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May 14, 2002


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.


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 party's 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.

B. Pertinent Facts

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 Westchester County.

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 York.

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

Under the provisions of the Peekskill Zoning Code that governed Omnipoint's special permit application, the filing of a site plan application marks the first step in the approval process. Next, an applicant, such as Omnipoint, is required to seek a determination from the City of Peekskill Zoning Board of Appeals that no other reasonable location in a less restricted zoning district could be used for the proposed installation. 56.1 Stmt. ¶ 8. An applicant is then required to seek a recommendation from the Peekskill Planning Commission concerning the issuance of a special permit. Thereafter, an applicant is required to appear before the Common Council to obtain approval for issuance of a special permit. 56.1 Stmt. ¶ 9.

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 the district.

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 building permit.

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. ¶ 5.

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 conditions.

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 ...

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