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Orange County-Poughkeepsie Ltd. P'ship v. The Town of East Fishkill

United States District Court, S.D. New York

January 30, 2015

ORANGE COUNTY-POUGHKEEPSIE LIMITED PARTNERSHIP, d/b/a VERIZON WIRELESS, et al., Plaintiffs,
v.
THE TOWN OF EAST FISHKILL, et al., Defendants

For Orange County-Poughkeepsie Limited Partnership, d/b/a Verizon Wireless, Plaintiff: Scott P. Olson, Esq., Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany, NY.

For Homeland Towers, LLC, Plaintiff: Christopher B. Fisher, Esq., Andrew P. Schriever, Esq., Anthony B. Gioffre, III, Esq., Cuddy & Fedder, LLP, White Plains, NY.

For Defendants: Paul Edward Svensson, Esq., Hodges, Walsh & Slater, L.L.P., White Plains, NY.

OPINION & ORDER

KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

Plaintiffs, Orange County-Poughkeepsie Limited Partnership d/b/a Verizon Wireless (" Verizon" ) and Homeland Towers, LLC (" Homeland" ), bring this Action against Defendants, the Town of East Fishkill (" East Fishkill" ) and the Town of East Fishkill Zoning Board of Appeals (the " Board" ) (collectively, the " Town" ), under Section 704 of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B) (the " Telecommunications Act" or the " TCA" ), and Article 78 of the New York Civil Practice Law and Rules, N.Y. C.P.L.R. § 7803 (" Article 78" ). Plaintiffs' claims arise from the Town's denial of Plaintiffs' application for a special permit, together with a 40-foot height variance and a wetland/watercourse disturbance permit, to install a wireless telecommunication facility. Plaintiffs move for summary judgment. For the following reasons, Plaintiffs' Motion is granted.

I. BACKGROUND

A. Factual History

1. The Application

Plaintiff Verizon is licensed by the Federal Communications Commission (" FCC" ) to provide wireless telephone services throughout the State of New York, ( see Pls.' Local Civil Rule 56.1 Statement (" Pls.' 56.1" ) ¶ 61 (Dkt. No. 21)); Decl. of Andrew P. Schriever in Supp. of Pls.' Mot. for Summ. Judgment (" Schriever Decl." ) Ex. C, Administrative Record (" Admin. R." ) 66, 1471 (Dkt. No. 22)), and Plaintiff Homeland is a business that constructs tower facilities for personal wireless services, (Pls.' 56.1 ¶ 62).[1] Plaintiffs seek to construct a new wireless telecommunications facility consisting of an approximately 150 foot tall monopole (the " Monopole" or the " Tower" ) and associated equipment and installations (together the " Facility" ), (Pls.' 56.1 ¶ 11; Admin. R. 119, 1491), at 23 Dartantra Drive, Hopewell Junction, New York, 12533 located in the Town's R-1 (Residential) Zoning District (the " Site" ), (Pls.' 56.1 ¶ 7; Admin. R. 1491).

Under the Town of East Fishkill's Zoning Code (the " Code" ), a special permit issued by the Board is required for the construction of a wireless communication facility within the R-1 (Residential) Zoning District. (Pls.' 56.1 ¶ 8; Defs.' Resp. to Pls.' Statement of Facts (" Defs.' 56.1 Resp." ) ¶ 8 (Dkt. No. 25); Schriever Decl. Ex. D, Code (" Code" ) § 194-78(A).) Moreover, as provided by § 194-84(D)(6)(c) of the Code, the maximum height of a freestanding tower in a residential area is 110 feet. (Pls.' 56.1 ¶ 10; Code § 194-84(D)(6)(c).) East Fishkill is serviced by Verizon, AT& T, Sprint, and T-Mobile wireless service providers. (Admin R. 689.)

