Up State Tower Co., LLC v. The Town of Kiantone, New York

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

UP STATE TOWER CO., LLC,

Plaintiff,

DECISION and ORDER

-vs- No. 1:16-cv-00069-MAT

THE TOWN OF KIANTONE, NEW YORK; THE

TOWN BOARD OF THE TOWN OF KIANTONE,

NEW YORK; and THE BUILDING

DEPARTMENT OF THE TOWN OF KIANTONE,

NEW YORK,

Defendants.

INTRODUCTION

Up State Tower Co., LLC (“Plaintiff”) commenced this action

against the Town of Kiantone, the Town Board of the Town of

Kiantone and the Building Department of the Town of Kiantone

(collectively, “Defendants”) alleging that Defendants violated the

Telecommunications Act of 1996 (“TCA”), Pub. L. No. 104–104, 110

Stat. 56 (codified at 47 U.S.C. § 151 et seq., as amended), in

denying its application for a special use permit to construct a

public utility wireless telecommunication facility. Presently

before the Court is Defendants’ Motion for Reconsideration.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff develops and builds telecommunications facilities on

behalf of Blue Wireless, a telecommunications carrier licensed by

the Federal Communications Commission (“FCC”) to operate in the

Jamestown, New York area, including the Town of Kiantone (“the

Town”). The Town is a municipal corporation in Chatauqua County,

New York. The Town Board of the Town of Kiantone (“the Board”) is

the Town’s governmental body.

At issue in this litigation is Plaintiff’s Tower Permit

Application (“the Application”) dated July 30, 2015, seeking

permission to construct a wireless telecommunications tower at 1710

Foote Avenue, in Jamestown, New York (“the Proposed Site”).

On December 9, 2016, this Court issued a Decision and Order

granting Plaintiff’s motion for summary judgment on as to its first

cause of action and ordered, as a remedy, that the Town issue a

written decision on the Application within 20 days.

On December 19, 2016, the Board issued a “Resolution Denying

the Application of Up State Tower Co., LLC For Town Tower Permit,

Area Variances and Site Plan Review” (“the Resolution”) (Dkt #39-

3). After making a number of factual findings, see id. ¶¶ 1-61, the

Board offered several reasons for denying Plaintiff’s Application,

including that Plaintiff “failed to establish that its proposed

facility is the least intrusive means to close Blue Wireless’ gap

in wireless coverage or that a tower at this location and height is

needed to solve Blue Wireless’ alleged gap in wireless coverage[.]”

Resolution (Dkt #39-3) at 13.

On January 9, 2017, Plaintiff filed a motion to reconsider

this Court’s December 9, 2016 decision. After the Court issued a

Decision and Order denying reconsideration on March 31, 2017,

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Plaintiff filed a notice of interlocutory appeal as to the December

2016 and March 2017 decisions. The United States Court of Appeals

for the Second Circuit affirmed both decisions on December 27,

2017.

Defendants filed a Second Motion for Summary Judgment (Dkt

##39 to 39-20) asserting entitlement to judgment as a matter of law

on Count V of the Amended Complaint (Dkt #24), which alleges that

the denial of the Application violated 47 U.S.C.

§ 332(c)(7)(B)(iii) because it is unsupported by “substantial

evidence.” Plaintiff has opposed the motion (Dkt ##42 to 42-5), and

Defendants have filed a Reply (Dkt #43). The motion was submitted

without oral argument on November 27, 2018 (Dkt #44). On

February 15, 2019, Plaintiff filed a Response (Dkt #45) presenting

supplemental authority1 in further support of its opposition.

The supplemental authority consisted of a Declaratory Ruling

and Third Report and Order (“FCC Order”) adopted by the Federal

Communications Commission (“FCC”) on September 26, 2018, and

effective January 14, 2019. Plaintiff noted that the FCC clarified

the interpretation of what constitutes “an effective prohibition”

of wireless service for purposes of an “effective prohibition”

claim under 47 U.S.C. § 332(c)(7)(B)(i)(II). Defendants did not

1 The FCC Order is entitled In the Matter of Accelerating Wireless

Broadband Deployment by Removing Barriers to Infrastructure Investment, WT

Dkt. No. 17-79 and WC Docket No. 17-84, FCC 18-133, available at

https://www.fcc.gov/document/fcc-facilitates-wireless-infrastructure-deploymen

t-5g.

