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UP State Tower Co., LLC v. Village of Lakewood

United States District Court, W.D. New York

January 6, 2020

UP STATE TOWER CO., LLC, and BUFFALO-LAKE ERIE WIRELESS SYSTEMS, CO., LLC, Plaintiffs,
v.
THE VILLAGE OF LAKEWOOD, NEW YORK; THE VILLAGE BOARD OF THE VILLAGE OF LAKEWOOD, NEW YORK; and THE ZONING BOARD OF APPEALS OF THE VILLAGE OF LAKEWOOD, NEW YORK, Defendants.

          OPINION AND ORDER

          William K. Sessions, III District Court Judge

         Plaintiffs Up State Tower Co., LLC and Buffalo-Lake Erie Wireless Systems, Co., LLC, doing business as Blue Wireless (“Plaintiffs”), seek to place a wireless telecommunications tower within the Village of Lakewood, New York. Plaintiffs filed the instant lawsuit claiming that the Village Board of Trustees (“Village Board” or “Board”) and the Village Zoning Board of Appeals (“ZBA”) had unreasonably delayed ruling on their application for a use variance. Shortly after Plaintiffs filed suit, the ZBA issued an 11-page written decision (the “Reasoned Elaboration”) denying the application. Plaintiffs have since filed an Amended Complaint, challenging not only the delay but also the application denial. For relief, Plaintiffs seek a permanent injunction requiring the Village to grant them the necessary municipal permits.

         Now before the Court are the parties' cross-motions for summary judgment. For the reasons set forth below, Plaintiffs' motion for summary judgment and corresponding request for injunctive relief is granted, and Defendants' motion for summary judgment is denied. Other pending motions are addressed below.

         Factual and Procedural Background[1]

         On August 27, 2015, Plaintiffs submitted an application seeking approval for a 100-foot telecommunications tower to be built in a central location in the Village. The application followed Plaintiffs' identification of significant gaps in Blue Wireless's cellular phone coverage. ROD 33-41. Defendants dispute whether there are, in fact, significant gaps in service for Blue Wireless customers within the Village.

         In the fall of 2015, Plaintiffs' counsel appeared before the ZBA to discuss the application. ROD 57-70. In response to public criticism about the tower's proposed location, Plaintiffs subsequently asked that consideration of the application be “tabled” while they explored alternative sites. ROD 71.

         Plaintiffs also asked the Village to provide a list of properties that it would like included in the site evaluation process. Id. The Village Clerk responded with a letter explaining that the Mayor and the Village Board were not sufficiently familiar with wireless communications and coverage issues to provide such a list. ROD 75.

         Plaintiffs reviewed at least nine alternative sites, including two possible co-location sites. ROD 757-758, 802-804. According to Plaintiffs' representations, some potential site owners were not interested in leasing access to their properties. A vacant parcel on Fairmount Avenue was investigated, but the Plaintiffs and the owner were reportedly unable to agree to lease terms. A school bus garage site was considered, but Plaintiffs received no response to their proposal. Plaintiffs also approached the YMCA about a property on Fairmount Avenue but received no response to their proposed lease. ROD 802-804.

         Plaintiffs ultimately identified the Lakewood Fire Company property on Glenwood Avenue (“Glenwood Avenue site”) as the preferred site. That location had been suggested by the Village's former Mayor. ROD 448, 2090. The Glenwood Avenue site was selected in part because of its distances from residences; its close proximity to railroad tracks and a commercial district; the presence of trees to create a natural buffer; the financial benefit to the Volunteer Fire Company; and the ability to lease the property. ROD 449-450, 759-760. Because the new proposed location was farther away from the target coverage zone and at a lower elevation than the site originally contemplated, Plaintiffs anticipated a tower height of 180 feet. ROD 416.

         At a Village Board meeting on February 22, 2016, when asked by Plaintiffs' counsel to offer their initial thoughts, three of the five Board members responded positively to the Glenwood Avenue site. ROD 2259-2260. Specifically, one Board member noted that “the cell tower is well hidden.” ROD at 2260. Another believed that “[w]ith the proposed cell tower location back next to the railroad tracks, it should have very little impact on nearby properties.” Id. A third Board member opined that “a cell tower at that site would be the least obtrusive location in Lakewood for [a tower].” Id. On April 12, 2016, Plaintiffs formally submitted an amended application to construct a 180-foot tower at the Glenwood Avenue site.

