Opinion
Index No. 501385/2020
06-24-2022
Jessica Gondolfo, ROBERT CAVALLARO, TODD MCCORMACK, EDWARD WECHSLER, JOSEPH ARMISTO, and GERARD HANRAHAN, Petitioners-Plaintiffs, v. Town of Carmel, TOWN OF CARMEL TOWN BOARD TOWN OF CARMEL PLANNING BOARD, TOWN OF CARMEL ZONING BOARD OF APPEALS, MICHAEL CARNAZZA, in his official capacity as Town of Carmel Building Inspector NEW YORK SMSA LIMITED PARTNERSHIP d/b/a/ VERIZON WIRELESS, HOMELAND TOWERS, LLC and MAPLE HILL ESTATES HOMEOWNES ASSOCIATION, INC., Respondents-Defendants.
Knauf Shaw LLP (Jonathan Ross Tantillo, Esq.) for Petitioners/Plaintiffs
Knauf Shaw LLP (Jonathan Ross Tantillo, Esq.) for Petitioners/Plaintiffs
Costello & Folchetti LLP (Gregory Larkin Folchetti, Esq.) for Town Respondents/Defendants
Snyder & Snyder, LLP (Douglas W. Warden, Esq.) for Cell Tower Respondents/Defendants
Handel & Carlini, LLP (Anthony Carlos Carlini, Esq.) for HOA Respondent/Defendant
Hon. Thomas R. Davis, J.S.C.
In a dispute over the construction of a cell tower - permission for which was given by the Town Board of the Town of Carmel in a consent order to settle litigation in Federal Court - Petitioners question the authority of the Town Board to enter into the settlement given that the Zoning Board of Appeals and Planning Board never voted on the issue. The Court finds that the Town Board overstepped its authority in agreeing to allow the cell tower to be built without Zoning Board of Appeals or Planning Board review or vote.
This Decision and Order determines the Petition/Complaint (Motion Seq. No.1), the Plaintiffs'-Petitioners' motion for a preliminary injunction (Motion Seq. #2) and the motion by the Defendants, New York SMSA Limited Partnership d/b/a Verizon Wireless and Homeland Towers, LLC, to dismiss the Petition/Complaint (Motion Seq. #3).
The following papers were read and considered in determining the aforesaid motions:
On Motion Seq. #1:
Petitioners' Notice of Petition, Petition and supporting papers identified as NYSCEF document numbers 1-4, 45, 65; and
The Town Defendants' responding papers identified as NYSCEF document numbers 36-44, 70; and
Petitioners' reply papers identified as NYSCEF document number 71.
On Motion Seq. #2:
Petitioners' motion papers identified as NYSCEF document numbers 15-16;
The opposition papers on behalf of New York SMSA Limited Partnership d/b/a Verizon Wireless and Homeland Towers, LLC identified as NYSCEF document numbers 46-66;
Petitioners' reply papers identified as NYSCEF document numbers 68-69.
On Motion Seq. #3:
Motion papers on behalf of New York SMSA Limited Partnership d/b/a Verizon Wireless and Homeland Towers, LLC identified as NYSCEF document numbers 72-78; and
Petitioners' opposition papers identified as NYSCEF document numbers 79-80; and
Movants' reply papers identified as NYSCEF document numbers 81-83.
BACKGROUND
This is a hybrid CPLR Article 78 proceeding and CPLR §3001 declaratory judgment action, challenging the issuance of a Building Permit for the construction of a 140-foot cell phone tower at or near Walton Drive in the Town of Carmel, New York. The Building Permit was issued pursuant to a "Stipulation of Settlement and Consent Order" dated May 20, 2020 in an action that was pending in the United States District Court for the Southern District of New York, bearing Docket No. 19-cv-10793 (PMH) (JCM) (hereinafter, "the Federal Action"). The Federal Action was brought by New York SMSA Limited Partnership d/b/a Verizon Wireless (hereinafter "Verizon") and Homeland Towers, LLC (hereinafter "Homeland"), as Plaintiffs, against the Town of Carmel, the Town of Carmel Town Board, the Town of Carmel Planning Board, the Town of Carmel Zoning Board of Appeals, the Town of Carmel Environmental Conservation Board and Michael Carnazza, the Town of Carmel Building Inspector, as Defendants.
In the Federal Action, which was commenced on November 21, 2019, Verizon and Homeland contended that the Town of Carmel Planning Board and Zoning Board of Appeals ("ZBA") wrongfully denied Verizon and Homeland's applications for site plan approval, a special use permit and variances relating to Verizon and Homeland's proposals to build two cell phone towers, one each at 254 Croton Falls Road in the Town of Carmel (the "Casse Property") and 36 Dixon Road in the Town of Carmel (the "Dixon Property").
Six months after commencement of the Federal Action, a "Stipulation of Settlement and Consent Order" (hereinafter, the "Federal Consent Order") was executed in the Federal Action, settling the action. The settlement was "so-ordered" by United States District Magistrate, Hon. Philip M. Halpern. Under the terms of the Federal Consent Order, Verizon and Homeland agreed, among other things, to withdraw their application for a cell tower at the Casse Property, while the Town Defendants agreed, among other things, to issue a Building Permit for the cell tower at the Dixon Property and also for a cell tower at an entirely separate location on Walton Drive in the Town of Carmel ("Walton Drive cell tower"). No Planning Board or ZBA review (for site plan, special use permit or variances) had been undertaken for a cell tower at the Walton Drive location prior to the Consent Order being executed, nor any vote taken by the respective boards.
In addition to the grant of the Building Permits for those two locations, the Federal Consent Order provided, at paragraph 6 thereof:
"[Town] Defendants shall issue a certificate of compliance within 15 days of Plaintiffs' [Verizon and Homeland's] request (including, third-party inspection reports, engineering reports evidencing compliance with the prescribed manner of construction, as-built drawings, elevation certificate showing compliance with height limitations and such other documents as may be reasonably requested by Defendants) for such issuance and upon proper and complete construction of each of the Facilities. Upon issuance of the certificate of compliance, each of the Facilities shall be deemed a permitted use as if it had all necessary permits required by the Town. Other than a Building Permit no other Town permits or approvals shall be required.." [Emphasis added.]
Neither the Town of Carmel Planning Board nor the Town of Carmel ZBA met or voted on whether to agree to the terms of the Federal Consent Order, whether to settle the Federal Action or whether to bypass all review of a cell tower on Walton Drive. In fact, the evidence indicates that neither the Planning Board nor ZBA considered the Federal Consent Order at all. Instead, only the Town Board met and voted to settle the Federal Action pursuant to the terms set forth in the Federal Consent Order.
A Building Permit for the Walton Drive tower was issued on July 23, 2020.
