Crown Castle NG East LLC v. The Town of Oyster Bay

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CROWN CASTLE NG EAST LLC,

Plaintiff,

ORDER

-against- 17-CV-3445(SJF)(ARL)

THE TOWN OF OYSTER BAY, THE TOWN OF

OYSTER BAY TOWN BOARD, RICHARD

LENZ, in his official capacity as Commissioner

of the Town of Oyster Bay Highway Department

and Department of Public Works, and

JOHN BISHOP, in his official capacity as

Deputy Commissioner of the Town of Oyster Bay

Highway Department,

Defendants.

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FEUERSTEIN, District Judge:

Pending before the Court are the objections of plaintiff Crown Castle NG East LLC

(“plaintiff”) to so much of the Report and Recommendation of the Honorable Arlene R. Lindsay,

United States Magistrate Judge, dated February 21, 2020 (“the Report”), as recommends: (i) that

plaintiff’s claims pursuant to the Telecommunications Act be dismissed for lack of jurisdiction;

(ii) that plaintiff’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure be denied; and (iii) that the motion of defendants the Town of Oyster Bay (the

“Town”), the Town of Oyster Bay Town Board, Richard Lenz, in his official capacity as

Commissioner of the Town of Oyster Bay Highway Department and Department of Public

Works, and John Bishop, in his official capacity as Deputy Commissioner of the Town of Oyster

Bay Highway Department, (collectively “defendants”) seeking summary judgment dismissing

plaintiff’s remaining claims against them pursuant to Rule 56 of the Federal Rules of Civil

Procedure be granted. For the reasons set forth below, the Report is accepted in its entirety.

I. Discussion

A. Standard of Review

Any party may serve and file written objections to a report and recommendation of a

magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy

thereof. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and

recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual

findings or legal conclusions of the magistrate judge as to which no proper objections are

interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). To

accept the report and recommendation of a magistrate judge to which no specific, timely

objection has been made, the district judge need only be satisfied that there is no clear error

apparent on the face of the record. See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great

Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000) (a court may review a report to which

no timely objection has been interposed to determine whether the magistrate judge committed

“plain error.”)

Whether or not proper objections have been filed, the district judge may, after review,

accept, reject, or modify any of the magistrate judge’s findings or recommendations. 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b).

B. Plaintiff’s Objections

Plaintiff contends, inter alia, that Magistrate Judge Lindsay erred: (i) in holding that the

Town’s motivation in revoking the Road Opening Permits issued to plaintiff on April 5, 2017 “is

irrelevant for purposes of the Court’s evaluation of its jurisdiction,” (Report at 23; see Plf. Obj.

at 2-4, 6, 10-11), and in purportedly ignoring or disregarding evidence showing “that the Town’s

actions were based on the residents’ fear of radio frequency emissions,” (Plf. Obj. at 11); (ii) in

purportedly “disregard[ing] the timing” of evidence demonstrating “that the Town issued the

cease and desist letter, revoked the [Road Opening] permits, and removed two of [plaintiff’s]

facilities in response to the residents’ concerns over radio frequency emissions[,] . . . [and then]

tried to revise history by claiming that the revocation of the Highway Permits and the removal of

some of [plaintiff’s] equipment was because [plaintiff] had not applied for a building permit or

special use permit[,]” (id. at 5-6); (iii) in finding “that the Town code was not discriminatorily

enforced against [plaintiff],” (id. at 6); (iv) in overlooking plaintiff’s explanation that the thirteen

(13) building permits issued by the Town out of the twenty-one (21) applications it reviewed

between May 2017 and August 2017 were “likely” issued for structures on private property, and

not in the public right-of-way, (id. at 6-7; see also id. at 13); (v) in concluding that plaintiff

“provides no support for [its] conclusory statement” that “no other utility is required to obtain a

permit,” (Report at 20), since plaintiff “cited to the sworn testimony of the Town’s Planning and

Development Commissioner,”1 (Plf. Obj. at 8-9); (vi) in finding that “Defendants [w]ere left

with no other choice but to remove Plaintiff’s property,” (Report at 36 n. 13), and that plaintiff’s

two (2) installed telecommunication facilities “were not wrongfully seized,” (Plf. Obj. at 10; see

also id. at 19); (vii) in recommending that the branch of plaintiff’s motion seeking summary

judgment on its claim pursuant to Section 253(a) of the Telecommunications Act be denied on

the basis that plaintiff “failed to demonstrate that the Town is seeking to enforce an

1 With respect to inquiries about whether the Town “ever required a building permit for a utility pole” in the right-

of-way of either the State, the County or the Town, the Planning and Development Commissioner responded, “Not

to my knowledge.” (See Plf. Obj. at 9).

