Extenet Systems, LLC. v. Village of Kings Point

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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:

EXTENET SYSTEMS, LLC, :

: MEMORANDUM AND ORDER

Plaintiff, : GRANTING PRELIMINARY

: INJUNCTION AND DENYING

-against- : MOTION FOR INTERVENTION

:

VILLAGE OF KINGS POINT, : No. 21-cv-5772 (KAM)(ST)

:

Defendant. x

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MATSUMOTO, United States District Judge:

On October 15, 2021, Plaintiff ExteNet Systems, LLC

f/k/a ExteNet Systems, Inc. (“ExteNet”) filed this action against

Defendant Village of Kings Point (the “Village”). (ECF No. 1,

Complaint (“Compl.”).) Plaintiff alleges that Defendant

unlawfully denied its application for a special exception permit

to install thirty-one small wireless facilities in the Village to

improve wireless service, in violation of certain provisions of

the Telecommunications Act of 1996 (“TCA”), 47 U.S.C. §§ 151 et

seq. (Id. ¶¶ 11‒13.) Plaintiff seeks expedited review and

declaratory relief. (Id. ¶¶ 150‒75.)

Before the Court is Plaintiff’s motion for a preliminary

injunction, requesting that the Court order the Village to issue

the special exception permit. Also before the Court is a motion

to intervene in the action by eight residents of the Village:

Edward Roubeni, Sepy Roubeni, Arman Noghreh, Mojdeh Noghreh, Tali

Damaghi, David Damaghi, Honey Damaghi, and Herzel Owadeyah

(together, “proposed intervenors”). For the reasons set forth

below, the proposed intervenors’ motion to intervene is

respectfully DENIED, and Plaintiff’s motion for a preliminary

injunction is GRANTED.

FACTUAL FINDINGS

The Court makes the following factual findings, based on

the parties’ Joint Stipulation of Facts, and declarations and

exhibits attached thereto. (See generally ECF Nos. 17-2, Joint

Stipulated Statement of Facts & Common Definition of Terms (“Joint

Stipulation of Facts”); 17-3‒17-33, Declaration of Richard Lambert

(“Lambert Decl.”) and exhibits attached thereto; 17-34‒37,

Declaration of Christian Fridrich (“Fridrich Decl.”) and exhibits

attached thereto; 18-2‒18-9, Declaration of Michael Kalnick

(“Kalnick Decl.”) and exhibits attached thereto; and 18-10‒13,

Declaration of Natalie Nejat (“Nejat Decl.”) and exhibits attached

thereto.)

ExteNet is a national provider of converged

communications infrastructure and telecommunications services,

authorized to provide wholesale, facilities-based

telecommunications services in 45 states and the District of

Columbia. (Lambert Decl. ¶ 2.) ExteNet holds a Certificate of

Public Convenience and Necessity from the New York State Public

Service Commission, which grants it authority to construct

telecommunications networks in the state. (Lambert Decl. ¶¶ 3‒4;

Exhibit 1 to Lambert Decl.)

ExteNet constructs, owns, operates, and maintains small

wireless facilities, commonly referred to as “small cells.” (Joint

Stipulation of Facts ¶ 1.) Small cells, which consist of small

antennas, roughly two to three feet in height, and equipment boxes

that are approximately three cubic feet in volume, are typically

attached to existing utility poles or other structures in the

public rights-of-way. (Joint Stipulation of Facts ¶ 3; Lambert

Decl. ¶ 6.) Compared to macro-cellular towers, which are typically

over 100 feet tall and provide service extending mile(s), small

cells employ low-power transmitters with a more localized service

radius, in the hundreds of feet. (Joint Stipulation of Facts ¶¶

2‒3.) Small cells, which are individually referred to as “nodes”

and make up a distributed antenna system (“DAS”), are typically

fiber linked and deployed to complement macro-cellular tower

services, ameliorating poor wireless coverage or adding capacity

in high-demand areas (referred to generally as network

densification). (Id. ¶ 4.)

The Village is a municipal corporation of the State of

New York. (Id. ¶ 5.) The Village Board of Trustees (the “Board”)

is the legislative body of the Village with the powers provided in

Village Law § 4-412, which include, by virtue of the Village Code,

the power to grant special exception permits and the authority to

manage access to public rights-of-way for equipment used in the

provision of telecommunications services. (Id. ¶ 6.) Section

161, Article XII of the Village Code, titled Telecommunications

Towers, governs permitting of wireless telecommunications

facilities, including small cells, in the Village. (Id. ¶ 7.)

In approximately 2017, ExteNet was engaged by Verizon

Wireless (“Verizon”) to design a small cell DAS network, obtain

all required municipal permits, and install and operate the small

cells within the Village over an area that Verizon had identified

as needing improved coverage (the “coverage contour”). (Id. ¶ 8.)

Based on the coverage contour defined by Verizon, ExteNet’s

radiofrequency (“RF”) engineer, with input and approval from

Verizon’s engineers, designed a 31-node DAS network. (Lambert

Decl. ¶ 23.)

In mid-2017, ExteNet contacted the Village to discuss

its proposal to install a small cell DAS network on behalf of

Verizon to improve wireless service in the Village. (Joint

Stipulation of Facts ¶ 9.) In January 2018, ExteNet had its first

meeting with the Board. (Id. ¶ 10.) At that first meeting,

ExteNet presented general information about small cell technology

and DAS networks, and provided a map of the existing Verizon

coverage, a map showing the coverage contour ExteNet sought to

address, and examples of different types of small cell

installations (e.g., on utility poles, lampposts, street signs).

(Id. ¶ 11; Exhibit 2 to Lambert Decl.)

The Board expressed interest in ExteNet’s proposal and

noted the lack of reliable wireless service in certain locations

within the Village and the need for improved service. (Joint

Stipulation of Facts ¶¶ 12‒13.) The Board asked ExteNet whether

the coverage contour could be expanded to encompass more areas of

the Village. (Id. ¶ 13.) The police commissioner of the Village

advised ExteNet representatives that the Village was having issues

with 911 calls being inefficiently routed or dropped due to poor

wireless service. (Id. ¶ 14.) At the Village’s request, ExteNet

worked with Verizon to redesign the DAS network, expanding the

coverage contour without increasing the number of nodes deployed.

(Id. ¶ 16.) In or around June 2018, Verizon approved the

redesigned network. (Id.)

On January 3, 2019, ExteNet presented its application

for a special exception permit1 to the Board based on the Verizon

approved redesign. (Id. ¶ 19.) The presentation included a map

of the expanded coverage contour, a map displaying the existing

Verizon coverage, a map, prepared by ExteNet, showing the projected

coverage post-installation, and information about each of the

1 “Unlike a variance, which gives permission to an owner to use property in

a manner inconsistent with a local zoning ordinance, a special exception

involves a use permitted by the zoning ordinance, but under stated conditions.

. . . [E]ntitlement to a special exception permit is not a matter of right[,

and c]ompliance with local ordinance standards must be shown before a special

exception permit may be granted.” Franklin Donut Sys., LLC v. Wright, 881

N.Y.S.2d 163, 165 (2d Dep’t 2009).

thirty-one nodes. (Id. ¶ 20; Exhibit 4 to Lambert Decl.) ExteNet

proposed using three existing wood poles, twenty-three replacement

wood poles, four new stand-alone wood poles, and one new decorative

metal pole (a streetlight) as the installation points for the

nodes. (Lambert Decl. ¶ 42; Exhibit 4 to Lambert Decl.)

After the January 3, 2019 meeting and at the direction

of Stephen Limmer, Esq., General Counsel to the Village (the

“Village Attorney”), ExteNet filed its application for a special

exception permit with the Village (the “First Application”).

(Joint Stipulation of Facts ¶ 21.) In addition to the expanded

coverage contour, the First Application incorporated alternative

locations for four of the nodes that the Board had proposed at the

January 3 meeting. (Id. ¶ 22.) Of the thirty-one nodes, five

were proposed to be placed in Kennilworth, a privately owned area

of homeowners known as the Kennilwood Owners Association (“KOA”).

(Exhibit 4 to Lambert Decl.) At its March 7, 2019 meeting, the

Board opened and closed the public hearing on the First Application

and approved it unanimously. (Joint Stipulation of Facts ¶ 23;

Exhibit 6 to Lambert Decl.)

ExteNet began deploying its equipment in or around

August 2019. (Joint Stipulation of Facts ¶ 24.) On September 19,

2019, the Building Inspector of the Village issued a “special

exception permit revocation and stop work order” on the grounds

that the small cell installations were not in accordance with the

specifications submitted to and approved by the Village, and that

the antenna model was different. (Id. ¶ 25; Exhibit 7 to Lambert

Decl.) The revocation and stop work order directed ExteNet to

remove the non-conforming small cell facilities immediately and

stated that ExteNet must submit a new special exception permit to

the Board to “install similar cell nodes and antennas or other

wireless facilities.” (Exhibit 7 to Lambert Decl.)

ExteNet voluntarily agreed to remove all equipment and

discuss a way forward with the Village. (Joint Stipulation of

Facts ¶ 26.) During these discussions, the Village advised ExteNet

that there was significant public opposition to the deployment of

small cells based, in large part, on concerns regarding the

purported negative health impacts of 5G. (Id. ¶ 27.) At the

Village’s request, ExteNet provided studies and articles on the

health impacts of RF exposure and the lack of evidence for health

concerns about 5G. (Id. ¶ 28.) ExteNet also confirmed that its

proposal was to install equipment that would transmit advanced 4G

services, not 5G, and provided contact information of experts in

the study of the impacts of non-ionizing radiation. (Id.)