The Petitioners-Plaintiffs in the instant action ("the Petitioners") are all residents who reside either on Walton Road or a neighboring road alleged to be in close proximity to the proposed cell tower. They commenced the instant proceeding/action on October 14, 2020. In their Notice of Petition, they seek CPLR Article 78 relief and CPLR §3001 relief. Through the Article 78, they seek to, "vacate[], annul[], and declar[e] illegal, unconstitutional, invalid, null and/or void any approvals purportedly issued" for the cell tower on Walton Drive, as well as an order that if Verizon and Homeland ("the Wireless Defendants") wish to proceed with the development of the cell tower on Walton Drive, they must first obtain the necessary approvals from the Town of Carmel Planning Board and ZBA. Through CPLR §3001, they seek a judgment declaring that the Town Defendants were without power to enter into the Federal Consent Order, that the cell Tower on Walton Drive lacks the necessary approvals and that no construction can proceed on that cell tower until all necessary approvals are granted.
Shortly after this action/proceeding was commenced, the Petitioners sought in this Court a preliminary injunction to prevent any construction on the Walton Drive cell tower site until final determination of this proceeding. Before the order to show cause on that application was signed, the Wireless Defendants removed this action/proceeding to federal court on October 29, 2020, alleging that the action involved questions of federal law. On motion of the Petitioners, the federal court remanded the action back to state court by Opinion and Order dated February 8, 2021.
This Court (Hon. Gina C. Capone, J.S.C.) then signed the Petitioners' pending order to show cause with a temporary restraining order on March 3, 2021.
The Town Defendants filed an Amended Answer on March 10, 2021 and their Certified Return on March 17, 2021. The Wireless Defendants filed a motion to dismiss the Petition/Complaint on May 17, 2021. By mid-June 2021, all parties had submitted their respective supporting and opposition papers, including memoranda of law, on the order to show cause for a preliminary injunction, the motion to dismiss and the Article 78 proceeding.
However, on July 22, 2021, the Wireless Defendants filed a motion for a stay of proceedings in this Court based on the Petitioners having brought a Rule 60(b) motion in federal court for relief from the Federal Consent Order. The motion for a stay of proceedings in this Court was granted by Decision and Order dated September 15, 2021 (Hon. Gina C. Capone, J.S.C.)
The federal court denied the Petitioners' Rule 60(b) motion by Memorandum Opinion and Order dated March 1, 2022. Upon motion by the Wireless Defendants to lift this Court's stay, this Court issued an Order on May 10, 2022 lifting the stay, at which time the pending order to show cause for a preliminary injunction, motion to dismiss the Petition/Complaint and the Petition/Complaint were deemed fully submitted. Those motions and the Petition/Complaint are now decided as follows:
THE WIRELESS DEFENDANTS' MOTION TO DISMISS (MOTION # 3)
The Wireless Defendants have moved to dismiss the Petition/Complaint for failure to state a cause of action. Each basis they assert in support of their motion is discussed as follows:
Standing
The Wireless Defendants assert that the Petitioners lack standing because they do not allege that they suffered or will suffer any special damages. They further allege that the Petitioners are not entitled to a specific view and that interference with views and/or light and air are insufficient bases to establish standing.
Petitioners assert that they do not have to allege special damages to establish their standing. They assert that if they reside in close enough proximity to the proposed site such that under the local zoning and planning laws they would be entitled to receive notice of the project, and if the types of harm they allege are within the zones of interest of the statutes under which they are suing, their standing is presumed. They allege that they meet this standard.
In particular, Petitioners cite the Town of Carmel Code §§156-57(B) and 156-61(E)(2) as requiring notification of any site plan application and ZBA application to any person residing within 500 feet of the proposed cell tower location.
Petitioner, Robert Cavallaro, attests that he owns and resides at property that is less than 200 feet from the proposed location of the tower, and that the rest of the Petitioners also live in close proximity to the location of the tower. For purposes of a motion to dismiss for failure to state a cause of action, these allegations must be accepted as true. (See Marchionni v. Drexler, 22 A.D.3d 814 [2d Dep't 2005]; Leon v. Martinez, 84 N.Y.2d 83 [1994].)
"The fact that a person received, or would be entitled to receive, mandatory notice of an administrative hearing because it owns property adjacent or very close to the property in issue gives rise to a presumption of standing in a zoning case [ ] Moreover, Petitioner must also satisfy the other half of the test for standing to seek judicial review of administrative action-that 'the interest asserted is arguably within the zone of interest to be protected by the statute.' (Matter of Dairylea Coop. v Walkley, 38 N.Y.2d 6, 9, supra.)" Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406 [1987].
The Petitioners here would be entitled to receive notice of site plan and zoning variance applications for the Walton Drive cell tower under the Town of Carmel Zoning Code sections referenced above. Moreover, contrary to the Wireless Defendants' contention, it is not a disrupted view in general, nor an interference with his light or air that Mr. Cavallaro alleges as the harm he will suffer. He alleges harm in the nature of noise, traffic, the impacts of construction and demolition and the aesthetics of placing a cell tower 110-feet high in the middle of a residential neighborhood, all of which are within the zone of interest to be protected by the statutes under which the Petitioners are suing (e.g., SEQRA, the local zoning ordinances, etc.). Therefore, the Petitioners' standing is presumed and they do not have to allege specific or special harm or damages. (See, also, Matter of Youngewirth, v. Town of Ramapo Town Board, 98 A.D.3d 678 [2d Dep't 2012].)
The Wireless Defendants' citation to Lucas v. Planning Board of the Town of LaGrange, 7 F.Supp.2d 310 [SDNY 1998] on this issue is unavailing for two reasons. First, the court in Lucas specifically indicated that the allegation of the Petitioners' lack of standing based on their failure to allege an injury in fact was not within the scope of the court's inquiry in that case. Therefore, the court's decision in Lucas is not relevant on this issue. Second, the court in Lucas noted that the Respondents had provided proof that the Petitioners' properties were nowhere near the proposed cell tower site such that they were not within any zone of injury sought to be protected by SEQRA. Here, the cell tower at issue is alleged to be in the midst of a residential neighborhood, and the Petitioners are alleged to own property and reside in close proximity to its proposed location.
Therefore, the Petitioners have adequately alleged their standing.
Collateral Attack on Federal Consent Order
The Wireless Defendants contend that the Petitioners' action must be dismissed because it constitutes an improper collateral attack on a Federal Consent Order.
First, while both the Wireless Defendants and the Town Defendants characterize the relief sought by the Petitioners as being the nullification of the Federal Consent Order, in neither the Notice of Petition nor the "wherefore" clauses of the Petition/Complaint is that relief actually sought. The only location where the Petitioners frame the relief they seek as including the nullification of the Federal Consent Order is in paragraph "1" of their Petition/Complaint, which is under the heading "Introduction". Everywhere else in the Petition/Complaint and Notice of Petition, the relief sought is in the nature of nullifying or declaring unlawful the actions taken by the Town Board of the Town of Carmel in entering into the Federal Consent Order by virtue of its lack of authority to do so and the nullification of the approvals issued by them, not the nullification of the Federal Consent Order. Therefore, this Court reads the Petition/Complaint in terms of what is contained within the Notice of Petition and the prayer for relief, and not what is contained in the "introduction" paragraph of the Petition/Complaint.
