T–mobile Ne. Llc v. the Inc. Vill. of East Hills

779 F.Supp.2d 256

T–MOBILE NORTHEAST LLC, Plaintiff,

v.The INCORPORATED VILLAGE OF EAST HILLS and the Zoning Board of Appeals of the Incorporated Village of East Hills, Defendants.

No. 09 CV 5670(SJF)(ETB).

United States District Court, E.D. New York.

March 22, 2011.

Lawrence C. Re, John Coughlin, Re, Nielson, Huber & Coughlin, LLP, Huntington, NY, for Plaintiff.Michael L. Cirrito, White, Cirrito & Nally, LLP, Hempstead, NY, for Defendants.

ORDER

FEUERSTEIN, District Judge.

On December 29, 2009, plaintiff T–Mobile Northeast, LLC (“plaintiff”) filed a complaint against the Village of East Hills (the “Village”) and the Village Zoning Board of Appeals, (collectively the “defendants”) pursuant to the Telecommunications Act of 1996, specifically 47 U.S.C. § 332(c)(7)(B), and Article 78 of the New York Civil Procedure Law and Rules. Pursuant to a referral, Magistrate Judge E. Thomas Boyle issued a Report and Recommendation on March 2, 2011 (the “Report”) recommending that plaintiff's motion be granted. No objections have been filed to the Report. For the reasons stated herein, the Report is accepted in its entirety.

I. Discussion

Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct proceedings on dispositive pretrial matters without the consent of the parties. Fed.R.Civ.P. 72(b). Any portion of a report and recommendation on dispositive matters, to which a timely objection has been made, is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The court, however, is not required to review the factual findings or legal conclusions of the magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). To accept the report and recommendation of a magistrate judge to which no timely objection has been made, the district judge need only be satisfied that there is no clear error on the face of the record. See Fed.R.Civ.P. 72(b); Baptichon v. Nevada State Bank, 304 F.Supp.2d 451, 453 (E.D.N.Y.2004), affd., 125 Fed.Appx. 374 (2d Cir.2005); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). Whether or not proper objections have been filed, the district judge may, after review, accept, reject, or modify any of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

No objections have been filed to Magistrate Judge Boyle's Report to date. Upon review, the Court is satisfied that the Report is not facially erroneous. Accordingly, the Court accepts and adopts Magistrate Judge Boyle's Report as an Order of the Court.

II. Conclusion

For the foregoing reasons, the Report is accepted in its entirety as an order of the Court, and plaintiff's motion for summary judgment is granted. The Clerk of the Court is directed to close the case.

SO ORDERED.

REPORT AND RECOMMENDATION

E. THOMAS BOYLE, United States Magistrate Judge.

TO THE HONORABLE SANDRA J. FEUERSTEIN, United States District Judge:

Before the Court is the plaintiff's motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking judgment as a matter of law with respect to all of the claims alleged in the Complaint. Defendants oppose the motion. For the following reasons, I recommend that plaintiff's motion for summary judgment be granted in its entirety.

Facts

The facts set forth herein are taken solely from the plaintiff's Rule 56.1 statement. As plaintiff points out in its Reply Memorandum of Law, the defendants failed to comply with Local Civil Rule 56.1(b), which requires that the party opposing a motion for summary judgment submit a counter-statement that “include[s] a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party.” Local Civ. R. 56.1(b). Rather than respond to the paragraphs contained in plaintiff's 56.1 statement, defendants' submission simply sets forth their own statements of material fact. While plaintiff's 56.1 statement consists of 171 numbered paragraphs, defendants counter-statement only contains 48 numbered paragraphs, none of which correspond to the numbered paragraphs contained in plaintiff's 56.1 statement. Moreover, none of the statements contained in defendants' 56.1 statement controvert those set forth in plaintiff's 56.1 statement, as required by Local Civil Rule 56.1(c). Accordingly, the statements contained in plaintiff's 56.1 statement are deemed admitted for purposes of the within motion. See Local Civ. R. 56.1(c) (“Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted ... unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.”); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003) (“If the opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.”).

This action arises out of an application by the plaintiff, T–Mobile Northeast LLC (“T–Mobile”), to defendants, the Incorporated Village of East Hills (the “Village”) and the Zoning Board of Appeals for the Village (the “ZBA”), for approval to install eight public utility wireless telecommunications antennas on the rooftop and related electrical equipment in the basement (referred to as the “Proposed Facility”) of an existing building located in the Village (the “Premises”). (Pl. Local Civ. R. 56.1 Statement (“Pl. 56.1”) ¶¶ 1–2.) On December 1, 2009, defendants rejected plaintiff's application.

T–Mobile is a “communications common carrier” and a telecommunications carrier providing “commercial mobile services,” “commercial mobile radio services,” “personal communication services,” and “personal wireless services.” (Pl. 56.1 ¶ 3.) T–Mobile is a wholly owned subsidiary of T–Mobile USA, Inc. and uses Federal Communications Commission (“FCC”) licenses issued to T–Mobile USA, Inc. and its affiliates to provide personal wireless service within the state of New York, including Nassau County and the Village of East Hills. (Pl. 56.1 ¶ 4.)

In order to provide reliable service to its customers, as per its obligations under its FCC licenses, T–Mobile must create a network of individual but interconnected “cell sites,” which are antenna facilities consisting of radio antennas installed on existing buildings or other structures, such as towers or monopoles, and equipment that sends and receives radio signals to and from customers' portable wireless communication devices. (Pl. 56.1 ¶ 6.) If there are too few cell sites or if cell sites are located too far apart, T–Mobile's customers may experience unreliable service such as calls that are disconnected, static and difficulty placing and maintaining calls. (Pl. 56.1 ¶ 10.)

T–Mobile sought permission to build its Proposed Facility due to the fact that it is experiencing what it deems to be a “significant” service gap in the Village, resulting in T–Mobile's failure to provide reliable service to the area. (Pl. R. 56.1 ¶ 11.) T–Mobile has determined that building the Proposed Facility at the Premises would help to eliminate this service gap. (Pl. R. 56.1 ¶ 12.) T–Mobile's Proposed Facility consists of eight small panel antennas mounted to six mounts on the roof of the existing building at the Premises. (Pl. 56.1 ¶ 2.) T–Mobile also seeks to install related electrical equipment in the building's basement. ( Id.)

Two other wireless telecommunications providers—Sprint Spectrum, LLP (“Sprint”) and Verizon—already have Village-approved public utility wireless telecommunications facilities located on the rooftop of the Premises. ¹ (Pl. 56.1 ¶ 16.) Height variances were issued to both Sprint and Verizon by the Village to allow them to install their roof antennas on the Premises. (Pl. 56.1 ¶ 19.) In 2001, a third wireless telecommunications provider—Nextel of New York, Inc. (“Nextel”)—was also approved by the Village to install a wireless telecommunications facility at the Premises, consisting of twelve roof-mounted antennas and related electrical equipment housed in the basement of the building. (Pl. 56.1 ¶ 17.) However, Nextel did not proceed with the installation of its proposed facility. (Pl. 56.1 ¶ 18.)

Prior to making its application to install the Proposed Facility on the Premises, T–Mobile approached the Village about collocating on an existing tower (the “Tower”) located on Village-owned property near the Village Hall. (Pl. 56.1 ¶¶ 21–22.) The Village rejected T–Mobile's proposal. (Pl. 56.1 ¶ 22.) Accordingly, on July 11, 2008, T–Mobile submitted an application for a Building Permit to construct the Proposed Facility at the Premises. (Pl. 56.1 ¶ 22.) The Village's Building Department issued a denial letter on July 25, 2008, advising T–Mobile that its application required “review by the Village of East Hills Planning Board” (the “Planning Board”). (Pl. 56.1 ¶ 24.) T–Mobile submitted an application to the Planning Board on August 26, 2008. (Pl. 56.1 ¶ 25.)

On February 12, 2009, the Building Department issued a revised denial letter, informing T–Mobile that its application no longer required review by the Planning Board. (Pl. 56.1 ¶ 27.) Instead, the revised denial letter advised T–Mobile that it needed to obtain approval from the ZBA. ( Id.) T–Mobile submitted its application to the ZBA on February 18, 2009, seeking to obtain height and use variances as well as a special exception permit. (Pl. 56.1 ¶ 35.)

After several adjournments, a public hearing was held before the ZBA on June 16, 2009 and continued on July 28, 2009, August 18, 2009 and September 22, 2009. (Pl. 56.1 ¶ 72.) On July 14, 2009—after the first date of the public hearing and prior to the second—T-Mobile renewed its proposal to collocate its wireless telecommunications facility on the Tower located on Village property. (P. 56.1 ¶ 101.) The Village again rejected T–Mobile's...