In November 2019, ExteNet submitted another application

for a special exception permit (the “Second Application”) under

the newly amended Village Code.2 (Id. ¶ 29.) The Second

2 Section 161, Article XII of the Village Code, which is the section of the

Village Code relevant to the instant case, was amended in March 2019 to include

“provisions specific to small cell applications,” and amended again in October

Application was substantially the same as the First Application

that the Board had approved in March, with updated information

regarding the new antenna model and some changes to the

2019 “to include certain public notice requirements.” (Lambert Decl. ¶¶ 51,

65.)

Section 161, as amended, imposes various requirements on small cell

installations, including, but not limited to:

1. being “mounted on structures 50 feet or less in height, including their

antennas,” Article XII § 161-81(A)(1);

2. being “mounted on structures no more than 10% taller than other adjacent

structures,” id. § 161-81(A)(2);

3. “not extend[ing] existing structures on which they are located to a height

of more than 50 feet or by more than 10%, whichever is greater,” id. §

161-81(A)(3);

4. having antennas which are “no more than three cubic feet in volume,” id.

§ 161-81(B);

5. being spaced and located “as to minimize the aesthetic impact upon nearby

residential dwellings, taking into account property lines, driveways,

topography, sight lines, water views, and existing landscaping,” id. §

161-81(C)(1);

6. being placed “on existing structures with existing small wireless

facilities” or “other existing structures” to the extent feasible, so

long as there is no “material adverse aesthetic impact on nearby

residential dwellings,” id. §§ 161-81(C)(2), (3);

7. “[a]ll other wireless equipment associated with the structure[s on which

the small cells are installed], including the wireless equipment

associated with the antenna[s] and any preexisting associated equipment

of the structure[s], [being] no more than 28 cubic feet in volume,” id.

§ 161-81(D);

8. not “requir[ing] antenna structure registration pursuant to the rules

adopted from time to time by the Federal Communications Commission,” id.

§ 161-81(E);

9. not “result[ing] in human exposure to radio frequency radiation in excess

of the applicable safety standards adopted from time to time by the

Federal Communications Commission, id. § 161-81(F);

10. being “placed underground to the extent practicable,” id. § 161-84(K);

11. a public hearing conducted by the Board, the notice of which “shall be

published in the official newspaper of the Village and sent by the

applicant . . . to all property owners within 600 feet of the location of

all proposed small wireless facilities,” id. §§ 161-91(B)(1), (2);

12. “a certification from a qualified engineer that the wireless facility

will not emit a radiofrequency radiation or other frequency or

transmission signal greater than approved by the Federal Communications

Commission,” id. § 161-91(B)(4);

13. “a current report from a qualified engineer or other professional

acceptable to the Village as to all adverse health impacts from the

proposed wireless facility,” id. § 161-91(B)(5); and

14. “certificates of insurance in such forms and amounts as are then currently

required for building permits for single-family dwellings within the

Village, naming the Village of Kings Point, its officers and employees as

additional insureds,” id. § 161-91(B)(6).

installation sites. (Id.)

The Village’s review and processing of the Second

Application effectively came to a halt with the onset of the Covid-

19 pandemic. (Id. ¶ 30.) In July 2020, the Village advised

ExteNet that it would accept a single complete copy of the Second

Application that included the supplemental materials requested by

the Village, instead of ExteNet providing the supplemental

materials on a piecemeal basis. (Id. ¶ 31; Exhibit 9 to Lambert

Decl.) On November 19, 2020, ExteNet delivered a complete copy of

the Second Application to the Village. (Joint Stipulation of Facts

¶ 32; Exhibit 11 to Lambert Decl.) The Second Application proposed

installing small cells on 22 existing utility poles, 4 replacement

poles, and 5 new wood poles. (Joint Stipulation of Facts ¶ 33;

Exhibit 10 to Lambert Decl.)

On December 3, 2020, the Village notified ExteNet that

the Second Application was incomplete, and identified certain

clarifications and corrections that were required. (Joint

Stipulation of Facts ¶ 34; Exhibit 12 to Lambert Decl.) In the

letter notice, the Village advised that “[m]embers of the public

have indicated more concern about the 5G network than the 4G

network. If [ExteNet] is still proposing the 4G network, . . . it

would be helpful to the public if it knew that in advance and it

might eliminate some of their concerns and comments at the hearing,

even if those concerns are not well-founded and may be irrelevant

to the Board’s decision.” (Exhibit 12 to Lambert Decl.)

On February 1, 2021, ExteNet submitted the supplemental

information requested by the Village, and on February 3, 2021, the

Village notified ExteNet that it deemed the Second Application

complete and that the “only issue” was scheduling a public hearing.

(Joint Stipulation of Facts ¶ 35; Exhibit 13 to Lambert Decl.)

The Village initially proposed scheduling the hearing in April,

rather than March, in the hopes that more residents would be

vaccinated by April. (Joint Stipulation of Facts ¶ 36; Exhibit 13

to Lambert Decl.) Subsequently, in April 2021, the Village

requested, and ExteNet agreed to, a lengthy tolling agreement that

would extend the Village’s time to act under the shot clock3 from

April 1 to August 18, 2021. (Joint Stipulation of Facts ¶ 37;

Exhibit 14 to Lambert Decl.)

On April 7, 2021, the parties executed a tolling

agreement, which provided that: (a) the Second Application was

filed and received as of November 19, 2020; (b) the Second

3 The Federal Communications Commission (“FCC”), the federal agency charged

with enforcing the TCA, has issued several declaratory orders that, inter alia,

defined the “reasonable time” within which a local government must act on a

wireless facility siting application under 47 U.S.C. § 332(c)(7)(B)(ii). “The

first of these orders implemented timing provisions called ‘shot clocks.’”

ExteNet Systems, Inc. v. City of Cambridge, 481 F. Supp. 3d 41, 50 (D. Mass.

2022). The United States Supreme Court has held that the FCC’s declaratory

rulings regarding reasonable time periods for acting on siting applications are

entitled to Chevron deference in City of Arlington v. FCC, 569 U.S. 290, 307

(2013). For small cells, “the relevant shot clocks are sixty days for

collocation, which utilize existing infrastructure, and ninety days for other

applications, which require new construction, unless the parties agree to toll

the shot clocks.” City of Cambridge, 481 F. Supp. 3d at 50‒51.

Application was deemed complete as of February 1, 2021; (c) the

Village was required to act on the Second Application by April 1,

2021; (d) the Village would hold a public hearing on the Second

Application no later than July 23, 2021; (e) the parties agree to

toll the shot clock until August 18, 2021; and (f) the Village was

not requesting further information from ExteNet and could not

request further information as a condition to voting on the Second

Application. (Exhibit 14 to Lambert Decl.)

In late June 2021, the Village informed ExteNet that

because of vacations, the next available date for a public hearing

was August 24, past the date for final action set forth in the

tolling agreement. (Joint Stipulation of Facts ¶ 39.) In early

July, the Board asked ExteNet to evaluate alternatives for some of

the proposed sites in light of requests from residents. (Id. ¶

40.) On July 20, 2021, ExteNet’s construction manager, Jim

McGrath, and RF engineer, Chris Fridrich, held meetings with

Village officials and residents and were able to identify

alternative sites for two nodes that satisfied the residents. (Id.

¶ 41.) As for Node 10, however, which was to be installed 350

feet away and separated by dense tree cover from a residence, the

parties could not find an alternative that satisfied its owners,

who were primarily concerned with the antenna for Node 10 being at

roughly the same height as their daughter’s bedroom balcony. (Id.

¶¶ 42‒43.) For approximately the following two weeks, further

attempts were made by ExteNet and Village officials to find

alternatives, including increasing the height of Node 10, but they

were unable to identify a solution that satisfied the owners of

the residence. (Id. ¶ 44.)

On August 18, 2021, ExteNet and the Village amended the

tolling agreement, affirming the terms of the original agreement

and further tolling the shot clock until September 17, 2021. (Id.

¶ 45.) A public hearing on the Second Application was held during

the August 24, 2021 Board meeting. (Id. ¶ 46.) Prior to the

meeting, the Village Attorney confirmed that once the special

exception permit was approved, other than the updated construction

drawings for the two nodes ExteNet had recently agreed to move,

the Village would not require anything further for ExteNet to

commence construction. (Id. ¶ 47.)

At the public hearing, ExteNet gave a brief history of

the application process and explained that ExteNet had expanded

the coverage contour at the Board’s request to ameliorate poor

wireless service in the entire Village, and modified certain

locations from the First Application to address resident or Board

requests. (Id. ¶ 48.) ExteNet also presented: (1) a map of the

current Verizon coverage; (2) a projected coverage map prepared by

ExteNet displaying improved wireless service after the

installation of the small cells; (3) information that RF emissions

from its small cells are safe and well within federal limits; (4)

equipment specifications; and (5) photo simulations of the

proposed installations. (Exhibit 19 to Lambert Decl.) Many

resident comments at the hearing concerned the health impacts of

RF emissions. (Joint Stipulation of Facts ¶ 50.) At the end of

the meeting, the Board voted to close the public hearing and

announced that it would discuss and deliberate on the Second

Application as modified at its September 13, 2021 meeting. (Id.

¶ 51.)

After the August hearing, on August 26 and 27, 2021,

ExteNet and Village officials met with additional residents to

discuss their requests to relocate some of the other nodes. (Id.

¶ 52.) In some instances, ExteNet was able to identify an

alternative that satisfied the resident; in others, the residents

were dissatisfied with all feasible options. (Id. ¶ 53.)