Second, the existence of a Federal Stipulation of Settlement and Consent Order ("Consent Order" or "Federal Consent Order") is not an automatic bar to this Court considering the Petitioners' state law claims. To the contrary, Federal District Court Judge Seibel, in remanding this case back to State Court, recognized that the Federal Court did not have jurisdiction over the state law claims being made in this action. Judge Seibel also recognized that the Petitioners in this state court action were "challenging" the Federal Consent Order. (See Judge Seibel's February 8, 2021 Opinion and Order, "the Court fails to see how Plaintiffs' decision to avail themselves of an alternative means of challenging the consent order could provide the Court with subject matter jurisdiction here, where it is otherwise lacking".) Given Judge Seibel's discussion in her Opinion, it is clear that the federal court recognized that a decision in this Court could effectively undermine the continued viability of the Federal Consent Order.
In that regard, it is notable that Judge Seibel cited several federal cases in which the same outcome was an express possibility, and in each case, the federal court found there was no bar to remanding the case to state court. (See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28 [2002]; Metheny v. Becker, 352 F.3d 168 [1st Circ. 2003]; In re Cnty. Collector, 96 F.3d 890, 902 [7th Cir. 1996].) In re Cnty. Collector, Id., cited by Judge Seibel, is particularly notable because the central issue there was the same as here-whether the municipal authorities who had entered into a federal Consent Decree had had the authority, under state law, to do so.
In that case, third-party taxpayers who had not been parties to the federal action in which the Consent Decree was issued later challenged, in state court, the authority of the municipal Defendants to agree to the terms they did in the Consent Decree and to take actions that they did based on that Consent Decree. (In re County Collector, 96 F.3d 890 [7th Cir. 1996].) In remanding the case back to state court to allow the Plaintiffs their "day in court" on their state law claims, the federal circuit court observed that a federal Consent Decree is not, strictly speaking, an order of the federal court in which the merits and legal liabilities of the parties have necessarily been determined, but rather, "a contract wrapped in a judgment" which has "attributes of both". Most notably, as it pertains to this case, was the following discussion of the federal Consent Decree by the circuit court:
"'Because a consent decree's force comes from agreement rather than positive law, the decree depends on the parties' authority to give assent.... Third parties, not even colorably bound by the decree,... should be able to challenge the authority of the person assenting to the decree. Some rules of law are designed to limit the authority of public officeholders, to make them return to other branches of government or to the voters for permission to engage in certain acts. They may chafe at these restraints and seek to evade them; if they do, the people for whose protection the restraints were created are entitled to repair to the forums designed to hear arguments that officeholders have acted without authority.'" In re County Collector, supra, citing Dunn v. Carey, 808 F.2d 555 [7th Cir. 1986]. [Emphasis in original.]
The Petitioners in this action are seeking to do precisely what was discussed in In re County Collector, a case specifically cited by Judge Seibel in her Opinion and Order remanding this case back to this Court. They are challenging, among other things, the Town of Carmel Town Board's authority to agree to the terms it did in the Federal Consent Order here, and whether doing so unlawfully usurped the authority of the ZBA and Planning Board. Therefore, the Wireless Defendants' assertion that this action must be dismissed because it constitutes a "collateral attack" on a Federal Consent Order has no merit.
Third, contrary to the Wireless Defendants' assertion, res judicata does not bar the Petitioners' claims in this case because neither the claims at issue in the underlying Federal Action, nor the parties, were the same.
"'Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action' (Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347, 690 N.Y.S.2d 478, 712 N.E.2d 647; see Pawling Lake Prop. Owners Assn., Inc. v. Greiner, 72 A.D.3d 665, 668, 897 N.Y.S.2d 729)." Mooney v. Manhattan Occupational, Physical and Speech Therapies, PLLC, 166 A.D.3d 957 [2d Dep't 2018].
A review of the Wireless Defendants' Complaint in the Federal Action indicates that the claims in that action concerned the Town of Carmel ZBA's denial of variances, and the Planning Board's denial of special use permits, for two proposed cell towers-one to be located on Croton Falls Drive and one to be located on Dixon Drive. The Wireless Defendants asserted in the Federal Action that the ZBA and Planning Board's respective denials of the required variances and permits for those two proposed tower locations violated the TCA in various ways. There were no allegations made in the Federal Action about a proposed cell tower on Walton Drive, and understandably so: When that action was commenced, a cell tower had not been proposed to be built on Walton Drive and had, therefore, not been before the ZBA or Planning Board for consideration of variances or permits.
In contrast, the instant action involves only the issue of the proposed cell tower on Walton Drive. Thus, the instant action involves an entirely new matter, which is the cell tower proposed to be located on Walton Drive and whether the approval of same by the Town Board in a Stipulation of Settlement was proper without the proposal ever being reviewed by the ZBA and Planning Board.
Further, there was not an identity of parties between the Federal Action and the instant one as required for res judicata to apply. Recognizing that the Petitioners in this case were not parties to the Federal Action, the Wireless Defendants rely on the concept of "privity" to establish identify of parties.
"In the context of collateral estoppel, privity does not have a single well-defined meaning (Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 667, 657 N.Y.S.2d 581, 679 N.E.2d 1061 [1997]). Rather, privity is" 'an amorphous concept not easy of application' * * * and 'includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and [those who are] coparties to a prior action'" (id., at 667-668, 657 N.Y.S.2d 581, 679 N.E.2d 1061 [citations omitted]). In addressing privity, courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances. Doubts should be resolved against imposing preclusion to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate." Buechel v. Bain, 97 N.Y.2d 295 [2001].
Here, the Wireless Defendants assert that the Petitioners are in privity with the Town Defendants in the Federal Action because the Town Defendants adequately represented their interests as residents of the Town. The Wireless Defendants rely, again, on Lucas v. Planning Board of the Town of LaGrange, supra., for this assertion. That reliance is misplaced because the facts and circumstances in that case are entirely different than they are here.
In Lucas, the cell company providers had proposed constructing two towers at particular locations in the Town of LaGrange. After applications had been presented for those two towers and some negotiations took place, the cell providers had narrowed it down to one tower with co-located antenna. Thinking that the town was proceeding in good faith, the cell providers undertook various efforts to present their full applications for the tower to the Town, but the Town clearly had other intentions. It undertook its own studies, undertook initial SEQRA review and shortly thereafter, issued a positive SEQRA declaration (on patently questionable bases). It also simultaneously issued a moratorium on the construction of any cell towers in the Town. The evidence indicated that the town was determined to refuse to allow construction of any cell tower at all, for an indefinite duration.
