LeClaire

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DANIEL LECLAIRE; MARIA LECLAIRE; ALFRED

BROOMHEAD; MARYANN BROOMHEAD; KATIE

CALHOUN; FRED COMO; NANCY COMO; TERRI

COTONE; CAROL CYRUS; DUANE CYRUS; EMILY

FLORES; JORGE FLORES; DAVID GEHRS; MARCI

GENTILE; CARMINE GRIPPO; LORI GRIPPO; DAVID

HALM; JOLIE HALM; FRANCES MAHER; DANE

MELLON; MELINDA MELLON; BOB MESTEMAKER;

CONNIE MESTEMAKER; GLENN NELSON; KARALEE

NELSON; ANN ORLANDO; DAVID ORLANDO;

CHRISSIE ORMSBEE; JEFF ORMSBEE; KIMBERLY

SHELL; and MATTHEW SHELL,

Plaintiffs, 1:25-cv-00255 (AMN/DJS)

v.

VERTICAL BRIDGE DEVELOPMENT, LLC; VERTICAL

BRIDGE II, LLC; THE TOWN OF BALLSTON; ERIC

CONNOLLY, individually; MICHAEL CAROTA,

individually; CHUCK CURTISS, individually; ROB

FENDRICK, individually; KELLY JASINSKI, individually;

and CELLCO PARTNERSHIP d/b/a VERIZON

WIRELESS,

Defendants.

APPEARANCES: OF COUNSEL:

Campanelli & Associates, P.C. ANDREW J. CAMPANELLI, ESQ.

1757 Merrick Avenue

Suite 204

Merric, NY 11566

Attorneys for Plaintiffs

K&L Gates LLP NEIL CONNER SCOTT, ESQ.

210 Sixth Avenue DAVID R. OSIPOVICH, ESQ.

Pittsburgh, PA 15222 JESSICA MORAN, ESQ.

LUCIANA R. LIDDELL, ESQ.

Attorneys for Defendants Vertical Bridge NICHOLAS CHAN, ESQ.

Development, LLC and Vertical Bridge II, LLC

Sokoloff Stern LLP BRIAN S. SOKOLOFF, ESQ.

179 Westbury Avenue

Carle Place, NY 11514

Attorneys for Defendants The Town of Ballston,

Eric Connolly, Michael Carota, Chuck Curtiss,

Rob Fendrick, and Kelly Jasinski

Young/Sommer LLC DAVID C. BRENNAN, ESQ.

500 Federal Street – 5th Floor

Troy, NY 12180

Attorneys for Defendant Cellco Partnership

d/b/a Verizon Wireless

Hon. Anne M. Nardacci, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On February 26, 2025, plaintiffs Daniel LeClaire, Maria LeClaire, Alfred Broomhead,

Maryann Broomhead, Katie Calhoun, Fred Como, Nancy Como, Terri Cotone, Carol Cyrus, Duane

Cyrus, Emily Flores, Jorge Flores, David Gehrs, Marci Gentile, Carmine Grippo, Lor Grippo,

Davis Halm, Jolie Halm, Frances Maher, Dane Mellon, Melinda Mellon, Bob Mestemaker, Connie

Mestemaker, Glenn Nelson, Karalee Nelson, Ann Orlando, David Orlando, Chrissie Ormsbee, Jeff

Ormsbee, Kimberly Shell, and Matthew Shell (collectively, “Plaintiffs”) commenced this action

seeking compensatory and declarative relief pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 2201, and

NY CPLR § 3001 against multiple defendants: Vertical Bridge Development, LLC and Vertical

Bridge II, LLC (together, “Vertical Bridge”); The Town of Ballston (“Ballston”), Ballston

Supervisor Eric Connolly (“Connolly”) in his individual capacity, and Ballston Town Board

Members Michael Carota (“Carota”), Chuck Curtiss (“Curtiss”), Rob Fendrick (“Fendrick”), and

Kelly Jasinski (“Jasinski”) in their individual capacities (collectively as individuals, “Individual

Defendants”) (collectively with Ballston, “Town Defendants”); and Cellco Partnership doing

business as Verizon Wireless (“Verizon”). See Dkt. No. 1 (“Complaint”). Plaintiffs allege that all

defendants (“Defendants”) conspired and acted to deny Plaintiffs their First Amendment rights

regarding the approval and construction of a cell signal tower. See id. at ¶¶ 9, 18-19.

