The opinion of the court was delivered by: McMAHON, Judge
Omnipoint Communications, Inc. ("Omnipoint") brings this action against
the Common Council of the City of Peekskill, the City of Peekskill and
Richard DiMarzo, the Director of Public Works of the City of Peekskill,
alleging violations of the Federal Telecommunications Act of 1996,
47 U.S.C. § 332 (the "TCA") and Article 78 of the New York Civil
Practice Laws and Rules for the Common Council's denial of Omnipoint's
application for a special permit to install a personal wireless service
facility (three rooftop antennas and a small equipment cabinet) atop
River House, a residential apartment building located at 150 Overlook
Avenue, Peekskill, New York.
Omnipoint alleges a violation of Section 704 of the TCA,
47 U.S.C. § 332 (c)(7)(B)(i)(I), alleging that the defendants
unreasonably discriminated among providers of functionally equivalent
services (Count 1); a violation of 47 U.S.C. § 332 (c)(7)(B)(ii)
alleging that the defendants caused unreasonable delay in their
processing of Omnipoint's application (Count 2); a violation of
47 U.S.C. § 332(c)(7)(B)(iii) alleging that the Common Council's
decision was not supported by substantial evidence (Count 3); a violation
of 47 U.S.C. § 332(c)(7)(B)(iv) alleging that defendants impermissibly
based their decision on the basis of the unsupported fears of local
residents with respect to radio frequency emissions from the facility
(Count 4). Omnipoint also alleges a violation of Article 78 of the Civil
Practice Laws and Rules of New York, N.Y. CPLR § 7803(4) (Count 5),
and the Peekskill Zoning Code, Section 300-56 for impermissibly amending
the Zoning Code by substituting the Common Council for the Director of
Public Works as the officer that issues special permits (Count 6).
Omnipoint seeks injunctive relief vacating, annulling and setting aside
Common Council's Resolution denying Omnipoint's application, and further
requests this Court to direct the issuance of a Special Permit, building
permits and any other permits, approvals or licenses necessary for
erection and construction of the Facility. Omnipoint also sues for
declaratory relief, costs and attorney's fees.
Omnipoint moves for summary judgment under Counts 1, 2, 3, 5 and 6 of
its Complaint. No motion was made as to Count 4. For the reasons stated
below, plaintiffs Motion for Summary Judgment is granted.
FACTS PERTINENT TO THE MOTION
A. Local Rule 56.1 and Fed. R. Civ. P. 56(e)
Omnipoint argues that all of the facts set forth in its Rule 56.1
statement should be deemed admitted because defendants have not submitted
a response to Omnipoint's statement of facts. Omnipoint further argues
that paragraphs 3-9, 11-18 and 20-21 of Defendants' Affirmation in
Opposition contravenes Fed. R. Civ. P. 56(e), and should be stricken.
Rule 56.1 of the Local Civil Rules of the United States District Courts
for the Southern and Eastern Districts of New York ("Local Rule 56.1")
requires a party moving for summary judgment to submit "a separate, short
and concise statement" setting forth material facts as to which there is
no genuine issue to be tried. Local Rule 56.1(a). A party opposing
summary judgment must respond with a statement of facts, containing
citations to admissible evidence as to which a triable issue remains.
Local Rule 56.1(b) & (d). The facts set forth in a moving party's
statement "will be deemed admitted unless controverted" by the opposing
statement. Local Rule 56.1(c); Omnipoint Communications, Inc. v.
City of White Plains, 175 F. Supp.2d 697, 700 (S.D.N.Y. 2001).
Defendants have failed to respond to plaintiffs Rule 56.1 Statement of
Material Facts. Therefore, the facts set forth in Omnipoint's Rule 56.1
Statement are deemed admitted by defendants.
Fed. R. Civ. P. 56(e) provides that "opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is competent
to testify to matters stated therein." An attorney's affidavit which is
not based on personal knowledge of the relevant facts should be accorded
no weight on a motion for summary judgment. See Wyler v. United States,
725 F.2d 156, 160 (2d Cir. 1983). When an attorney's affirmation does not
comply with Rule 56(e), the court should strike the portions thereof
which are not made upon the affiant's personal knowledge, contain
inadmissible hearsay or make conclusory statements. See Hollander v.