In advance of the September 13, 2021 meeting, pursuant

to the Board’s request, ExteNet sent to the Village coverage and

drive test maps that Verizon had provided to ExteNet. (Exhibit 21

to Lambert Decl.) On the day of the meeting, the Village Attorney,

explaining that he would like to draft and circulate for the

Board’s review a proposed decision approving the Second

Application, asked ExteNet to provide a copy of ExteNet’s short

form environmental assessment, identify the nodes that had been

moved since its last formal application, and identify the nodes

that were proposed to be installed on private roads owned by the

KOA. (Joint Stipulation of Facts ¶ 55; Lambert Decl. § 95; Exhibit

22 to Lambert Decl.) The Village Attorney prepared and sent to

the Board a proposed draft resolution approving the Second

Application. (Joint Stipulation of Facts ¶ 56.)

At the September 13 meeting, the Village Attorney and

the Mayor provided a history of ExteNet’s proposal and acknowledged

that ExteNet had satisfied the requirements outlined in the Village

Code. (Id. ¶ 57.) The Mayor also stated that ExteNet had worked

with residents to address their concerns and discussed the public

safety issues the Village faced due to poor wireless service. (Id.

¶ 58.) Then, without a motion to reopen the public hearing, which

had closed at the August 24 meeting, the Board allowed public

comment. (Id. ¶ 59.) A member of the KOA stated that the proposed

sites for five of the nodes, though within the Village, are on

private streets within the area known as Kennilworth, owned by the

KOA, and the KOA never gave ExteNet permission to install the nodes

on those streets. (Id. ¶ 60.)

Andrew Campanelli, Esq., who represents a group of

residents that opposed the deployment of small cells but that did

not include KOA residents, addressed the Board. (Id. ¶ 61.) Mr.

Campanelli asserted that ExteNet had not demonstrated a need for

its facilities and the coverage maps that ExteNet had provided to

the Village may have been “doctored.” (Id.) When the Board

inquired into the claims made by Mr. Campanelli, some residents

began shouting at the Board, claiming they were “working” for

ExteNet. (Id. ¶ 62.)

For approximately the next two hours, residents spoke in

opposition to the Second Application. (Id. ¶ 63.) The resident

comments were related to potential health effects, loss of property

values, aesthetic concerns, unreliability of the coverage data

provided by ExteNet, theories of 4G services being converted to 5G

without anyone knowing, mistrust of the RF emissions reports

provided by ExteNet, claims of having good service by residents

who lived in close proximity to some of the proposed sites, and

frustration that the Board had not retained a consultant to oppose

the application. (Id. ¶ 63.) The Board did not find that loss of

property values and adverse aesthetic impacts were bases for

denying the application. (Id. ¶ 64.)

ExteNet’s RF engineer, Chris Fridrich, addressed the

claims regarding the coverage maps, stating that the coverage maps

had been prepared by Verizon, were accurate, and had not been

manipulated. (Id. ¶ 65.) Mr. Fridrich also presented the drive

test maps4 from Verizon. (Id. ¶ 66.) In response to requests for

4 A coverage map, by depicting signal strength levels over a given area,

“demonstrate[s] how far and at what strength wireless signal propagates from

cell sites in the area.” (Fridrich Decl. ¶ 15 n.1.) The coverage maps at issue

here were “derived from Verizon’s proprietary and highly tuned propagation

models, which are based upon years of collected drive test results and mobile

transmi[ssion] data . . . .” (Id. ¶ 54.) Drive test maps display data collected

from drive tests. A drive test is “[a] field test where an antenna is attached

to a vehicle, which traverses roadways to collect [live] wireless network data.”

(Joint Stipulation of Facts, Terminology; Fridrich Decl. ¶ 46.)

the raw drive test data, Mr. Fridrich explained that the drive

test maps present the raw data in graphical form and because the

drive test data consists of thousands of individual data points

obtained from on-the-ground drive tests, the drive test data is

best viewed in graphical form. (Id. ¶ 67.) At the end of the

meeting, the Board asked ExteNet to obtain the underlying data for

the drive test maps from Verizon and provide it to the Board, and

to allow the Board at least 30 days from the Board’s receipt of

the requested data to evaluate the underlying data before rendering

a decision on the Second Application. (Id. ¶ 68.)

On September 16, 2021, ExteNet’s counsel submitted a

letter to the Village further addressing, inter alia, the claims

by Mr. Campanelli regarding drive test data. (Id. ¶ 69; Exhibit

23 to Lambert Decl.) ExteNet counsel explained again that the

drive test maps provided to the Board displayed the raw drive test

data in graphical form. (Exhibit 23 to Lambert Decl.) The letter

also included legal argument regarding the limited scope of

municipal authority over citing applications for wireless

facilities. (Id.) ExteNet did not provide the underlying data

for the drive test maps to the Village. (Joint Stipulation of

Facts ¶ 70.) The Village did not retain an expert to analyze the

coverage data submitted by ExteNet and did not conduct any

independent testing. (Id. ¶ 71.)

The Board did not issue a decision on the Second

Application by September 17, 2021, the action date set forth in

the parties’ amended tolling agreement. (Id. ¶ 72.) On September

30, 2021, the Board held a meeting and unanimously adopted a

resolution denying the Second Application (the “Decision”). (Id.

¶ 74; Exhibit 24 to Lambert Decl.) The Decision stated that the

Board purposefully withheld rendering a decision by September 17,

2021, in order to sufficiently review and consider the letter from

ExteNet’s counsel, and to allow ExteNet time to provide the

requested data. (Exhibit 24 to Lambert Decl. at 10.) The Decision

also stated that the denial was without prejudice to ExteNet

“filing a new application with sufficient information to show that

a denial of the application would materially inhibit the provision

of wireless services at the location of the then proposed Small

Wireless Facilities.” (Id. at 11.)

According to the Decision, although the coverage maps

submitted by ExteNet indicated substandard wireless service in the

proposed installation sites, residents who live near the sites

stated that they did not have substandard coverage. (Id. at 6‒

7.) Furthermore, the Board noted that Mr. Campanelli “alleged

that Verizon’s website shows more than substandard coverage for

the four locations in close proximity to his clients.” (Id. at

7.) Based on the foregoing, along with a certain FCC Staff Report,

titled “Mobility Fund Phase II Coverage Maps Investigation,”

stating that coverage maps are not sufficiently accurate, the Board

concluded that ExteNet had failed to make a sufficient showing of

need for the small cells and further failed to show that denying

its application “would materially inhibit wireless service in

violation of federal law.” (Id. at 8‒9.) With respect to the

five nodes located within Kennilworth, the Board stated that

ExteNet could not install the nodes at those locations without the

consent of the KOA, and the Village could not issue permits for

those nodes unless the consent is given by the KOA. (Id. at 10.)

CONCLUSIONS OF LAW

I. Intervention as of Right5

A proposed intervenor must satisfy four conditions to

intervene as of right under Fed. R. Civ. P. 24(a)(2). A party may

only intervene as of right if the party: (1) files a timely motion;

(2) asserts an interest relating to the property or transaction

that is the subject of the action; (3) is so situated that without

the intervention the disposition of the action may, as a practical

matter, impair or impede its ability to protect its interest; and

5 The proposed intervenors assert that they have standing. In Town of

Chester v. Laroe Estates, Inc., the Supreme Court held that an intervenor as of

right under Rule 24(a)(2) “must have Article III standing in order to pursue

relief that is different from that which is sought by a party with standing.”

137 S. Ct. 1645, 1651 (2017). This Court held previously in Cross Sound Cable

Co., LLC v. Long Island Lighting Co., No. 21-cv-2771(KAM), 2022 WL 247996, at

*8 (E.D.N.Y. Jan. 27, 2022), that a permissive intervenor, too, must demonstrate

standing to seek relief that is different than the relief sought by the named

parties. Here, because the proposed intervenors have not established the

requirements for intervention as of right or permissive intervention, the Court

need not, and therefore does not, address whether they have standing.

4) has an interest not adequately represented by other parties.

United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994).

“Failure to satisfy any one of these requirements is a sufficient

ground to deny [intervention].” Catanzano v. Wing, 103 F.3d 223,

232 (2d Cir. 1996) (emphasis in original) (citing Farmland Dairies

v. Comm’r of N.Y. State Dep’t of Agric. & Mkts., 847 F.2d 1038,

1043 (2d Cir. 1988)).

The proposed intervenors claim that they have a

protectable property interest that may be impaired by a judgment

in ExteNet’s favor and cannot be adequately protected by the

Village. (ECF No. 24, Memorandum of Law In Support of Motion for

Intervention (“Intervention Br.”), at 7‒12.) The Court finds that

though the proposed intervenors timely filed their motion, they

cannot satisfy the remaining three conditions for intervention as

of right.

A. Timeliness of the Motion

“A district court has broad discretion in assessing the

timeliness of a motion to intervene, which ‘defies precise

definition.’” In re Holocaust Victim Assets Litig., 225 F.3d 191,

198 (2d Cir. 2000) (quoting Pitney Bowes, Inc., 25 F.3d at 70).

Factors considered in determining the timeliness of a motion to

intervene include: “how long the motion to intervene was delayed,

whether the existing parties were prejudiced by that delay, whether

the movant will be prejudiced if the motion is denied, and unusual

circumstances militating either for or against a finding of

timeliness.” Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d

171, 182 (2d Cir. 2001) (citing Pitney Bowes, Inc., 25 F.3d at

70). Though these four factors are used as a guide, whether a

motion to intervene is timely must be “evaluated against the

totality of the circumstances before the court.” D’Amato v.

Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001) (citation omitted).

“Among the most important factors in a timeliness decision is ‘the

length of time the applicant knew or should have known of his

interest before making the motion.’” Catanzano, 103 F.3d at 232

(citation omitted).

