848 F. Supp. 2d 391
W.D.N.Y.2012Background
- Verizon applied for a 120-foot monopole at the Fire District Site to address the Hoover Road Gap in Irondequoit, NY; the Town of Irondequoit zoning authority regulates wireless facilities and Verizon is treated as a public utility for zoning purposes; the Hoover Road Gap spans central Irondequoit and includes numerous residences and institutions requiring improved coverage; Verizon identified the Cooper Road Fire District Site as the only viable location to meet technical needs within the search area, though the Town disputes this and cites alternative sites including Joshua Park; Verizon submitted its application in June 2010, with multiple supplemental filings and public hearings extending into 2011; the Town invoked SEQRA, designating itself lead agency and issuing a positive declaration, which Verizon argues was a pretextual delaying tactic to block the site addressable by the 120-foot monopole; the court ultimately finds the Town’s SEQRA invocation pretextual and grants Verizon’s summary judgment and relief demanding approval of the permit to construct the monopole.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Town violated the Shot Clock provisions by failing to act timely | Verizon argues the Town failed to act within the presumptive 90/150-day periods. | Town contends it complied with or validly delayed under regulatory processes. | Verdict for Verizon; failure to act found; injunctive relief appropriate. |
| Whether SEQRA was properly invoked or a pretext to delay | SEQRA was not triggered; positive declaration was pretextual to delay wireless service. | Town asserts SEQRA review was proper due to potential environmental impact. | SEQRA invocation deemed pretextual and improper; SEQRA did not justify delay. |
| Whether the Town unlawfully impeded provision of wireless services under TCA | Town’s delays and SEQRA reliance violated 47 U.S.C. § 332(c)(7). | Town may regulate siting under local law but not to prohibit service. | Plaintiff Verizon granted summary judgment; Town ordered to approve permit. |
| Appropriateness of the remedy (injunction) | Permanent injunction to require issuance of permits for the monopole is proper. | Remand or continued proceedings would suffice; injunction unnecessary. | Permanent injunction issued directing approval of Verizon’s special permit. |
Key Cases Cited
- Stagl v. Delta Airlines, Inc., 52 F.3d 463 (2d Cir. 1995) (summary judgment standard; view facts in light favorable to non-movant)
- Lucas v. Planning Bd. of Town of LaGrange, 7 F.Supp.2d 310 (S.D.N.Y. 1998) (SEQRA-related delaying tactics; wireless siting objectives)
- Omnipoint Communications, Inc. v. Planning & Zoning Commission of the Town of Wallingford, 83 F.Supp.2d 306 (D. Conn. 2000) (remedies for TCA violations; appropriate injunctive relief)
- Omnipoint Communications, Inc. v. Village of White Plains, 175 F.Supp.2d 697 (S.D.N.Y. 2001) (substantial evidence standard in zoning review; avoid improper public objections)
- Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999) (TCA remedy considerations)