The cell tower companies brought suit in Federal court. The Town and its agencies defended the action, raising numerous defenses, but ultimately settled the action and agreed to issue requisite permits for the one tower that had been under consideration, albeit at a lower height, and exempted those cell providers from the moratorium. When town residents later challenged the settlement, the court held that those residents were barred by res judicata from bringing their action, in part because they were in privity with the Town. The Court noted that, "courts have held consistently that claims by private Plaintiff-citizens may be precluded by prior state litigation to the extent that such claims do not seek redress for private interests or individual rights above and beyond the general public interest asserted by the state in the prior proceeding."
The court in Lucas found there to be no private or individual interests above and beyond the general public interest because the location of the proposed cell tower was on a ridgeline in a rural part of the Town, and the Town was concerned about the "aesthetic affect on the residents of the municipality generally." The court in Lucas analogized this to the interest in "views" arising under SEQRA as being an interest of a "general public character." The court noted that, generally speaking, residents of a Town do not have a specific, private interest in a particular view. The residents, in challenging the settlement in federal court, did not claim any new or individual interests that the Town had not already raised in the previous action and defended.
In this case, the facts are entirely different. The cell tower at issue in this case is not the same tower that had been the subject of the litigation in the Federal Action, whereas in Lucas it was. Whatever interests and defenses the Town may have asserted in the Federal Action were not in regard to the cell tower at issue here. The Petitioners' interests in the Croton Falls Drive and Dixon Drive towers cannot be said to be related to the tower that is at issue in this case and, consequently, cannot be the same interests of the Petitioners in this action. For example, the very fact that the tower in this case is in an entirely different location than the towers proposed in the Federal Action necessarily means that the SEQRA review, Planning Board review and ZBA review would likely be different here than they were with respect to the towers at issue in the Federal Action. The environmental conditions in one location can be very different from another location, rendering SEQRA review, alone, an entirely different matter. Additionally, the height of a tower at one location, and the availability or need for screening and/or disguising the tower can be vastly different from one location to the next. Therefore, the fact that the Town defended its findings with respect to locations on Croton Falls Drive and Dixon Drive in the Federal Action here does not mean that it represented the interests of the Petitioners in this case with respect to a cell tower on Walton Drive.
Moreover, the location of the cell tower in this action is alleged to be in the middle of a residential neighborhood, and the neighbors who live in close proximity to it are the Petitioners in this case. The aesthetic impact of a tower in the middle of a residential neighborhood and its impacts on those specific neighbors is entirely different than the general, aesthetic distaste for a cell tower along a rural ridgeline, as was the circumstance in Lucas. The former implicates individual, private interests of those living in the residential neighborhood where the tower is proposed to be located. The latter does not.
Finally, pursuant to Buechel v. Bain, supra, to the extent there are any doubts about whether privity exists between the Town of Carmel and the Petitioners in this case, they should be resolved against imposing preclusion.
As a result, res judicata is no bar to the instant action.
The Consent Order as Preempting State and Local Regulations
The Wireless Defendants assert that each one of the "improprieties under state law" pursuant to which the Petitioners bring their action is preempted by the Federal Consent Order and, therefore, the Complaint must be dismissed. The Defendants do not articulate precisely which state laws or improprieties are specifically preempted, but they make reference to the "state and municipal zoning procedures relating to hearings and environmental review." (Pg. 6 of NYSCEF Doc. No. 78.) They cite the federal Telecommunications Act of 1996 (the "TCA") as the source of that preemption, and they rely, again, on the Lucas case as support for their argument. Their reliance is, again, misplaced.
Not only are the facts in Luca s completely different than in this action, contrary to the Wireless Defendants' claim, Lucas does not stand for the broad proposition that the TCA preempts every state and local zoning provision and procedure. The TCA expressly preserves local zoning authority:
"(7) Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 USCA §332(7)(A).
The purpose of the limitations in the TCA is to ensure that the local zoning authority(ies):
"(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 USCA §332 (c)(7)(B)(i).
The specific requirements of the TCA applicable to local zoning authorities which are then set forth include the timing of the zoning decisions and the form they must take (in writing, etc.). Clearly, however, nothing in the TCA prohibits a local zoning authority from applying state environmental rules, nor from requiring the submission of site plans, nor from imposing restrictions on the placement, height, screening, etc. of a proposed cell tower, so long as the effect of the zoning authority's actions do not run afoul of the limitations set forth in 47 USCA §332 (c)(7)(B)(i), cited above.
That this is the well-recognized construction of the TCA is plain. (See, e.g., Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 637-640 [2d Cir. 1999]; Metheny v. Becker, 352 F.3d 458 [1st Cir. 2003]; Omnipoint Communications, Inc. v. Town of LaGrange, 658 F.Supp.2d 539 [SDNY 2009]; Matter of Site Acquisitions v. Town of New Scotland, 2 A.D.3d 1135 [3d Dep't 3002].)
Review of the Petition/Complaint in this action reveals that it is the very things which local zoning authorities are permitted to do under the TCA which the Petitioners claim should have been done that were not. Ultimately, they seek a decision, order and judgment from the court finding that the Town of Carmel had no authority to enter into the Federal Consent Order on behalf of the ZBA and Planning Board, and that no building or other permit should have issued for a cell tower on Walton Drive without applications for site plan, special permit and variances being reviewed by the Planning and Zoning Boards and a SEQRA review undertaken. In short, none of the planning and zoning laws that the Petitioners seek to require be undertaken are preempted by the TCA.
Ultimately, if it turns out that the application for a cell tower at the Walton Drive site is properly reviewed and approved by the local Planning and Zoning Boards, then the matter should conclude. That is, in fact, all the Petitioners seek here-legitimate review of a cell tower site that has, to-date, not occurred. The request for reviews of this nature does not run afoul of the TCA.
The Wireless Defendants' motion on this ground has no merit.
Exhaustion of Administrative Remedies
The Wireless Defendants argue that the Petitioners' action is barred because they failed to exhaust their administrative remedies. The Wireless Defendants assert that before resorting to Article 78 relief, the Petitioners were required to ask the ZBA to review the issuance of the Building Permit(s) called for by the Federal Consent Order. This argument fails.
The crux of the Petitioners' claims is that the Town of Carmel Town Board usurped the authority of the ZBA and Planning Board by entering into the Federal Consent Order. It is asserted that the Town Board was the only entity who took a vote and then settled the Federal Action on terms that included bypassing the ZBA and Planning Board review altogether and agreeing to the issuance of a Building Permit. Given those allegations, this Court agrees that Katz v. Board of Appeals of Village of Kings Point, 21 A.D.2d 693 [2d Dep't 1964] controls. A Board of Appeals (here, the ZBA) has no jurisdiction to entertain an appeal from a decision of a legislative body (here, the Town Board), because the Town Board is not an administrative official over whom the ZBA is charged with appellate authority. (See, Town Law §267-a). Instead, Article 78 is the proper vehicle for relief.