Presently before the Court are three motions to dismiss brought by Vertical Bridge, the

Town Defendants, and Verizon, respectively. See Dkt. Nos. 39, 40, 42. Plaintiffs responded to all

of the motions in a single brief, Dkt. No. 47, and each set of defendants replied, Dkt Nos. 48, 49,

50. For the reasons that follow, the Court grants each of the Defendants’ motions.

II. BACKGROUND

A. The Parties

Plaintiffs are individual property owners and residents in Burnt Hills, which is a hamlet

within the Town of Ballston, New York. Dkt. No. 1 at ¶¶ 26-56. Plaintiffs’ properties are located

within 225 to 1,475 feet of the cell tower at 323 Charlton Road, Ballston Spa, New York. See id.

Each Plaintiff states that the tower is visible from his or her property. See generally Dkt. No. 1-7

(adverse impact statements).

Vertical Bridge comprises two limited liability telecommunications infrastructure

companies organized under Delaware law and authorized to do business in New York. Id. at ¶¶

57-58; Dkt. No. 42 at 2. Verizon is a limited partnership organized under New York law with its

principal place of business in New Jersey. Id. at ¶ 66. Ballston is a municipal corporation

organized under New York law with its principal place of business in New York. Id. at ¶ 59. At

all relevant times, Defendant Connolly was the Ballston Town Supervisor. Id. at ¶ 60. At all

relevant times, Defendants Carota, Curtiss, Fendrick, and Jasinski were members of the Ballston

Town Board. Id. at ¶¶ 61-64.

B. Legal Background

Under New York law, towns that enact zoning laws must appoint a zoning board of appeals

(“ZBA”) that has the authority to grant use and area variances allowing applicants to depart from

a local zoning law. See New York Town Law § 267(2) (McKinney 2006); New York Town Law

§ 267-b (McKinney 1993). ZBA meetings must be public and hearings on appeal of zoning

enforcement must be publicly noticed in a newspaper at least five days in advance. New York

Town Law § 267-a(1), (7) (McKinney 2002).

In Matter of Cnty. of Monroe (City of Rochester), the New York Court of Appeals adopted

a “balancing of public interests” test (the “Monroe test”) to determine the applicability of local

zoning laws when two governmental entities are in conflict. 72 N.Y.2d 338, 341 (N.Y. 1988).1

The next year, the New York Appellate Division, Fourth Department, applied the Monroe test to

conclude that a town could immunize itself from its own zoning laws. Armenia v. Luther, 152

A.D.2d 928 (N.Y. App. Div. 1989). In Matter of Crown Comm’n N.Y., Inc. v. Dep’t of Trans. of

State of N.Y., the Court of Appeals expanded the applicability of Monroe to include a zoning

conflict between the private licensees of a state project and a town. 4 N.Y.3d 159, 166 (N.Y. 2005).

New York state trial courts have also held that a town board has the authority to apply the Monroe

1 The Court of Appeals articulated nine relevant factors: (1) the nature and scope of the

instrumentality seeking immunity, (2) the kind of function or land use involved, (3) the extent of

the public interest to be served thereby, (4) the effect local land use regulation would have upon

the enterprise concerned, (5) the impact upon legitimate local interests, (6) the applicant’s

legislative grant of authority, (7) alternative locations for the facility in less restrictive zoning areas

(8) alternative methods of providing the needed improvement, and (9) intergovernmental

participation in the project development process and an opportunity to be heard. Monroe, 72

N.Y.2d at 343 (citations and quotations marks omitted).

balancing test. See Bruenn v. Town Bd. of Town of Kent, 997 N.Y.S.2d 668, 2014 WL 3671324, at

*1-2 (N.Y. Sup. Ct. June 13, 2014) (holding that a Town Board has the power to “employ the

‘immunity balancing test’ of Matter of Monroe, [] to determine whether, in the first instance, an

entity should be granted immunity from local zoning requirements”); Nanuet Fire Engine Co. No.

1 v. Amster, 676 N.Y.S.2d 890, 894 (N.Y. Sup. Ct. 1998) (“It is for the Town of Clarkstown, in the

first instance, to determine after an opportunity to be heard is afforded other intergovernmental

agencies and legitimate local interests, to apply the balancing test set forth in County of Monroe.”).

C. Factual Background

In September 2024, Vertical Bridge constructed a 150-foot cell tower in the Town of

Ballston, New York. See Dkt. No. 1-7 at 12.2 With the Town Board’s approval, Vertical Bridge

sited the tower on town-owned land shared with the municipal Town Hall building. See Dkt. No.

1-8 at 2; Dkt No. 1 at ¶ 92. Plaintiffs allege that the cell tower site was zoned rural and residential,

which prohibits cell towers according to Ballston Code § 138-18. Dkt. No. 1 at ¶ 96.