“Rule 24(a) requires courts to measure timeliness from

the moment when the applicant had actual or constructive notice of

its unrepresented interest.” Floyd v. City of New York, 302 F.R.D.

69, 86 (S.D.N.Y. 2014). The instant action was filed on October

15, 2021, and the “proposed motion to intervene”6 was filed on

January 3, 2022. (See ECF No. 12.) In a declaration filed in

support of the motion to intervene, counsel for the proposed

intervenors, Mr. Campanelli, states that the proposed intervenors

“learn[ed] of the existence of this matter . . . through ‘word of

mouth,’” but does not specify when they first had notice. (ECF

6 Though the “proposed motion to intervene” was not filed in compliance

with the Court’s Individual Rules, the Court finds that the parties were

notified of the proposed intervenors’ intent to seek intervention as of January

3, 2022.

No. 23, Declaration of Andrew Campanelli (“Campanelli Decl.”), at

8.)

Though it is not certain when the proposed intervenors

had actual notice of the instant action, the earliest they would

have been on notice is October 15, 2021, when the Complaint was

filed. The motion to intervene was filed less than three months

thereafter. This relatively brief period between notice and the

filing of the motion, as well as the early stage of the litigation,

support a finding that the motion was timely and did not cause a

delay. Accordingly, the Court finds that the motion to intervene

was timely filed. See ExteNet Systems, Inc. v. Vill. of Lake

Success, No. 19-cv-3471(LDH), 2020 WL 1862948, at *2 (E.D.N.Y.

Feb. 21, 2020) (finding that the motion to intervene, filed

approximately two months after the filing of the complaint, was

timely), R. & R. adopted (Order dated Mar. 30, 2020).

B. Interest Relating to the Property or Transaction that is

the Subject of the Action

The proposed intervenors assert that they possess

“substantial interests” in the small cells which are the subject

of the instant action. (Intervention Br. at 10.) In support,

they submitted what they refer to as “direct probative evidence”

of their substantial interests, namely, letters from certain real

estate brokers from the area opining that the installation of small

cells in close proximity to the proposed intervenors’ homes would

result in “substantial losses in monetary value.” (Intervention

Br. at 9‒10; Exhibit D to Campanelli Decl.) Specifically, the

brokers claim that the homes will lose value by ten to twenty-five

percent and will stay in the market for substantially longer

because fewer buyers are interested in homes located near wireless

facilities. (Exhibit D to Campanelli Decl. at 20‒29.) Also

submitted are letters from some of the proposed intervenors to the

Board stating that the installation of the small cells will impact

their standard of living and destroy their ability to enjoy their

homes. (Id. at 14‒18.)

Notably, other than the number of years of experience of

the brokers who authored the letters, no evidentiary support is

given for the conclusory assertions that the market value of the

proposed intervenors’ homes will decrease by as much as twenty-

five percent. No supporting data, not even a single example of a

home that declined in value as a result of the installation of a

small cell in “close proximity,”7 is proffered.8 Accordingly, the

7 Though the proposed intervenors claim that the proposed installation sites

are in “unreasonably close proximity” to their homes, (Intervention Br. at 1),

Plaintiff, as part of its opposition to the intervention motion, submitted

exhibits showing that the proposed nodes would be located as follows: Node 4

would be located 208 feet from the closest point of the Roubeni residence, Node

8 would be located 300 feet from the closest point of the Noghreh residence,

Node 10 would be located 350 feet from the closest point of the Tali Damaghi

and family residence, and Node 28 would be located 150 feet from the closest

point of the Honey Damaghi and family residence and 120 feet from the closet

point of their pool area. (ECF No. 26-1‒26-4, Exhibits 1 to 4 to the Declaration

of Christian Fridrich.)

8 The news article and “professional studies” referenced in the proposed

intervenors’ proposed memorandum of law in opposition to ExteNet’s motion for

preliminary injunction relate to the effect that installation of macro-cellular

towers exceeding 100 feet have on the value of nearby residential properties,

Court concludes that the brokers’ unsupported assertions do not

support a finding that the proposed intervenors’ homes will suffer

substantial, or any, losses in monetary value as a result of the

proposed small cells being located over 100 feet away. See Vill.

of Lake Success, 2020 WL 1862948, at *1 (holding that the non-

party village residents who moved to intervene, arguing that

installing small cells near their homes “would decrease the value

of their property and have an adverse aesthetic impact” have no

cognizable interest relating to the property or transaction that

is the subject of the action).

The proposed intervenors’ aesthetic impact argument

fares no better. See Omnipoint Commc’ns, Inc. v. City of White

Plains, 202 F.R.D. 402, 403 (S.D.N.Y. 2001) (denying owner of

property adjacent to proposed site for wireless facility leave to

intervene, holding that the property owner that claimed that the

facility “will ruin the view from its sanctuary” did not have a

protectable interest in the subject or property of the action).

More critically, the proposed intervenors do not have a

cognizable interest relating to the property or transaction that

is the subject of this action. The property at issue consists of

thirty-one small cell sites within the Village and ExteNet’s

and not small cell nodes. (ECF No. 23-2, Proposed Intervenors’ Proposed

Memorandum of Law in Opposition to Plaintiff’s Motion for Preliminary Injunction

(“Proposed Opposition”), at 14 n.8.) Macro-cellular towers are not at issue

here.

application for a special exception permit, which do not belong to

the proposed intervenors.9 This point is not disputed. (See

Intervention Br. at 4 (“Upon learning that four of the DAS Nodes

ExteNet was seeking to construct were to be installed in extremely

close proximity to their respective homes . . . .”) (second

emphasis added).) Furthermore, the transaction at issue is the

Village’s disposition of ExteNet’s application for a special

exception permit. The proposed intervenors do not have a

cognizable interest in the properties or in ExteNet’s application.

C. Proposed Intervenors’ Ability to Protect Their Interests

Furthermore, the disposition of the instant action will

not impair or impede the proposed intervenors’ ability to assert

their interests. See Vill. of Lake Success, 2020 WL 1862948, at

*3 (“Moreover, disposition of the questions before the court . .

. will not impair the [adjacent landowners’] ability to take

practical steps to vindicate their interests. It remains their

prerogative to engage in the Village’s governance procedures to

advocate against granting [ExteNet’s] application and, if

unsuccessful, to mount their own legal challenge to any decision

allowing [ExteNet] to install the nodes.”). See also Drago v.

Garment, 691 F. Supp. 2d 490, 496 (S.D.N.Y. 2010) (holding that

9 The four proposed sites (for Nodes 4 8, 10, and 28) that the proposed

intervenors oppose are distinct from the proposed sites (for Nodes 5, 6, 9, 15,

and 17) located on private roads owned by the KOA. (See Intervention Br. at 4

n.1; Nejat Decl. ¶ 7.) The group of proposed intervenors does not include

resident members of the KOA.

the TCA does not provide a private right of action to persons

adversely affected by a local zoning board’s decision to allow the

construction of a wireless cell antenna, reasoning, inter alia,

that “[c]onstruing the right of action in § 332(c)(7) as

[p]laintiff proposes would infringe upon state and local control

over zoning matters by converting suits that should happen in state

court into federal actions.”) (citing Article 78, N.Y. Civ. Prac.

L. R (governing challenges to New York state and local

instrumentalities)).

D. Adequate Representation by the Village

Finally, any interests that the proposed intervenors may

have will be adequately represented by the Village. Even if the

proposed intervenors and the Village do not share an interest

relating to the property or transaction that is the subject of the

action, they share “an identity of interest” in the outcome; both

agree that the Village’s denial of ExteNet’s application was

proper, and share the same objective, the denial of ExteNet’s

motion for injunctive relief and dismissal of ExteNet’s claims.

See N.Y. SMSA Ltd. P’ship v. Town of Philipstown, No. 18-cv-

1534(VB), 2018 WL 6619737, at *2 (S.D.N.Y. Dec. 18, 2018). And

where, as here, a proposed intervenor shares an identity of

interest in the outcome with an existing party, the proposed

intervenor must overcome the presumption that the party already in

the action adequately represents that interest. Vill. of Lake

Success, 2020 WL 1862948, at *3. To overcome the presumption, the

proposed intervenor may offer “evidence of collusion, adversity of

interest, nonfeasance, or incompetence” by the existing party

sharing the same interest. Id. (citation omitted).

The proposed intervenors do not assert that the Village

has participated in collusion, exhibited nonfeasance, or acted

with incompetence. The only argument proffered is that the Village

may “resolve this case through mediation or settlement.”

(Intervention Br. at 12.) However, “[t]he mere possibility of

settlement does not alone render the [Village’s] and the proposed

intervenors’ interests adverse.” Town of Philipstown, 2018 WL

6619737, at *2. And the proposed intervenors point to no other

facts or circumstances that suggest that the Village will not

adequately protect their interests in opposing ExteNet’s claims.10

For the reasons set forth above, the proposed intervenors have not

established a right to intervene.

10 In support of their motion, the proposed intervenors rely on the letter

from the Village advising the Court that the Village does not oppose the motion

to intervene, (ECF No. 25), and argue that the Village cannot adequately

represent their interests. (ECF No. 28, Proposed Intervenors’ Reply In Support

of Motion for Intervention (“Intervention Reply”), at 1.) Notably, the Village

asserts vaguely that the proposed intervenors have an interest that differs

“from the interests of the community at large,” without any explanation as to

how their interests are different in the context of a case where both seek the

same outcome. (ECF No. 25.)