On November 28, 2011, Plaintiffs submitted their joint application with a detailed cover letter to the Town for a special permit with requests for a 40 foot height variance and a wetland/watercourse disturbance permit to install the Facility on the Site pursuant to § § 194-76 through 194-84 of the Code (the " Application" ). (Pls.' 56.1 ¶ 3; Admin. R. 22, 33-34.) In the Application, Plaintiffs explained that the purpose of constructing the Facility is " to provide reliable wireless service along the Taconic State Parkway and Route 82 as well as the surrounding local roads, residences, and businesses located in the vicinity of [the Site]." (Admin. R. 22.) Similarly, Plaintiffs asserted that the Facility " will meet the primary objectives of Verizon Wireless'[s] target area because it will provide reliable wireless signal coverage to a significant portion of one of Verizon Wireless'[s] critical gaps in service coverage in the Town of East Fishkill, and offer new and improved service coverage" in three " spectrums." ( Id. at 45.) To support their assertions, Plaintiffs relied on a Radio Frequency (" RF" ) Analysis and Statement of Need, dated November 15, 2011, (the " Initial RF Analysis" ) prepared by Johnathan Edwards (" Edwards" ), a Verizon Wireless Radio Frequency Design Engineer. ( Id. at 43, 45-46, 49.)

In the Application, Plaintiffs described the Site as " an approximately sixteen (16) acre property . . . consisting of underdeveloped forested land and a small wetland area and associated intermittent watercourse along its northern portion." ( Id. at 22.) The Application explained that the Monopole " will be engineered to accommodate [the Facility], as well as the future co-location of up to five (5) additional wireless carriers." ( Id. at 22-23.) Plaintiffs proposed to install twelve panel antennas at a centerline height of approximately 146 feet above grade level (" AGL" ) on the Monopole (the " Antennas" ), as well as an associated unmanned equipment shelter and a Global Positioning Satellite (" GPS" ) system within the fenced-in compound. (Pls.' 56.1 ¶ 12; Admin. R. 23, 1492.) The Monopole is situated within an associated 65 foot by 78 foot fenced compound. (Pls.' 56.1 ¶ 11.)[2]

Plaintiffs explained to the Board how, in their view, the Facility and the Site conformed with the Code and the Telecommunications Act. (Admin. R. 23-24.) Plaintiffs advised the Board that " [b]ased on an extensive search of the area, [Plaintiffs] have confirmed that there are no available existing tall structures or towers that meet Verizon's radio frequency needs for purposes of providing reliable wireless coverage to the targeted area in the Town." ( Id. at 24.) To support their conclusion, Plaintiffs submitted a Site Selection and Alternate Site Analysis, prepared by Homeland (the " ASA" ). ( Id. at 121-25.) The ASA listed three alternative existing structures and ten alternative new tower sites that were evaluated, and concluded that " the proposed Site was selected as the optimal location because it met the criterion for site selection better than any other available property in the geographic area where the need for wireless service exists." ( Id. at 124).

Plaintiffs also advised the Board that because of its location and surrounding vegetation, the Facility " has been designed and sited with the goal of minimizing potential impacts on the surrounding area." (Pls.' 56.1 ¶ 14; Admin. R. 24.) Moreover, the Application stated that the Site " complies with the parameters for the development of new towers" as provided by the Code. (Pls.' 56.1 ¶ 15; Admin. R. 124.) Specifically, Plaintiffs explained that the Facility " is located on a very large[] and well vegetated property in the R-1 zone, that provides excellent distance from residential homes," the location " should minimize the potential visual impacts on these properties," the " foliage should . . . provide a natural cover that reduces the appearance of the tower from many perspectives," and " [a]lthough the Site is located in relatively close proximity to the [Taconic State Parkway], it will be setback a substantial distance from certain scenic areas and ridge lines identified in the Code, including the intersection of Route I-84 and the Taconic State Parkway, the Appalachian National Scenic Trail, Hosner Mountain, Stormville Mountain and the Mountains of Wiccopee." (Pls.' 56.1 ¶ 15; Admin. R. 124-25.) Plaintiffs also submitted a photograph of the Site to the Board. (Pls.' 56.1 ¶ 16.)

As relevant to their request for a height variance, Plaintiffs submitted that the Facility--" designed at a height of one-hundred and fifty (150) feet, with Verizon's antennas located at a centerline height of one-hundred and forty-six (146) feet," (Admin. R. 25)--will " enable Verizon to provide the requisite service to its customers living in and traveling through the targeted area," ( Id. at 26). Moreover, Plaintiffs stated that " by designing the facility to accommodate the future collocation of up to five (5) additional wireless carriers, Homeland is complying with the intent of the Wireless Law by minimizing the potential need for future communication towers in this portion of the Town." ( Id.) To support their assertions, Plaintiffs relied on the Initial RF Analysis. ( Id. at 27, 46-47.)