Key events leading up to the Town Board’s approval of the cell tower construction are

matters of public record, which Plaintiffs incorporate by reference, and the Court considers integral

to the Complaint for the purposes of these motions. See Dkt. No. 1 at ¶ 88; Dkt. Nos. 40-2, 40-4,

40-5, 40-6, 40-7; see also Bloomingburg Jewish Educ. Center v. Village of Bloomingburg, N.Y.,

111 F. Supp. 3d 459, 472 (S.D.N.Y. 2015) (considering public records from town planning board

meeting on motion to dismiss). In August 2022, October 2022, and January 2023, the Ballston

Town Board held publicly-noticed Town Board meetings during which members discussed various

aspects of the Vertical Bridge cell tower project. See Dkt. No. 40-2 at 2; Dkt. No. 20-4 at 3-6; Dkt.

2 Citations to docket entries utilize the pagination generated by CM/ECF, the Court’s electronic

filing system.

No. 40-5 at 3. Each of these meetings included opportunities for public comment, and at each of

these meetings, no one from the public spoke or submitted written correspondence regarding the

cell tower. See Dkt. No. 40-2 at 3; Dkt. No. 40-4 at 4; Dkt. No. 40-5 at 11.

On October 30, 2023, Vertical Bridge’s attorney Jacquie Phillips Murray sent a letter to the

Ballston Town Board requesting that they consider granting zoning immunity to Vertical Bridge’s

proposed cell tower under the Monroe test. Dkt. No. 1-8 at 2. The letter also requested that the

Town Board add the matter to its November 14, 2023 meeting agenda, id. at 3, which it did, see

Dkt. No. 40-6 at 2-3. At that meeting, Attorney Murray further explained Vertical Bridge and

Verizon’s request that the Town Board consider applying the Monroe test. Dkt. No. 40-6 at 2; Dkt.

No. 1 at ¶ 86. Plaintiffs allege that Attorney Murray “explicitly stated that they were asking the

Board to perform a Monroe balancing test to avoid the required approvals of three boards whose

approvals would be required for Vertical Bridge to build its tower, one of which the attorney

specifically named was ‘the ZBA.’” Dkt. No. 1 at ¶ 87.

On February 13, 2024, the Ballston Town Board held a publicly noticed meeting in which

it resolved, among other things, that the Monroe factors weighed in favor of granting zoning

immunity to the Vertical Bridge cell tower and subsequently resolved that the project was so

immune. Dkt. No. 40-7 at 14-18. There was opportunity for public comment at the meeting, and

no one spoke regarding the cell tower. Id. at 8, 19. As part of its resolution, the Town Board noted

that the Town “mailed Agricultural Data Statements to each property owner within 500 feet of the

proposed tower installation” and that there had been “no response from these property owners in

opposition to the application.” Dkt. No. 40-7 at 15.

D. Plaintiffs’ Claims

Plaintiffs assert three causes of action. First, Plaintiffs allege that all Defendants violated

Plaintiffs’ First Amendment right to petition the government for a redress of grievances through

action constituting an impermissible prior restraint. Dkt. No. 1 at ¶¶ 109-32. Specifically,

Plaintiffs allege that Defendants unlawfully conducted a Monroe test for the cell tower, thereby

precluding a ZBA hearing during which Plaintiffs could express their opposition. See id. at ¶¶

84-85, 113. Second, Plaintiffs allege that all Defendants conspired to deprive Plaintiffs of their

aforementioned rights. Id. at ¶¶ 133-56. Third, Plaintiffs assert state law claims pursuant to New

York Civil Practice Law and Rules § 3001, alleging that the Town Defendants acted beyond their

jurisdictional authority by effectively granting zoning waivers to the Vertical Bridge cell tower

project, a power reserved by state statute to the ZBA. Id. at ¶¶ 157-61, 169-85. Consequently,

Plaintiffs also allege that the resulting lack of a ZBA hearing violated New York State Town Law,

and that the construction of the tower violated the Town of Ballston’s Zoning Code. Id. at ¶¶

162-63. Plaintiffs allege that in addition to the violation of their rights, Plaintiffs have suffered

aesthetic injuries, reduced home values, and an increased risk of “structural failures, ice fall, and

debris fall” from the cell tower. Id. at ¶ 164.

III. STANDARD OF REVIEW

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal

sufficiency of a party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007).

