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Clear Wireless LLC v. Building Department of the Village of Lynbrook

March 8, 2012

CLEAR WIRELESS LLC, PLAINTIFF,
v.
BUILDING DEPARTMENT OF THE VILLAGE OF LYNBROOK, BOARD OF TRUSTEES OF THE VILLAGE OF LYNBROOK AND VILLAGE OF LYNBROOK, DEFENDANTS.



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

MEMORANDUM OF DECISION AND ORDER

In this case, the plaintiff Clear Wireless LLC ("Clearwire") alleges that the Building Department of the Village of Lynbrook ("Building Department"), the Board of Trustees of the Village of Lynbrook ("the Board"), and the Village of Lynbrook ("the Village" and collectively "the Village Defendants") denied its request for a special use permit to construct a wireless telecommunication facility, in violation of the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. § 332(c)(7) and Articles 30 and 78 of the New York Civil Procedure Law and Rules.

Presently before the Court are Clearwire's motion for summary judgment and the Village Defendants' cross-motion for summary judgment. For the reasons set forth below, the Court denies Clearwire's motion for summary judgment and grants the Village Defendants' cross-motion for summary judgment.

I. BACKGROUND

Clearwire is an affiliate entity of Sprint Nextel ("Sprint"), and provides the wireless broadband component of Sprint's telecommunications network in Nassau County, New York. Clearwire's wireless broadband service, also known as "wireless broadband Internet access service" is referred to as "fourth generation" or "4G", because it is the fourth version of the technology used to transmit data over Sprint's telecommunications network. As explained by Clearwire, "4G merges voice, video and other information into a single wireless platform available to Sprint's end users via their mobile devices such as telephone and 'smartphones'". (Pl.'s 56.1 Stmt., ¶ 3.)

On February 4, 2010, Clearwire began the application process in the Village of Lynbrook to obtain a special use permit to construct and operate a telecommunications facility consisting of antennas and related equipment ("the Proposed Facility") on the rooftop of an existing commercial building at 444 Merrick Road in Lynbrook, New York. The Proposed Facility is what is referred to in the telecommunications industry as an aggregator point of presence or "AggPoP" site, because it "serve[s] as [a] data aggregation[] point[] that combine[s] data from surrounding cellular sites and forward[s] the data to switching centers through an optical fiber network". (Pl.'s 56.1 Stmt., ¶ 29.) In particular, the Proposed Facility was designed to be the AggPoP site for Sprint's Long Island South cluster, which would connect 135 cites covering Western, Southern, and Central Nassau County, as well as parts of Queens and Suffolk County.

On June 7, 2010 and July 19, 2010, the Board held public hearings on Clearwire's application. At the hearings, Clearwire presented the live testimony of five expert witnesses and answered questions from the Board and the public. The majority of the questions centered on health and safety concerns; the need for 4G service generally; and the need to locate the Proposed Facility at the building on 444 Merrick Road.

On October 4, 2010, the Board denied Clearwire's application for a special use permit. (See Resolution & Decision, Ex. L.) Among the reasons for denying the application was the Board's belief that, because 4G service is an "advanced Internet product", the application was not entitled to the higher level of review afforded to telecommunications services under the Telecommunications Act of 1996. The Board based this conclusion on the D.C. Circuit's decision in Comcast Corporation v. Federal Communications Commission, 600 F.3d 642 (D.C. Cir. 2010). Thus, the Board only analyzed Clearwire's application under the criteria set forth in the Village Code.

Based on the criteria set forth in the Village Code, the Board denied Clearwire's application because: (1) the Proposed Facility would increase the height of an already non-conforming building, which would violate the Village Code and work against the Village's goal to "bring forward Downtown beautification programs and a restoration of a sense of suburban hometown atmosphere"; (2) "a hand-held Internet station is not a 'need' as contemplated in either statute or Court decisions reviewing municipal action in regulating the erection of wireless towers and antennae"; and (3) Clearwire had failed to show the building at 444 Merrick Road was "the only suitable location for its installation". (Ex. L.)

On November 2, 2010, Clearwire filed the instant complaint against the Village Defendants alleging that the denial of its application was not supported by substantial evidence and was arbitrary and capricious in violation of federal and state law. Clearwire's first cause of action sought declaratory and injunctive relief under federal law pursuant to: (1) the Telecommunications Act of 1996; (2) Rules 56 and 57 of The Federal Rules of Civil Procedure; and (3) the Declaratory Judgment Act, 28 U.S.C. §§2201--2202 ("the federal cause of action"). In its second cause of action, Clearwire sought declaratory and injunctive relief under state law, specifically Articles 30 and 78 of the New York Civil Procedure Law and Rules ("the state cause of action").

Clearwire now moves for summary judgment on both causes of action. The Village Defendants cross-move for summary judgment with regard to the same claims.

II. DISCUSSION

A. Legal Standard for Summary Judgment

Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c);Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir. 2006).In determining whether an issue is genuine, "[t]he inferences to be drawn from the underlying affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962) (per curiam), and Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989)).

If the moving party meets its initial burden of demonstrating the absence of a disputed issue of material fact, the burden shifts to the nonmoving party to present "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party may not then rely solely on "conclusory allegations or unsubstantiated speculation" in order to defeat a motion for summary judgment. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). If the evidence favoring the nonmoving party is "merely colorable . . . or is not significantly probative, summary judgment ...


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