Up State Tower Co., LLC v. Village of Lakewood New York

UNITED STATE DISTRICT COURT

FOR THE

WESTERN DISTRICT OF NEW YORK

UP STATE TOWER CO, LLC, and )

BUFFALO-LAKE ERIE WIRELESS )

SYSTEMS, CO., LLC, )

)

Plaintiffs, )

)

v. ) Case No. 1:17-cv-47

)

THE VILLAGE OF LAKEWOOD, NEW )

YORK; THE VILLAGE BOARD OF )

THE VILLAGE OF LAKEWOOD, NEW )

YORK; and THE ZONING BOARD )

OF APPEALS OF THE VILLAGE OF )

LAKEWOOD, NEW YORK, )

)

Defendants. )

OPINION AND ORDER

Plaintiffs Up State Tower Co., LLC and Buffalo-Lake Erie

Wireless Systems, Co., LLC, doing business as Blue Wireless

(“Plaintiffs”), seek to place a wireless telecommunications tower

within the Village of Lakewood, New York. Plaintiffs filed the

instant lawsuit claiming that the Village Board of Trustees

(“Village Board” or “Board”) and the Village Zoning Board of

Appeals (“ZBA”) had unreasonably delayed ruling on their

application for a use variance. Shortly after Plaintiffs filed

suit, the ZBA issued an 11-page written decision (the “Reasoned

Elaboration”) denying the application. Plaintiffs have since

filed an Amended Complaint, challenging not only the delay but

also the application denial. For relief, Plaintiffs seek a

permanent injunction requiring the Village to grant them the

necessary municipal permits.

Now before the Court are the parties’ cross-motions for

summary judgment. For the reasons set forth below, Plaintiffs’

motion for summary judgment and corresponding request for

injunctive relief is granted, and Defendants’ motion for summary

judgment is denied. Other pending motions are addressed below.

Factual and Procedural Background1

On August 27, 2015, Plaintiffs submitted an application

seeking approval for a 100-foot telecommunications tower to be

built in a central location in the Village. The application

followed Plaintiffs’ identification of significant gaps in Blue

Wireless’s cellular phone coverage. ROD 33-41. Defendants

dispute whether there are, in fact, significant gaps in service

for Blue Wireless customers within the Village.

In the fall of 2015, Plaintiffs’ counsel appeared before the

ZBA to discuss the application. ROD 57-70. In response to

public criticism about the tower’s proposed location, Plaintiffs

subsequently asked that consideration of the application be

“tabled” while they explored alternative sites. ROD 71.

Plaintiffs also asked the Village to provide a list of properties

that it would like included in the site evaluation process. Id.

The Village Clerk responded with a letter explaining that the

1 The factual record in this case derives primarily from the

application proceedings before the Village Board and the ZBA, and

from the parties’ respective statements of material facts. The

administrative proceedings are memorialized in the “Record of

Decision” or “ROD.”

2

Mayor and the Village Board were not sufficiently familiar with

wireless communications and coverage issues to provide such a

list. ROD 75.

Plaintiffs reviewed at least nine alternative sites,

including two possible co-location sites. ROD 757-758, 802-804.

According to Plaintiffs’ representations, some potential site

owners were not interested in leasing access to their properties.

A vacant parcel on Fairmount Avenue was investigated, but the

Plaintiffs and the owner were reportedly unable to agree to lease

terms. A school bus garage site was considered, but Plaintiffs

received no response to their proposal. Plaintiffs also

approached the YMCA about a property on Fairmount Avenue but

received no response to their proposed lease. ROD 802-804.

Plaintiffs ultimately identified the Lakewood Fire Company

property on Glenwood Avenue (“Glenwood Avenue site”) as the

preferred site. That location had been suggested by the

Village’s former Mayor. ROD 448, 2090. The Glenwood Avenue site

was selected in part because of its distances from residences;

its close proximity to railroad tracks and a commercial district;

the presence of trees to create a natural buffer; the financial

benefit to the Volunteer Fire Company; and the ability to lease

the property. ROD 449-450, 759-760. Because the new proposed

location was farther away from the target coverage zone and at a

lower elevation than the site originally contemplated, Plaintiffs

3

anticipated a tower height of 180 feet. ROD 416.

At a Village Board meeting on February 22, 2016, when asked

by Plaintiffs’ counsel to offer their initial thoughts, three of

the five Board members responded positively to the Glenwood

Avenue site. ROD 2259-2260. Specifically, one Board member

noted that “the cell tower is well hidden.” ROD at 2260.

Another believed that “[w]ith the proposed cell tower location

back next to the railroad tracks, it should have very little

impact on nearby properties.” Id. A third Board member opined

that “a cell tower at that site would be the least obtrusive

location in Lakewood for [a tower].” Id. On April 12, 2016,

Plaintiffs formally submitted an amended application to construct

a 180-foot tower at the Glenwood Avenue site.

In December 2015, after Plaintiffs filed their initial

application, the Village enacted Local Law 2-2015 requiring

wireless telecommunications tower applicants to provide an $8,500

escrow deposit with any application. The purpose of the deposit

was to offset the cost of hiring a technical consultant to assist

the Village with its review of the application. ROD 96-97.

Plaintiffs did not initially provide the $8,500 escrow amount

with their amended application, as they believed the demand for a

deposit was unlawful. ROD 220-222. In a letter dated May 3,

2016, the Village Mayor informed Plaintiffs’ counsel that the

Village was unable to accept the amended application without the

4

deposit. ROD 255. The letter did not indicate whether any

substantive information was missing. Approximately one month

later, Plaintiffs’ counsel submitted an escrow check under

protest in the amount of $8,500. ROD 285.

