provides a natural buffer." [Pl. Facts, ¶ 41.] According to the City's own tree height analysis, "[t]he trees to the north, between the proposed tower and the residences on Soundview Avenue and Kol Ami appear to be in good health and range in height from 80 to 100 feet." [Pl. Facts, ¶ 42.] Stipo testified that only four feet of the Facility would be visible at a 70-foot tree line. Id.

At the conclusion of the July 11 hearing, the Board requested that Omnipoint evaluate the feasibility of locating the proposed Facility on eight alternative sites, or on a combination of these alternative sites. [Pl. Facts, ¶ 43.] Omnipoint's engineer determined that only two of the proposed alternative sites would enable Omnipoint to adequately fill its coverage gap. Id. These two site scenarios involved the construction of several Facilities on a group of the alternative sites. Stipo made a visual impact analysis of these two scenarios and submitted her findings to the Board in a Supplemental Planning Analysis. Stipo concluded that both of these scenarios would have a more intrusive impact to the community than the proposed Facility at the Golf Coarse. Id.

During the course of these hearings, Stipo performed a visual impact analysis of the Facility at a different location on the Golf Course, at a point 40 feet further away from the nearest public street. She positioned a crane at that point on the Golf Course and performed the same analysis as she did for the proposed site. In her professional opinion, she found this location would be more visible to residents. Stipo concluded that from her crane tests, visual observations, and logistical planning reports, Omnipoint's proposed location for the monopole would have a minimal visual or aesthetic impact on the community, and would only be seen by those on the golf course and by one neighboring house.

The Board chose largely to disregard Stipo's photo simulations. [Pl. Facts, ¶ 46.] Because the Board did not attend the crane testing, it rejected Stipo's testimony, ruling that the failure to have Board members attend was in and of itself sufficient to support "an inference that visual impact analysis testing demonstrated that no measure could mitigate the visual impact of the proposed monopole." Id.; Decision, p. 23; Pl. Facts, ¶ 49.

The Ordinance contains no provision requiring or suggesting that an applicant conduct crane testing or other visual impact analysis. [Pl. Facts, ¶ 50.] Moreover, the Ordinance contains no requirement that if an applicant decides to conduct such visual impact analysis, that the Board must be notified, that the public be notified, or that the Board participate Id.

Another basis for the Board's Decision to deny Omnipoint's Application was its finding that "[p]hoto simulations provided by the Applicant are not very useful in the review of the project because they do not demonstrate the full visual impact of the tower, (i.e., views from the second story windows, backyards and different angles.)" [Pl. Facts, ¶ 53.] The Ordinance does not require any photo simulations or that such photo resolutions be taken from second story windows in resident homes, backyards of private property and at different angles. Id. At no point did the Board request that Omnipoint provide photo simulations from these locations. Id. In the previous applications relating to monopoles that the Board reviewed, the Board had accepted photo simulations similar to those submitted by Omnipoint, and had based favorable decisions on these photos. In those instances, the Board found that the photo simulations constituted substantial evidence. [Pl. Facts, ¶ 55.]

Those residents opposed to the Application submitted a visual impact study conducted by Charles P. May and Associates P.C., dated November 14, 2000. [Pl. Facts, ¶ 56; Def. Facts, ¶ 14.] May provided an "engineering cross-section" which purported to provide "what the scale of the actual tower would be in relationship to a home or actually a car or anything along those lines." Id. In support of this analysis, May also provided certain rudimentary diagrams. Id. As Omnipoint pointed out, May's submission, among other things, disregarded the actual topography of the area, the existing trees and the existing structures. [Pl. Facts, ¶ 57.]

In response to May's submission, Omnipoint provided additional expert testimony. Id. Omnipoint also provided a supplemental planning analysis to the Board. Omnipoint submitted an aerial photograph of the area prepared by the Westchester County Department of Planning which demonstrated the proposed structure in relation to the actual wooded tree line. Id. Additionally. Omnipoint witness Neil Wilson testified that May's study was flawed in that May "was raising a specific visual project using very general information." [Pl. Facts, ¶ 58.] Wilson charged that May's analysis is based on a "very flat plane, a desert like surface for apt description." Id. Wilson presented a corrected graph analysis, which included information publicly available regarding this area. [Pl. Facts, ¶ 59.]

The Board gave a considerable amount of weight to letters and testimony from nearby residents opining about the negative aesthetic impact of the proposed Facility. The Board also considered the testimony and numerous communications it received from the congregants of the Kol Ami Temple. The Temple's land abuts the Golf Course. These congregants expressed their concerns that the monopole would detrimentally effect their ability to worship at the Temple, especially in the glass-walled Schulman Chapel, known as the Chapel in the Woods.*fn1

(c) Property Values

Despite the detailed report submitted by Lane Appraisals, the Board found the evidence submitted by those opposed to Omnipoint's Application to be weightier. [Pl. Facts, ¶ 37.] This evidence consisted of a letter from an individual at an appraisal company and a letter from a realtor. Id. The letter from the appraisal company states his opinion that the creation of the monopole would have a significant detrimental affect on property value. This letter does not indicate, or even suggest, that its author visited the Golf Course site, was familiar with the Facility, analyzed home sales to support his opinion, or adhered to the requirements or guidelines of any professional association. Id. The realtor's letter is also conclusory, and opines that the Facility would constitute an "eyesore" which would lower selling prices of surrounding properties. Id. As with the appraiser's letter, no support was offered for the realtor's conclusions. Id.

2. The Decision

At the conclusion of the January 16, 2001 hearing, the Board closed the public hearing and advised Omnipoint that it intended to deny its Application. [Def. Facts, ¶ 8.] At the March 20, 2001 hearing, the Board denied the Application and issued a written resolution (the "Decision"). [Def. Facts, ¶ 9.]

In its Decision, The Board relied on Sections 1.2, 1.3, 1.5, 1.6 and 1.11 [Purposes], Sections 6.5.1 and 6.5.2 [Standards for Special Permit Uses], and Sections and [Specific Standards for Public Utility Structures] of the Zoning Ordinance. The Board denied Omnipoint's Application for a special permit and site development approval. The Board ultimately rejected Omnipoint's expert testimony and reports, visual impact analysis testing and photo simulations. [Def. Facts, ¶ 12.] The Board did accept the evidence submitted by those residents opposed to the Application. The Board denied Omnipoint's Application based on its "`Findings of Fact' and findings regarding the conformity of the Application to the Zoning Ordinance and the standards for review of the aesthetic impact of telecommunications installations established by the Planning Board in previous applications for similar installations." [Decision, p. 25.] Specifically, the Board found the there was substantial evidence that the Facility would have an adverse visual impact on the community, that property values would decline if the Facility were to be erected, and that Omnipoint had failed to establish that there was a gap in coverage that would create a "public necessity" for the Facility. [Decision, pp. 21-25.]

3. The Current Proceeding

Defendants cross-move for summary judgment on Omnipoints entire complaint. Defendants argue that they acted in accordance with both State and Federal law at all times, and rendered a decision which is ...

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