II. Permissive Intervention

The proposed intervenors also move for permissive

intervention. Rule 24(b)(1)(B) provides that on timely motion,

the Court may permit anyone to intervene who has a claim or defense

that shares with the main action a common question of law or fact.

Fed. R. Civ. P. 24(b)(1)(B). Permissive intervention lies within

the Court’s “broad discretion.” AT&T Corp. v. Sprint Corp., 407

F.3d 560, 561 (2d Cir. 2005). See also Floyd v. City of New York,

770 F.3d 1051, 1062 n.38 (2d Cir. 2014) (observing that a denial

of permissive intervention “has virtually never been reversed”)

(quoting Catanzano, 103 F.3d at 234).

“In exercising its discretion, the court must consider

whether the intervention will unduly delay or prejudice the

adjudication of the original parties’ rights,” Fed. R. Civ. P.

24(c), a concern raised by ExteNet who seeks an injunction. (ECF

No. 26-7, Plaintiff’s Memorandum of Law in Opposition to Motion

for Intervention at 7‒8.) The court also considers factors such

as the nature and extent of the intervenors’ interests, whether

their interests are adequately represented by the other parties,

and whether parties seeking intervention will significantly

contribute to full development of the underlying factual issues in

the suit and to the just and equitable adjudication of the legal

questions presented. Vill. of Lake Success, 2020 WL 1862948, at

*4.

For the reasons herein, the Court exercises its

discretion to deny permissive intervention in this case. As

discussed supra, the Village and the proposed intervenors share an

identity of interest in the denial of ExteNet’s application; thus,

the Village can adequately protect any interests the proposed

intervenors may possess. In addition, the proposed intervenors

“do not propose to bring anything new to the table.” Id. at *3.

Based on its review of the proposed intervenors’ Proposed Answer,

(ECF No. 23-2), and their Proposed Memorandum of Law in Opposition

to ExteNet’s Motion for Preliminary Injunction, (ECF No. 23-2,

Proposed Opposition), the Court finds that the proposed

intervenors have not shown that their intervention would

significantly contribute to the underlying relevant factual issues

or to the just and equitable adjudication of the legal issues.

First, the proposed intervenors’ opposition rehashes

arguments already advanced by the Village in its opposition to

ExteNet’s motion for preliminary injunction, for example, that

ExteNet failed to demonstrate need for the small cells. In

addition, the issues before the Court on ExteNet’s motion for

preliminary injunction are whether the Board’s denial of the

application was based on substantial evidence, or prohibited or

had the effect of prohibiting the provision of personal wireless

service. The proposed intervenors argue that the application,

which the Village has already denied, should also be denied due to

aesthetic and valuation considerations, but the Board expressly

stated it did not rely on such grounds in reaching its decision.11

The proposed intervenors even advocate for considerations that

were not before the Board and not part of the written record, such

as 47 U.S.C. § 1455(a) allowing modifications to existing wireless

facilities without approval from the Board. (Proposed Opposition

at 19‒20.) Thus, the proposed intervenors will not contribute to

relevant factual issues or the just adjudication of legal issues

because the Village has already advanced the same arguments or has

explained why the issues are not properly considered in deciding

ExteNet’s application for a special exception permit.

Finally, allowing the intervention of the proposed

intervenors would delay “the adjudication of the original parties’

rights in this case, which Congress directs must be heard and

decided on an expedited basis.” N.Y. SMSA Ltd. P’ship v. Town of

Bedford, No. 21-cv-3742(PMH), 2022 WL 718641, at *3 (S.D.N.Y. Mar.

10, 2022) (internal quotation marks and citations omitted).

11 (See Proposed Opposition at 14 (“In addition to the adverse impacts upon

the aesthetics and residential character of the area at issue, the irresponsible

placement of such unnecessary wireless facilities in such close proximity to

nearby residential homes would contemporaneously inflict upon such homes a

severe adverse impact upon the actual value of those residential properties.”);

Exhibit 24 to Lambert Decl. at 7‒8 (“The FCC has precluded this Board from

denying the application because of any alleged adverse health impacts from the

radio frequency emissions from the Facilities. The FCC has precluded this Board

from denying the application because of aesthetic concerns if it would

materially inhibit the wireless service. This Board finds that, despite its

concerns on behalf of the residents, the application, specifically for Small

Wireless Facilities, cannot legally be denied because of alleged impacts on

property values.”).)

Accordingly, the proposed intervenors’ motion to intervene is

respectfully denied.

III. The Preliminary Injunction Standard

“A party seeking to obtain a preliminary injunction

ordinarily must establish that absent award of the injunction it

will suffer irreparable harm and must demonstrate either (1) ‘a

likelihood of success on the merits’ or (2) ‘sufficiently serious

questions going to the merits to make them a fair ground for

litigation and a balance of the hardships tipping decidedly’ in

the movant’s favor.” Sprint Spectrum, L.P. v. Mills, 65 F. Supp.

2d 148, 160 (S.D.N.Y. 1999).

Where, as here, the injunctive relief sought is a

mandatory injunction, or an injunction that “alters the status quo

by commanding a positive act,” the movant must meet the higher

standard of “mak[ing] a clear or substantial showing of a

likelihood of success on the merits.” D.D. ex rel. V.D. v. N.Y.C.

Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006) (citation omitted)

(internal quotation marks omitted). Here, ExteNet seeks an Order

compelling the Village to issue the special exception permit for

the deployment of small cells. ExteNet seeks a mandatory

injunction because granting the injunction would alter, not

preserve, the status quo, as the Village would be required to grant

the special exception permit and allow the small cells to be

installed. Therefore, ExteNet must make a “clear or substantial

showing of likelihood of success on the merits.” Id.

A. Irreparable Harm

ExteNet argues that “a preliminary injunction directing

the issuance of permits is appropriate” upon a sufficient showing

of likelihood of success “because where an application to deploy

a wireless facility is improperly denied[,] an applicant

necessarily suffers irreparable harm in that (a) it is prevented

from providing service, which is an unquantifiable harm, and (b)

it cannot be awarded monetary damages.” (Pl. Br. at 6.)

In Mills, plaintiff argued that it had suffered

“immeasurable economic harm to its business operation” due to

defendant’s denial of its application for permits to install a

telecommunications facility and would “continue to suffer such

harm if forced to delay the implementation of the [personal

communication services] network.” 65 F. Supp. at 160. The court

found irreparable harm and granted plaintiff’s motion for

preliminary injunction, reasoning that though it does not have

“the ability at this point to ascertain the extent of the damage

to [plaintiff] (if any) caused by [defendant’s] denial of its

application . . . allowing the denial to stand would be

inconsistent with the policies underlying the [TCA]—i.e., insuring

the speedy deployment of wireless services to the public . . . .”

Id. at 161.

Likewise, here, the “interim damages” suffered by

ExteNet as a result of the Village’s denial of its application for

a special permit “cannot be calculated with sufficient accuracy to

make damages an adequate substitute.” Luce v. Edelstein, No. 85-

cv-4064(RLC), 1985 WL 2257, at *3 (S.D.N.Y. Aug. 8, 1985). It has

been nearly five years since ExteNet contacted the Board for the

first time regarding its proposal to install a small cell DAS

network in the Village. Thus, for a long period of time, ExteNet

has suffered, and will continue to suffer an indeterminate harm

from being delayed and prevented by the Village from installing

its wireless facilities, which harm cannot be accurately remedied

through money damages.

Furthermore, “[c]ourts have consistently found that a

mandatory injunction is an appropriate remedy for violations of

the TCA.” Omnipoint Commc’ns, Inc. v. Vill. of Tarrytown Plan.

Bd., 302 F. Supp. 2d 205, 225 (S.D.N.Y. Jan. 16, 2004) (internal

quotation marks and citation omitted). See also Cellular Tel. Co.

v. Town of Oyster Bay, 166 F.3d 490, 496 (2d Cir. 1999) (finding

that the TCA does not specify a remedy for violations and that a

majority of district courts have held that the appropriate remedy

is injunctive relief in the form of an order to issue the relevant

permits). Accordingly, the Court finds that ExteNet has made a

sufficient showing of irreparable harm.

B. Clear and Substantial Showing of Likelihood of Success

1. The Telecommunications Act

The TCA, 47 U.S.C. § 151 et seq., is “an omnibus

overhaul of the federal regulation of communications companies,”

the purpose of which is “to provide for a pro-competitive, de-

regulatory national policy framework designed to accelerate

rapidly private sector deployment of advanced telecommunications

and information technologies and services . . . by opening all

telecommunications markets to competition . . . .” Sprint

Spectrum, L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999)

(quoting H.R. Conf. Rep. No. 104–458, at 113 (1996), reprinted in

1996 U.S.C.C.A.N. 124, 124).

In furtherance of this purpose, Congress, while

preserving the authority of state and local governments over

“decisions regarding the placement, construction, and modification

of personal wireless service facilities,” 47 U.S.C. §

332(c)(7)(A), imposed certain limitations over such authority.

Willoth, 176 F.3d at 639; 47 U.S.C. § 332(c)(7)(B). These

limitations proscribe local governments from, among others, taking

actions that “prohibit or have the effect of prohibiting the

provision of personal wireless services.” 47 U.S.C. §

332(c)(7)(B)(i)(II). In addition, the TCA requires that any denial

of a request to construct a wireless facility be “in writing and

supported by substantial evidence” in the record. Id. §

332(c)(7)(B)(iii).

When evaluating whether the Village’s denial was

supported by substantial evidence, the record should be reviewed

in its entirety, including opposing evidence. Cellular Tel. Co.,

166 F.3d at 494 (citing Am. Textile Mfr. Inst., Inc. v. Donovan,

452 U.S. 490, 523 (1981)). “Substantial evidence, in the usual

context, has been construed to mean less than a preponderance, but

more than a scintilla of evidence. It means such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.” Id. (internal quotation marks and citation omitted).