In June 2016, the Village adopted Local Law 4-2016, which

established a new permit application and review process. ROD

223-242. In a letter dated July 11, 2016, the Village’s hired

consultant, Center for Municipal Solutions (“CMS”), notified

Plaintiffs’ counsel that the pending application was incomplete

and that additional information was required in order to comply

with Local Law 4-2016. Among the new requirements was a $5,000

application fee. ROD 301-303.

On July 26, 2016, Plaintiffs’ counsel objected in writing to

the application fee, arguing in part that Plaintiffs’ application

was not subject to a local law imposed after the application was

submitted. ROD 411-412. That same day, the Village returned the

application fees that were submitted with Plaintiffs’ initial

application and informed Plaintiffs’ counsel that the required

fee was $5,000. ROD 306. On August 22, 2016, Plaintiffs’

counsel resubmitted those application fees and objected to the

Village’s enforcement of Local Law 4-2016. ROD 307-309.

On September 7, 2016, the Village Board established itself

as the lead agency under the State Environmental Quality Review

Act (“SEQRA”), which pertains to the coordinated environmental

5

review of Plaintiffs’ application. The Village Board also

authorized itself to determine the completeness of the

application. ROD 413.

On October 4, 2016, the Village Board held a joint workshop

concerning Plaintiffs’ application. The workshop did not allow

for public comment. Richard Comi, the CMS consultant hired by

the Village, discussed with Board members the items and issues he

felt they needed to consider in making a determination. Mr. Comi

also advised that Local Law 4-2016 applied to the amended

application. ECF No. 41-1 at 10.2

Plaintiffs submit that under federal “shot clock” law, the

Village had until October 17, 2016 to make a decision on the

application. Defendants dispute the deadline calculation. On

October 24, 2016, Plaintiffs’ counsel and the Village attorney

agreed by email to a 60-day extension of the “shot clock” to

allow the Village extra time. Notwithstanding this agreement,

the Village did not agree to Plaintiffs’ interpretation of when

the “shot clock” had commenced. ECF No. 35-8. The agreed-upon

deadline, acknowledging the “shot clock” dispute, was December

16, 2016.

2 On December 9, 2016, pursuant to a written settlement

agreement arising out of state court litigation between the

parties, the Village agreed to process Plaintiffs’ pending

application under the Village Code existing at the time of its

submission. ROD 798-799.

6

The ZBA held a public hearing on Plaintiffs’ application on

October 20, 2016. Plaintiffs’ counsel appeared to discuss the

application, and delivered a letter discussing various issues

raised at the October 4, 2016 workshop. ROD 415-420. The letter

included supplemental information, including a Blue Wireless

Radio Frequency (“RF”) analysis and a Federal Communications

Commission (“FCC”) compliance report. ROD 415-434.

During the public hearing, Plaintiffs’ counsel discussed the

alleged coverage gap and the corresponding need for a new tower.

Specifically, counsel discussed the RF propagation maps depicting

coverage from the proposed tower at heights of 180 feet and 150

feet, as well as coverage maps from two alternate locations.

Counsel explained that some of the proposed coverage would spill

over into other municipalities, since it is not possible to build

a network that confines itself to municipal boundaries. ROD 470.

Counsel also argued that the 180-foot tower was needed to

“address the desired coverage objective.” ROD 484. The ZBA

requested additional information, and asked Plaintiffs to

consider flying a balloon to simulate the tower’s location and

height. Plaintiffs’ representative explained that a balloon

float could be performed, and that photographs would be taken

from certain vantage points. ROD 527.

On October 26, 2016, Plaintiffs conducted a balloon float

and prepared a photo simulation package that included photographs

7

from 48 different locations. ROD 578-679. Plaintiffs also

prepared supplemental RF propagation materials, including

propagation maps from the Glenwood Avenue site at 10 foot

intervals from a height of 180 feet down to a height of 150 feet.

ROD 567-577. The supplemental RF propagation maps indicated that

as the tower height was lowered, the population and geographic

coverages decreased. ROD 575.

On November 9, 2016, the ZBA sent Plaintiffs a letter

requesting more information. Apparently unaware that the balloon

float had already taken place, the ZBA asked for advance notice

of the float so that residents and others could assess the visual

impact themselves. ROD 562-564. On November 10, 2016,

Plaintiffs’ counsel responded to the ZBA’s letter and attached

the completed photo simulations and supplemental RF

documentation. ROD 565-684.

On November 22, 2016, the ZBA reconvened the public hearing.

Plaintiffs’ counsel again appeared and reviewed the RF

propagation maps. Those maps, he argued, showed a “dramatic”

decrease in coverage as the tower height dropped from 180 feet to

150 feet. ROD 710. Counsel also explained that Plaintiffs did

not analyze below 150 feet because “it’s not worth it from a

coverage standpoint. The difference between one-eighty and one-

seventy and even down to one-fifty is so dramatic, that it

doesn’t make sense to do any plots beyond that because it’s an

8

exercise of futility, for lack of a better term.” Id.

In the course of the hearing, the ZBA again asked for

additional information from the Plaintiffs. Among the

information sought was consideration of multiple tower locations,

as multiple locations would allow for shorter towers. The ZBA

also requested propagation modeling for a Village-owned site on

Hunt Road in the Town of Busti. ROD 785. On December 6, 2016,

the ZBA sent a letter to Plaintiffs reiterating the request for

information about the Hunt Road site and seeking other

clarifications. ROD 794-795.

Plaintiffs’ counsel responded in a letter dated December 30,

2016. ROD 800-807. The letter specifically addressed the

question of multiple tower locations, noting first that there

were no co-location opportunities. ROD 801 (“There are no towers

or other tall structures between existing [towers] and the

coverage objective area in Lakewood that could be used by Blue

Wireless to address the coverage gap.”). Multiple towers would

therefore require construction of multiple sites, which according

to Plaintiffs would double the project cost and impose “an undue

economic burden.” ROD 805. Counsel also argued that the

proposed, single-tower facility would have a minimal impact on

the community. ROD 805-806. With respect to the Town of Busti

site, counsel explained that “[a]s stated at prior ZBA meetings,

that site is located too far away from the Village center to

9

provide reliable coverage to the coverage objective area.” ROD

804. Finally, the letter asserted that the 60-day extension of

the shot clock had expired. ROD 806-807.

