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November 20, 2002


The opinion of the court was delivered by: Randolph F. Treece, United States Magistrate Judge


Plaintiff Omnipoint Communications, Inc., ("Omnipoint"), brings this action pursuant to the Telecommunications Act of 1996 ("the Act"), 47 U.S.C. § 253(a) and 42 U.S.C. § 1983. Omnipoint moves for partial summary judgment on the issue of liability pursuant to Fed.R. Civ. P. 56(a).*fn1 Docket Nos. 22-26. Defendants Richard Comi, Comi Telecommunications Services, Lawrence (Rusty) Monroe and Monroe Telcom Associates (referred to either separately as "Comi" or "Monroe" or collectively as "Defendants"), oppose Omnipoint's motion (Docket Nos. 32-33, 35) and have cross-moved for summary judgment pursuant to Fed.R.Civ.P. 56(b) (Docket Nos. 27-32). The parties have consented to have the assigned U.S. Magistrate Judge conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c) and N.D.N.Y.L.R. 72.2. Docket No. 15. For the reasons that follow, Omnipoint's motion for summary judgment is denied and Defendants' cross-motion for summary judgment is granted.

I. Summary Judgment Standard

Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The moving party bears the burden to demonstrate through "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any," that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). To defeat a motion for summary judgment, the non-movant must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts submitted by the movant. Fed.R.Civ.P. 56(e); see also Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998).

II. Background

A review of the parties' papers demonstrates that there are no genuine issues of material fact. Thus, the facts discussed herein are mostly extrapolated from the parties' N.D.N.Y.L.R. 7.1 Statements of Material Facts ("7.1 Statement"), unless otherwise noted. Docket Nos. 23, 28 & 33. It must be noted, however, that Omnipoint has not submitted a response to Defendants' 7.1 Statement in support of their motion for summary judgment. Thus, for any facts set forth in Defendants' 7.1 Statement in support of their motion for summary judgment that were not addressed in Omnipoint's 7.1 Statement, such facts are deemed admitted. See N.D.N.Y.L.R. 7.1(a)(3) ("Any facts set forth in the Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." (emphasis in original)).

In March 1998, Comi was retained by the Town of Barker ("Town") to provide consultation on various telecommunications issues. Def. 7.1 Statement (Docket No. 28), ¶ 8. Comi, in conjunction with Monroe, were hired by the Town to prepare a telecommunications tower ordinance, to review and analyze any applications for cellular towers and related facilities and to advise the Town with respect to a proposal by Omnipoint to lease Town property for the construction of a cellular tower. Id. at ¶ 9. In March 1998, at the Town's request, Defendant provided a proposed local law, establishing a four month moratorium on the issuance of Town permits for the construction of telecommunications towers and related facilities. Id. at ¶ 12. On March 23, 1998, the Town enacted the Telecommunications Towers Moratorium ("moratorium"), without first obtaining review by the Broome County Planning Board ("Planning Board"). Id. at ¶ 14; Pl. 7.1 Statement (Docket No. 23), ¶ 5. On July 13, 1998, the Town extended the moratorium until August 3, 1998, without first obtaining review of the extension by the Planning Board. Pl. 7.1 Statement, ¶¶ 6 & 7.

On or about March 19, 1998, Omnipoint presented to the Town a proposal for the lease of property located at Hyde Street and owned by the Town. Def. 7.1 Statement, ¶ 10. In exchange for lease payments, Omnipoint proposed to construct a 175 foot tower antenna and related wireless equipment on the property. Id. at ¶ 11. In April and May of 1998, Comi began to negotiate on behalf of the Town with Omnipoint, concerning the proposed lease. Id. at ¶ 15. The Town, at all times, approved the negotiations conducted by Comi. Id. at ¶ 16. Further, the Town's attorney was present at all meetings. Id. Negotiations continued into June 1998, but the parties were unable to reach an agreement. Id. at ¶ 20. Therefore, on June 22, 1998, Omnipoint formally withdrew its proposal to lease Town property. Id.

On August 3, 1998, the Town enacted Local Law No. 1 of 1998, titled the Telecommunications Tower siting and Special Use Permit Law ("Local Law No. 1"). Id. at ¶ 21. The language of Local Law No. 1 was based on a draft ordinance provided by Comi under the consulting services contract. Id. at ¶ 22. Local Law No. 1 imposed, inter alia, special use permit requirements and application fees on telecommunications providers. See Spitzer Decl. (Docket No. 24), Ex. A. Local Law No. 1 also required telecommunication services to first be constructed on publicly owned land before construction could be started on privately owned land. See id. On August 25, 1998, Omnipoint submitted an application to the Town for construction of a telecommunications tower and related facilities on property to be leased from Russell Jackson. Def. 7.1 Statement, ¶ 26. Pursuant to Local Law No. 1, Omnipoint paid a $6,000 application fee and a total of $14,858.69 in application review fees to the Town. Kulik Decl. (Docket No. 25), ¶¶ 17 & 19. Apparently, these fees were used to compensate Defendants for their services under the consulting services contract. Id. at ¶ 19. Comi reviewed the application and provided the Town with its opinions and advice under the contract. Def. 7.1 Statement, ¶ 27; Pl. 7.1 Statement, ¶ 22. At the Town's direction, Defendants communicated various deficiencies in the application to Omnipoint as well as the additional materials submitted by the company through January 1999. Def. 7.1 Statement, ¶ 28. On March 8, 1999, the Town Board held a public hearing on Omnipoint's application, which was ultimately approved by the Town. Id. at ¶¶ 30 & 31. Omnipoint was issued construction permits on June 15, 1999, and the tower became operational on June 30, 1999. Id. at ¶¶ 31 & 32.

On November 15, 1999, the Town adopted Local Law No. 2 of 1999 (Local Law No. 2), which by its terms rescinded Local Law No. 1. Id. at ¶ 35. Omnipoint commenced this action on November 12, 1999. Docket No. 1. Aside from these Defendants, the complaint also named the Town, the Town Board, Lois Dilworth, Paul L. Smith, Albert Chasse, Gary Blackman and Terry Dean, all of whom constituted the Town Board ("Town Defendants"). By approval of the Court on January 7, 2002, a settlement was reached between Omnipoint and the Town Defendants. Docket No. 17. By the settlement terms, the Town declared that Local Law No. 1 was illegal. Id.

III. Procedural Issues

A. Statute of Limitations

As an initial matter, Defendants contend that Omnipoint's claims under the Act are barred by the applicable statute of limitations.

The Act vests federal courts with the authority to review actions or omissions by state and local governments regarding the construction of telecommunications equipment. See 42 U.S.C. § 332(c)(7)(B)(v). A plaintiff, however, must seek judicial review within 30 days after the action or failure to act. Id. Here, Omnipoint received its construction permits on June 14, 1999, and its tower became operational on June 30, 1999. Thus, Omnipoint should have filed its complaint no later than September 1, 1999. It, however, did not file this action until November 12, 1999. Docket No. 1. Nonetheless, Defendants did not plead or raise in a timely manner the statute of limitations affirmative defense. See Docket No. 4; see also Chimblo v. Commissioner of Internal Revenue, 177 F.3d 119, 125 (2d Cir. 1999) ("As a general matter, the statute ...

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