The Application also requested a wetland/watercourse disturbance permit based on the September 19, 2011 wetlands investigation of the Site conducted by Tectonic Engineering & Surveying Consultants, P.C. (" Tectonic" ), which found that " certain federal and town regulated freshwater wetlands and an associated intermittent watercourse are located within and around the proposed project area." ( Id. at 28, 133.)

Attached to the Application, Plaintiffs submitted: (1) a deed demonstrating ownership of the underlying premises, ( id. at 29, 38); (2) the Initial RF Analysis, which included several RF signal propagation maps and images depicting the Site, and copies of Verizon's FCC Licenses, ( id. at 29, 43); (3) an Antenna Site FCC RF Compliance Assessment and Report prepared by Pinnacle Telecom Group, dated October 26, 2011, explaining that the radio frequency emissions associated with the proposed Facility will not exceed federal or state regulations (the " FCC RF Compliance Report" ), ( id. at 29, 71); (4) a Full Environmental Assessment Form (" EAF" ) and Visual EAF Addendum, dated October 25, 2011, prepared by Tectonic, ( id. at 29, 95); (5) a letter dated October 14, 2011 certifying that the proposed Tower will be designed and constructed in accordance with applicable standards, ( id. at 29, 119); (6) the ASA, ( id. at 29, 121); (7) a letter from Homeland dated October 27, 2011 confirming that Homeland will coordinate to rent or lease available space on the Monopole to other telecommunications providers in the future, under the terms of a fair market lease, ( id. at 30, 128); (8) a letter from Homeland dated November 11, 2011 committing to, among other things, keep the proposed tower and accessory structures in good order and repair, ( id. at 30, 131); (9) the Wetlands Investigation Report, prepared by Tectonic ( id. at 30, 133); (10) a Federal Aviation Administration Determination of No Hazard to Air Navigation, dated October 31, 2011, ( id. at 30, 184); and (11) an explanation of the TCA, ( id. at 30, 188).

2. The Coverage Gap

The Board retained its own wireless consultant, Ronald Graiff, P.E. (" Graiff" or the " Board's consultant" ) to review and advise the Board on RF issues related to the Application. (Pls.' 56.1 ¶ 17; Admin. R. 348, 1475.) On April 10, 2012, Graiff submitted a letter and accompanying materials to the Board (" Graiff's Initial Report" ), concluding that even though " Verizon has reasonably demonstrated that it has a gap in coverage in the general area of the Taconic State Parkway," it " has not demonstrated . . . that the [Site] is unique in its ability to provide coverage relief." (Admin. R. 366(b).) Accordingly, Graiff suggested to the Board that Plaintiffs provide additional information with respect to what alternative sites and means were available to provide the coverage, demonstrate that 150 feet above the ground is the minimum height necessary, provide information about alternate means to " ameliorate the visual impact of the antennas," demonstrate how the lines required for seven carriers could be placed within the pole without external mounting, and provide a revised RF report. ( Id. at 366(b)-(c).) In his Initial Report, Graiff also noted his concerns about " Pilot Pollution," --a " condition . . . which is a direct result of cells located too closely together . . . [that] results in system interference, poor hand off and a loss of system capacity." ( Id. at 365.) Specifically, he stated that " the proposed site only provides approximately 20% new coverage (un-duplicated) and nearly 80% overlap with existing coverage[,] . . . . [and] [s]uch excessive overlap is an inefficient use of the radio spectrum." ( Id.)