2. Local and State Laws

“[L]ocal and state zoning laws govern the weight to be

given the evidence” supporting a decision by a local government to

deny an application to construct personal wireless service

facilities. Id. In other words, the TCA governs the “procedural

requirements that local boards must comply with in evaluating”

applications for personal wireless service facilities, but the

applicable substantive standards are the “established principles

of state and local law.” Id. See Orange Cnty.-Poughkeepsie Ltd.

P’ship v. Town of East Fishkill, 84 F. Supp. 3d 274, 295 (S.D.N.Y.

2015), aff’d, 632 F. App’x 1 (2d Cir. 2015) (“Here, the applicable

local law is the Code, which sets forth the requirements for

obtaining a special permit to construct a new telecommunications

facility. State law, in turn, provides that wireless providers

are public utilities for the purposes of zoning applications.”).

In the instant case, the applicable local law is section

161, Article XII of the Village Code, as amended in March and

October 2019, which sets forth the procedural requirements for

permitting small cells in the Village, and defines small cells and

provides equipment and siting specifications that must be met.

The Village does not dispute that ExteNet has satisfied the

requirements under the Village Code for a special exception permit

to install small cells in the Village. Indeed, the Village has

stipulated that the Village Attorney and the Mayor stated at the

September 13, 2021 Board meeting that “ExteNet had satisfied the

requirements outlined in the Village Code.” (Joint Stipulation of

Facts ¶ 57.)

With respect to the applicable state law, wireless

carriers are classified as public utilities under New York law for

purposes of zoning applications. Cellular Tel. Co. v. Rosenberg,

624 N.E.2d 990, 993 (N.Y. 1993). Accordingly, “a narrower range

of discretion” is involved “in dealing with special permit

applications filed by utilities than is true in the case of the

generality of applications.” T-Mobile Ne. LLC v. Inc. Vill. of E.

Hills, 779 F. Supp. 2d 256, 265 (E.D.N.Y. 2011) (citation omitted).

“Rather than granting a variance only on a showing of ‘unnecessary

hardship,’ a local zoning board must consider whether the public

utility has shown ‘a need for its facilities’ and whether the needs

of the broader public would be served by granting the variance.”

Cellular Tel. Co., 166 F.3d at 494 (citing Consol. Edison Co. v.

Hoffman, 374 N.E.2d 105 (N.Y. 1978)).12

In the context of zoning decisions for

telecommunications facilities, the public necessity standard set

forth in Consolidated Edison has been interpreted as requiring

that a telecommunications provider seeking a variance for a

proposed facility establish that: (1) “there are gaps in service,”

(2) “the location of the proposed facility will remedy those gaps,”

and (3) “the facility presents a minimal intrusion on the

community.” N.Y. SMSA Ltd. P’ship v. Vill. of Floral Park Bd. of

Trs., 812 F. Supp. 2d 143, 154 (E.D.N.Y. 2011) (citation omitted).

12 “ExteNet contracts with FCC-licensed wireless providers to design, obtain

local permits for, build, and operate small cell networks in areas that the

carrier has identified as needing improved service.” (Lambert Decl. ¶ 13.)

Some courts in this Circuit have applied the public utility standard set forth

in Consolidated Edison to zoning applications made by entities that develop and

build telecommunications facilities on behalf of telecommunications carriers

licensed by the FCC, without clarifying whether they, too, qualify as public

utilities. See, e.g., ExteNet Systems, Inc. v. Vill. of Plandome, No. 19-cv-

7054(GRB), 2021 WL 4449453, at *15 (E.D.N.Y. Sept. 29, 2021); Up State Tower

Co., LLC v. Town of Kiantone, No. 16-cv-69(MAT), 2019 WL 1117220, at *3 (W.D.N.Y.

Mar. 11, 2019). In Rosenberg, the New York Court of Appeals held that a

telecommunications carrier is a public utility and that an antenna tower that

facilitates the supply of telecommunications service is a “public utility

building,” reasoning that a telecommunications carrier possesses the

characteristics of a public utility. 624 N.E.2d at 993. These characteristics

include: (1) providing services essential to the public interest; (2) operating

“under a franchise, subject to some measure of public regulation”; and (3)

having logistical problems, such as having to pipe, wire, or otherwise serve

the product of the utility to each user and “maintain[ the supply] at a constant

level to meet minute-by-minute need,” and the “user ha[ving] no alternative

source” and “the supplier commonly ha[ving] no alternative means of delivery.”

Id. The same rationale applies to entities like ExteNet that contract with

FCC-licensed carriers to construct the facilities needed to provide

telecommunications services, whether it be via macro-cellular towers or small

cells, that the carriers themselves would otherwise put into place.

Here, however, ExteNet is not seeking a variance but

instead seeks a special exception permit. Thus, ExteNet contends

that it was not required to demonstrate a public necessity because

the Village legislated a special exception permit process for the

siting and construction of small cells. ExteNet argues that, under

New York law, legislating a special exception permit “for a

particular use is ‘tantamount to a finding that the permitted use

is in harmony with the general zoning plan and will not adversely

affect the neighborhood,’” unlike a variance, which permits a use

that is inconsistent with the local zoning. (ECF No. 17-38,

Plaintiff’s Memorandum of Law in Support of its Motion for a

Preliminary Injunction (“Pl. Br.”), at 8 (quoting N. Shore Steak

House, Inc. v. Bd. of Appeals of Inc. Vill. of Thomaston, 282

N.E.2d 606, 609 (N.Y. 1972)).) According to ExteNet, “[b]ecause

the Village Code permits, not prohibits, small cells as a form of

infrastructure in the community,” ExteNet was not required to make

a showing of public need for them. Instead, ExteNet contends that

it has demonstrated its compliance with the requirements set forth

in the Village Code. (Pl. Br. at 8.) Indeed, the Village, through

its mayor and attorney, has conceded that ExteNet has complied

with the Village Code permit requirements. (Joint Stipulation of

Facts ¶ 57.)

In support, ExteNet cites to New York Court of Appeals

decisions distinguishing variances and special exceptions and

holding that a property owner seeking a special exception permit,

as opposed to a variance, need not show an undue hardship. See

id. (citing In re Retail Prop. Tr. v. Bd. of Zoning Appeals of

Town of Hempstead, 774 N.E.2d 727, 730‒31 (N.Y. 2002) (“Unlike a

variance which gives permission to an owner to use property in a

manner inconsistent with a local zoning ordinance, a special

exception gives permission to use property in a way that is

consistent with the zoning ordinance, although not necessarily

allowed as of right. The significance of this distinction is that

the ‘inclusion of the permitted use in the ordinance is tantamount

to a legislative finding that the permitted use is in harmony with

the general zoning plan and will not adversely affect the

neighborhood.’ Thus, the burden of proof on an owner seeking a

special exception is lighter than that on an owner seeking a

variance, the former only being required to show compliance with

any legislatively imposed conditions on an otherwise permitted

use, while the latter must show an undue hardship in complying

with the ordinance.”)).

ExteNet is correct that the Village Code explicitly

prescribes the procedural requirements for obtaining a special

exception permit for the siting and construction of small cells,

and thereby specifically has legislated small cells as a permitted

use that is in harmony with the Village’s general zoning plan.

ExteNet’s argument is persuasive, considering that the

Consolidated Edison decision refers specifically to variances and

public utilities having to show public necessity rather than undue

hardship, which is a requisite showing for variances only, as

clarified in In re Retail Prop. Tr., 774 N.E.2d at 730‒31.

Furthermore, to apply the public necessity standard to special

exception permits and variances alike would render the two without

any difference.

At the same time, the Court notes that ExteNet does not

cite to, nor is the Court aware of, New York cases holding that a

public utility seeking a special exception permit is exempt from

demonstrating public necessity. Cf. Vill. of Floral Park Bd. of

Trs., 812 F. Supp. 2d at 154‒55 (applying New York’s public

necessity standard in analyzing defendants’ denial of plaintiff

telecommunications carrier’s application for a special use permit,

the requirements for which were set forth in the village code); T-

Mobile Ne. LLC v. Town of Islip, 893 F. Supp. 2d 338 (E.D.N.Y.

2012) (same). The Court, however, need not and therefore does not

reach this issue, as ExteNet has satisfied the Consolidated Edison

standard and thus has made a sufficient showing of public necessity

for the small cells.

3. Lack of Substantial Evidence for the Board’s

Decision

The Board’s denial of the Second Application was based

on its finding that ExteNet failed to demonstrate a need for the

small cells and did not make a sufficient showing that a denial of

the application would materially inhibit wireless service in

violation of federal law. (Exhibit 24 to Lambert Decl. at 6‒9.)

In addition, the Board concluded that the Village could not permit

the siting of nodes within Kennilworth unless consent was granted

to ExteNet by the KOA. (Id. at 10.)

“As a general rule, if the public utility makes the

required showing [of public necessity], which necessarily means

the record is devoid of substantial evidence to support a denial,

the variance must issue.” Town of Islip, 893 F. Supp. 2d at 355).

