# LeClaire

> District Court, N.D. New York · March 17, 2026

URL: https://www.frixlaw.com/law-library/cases/11305174

## Case

- **Full name:** 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 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
- **Court:** District Court, N.D. New York
- **Decided:** March 17, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11305174

## How later opinions describe it (automated extraction)

- holding that plaintiff was not denied the right to petition the government because “defendants afforded plaintiff the opportunity to submit her grievances in writing”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11305174. Public record. Not legal advice.