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respond to Plaintiff’s submission of the FCC Order. Defendants also

did not move for summary judgment on Plaintiff’s effective

prohibition claim. The Court found that it was unclear whether the

FCC Order applied to the Resolution issued in December 2016, and

thus determined it was not dispositive of Defendants’ summary

judgment motion.

In a Decision and Order (Dkt #46) dated March 11, 2019, the

Court denied Defendants’ motion for summary judgment as to Count V,

finding that the Board’s Resolution denying Plaintiff’s Application

was not supported by substantial evidence. Accordingly, the Court

determined, Defendants were not entitled to summary judgment with

respect to Count V of the Amended Complaint. As a remedy, the Court

vacated the Board’s Resolution denying the Application and directed

Defendants to promptly approve the Application and grant and issue

all required variances to Plaintiff. Judgment in Plaintiff’s favor

(Dkt #47) was entered on March 12, 2019.

On April 2, 2019, Defendants filed their First Motion for

Reconsideration (Dkt ##49 to 49-4). On April 15, 2019, Defendants

filed their First Motion to Stay the Judgment (Docket ## 50, 51).

By order dated April 16, 2019 (Dkt #52), the Court granted

Defendants’ request to stay its obligation to issue the cell tower

permit until such time as the Court decided their reconsideration

motion. On April 17, 2019, the Court granted Plaintiff’s request

for an extension of time to respond to the reconsideration motion.

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Plaintiff filed its Memorandum in Opposition (Dkt #56) on April 24,

2019. Defendants did not submit any reply papers.

DEFENDANTS’ MOTION FOR RECONSIDERATION

I. Standard on Reconsideration

The standard for granting a motion for reconsideration under

Federal Rule of Civil Procedure (“F.R.C.P.”) 59(e) “is strict, and

reconsideration will generally be denied unless the moving party

can point to controlling decisions or data that the court

overlooked—matters, in other words, that might reasonably be

expected to alter the conclusion reached by the court.” Shrader v.

CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing

Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990) (“The

only proper ground on which a party may move to reargue an

unambiguous order is that the court overlooked ‘matters or

controlling decisions’ which, had they been considered, might

reasonably have altered the result reached by the court.”); Adams

v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988) (same)).

“The provision for reargument is not designed to allow wasteful

repetition of arguments already briefed, considered and decided[,]”

Schonberger, 742 F. Supp. at 109 (citations omitted)), and “a

motion to reconsider should not be granted where the moving party

seeks solely to relitigate an issue already decided.” Shrader, 70

F.3d at 257.

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II. Asserted Grounds for Motion

Defendants assert that the Court made the following “errors

of law” in its March 11, 2019 Decision and Order denying summary

judgment: (1) considering the Affidavit of Donald Carpenter

(“Carpenter”) dated October 30, 2018 (“Carpenter Affidavit”)

(Dkt #42-3) with regard to Plaintiff’s investigation of and

negotiations regarding a parcel (“Location 19” or “the Schuver

property”) owned by George Barton Schuver, Jr. (“Schuver”);

(2) considering the October 30, 2018 Affidavit of Eric Wong (“2nd

Wong Affidavit”) (Dkt #42-4) regarding the ability to collocate a

telecommunications tower on light poles at the Jamestown School

District Sports Complex (“Sports Complex”); and (3) considering the

Town’s negative determination under the New York State

Environmental Quality Review Act (“SEQRA”), N.Y. Envtl. Conserv.

Law § 8-0109, et seq., as evidence that Plaintiff’s proposal was

the least intrusive means to close a wireless coverage gap in the

Town of Kiantone. Defendants argue that the Court considered

evidence that was not before the Board, or actually relied on by

the Board, when it arrived at its Resolution denying Plaintiff’s

Application.