ExteNet submitted evidence that (1) there were gaps in Verizon’s

coverage, (2) the installation of small cells would remedy those

gaps, and (3) the installation would be a minimal intrusion on the

community. Vill. of Floral Park Bd. of Trs., 812 F. Supp. 2d at

154 (citation omitted). The Board’s finding that ExteNet failed

to demonstrate need, as well as the reasons provided in support of

that finding, are not substantiated by the record. Not only is

the Board’s finding that ExteNet failed to demonstrate need

contradicted by the evidence submitted by ExteNet of coverage gaps

within the Village, but it is also inconsistent with the Board’s

own statements regarding the Village’s need for improved wireless

service. The parties’ Joint Stipulation of Facts references

several instances of the Board stating that the Village had

unreliable wireless service. (Joint Stipulation of Facts ¶¶ 12‒

13, 58.) Moreover, it was the Board that had initially asked

ExteNet to expand the coverage contour to encompass more parts of

the Village. (Id. ¶ 13.)

a. The Proposed Facilities Would Remedy the

Existing Gaps in Service

ExteNet has established and the Village acknowledged

that there were coverage gaps within the coverage contour. “There

is a public necessity when there is a service gap for a particular

provider in a particular service area.” Nextel of N.Y., Inc. v.

City of Mount Vernon, 361 F. Supp. 2d 336, 341 (S.D.N.Y. 2005).

As part of the Second Application, ExteNet submitted coverage and

drive test maps that had been provided by Verizon, showing gaps in

coverage. (Fridrich Decl. ¶ 44.) The coverage maps displayed

poor signal strength within the coverage contour, with one map

showing the signal strength of the 700 MHz frequency and the other

of the Advanced Wireless Services frequency band. (Id. ¶¶ 55, 57;

Exhibit 3 to Fridrich Decl. at 8‒9.) The drive test maps, which

display collected live network data, showed unreliable signal

strength, active and idle network connectivity, and download

speeds in and around Kings Point. (Fridrich Decl. ¶¶ 46‒52; Exhibit

3 Fridrich Decl. at 4‒7.) ExteNet also presented testimony from

its RF Engineer, Chris Fridrich, explaining the maps from Verizon

and the need for improved service in the community. (Fridrich

Decl. ¶ 37; Lambert Decl. ¶¶ 88, 107.) Mr. Fridrich also provided

a predictive coverage map that he had developed that displayed the

improved coverage the small cells would provide, (Fridrich Decl.

¶ 37; Lambert Decl. ¶ 88), thereby satisfying the second

requirement of showing that the proposed facilities would remedy

the existing gaps in service. Vill. of Floral Park Bd. of Trs.,

812 F. Supp. 2d at 154.

In denying the Second Application, the Board found that

ExteNet failed to demonstrate need for the small cells. (Exhibit

24 to Lambert Decl. at 7.) The Board’s finding that ExteNet failed

to show public necessity was not supported by substantial evidence

in the record. Instead, such finding was based on: (1) anecdotal

comments from residents that “they did not have substandard

coverage,” (2) Mr. Campanelli’s unsupported opinion that a map on

Verizon’s website showed “more than substandard coverage” for the

four proposed sites near his clients’ residences, and (3) ExteNet’s

rejection of the Board’s request for the underlying data for the

drive test maps. (Id. at 6‒9.)

The Court addresses each of the reasons given by the

Board to determine whether its finding that ExteNet failed to

demonstrate public necessity was based on substantial evidence.

First, the comments from certain residents as to the adequacy of

service, and the information available on Verizon’s website are

outweighed by the tested evidence in ExteNet’s favor. Courts have

found, and this Court agrees, that comments from residents that

their service was adequate do not constitute substantial evidence.

See Vill. of Floral Park Bd. of Trs., 812 F. Supp. 2d at 160–162

(holding that “unverified, untested, anecdotal statements by Board

members and residents about their personal coverage experience”

are “not enough to call into question Verizon’s otherwise

undisputed objective evidence”); N.Y. SMSA Ltd. P’ship v. Town of

Oyster Bay, No. 11–cv–3077(MKB), 2013 WL 4495183, at *13 n.6

(E.D.N.Y. Aug. 16, 2013) (“There was testimony by several of the

community members that they did not experience any problems with

their Verizon Wireless coverage. This is not substantial evidence

upon which the Board may rely to reject expert evidence to the

contrary.”) (citations omitted); Industrial Commc’ns & Elecs, Inc.

v. O’Rourke, 582 F. Supp.2d 103, 108–09 (D. Mass. 2008) (holding

that the opinion of seven neighbors that they have “good cellphone

coverage” was “not enough to call into question the studies

presented by [the plaintiff]”). Likewise, a marketing map on

Verizon’s website containing an express disclaimer related to the

accuracy of its coverage information does not constitute reliable,

much less substantial, evidence on which the Board could base its

finding of adequate wireless service. See Vill. of Plandome, 2021

WL 4449453, at *16 (holding that coverage maps displayed on

Verizon’s website, with the express warning that these maps “are

not a guarantee of coverage and contain areas of no service, and

are a general prediction of where rates apply based on [Verizon’s]

internal data,” “barely amount to even a ‘scintilla’ of

evidence.”).

The Village Board’s third rationale for its finding that

ExteNet failed to establish need is based on its view that ExteNet

did not submit the underlying data for the drive test maps. The

Village, citing to an FCC Staff Report,13 argues that the coverage

maps are not reliable because, according to the FCC Staff Report,

they do not always accurately represent the actual data. (Exhibit

24 to Lambert Decl. at 8; ECF No. 18-1, Defendant’s Memorandum of

Law in Opposition to Plaintiff’s Motion for a Preliminary

Injunction (“Def. Opp.”), at 3.14) In addition, the Village

contends that the maps “do not show the data for all of the proposed

locations for the [small cells], and, therefore, are insufficient,

in and of themselves, to support the alleged gaps and the need for

13 This FCC Staff Report, titled “Mobility Fund Phase II Coverage Maps

Investigation,” was submitted as Exhibit D to the Declaration of Michael

Kalnick. (Exhibit D to Kalnick Decl.)

14 The Court clarifies that the Village mistakenly does not distinguish

between “coverage maps” and “drive test maps” as ExteNet correctly does. The

Village instead refers to both as “coverage maps.” (Compare Fridrich Decl. ¶¶

47‒58 (referring to the first four maps in Exhibit 3 to the Declaration of

Christian Fridrich as the “drive test maps” and referring to the fifth and sixth

maps as the “coverage maps”) with Def. Opp. at 5 (referring to the first map in

Exhibit 2 to the Complaint, consisting of the same six maps in Exhibit 3 to the

Declaration of Christian Fridrich, as a “coverage map”).) As explained in

footnote 4, supra, drive test maps and coverage maps are distinct.

all of the Facilities.” (Exhibit 24 to Lambert Decl. at 9; see

also Def. Opp. at 5.) According to the Village, the drive test

maps do not display network information in the area of the Village

north of Redbrook Road and Middle Neck Road, where ExteNet proposed

to deploy 19 of the 31 small cells. (Exhibit F to Kalnick Decl.).

First, the FCC Staff Report does not appear to be

relevant to local permitting for small cells because it relates to

the FCC’s provision of universal service funding to providers to

subsidize telecommunications service in, among others, low-income

households and high-cost areas. (See Exhibit D to Kalnick Decl.

at 1; FCC, https://www.fcc.gov/general/universal-service-fund

(last visited May 6, 2022.) Furthermore, even if the Staff Report

were applicable, its finding that coverage maps are not accurate

because they “overstate[] . . . actual coverage,” and “d[o] not

reflect on-the-ground performance in many instances,” does not

support the Village’s position that, notwithstanding the coverage

and drive test maps from Verizon displaying substandard coverage,

the Village actually has good wireless service. (Exhibit D to

Kalnick Decl. at 2 (emphasis added).) Second, though the Village

may be correct that the drive test maps, alone, are not enough to

show deficiency in service as to the nineteen locations north of

Redbrook Road and Middle Neck Road, the drive test maps and the

coverage maps displaying poor signal strength within the entire

coverage contour, together, are sufficient to demonstrate need.

Moreover, where, as here, the Village Code does not

require a showing of a coverage deficiency by a specific type of

evidence, “[t]he fact that the Board apparently would have

preferred some other type of data . . . does not provide a valid

basis for denying plaintiff’s application.” Vill. of Plandome,

2021 WL 4449453, at *17. See Vill. of Floral Park Bd. of Trs.,

812 F. Supp. 2d at 154 (“However, a zoning board[’]s denial of an

area variance based on a consideration that is not included in a

local or state zoning law cannot be supported by substantial

evidence.”) (citations omitted); Orange Cnty.-Poughkeepsie Ltd.

P’ship, 84 F. Supp. 3d at 304–05 (“[N]othing in the Code or the

TCA requires that Plaintiffs present data on dropped calls or

customer dissatisfaction, and, accordingly, it is not, without

more, an adequate basis on which to deny the Application.”).

Accordingly, the Village has not provided valid,

evidentiary reasons for finding that ExteNet has not demonstrated

need for improved service within the coverage contour. And the

Village neither retained an expert to dispute ExteNet’s tested

evidence nor conducted its own testing to show that there is

reliable service. (Joint Stipulation of Facts ¶ 71.) In light of

the foregoing, the Court concludes that ExteNet has provided

sufficient evidence demonstrating a deficiency in coverage within

the coverage contour and that installing the small cells would

remedy such deficiency. The Court concludes further that the

Board’s finding that ExteNet failed show need is not substantiated

by the record.

b. The Installation of Small Cells Would Be a

Minimal Intrusion on the Community

In addition, ExteNet has shown that installing the small

cells would only minimally intrude on the community. Small cells,

consisting of small antennas, roughly two to three feet in height,

and equipment boxes that are approximately three cubic feet in

volume, are less intrusive, compared to macro-cellular towers,

which are typically over 100 feet tall. (Joint Stipulation of

Facts ¶¶ 2‒3; Lambert Decl. ¶ 6.) Moreover, the record before the

Court demonstrates that ExteNet, throughout the entire application

process, has worked tirelessly and responsively with the Board and

Village residents to ensure that the small cells intrude on the

community as little as possible. Specifically, ExteNet maximized

using existing structures on public rights-of-way as installation

points for the small cells. In January 2019, ExteNet initially

proposed using only three existing poles, (Lambert Decl. ¶ 41;

Exhibit 4 to Lambert Decl.), but subsequently changed its plan to

using twenty existing poles. (Exhibit 19 to Lambert Decl.)