American Cyanamid Co., 172 F.3d 192, 198 (2d Cir.), cert. denied,
528 U.S. 965, 120 S.Ct. 399 (1999); United States v. Private Sanitation
Industry Assoc. of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084 (2d Cir.),
cert. denied sub nom, 516 U.S. 806, 116 S.Ct. 50 (1995).
William Florence, Esq. submitted an affidavit — the only
submission in response to plaintiffs motion — in opposition to
plaintiffs motion for summary judgment. This affidavit is filled with
conclusory statements of law and fact that could not be in Mr. Florence's
personal knowledge, and are not supported by factual evidence. Paragraphs
3-9, 11-18 and 20-21, to the extent that they contain conclusory
statements of law or information not possibly based on personal
information, are stricken and will be disregarded.
The facts set forth below are taken from plaintiffs Rule 56.1
statement. Nonetheless, they will be viewed in a light most favorable to
defendants, the non-moving party.
Omnipoint is a provider of wireless telecommunication services,
licensed by the Federal Communications Commission to construct, maintain
and operate a Personal Communications Service ("PCS") system nationwide
and, more particularly, in the New York metropolitan area including
Defendant, Common Council of the City of Peekskill ("Common Council"),
is the duly organized legislative and governing body of the City of
Peekskill, with the responsibility for approving and authorizing special
permits for public utility installations within the City of Peekskill, New
Defendant, Richard DiMarzo, is the duly appointed Director of Public
Works of Peekskill, with the responsibility and statutory authority to
issue special permits, upon the authorization of Common Council, and to
issue building permits.
1. Special Permit Application Process
This sequence of applications and approvals are referenced in Peekskill
Zoning Code § 300-23(C). Although the statute has since been
amended, it formerly provided as follows:
Uses subject to the issuance of a Common Council
special permit. The following uses are permitted
subject to the issuance of a special permit by the
Director of Public Works upon authorization by the
Common Council in accordance with the provisions of
§ 300-55 herein and subsequent approval by the
Planning Commission of a site plan in accordance with
the provisions of § 300-54 herein:
(3) Public utility installations which are needed to
serve the city or the immediate neighborhood, subject
to a determination by the Board of Appeals that no
other reasonable location in a less restricted
district can be used for the purpose contemplated, and
subject, further, to such conditions as the Planning
Commission may deem to be appropriate for the
protection of adjoining uses and of the character of
If the Common Council approves the issuance of a special permit, then
the applicant returns to the Planning Commission to seeks final site plan
approval. Once all of these steps are successfully completed, an applicant
may then obtain a special permit from the Director of Public Works. See
Peekskill Zoning Code § 300-55(A). With a special permit secured, an
applicant may then submit the necessary construction drawings to the
Department of Public Works and apply for a building permit. See Peekskill
Zoning Code § 300-47(A) and (D).
Omnipoint claims that other telecommunication providers in the City of
Peekskill that have leased space for their wireless facilities on
municipal property have not been required to undertake this process. The
City of Peekskill owns and maintains a parcel of property with two
municipal water tanks which are known as the Forest View Water Tanks.
56.1 Stmt. ¶ 14. These 75-foot high water tanks have served as the
site for a number of private wireless communications facilities. 56.1
Stmt. ¶ 15.
None of these other private wireless communications providers were
required by the City of Peekskill to obtain a special permit in order to
install their wireless facilities on the Forest View Water Tank site.
56.1 Stmt. ¶ 16. Instead, these wireless providers simply applied for
and received building permits from the City of Peekskill. Id. For
example, on or about October 25, 1996, the City of Peekskill and AT&T
Wireless Services entered into a lease agreement for the installation of
nine (9) wireless communication antennas on one of the Forest View Water
Tanks. 56.1 Stmt. ¶ 17. Under the terms of the lease, AT&T Wireless
Services agreed to pay the City of Peekskill a monthly rent of
$2,000.00. 56.1 Stmt. ¶ 18; Lease Agreement at ¶ 4 (Pl.'s Ex.
9). AT&T Wireless Services also agreed to "donate" two (2) AT&T cellular
phones to the City of Peekskill, and to further donate $80.00 per month
towards their use. See id.