Plaintiff counters that neither the Carpenter Affidavit nor

the 2nd Wong Affidavit introduced information that was outside the

record of what was considered by the Board—in other words, the

substance of the these two affidavits was already before the Board

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through Wong’s and Carpenter’s statements made at the various Board

meetings leading up to the Resolution. In addition, Plaintiff

argues, the Board’s findings with regard to the alleged failure to

properly investigate other sites are unsupported by substantial

evidence, even without considering the Carpenter Affidavit and

2nd Wong Affidavit. As to the Town’s negative SEQRA determination,

Plaintiff argues that it was relevant to demonstrating the lack of

substantial evidence supporting the Town’s assertion of generalized

concerns about the siting of the proposed tower.

III. Analysis

As discussed further below, the Court concludes that

reconsideration is not warranted because none of grounds raised by

Defendants in their motion “might reasonably be expected to alter

the conclusion reached by the court[,]” Shrader, 70 F.3d at 257,

that the Board’s Resolution is unsupported by substantial evidence.

Even without considering the Carpenter Affidavit, the 2nd Wong

Affidavit, or the negative SEQRA determination, there is no genuine

issue of material fact that Defendants’ denial of the Application

was not based on substantial evidence, and therefore Defendants did

not establish their entitlement to summary judgment.

A. Substantial Evidence Standard

Substantial evidence “has been construed to mean less than a

preponderance, but more than a scintilla.” Cellular Tel. Co. v.

Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). As the

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Supreme Court has explained, substantial evidence “means such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Universal Camera v. NLRB, 340 U.S. 474, 477

(1951) (internal quotations omitted). While deferential, the

substantial evidence standard nevertheless demands that “the record

. . . be viewed in its entirety, including evidence opposed to the

Town’s view.” Town of Oyster Bay, 166 F.3d at 494 (citing Am.

Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981)).

B. The Board’s Finding that Plaintiff Did Not Properly

Investigate Alternative Sites (the Schuver Property and

the Sports Complex) Is Unsupported by Substantial

Evidence

1. The Finding Regarding the Schuver Property Is

Unsupported by Substantial Evidence Even Without

the Carpenter Affidavit

According to Defendants, Plaintiff failed to adequately

investigate other potentially viable sites for constructing a new

tower or placing an antenna. In particular, Defendants fault

Plaintiff for failing to engage in good faith negotiations with

Schuver, the owner of the property identified as Location 19 in

Plaintiff’s Supplemental Site Selection and Justification Report.

In the Resolution, the Board stated

Mr. Schuver also advised the Board that, in his opinion,

Up State was not willing to negotiate in good faith, as

Up State already had a very attractive agreement with the

owner of the proposed site at 1710 Foote Avenue, which

was an objectionable site . . . .

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Resolution at 14 (Dkt #39-3, p. 14 of 15) (emphasis supplied). Mere

opinion, untethered to any record support, does not constitute

substantial evidence. See Hyundai Heavy Indus. Co. v. United

States, 393 F. Supp.3d 1293, 1308 n. 19 (Ct. Int’l Trade 2019)

(“ABB insists that ‘[r]ecord evidence shows that the OAF is a

direct reflection of the negotiation and assignment of costs and

revenues between HICO [America] and the U.S. customer.’ . . . The

‘evidence’ to which ABB cites is Commerce’s Issues and Decision

Memorandum, which, in itself and without record support (as is the

case here), does not constitute substantial evidence.”).

Here, not only is the opinion offered by a party with a

pecuniary interest in the matter, it is premised on speculation.