On January 17, 2017, Plaintiffs filed the instant lawsuit

claiming that the federal time period for consideration of the

application had expired, and that the application should

therefore be granted. On January 23, 2017, the Village Board

voted to authorize the ZBA to act as lead agency for the SEQRA

review. Plaintiffs submit that this authorization was enacted

unlawfully as it lacked their consent. Defendants contend that

no consent was required.

The ZBA held a public hearing on February 9, 2017.

Witnesses at the hearing included the former Village Mayor, a

local engineer, and Mr. Comi from CMS. The ZBA also presented a

letter from Mr. Comi, dated that same day, in which he opined

that Blue Wireless’s coverage objective could be met by locating

the proposed facility on the Village-owned property in the Town

of Busti. ROD 2199-2200. For support, Mr. Comi cited an

application submitted in 2003. ROD 2199. Plaintiffs contest the

merit of Mr. Comi’s conclusion, arguing that his analysis was

based upon information submitted years before by a different

applicant, and did not take into account recent changes in

telecommunications technology.

The ZBA adjourned the hearing after concluding SEQRA and

10

variance deliberations, and reconvened at a meeting on February

23, 2017. The ZBA then issued a negative declaration on the use

variance pursuant to SEQRA, and denied the application based upon

the 11-page Reasoned Elaboration. Briefly stated, the Reasoned

Elaboration concluded that Plaintiffs had failed to prove a

coverage gap, had failed to establish that a 180-foot tower was

necessary to achieve their coverage goals, and that the chosen

site was less feasible and more intrusive than at least one

alternative site. ROD 2243-2253. The SEQRA determination stated

that because the variance was being denied there would be no

adverse environmental impact, but if the variance had been

granted the ZBA would have found “potential significant adverse

impacts on the character of the host community and the enjoyment

of the community’s amenities.” ROD 2242.

In finding no coverage gap, the ZBA relied in part on

statements from Dr. Jonathan Blasius, husband of the ZBA deputy

chairperson. Dr. Blasius, who is not an engineer, stated during

a ZBA meeting on October 20, 2016 that he purchased a Blue

Wireless phone, drove throughout the Village, and did not

experience any dropped calls. ROD 516. According to the

Reasoned Elaboration, Plaintiffs informed the ZBA that roaming

agreements allow Blue Wireless to provide service in the Village

without dropped calls. ROD 2248. Plaintiffs also now argue that

Blue Wireless’s FCC license allows, and the Telecommunications

11

Act of 1996 (“TCA”) encourages, construction of its own network

to address coverage gaps so that it need not rely on roaming

agreements.

With respect to the height of the proposed tower, the ZBA

found:

Based upon propagation maps generated by the

consultant, the [ZBA] determined that if a single tower

solution was required, which they did not find

supported the Applicant’s submission, then alleged gaps

in coverage would have been substantially filled by a

Tower of less than the 180 feet requested. [ZBA]

members found the propagation maps would only support a

need at the lowest height modeled at 150 feet. The

Village requested the applicant to generate propagation

maps at 10 foot intervals from 180 to 100 feet.

However, the applicant did not adhere to the request,

and only produced propagation maps down to the 150 foot

height. The Applicant also never conducted drive

testing to corroborate their modeling . . . . [I]t

appears the bulk of the projected identified gap areas

are beyond the boundaries of the Village . . . . With

the limited modeling provided, and the refusal to

consider multiple tower/transmitter location[s], the

minimum height below 150 feet required to close the

modeled coverage gap in the Village cannot be

determined.

ROD 2250-2251. Plaintiffs contest Defendants’ interpretation of

the RF data. The data submitted by Plaintiffs to the ZBA speaks

for itself, and shows decreases in both population and geographic

coverage below 180 feet. ROD 429-430, 567-577. Plaintiffs also

contend that drive test data was not mandated by the applicable

Village ordinance. Defendants submit that drive test data was

required in order to assess the statement of necessity and the

reliability of Plaintiffs’ computer modeling.

12

The Reasoned Elaboration further concluded, in part, that

the Hunt Road site in the Town of Busti remained available.

With regard to the Hunt Road Water Tower Site the

applicant’s consultant represented he considered and

rejected the same based upon lack of likely coverage,

however no propagation maps accompanied the assertion.

Subsequent review of records obtained from the Town of

Busti revealed that the Water Tower had previously been

determined to provide coverage throughout the Village

of Lakewood in a similar frequency range with a Tower

at 130 feet. The prior application to build on the

site was approved by the Town, but the Tower was never

built, and the site remains available.

ROD 2250. Plaintiffs have offered evidence outside the record,

in the form of an expert affidavit, stating that the Hunt Road

site is too far away from the Village center to provide reliable

coverage to the target area and would cause network interference

issues as it is too close to Blue Wireless’s nearby facility.

Those are the same conclusions discussed in counsel’s December

30, 2016 letter. ROD 804. Defendants object to the expert’s

affidavit as beyond the administrative record.

It is undisputed that there are no existing towers or tall

structures within the Village that could be used for co-location

by Blue Wireless to achieve its coverage objective. ECF No. 41-1

at 27, ¶ 108. It is also undisputed that Plaintiffs agreed to

build a “monopole,” as opposed to a lattice tower design, and

that the Village could choose the color of the tower. ECF No.

41-1 at 38, ¶ 133. At the hearing before the ZBA, the Chief of

the Lakewood Fire Department commented that his fire company’s

13

property was located in one of the most obscure places in the

Village, in woods that are off limits to the public. ROD 2063.