Simply asserting that the Building Inspector was also a party to the Federal Action is, in this Court's view, putting form over substance. There is no indication that the Building Inspector made an administrative decision to either enter into the Federal Consent Order or to issue a Building Permit for the site at Walton Drive. Rather, it is clear that the Town Board, and only the Town Board, deliberated and made a decision to settle the Federal Action pursuant to terms set forth in the Consent Order, which included the issuance of a Building Permit for the Walton Drive site. This is evidenced by the minutes referenced by the Wireless Defendants in their motion (see pg. 13 of Wireless Defendants' Memorandum of Law in Support of Motion to Dismiss, NYSCEF Doc. No. 78). There is no indication that the Building Inspector made any determination in this regard.
The Petitioners' proper remedy here is CPLR Article 78. This proceeding/action is not barred.
SEQRA Challenge
The Wireless Defendants assert that the Complaint's allegations regarding alleged SEQRA violations are unfounded and, therefore, fail to state a cause of action. Specifically, they allege that the Federal Consent Order, as an "action of any court" was a "Type II" action under SEQRA and, therefore, does not require any environmental review. They rely on Lucas, supra., for their argument.
Petitioners allege that an "action" as defined under SEQRA is the "project or physical activity" and not the individual procedural mechanism such as the Federal Consent Order. Further, they argue that the project or physical activity at issue here is the construction of the cell tower at the Walton Drive location, which is a Type I action under SEQRA and still needs to go through proper review, which the Town Board unlawfully bypassed through the Consent Order.
The law in the Second Department is that a judicially approved settlement, which the Federal Consent Order in this case is, does not fall within the Type II exemption for court actions under SEQRA. (See Abate v. City of Yonkers, 264 A.D.2d 517 [2d Dep't 1999]; Doremus v. Town of Oyster Bay, 274 A.D.2d 390 [2d Dep't 2000].)
Therefore, there is no basis to dismiss the SEQRA challenges found in the Petition/Complaint.
Open Meetings Law Challenges
The Wireless Defendants assert that the Petitioners' claims regarding violations of the Open Meetings Law (Public Officers Law, Article 7) have no merit because the ZBA was not required to hold a vote to approve the settlement in the Federal Action. They contend that only the municipality itself (i.e., the Town Board) was required to authorize the settlement because only the municipality itself was the proper Defendant in the Federal Action. They assert that the Town Board did vote on approving the settlement in the Federal Action at a meeting open to the public and, therefore, there is no violation of the Open Meetings Law.
Though not relevant to this particular argument, the Court does not agree that the Town Board (i.e., the municipality itself) was the only necessary Defendant to the Federal Action. This issue will be discussed below, in the section determining Motion #1.
Faced with the evidence provided on the Wireless Defendants' motion, the Petitioners concede that the Town Board met and voted in public on whether to approve the settlement of the Federal Action . Nonetheless, they contend that the Open Meetings Law was still violated because the Town Board did not, prior to that meeting, post the proposed resolution(s) approving the settlement on their website, in violation of Public Officers Law §103(e).
The Petitioners do not concede, however, that it was only the Town Board who was required to vote on the settlement. As noted in footnote "1", this will be discussed below.
In reply, the Wireless Defendants assert that Public Officers Law §103(e) leaves it to the discretion of the Town whether to post any documents on the website in advance of a meeting, thus no claim is stated.
The version of Public Officers Law §103(e) in effect at the time the Town Board considered the resolution at issue in this case read:
Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable as determined by the agency or the department prior to or at or at the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefor in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable as determined by the agency or the department prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.
There is a paucity of case law interpreting this statutory provision. On the one hand, the legislature opted for the mandatory language "shall" regarding the posting of records online prior to a meeting where the municipality maintains a regularly and routinely updated website and utilizes a high-speed internet connection. On the other hand, the word "shall" is followed by the words "to the extent practicable as determined by the agency or department prior to the meeting."
The Petitioners offer a Supreme Court case out of Seneca County which held that this statutory provision requires the agency or department to make a determination as to why it was not practicable to post the materials prior to the meeting, otherwise an agency could simply state that it was not practicable, defeating the purpose of §103(e). The Wireless Defendants do not comment on that case in their reply. They simply argue that the plain language of the statute gives discretion to the agency or department on whether or not to post any materials in advance of a meeting.
The Court cannot agree that there is, as suggested by the Wireless Defendants, unfettered discretion on the part of the municipality as to whether to post documents online in advance of a meeting. Giving such unfettered discretion, without requiring so much as an explanation as to why it was not practicable to post the records in advance of the meeting, renders the word "shall" meaningless. Statutes must be construed in a manner that gives meaning to all the parts thereof. (See Riegert Apartments Corp. v. Planning Board of Town of Clarkstown, 57 N.Y.2d 206 [1982].).
The only way to give meaning to the word "shall" in this statute is to put some onus on the municipality to demonstrate that it actually made a determination in advance of the meeting that it was not practicable to post the records in advance, and to explain why. Without that requirement, this Court agrees that the "shall" language would be rendered pointless.
To-date, the Town Defendants have not presented any evidence that they posted any documents related to the settlement of the Federal Action, including the proposed resolution approving such settlement, online in advance of the meeting held on December 15, 2020. Nor have they argued that the proposed resolution was not prepared in advance of the meeting. Nor have they provided any evidence that the Town Board had decided that it was not practicable to post such materials in advance of the meeting.
Therefore, the Petitioners' cause of action pursuant to this statutory provision has merit. There is no basis for its dismissal.
General Municipal Law §239-m Challenges
The Wireless Defendants assert that the Petitioners' claims that the Federal Consent Order violates General Municipal Law §239-m have no merit because, through the Consent Order, the federal court directed the Town to issue the permits, and the federal court is not a "referring body" within the meaning of GML §239-m. They further argue that building permits are not subject to GML §239-m.
The Petitioners do not offer any opposition to these arguments.
GML §239-m requires the referral of applications to the County Planning Department when they pertain to real property that is located within 500 feet of certain, enumerated County land (parks, highway easements, streams, etc.).
Given that there are no factual allegations in the Complaint/Petition establishing that the Wireless Defendants proposed site on Walton Drive meets any of these criteria, and Petitioners offer no opposition to the motion on this point, this claim (the Fifth Cause of Action in the Complaint/Petition) is properly dismissed.
Having found that the Wireless Defendants' motion to dismiss the Petitioners' Petition/Complaint is granted only with respect to the Fifth Cause of Action, the Court turns to the relief requested in the Petition/Complaint.
THE ARTICLE 78 PROCEEDING AND DECLARATORY JUDGMENT ACTION (MOTION #1)
In response to the Petition/Complaint, an Amended Answer dated March 10, 2021, was filed and served on behalf of the Town Defendants (Town of Carmel, Town of Carmel Town Board, Town of Carmel Planning Board, Town of Carmel Zoning Board of Appeals and Michael Carnazza). Also filed and served on behalf of the Town Defendants was the Certified Return in relation to the Article 78 proceeding. No Affidavits by anyone with personal knowledge were submitted by anyone on behalf of any of the Town Defendants. By letter from the Wireless Defendants' counsel dated March 30, 2022, the Court was informed that all parties agreed to lift the stay that was then in effect in the action and that all of the other matters still pending (motions numbered 1, 2 and 3) had been fully briefed.