unconstitutional ordinance, let alone any ordinance,”2 (Report at 29; see Plf. Obj. at 11-13); (viii)

in finding that “nothing in the record indicates that Plaintiff was given similar guidance [that

permits were not required] with respect to the installation of its own utility poles in the Town

right of way,”3 (Report at 18; see also Plf. Obj. at 13-14); (ix) in concluding that there is no

dispute of material fact with respect to the size of the antennas and whether a building permit and

special use permit were required, (see Plf. Obj. at 14-15); (x) in holding that there was no subject

matter jurisdiction over plaintiff’s claims pursuant to Section 332(c)(7)(B) of the

Telecommunications Act because there is no “‘final action or failure to Act’ by the Town,”4

(Report at 23-24); and (xi) in finding that plaintiff did not have a property interest in the

Highway Permits because it cannot satisfy the entitlement test set forth in Yale Auto Parts, Inc. v.

Johnson, 758 F.2d 54 (2d Cir. 1985). (See Plf. Obj. at 17-19). In addition, plaintiff contends that

to the extent the Report recommends granting so much of defendants’ motion as seeks summary

judgment on their state law counterclaims against plaintiff, such recommendation is internally

inconsistent with the recommendation that the Court decline to exercise supplemental

jurisdiction over all remaining state law claims, including defendants’ counterclaims. (Id. at 20-

21).

2 With respect to its claim pursuant to Section 253 of the Telecommunications Act, plaintiff contends, inter alia, that

Magistrate Judge Lindsay erred (i) in purportedly failing to recognize “that a ‘legal requirement’ can be an action

by the local government; it does not have to be an ‘unconstitutional ordinance’ or even an ordinance at all,” (Plf.

Obj. at 11-12); and (ii) in finding “that a de facto moratorium did not exist because the Town claimed that it issued

13 building permits for wireless infrastructure.” (Id. at 11-13).

3 In support of this argument, plaintiff cites to evidence in the record indicating: (i) that “the Town’s Highway

Department official, Kevin Hanafan, met with [plaintiff’s] . . . representatives regarding the installation of a new

utility pole and Mr. Hanafan issued a Highway permit for the installation;” (ii) that “the Town in fact issued 22

Highway Permits to [plaintiff] for the installation of new utility poles in April 2017 . . . [which] was a continuance

of the guidance [plaintiff] had received from Mr. Hanafan;” and (iii) “that the sole process prior to 2017 was for the

Highway Department to issue permits to [plaintiff] for the installation of new utility poles.” (Plf. Obj. at 13-14).

4 According to plaintiff, the Town’s revocation of the twenty-two (22) Highway Permits issued to plaintiff

constitutes a final action sufficient to confer jurisdiction, (see Plf. Obj. at 16); and the Town’s inaction on plaintiff’s

two (2) remaining highway permit applications also constitutes “a final action ripe for adjudication.” (Id. at 17).

Initially, although the introductory paragraph of the Report may be somewhat ambiguous

with respect to granting defendants’ motion for summary judgment, (see Report at 2), it is clear

from the body of the Report that Magistrate Judge Lindsay does not recommend that defendants

be granted summary judgment on their counterclaims against plaintiff. Rather, the Report

recommends that this Court decline to exercise supplemental jurisdiction over the counterclaims

pursuant 28 U.S.C. § 1367(c) and dismiss the counterclaims without prejudice, and the Court

accepts that recommendation.

Plaintiff correctly asserts that the Telecommunications Act provides, in relevant part:

“No State or local government or instrumentality thereof may regulate the

placement, construction, and modification of personal wireless service facilities

on the basis of the environmental effects of radio frequency emissions to the

extent that such facilities comply with the Commission’s regulations concerning

such emissions.”

47 U.S.C. § 332(c)(7)(B)(iv). Nonetheless, Magistrate Judge Lindsay correctly found that

plaintiff did not satisfy its burden of establishing that this Court has subject matter jurisdiction

over its claims under Section 332(c)(7)(B) of the Telecommunications Act since, inter alia, the

undisputed evidence demonstrates that plaintiff never applied for the requisite building permits.

Accordingly, so much of the Report as recommends that plaintiff’s claims pursuant to Section

332(c)(7)(B) of the Telecommunications Act be dismissed for lack of subject matter jurisdiction,

and that the branch of plaintiff’s motion seeking summary judgment on such claims be denied as

moot, is accepted and, for the reasons set forth therein, plaintiff’s claims pursuant to Section

332(c)(7)(B) of the Telecommunications Act (Counts I, II, III and V) are dismissed in their

entirety for lack of subject matter jurisdiction and the branch of plaintiff’s motion seeking

summary judgment on its claims pursuant to Section 332(c)(7)(B) of the Telecommunications

Act is denied as moot.