His comments echoed the initial sentiments of three Village Board

members.

Nonetheless, the Reasoned Elaboration stated that the

Lakewood Fire Department is “within the view-shed of multiple

passive and active outdoor recreational areas.” The Reasoned

Elaboration concluded that

The proposed Project [] is more than three times taller

than the trees in the Village, and six times the height

of that allowed for any structure in a residential

zone. . . . The area in question appears to be in

close proximity to Federal and New York State wetlands.

. . . It is also adjacent to land approved for the

development of a linear park under the Village’s 2017

adopted Comprehensive Plan. It is also within 500 feet

of the Crescent Creek water quality improvement project

being developed by the Village with funding from New

York State. The Crescent Creek restoration project

provides a nature trail along a wetlands reconstruction

project to improve water quality along Crescent Creek

with discharges to Chautauqua Lake.

ROD 2247. The Reasoned Elaboration further opined:

The Village’s character as a well preserved quaint

concentration of low elevation pre-WWII structures is

one of the characteristics that makes it a seasonal

destination. The Village has and is developing

interconnected parks, bikeways, and greenways to make

the Village a seasonal destination. The development of

the single pole 180'[,] six times the height of a

permissible structure in the residential zone, and

three times the height of the tree tops is inconsistent

with the enjoyment of nature in the Lakefront community

which makes the Village unique, and attractive to the

summer residents which support the local economy.

ROD 2251.

14

Plaintiffs argue that the only evidence concerning

aesthetics consisted of their own photo simulations depicting the

appearance of the tower from 48 different locations. Plaintiffs

also contend that there was no evidence to show that the proposed

tower would have an adverse impact on tourism in the Village.

Discussion

I. Telecommunications Act and Standard of Review

The TCA provides that no State or local law may prohibit or

have the effect of prohibiting “the provision of personal

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

that fundamental framework, federal law does allow for

“substantial local control over siting of [wireless

telecommunication] towers.” Omnipoint Commcn’s, Inc. v. City of

White Plains, 430 F.3d 529, 531 (2d Cir. 2005) (quoting Town of

Amherst, N.H. v. Omnipoint Commc'ns Enters., Inc., 173 F.3d 9, 13

(1st Cir. 1999)). “Although the TCA preserves local zoning

authority in all other respects over the siting of wireless

facilities, [47 U.S.C.] § 332(c)(7)(A), ‘the method by which

siting decisions are made is now subject to judicial oversight.’”

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

(quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490,

492 (2d Cir. 1999)).

The TCA requires that any local zoning authority’s denial of

an application to construct a wireless facility be “in writing

15

and supported by substantial evidence” in the record. 47 U.S.C.

§ 332(c)(7)(B)(iii). The decision must articulate its reasons

for denying an application “so that no one has to parse a record

and guess which of the things [the local government] mentioned

therein was ultimately found persuasive.” Omnipoint Commc’ns,

Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 554 (S.D.N.Y.

2009).

“Whether an administrative agency determination is shored up

by substantial evidence is a question of law to be decided by the

courts.” Willoth, 176 F.3d at 645 (quoting 300 Gramatan Ave.

Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181

(1978)). To determine whether substantial evidence supports a

decision, a court “must employ ‘the traditional standard used for

judicial review of agency actions.’” Town of Oyster Bay, 166

F.3d at 494 (quoting H.R. Conf. No. 104–458, at 208 (1996),

reprinted in 1996 U.S.C.C.A.N. 124, 223). Substantial evidence

requires “less than a preponderance, but more than a scintilla of

evidence [and] ‘means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’” Id. (quoting

Universal Camera v. NLRB, 340 U.S. 474, 477 (1951) (internal

quotations omitted in original)). When determining whether there

is “substantial evidence” to support a denial, courts “must view

the record in its entirety, including evidence opposed to the

[municipality’s] view, and ‘may neither engage in [its] own

16

fact-finding nor supplant the [municipality’s] reasonable

determinations.’” T-Mobile Northeast LLC v. Town of Islip, 893

F. Supp. 2d 338, 354 (E.D.N.Y. 2012) (quoting Town of Oyster Bay,

166 F.3d at 494).

Although “[t]he TCA clearly establishes procedural

requirements that local boards must comply with in evaluating

cell site applications . . . the TCA does not ‘affect or encroach

upon the substantive standards to be applied under established

principles of state and local law.’” Town of Oyster Bay, 166

F.3d at 494 (quoting Cellular Tel. Co. v. Zoning Bd. of

Adjustment, 24 F. Supp. 2d 359, 366 (D.N.J. 1998)). The

applicable local law in this case is the Village Code, which sets

forth the requirements for obtaining a variance. Additionally,

New York State law provides that wireless service providers “are

afforded the status of public utilities for the purposes of

zoning applications[.]” Town of Islip, 893 F. Supp. 2d at 355.

Accordingly, local boards must evaluate an application for

telecommunications facilities under the “‘public necessity’”

standard and evaluate it “on the basis of whether the public

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

of the broader public would be served by [approving the

application].” Sprint Spectrum L.P. v. Bd. of Zoning Appeals of

Town of Brookhaven, 244 F. Supp. 2d 108, 114 (E.D.N.Y. 2003)

(citing Town of Oyster Bay, 166 F.3d at 494).

17

Courts have interpreted the “public necessity” standard to

require that wireless service providers establish “(1) that there

are gaps in service, (2) that the location of the proposed

facility will remedy those gaps and (3) that the facility

presents a minimal intrusion on the community[.]” New Cingular

Wireless PCS, LLC v. Town of Fenton, 843 F. Supp. 2d 236, 245

(N.D.N.Y. 2012) (citations and quotation marks omitted). “As a

general rule, if the public utility makes the required showing,

which necessarily means the record is devoid of substantial

evidence to support a denial, the [application] must issue.”