Therefore, the Article 78 proceeding is ripe for review.
The Petitioners assert seven causes of action in their Petition/Complaint. As already discussed, the Fifth Cause of Action is properly dismissed. The Seventh Cause of Action appears to be a catchall claim that the Respondents' actions were "otherwise in violation of other laws" and does not independently assert a claim for relief. Each remaining cause of action is addressed as follows.
First Cause of Action
The Petitioners' first cause of action seeks a finding that the Town of Carmel Town Board's execution of the Federal Consent Order was, "arbitrary, capricious, unlawful and an abuse of discretion," as well as a determination that the proposed cell tower at Walton Drive does not comply with the Town of Carmel Zoning Code for several reasons including the following: the Consent Order was entered into by only the Town Board who didn't have authority to enter into it; no vote was taken by the ZBA or Planning Board to enter into or approve the Consent Order; no public hearings were held regarding a cell tower at the Walton Drive location, in violation of the zoning code, the Open Meetings Law and the New York State Town Law; no site plan was submitted for review; no application to the ZBA was made for requisite variances and special use permit; and Town Councilman Lombardi failed to recuse himself from the Town Board vote to approve the Consent Order despite having a conflict of interest.
Other than the issue of the conflict of interest by Councilman Lombardi, which will be discussed separately, each of the other bases offered in support of this Cause of Action is driven primarily by the argument in Petitioners' Memorandum of Law that the Town Board usurped the authority of the ZBA and Planning Board, in entering into the Federal Consent Order.
The Petitioners assert that under Town Law §§267 and 271, State law authorizes the creation of ZBAs and Planning Boards and that once the respective boards are created in a town, they are vested with powers under Town Law §§267-b, 274-a and 274-b that they and only they can exercise, to the exclusion of the local legislative body (i.e., the Town Board). Among those powers is the issuance of variances and special use permits (in the case of ZBAs) and site plan review (in the case of Planning Boards). The Petitioners argue that the ZBA and Planning Board can only exercise their authority by majority vote of their members. They further assert that the context of litigation does not empower a Town Board to exercise the authority of a ZBA or Planning Board, which is, again, exclusive to those boards.
As applied here, the Petitioners argue that when the Town Board of Carmel voted to approve the settlement of the Federal Action on the terms contained within the Consent Order-without the ZBA and Planning Board voting to approve the settlement-and then executed the Consent Order in which it effectively agreed to bypass all ZBA and Planning Board review of the Walton Drive cell tower immediately issue a Building Permits for the facility on Walton Drive, it usurped the ZBA's and the Planning Board's authority. Citing Commco v. Amelkin, 62 N.Y.2d 260 [1984], the Petitioners assert that the Town Board of Carmel was, "not authorized to settle litigation so as to grant a variance application which has been denied by the zoning board of appeals, since such action would usurp the power to grant or deny variances which is vested exclusively in the board of appeals."
The Town Defendants assert that the Town Board was empowered to settle the Federal Action pursuant to Town Law §68, which provides, in relevant part, that the town board of any town may compromise or settle, "an action or proceeding against the town, with the approval of the court in which such action or proceeding is pending." The Town Defendants further argue that the Town Board did not have to involve the ZBA or the Planning Board in the decision to settle the Federal Action because neither Town Law §267 nor §271 authorize the ZBA or Planning Board to settle litigation commenced by or against the Town. They further assert that the Town Board had all the information it needed to settle the action. Last, they assert that Town Law §274-a(5) enables the Planning Board to waive any requirements pertaining to site plan approval, and therefore, the Town Board did not need any additional review of the new cell tower location at Walton Drive.
Notably, neither the Town Defendants nor the Wireless Defendants discuss Commco v. Amelkin, supra.
The closest the Wireless Defendants come to addressing the point raised by the Petitioners that the Town Board usurped the ZBA's and Planning Board's authority is their assertion that the Town Board was the only entity that needed to (and could) settle the Federal Action because the municipality itself is the only proper party-Defendant to an action in Federal Court. (See NYCEF Doc. No. 78, pg. 13.)
None of the contentions raised by the Town or Wireless Defendants overcome what, to this Court, is clear: The Town Board of Carmel did, in fact, unlawfully usurp the authority of the ZBA and Planning Board in agreeing to the terms that it did in the Federal Consent Order.
First, the facts are clear that neither the ZBA nor the Planning Board met and voted on whether to approve the settlement in the Federal Action. The Town Defendants do not dispute this. Instead, they argue that the ZBA and Planning Board were irrelevant to the settlement. Certainly, nowhere in the Certified Return are there any minutes provided by the Town Defendants reflecting a meeting and vote by either the ZBA or the Planning Board to approve the settlement.
Second, by the plain language of Town Law §68, the Town Board did not have the authority to settle the Federal Action insofar as it was asserted against the ZBA and Planning Board. Town Law §68 gives the Town the authority to settle claims "against the town". It does not, however, give the Town Board the authority to settle claims against the ZBA or the Planning Board, which, contrary to the Wireless Defendants' contentions, have separate identities and powers from the municipality itself. That this is the law in New York is clear. (See Commco v. Amelkin, supra., at 264-266.)
The Town Board also seems to have settled the Federal Action on behalf of the Town of Carmel Environmental Conservation Board ("ECB"), who was also a Defendant in the Federal Action. However, since no party to the instant action has raised that as an issue, and the ECB is not a party to the within action, this Court does not address the propriety of that act.
The Wireless Defendants' citation to Omnipoint v. Town of LaGrange, 658 F.Supp.2d 539 [SDNY 2009] does not change this. In support of the premise that only the municipality itself is the proper party Defendant in a zoning matter, the federal court in Omnipoint cited several other federal cases, each of which involved a suit against a police department, not a ZBA or Planning Board. The situation is not the same for a ZBA or Planning Board which are entities created by statute with their own structures and governing rules. The New York Court of Appeal, in Commco v. Amelkin, supra., specifically ruled on this issue. Moreover, it is disingenuous for the Wireless Defendants to take the position that the municipality itself is the only proper Defendant in a Federal Action given that when the Wireless Defendants sued over the denial of their variances and permits on Croton Falls Drive and Dixon Drive, they named not only the Town of Carmel and its Town Board, but also its Planning Board, its ZBA and its ECB.
Third, the terms of the Federal Consent Order make it clear that the Town Board usurped the authority of the ZBA and Planning Board. The Town Board of Carmel did not simply settle an action against it. It settled an action against itself and the ZBA and Planning Board on terms which called for the following: the issuance of a Building Permit to the Wireless Defendants for the Walton Drive cell tower; the issuance of a certificate of compliance to the Wireless Defendants for the Walton Drive cell tower once they submitted their "complete request" to the Town Board; upon issuance of the certificate of compliance to the Wireless Defendants, a determination that the Walton Drive cell tower, "shall be deemed a permitted use as if it had all necessary permits required by the Town"; and that other than a Building Permit, "no other Town permits or approvals shall be required".
