N.Y. Village Not Entitled to Summary Judgment on T-Mobile’s Tower Claims, Judge Told

U.S. District Judge Cathy Seibel for Southern New York in White Plains should deny as premature the request of Chestnut Ridge, New York, to move for summary judgment against T-Mobile, Robert Gaudioso of Snyder & Snyder, T-Mobile’s counsel, wrote the judge in a letter Tuesday (docket 7:23-cv-05852).

T-Mobile’s seeks a finding that the village’s denials of its application to build a 105-foot-tall cell tower were illegal because they weren’t based on substantial evidence contained in the written record (see 2307110008). It alleges that Chestnut Ridge and its boards “have effectively prohibited” T-Mobile’s personal wireless services. It also alleges that they “unreasonably discriminated” against T-Mobile in favor of its “functionally equivalent competitors,” and that they “unreasonably delayed” T-Mobile’s application, or failed to support their denials, with written decisions within a reasonable period of time.

The plain language of Rule 56(c) requires adequate time for discovery before the entry of summary judgment, said T-Mobile’s opposition letter. The U.S. Supreme Court also has recognized that Rule 56(d)(l) prevents parties from being railroaded by premature summary judgment motions if the nonmoving party, in this case T-Mobile, hasn’t had an opportunity to make full discovery necessary to present facts essential to justify its opposition, it said.

Though T-Mobile’s substantial evidence and Article 78 claims are to be determined based on the administrative record, its remaining claims under Sections 253 and 332(c)(7)(B) of the Telecommunications Act of 1996 “are subject to a de novo review,” said T-Mobile’s opposition letter. The court isn’t limited to the record compiled by the state or local authority, it said. T-Mobile is entitled to discovery on counts II through VI asserted against each defendant, it said.

“Tellingly,” said T-Mobile’s opposition letter, Chestnut Ridge and its boards “fail to point to any evidence” demonstrating or otherwise explaining “their entitlement to summary judgment” on counts II through VI. Their reliance solely on their “unsubstantiated allegations” -- that they didn’t unreasonably discriminate among providers of functionally equivalent services or didn’t prohibit T-Mobile’s provision of personal wireless services -- “falls woefully short of the demanding summary judgment standard,” it said. Chestnut Ridge’s “own contributions to the administrative record,” and those of its boards, establish that they aren’t entitled to summary judgment, it said.

The Chestnut Ridge planning and zoning boards allege they are entitled to summary judgment because neither has taken final action on T-Mobile’s application, and because they issued their denials within the TCA’s “extended shot,” said T-Mobile’s opposition letter. “In other words, they want to have their cake and eat it too,” it said. Such an “impossible indulgence” is completely unsupported by the facts of this case, by federal and state law and by the defendants' “own prior precedent,” it said.

The “crux” of the boards' argument “is that they each issued a decision” on T-Mobile application, said the opposition letter. But such decisions don’t constitute final acts because those boards “lacked jurisdiction” to approve the application, it said.

Under New York law, a board's review of an application in a “quasi-judicial nature” -- as was the case with Chestnut Ridge's review here -- “must adhere to its own past precedent,” said T-Mobile’s opposition letter. It’s undisputed that the zoning, planning and village boards granted T-Mobile’s prior application for cell tower on three prior occasions, it said.

The prior approvals also establish that the cell tower conforms with the village code requirements, said T-Mobile’s opposition letter. The defendants' failure to adhere to the prior approvals and to provide sufficient reasons for reaching a different result on essentially the same facts establishes that the denials “are arbitrary and capricious,” it said.

Even if the court were to dismiss T-Mobile’ substantial evidence claims, all the defendants “must still defend against the remaining TCA claims,” said T-Mobile’s opposition letter. Due to this fact, and that discovery wouldn’t be needed on the substantial evidence claims, the defendants wouldn’t be prejudiced by the court's denial of their request to move for summary judgment, it said. Any argument that the defendants didn’t render a final decision on the merits of the application, and thus should be provided another opportunity to review the application, should be rejected, it said.