Town of Islip, 893 F. Supp. 2d at 355 (citing Town of LaGrange,

658 F. Supp. 2d at 555). However, “[i]f the Court finds that

even one reason given for the denial is supported by substantial

evidence, the decision of the local zoning body cannot be

disturbed.” Id. (quotation marks and citation omitted).

II. Summary Judgment Motions

Both parties have moved for summary judgment. As discussed

above, the facts of this case are based on the administrative

record. Plaintiffs’ motion argues that the Defendants’ denial

was untimely and is not supported by substantial evidence.

Defendants have opposed Plaintiffs’ summary judgment motion, and

have submitted their own cross-motion in which they focus

primarily on the timeliness question.

A. Timeliness

18

Plaintiffs first argue that the Court should grant their

permits because Defendants took too long to produce a decision.

Plaintiffs base their argument on “shot clock” deadlines

established by the Federal Communications Commission (“FCC”).

Section 332(c)(7)(B)(ii) of the TCA provides that a local zoning

authority must act on an application “within a reasonable period

of time after the request is duly filed with such government or

instrumentality, taking into account the nature and scope of such

request.” 47 U.S.C. § 332(c)(7)(B)(ii). The FCC has established

a presumption that a “reasonable period of time” means “90 days

to process personal wireless service facility siting applications

requesting collocations, and . . . 150 days to process all other

applications.” See In the Matter of Petition for Declaratory

Ruling to Clarify Provisions of Section 332(c)(7)(b), 24 F.C.C.

Rcd. 13994, 14005 (2009) (“Shot Clock Order”). The presumption

is rebuttable, and can be extended with the mutual consent of the

parties. Id. at 14005, 14013. The FCC also determined that when

a local authority requests additional information, the response

time may be excluded from the 90-day or 150–day time period, but

“only if that State or local government notifies the applicant

within the first 30 days that its application is incomplete.”

Id. at 14015.

Plaintiffs argue that there were a number of violations of

the FCC shot clock in this case. First, they submit that their

19

application should have been deemed filed when it was first

submitted in April 2016, and that there was no notice within 30

days, aside from a demand for $8,500 in escrow money, that the

application was incomplete. While Plaintiffs acknowledge the

agreement to extend the shot clock to December 16, 2016, they

object to Defendants’ failure to provide a decision until

February 23, 2017. Defendants counter that any shot clock period

should not have commenced until September 7, 2016, when the Board

decided to move ahead with the application despite uncertainty

about whether it had been “duly” filed, and that the agreed-upon

60-day extension, when added to the applicable “shot clock”

period, carried the deadline into April 2017. Defendants also

allege that Plaintiffs failed to provide certain requested

information, and that any resulting delays were reasonable.

The ZBA issued a written decision shortly after Plaintiffs

brought this action for injunctive relief. The FCC has stated

that a “local authority’s exceeding a reasonable time for action

would not, in and of itself, entitle the siting applicant to an

injunction granting the application.” Shot Clock Order, 24

F.C.C. Rcd. at 14005 n.99. Instead, numerous federal district

courts have determined that the most reasonable relief is to

require a written decision. See Crown Castle NG E. Inc. v. Town

of Greenburgh, 2013 WL 3357169, at *17 (S.D.N.Y. July 3, 2013)

(“the only reasonable [equitable] relief for such a failure

20

[would be] to require a written decision, which [the Town] ha[s]

already provided”), aff’d, 552 F. App’x 47 (2d Cir. 2014); see

also Omnipoint Commc’ns, Inc. v. Vill. of Tarrytown Planning Bd.,

302 F. Supp. 2d 205, 214 n.7 (S.D.N.Y. 2004) (claim for

injunctive relief mooted by denial of application); New York SMSA

Ltd. P’ship v. Town of Clarkstown, 99 F. Supp. 2d 381, 394

(S.D.N.Y. 2000) (claim of delay mooted because “[p]laintiffs

[could] no longer make the claim that the delay had the effect of

denial of wireless services”). Because in this case the ZBA

issued a decision, which in turn gave rise to the Amended

Complaint, Plaintiffs’ request for injunctive relief on the basis

of an untimely decision is denied as moot.

B. Application Denial

Plaintiffs next argue that the ZBA’s denial of their permit

application was improper. As set forth above, in order to obtain

zoning approval a wireless services provider must show (1) gaps

in service, (2) that the proposed facility will remedy those

gaps, and (3) that the facility presents a minimal intrusion on

the community. Town of Fenton, 843 F. Supp. 2d at 245.

1. Significant Gap

The gap requirement 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.

21

“[I]f an applicant’s proposal is not the least intrusive means of

closing a significant gap in coverage, a ‘local government may

reject [the] application . . . without thereby prohibiting

personal wireless services. . . .’” T-Mobile Northeast LLC v.

Town of Ramapo, 701 F. Supp. 2d 446, 456-57 (S.D.N.Y. 2009)

(quoting Willoth, 176 F.3d at 643). Willoth noted that a site

may not be the least intrusive means to satisfy the coverage gap

if the record shows there is a “less sensitive site” available,

the plaintiff could “reduce the tower height,” or plaintiff could

use a “preexisting structure” to address the gap. 176 F.3d at

643 (citations omitted). That said, “[w]here the plaintiff’s

existing proposal is the only feasible plan to close the relevant

coverage gap, it seems evident that no less intrusive means is

possible, and the application must be granted.” Town of Ramapo,

701 F. Supp. 2d at 457.

Here, both parties placed evidence into the record relevant

to cell phone coverage. Plaintiffs relied primarily upon RF

data, which showed in-building and in-vehicle coverage gaps in

the Village at tower heights lower than 180 feet. Courts have

accepted RF data as evidence of a significant gap. See, e.g.,

Nextel Partners, Inc. v. Town of Amherst, 251 F. Supp. 2d 1187,

1191, 1196 (W.D.N.Y. 2003).