It is not disputed by the Town Defendants nor the Wireless Defendants that under the Town of Carmel Zoning Code, before a wireless cell carrier can construct a cell tower on any given property, the company is required to: submit a site plan to the Planning Board for the construction proposal and obtain approval thereof; obtain a special use permit from the ZBA; go through SEQRA review ; and obtain any other variances from the ZBA that might be required under the code depending on the location of the proposed cell tower.
While the Wireless Defendants and the Town Defendants assert that no SEQRA review was required in connection with the Federal Consent Order-a notion unsupported by New York law, as discussed above-they do not contend that under the normal application processes, such review is not required. Had the Wireless Defendants believed SEQRA review is never allowed under local zoning codes for cell phone towers, surely they would have challenged the SEQRA review in federal court the moment it was originally undertaken when their two original cell tower locations were under zoning review. They did not do so. They did not commence an action in federal court until their zoning and planning applications were denied.
When the Town Board agreed to the foregoing terms of the Consent Order, it effectively granted to the Wireless Defendants all of the aforesaid variances, permits and approvals they would otherwise have needed to obtain from the ZBA and the Planning Board for the Walton Drive cell tower. This is something the Town Board simply had no authority to do. The Town Board of Carmel cannot grant special use permits, variances nor site plan approval given that the ZBA and Planning Board of Carmel are vested with that exclusive authority. This type of workaround by the Town Board, by settling litigation that effectively approves an activity or project that is otherwise not allowed without ZBA and/or Planning Board approval, is not permitted under New York law. (See, e.g., Commco v. Amelkin, supra.; Carbone v. Town of Bedford, 144 A.D.2d 420 [2d Dep't 1988]; Buckley v. Town of Wappinger, 12 A.D.3d 597 [2d Dep't 2004].)
The existence of Town Law §274-a(5), which allows a Planning Board to waive any requirements pertaining to site plan approval does not save the Town Board's actions here. A Planning Board may very well have that authority, but the Town Board does not. Again, once a town creates a local Planning Board, the Planning Board has the exclusive authority to undertake the actions it is empowered to take.
The simple fact of this action is that a proposed cell tower at Walton Drive-which had never been reviewed by the ZBA or Planning Board-was granted or relieved of every approval it needed by the Town Board, who had no authority to grant those approvals. The Town Board's actions in entering into the Federal Consent Order for the ZBA and Planning Board on the terms set forth therein were unlawful.
Councilman Lombardi's Conflict of Interest
Petitioners assert that the Town Board's act of voting to approve and enter into the Federal Consent Order on May 13, 2020 should be annulled not only because the Town Board lacked authority to do so, but also because Councilman Lombardi had a conflict of interest and should have recused himself from the vote. Without his vote, the resolution to approve the settlement and Consent Order would not have passed.
The nature of Councilman Lombardi's conflict is alleged to be financial. In particular, the Petitioners allege that he lives in the residential community known as Maple Hill Estates and is, therefore, a member of the Maple Hill Estates Homeowners Association (hereinafter, "the HOA"). The HOA is alleged to be a party to the transaction with the developers pursuant to which the HOA will receive rent as part of the Walton Drive cell tower project. (NYSCEF Doc. No. 1, ¶¶41, 66.)
Petitioners argue that under the Town of Carmel Ethics Code §13-2, relevant case law and Attorney General Opinions, Councilman Lombardi was required to disclose his conflict and disqualify himself from the vote over whether to approve the settlement in the Federal Action. They argue that his failure to do so should result in annulment of the Town Board's May 13, 2020 vote.
The Town Defendants, in an unverified Amended Answer dated March 10, 2021, make general denials of the allegations in the Petition, but do not, "state pertinent and material facts showing the grounds of the Respondent's action complained of," as required by CPLR §7804(d). And, as previously noted, the Town Defendants do not offer any Affidavits from any member(s) of the Town Board, including Councilman Lombardi. Instead, in their Memorandum of Law opposing the Petition, they argue that there is no evidence that Councilman Lombardi knew about the agreement involving the HOA and the developer, or that that "alleged rental agreement" between the HOA and the cell tower developer was in effect when the Town Board voted to approve the Federal Consent Order, or that the rental agreement would inure to Councilman Lombardi's benefit.
Though not labeled as such, it is an Amended Answer, the original one having been filed on March 7, 2021. (NYSCEF Doc. No. 35.)
" 'Resolution of questions of conflict of interest requires a case-by-case examination of the relevant facts and circumstances' (Matter of Parker v Town of Gardiner Planning Bd., 184 A.D.2d 937, 938 [1992]; see Matter of Pittsford Canalside Props., LLC v Village of Pittsford, 137 A.D.3d 1566, 1568 [2016]). 'It is critical that the public be assured that their officials are free to exercise their best judgment without any hint of self-interest or partiality, especially if a matter under consideration is particularly controversial' (Matter of Byer v Town of Poestenkill, 232 A.D.2d 851, 852-853 [1996]; see Matter of Zagoreos v Conklin, 109 A.D.2d 281, 288 [1985]).
A violation of the General Municipal Law is not necessary in order for there to be an improper conflict of interest (see Matter of Schweichler v Village of Caledonia, 45 A.D.3d 1281, 1283-1284 [2007]; Matter of Zagoreos v Conklin, 109 A.D.2d at 287). Rather, the relevant question is whether an official had 'any direct or indirect interest, pecuniary or otherwise' (Matter of DePaolo v Town of Ithaca, 258 A.D.2d 68, 72 [1999]) in a project 'such that their vote could reasonably be interpreted as potentially benefitting themselves' (id. at 72). '[T]he test to be applied is not whether there is a conflict, but whether there might be' (Matter of Tuxedo Conservation & Taxpayers Assn. v Town Bd. of Town of Tuxedo, 69 A.D.2d 320, 325 [1979]; see 2002 Ops Atty Gen No. 2002-9, 2002 WL 437992; 1997 Ops Atty Gen No. 97-5, 1997 WL 136801; 1995 Ops Atty Gen No. 95-2, 1995 WL 112012)." Titan Concrete, Inc. v. Town of Kent, 202 A.D.3d 972, 974-975 [2d Dep't 2002].
The evidence before the Court indicates that Councilman Lombardi did have a conflict of interest-or at the very least the appearance of a real conflict-and that he should have recused himself from the vote on May 13, 2020.