The zoning aspects of the AT&T Wireless Services application were
processed "in house" by the Department of Planning and Development. 56.1
Stmt. ¶ 19; Pl.'s Ex. 10. AT&T Wireless Services did not apply for a
special permit or site plan approval, but instead merely applied for a
2. Omnipoint's Application for a Special Permit
On or about December 28, 1998, Omnipoint entered into a Standard Lease
Agreement with the River Ridge Owners Corp. ("RROC"), the owner of River
House, for Omnipoint's installation of a personal wireless service
facility atop the roof of the River House apartment building. 56.1 Stmt.
Omnipoint proposed to construct a personal wireless service facility at
River House. This proposed facility would not require the construction of
a monopole or other tall structure on which antennas would be mounted.
Omnipoint's installation of antennas on top of the roof of the existing,
eight-story building would have little or no visual effect. 56.1 Stmt.
¶ 4; Pl.'s Decl. ¶ ¶ 3-4.
Thereafter, on January 15, 1999, the President of RROC, William J.
Proceller, executed a Letter of Authorization on behalf of RROC
authorizing Omnipoint to apply for all necessary permits and approvals in
connection with the River House installation. 56.1 Stmt. ¶ 6. On or
about June 28, 1999, after discussions with Peekskill's Department of
Planning and Development, Omnipoint filed an Application For Site Plan
Review, together with other documentation, drawings and the requisite
application fee, with said Department. 56.1 Stmt. ¶ 7.
As Omnipoint moved through the initial stages of the approval process,
its application received favorable recommendations. By letter
determination dated October 21, 1999, the City of Peekskill Zoning Board
of Appeals concluded that Omnipoint's proposed River House wireless
installation "could not be located in a less restricted district and
provide the same level of service to the City of Peekskill . . ." 56.1
Stmt. ¶ 20; Pl.'s Ex. 13.
3. Common Council's Review of Omnipoint's Special Permit Application
Thereafter, during a public meeting held on November 9, 1999, the City
of Peekskill Planning Commission reviewed Omnipoint's application and
voted unanimously to issue a favorable recommendation to the Peekskill
Common Council. 56.1 Stmt. ¶ 21; Pl.'s Ex. 14. By letter dated
November 9, 1999, the City of Peekskill Planning Commission transmitted
its favorable recommendation to the Common Council. Pl.'s Ex. 15.
Specifically, the Planning Commission advised the Peekskill Common Council
that "based on discussions held during the meeting and pursuant to Staff
recommendation, the Planning Commission voted to recommend approval of
the requested Special Permit." 56.1 Stmt. ¶ 22; Pl.'s Ex. 22
(emphasis in original).
On January 24, 2000, seven months after Omnipoint filed its special
permit application, Peekskill Common Council opened and closed a public
hearing with respect to Omnipoint's special permit application. 56.1
Stmt. ¶ 23. John Kelly, Mayor of the City of Peekskill and member of
the Common Council, explained that there was little discussion at the
public hearing with respect to Omnipoint's application, and none of the
residents of River House appeared at the hearing to comment. 56.1 Stmt.
¶ 24. A proposed Resolution approving Omnipoint's application was
annexed to the public agenda, but the Common Council did not vote upon it
at that time. This proposed Resolution was subject to four (4) pro forma
Shortly after the public hearing on January 24, 2000, Councilman
Schmidt met privately with a group of River House residents in order to
hear their complaints concerning the Omnipoint application. 56.1 Stmt.
¶ 31. This private meeting was held in the apartment of Ms. Stella
Johnson, a resident of River House. Councilman Schmidt explained that, at
the meeting, the River House residents expressed to him that their board
of directors was keeping them in the dark about the Omnipoint proposal,
and they were disturbed that they had not known about the proposal until
this time. 56.1 Stmt. ¶ 32; Schmidt Dep. at 24 (Pl.'s Ex. 18). The
residents also expressed concerns about the possible adverse health
effects of the proposed wireless communications facility. Id. Councilman
Schmidt never attempted to contact any members of RROC's Board of
Directors or representative of Omnipoint concerning the application. 56.1
Stmt. ¶ 33.
Following the complaints of certain River House residents, the Common
Council convened at least two "executive sessions" to formulate a
response. 56.1 Stmt. ¶ 34. These executive sessions were closed to
the general public, conducted without any notice to Omnipoint and no
minutes were taken. 56.1 Stmt. ¶ 36. During these executive
sessions, the Common Council agreed that it would amend the Resolution it
had proposed in connection with the January 24, 2000 public hearing, and
added more conditions designed to discover ...