In considering legal sufficiency, a court must accept as true all well-pled facts in the complaint and

draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund,

Ltd., 493 F.3d 87, 98 (2d Cir. 2007). This presumption, however, does not extend to legal

conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although a court’s review of a

motion to dismiss is generally limited to the facts presented in the pleadings, the court may

consider documents that are “integral” to the pleadings even if they are neither physically attached

to, nor incorporated by reference into, the pleadings. See Mangiafico v. Blumenthal, 471 F.3d 391,

398 (2d Cir. 2006) (quoting Chambers, 282 F.3d at 152-53).

To survive a motion to dismiss, a party need only plead “a short and plain statement of the

claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to sho[w] that the pleader is entitled to

relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original) (quotation

omitted). Under this standard, a pleading’s “[f]actual allegations must be enough to raise a right

to relief above the speculative level,” id. at 555, and present claims that are “plausible on [their]

face.” Id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks

for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678

(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s

liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’”

Id. (quoting Twombly, 550 U.S. at 557). Ultimately, “when the allegations in a complaint, however

true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff

has “not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint

must be dismissed.” Id. at 570.

IV. DISCUSSION

A. Federal Claims Against the Individual Defendants, Vertical Bridge, and Verizon

Plaintiffs assert their claims pursuant to 42 U.S.C. § 1983 (“Section 1983”) alleging

violations of their rights under the First and Fourteenth Amendments of the United States

Constitution. Dkt. No. 1 at ¶ 22. To bring an action under Section 1983, a plaintiff’s well-pled

complaint must contain two elements: “(1) the conduct complained of must have been committed

by a person acting under color of state law; and (2) the conduct complained of must have deprived

a person of rights, privileges, or immunities secured by the Constitution or laws of the United

States.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). The Court first addresses whether

Plaintiffs may properly assert claims pursuant to Section 1983 against the Individual Defendants,

Vertical Bridge, and Verizon. See, e.g., Romano v. Elite Towers, L.P., No. 24-CV-08910 (OEM)

(ST), 2026 WL 546404, at *3 (E.D.N.Y. Feb. 26, 2026) (addressing first, in case with nearly

identical legal questions, whether certain defendants were properly sued pursuant to [Section]

1983).

1. Qualified Immunity as to the Individual Defendants

The Town Defendants assert that the Individual Defendants are entitled to qualified

immunity. Dkt. No. 41 at 31-33. Plaintiffs do not address the Town Defendants’ arguments on

this point, see generally Dkt. No. 47, and the Court considers Plaintiffs to have conceded the issue,

see, e.g., Romano, 2026 WL 546404, at *3 (citing Francisco v. Abengoa, S.A., 559 F. Supp. 286,

318 n.10 (S.D.N.Y. 2021)). But even if Plaintiffs had not conceded on the issue of qualified

immunity, the Court finds that Plaintiffs have not adequately pled a clearly established

constitutional violation and that Defendants have met their burden.

The doctrine of qualified immunity shields officials from civil liability so long as their

conduct “‘does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts must apply “a two-step analysis to

determine whether qualified immunity bars a plaintiff’s claim against government officials for

civil damages related to actions taken in the course of their official duties.” Sabir v. Williams, 52

F.4th 810, 817 (2d Cir. 2022), cert. dismissed, 143 S. Ct. 2694 (2023) (citing Francis v. Fiacco,

942 F.3d 126, 139 (2d Cir. 2019)). “Pursuant to that analysis, qualified immunity shields federal

and state officials from money damages unless the plaintiff pleads facts showing (1) that the

official violated a statutory or constitutional right, and (2) that the right was clearly established at

the time of the challenged conduct.” Id. (internal quotation marks omitted).

In assessing whether the right was clearly established, courts “do not require a case directly

on point, but existing precedent must have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011). The determining question is “whether the

violative nature of particular conduct is clearly established,” id. (emphasis added), and the analysis

“must be undertaken in light of the specific context of the case, not as a broad general

proposition[,]” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (quoting Saucier v.

Katz, 533 U.S. 194, 201 (2001)). Qualified immunity is an affirmative defense; therefore, the

defendant bears the burden of proving that qualified immunity applies. See Coolick v. Hughes,

699 F.3d 211, 219 (2d Cir. 2012). The defense of qualified immunity may properly be raised at

the motion to dismiss stage because “[q]ualified immunity provides government officials

‘immunity from suit rather than a mere defense to liability.’” Looney v. Black, 702 F.3d 701, 705

(2d Cir. 2012) (quoting Pearson, 555 U.S. at 231).