In response to Graiff's Initial Report, Plaintiffs submitted additional RF Analyses and responses to the Board, as well as additional drive test data and propagation maps depicting Verizon's actual coverage needs. (Pls.' 56.1 ¶ 25; Admin. R. 408-37; 548-68; 1286-1330; 1337.) In its final RF Analysis dated March 22, 2013, Verizon stated that its analyses and presentations " clearly demonstrate (through the use of scientific data and sophisticated propagation and coverage analysis tools) that a significant gap exists in the Verizon network along the Taconic State Parkway, Route 82, and the surrounding areas." (Pls.' 56.1 ¶ 37; Admin. R. 1301.) Verizon advised the Board that in addition to " expanding reliable service along the Taconic State Parkway and surrounding areas," the Site is required to bring 4G data and internet service to residences and businesses in the area, and allow customers to cancel landline service. (Defs.' 56.1 ¶ 3; Admin R. 1300.) Plaintiffs also submitted the New York State Department of Transportation " Traffic Data Viewer" that indicates the average volume that passes through the gap, along the segments of the Taconic State Parkway and Route 82, is an estimated 35,000 travelers per day. (Pls.' 56.1 ¶ 39; Admin. R. 1332).

In a letter dated April 3, 2013, Graiff concluded that the coverage models provided by Plaintiffs were " reasonable representations of real world coverage." (Defs' Resp. ¶ 18; Admin. R. 1341.) Moreover, Graiff stated that " [i]t is evident . . . that the gap is real and defined." (Pls.' 56.1 ¶ 31; Admin. R. 1341.) At a public hearing on April 9, 2013, Graiff testified that:

[A]s I said in my 4th report to [the Board], knowing that you can rely on the propagation maps as being a very good demonstration of the coverage, [the Board] can believe what they say, therefore when they show you a coverage map from the site at 146ft which is what they've done and at lower, you can believe that that's a good representation of coverage that would come from this site.

(Pls.' 56.1 ¶ 19; Admin. R. 1411 (DVD 2:13:26-56).)[3] According to the Minutes of the Board's April 9, 2013 meeting, Graiff also informed the Board that:

[H]e offers no interpretation of the law of what a significant gap is. Along Route 82, there is a significant gap. There is nothing there. What is significant? If this was just 1/8 of a mile, just two pixels on this map of the Taconic Parkway and it was down in the red, a person can be through that in a zip . . . . The problem is that in addition to the road of gray which is around it, there are some reds around it. The signal is already deteriorating there. That was what he was trying to flesh out . . . from a review point of view. . . . It is up to the Board and lawyers to determine what is significant. A person can drive through a gap if it is a small gap. These are reasonably sized gaps.

(Admin. R. 1404-05.)

At a Board meeting on December 11, 2012, Plaintiffs advised the Board that the size of the coverage gap " is approximately 2 miles on the Taconic State Parkway and . . . 1.6 miles on Route 82." (Pls.' 56.1 ¶ 31; Admin. R. 708 (DVD at 1:20:53).) Graiff, in turn, confirmed the gap at the same meeting. (Pls.' 56.1 ¶ 32; Admin. R. 708 (DVD at 1:21:13).) For the purposes of the Motion, Defendants contend that it was determined that there were two gaps on the Taconic State Parkway of 0.5 mile and 0.25 mile. (Defs.' 56.1 Resp. ¶ 30.) Although Defendants cite Graiff's July 2, 2012 letter and statements at a July 10, 2012 meeting for support, there is nothing in the letter or statements that indicates that these were the sizes of the two gaps. ( See Admin. R. 519, 532.)

3. The Antenna Height and Collocation

Plaintiffs have provided substantial information in support of their claim that the coverage gap can only be resolved at the Site with the Antennas placed at 146 feet AGL. (Pls.' 56.1 ¶ ¶ 42-43; Defs.' 56.1 Resp. ¶ 40; Admin. R. 408-09, 549-50, 1290, 1304-06, 1308.)[4] The Parties dispute what this fact means for future collocation on the proposed Tower and what evidence, if any, was submitted to the Board about the likelihood that other wireless providers would need to locate their antennas at no lower than 146 feet AGL because of excessive clutter caused by topography in and around the Site. (Pls.' 56.1 ¶ 45; Defs.' 56.1 Resp. ¶ 45; Reply Decl. of Andrew P. Schriever in Supp. of Pls.' Mot. for Summ. Judgment, Ex. A, Pls.' Resp. to Defs.' Resp. to Pls.' Statement of Facts (" Pls.' 56.1 Reply" ) ¶ 45 (Dkt. No. 28).)