         In December 2015, after Plaintiffs filed their initial application, the Village enacted Local Law 2-2015 requiring wireless telecommunications tower applicants to provide an $8, 500 escrow deposit with any application. The purpose of the deposit was to offset the cost of hiring a technical consultant to assist the Village with its review of the application. ROD 96-97. Plaintiffs did not initially provide the $8, 500 escrow amount with their amended application, as they believed the demand for a deposit was unlawful. ROD 220-222. In a letter dated May 3, 2016, the Village Mayor informed Plaintiffs' counsel that the Village was unable to accept the amended application without the deposit. ROD 255. The letter did not indicate whether any substantive information was missing. Approximately one month later, Plaintiffs' counsel submitted an escrow check under protest in the amount of $8, 500. ROD 285.

         In June 2016, the Village adopted Local Law 4-2016, which established a new permit application and review process. ROD 223-242. In a letter dated July 11, 2016, the Village's hired consultant, Center for Municipal Solutions (“CMS”), notified Plaintiffs' counsel that the pending application was incomplete and that additional information was required in order to comply with Local Law 4-2016. Among the new requirements was a $5, 000 application fee. ROD 301-303.

         On July 26, 2016, Plaintiffs' counsel objected in writing to the application fee, arguing in part that Plaintiffs' application was not subject to a local law imposed after the application was submitted. ROD 411-412. That same day, the Village returned the application fees that were submitted with Plaintiffs' initial application and informed Plaintiffs' counsel that the required fee was $5, 000. ROD 306. On August 22, 2016, Plaintiffs' counsel resubmitted those application fees and objected to the Village's enforcement of Local Law 4-2016. ROD 307-309.

         On September 7, 2016, the Village Board established itself as the lead agency under the State Environmental Quality Review Act (“SEQRA”), which pertains to the coordinated environmental review of Plaintiffs' application. The Village Board also authorized itself to determine the completeness of the application. ROD 413.

         On October 4, 2016, the Village Board held a joint workshop concerning Plaintiffs' application. The workshop did not allow for public comment. Richard Comi, the CMS consultant hired by the Village, discussed with Board members the items and issues he felt they needed to consider in making a determination. Mr. Comi also advised that Local Law 4-2016 applied to the amended application. ECF No. 41-1 at 10.[2]

         Plaintiffs submit that under federal “shot clock” law, the Village had until October 17, 2016 to make a decision on the application. Defendants dispute the deadline calculation. On October 24, 2016, Plaintiffs' counsel and the Village attorney agreed by email to a 60-day extension of the “shot clock” to allow the Village extra time. Notwithstanding this agreement, the Village did not agree to Plaintiffs' interpretation of when the “shot clock” had commenced. ECF No. 35-8. The agreed-upon deadline, acknowledging the “shot clock” dispute, was December 16, 2016.

         The ZBA held a public hearing on Plaintiffs' application on October 20, 2016. Plaintiffs' counsel appeared to discuss the application, and delivered a letter discussing various issues raised at the October 4, 2016 workshop. ROD 415-420. The letter included supplemental information, including a Blue Wireless Radio Frequency (“RF”) analysis and a Federal Communications Commission (“FCC”) compliance report. ROD 415-434.

         During the public hearing, Plaintiffs' counsel discussed the alleged coverage gap and the corresponding need for a new tower. Specifically, counsel discussed the RF propagation maps depicting coverage from the proposed tower at heights of 180 feet and 150 feet, as well as coverage maps from two alternate locations. Counsel explained that some of the proposed coverage would spill over into other municipalities, since it is not possible to build a network that confines itself to municipal boundaries. ROD 470. Counsel also argued that the 180-foot tower was needed to “address the desired coverage objective.” ROD 484. The ZBA requested additional information, and asked Plaintiffs to consider flying a balloon to simulate the tower's location and height. Plaintiffs' representative explained that a balloon float could be performed, and that photographs would be taken from certain vantage points. ROD 527.

         On October 26, 2016, Plaintiffs conducted a balloon float and prepared a photo simulation package that included photographs from 48 different locations. ROD 578-679. Plaintiffs also prepared supplemental RF propagation materials, including propagation maps from the Glenwood Avenue site at 10 foot intervals from a height of 180 feet down to a height of 150 feet. ROD 567-577. The supplemental RF propagation maps indicated that as the tower height was lowered, the population and geographic coverages decreased. ROD 575.