Here, Plaintiffs have not pled that the Individual Defendants violated a statutory or

constitutional right that is “beyond debate;” the Town Defendants make several well-supported

arguments as to why the Town Board’s action was constitutional. See Dkt. No. 41 at 23-27; see

also infra Section IV.B.1-2. Thus, the Individual Defendants did not violate a “clearly established”

right by adopting the resolution granting zoning immunity. Accordingly, the Individual

Defendants are entitled to qualified immunity and Plaintiffs’ claims against them are dismissed.

See, e.g., Romano, 2026 WL 546404, at *4.

2. Liability as to Vertical Bridge and Verizon

Plaintiffs allege that Vertical Bridge and Verizon violated Plaintiffs’ First Amendment

rights by “inducing” the Town Defendants to conduct a Monroe balancing test that circumvented

a public hearing before the ZBA. Dkt. No. 1 at ¶¶ 84-86, 90.

“A plaintiff fails to state a claim under Section 1983 where the plaintiff does not sufficiently

allege that the defendant acted under color of state law.” Colombo v. O’Connell, 310 F.3d 115,

117 (2d Cir. 2002) (citing Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997)). Additionally,

because the First Amendment constrains the government and not private parties, “a litigant

claiming that his constitutional rights have been violated must first establish that the challenged

conduct constitutes ‘state action.’” Romano, 2026 WL 546404, at *4 (citing United States v. Int’l

Bhd. of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991)).

Vertical Bridge and Verizon argue that Plaintiffs fail to adequately allege that they acted

under color of state law. Dkt. No. 42 at 10-11; Dkt. No. 39 at 6-8. The Court agrees. First, as

Plaintiffs acknowledge, Vertical Bridge and Verizon are private entities and not state actors. See

Dkt. No. 1 at ¶ 135. Second, Plaintiffs fail to plausibly allege any facts allowing for an inference

that Vertical Bridge and Verizon were private entities acting under color of state law. A private

entity acts under color of state law for the purposes of Section 1983 when (1) “the entity acts

pursuant to the coercive power of the state or is controlled by the state”; (2) “the state provides

significant encouragement to the entity, the entity is a willful participant in joint activity with the

[s]tate, or the entity’s functions are entwined with state policies”; or (3) “the entity has been

delegated a public function by the [s]tate[.]” Sybalski v. Indep. Grp. Home Living Program, Inc.,

546 F.3d 255, 257 (2d Cir. 2008) (citation and internal quotations omitted). Here, Plaintiffs do not

allege that the Town Defendants coerced, controlled, or encouraged Vertical Bridge or Verizon,

that the Town Defendants delegated any public function to Vertical Bridge or Verizon, or that

Vertical Bridge or Verizon’s functions were entwined with Ballston’s policies. See generally Dkt.

No. 1. In fact, Plaintiffs allege the reverse: that Vertical Bridge and Verizon petitioned the Town

Defendants to consider and apply the Monroe test. Id. at ¶86. Such a request does not impute the

power of the state to the private entity. See Romano, 2026 WL 546404, at *5 (Verizon . . .

requesting the Town Board to apply the [Monroe] test is no different from Plaintiffs petitioning the

Town Board[.]”).

To the extent that Plaintiff alleges that Vertical Bridge and Verizon were willful participants

in joint activity with the Town Defendants in relation to Plaintiffs’ claim for conspiracy pursuant

to Section 1983, the Court remains unconvinced that Plaintiffs have plausibly alleged that they

acted under color of state law. See Dkt. No. 1 at ¶ 135; see also id. at 39. To state a claim for

conspiracy under Section 1983, a plaintiff must allege: “(1) an agreement between two or more

state actors or between a state actor and a private entity; (2) to act in concert to inflict an

unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”

Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). Additionally, a plaintiff “must provide

some factual basis supporting a meeting of the minds, such that defendants entered into an

agreement, express or tacit, to achieve the unlawful end.” Webb v. Goord, 340 F.3d 105, 110 (2d

Cir. 2003). The Second Circuit has stated that while conclusory allegations of a conspiracy are

insufficient, “‘conspiracies are by their very nature secretive operations,’ and may have to be

proven by circumstantial, rather than direct, evidence.” Pangburn 200 F.3d at 72 (quoting

Rounseville v. Zahl, 13 F.3d 625m 632 (2d Cir. 1994)). Nevertheless, “[a]llegations of conspiracy

must ‘allege with at least some degree of particularity overt acts which defendants engaged in

which were reasonably related to the promotion of the alleged conspiracy.’” Mitchell v. Cnty. of

Nassau, 786 F. Supp. 2d 545, 565 (E.D.N.Y. 2011) (quoting Fariello v. Rodriguez, 148 F.R.D. 670,

677 (E.D.N.Y. 1993) aff’d, 22 F.3d 1090 (2d Cir. 1994)).

