substantial evidence. Omnipoint claims that the Board wrongly disregarded
or gave improper weight to the many studies and reports it submitted, and
to the testimony its experts gave, namely those by the radio frequency
engineers, the reports, photos and testimony of Donna Marie Stipo, and
the detailed appraisal of homes in areas where cell phone towers were
built, compiled by Lane Appraisals. Omnipoint argues that the Board's
reliance on the non-expert testimony of residents and Kol Ami
congregants, the unsupported opinions of a local realtor and an appraisal
company, and a faulted visual impact analysis was improper because these
submissions did not constitute "substantial evidence" in light of the
totality of the evidence submitted.
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 within
that substantial evidence standard of the TCA.
Defendants argue that this action is now moot because, on October 19,
2001, the Fenway Golf Club terminated the Revocable Agreement*fn2
between itself and Omnipoint, on the ground that Omnipoint had not
obtained "by the end of the Option Period (as defined in the Revocable
Agreement) all appropriate White Plains govern mental approvals
authorizing its construction and use of the PCS and associated antenna."
See Citron Aff., Exh. A. It does appear that the agreement has expired.*fn3
Although the termination of the agreement does make the award of
injunctive and declaratory relief moot, it does not moot the case.
In its Complaint, Omnipoint sued for damages for violation of the TCA
and & 1983, and for costs and attorneys fees, in addition to its
claims for injunctive and declaratory relief. "The availability of
damages or other monetary relief almost always avoids mootness." See
Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction
2d § 3533.3, at p. 261 (1984 & 2001 Supp.). Even if the "amount
at issue is undeniably minute . . . as long as the parties have a
concrete interest, however small, in the outcome of the litigation, the
case is not moot." Ellis v. Brotherhood of Railway, Airline and Steamship
Clerks, Freight Handlers, Express and Station Employees, 466 U.S. 435,
442, 104 S.Ct. 1883, 1889, 80 L.Ed.2d 428 (1984). See also Ellis v.
Blum, 643 F.2d 68, 82-83 (2d Cir. 1981) (finding that although plaintiffs
claim was mooted on her claims for injunctive and declaratory relief, a
live damages claim for $1500 "save[d] the action from the bar of
Here, Omnipoint has alleged that defendants violations of law caused it
to suffer money damages. If White Plains did indeed violate the TCA and
§ 1983, the very issue that moots the claims for declaratory and
injunctive relief — failure to issue the necessary special permits
— gives rise to
damages for such items as lost revenue due to coverage gaps and costs
incurred in the fruitless effort to build the monopole. The amount of
said damages may be significant.*fn4
Of course, if plaintiff cannot collect damages under either the TCA or
§ 1983 as a matter of law, it cannot avoid having the complaint
dismissed as moot. I conclude, however, that § 1983 affords plaintiff
relief, in the form of damages, for any violations of the TCA committed
Omnipoint asserts that defendants violated 42 U.S.C. § 1983 by
violating its federal rights under the TCA. In response, defendants argue
that a violation of the TCA does not support a § 1983 claim.
The Second Circuit has never decided whether a violation of the TCA can
support § 1983 claim. Indeed, no court of appeals has addressed this
issue.*fn5 Several district courts in the Second Circuit, however, have
affirmatively held that § 1983 relief is available for violations of
the TCA. See Sprint Spectrum, L.P. v. Mills, 65 F. Supp.2d 161, 162
(S.D.N.Y. 1999); see also SBA Communications, Inc. v. Zoning Comm'n of
the Town of Franklin, 164 F. Supp.2d 280, 294-95 (D.Conn. 2001); SBA
Comm., Inc. v. Brookfield, 96 F. Supp.2d 139, 142 (D.Conn. 2000):
Omnipoint Comm. v. Wallingford, 91 F. Supp.2d 497 (D.Conn. 2000); Cellco
Partnership v. Farmington, 3 F. Supp.2d 178 (D.Conn. 1998): Smart SMR of
New York Inc. v. Zoning Comm'n of the Town of Stratford, 995 F. Supp. 52,
60-61 (D.Conn. 1998). I concur with their reasoning.
Section 1983 may be employed to remedy violations of federal statutes.
See Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555
(1980). Section 1983 remedies are not available in actions for violations
of all federal statutes, however. In order to state a claim under §
1983, Omnipoint must meet two requirements. First, the federal statute
must create private rights enforceable under § 1983; second, the
statute must not evidence congressional intent to foreclose a cause of
action under § 1983. See Blessing v. Freestone, 520 U.S. 329, 117
S.Ct. 1353, 137 L.Ed.2d 569 (1997).
Blessing controls whether the TCA gives rise to a federal right. This
Court must consider whether (1) Congress intended the statutory provision
to benefit the plaintiff; (2) the right allegedly protected by the TCA is
not so "vague and amorphous" that its enforcement would strain judicial
competence; and (3) the TCA clearly imposes a binding obligation on the
states. Town of Franklin, 164 F. Supp.2d at 295 (citing Blessing, 520
U.S. at 329, 117 S.Ct. 1353).
