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March 4, 2003


The opinion of the court was delivered by: Siragusa, District Judge.


Before the Court is plaintiff's motion (docket #7) for summary judgment on its complaint (docket #1), which alleges that defendants have violated the Telecommunications Act of 1996 and state law by failing to permit Nextel Partners, Inc. ("Nextel") to add cellular telephone antennae to an existing guyed tower in the Town of Amherst, New York ("Town"). For the reasons stated below, the Court grants Nextel's motion, and orders the filing of additional information pertinent to Nextel's motion for a reasonable attorney's fee and costs pursuant to 42 U.S.C. § 1988.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).


"When a party has moved for summary judgment on the basis of asserted facts supported as required by Federal Rule of Civil Procedure 56(e) and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992). Here, Nextel has filed a statement of facts as required by the local rules,*fn1 and defendants, represented by counsel admitted*fn2 to practice in this Court, have not, nor have defendants controverted any of Nextel's asserted facts. Therefore, in accordance with the rules set out above, the Court will deem Nextel's statement of facts admitted. There being no issue of material fact, the Court must determine whether defendants have shown entitlement to judgment as a matter of law.

Nextel is a wireless telecommunications company that is authorized, pursuant to a license from the Federal Communications Commission, to offer wireless communication services to consumers throughout New York State and the United States. Nextel has a proprietary network that allows it to offer digital cellular communications, data transmission, as well as its Direct Connect feature that allows customers to connect to other Nextel subscribers with a simple push of a button. Given that Nextel's wireless network is proprietary and uses a different technology than other wireless service providers, Nextel's customers are not able to "roam" by using another provider's network in order to access a wireless communications network.

Defendants are the authorized municipal representatives for the Town of Amherst and are responsible for implementing and enforcing zoning regulations, along with granting relief from such regulations when warranted. In addition, defendant Zoning Board of Appeals ("ZBA"), is the body duly authorized by the Town of Amherst Zoning Code to issue special use permits upon demonstrated compliance with applicable standards.

On or about March 25, 2002, Nextel submitted its initial application to collocate its antennae on an existing tower owned by Crown Castle, Inc. and located at 1210 New Road in the Town of Amherst. The application sought a special permit to install Nextel's antennae at a height of 115 feet and locate an equipment shelter within the leased area on the ground. Nextel's antennae would have been the fourth set of antennae on this tower (the others belonging to Verizon Wireless, Cricket and Voicestream Wireless) and would be located at a height below the three existing providers.

Defendant ZBA held a public hearing on the application on or about May 21, 2002. Subsequently, in a letter dated May 22, 2002, the ZBA informed Nextel that it denied its special use permit request to collocate antennae on the tower at 1210 New Road citing that no need for the facility was established by Nextel. The ZBA subsequently voted to vacate its denial of Nextel's special use permit application and voted to adjourn the matter to the August 20, 2002 meeting to allow Nextel to submit further documentation on the need for the facility.

Nextel thereafter submitted additional information with a narrative that provided further details regarding the need for Nextel to collocate its antennae on the tower at 1210 New Road. Included in this application were radio frequency ("RF") propagation studies which provided a visual representation of the areas where Nextel maintained that its service was inadequate and where customers would be unable to connect to Nextel s wireless network. No other information was submitted to the ZBA contradicting this information or challenging its technological foundation.

A second public hearing was held on the application on August 20, 2002. At this public hearing, Nextel presented evidence explaining that, because of technological differences between its wireless service and that of other providers, Nextel customers do not have the ability to "roam" onto other wireless systems in areas where Nextel's coverage is inadequate. No other information was submitted to the Zoning Board contradicting this information or challenging its technological foundation.

Subsequently, in a letter dated August 21, 2002, the ZBA informed Nextel that it declined issuing a "Negative Declaration" under the New York State Environmental Quality Review Act. There is no dispute that this denial of the negative declaration was tantamount to a denial of Nextel's special use permit application.

By way of explanation, a "Negative Declaration" is a notice that the ZBA has determined that a proposed action will not have a significant adverse effect on the environment and is issued pursuant to Town of Amherst Local Law #3-82, and 6 N.Y.C.R.R. Part 617. See, e.g., O'Neil aff. Ex. L. The New York regulation*fn3 states, in pertinent part,

on the basis of the draft [Environmental Impact Statement], and comments made thereon, the lead agency has determined that the action will not have a significant adverse impact on the environment. A negative declaration must then be prepared, filed and published in accordance with section 617.12 of this Part.

6 N.Y.C.R.R. § 617.9(a)(5)(i)(b) (2003). The August 21, 2002 letter went on to explain that the ZBA was basing its denial of a negative declaration on a suggestion from the Town Planning Department that replacing the existing guyed wire tower with a new monopole tower or other non-lattice structure would "be more closely in harmony with the general purposes and intent of this ordinance." However, apart from its suggestion regarding replacement of the existing tower, the Planning Department had determined that granting Nextel's application and allowing the placement of the additional antennae on the tower would not have any significant impacts, and, in fact, recommended that issuance of a negative declaration.

Moreover, it is undisputed that at its March 19, 2002 meeting, the ZBA voted to approve a special use permit for Voicestream Wireless to collocate its antennae on the existing tower at 1210 New Road, at a height above that proposed by Nextel. Voice-Stream is a competing wireless communications company to Nextel and offers services that are functionally equivalent to those offered by Nextel. The ZBA's approval included the adoption of a negative declaration finding no significant adverse impacts from the VoiceStream proposal.


In its complaint, Nextel raises four causes of action: (1) the ZBA violated Section 704 of the Telecommunications Act of 1996, 47 U.S.C. § 322(c)(7) (2002), by unreasonably discriminating among providers of functionally equivalent wireless services, and by prohibiting wireless services in the Town of Amherst; (2) the ZBA's refusal to take any further action on Nextel's special use permit application violates Section 704 of the Telecommunications Act of 1996, 47 U.S.C. § 322(c)(7) (2002), which requires action within a reasonable time, and requires that denials be in writing and supported by substantial evidence contained in a written record; (3) the ZBA acted illegally and in excess of the powers granted to it by New York law in that it has failed to reach a final decision on Nextel's application for a special use permit; and (4) the ZBA's failure to comply with the Telecommunications Act of 1996 occurred while the ZBA was acting under color of state law and has deprived Nextel of rights, privileges and immunities secured by the Constitution and laws of the United States and New York, thereby warranting the imposition of money damages "in excess of any jurisdictional limits" pursuant to 42 U.S.C. § 1983 and a reasonable attorney's fee pursuant to 42 U.S.C. § 1988. The Court will address each contention, below, including Nextel's demand for injunctive relief.

The ZBA Unreasonably Discriminated Against Nextel and its Action has the Effect of Prohibiting Services in Violation of ...

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