Here, while Ballston is indeed a state actor and Vertical Bridge and Verizon are private

parties, Plaintiff fails to plausibly allege facts describing any agreement to violate constitutional

rights. Plaintiffs merely allege that Vertical Bridge and Verizon acted “in furtherance of the

conspiracy by explicitly requesting of the Town Defendants that they conduct a Monroe balancing

test for the specifically stated purpose of circumventing the ZBA and the State-mandated

requirements[.]” Dkt. No. 1 at ¶ 137. Plaintiffs then allege that the Town Defendants “took

affirmative acts in furtherance of the conspiracy by explicitly purporting to approve Vertical

Bridge’s tower, thereby effectively granting Vertical Bridge variances and/or waivers of such

variance requirements for the specifically stated purpose of circumventing the ZBA and the State-

mandated requirements. Id. at ¶ 138.

These conclusory allegations do not describe an agreement or a conspiracy. At most,

Plaintiffs merely describe a lawful lobbying effort. As the Complaint states, Vertical Bridge

“simply advised the Ballston Town Board that they could circumvent the ZBA entirely (and lobbied

that they do so) by conducting a purported Monroe balancing test.” Dkt. No. 1 at ¶ 129.

Additionally, Defendants allegedly engaged in all these actions at Town Board meetings that were

open to the public, which further renders the conspiracy allegations implausible. See Dkt No. 1 at

¶ 88.

Plaintiffs further allege: “Upon information and belief, Defendants agreed to bypass the

ZBA, because all of the Defendants knew that the public, and those most greatly affected (which

included the Plaintiffs herein), would oppose such variance applications.” Dkt. No. 1 at ¶ 152.

And: “Upon information and belief, in exchange for agreeing to circumvent the ZBA, defendant

Vertical Bridge agreed to provide the Town with money, perks, and/or gifts.” Id. at ¶ 153; see also

id. at ¶ 90. Plaintiffs do not, however, include any factual allegations showing that these are

anything more than formulaic allegations of conspiracy. Plaintiffs merely state that “[c]onspiracies

of this precise nature are part of a disturbing trend taking place across New York State” and cite

Attorney Murray’s October 20, 2023 letter to the Ballston Town Board, which contains no

reference to any knowledge of public opposition, nor any offer of money, perks, or gifts. Dkt. No.

1 at ¶¶ 141-42; Dkt. No. 1-8. The public meeting minutes of the Ballston Town Board also fail to

support the plausibility of these allegations. See Dkt. Nos. 40-2, 40-4, 40-5, 40-6, 40-7. Therefore,

the Court finds that Plaintiffs have not plausibly alleged that Vertical Bridge and Verizon acted

under color of state law, or engaged in a conspiracy with the Town Defendants, and dismisses the

federal claims against them.

B. Federal Claims against Ballston

The Court next considers whether Plaintiffs plausibly allege that remaining Defendant

Ballston deprived Plaintiffs of their First Amendment rights.

1. First Amendment Right to Petition

Plaintiffs allege that Ballston deprived Plaintiffs of their First Amendment right to petition

the government by not holding a state law-mandated ZBA hearing in relation to the siting of the

cell tower. See Dkt. No. 1 at ¶¶ 110-118. In support of their claim, Plaintiffs argue that the

opportunity to petition a local ZBA is constitutionally required. See id. In its Motion, Ballston

argues that the Court should dismiss this claim because Plaintiffs had both notice and opportunity

to petition the government at multiple public hearings regarding the cell tower but did not. Dkt.

No. 41 at 15-16. Additionally, Ballston asserts that Plaintiffs fail to allege a cognizable deprivation

because the failure to hold a hearing does not constitute a deprivation of the right to petition the

government. Id. at 16.

The Court agrees with Ballston. Nothing in our First Amendment jurisprudence supports

Plaintiff’s theory regarding the violation of their right to petition the government for a redress of

grievances. To be sure, the right to petition for a redress of grievances is “among the most precious

liberties safeguarded by the Bill of Rights.” United Mine Workers, Dist. 12 v. Illinois State Bar

Ass’n, 389 U.S. 217, 222 (1967). However, “[t]he Constitution does not grant to members of the

public generally a right to be heard by public bodies making decisions of policy.” Minn. State Bd.

for Cmty. Colls. v. Knight, 465 U.S. 271, 283 (1984). “Nothing in the First Amendment or in [the

Supreme Court’s] case law interpreting it suggests that the rights to speak, associate, and petition

require government policymakers to listen or respond to individuals’ communications on public

issues.” Id. at 285. Additionally, courts have held that

[t]he right to petition government afforded by the First Amendment does not

include the absolute right to speak in person to officials. Where written

communications are considered by government officials, denial of a hearing does

not infringe upon the right to petition. The right to petition government does not

create in the government a corresponding duty to act.