Defendants contend that there is limited to no coverage below 146 feet " due to excessive clutter." (Defs.' 56.1 Resp. ¶ 40). To support this claim, Defendants rely on the Initial RF Analysis, which states that " [a] lower antenna center line would limit the coverage due to the terrain blockage and the surrounding foliage," (Defs.' 56.1 ¶ 7; Admin. R. 47), and at any distance below 146 feet, " clutter" --in the form of terrain, trees, and buildings--" weakens and disperses[] the RF energy necessary for wireless communications," (Defs.' 56.1 ¶ 8; Admin. R. 46). The Initial RF Analysis also states that:

At a lower height, the RF energy would be significantly reduced from providing coverage to the north along the Taconic State Parkway and an inconsistent transition to the next site would remain. The area around the intersection of Route 82 and Taconic Pkwy would also be greatly impacted by a lower center line; not only would the foliage be a factor but the terrain would significantly weaken the RF signal.

(Defs.' 56.1 ¶ 9; Admin. R. 47.) Defendants state that " Graiff advised the [Board] that if Verizon needed to locate its antennas at 146 feet [AGL,] then it was likely that other wireless providers would need to locate their antennas at least [at] the same height, but not [at] a lesser height due to problems with excessive clutter," (Defs.' 56.1 Resp. ¶ 45), and point the Court to the Minutes from the Board meeting on April 9, 2013. Graiff made several statements as to collocation at the April 9, 2013 meeting, including that " in this hearing process there has been no evidence presented with respect to other carriers' coverage[,]" " [i]f it takes 146 feet for this carrier, it is going to probably take that for another carrier[,]" and " [a]ll the evidence was presented with respect to Verizon[,] so he could[] [not] give the Board an opinion on any other carrier." (Admin. R. 1405.)

Plaintiffs, in turn, point to Graiff's statement in a letter dated April 12, 2013 that " [t]here has been no evidence presented in this proceeding that either demonstrates or discusses the coverage of existing carriers such as AT& T or Sprint PCS. That question can only be answered by another applicant should they come before [the] Board," (Pls.' 56.1 Reply ¶ 45; Admin. R. 1457), and Graiff's testimony at the Board's April 9, 2013 meeting that " [i]n this hearing process there's been no evidence presented with respect to other carriers' coverage," (Pls.' 56.1 Reply ¶ 45; Admin. R. 1405). Plaintiffs also contend that they advised the Board that " Verizon cannot produce propagation plots for other carriers, nor can it make any representations that certain heights will or will not address other carriers' coverage needs," because " [e]ach carrier has a unique network, which may utilize different signal 'hand-off sites, locations[,] and heights." (Pls.' 56.1 ¶ 49; Admin. R. 1209.) Plaintiffs point to other evidence in the record that supports the fact that they advised the Board that they could not opine on other carriers' needs. (Pls.' 56.1 Reply ¶ 46; Admin. R. 412, 622, 1386-87.)

Defendants highlight, though, that the FCC RF Compliance Report submitted with the Application shows that other providers in East Fishkill use similar transmission frequencies as Verizon. (Defs.' 56.1 ¶ ¶ 17-18; Admin. R. 79-80.) Verizon established that locating the Antennas at 146 feet AGL was necessary to provide coverage for its transmission in the 700 MHz, 850 MHz, and 1900 MHz frequency bands. (Admin. R. 75.) AT& T uses identical frequency bands, ( id. at 79), Sprint uses the 1900 MHz frequency band, ( id.), and T-Mobile uses the 1900 MHz and 2100 MHz frequency bands, ( id.). The FCC RF Compliance Report also identifies the panel antennas commonly used by each provider within their respective frequency band, ( id. at 80), and for the purposes of the study assumes that the providers would be located as follows: Verizon at 146 feet, AT& T at 96 feet, Sprint at 136 feet, and T-Mobile at 106 feet, ( id. at 79). Defendants state, and Plaintiffs do not dispute, that there is no evidence in the record that these are feasible mounting positions for collocation of wireless transmissions. (Defs.' 56.1 ¶ 26.)