The Court cannot find that it is “such evidence as a reasonable

mind might accept as adequate to support [the] conclusion” that

Plaintiff did not conduct its investigation of alternative sites or

negotiate with Schuver in good faith. Moreover, Schuver’s

statements at the December 10, 2015 Board meeting imply that it was

he who terminated negotiations with Plaintiff. See December 10,

2015 Meeting Minutes at 3 (Dkt #39-10, p. 3 of 4) (“Mr. Burt

Shuver [sic], land owner that had been in talks with Blue Wireless

regarding the placement of the tower on his property added comments

regarding financial matters with Blue Wireless . . . and that he

hasn’t ‘closed the door’ to Blue Wireless.”).

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The Board further asserted, in regard to the Schuver property,

that

Up State did not present to the Board any evidence from

which the Board conclude that Up State was making a

reasonable effort to locate on the less intrusive Schuver

property. Up State cannot simply prefer its business

interests over the interests of the residents of the Town

of Kiantone. Up State has an obligation to negotiate in

good faith and pay a reasonable amount for the less

intrusive site if one is available.

Resolution at 14 (Dkt #39-3, p. 14 of 15) (emphasis supplied). This

rationale offered by the Board reflects a misunderstanding of the

applicable legal principles and is not based on substantial

evidence.

“A plaintiff need not evaluate every potential alternative in

order to demonstrate that its proposal meets the least restrictive

means test.” New York SMSA Ltd. P’ship v. Town of Oyster Bay,

No. 11-CV-3077 MKB, 2013 WL 4495183, at *18 (E.D.N.Y. Aug. 16,

2013) (citing New York SMSA Ltd. P’ship v. Vill. of Floral Park Bd.

of Trustees, 812 F. Supp.2d 143, 165 (E.D.N.Y. 2011) (rejecting

board’s argument that “substantial evidence supported its denial

because [wireless provider]’s failure to present affirmative

evidence about why the Verizon Building was not a viable

alternative demonstrated that it did not diligently examine

alternative sites” since “there is no requirement in the Code that

[wireless provider] evaluate every potential location where the

[wireless tower] hypothetically could be constructed, and submit

evidence showing why each site is not a viable alternative”)

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(emphasis in original). “The law only requires a plaintiff to

engage in ‘a good faith effort to evaluate alternative sites.’”

Town of Oyster Bay, 2013 WL 4495183, at *18 (quoting Vill. of

Floral Park Bd. of Trs., 812 F. Supp.2d at 165 (“Although the Board

questioned why [wireless provider] did not spend a ‘million

dollars’ trying to change the minds of these property owners rather

than seeking a special use permit for the Property, the Board did

not present any evidence that either of these sites were feasible

substitutes”); citations omitted).

In contrast to the Board’s finding regarding Plaintiff’s

evaluation of the Schuver property—which relies solely on the

unsupported opinion of Schuver himself—the record contains ample

evidence demonstrating that Plaintiff engaged in a good faith

effort to investigate alternative sites. As the Court explained in

its March 11, 2019 Decision and Order,

In its initial Site Selection and Justification Report,

submitted along with its Application, Plaintiff evaluated

nine commercial properties along Foote Avenue. To

determine each site’s viability, Plaintiff looked at

whether the site could provide reliable service to remedy

Blue Wireless’ coverage gap, the land uses surrounding

the site, the presence of natural features that could act

as a buffer, the capability of constructing a tower on

the site, and Plaintiff’s ability to obtain a legal

interest in the property. Plaintiff found that, within

the search ring, there were no towers or tall structures

on which Blue Wireless might collocate its antennas. See

Wong Aff. ¶ 20. The Town was informed of Plaintiff’s

conclusion on this point at the public hearings

addressing the Application. Id.

The Board then asked Plaintiff to evaluate additional

products within a three-mile search ring around the

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proposed site on Foote Avenue. Defendants requested that

Plaintiff evaluate additional properties that were not

properly zoned—and which would have accordingly required

another variance under the TKTFL. Plaintiff assessed ten

additional properties, predominantly in the B-1 and B-2

(commercial) zoning districts. Plaintiff also assessed

three sites that were not commercially zoned. On December

10, 2015, Plaintiff submitted its Supplemental Site

Selection Justification Report (“SSSJR”), Am. Compl., Ex.