The Reasoned Elaboration criticized Plaintiffs for failing

to provide evidence of dropped network calls either within the

22

Village or along major and minor arterial roads. Specifically,

the Reasoned Elaboration noted the lack of “drive testing” such

as that performed by Dr. Blasius. ROD 2248. As noted above,

Plaintiffs explained that calls would not be “dropped” because of

the company’s roaming agreements with other providers.

Defendants argue in part that because Blue Wireless

customers are able to obtain coverage through roaming, there is

no need for an additional tower. ECF No. 41 at 6. Plaintiffs

contend that although they have been able to provide roaming

coverage through another carrier, Blue Wireless itself has

significant gaps in coverage. In sum, Defendants submit that

from the customer’s perspective there are no gaps, while

Plaintiffs counter that from the provider’s perspective

significant gaps exist.

Prior to 2009, courts held divergent views as to whether a

gap must be determined from the perspective of a cell phone

customer or from the perspective of the provider. Compare Nextel

W. Corp. v. Unity Twp., 282 F.3d 257, 265–66 (3rd Cir. 2002)

(favoring customer’s perspective) with Second Generation

Properties, LP v. Town of Pelham, 313 F.3d 620, 633-35 (1st Cir.

2002) (favoring provider’s perspective); see also Omnipoint

Commcn’s, 430 F.3d at 535 n.3 (noting that the question of

perspective was “unsettled”). In 2009, the FCC rejected the

user-based approach, and instead determined that State and local

23

authorities cannot prohibit “the provision of services of

individual carriers solely on the basis of the presence of

another carrier in the jurisdiction.” Shot Clock Order, 24

F.C.C. Rcd. at 14017. In doing so, the FCC cited Section

332(c)(7)’s use of the plural in “personal wireless services,”

the policy goal of not “leav[ing] segments of the [local]

population unserved or underserved,” and the TCA’s goal of

“promoting the construction of nationwide wireless networks by

multiple carriers.” See id. The FCC also acknowledged local

authority “where a bona fide local zoning concern, rather than

the mere presence of other carriers, drives a zoning decision.”

Id. The FCC ruling cited with approval the First Circuit’s

decision in Town of Pelham, where the court rejected the argument

that “if any coverage is provided in the gap area by any carrier

(including roaming service through a tower in a different town)

then there can be no effective prohibition.” 313 F.3d at 632

n.13. Courts have held that the FCC’s interpretation of the

statute is entitled to Chevron deference. See Town of

Greenburgh, 2013 WL 3357169, at *19.

The Reasoned Elaboration does not dispute that according to

Plaintiffs’ RF data, there are gaps in Blue Wireless service in

the Village. While other carriers may be providing service for

their customers within the Blue Wireless coverage gaps, and may

also provide roaming for Blue Wireless customers, significant

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gaps exist from the perspective of the provider. The Court

therefore finds that the Reasoned Elaboration’s finding of no

significant gap was not supported by substantial evidence.

2. Feasability and Intrusiveness

a. Siting

With respect to siting, Plaintiffs highlight their numerous

efforts to identify a feasible, unintrusive site. In searching

for a feasible site Plaintiffs reportedly assessed at least nine

alternatives (including two co-location sites). Plaintiffs’

initial application identified a central site that received

negative feedback from the Village. When Plaintiffs asked the

Board to suggest specific sites, the Board declined due to its

lack of knowledge about telecommunications coverage.

Defendants submit that they asked Plaintiffs to provide

proof of their search process and that Plaintiffs failed to

provide any such documentation. Defendants also suggest that

they were misled about alleged communications between Plaintiffs

and the school superintendent with regard to the bus garage site.

Plaintiffs subsequently clarified that an inquiry about leasing

the school bus garage site was emailed to the President of the

District Board of Education, who did not reply. ROD 803.

Defendants are also critical of Plaintiffs’ evaluation of

the various sites. Their briefing asserts in part that over 27%

of the Village is zoned such that a cellular telephone tower

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would not need a variance. The record shows, however, that

Plaintiffs explored sites both within and outside such zoned

areas. The ZBA also asked Plaintiffs to consider a multiple-site

placement. In the letter dated December 30, 2016, Plaintiffs’

counsel responded that there were no co-location opportunities,

and that a multi-site construction would impose “an undue

economic burden.” ROD at 805. Reasons for excluding existing

structures were discussed with the ZBA. ROD 758-759.

The Reasoned Elaboration concluded that instead of the

Glenwood Avenue site, a facility at the Hunt Road site in the

Town of Busti would be more feasible. The Town of Busti site was

formally proposed by Mr. Comi at the final ZBA hearing. The

validity of Mr. Comi’s, and correspondingly the ZBA’s,

conclusions about the Hunt Road site are highly questionable. As

Plaintiffs point out, there is little evidence that the 2003

application relied upon by Mr. Comi and the ZBA was materially

similar to the application at issue here. Furthermore, Mr. Comi

offered no present-day evidence that the Hunt Road site would be

feasible. See New York SMSA Ltd. P’ship v. Town of Oyster Bay,

2013 WL 4495183, at *18 (E.D.N.Y. Aug. 16, 2013)(“The Board is

required to support its decision with substantial evidence that

the alternative sites were feasible.”).

“[T]he Court must ascertain whether there is substantial

evidence to support the Board’s finding that alternative sites

26

were not investigated properly, based on evaluation of the entire

record, including opposing evidence.” New York SMSA Ltd. P’ship

v. Town of Oyster Bay Zoning Bd. of Appeals, 2010 WL 3937277, at

*6 (E.D.N.Y. Sept. 30, 2010); see New York SMSA Ltd. P’ship v.