Furthermore, between the Board’s revocation of the

special exception permit in September 2019 and the September 13,

2021 Board meeting, ExteNet had numerous discussions with

concerned residents regarding the installation sites and, in some

instances, was able to propose alternative sites for some of the

nodes that were satisfactory to the residents. (Joint Stipulation

of Facts ¶¶ 40‒44, 52‒53.)

Moreover, the Board’s Decision denying the Second

Application was not based on any failure on the part of ExteNet to

demonstrate that granting the application would be minimally

intrusive on the community. In fact, the Decision expressly states

that the denial was not based on grounds related to intrusion on

the community—i.e., the effect the deployment of the small cells

could have on the aesthetics, property values, and the health and

safety of the community. (See Exhibit 24 to Lambert Decl. at 7‒8

(“The FCC has precluded this Board from denying the application

because of any alleged adverse health impacts from the radio

frequency emissions from the Facilities. The FCC has precluded

this Board from denying the application because of aesthetic

concerns if it would materially inhibit the wireless service. This

Board finds that, despite its concerns on behalf of the residents,

the application, specifically for Small Wireless Facilities,

cannot legally be denied because of alleged impacts on property

values.”).

For the foregoing reasons, the Court concludes that

ExteNet demonstrated the existence of gaps in coverage, that the

gaps would be remedied by the proposed facilities, and, finally,

that the facilities would be a minimal intrusion on the community.

Accordingly, the Board’s denial of the Second Application based on

a finding of lack of public necessity is not supported by

substantial evidence.

c. Other Reasons Provided in Support of the

Board’s Denial

The Court also respectfully rejects the Village’s

rationale that ExteNet failed to show that a denial of the

application would materially inhibit the provision of wireless

service. First, because the Village Code does not incorporate the

standard imposed by section 332(c)(7)(B)(i)(II) of the TCA, which

precludes state and local governments from actions that “prohibit

or have the effect of prohibiting the provision of personal

wireless services,” 47 U.S.C. § 332(c)(7)(B)(i)(II), a denial on

such basis would not be based on substantial evidence. See Vill.

of Floral Park Bd. of Trs., 812 F. Supp. 2d at 155 (“[T]he Board

primarily based its rejection of the Application on Verizon’s

failure to satisfy requirements that were not based in any

applicable state or local law. Accordingly, the Court finds that

each of the Board’s proffered reasons for denying the Application

are not supported by substantial evidence and therefore in

violation of the TCA.”)

Second, to read the section 332(c)(7)(B)(i)(II) standard

into the Village Code would be inconsistent with the purpose of

the TCA, which is to establish procedural requirements for state

and local governments to follow, while maintaining the established

principles of local and state zoning laws as the applicable

substantive standards. Cellular Tel. Co., 166 F.3d at 494. See

MetroPCS, Inc. v. City and Cnty. of San Francisco, 400 F.3d 715,

723‒24 (9th Cir. 2005) (“[T]he substantial evidence inquiry does

not require incorporation of the substantive federal standards

imposed by the TCA, but instead requires a determination whether

the zoning decision at issue is supported by substantial evidence

in the context of applicable state and local law.”), abrogated on

other grounds by T-Mobile S., LLC v. City of Roswell, 574 U.S. 293

(2015).

Finally, the Court likewise respectfully rejects the

Village’s argument that it could not grant a special exception

permit for the proposed sites that are on private roads owned by

the KOA. “The New York Court of Appeals has held that it is

impermissible to deny a special permit based on an allegation or

a claim that the approval would violate the private rights of a

third party.” Omnipoint Commc’n, Inc. v. Common Council of

Peekskill, 202 F. Supp. 2d 210, 222 (S.D.N.Y. 2002) (citing Friends

of the Shawangunks, Inc. v. Knowlton, 476 N.E.2d 988 (N.Y. 1985)).

The Village argues further, without explanation, that a provision

in section 84-8 of the Village Code related to building permits is

applicable to installation of small cells and restricts the Village

“from issuing a permit to any person or entity to work on private

property without that property owner’s permission,” specifically

the roads owned by the KOA. (Def. Opp. at 10.) The Village,

however, does not proffer any reason why section 84-8, which

neither mentions telecommunications facilities nor is incorporated

by reference into section 161, Article XII, which specifically

deals with telecommunications facilities, is relevant.15 Nor does

the Village explain why section 84-8 applies to its decision to

deny ExteNet’s application for a special exception permit.

In sum, ExteNet has made a clear and substantial showing

that the grounds upon which the Board denied the Second Application

are not based on substantial evidence in the record. Therefore,

15 The Court notes that counsel for Defendant (the Village Attorney)

represented to the Court at the December 16, 2021 pre-motion conference that

he, as the attorney for the Village for over 40 years, can attest to the fact

that the Village has always recognized these roads as private property owned by

the KOA. (See ECF No. 30, December 16, 2021 Pre-Motion Conference Transcript,

at 8‒9.) Accordingly, if it were the case that the Village, all along,

understood these roads to be private and that it would not be able to permit

the installation of small cells on those roads without authorization from the

KOA, it is questionable that the Village entered into a tolling agreement and

an amendment to the tolling agreement wherein it agreed to not request any

further information from ExteNet as a condition to voting on the Second

Application if no authorization had been given. (Exhibits 14 and 18 to Lambert

Decl.)

According to the KOA, the proposed sites for Nodes 5, 6, 9, 15, and 17 in

the Second Application are on streets within Kennilworth. (Nejat Decl. ¶ 7.)

In support, the KOA attached as an exhibit to the Nejat Declaration an excerpt

from the application that shows the proposed locations for the five nodes. (ECF

No. 18-13, Exhibit J to Nejat Decl.) Based on ExteNet’s January 3, 2019

presentation of the First Application to the Board, it appears that the proposed

sites for Nodes 5, 6, 9, 15, and 17 have remained the same since the First

Application. (Compare Exhibit J to Nejat Decl. with Exhibit 4 to Lambert Decl.

at 26, 29, 38, 56, 62.) Thus, the Village unanimously approved the First

Application, which included the same sites within the KOA as the Second

Application, but subsequently denied the Second Application based, in part, on

the sites within the KOA, with which the Village took no issue in granting the

First Application. The Court finds that this discrepancy in the Village’s

actions strongly militates against a finding that the Village’s denial of the

Second Application is supported by substantial evidence.

the Court finds that ExteNet has demonstrated a clear and

substantial likelihood of success on its claim that the Village’s

decision was unsupported by substantial evidence.

4. Effective Prohibition of Personal Wireless Service

Pursuant to its goal of providing access to

telecommunications services more broadly, the TCA restricts local

governments from denying applications, the effect of which would

“prohibit or have the effect of prohibiting the provision of

personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II).

The Second Circuit has clearly stated that the TCA “precludes

denying an application for a facility that is the least intrusive

means for closing a significant gap in a remote user’s ability to

reach a cell site that provides access to land lines.” Willoth,

176 F.3d at 643.

Because the relief sought by ExteNet on its “effective

prohibition” claim is identical to that requested for the

“substantial evidence” claim, the Court finds it unnecessary to

also address the merits of ExteNet’s effective prohibition claim.

Vill. of Plandome, 2021 WL 4449453, at *23. Even if the Court

were to consider the claim, the Court finds that the denial of

ExteNet’s application has prohibited the provision of personal

wireless services within the Village. Consequently, the Court

finds that ExteNet has established a clear and substantial

likelihood of success on the merits of its effective prohibition

claim.

C. Balance of Hardships

The balance of hardships tips decidedly in ExteNet’s

favor. As noted previously, it has been almost five years since

ExteNet first contacted the Board to discuss installing small cells

to enhance wireless service in the Village. Since then, ExteNet

has worked with the Board and Village residents expeditiously and

in good faith to address any questions and concerns, has granted

several tolling requests, and has ensured that the nodes cause

minimal intrusion to the community. Notably, the Village Board

stressed the need for improved wireless service in the Village for

public safety and requested that ExteNet expand the coverage

contour to cover more parts of the Village.

On the other hand, the Village has not sufficiently

demonstrated that the small cells would result in negative impacts

on either the health of its residents or the value of their

property. Even if some residents may experience hardship as a

result of the purported aesthetic and visual impacts, such hardship

is outweighed by the harm that ExteNet would experience without

the grant of the relief it seeks. See Vill. of Plandome, 2021 WL

4449453, at *1, (granting plaintiff’s motion for summary judgment

and ordering the village board of trustees to grant plaintiff’s

application, reasoning, inter alia, that “it was plaintiff who

engaged in good faith in a particularly arduous and drawn-out

application review process for over a year, only to have its

application denied on mere pretense.”).

PRELIMINARY INJUNCTION

For the foregoing reasons, the proposed intervenors’

motion to intervene is respectfully DENIED, and Plaintiff’s motion

for a preliminary injunction is GRANTED. The Defendant is ordered

to grant Plaintiff’s Second Application for a special exception

permit to install thirty-one small wireless facilities in the

Village of Kings Point.

SO ORDERED.

________ _/s/______________

Kiyo A. Matsumoto

United States District Judge

Dated: Brooklyn, New York

May 31, 2022