19 (Dkt #24-2) & Ex. 20 (Dkt #24-3), setting forth all

the sites it had evaluated to date.

In the SSSJR Plaintiff explained in detail its rationale

for declining to assess properties that were not properly

zoned or had existing residential uses and would in turn

require another variance. Plaintiff cited TKTFL § 29.9(A)

which states that the Board “shall allow siting of new

towers only in commercial areas.” In addition, Plaintiff

cited TKTFL § 29.6(B), which provides that “[n]o new

towers shall be allowed within a residential zoning

district, or within 250 feet of the boundary of a

residential zoning district.” Plaintiff also noted that

the TKTFL contained a 500-foot tower setback requirement

from any public roadway. For each of the possible

locations, Plaintiff concluded that, based on a 180-foot

radius representing the full tower height setback, and a

280-foot radius representing the additional 100 feet for

the fall-down zone as required by TKTFL § 29.8(F), none

of the 19 lots in the search area would accommodate these

distances. See SSSJR at 1 (Am. Compl., Ex. 20 (Dkt #24-

3)).

Defendants, however, focused on Plaintiff’s purported

“fail[ure] to follow the Town Planning Board

recommendations” “to explore options that would be less

intrusive, even if the site was not located in a Business

Zoning District.” Resolution at 14. The Court questions

the reasonableness of the Board’s demand that Plaintiff

explore locations where the placement of wireless

facilities is expressly forbidden by the Town’s zoning

law, given that Plaintiff’s pending application for a

site within the proper zoning district already required

six variances, see Resolution at 4-5, which the Board

found too intrusive of the Town’s zoning. Moreover,

Plaintiff did explore three sites that were in non-

commercially zoned districts but found them unsuitable,

as set forth in the SSSJR. The Resolution did not

substantively contest the reasons identified by Plaintiff

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in the SSSJR but instead offered non-substantive, minor

criticisms, such as that the maps and drawings were not

in the same scale. These criticisms were effectively

rebutted by Plaintiff in its opposition to the pending

summary judgment motion. See Pl.’s Mem. at 19-22

(citations to record omitted). After reviewing the record

as a whole, the Court is compelled to conclude that the

Board’s rejection of Plaintiff’s application for failing

to investigate alternative sites or follow the Board’s

recommendations was not supported by substantial

evidence.

March 11, 2019 Decision and Order at 17-19 (Dkt #46) (emphases in

original).

In addition, Plaintiff indicated in the SSSJR that, for the

alternative sites evaluated, either suitable lease terms could not

be reached with the property owners, or the owners did not respond

to the proposed leases sent to them, or the owners decided not to

pursue entering into a lease. With particular regard to Location

19, the Schuver property, Plaintiff noted that “[a]fter extended

discussions with the property owner, acceptable lease terms could

not be reached.” SSSJR at 44 (Dkt #24-2, p. 45 of 48).

The Court has no difficulty concluding that the Board’s

finding with regard to Plaintiff’s evaluation of the Schuver

property was not supported by substantial evidence. See New York

SMSA L.P. v. Town of Oyster Bay Zoning Bd. of Appeals, No.

08-CV-4833 JS AKT, 2010 WL 3937277, at *6 (E.D.N.Y. Sept. 30, 2010)

(finding that wireless carrier met its burden of investigating

alternatives and presented credible evidence regarding the

infeasibility of the sites where carrier offered “good-faith

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justifications for why all other sites . . . would not substitute

for the Property” including the fact that one alternative site

wanted the ability to terminate the agreement without cause);

New York SMSA Ltd. P’ship v. Inc. Vill. of Mineola,

No. 01-CV-8211(JS)(WDW), 2003 WL 25787525, at *9 (E.D.N.Y. Mar. 26,

2003) (finding the expert’s testimony that an alternative site was

“disinterest[ed]” was sufficient to find that it was not a feasible

alternative, especially when “[t]he [b]oard did not request any

additional evidence from either [the expert] or Verizon regarding

the availability of the site throughout the two public hearings”).