Inc. Vill. of Mineola, 2003 WL 25787525, at *9 (E.D.N.Y. Mar. 26,

2003) (a court must look at the whole record to determine if

“there is substantial evidence to support the Board’s finding

that alternative sites were not investigated properly”). Here,

Plaintiffs tabled consideration of their initially-proposed site,

sought input from the Village, followed suggestions from the

Mayor, explored multiple sites, and identified a location that

several Board members initially deemed appropriate. While the

Hunt Road site was proposed as an alternative, the present-day

feasibility of that site was not established. Consequently,

substantial evidence does not support the Reasoned Elaboration’s

conclusion that Plaintiffs’ siting efforts were insufficient.

See New York SMSA Ltd. P’ship v. Town of Oyster Bay, 2013 WL

4495183, at *18 (noting that “[t]he law only requires a plaintiff

to engage in a good faith effort to evaluate alternative sites”

and that such requirement was met when the plaintiff submitted

reports that discussed eight alternative locations); cf. Town of

Fenton, 843 F. Supp. 2d at 254.

b. Aesthetics

The Reasoned Elaboration’s most detailed objection is to the

27

proposed tower’s aesthetic impact. With little record evidence

in support, the Reasoned Elaboration states that the Glenwood

Avenue site is “within the view-shed of multiple passive and

active recreational areas.” ROD at 2243. The Reasoned

Elaboration also generally describes the facility as “out of

scale, incongruous, and overwhelming,” as well as “inconsistent

with the enjoyment of nature.” ROD at 2246, 2251.

The Village of Lakewood is a popular summer recreation area,

in large part because of its location on Chautauqua Lake.

Consequently, concerns about aesthetics may be particularly

acute. The Second Circuit has held, however, that “generalized

expressions of concern . . . cannot serve as substantial

evidence” to support denial of a wireless provider’s application.

Town of Oyster Bay, 166 F.3d at 496; see also Town of Ramapo, 701

F. Supp. 2d at 462 (concluding that the Town’s concerns “were

generalized and failed to identify specific aesthetic problems”).

Furthermore, “[s]peculative concerns about the ‘potential

visibility’ of a proposed tower are unlikely to constitute

substantial evidence for denying an application absent some form

of objective support in the form of ‘photographs, site plans,

surveys, and the like.’” T-Mobile Northeast LLC v. Town of

Islip, 893 F. Supp. 2d 338, 358–59 (E.D.N.Y. 2012) (quoting Green

Mountain Realty Corp. v. Leonard, 688 F.3d 40, 54 (1st Cir.

2012)).

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“To deny a siting application on aesthetic grounds, there

must be substantial evidence: (1) that ‘residents will be able

even to see the antennae’ and (2) there will be an actual

‘negative visual impact on the community.’” Id. at 358 (quoting

Town of Oyster Bay, 166 F.3d at 496). “[B]ecause it would be a

rare event to be able to buffer a communications tower so that it

is not visible at all, and few people would argue that

telecommunications towers are aesthetically pleasing, courts tend

to require objective evidence of a negative visual impact that is

grounded in the facts of the case.” Id. at 359 (internal

quotations omitted).

The strongest evidence of aesthetic impact was submitted by

Plaintiffs in the form of photo simulations. Those simulations,

utilizing the balloon float, show the tower’s visibility from 48

different locations around the Village. ROD 580-679. Defendants

contend that the photographs are inadequate because they do not

include waterfront vantage points. Although the photo

simulations were provided at the request of the ZBA, the ZBA did

not ask Plaintiffs to provide simulations from any specific

locations. Indeed, when the question of a balloon float was

raised, Plaintiffs’ representative explained that it would

provide photographs from numerous locations, and there was no

suggestion at the time that particular locations be included.

ROD 527.

29

Defendants’ conclusions with respect to aesthetics rely

primarily on current and expected recreation in the area. The

Reasoned Elaboration refers to the proposed tower site as

“adjacent to” outdoor recreation fields and a potential future

“Linear Corridor Park.” It is undisputed that the recreation

fields are several hundred feet away from the proposed tower

location, on property that currently contains an 80-foot fire

training tower. ECF No. 41-1 at 40, ¶ 136. The Village’s

Comprehensive Plan, which was not adopted until after Plaintiffs

filed their 2016 application, discusses a linear corridor to be

developed in the future near existing railway tracks: “[w]hen

rail service is no longer necessary, the corridor should be

acquired and turned into a linear park with a multiuse trail

surrounded by a thin tree-lined buffer.” ROD Item 71, at 99.3

The Court questions whether such speculative language carries

much weight in the substantial evidence analysis. In any event,

the record shows that the proposed linear park (railroad line) is

adjacent to the Village’s developed commercial district. ECF No.

41-1 at 40, ¶ 136.

The Reasoned Elaboration also makes reference to nearby

wetlands and the Crescent Creek Wetlands Restoration Project.

ROD 2245. Specifically, the Elaboration states that “[t]he area

3 The Village of Lakewood Comprehensive Plan is located at

http://www.lakewoodny.com/complandraft.pdf, and is referenced in

the ROD Table of Contents as Item 71.

30

in question appears to [be] in close proximity to Federal and New

York State wetlands.” ROD 2247. Defendants do not contend that

the tower itself is to be built on wetlands, or that any of the

proposed construction will involve dredging or other activities

on wetlands. On February 23, 2017, counsel for Plaintiffs

offered the ZBA a Wetland Delineation/Determination Report

allegedly establishing that the project site is 450 feet from any

wetlands. ROD 2255. The ZBA noted receipt of the report. Id.

As evidenced by Plaintiffs’ photo simulations, the proposed

tower will be visible from various locations in the Village.

That said, the Reasoned Elaboration makes no reference to other

objective evidence of a negative visual impact. In the Second

Circuit, evidence of aesthetic injury may include “objections

raised by neighbors who know the local terrain and the sightlines

of their own homes.” City of White Plains, 430 F.3d at 534.