Defendants also deny that Plaintiffs demonstrated that the Facility is designed to accommodate collocation of up to five additional commercial antenna installations, including municipal/emergency antennas, in the future. (Pls.' 56.1 ¶ 46; Defs.' 56.1 Resp. ¶ 46.) Instead, Defendants contend that Plaintiffs offered no evidence to support an inference that collocation was feasible, that a representative from Homeland, Mr. Giofree (" Giofree" ), agreed, and that Homeland failed to document the Tower's capacity for collocation, including the number and types of antennas it could accommodate and potential mounting locations, in violation of the Code. (Defs.' 56.1 Resp. ¶ 46; Defs.' 56.1 ¶ 13; Admin R. 1390-91.)[5] Plaintiffs disagree. First, they state that Giofree's statements were made in reference to visual analysis, not collocation. (Pls.' 56.1 Reply ¶ 46.) At a meeting on April 9, 2013, Giofree stated that the Facility " clearly meets the objective" that " a new telecommunication tower facility allow, accept, and accommodate collocation in the future." ( Id ; Admin. R. 1386.) In his explanation, Giofree noted that " Homeland has also agreed to coordinate to rent or lease available space on the facility to other providers in the future, in the terms of a fair market lease." (Pls.' 56.1 Reply ¶ 46; Admin. R. 686.) Second, Plaintiffs contend that drawings, a letter from a New York State licensed Professional Engineer, the FCC RF Compliance Assessment Report, and an affidavit from the president of Homeland demonstrate that the Facility is designed to accommodate the collocation of up to five additional commercial antennas. (Pls.' 56.1 Reply ¶ 46; Admin. R. 119, 128-29, 443-44, 447-48, 601-02.)

4. Alternative Site Options

Plaintiffs contend that Homeland investigated alternative siting options to remediate the known service gap approximately a decade before submitting the Application. (Pls.' 56.1 ¶ 68.) Plaintiffs advised the Board that for a site to be a " viable alternative, the site must have a landlord who is willing to enter into a lease with a service provider." (Pls.' 56.1 ¶ 75; Admin. R. 1203.) In the ASA, supported by several RF Analyses that include propagation plots and topographic images prepared by Verizon's RF Engineers, Plaintiffs outlined their search to identify potential siting locations, including " alternate, existing structure candidates evaluated for shared use or collocation, as well as new tower sites." (Pls.' 56.1 ¶ ¶ 76-77; Admin. R. 121-26, 410-12, 421-34, 548-49, 556-65, 1292-99, 1309-22.) The ASA " contains an inventory of all existing tall structures and existing approved towers within a two mile radius of the proposed Site." (Admin. R. 122, 126.) Plaintiffs investigated thirteen alternate single site options (i.e., involving only one new wireless facility), and two-multi-site alternatives (i.e. each involving two new facilities). (Pls.' 56.1 ¶ 78; Admin. R. 122-26, 1202-05, 1292-99, 411-12, 548-49.) The ASA and supporting documents identify, among other locations, properties that contain existing public utility infrastructure, as well as existing towers and tall structures in the area, for purposes of evaluating whether they could be utilized for collocation purposes. (Pls.' 56.1 ¶ 80; Admin. R. 122-23, 409-10, 421-22, 548-49, 560-61, 570-71, 1292-99.)

Based on their search, Plaintiffs advised Defendants " that there are no available existing tall structures or towers that meet Verizon's radio frequency needs for purposes of providing reliable wireless coverage to the targeted area in the Town." (Admin. R. 24.) Plaintiffs concluded that none of the single (new tower site) options identified in the ASA suffice, and Graiff confirmed this finding in a July 2, 2012 letter. (Pls.' 56.1 ¶ ¶ 90-91; Admin. R. 519.) In the same letter, Graiff noted that " [a] careful evaluation of all of the possible alternate sites does, however, reveal an elegant 'two site solution' to provide the coverage relief sought," discussed in further detail below. (Admin. R. 519.) During a July 10, 2012 meeting, " Graiff stated that he found the [ASA] quite helpful. It was an excellent job in showing every site that [Graiff] had picked up and thought about, or the Board chose knowing the area better than [Graiff], that might work as a possible alternative." ( Id. at 532.)