         On November 9, 2016, the ZBA sent Plaintiffs a letter requesting more information. Apparently unaware that the balloon float had already taken place, the ZBA asked for advance notice of the float so that residents and others could assess the visual impact themselves. ROD 562-564. On November 10, 2016, Plaintiffs' counsel responded to the ZBA's letter and attached the completed photo simulations and supplemental RF documentation. ROD 565-684.

         On November 22, 2016, the ZBA reconvened the public hearing. Plaintiffs' counsel again appeared and reviewed the RF propagation maps. Those maps, he argued, showed a “dramatic” decrease in coverage as the tower height dropped from 180 feet to 150 feet. ROD 710. Counsel also explained that Plaintiffs did not analyze below 150 feet because “it's not worth it from a coverage standpoint. The difference between one-eighty and one-seventy and even down to one-fifty is so dramatic, that it doesn't make sense to do any plots beyond that because it's an exercise of futility, for lack of a better term.” Id.

         In the course of the hearing, the ZBA again asked for additional information from the Plaintiffs. Among the information sought was consideration of multiple tower locations, as multiple locations would allow for shorter towers. The ZBA also requested propagation modeling for a Village-owned site on Hunt Road in the Town of Busti. ROD 785. On December 6, 2016, the ZBA sent a letter to Plaintiffs reiterating the request for information about the Hunt Road site and seeking other clarifications. ROD 794-795.

         Plaintiffs' counsel responded in a letter dated December 30, 2016. ROD 800-807. The letter specifically addressed the question of multiple tower locations, noting first that there were no co-location opportunities. ROD 801 (“There are no towers or other tall structures between existing [towers] and the coverage objective area in Lakewood that could be used by Blue Wireless to address the coverage gap.”). Multiple towers would therefore require construction of multiple sites, which according to Plaintiffs would double the project cost and impose “an undue economic burden.” ROD 805. Counsel also argued that the proposed, single-tower facility would have a minimal impact on the community. ROD 805-806. With respect to the Town of Busti site, counsel explained that “[a]s stated at prior ZBA meetings, that site is located too far away from the Village center to provide reliable coverage to the coverage objective area.” ROD 804. Finally, the letter asserted that the 60-day extension of the shot clock had expired. ROD 806-807.

         On January 17, 2017, Plaintiffs filed the instant lawsuit claiming that the federal time period for consideration of the application had expired, and that the application should therefore be granted. On January 23, 2017, the Village Board voted to authorize the ZBA to act as lead agency for the SEQRA review. Plaintiffs submit that this authorization was enacted unlawfully as it lacked their consent. Defendants contend that no consent was required.

         The ZBA held a public hearing on February 9, 2017. Witnesses at the hearing included the former Village Mayor, a local engineer, and Mr. Comi from CMS. The ZBA also presented a letter from Mr. Comi, dated that same day, in which he opined that Blue Wireless's coverage objective could be met by locating the proposed facility on the Village-owned property in the Town of Busti. ROD 2199-2200. For support, Mr. Comi cited an application submitted in 2003. ROD 2199. Plaintiffs contest the merit of Mr. Comi's conclusion, arguing that his analysis was based upon information submitted years before by a different applicant, and did not take into account recent changes in telecommunications technology.

         The ZBA adjourned the hearing after concluding SEQRA and variance deliberations, and reconvened at a meeting on February 23, 2017. The ZBA then issued a negative declaration on the use variance pursuant to SEQRA, and denied the application based upon the 11-page Reasoned Elaboration. Briefly stated, the Reasoned Elaboration concluded that Plaintiffs had failed to prove a coverage gap, had failed to establish that a 180-foot tower was necessary to achieve their coverage goals, and that the chosen site was less feasible and more intrusive than at least one alternative site. ROD 2243-2253. The SEQRA determination stated that because the variance was being denied there would be no adverse environmental impact, but if the variance had been granted the ZBA would have found “potential significant adverse impacts on the character of the host community and the enjoyment of the community's amenities.” ROD 2242.

         In finding no coverage gap, the ZBA relied in part on statements from Dr. Jonathan Blasius, husband of the ZBA deputy chairperson. Dr. Blasius, who is not an engineer, stated during a ZBA meeting on October 20, 2016 that he purchased a Blue Wireless phone, drove throughout the Village, and did not experience any dropped calls. ROD 516. According to the Reasoned Elaboration, Plaintiffs informed the ZBA that roaming agreements allow Blue Wireless to provide service in the Village without dropped calls. ROD 2248. Plaintiffs also now argue that Blue Wireless's FCC license allows, and the ...


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