“Other evidence can include ‘beautification efforts’ or the

‘actual character of the immediate neighborhood.’” Town of

Islip, 893 F. Supp. 2d at 359 (quoting T–Mobile Central, LLC v.

Unified Gov’t of Wyandotte County, 546 F.3d 1299, 1312 (10th Cir.

2008)). Here, the Reasoned Elaboration makes reference to

efforts to bury power lines in the Village as it approaches the

waterfront, but it is not clear whether those efforts extended to

the Glenwood Avenue area. ROD 2251. Aside from the recreational

concerns discussed above, which are largely generalized, the

31

Reasoned Elaboration cites little evidence, and certainly less

than substantial evidence, to support its finding of aesthetic

harm.

c. Tower Height

Relevant to both feasability and intrusiveness is the matter

of the tower’s height. The Court is sensitive to the fact that a

180-foot monopole will be several times taller than any tree or

building in the Village. Plaintiffs have supported their

argument for a 180-foot tower with RF propagation maps.

Initially, they provided data for towers at 180 feet and 150 feet

to show that a 150-foot tower was inadequate. At the request of

the ZBA, they submitted additional maps showing existing and

proposed coverage from the Glenwood Avenue site at descending 10-

foot intervals between heights of 180 and 150 feet. ROD 567-577.

The Village conceded that those maps “do highlight variances in

coverage areas between 180 feet and 150 feet.” ROD 2251.

Although the Village concluded that “the bulk” of the gap

areas extended beyond the boundaries of the Village, ROD 2251,

the RF propagation maps show the existing gaps within the

Village, and that a 180-foot tower would address the target

geographic and population goals. The RF data also indicates that

coverage decreases significantly with each 10-foot reduction in

tower height. ROD 575, 709-711.

The Reasoned Elaboration concluded that the height of the

32

proposed tower could have been reduced by using a second

transmitter such as the one modeled at the Village’s clock tower.

ROD 2251. This finding contradicts the ZBA’s prior discussion

with Plaintiffs’ counsel, wherein counsel explained that the

clock tower was too low and that its close proximity to the

Glenwood Avenue tower would actually result in interference, thus

providing poor quality service. ROD 758-759. Similarly, the

Reasoned Elaboration criticizes Plaintiffs for failing to model

their tower height at maximum signal strength, ROD 2248, yet the

record again reflects a letter from Plaintiffs’ counsel

confirming that the propagation maps were prepared at maximum

power output. ROD 800. The Court therefore finds that the

Reasoned Elaboration’s conclusion with respect to tower height

was not supported by substantial evidence.

C. Injunctive Relief

The Second Circuit has held that an injunction is the proper

remedy for violations of the TCA. Cellular Telephone Company v.

The Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999); see

Town of Ramapo, 701 F. Supp. 2d at 463 (“[U]nder Willoth, a

violation of the effective prohibition provision requires

injunctive relief: an application proposing the least intrusive

means for closing a significant coverage gap cannot be denied—or,

put differently, it must be granted.”). Because the Court finds

that the Village’s determination was not supported by substantial

33

evidence, it will provide Plaintiffs their requested injunctive

relief and, as set forth below, order the Village to grant the

necessary permits and approvals.

III. Other Pending Motions

Two additional motions are pending before the Court, both of

which relate to the summary judgment filings. First, Plaintiffs

have moved to strike Defendants’ allegedly-untimely submission of

their statement of undisputed materials facts. ECF No. 47.

Defendants did not submit such a statement with their summary

judgment motion, as required by this Court’s Local Rules, and

instead filed it with their reply memorandum.

The facts set forth in the statement of undisputed facts are

fundamentally the same as those stated in the body of Defendants’

motion for summary judgment. Consequently, while Plaintiffs can

argue procedural error, they cannot claim prejudice.

Furthermore, since the Court is denying Defendants’ summary

judgment motion, the propriety of their factual statement is

moot. The motion to strike is therefore denied.

Plaintiffs also ask the Court to strike a statute of

limitations argument set forth in Defendants’ reply memorandum.

That same statute of limitations argument is asserted in

Defendants’ motion for leave to file an Amended Answer. The

substance of the statute of limitations argument is that if the

Court adopts Plaintiffs’ calculation of the “shot clock” and

34

deems the administrative action as commencing in April 2016, the

“shot clock” expired in December 2016 and Plaintiffs failed to

file their federal Complaint within 30 days of that date as

required by statute.

Plaintiffs submit that Defendants have miscalculated, and

that their filing of the Complaint on January 17, 2017 was

timely. In any event, the Court has deemed the “shot clock”

issue moot and has not accepted either party’s arguments as to

the dates of commencement or expiration. Moreover, the TCA

provides that “[a]ny person adversely affected by any final

action or failure to act” shall file an action “within 30 days

after such action or failure to act,” 47 U.S.C. § 332(7)(B)(v).

Here, Plaintiffs filed their Amended Complaint with respect to

Defendants’ “final action,” being the issuance of the Reasoned

Elaboration, within the 30-day limitations period. Accordingly,

Defendants’ motion for leave to file an Amended Answer is denied,

and Plaintiffs’ motion to strike the advancement of new arguments

in a reply brief is denied as moot.

Conclusion

For the reasons set forth above, the Plaintiffs’ motion for

summary judgment is granted and the remaining pending motions are

denied. Defendants shall, within 45 days of the date of this

Order, grant Plaintiffs’ application and issue the special use

permit and/or variance and such other permits or licenses which

35

are necessary to install the wireless telecommunications tower

which is the subject of this action.

DATED at Burlington, in the District of Vermont, this 6th

day of January, 2020.

/s/ William K. Sessions III

William K. Sessions III

District Court Judge

36