Plaintiffs also investigated public utility high power transmission structures located approximately 3.5 miles west of the Taconic State Parkway, but in an RF Analysis, a Verizon Wireless RF Design Engineer, Rick Andras (" Andras" ), concluded that " [d]ue to distance and the presence of . . . significant terrain features, there is no practical height along the[ power lines from which a wireless facility could overcome the[ terrain impediments and provide service to the Hillside Lake coverage objective area." (Pls.' 56.1 ¶ ¶ 84-86; Admin. R. 1296.)

Moreover, from 2007 until February 2013, Homeland made efforts to locate the Facility on non-residential and/or municipally controlled properties in the area, including the " Beekman Water Company" property and the " Little Switzerland Water Tank" site. (Pls.' 56.1 ¶ ¶ 111-12; Defs.' 56.1 Resp. ¶ ¶ 111-12; Admin. R. 123, 1156-57, 1162.) In or around 2009, the Town rejected Little Switzerland Water Tank site as a possible option. (Pls.' 56.1 Resp. ¶ 113; Admin. R. 12, 18, 1156-57, 1162-63.) On August 11, 2011, Homeland participated in a pre-application submission conference with representatives from the Town. (Pls.' 56.1 ¶ 114; Admin. R. 8.) Subsequent to the pre-application conference, Town representatives recommended that Plaintiffs confirm the availability of the Beekman Water Company and Little Switzerland Water Tank sites. (Pls.' 56.1 ¶ 116; Admin. R. 12, 18.) After the conference, Plaintiffs inquired by letter dated September 16, 2011 whether " the status and/or availability of" two sites that were previously deemed unavailable by the Town for purposes of siting a new facility had changed. (Pls.' 56.1 ¶ 5; Admin. R. 12.) Plaintiffs sent a second letter dated September 30, 2011, reiterating their request and notifying the Town that they were preparing the documentation necessary to file the Application. (Admin. R. 18.)

Throughout the application process, Plaintiffs suggested that the Little Switzerland Water Tank site may provide an alternative to the proposed Site. (Pls.' 56.1 ¶ ¶ 119, 121-22, 124-25.) Specifically, Plaintiffs explained that the Little Switzerland Water Tank site " might be a better location for this facility," given that " because of the increased elevation at that property which is adjacent to the current property we have a proposal on, the tower would only need to be 90 feet." (Pls.' 56.1 ¶ 122; Admin. R. 1164 (DVD at 20:44-21:03).) In response, the Board and Plaintiffs were advised by the neighbors that Little Switzerland Water Tank site " was not an option. Nobody want[s] it. . . . [T]he applicant needed to hear that." (Pls.' 56.1 ¶ 123; Admin. R. 1163.)

Defendants admit that Plaintiffs investigated the alternative sites and options, as discussed above. Defendants contend, however, that Plaintiffs did not thoroughly investigate the two-site alternative proposed by Graiff. (Defs.' 56.1 Resp. ¶ 76.) The Board requested that Plaintiffs investigate two different two-site options. (Pls.' 56.1 ¶ 95.) The requested two-site options would require installing a new communications facility on an existing wood pole at 190 Old Sylvan Lake Road (the " Sylvan pole" )--which Homeland does not own, and Verizon does not lease space on--in combination with also constructing either: (1) a new communications tower facility at 39 Loganberry Court, known as " Rand Water Company," or (2) a new communications tower facility at 1643 Route 82, known as " Anthony Associates," ( Id. ¶ 96.)

The actual maximum available height and capacity on the Sylvan pole was determined to be lower than initially assumed. ( Id. ¶ 98; Admin. R. 549, 570, 1292.) Plaintiffs submitted a certification from David Weinpahl (" Weinpahl" ), an engineer at On Air Engineering, LLC, concluding that " additional co-location at the [Sylvan] pole is not possible due to structural and RF design concerns." (Pls.' 56.1 ¶ 99; Admin. R. 1219.) Plaintiffs also filed a second opinion from Antonio Gualtieri (" Gualtieri" ), an engineer at Tectonic, certifying that " the existing wooden pole structure is not adequate to support the loads of the combination of the existing carriers and the proposed antenna installation by Verizon . . . at an elevation of 57' [AGL] . . . [and] these types of structures are not designed to be extendable." (Admin. R. 1224.)

Plaintiffs evaluated both two-site options with increased antenna heights at each of the locations, including: (1) a 175 foot tower at Rand Water Company, or (2) a 175 foot tower at Anthony Associates. (Pls.' 56.1 ¶ 105; Admin. R. 1294.) Andras, Verizon's engineer, concluded that, " [c]ollocation on the 80 foot wood [Sylvan] pole is not a viable part of a two-site scenario," because, among other things, " [a] coverage gap would remain along the Taconic State Parkway, and the surrounding areas in either hypothetical two-site scenario far beyond Verizon's-85dBm threshold." (Pls.' 56.1 ¶ ¶ 101, 106; Admin. R. 1296-97 (typeface altered).) Defendants admit that Andras concluded as much, but note that he did not state that there would be an absence of coverage at either the -85.1 to -87dBm or -87dBm to 89dBm ranges, and Graiff opined that the Verizon system " would work perfectly" in the -85.1 to -87dBm range and " might work" in the -87dBm to 89dBm range. (Defs.' 56.1 Resp. ¶ 106; Admin. R. 1341.) In its March 13, 2013 analysis, Verizon explained that " when operating the Verizon system beyond the -85 d[B]m threshold level, communication between the handset and base station becomes increasingly unreliable, and will likely experience call failures and significant performance degradation." (Admin. R. 1292.) Defendants fault Verizon for failing to provide any data regarding the signal strength produced by the two-site alternative in the target area, (Defs.' 56.1 ¶ 66 (second)),[6] but Plaintiffs point out that its March 13, 2013 analysis identifies the signal strength for the two-site analysis, (Pls's 56.1 Resp. ¶ 66 (second); Admin. R. 1294-95).

Verizon's revised RF analysis evaluating the two-site option did not quantify the remaining gap in service in the target area. (Admin. R. 534, 549, 571.) Graiff opined that the gap at Anthony Associates would be approximately 0.5 of a mile. ( Id. at 609, 687.) In a June 2012 RF Analysis, Edwards stated that the remaining gap if the Rand Water Company site was used would be 0.6 of a mile. ( Id. at 411.)

Based on their analyses, Verizon's RF Engineers ultimately concluded that " [c]ollocation on the [Sylvan] pole . . . is NOT a viable part of a two-site scenario (either from a structural integrity or coverage perspective)." ( Id. at 1296.) Graiff, in turn, concluded that " [i]t is clear that . . . the coverage relief with the two site solution is not achieved." (Pls.' 56.1 ¶ 107; Admin. R. 1304.) Although Graiff stated that " [i]t would . . . appear that the existing monopole at [Sylvan] is not a viable alternate site for the two site solution," (Pls.' 56.1 ¶ 104; Admin. R. 1340), and that " [i]t appears that the two site solution with all of the alternates considered fails to meet the need to fill the gap," (Pls.' 56.1 ¶ 108; Admin R. 134), Defendants deny that the statement represents Graiff's final conclusion on the matter, (Defs.' 56.1 Resp. ¶ ¶ 104, 108). Instead, Defendants state that Graiff also concluded that a two-site alternative would be feasible if the Sylvan pole was re-engineered to be structurally sound and extended in height. ( Id.; Admin. R. 1340.) Indeed, a Verizon RF Design Engineer agreed that the tower at Sylvan would have to be re-engineered to make the two-site alternative work. (Defs.' 56.1 Resp. ¶ 108; Admin. R. 1301.) Defendants point out that, despite these conclusions, Plaintiffs never proposed a re-engineering analysis. (Defs.' 56.1 Resp. ¶ 108.)

Plaintiffs also advised the Board that the Sylvan tower " has a greater impact on the surrounding neighborhood . . . . [as] [i]t is much closer to the proximity of the homes in the area[,] . . . . [and] the location provides no visual buffer to the surrounding neighborhood[,] which is relevant when compared to the [proposed Site]," and submitted an aerial image to the Board to support their statements. (Pls.' 56.1 ¶ ¶ 109-10; Admin. R. 1388, 1411 (DVD at 23:33).) Defendants admit that ...


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