The Board’s conclusion to the contrary was not based on substantial

evidence, even without consideration of the Carpenter Affidavit.

2. The Finding Regarding Collocation on the Light

Poles at the Jamestown School District Sports

Complex Is Unsupported by Substantial Evidence Even

Without the 2nd Wong Affidavit

The Board also denied Plaintiff’s Application based on

Plaintiff’s purported failure to investigate collocating its

antennas on an existing light pole at the Sports Complex, as

suggested by the Town’s consultant, Richard Comi. Defendants noted

that “Up State’s own RF Engineer, Mr. Wong, . . . indicated at the

December 10, 2015 hearing that the gap in coverage could be solved

by placing an antenna on a light pole if of proper height and if

the pole could hold the equipment.” Resolution at 14 (Dkt #39-3,

p. 14 of 15). The Board stated that the “light poles on the

football field are located at an elevation of 130' to 150' higher

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than the proposed site” and the “Sports Complex is located

approximately 1/4 of a mile from the proposed site.” Id. From this,

the Board reasoned that the light poles at the Sports Complex were

viable sites and proceeded to fault Plaintiff for

fail[ing] to make contact with the school. The Board had

also been informally advised that the school district

would be interested in talking about a lease with Up

State. The Board also advised Up State of the school

district’s willingness to discuss the situation.

Id.

The Board’s assertion that the light poles at the Jamestown

School District Sports Complex were viable alternative sites is not

based on substantial evidence inasmuch as it relies on an

overstatement of comments by Wong, Plaintiff’s radio frequency

(“RF”) engineer, at the December 10, 2015 Board meeting. In

contrast to what the Board assumed to be true in its Resolution,

Wong did not say that it would in fact be feasible to collocate

Blue Wireless’s tower on the light poles at the Jamestown School

District Sports Complex, let alone any particular light poles or

pole-like structures:

Question was also raised about the possibility of

placement on telephone poles. Response from “Eric” [Wong]

that this could work if proper height and if poles can

hold equipment.

December 10, 2015 Board Meeting Minutes at 3 (Dkt #39-10, p. 3 of

4) (emphases supplied). There is no evidence in the record that the

light poles were the proper height and could support the necessary

equipment.

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Moreover, there is no evidence to support the Board’s

assumption that light poles were located in a place that would

provide adequate wireless coverage. In connection with its

Application, Plaintiff submitted documentation regarding the

“search ring” it created to identify the radius in which a

potential tower would have to be located in order to meet the

coverage objectives. Affidavit of Eric Wong (“1st Wong Affidavit”)

(Dkt #1-6) ¶ 6 (citing Ex. 4E (search ring map). Wong explained

that “[s]iting a tower outside of the search ring would result in

a coverage gap between the existing Blue Wireless antennas and

would reduce coverage to the target areas.” Id. Within the search

ring, there were no existing towers or other structures on which to

collocate a tower. See Plaintiff’s Letter of Intent dated July 30,

2015 (Exhibit 4 to Application) (Dkt #1-1), pp. 3, 6, 10. Plaintiff

indicates, and Defendants do not dispute, that the Sports Complex

is outside of the search ring. See Plaintiff’s Memorandum of Law

(Dkt #42) at 21 (citing 1st Wong Affidavit (Dkt #1-6)). In fact, the

Sports Complex property is as far north as the existing tower at

839 Foote Street where Blue Wireless previously had collocated.

Plaintiff’s Memorandum of Law (Dkt #42) at 21 (citing 1st Wong

Affidavit (Dkt #1-6)). However, as the Board was made aware in

connection with Plaintiff’s Application, “the Blue Wireless

antennas were removed [from that tower] because the site did not

fit with the Blue Wireless network design, and the existing tower

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at 839 Foote Avenue resulted in too much overlap with another Blue

Wireless site in the City of Jamestown and did not cover the

targeted areas in the Town of Kiantone.” 1st Wong Affidavit (Dkt #1-

6) ¶ 9.