I must first decide whether Congress intended that the TCA benefit the
plaintiff. Blessing, 520 U.S. at 340, 117 S.Ct. 1353. The TCA allows "any
person adversely affected by any final action or failure to act by a State
or local government or any instrumentality thereof that is inconsistent
with this subparagraph" to "commence an action in any court of competent
jurisdiction." 47 U.S.C. § 332 (c)(7)(B)(v). According to the plain
meaning of the statute, Omnipoint, as the recipient of an improperly
decided denial, is an intended beneficiary of the TCA.
Next, I must consider whether "the right assertedly protected by the
statute is not so `vague and amorphous' that its enforcement would strain
judicial competence." Blessing, 520 U.S. at 340, 117 S.Ct. 1353. The
plain language of the TCA vests enforcement with the judiciary
47 U.S.C. § 332 (c)(7)(B)(v). Congress itself believed that the
rights protected by the TCA should be protected by the courts. I find
that enforcement of the TCA would not strain judicial competence.
Finally, I must decide whether the TCA "unambiguously impose[s] a
binding obligation." Blessing, 520 U.S. at 341, 117 S.Ct. 1353. The TCA
uses the term "shall," which is a mandatory term. See 47 U.S.C. § 332
(c)(7)(B)(i)-(iii). Accordingly, the TCA imposes binding obligations on
state and local government. The TCA satisfies the three prongs described
in Blessing. Accordingly, I find that plaintiffs are enforcing a federal
right under the TCA.
Once a statute is found to create a federal right, "there is I a
rebuttable presumption that the right is enforceable under § 1983."
Blessing, 520 U.S. at 341, 117 S.Ct. 1353. This presumption will rebutted
if Congress explicitly or implicitly foreclosed a remedy under §
1983. Id. Congress did not explicitly foreclose § 1983 remedies. To
the contrary, Congress explicitly endorsed alternative remedies under the
TCA. A provision of the TCA provides: "This Act and the amendments made
by this Act shall not be construed to modify, impair, or supersede
Federal, state, or local law unless expressly provided in such Act or
amendments." Pub.L. No. 104-104, § 601(c)(1), 110 Stat. 143 1996
(reprinted in 47 U.S.C. § 152, historical and statutory notes). The
presumption that Omnipoint's federal right under the TCA is not foreclosed
by Congress is not rebutted. Section 1983 remedies are viable under the
Because Counts I, II, III and IV seek damages under § 1983 for
defendants' alleged violations of the TCA, these claims are not moot.
Count V, however, alleges a violation of Civil Practice Laws and Rules
(Article 78). Damages may not be awarded under Article 78. Accordingly,
Count V is dismissed as moot.*fn6
II. Governing Law
A. The City of White Plains Zoning Ordinance
The Zoning Ordinance applies to many types of structures within the
city of White Plains, from swimming pools to hotels to fast food
restaurants. A PCS monopole is considered a public utility. Sections
5.1, 6.5, 6.7.12 of the Zoning Ordinance set forth the criteria for the
construction of a public utility structure in the R1-30 zoning district
in which the Golf Course resides. The Board purportedly denied
Omnipoint's Application on the basis of particular sections of the Zoning
Section 1 lists the overarching "Purposes" of the Zoning Ordinance. The
Board relied on several of these purposes in its denial of Omnipoint's
Application. They are excerpted as follows:
1.2 . . . these regulations are designed to promote
. . . the most desirable "use" for which the land of
each district may be adapted and are intended to
conserve the value of "buildings" and enhance the
value of land throughout the City.
1.3 These regulations are designed to promote the
public health, safety and general welfare and are
with reasonable consideration, among other things, to
the character of the district, its peculiar
suitability for particular "uses," the conservation of
property values and the direction of building
development, in accord with a well considered plan.
1.5 To protect the character and the social and
economic stability, and to encourage the orderly and
beneficial development of the City and all of its
1.6 To . . . minimize conflicts among the "uses" of
1.8 To provide a guide for public policy and action in
the efficient provision of public facilities and
services, and for private enterprise in building
development, investment, and other economic activity
relating to "uses" of land throughout the City.
1.11 To preserve the natural beauty of the City; to
protect the City against unsightly, obtrusive, and
obnoxious land "uses" and operations; to enhance the
aesthetic aspect of the natural and manmade elements
of the City; and to ensure appropriate development
with regard to those elements.
Section 6.5 of the Zoning Ordinance provides general standards with
which all special permit uses must comply. The relevant provisions are as
(6.5.1 The location and size of the special permit
"use," the nature and intensity of the operations
involved in or conducted in connection with it, the
size of the site in relation to it and the location of
the site with respect to "streets" giving access to it
are such that it will be in harmony with the
appropriate and orderly development of the area in
which it is located.
6.5.2 The location, nature and "height" of
"buildings," walls, fences and the nature and extent
of the existing or proposed plantings on the site are
such that the special permit "use" will not hinder or
discourage the appropriate development and "use" of
adjacent land and "buildings."
Section 6.7.12 establishes specific standards for "public utility"
"structures," such as the proposed monopole. They are as follows: