Up State Tower Co. v. Town of Kiantone

UP STATE TOWER CO., LLC, Plaintiff, v. THE TOWN OF KIANTONE, NEW YORK;THE TOWN BOARD OF THE TOWN OF KIANTONE, NEW YORK;and THE BUILDING DEPARTMENT OF THE TOWN OF KIANTONE, NEW YORK, Defendants.

No. 1:16-cv-00069-MAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

November 26, 2019

DECISION and ORDER

INTRODUCTION

Up State Tower Co., LLC ("Plaintiff") commenced this action against the Town of Kiantone, the Town Board of the Town of Kiantone and the Building Department of the Town of Kiantone (collectively, "Defendants") alleging that Defendants violated the Telecommunications Act of 1996 ("TCA"), Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. § 151 et seq., as amended), in denying its application for a special use permit to construct a public utility wireless telecommunication facility. Presently before the Court is Defendants' Motion for Reconsideration.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff develops and builds telecommunications facilities on behalf of Blue Wireless, a telecommunications carrier licensed by the Federal Communications Commission ("FCC") to operate in the Jamestown, New York area, including the Town of Kiantone ("the Town"). The Town is a municipal corporation in Chatauqua County, New York. The Town Board of the Town of Kiantone ("the Board") is the Town's governmental body.

At issue in this litigation is Plaintiff's Tower Permit Application ("the Application") dated July 30, 2015, seeking permission to construct a wireless telecommunications tower at 1710 Foote Avenue, in Jamestown, New York ("the Proposed Site").

On December 9, 2016, this Court issued a Decision and Order granting Plaintiff's motion for summary judgment on as to its first cause of action and ordered, as a remedy, that the Town issue a written decision on the Application within 20 days.

On December 19, 2016, the Board issued a "Resolution Denying the Application of Up State Tower Co., LLC For Town Tower Permit, Area Variances and Site Plan Review" ("the Resolution") (Dkt #39-3). After making a number of factual findings, see id. ¶¶ 1-61, the Board offered several reasons for denying Plaintiff's Application, including that Plaintiff "failed to establish that its proposed facility is the least intrusive means to close Blue Wireless' gap in wireless coverage or that a tower at this location and height is needed to solve Blue Wireless' alleged gap in wireless coverage[.]" Resolution (Dkt #39-3) at 13.

On January 9, 2017, Plaintiff filed a motion to reconsider this Court's December 9, 2016 decision. After the Court issued a Decision and Order denying reconsideration on March 31, 2017,Plaintiff filed a notice of interlocutory appeal as to the December 2016 and March 2017 decisions. The United States Court of Appeals for the Second Circuit affirmed both decisions on December 27, 2017.

Defendants filed a Second Motion for Summary Judgment (Dkt ##39 to 39-20) asserting entitlement to judgment as a matter of law on Count V of the Amended Complaint (Dkt #24), which alleges that the denial of the Application violated 47 U.S.C. § 332(c)(7)(B)(iii) because it is unsupported by "substantial evidence." Plaintiff has opposed the motion (Dkt ##42 to 42-5), and Defendants have filed a Reply (Dkt #43). The motion was submitted without oral argument on November 27, 2018 (Dkt #44). On February 15, 2019, Plaintiff filed a Response (Dkt #45) presenting supplemental authority¹ in further support of its opposition.

The supplemental authority consisted of a Declaratory Ruling and Third Report and Order ("FCC Order") adopted by the Federal Communications Commission ("FCC") on September 26, 2018, and effective January 14, 2019. Plaintiff noted that the FCC clarified the interpretation of what constitutes "an effective prohibition" of wireless service for purposes of an "effective prohibition" claim under 47 U.S.C. § 332(c)(7)(B)(i)(II). Defendants did notrespond to Plaintiff's submission of the FCC Order. Defendants also did not move for summary judgment on Plaintiff's effective prohibition claim. The Court found that it was unclear whether the FCC Order applied to the Resolution issued in December 2016, and thus determined it was not dispositive of Defendants' summary judgment motion.

In a Decision and Order (Dkt #46) dated March 11, 2019, the Court denied Defendants' motion for summary judgment as to Count V, finding that the Board's Resolution denying Plaintiff's Application was not supported by substantial evidence. Accordingly, the Court determined, Defendants were not entitled to summary judgment with respect to Count V of the Amended Complaint. As a remedy, the Court vacated the Board's Resolution denying the Application and directed Defendants to promptly approve the Application and grant and issue all required variances to Plaintiff. Judgment in Plaintiff's favor (Dkt #47) was entered on March 12, 2019.

On April 2, 2019, Defendants filed their First Motion for Reconsideration (Dkt ##49 to 49-4). On April 15, 2019, Defendants filed their First Motion to Stay the Judgment (Docket ## 50, 51). By order dated April 16, 2019 (Dkt #52), the Court granted Defendants' request to stay its obligation to issue the cell tower permit until such time as the Court decided their reconsideration motion. On April 17, 2019, the Court granted Plaintiff's request for an extension of time to respond to the reconsideration motion.Plaintiff filed its Memorandum in Opposition (Dkt #56) on April 24, 2019. Defendants did not submit any reply papers.

DEFENDANTS' MOTION FOR RECONSIDERATION

I. Standard on Reconsideration

The standard for granting a motion for reconsideration under Federal Rule of Civil Procedure ("F.R.C.P.") 59(e) "is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citing Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990) ("The only proper ground on which a party may move to reargue an unambiguous order is that the court overlooked 'matters or controlling decisions' which, had they been considered, might reasonably have altered the result reached by the court."); Adams v. United States, 686 F. Supp. 417, 418 (S.D.N.Y. 1988) (same)). "The provision for reargument is not designed to allow wasteful repetition of arguments already briefed, considered and decided[,]" Schonberger, 742 F. Supp. at 109 (citations omitted)), and "a motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided." Shrader, 70 F.3d at 257.

II. Asserted Grounds for Motion

Defendants assert that the Court made the following "errors of law" in its March 11, 2019 Decision and Order denying summary judgment: (1) considering the Affidavit of Donald Carpenter ("Carpenter") dated October 30, 2018 ("Carpenter Affidavit") (Dkt #42-3) with regard to Plaintiff's investigation of and negotiations regarding a parcel ("Location 19" or "the Schuver property") owned by George Barton Schuver, Jr. ("Schuver"); (2) considering the October 30, 2018 Affidavit of Eric Wong ("2^nd Wong Affidavit") (Dkt #42-4) regarding the ability to collocate a telecommunications tower on light poles at the Jamestown School District Sports Complex ("Sports Complex"); and (3) considering the Town's negative determination under the New York State Environmental Quality Review Act ("SEQRA"), N.Y. Envtl. Conserv. Law § 8-0109, et seq., as evidence that Plaintiff's proposal was the least intrusive means to close a wireless coverage gap in the Town of Kiantone. Defendants argue that the Court considered evidence that was not before the Board, or actually relied on by the Board, when it arrived at its Resolution denying Plaintiff's Application.

Plaintiff counters that neither the Carpenter Affidavit nor the 2^nd Wong Affidavit introduced information that was outside the record of what was considered by the Board—in other words, the substance of the these two affidavits was already before the Boardthrough Wong's and Carpenter's statements made at the various Board meetings leading up to the Resolution. In addition, Plaintiff argues, the Board's findings with regard to the alleged failure to properly investigate other sites are unsupported by substantial evidence, even without considering the Carpenter Affidavit and 2^nd Wong Affidavit. As to the Town's negative SEQRA determination, Plaintiff argues that it was relevant to demonstrating the lack of substantial evidence supporting the Town's assertion of generalized concerns about the siting of the proposed tower.

III. Analysis

As discussed further below, the Court concludes that reconsideration is not warranted because none of grounds raised by Defendants in their motion "might reasonably be expected to alter the conclusion reached by the court[,]" Shrader, 70 F.3d at 257, that the Board's Resolution is unsupported by substantial evidence. Even without considering the Carpenter Affidavit, the 2^nd Wong Affidavit, or the negative SEQRA determination, there is no genuine issue of material fact that Defendants' denial of the Application was not based on substantial evidence, and therefore Defendants did not establish their entitlement to summary judgment.

A. Substantial Evidence Standard

Substantial evidence "has been construed to mean less than a preponderance, but more than a scintilla." Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). As theSupreme Court has explained, substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera v. NLRB, 340 U.S. 474, 477 (1951) (internal quotations omitted). While deferential, the substantial evidence standard nevertheless demands that "the record . . . be viewed in its entirety, including...