At most, Plaintiff’s RF engineer acknowledged that some level

of service theoretically could be obtained by collocating on a

light pole if it was structurally capable of supporting the tower

and if had the required height to provide reliable service. “The

conceptual, theoretical and/or hypothetical does not constitute

substantial evidence.” Lehigh Valley Farmers v. Block, 640 F. Supp.

1497, 1512 (E.D. Pa. 1986), aff’d, 829 F.2d 409 (3d Cir. 1987). The

Board’s conclusion that the light poles at the Sports Complex were

viable location, and that Plaintiff failed to properly investigate

them, is not based on substantial evidence, even without

consideration of the 2nd Wong Affidavit.

3. Consideration of the Negative SEQRA Determination

Was Proper

Defendants criticize the Court for considering the Town’s

negative SEQRA Declaration2 in its March 11, 2019 Decision and

Order. Defendants assert that it was not competent evidence to

establish that Plaintiff’s Proposed Site was the least intrusive

means to close a wireless coverage gap in the Town; rather, it only

meant that the Proposed Site will result in no significant adverse

2

The SEQRA Declaration was submitted by Plaintiff as Exhibit A to the

Declaration of Jon Devendorf, Esq. (“Devendorf Decl.”) (Dkt #42-2).

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impacts on the environment so as to excuse Plaintiff from preparing

an environmental impact statement.

Under New York law, “[w]hen weighing the extent of intrusion

of a proposed facility, the municipality may consider, among other

things, the aesthetic impact of a facility.” Site Acquisitions,

Inc. v. Town of New Scotland, 2 A.D.3d 1135, 770 N.Y.S.2d 157, 160

(3d Dep’t 2003). However, a “few generalized expressions of

concern” by residents with respect to aesthetics or visual impact

“cannot serve as substantial evidence on which the [the

municipality] could base the denials.” Town of Oyster Bay, 166 F.3d

at 496. In other words, there must be “more than a scintilla of

evidence before the Board on the negative visual impact of the cell

sites.” Id. at 495 (citation and internal quotation marks omitted).

Defendants’ argument about the irrelevance of the negative

SEQRA review is unfounded, particularly since the Board asserted in

its Resolution that the Proposed Site would be “intrusive” to the

community and “is going to cause numerous zoning problems.” Here,

in the SEQRA review, the Board evaluated and discussed each of the

factors to be considered relative to potential environmental

impacts. These factors included an entire section on “Impact on

Aesthetic Resources,” which considered factors such as whether the

proposed action may be visible from any designated scenic or

aesthetic resource, obstruct or eliminate scenic views, be visible

from publicly accessible vantage points, be seen during travel or

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recreational or tourism based activities, and diminish the public’s

enjoyment and appreciation of a designated aesthetic resource. See

SEQRA Declaration, p. 6 of 10, Devendorf Decl., Ex. A (Dkt #42-2,

p. 25 of 33). The Board determined that “[n]o, or small impact may

occur.” Id. The SEQRA evaluation also considered the “Impact on

Open Space and Recreation” and concluded there would be no impact.

See id., p. 7 of 10. Moreover, the Board also considered the

Proposed Site’s “Consistency with Community Plans” and “Consistency

with Community Character” and found that it was consistent both

with adopted land use plans and community character; the Board

found no impacts on either of these areas. Id., p. 9 of 10

(Dkt #42-2, p. 29 of 33). The negative SEQRA declaration thus

certainly was relevant to rebut Defendants’ conclusory and general

assertions about intrusiveness of the Proposed Site and demonstrate

that they were not supported by substantial evidence.

CONCLUSION

For the foregoing reasons, Defendants’ First Motion for

Reconsideration (Dkt #49) is denied, and the Court adheres to its

March 11, 2019 Decision and Order (Dkt #46) denying Defendants’

Second Motion for Summary Judgment.

SO ORDERED.

S/Michael A. Telesca

HON. MICHAEL A. TELESCA

United States District Judge

Dated: November 26, 2019

Rochester, New York.

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