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
Soon after the close of the Common Council's public hearing on January
24, 2000, a number of River House residents independently contacted Mayor
Kelly and other members of the Common Council to complain about
Omnipoint's special permit application. 56.1 Stmt. ¶ 27. In
these residents complained that they did not receive adequate
notice of Omnipoint's application, and expressed concerns about possible
adverse health effects from Omnipoint's wireless facility installation.
56.1 Stmt. ¶ 28. Mayor Kelly determined that the dispute warranted
further review. 56.1 Stmt. ¶ 29. Another member of the Common
Council, William Schmidt, served as the liaison between Common Council
and the River House residents with respect to Omnipoint's special permit
application. 56.1 Stmt. ¶ 30.
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 information about the
contractual relationship between Omnipoint and RROC. 56.1 Stmt. ¶
35; Madaffari Dep. at 11-12; Schmidt Dep. at 38-41.
By letter dated March 6, 2000, Omnipoint's counsel requested that the
matter of Omnipoint's application be placed on a Common Council agenda
for a determination. 56.1 Stmt. ¶ 37, Pl.'s Ex. 19. Omnipoint's
letter request pointed out that under General City Law § 27-b(6), the
Common Council was required to render its decision on Omnipoint's
application within sixty-two (62) days after the close of its public
hearing, which would be March 26, 2000 (a Sunday). 56.1 Stmt. ¶ 38,
Pl.'s Ex. 19. The Common Council placed the Omnipoint matter on its
agenda for March 27, 2000. 56.1 Stmt. ¶ 39.
Annexed to the public meeting calendar for March 27, 2000 was an
amended version of the Resolution which the Common Council had previously
proposed for the conditional approval of Omnipoint's application. In
addition to the prior pro forma conditions however, four new conditions
5. The Special Permit shall only be valid for as
long as the applicant has a valid contract with
the River House;
6. That other public utility facilities may
co-locate at the site subject to review and
approval under the City's antenna ordinance;
7. The applicant shall comply with the all [sic]
section [sic] of the City of Peekskill Antenna
Ordinance that was enacted on March 27, 2000;
8. That no additional antennae or other accessory
transmitting devices shall be installed nor shall
facilities be sublet/subleased
without specific approval by the City of
Peekskill, including amendment to the Special
56.1 Stmt. ¶ 41, Pl.'s Ex. 21.
At the outset of the public meeting, the Common Council announced that
it had discussed the Omnipoint application in executive session and that
its originally proposed Resolution had been "substantially amended." 56.1
Stmt. ¶ 42; Pl.'s Ex. 22. The Common Council then presided over an
"open microphone" session during which a number of River House residents
voiced their strong opposition to the application. 56.1 Stmt. ¶ 43,
Pl.'s Ex. 22.
According to the certified minutes of that session, Mayor Kelly made a
number of statements indicating that the Common Council would investigate
their complaints and scrutinize the contractual relationship between
Omnipoint and RROC. 56.1 Stmt. ¶ 44, Pl.'s Ex. 22, at pp. 5-6, 8,
10. Councilman Schmidt made similar remarks. 56.1 Stmt. ¶ 45, Pl.'s
Ex. 22. The Common Council then proceeded to adopt a resolution with a
total of thirteen (13) conditions. 56.1 Stmt. ¶ 46, Pl.'s Ex. 23. In
addition to the eight (8) conditions which had already been proposed by
the Common Council, the March 27, 2000 Resolution, as adopted, added the
following five (5) conditions:
9. The submission of a complete copy of the fully
executed contract with River House (River Ridge
10. A fully executed copy of the Corporate
Resolution authorizing execution of the
Omnipoint Contract by the Board of Directors of
the River Ridge Owners Corporation in accordance
with the ByLaws of the Cooperative Apartment
11. Review of the application, at the applicant's
expense, by a qualified engineer and/or
consultant selected by the Common Council during
Site Plan Approval by the Planning Commission;
12. Proof of Liability Insurance in an amount deemed
acceptable to the Corporation Counsel; [and]
13. Proof of financial Security in an amount deemed
acceptable to the Corporation Counsel.
56.1 Stmt. ¶ 47, Pl.'s Ex. 23.