Piscottano v. Town of Somers, 396 F. Supp. 2d 187, 206 (D. Conn. 2005) (quoting Cronin v. Town

of Amesbury, 895 F. Supp. 375, 389 (D. Mass. 1995), aff’d, 81 F.3d 257 (1st Cir. 1996)).

Plaintiffs’ argument therefore fails for multiple reasons. First, failing to hold a ZBA

hearing did not deprive Plaintiffs of their right to petition the government. To the contrary, the

public record indicates that Plaintiffs had multiple, duly noticed opportunities to voice their

opposition to the site of the cell tower. The Town Defendants held a public hearing on the matter

of a lease option for the purpose of constructing the Vertical Bridge cell tower on Aug. 9, 2022.

Dkt. 40-2. Members of the Town Board also discussed the cell tower and the Monroe factors in

publicly-noticed Town Board meetings at which town residents had the opportunity to speak. See

generally Dkt. Nos. 40-2, 40-4, 40-5, 40-6, 40-7. Furthermore, at all relevant times, Ballston

maintained Plaintiffs’ right to express opposition to (or support for) the tower in writing. See, e.g.,

Dkt. No. 40-2 at 3 (stating on the record that the Town Board received no correspondence either

at or prior to the public hearing on the matter of the lease option for the cell tower); see also

Prestopnik v. Whelan, 253 F. Supp. 2d 369, 375 (N.D.N.Y. 2003) (holding that plaintiff was not

denied the right to petition the government because “defendants afforded plaintiff the opportunity

to submit her grievances in writing”).

Second, for First Amendment purposes, whether state law requires a ZBA hearing is

irrelevant because the constitutional right to petition the government does not necessarily

encompass all state statutory rights. “However wise or practicable various levels of public

participation in various kinds of policy decisions may be, [the Supreme Court] has never held, and

nothing in the Constitution suggests it should hold, that government must provide for such

participation.” Knight, 465 U.S. at 285. That New York may have provided for public hearings in

the context of zoning variances thus does not bear on whether Plaintiffs were deprived of their

First Amendment rights due to a limit on those hearings.

Third, Plaintiffs do not plausibly allege any facts showing that Ballston attempted to

suppress, exclude, or censor any speaker or speech at the Town Board’s publicly-noticed meetings.

See Dkt. No. 1 at ¶¶ 81-92, 109-17. Therefore, Plaintiffs do not plausibly allege that Ballston

violated their right to petition.

2. Prior Restraint on Speech

“A ‘prior restraint’ on speech is a law, regulation or judicial order that suppresses speech—

or provides for its suppression at the discretion of government officials—on the basis of the

speech’s content and in advance of its actual expression. . . . It has long been established that such

restraints constitute ‘the most serious and the least tolerable infringement’ on our freedoms of

speech and press.” United States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005) (citation omitted).

Prior restraints are not per se unconstitutional, but the Supreme Court has held that such restraints

bear a heavy presumption against their validity. Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 558 (1975). “Government action constitutes a prior restraint when it is directed to

suppressing speech because of its content before the speech is communicated.” In re G. & A.

Books, Inc., 770 F.2d 288, 296 (2d Cir. 1985).

Plaintiffs do not specify whether their prior restraint challenge to Ballston’s action is facial

or as-applied, but “the label is not what matters.” Brokamp v. James, 573 F. Supp. 3d 696, 704 n.

3 (N.D.N.Y. 2021) (citation omitted). “A claim is facial if it challenges application of the law more

broadly, but a claim is as-applied if it is limited to a plaintiff’s particular case.” Id. (citation and

internal quotations omitted). Plaintiffs allege that Ballston’s application of the Monroe test

constitutes an impermissible prior restraint on Plaintiff’s speech because, as a result, no ZBA

hearing was held. Dkt. No. 1 at ¶¶ 118-19. Plaintiffs argue that whenever a town board applies

the Monroe test to grant zoning immunity instead of a ZBA, such action is a prior restraint, see

Dkt. No. 47 at 21, and, as such, the Court interprets their challenge as a facial challenge.

