The opinion of the court was delivered by: Randolph F. Treece, United States Magistrate Judge
MEMORANDUM-DECISION AND ORDER
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
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).
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.
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 ...