Moreover, even assuming, arguendo, that the finding regarding the guidance plaintiff was

allegedly given from Town officials with respect to the installation of its utility poles in the Town

right-of-way is erroneous, Magistrate Judge Lindsay correctly found that such guidance does not

bind the Town. “[E]rroneous advice given by an employee of a governmental agency is not

considered to rise to the level of an unusual circumstance warranting invocation of the doctrine of

estoppel.” Matter of Ryan v Tax Appeals Tribunal of State of N.Y., 133 A.D.3d 929, 930, 18

N.Y.S.3d 797 (N.Y. App. Div. 2015); see also Matter of Parkview Assocs. v City of New York, 71

N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372 (N.Y. 1988) (“[A] municipality . . . is not

estopped from enforcing its zoning laws either by the issuance of a building permit or by laches .

. . and the prior issue to petitioner of a building permit [does] not confer rights in contravention of

the zoning laws.”); Petruso v. Schlaefer, 474 F. Supp. 2d 430, 439 (E.D.N.Y. 2007), aff’d, 312 F.

App’x 397 (2d Cir. Feb. 26, 2009) (“Neither estoppel nor laches may be invoked against a

municipality to prevent it from correcting errors, even when there are harsh results.”); Wilson v

Neighborhood Restore Hous., 129 A.D.3d 948, 949, 12 N.Y.S.3d 166 (N.Y. App. Div. 2015)

(“[E]quitable estoppel is applied against a municipality performing governmental functions only

in the rarest of cases . . . and erroneous advice by a governmental employee will not give rise to

an exception to the general rule.”); e.g. Universal Outdoor, Inc. v. City of New Rochelle, N.Y., 286

F. Supp. 2d 268, 277-78 (S.D.N.Y. 2003) (finding that since the plaintiff should not have received

a building permit from the City, the City was entitled to enforce its legal right to revoke its building

permit and may not be estopped from doing so, despite the purported reliance on the permit; and

holding that “[t]he fact that neighbors’ complaints led the City to discover its error does not

override the settled rule that a municipality cannot be estopped by its mistake from enforcing the

law.”); Matter of Twin Tower Little League, Inc. v. Town of Poestenkill, 249 A.D.2d 811, 812, 671

N.Y.S.2d 831 (N.Y. App. Div. 1998), lv. denied, 92 N.Y.2d 806, 677 N.Y.S.2d 781, 700 N.E.2d

320 (N.Y. 1998) (rejecting the petitioner’s contention that the case was “one of those unusual

cases” involving an exception to the general rule that the doctrine of equitable estoppel is generally

not invoked against a municipal agency based upon its purported reliance on the erroneous advice

provided by the Town’s officials “since, had petitioner exercised reasonable diligence and

reviewed the Town’s zoning ordinance, it could have readily discovered the necessity for an area

variance.”)

Upon consideration of all of plaintiff’s objections and defendants’ responses thereto, and

de novo review of the findings and conclusions in the Report to which plaintiff specifically

objects, as well as all motion papers and the entire record, plaintiff’s objections are overruled and

so much of the Report as recommends: (i) that plaintiff’s claims pursuant to the

Telecommunications Act be dismissed for lack of subject matter jurisdiction; (ii) that defendants’

motion for summary judgment dismissing plaintiff’s remaining claims pursuant to Rule 56 of the

Federal Rules of Civil Procedure be granted; and (iii) that plaintiff’s motion seeking summary

judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure be denied, is accepted in

its entirety.

C. Remainder of Report

There being no clear error on the face of the Report with respect to the findings and

conclusions of Magistrate Judge Lindsay to which no specific timely objections are interposed,

those branches of the Report are accepted in their entirety.

II. Conclusion

For the reasons set forth above, the Report is accepted in its entirety and, for the reasons

set forth therein, (i) plaintiff’s claims pursuant to the Telecommunications Act (Counts I, II, III,

IV and V) are dismissed in their entirety for lack of subject matter jurisdiction; (ii) the branches

of defendants’ motion seeking summary judgment on plaintiff’s remaining claims pursuant to

Rule 56 of the Federal Rules of Civil Procedure are granted to the extent (A) that defendants are

granted judgment as a matter of law dismissing plaintiff’s claims pursuant to 42 U.S.C. § 1983

(“Section 1983”) (Counts VII, VIII and IX) in their entirety with prejudice, and (B) the Court

declines to exercise supplemental jurisdiction over the remaining state law claims in this action,

including defendants’ counterclaims, and those claims are dismissed in their entirety without

prejudice pursuant to 28 U.S.C. § 1367(c); (iii) plaintiff’s motion for summary judgment

pursuant to Rule 56 of the Federal Rules of Civil Procedure is denied; and (iv) plaintiff’s motion

to strike the declaration and expert report of rebuttal expert Roger Mascettis is denied as moot.

The Clerk of the Court shall enter judgment in accordance with this Order and close this case.

SO ORDERED.

__/s/ Sandra J. Feuerstein _

Sandra J. Feuerstein

United States District Judge

Dated: May 11, 2020

Central Islip, New York