The Second Circuit has delineated two traditional types of government action that are

susceptible to a facial challenge presuming an unconstitutional prior restraint: (1) “preventing the

printed publication of disfavored information,” and (2) “a facially-neutral law that sets up an

administrative apparatus with the power and discretion to weed out disfavored expression before

it occurs[.]” Citizens United v. Schneiderman, 882 F.3d 374, 386-87 (2d Cir. 2018) (internal

citations omitted). Because the Monroe test is clearly not an outright content-based ban, the Court

considers whether the Monroe test resembles an impermissible administrative apparatus with too

much power and discretion.

Assuming that it has the authority to apply the Monroe test, a town board does not exercise

unbridled discretion when granting zoning immunity under that test. Rather, the Monroe balancing

test is exactly that: a test in which nine enumerated factors are weighed for or against the

application of zoning laws. See Monroe, 72 N.Y.2d at 343. The test therefore does not, as an

action constituting an unconstitutional prior restraint would require, give a Town Board the plenary

power to restrict speech based on its own discretion. Rather, a Town Board must weigh the factors

and support its determinations with evidence. See Bruenn, WL 3671324, at *4-5 (finding that

Town Board’s grant of zoning immunity after applying Monroe was not arbitrary or capricious

because it supported its determinations with substantial evidence). Thus, on its face, the

application of the Monroe test does not constitute a prior restraint.

Moreover, the Court finds that even if application of the Monroe test could operate as a

prior restraint as-applied, Plaintiffs have not plausibly alleged that Ballston applied the Monroe

test for the improper purpose of stifling Plaintiffs’ speech. In conclusory fashion, Plaintiffs allege

that the Town Defendants “intentionally and deliberately” circumvented the ZBA “for the intended

purpose of depriving property owners of their right to be heard before a designated public forum.”

Dkt. No. 1 at ¶¶ 15, 17. However, Plaintiffs do not plausibly allege any facts regarding any

Defendant’s intent or suggesting that any Defendant knew or would have had reason to know of

any Plaintiff’s opposition to the siting of the tower at the time they applied the Monroe test. See,

e.g., Dkt. No. 1 at ¶ 118.

In sum, Plaintiffs have not plausibly alleged any First Amendment violation, and,

accordingly, the Court dismisses Plaintiffs’ First Amendment claim.

3. Conspiracy to Deprive Plaintiffs of Their First Amendment Rights

Plaintiffs bring one more federal claim pursuant to Section 1983: that all Defendants

conspired to deprive Plaintiffs of their First Amendment rights. Dkt. No. 1 at ¶¶ 133-156.

However, “[t]o allege a Section 1983 conspiracy claim, a constitutional cause of action must be

established.” Romano, 2026 WL 546404, at *7 (citing Droz v. McCadden, 580 F.3d 106, 109 (2d

Cir. 2009)). Because Plaintiffs have failed to plausibly allege any First Amendment violation or

any agreement to infringe on their First Amendment rights, Plaintiffs’ claim for conspiracy is

unsustainable. See supra Sections IV.A.2, IV.B.1-2. Moreover, as to Plaintiff’s federal claims,

Ballston is the only remaining Defendant, and a single defendant cannot support a claim for

conspiracy. See Pangburn, 200 F.3d at 72. Thus, the Court dismisses Plaintiffs’ conspiracy claim.

See, e.g., Romano, 2026 WL 546404, at *7.

C. State Law Claim

“[T]he strong preference in this Circuit is for district courts to decline to exercise

supplemental jurisdiction under § 1367(c)(3) when all of the federal claims are dismissed from the

suit prior to trial.” Torres v. Faxton St. Lukes Healthcare, No. 16-cv-439, 2017 WL 11317906, at

*4 (N.D.N.Y. Jan. 26, 2017) (citation omitted). After considering the relevant factors, the Court

declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state law claim. See

Lundy v. Cath. Health Sys. of Long Island, Inc., 711 F.3d 106, 117-18 (2d Cir. 2013); see also

Romano, 2026 WL 546404, at *7 (“The Court further declines to exercise supplemental

jurisdiction over Plaintiffs’ remaining New York state-law claims under . . . CPLR § 3001”).

V. CONCLUSION

Accordingly, the Court hereby

ORDERS that each of Defendants’ motions to dismiss, Dkt. Nos. 39, 40, and 42, are

GRANTED, and the Court further

ORDERS that Plaintiffs’ Complaint be DISMISSED in its entirety; and the Court further

ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the

Parties in accordance with the Local Rules.

IT IS SO ORDERED. □

Dated: March 17, 2026 Owe . Jaraaeer

Albany, New York Anne M. Nardacci

U.S. District Judge

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