As noted by the Petitioners, the HOA is, indeed, a party to the transaction with the cell tower developer (Defendant, Homeland). That transaction is an "option and ground lease agreement" dated March 8, 2018-two years before the Town Board's vote at issue here. It calls for, among other things, the HOA to be paid a minimum of $1500.00 per month in rent by Homeland for the placement of the Walton Drive cell tower on HOA property. (NYSCEF Doc. No. 65.) There is no Affidavit from Councilman Lombardi denying that he lives at Maple Hill Estates and that he is a member of the HOA. Mere denials in an Answer (much less, an unverified Answer) without supporting Affidavits are insufficient to raise a question of fact as to those allegations. (See Maurice O'Meara Co. v. National Park Bank of New York, 239 NY 386 [1925]; Tully v. Michaels, 33 Misc.2d 814 [Supreme Court Nassau County 1961]; Mollineaux' Estate v. Michaelis, 29 Misc.2d 933 [Special Term, Nassau County 1961], aff'd 16 A.D.2d 697 [2d Dep't 1962]; Galuppi v. New York State Liquor Authority, 12 A.D.2d 987 [4th Dep't 1961]; CPLR 7804(d) and (e).) Therefore, there can be no doubt that payments to the HOA would inure to the benefit of Councilman Lombardi as a member thereof.
Those facts, alone, indicate that Councilman Lombardi had a financial interest in the Walton Drive cell tower being constructed, and thus, in voting to approve of the settlement in the Federal Action and to execute the Federal Consent Order. He should have disclosed his interest and recused himself from the Town Board's vote on May 13, 2020.
Regarding whether Councilman Lombardi knew of the HOA's rental agreement with Homeland, there is enough evidence in the record to support that he did. The Certified Return submitted by the Town indicates that the materials in the Town's possession as part of this proceeding clearly depicted that the Walton Drive cell tower would be located on property owned by the HOA. (NYSCEF doc. Nos. 38-44.) As a resident of that community, certainly Councilman Lombardi would know that the location of the proposed tower was on the grounds of that very community. Moreover, the option and lease agreement between the HOA and Homeland was in existence for over two years before the Town Board voted to approve of the settlement and Federal Consent Order.
If Councilman Lombardi had no knowledge of the existence of that rental agreement, it was incumbent upon him to submit an Affidavit in this proceeding to raise a question of fact on that issue sufficient to warrant a trial. Without such Affidavit (and without a verified Answer setting forth the pertinent and material facts), all that exists is the Town Attorney's suggestion, in a memorandum of law, that perhaps Councilman Lombardi did not know about the rental agreement. That is not enough to create a question of fact.
Second and Third Causes of Action
The second cause of action seeks a writ of mandamus ordering the Town of Carmel Planning Board and ZBA to perform the reviews of the Walton Drive cell tower required under the Town of Carmel Zoning Code, and an order requiring all construction activities related to the cell tower at this site to cease because of the lack of these reviews. The third cause of action seeks the annulment of any purported approval of the Walton Drive cell tower for failure to conduct any SEQRA review thereof.
As discussed above, there is no dispute that under the Town of Carmel Zoning Code, before a wireless cell carrier can construct a cell tower, the company is required to submit a site plan to the Planning Board for the construction proposal and obtain approval thereof, obtain a special use permit from the ZBA, go through SEQRA review; and obtain any other variances from the ZBA that might be required under the code depending on the location of the proposed cell tower.
The only opposition on this point appears to be the general assertion by the Town and Wireless Defendants that local planning and zoning processes are preempted by the TCA. As also discussed above, however, that is not accurate. (See, e.g., Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630 [2d Cir. 1999]; Metheny v. Becker, 352 F.3d 458 [1st Cir. 2003]; Omnipoint Communications, Inc. v. Town of LaGrange, 658 F.Supp.2d 539 [SDNY 2009].)
Local planning and zoning processes-including SEQRA-are left intact under the TCA so long as they comply with the directives of the TCA in that the substance and implementation of the local regulations cannot "unreasonably discriminate among providers of functionally equivalent services" and cannot "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 USCA §332 (c)(7)(B)(i).
The Wireless Defendants presented their two original proposals for the Dixon and Casse facilities to the Town of Carmel ZBA and Planning Board, and underwent SEQRA review for both. They must do the same for the Walton Drive facility if they wish to pursue it.
Fourth Cause of Action
The fourth cause of action asserts that the Town violated Public Officers Law §103(e) by failing to post documents considered or proposed in connection with approval of the Federal Consent Order/Walton Drive cell tower prior to the Town Board meeting on May 13, 2020, and requests attorneys' fees for said violation.
The Petitioners originally also alleged a violation of Public Officers Law §103(a) for the failure of the Town ZBA and/or Planning Board to hold a public meeting if/when they voted to approve the Federal Consent Order/Walton Drive cell tower. However, once the Petitioners reviewed the Town's submissions on these motions, in which it was apparent that no ZBA or Planning Board meeting were held, Petitioners acknowledged that their claim under §103(a) was moot. Their claim under §103(e) remains.
As discussed above, it is this Court's view that the plain meaning of §103(e) requires that if a municipality does not post documents to its regularly-maintained and updated website prior to a scheduled meeting, it must offer some explanation as to why it was not "practicable" for it to do so.
Here, although the Town Defendants offer blanket denials of the relevant facts alleged in the Petition/Complaint (i.e., that they maintain a regularly and routinely updated website, that they utilize a high-speed internet connection, and that there was no reason it was not practicable to post the documents being considered in advance of the meeting), their Answer does not contain "pertinent and material facts" regarding the Town's conduct, nor does the Town offer any Affidavits from people with personal knowledge as to these facts. Their failure to do so renders their bare denials insufficient to create a question of fact, and the matter may be disposed of in the same manner as on a motion for summary judgment. (See, e.g., Mollineaux' Estate v. Michaelis, supra., and Galuppi v. New York State Liquor Authority, supra.; CPLR 7804(d) and (e).)
The Town having offered no Affidavit from someone with personal knowledge as to why it was not "practicable" for the Town to post documents related to the Walton Drive cell tower and/or the Federal Consent Order prior to the Town Board's meeting on May 13, 2020, the Petitioners are entitled to a finding that the Town violated Public Officer's Law §103(e).
Whether and to what extent to impose sanctions for the violation is within the discretion of the court. (Public Officers Law §107; Goetschius v. Board of Education of the Greenburgh Eleven Union Free School Dist., 281 A.D.2d 416 [2d Dep't 2001].)
The Petitioners do not allege any particular prejudice as a result of the Town's technical violation. For example, there is no allegation that the failure to post materials related to the Consent Order or Walton Drive cell tower contributed to their lack of knowledge about it or to a decision not to attend the meeting at which the Town Board approved entering into the Consent Order. Given that the Court has already found that the Town Board usurped the ZBA and Planning Board's authority in executing the Consent Order on the terms contained therein, no further relief is warranted or necessary for the technical violation of the Public Officer's Law §103(e). (See, e.g., Gordon v. Village of Monticello, 87 N.Y.2d 124 [1995] "purely technical and non-prejudicial infractions [of the Open Meetings Law].do not rise to the level of supporting an award of attorneys' fees.")
Sixth Cause of Action
The sixth cause of action requests a declaratory judgment pursuant to CPLR §3001 that the Town Respondents were without power to enter into the Federal Consent Order, that the Walton Drive cell tower lacks the necessary approvals and that no construction can proceed on the Walton Drive cell tower.
"The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment (see Matter of 24 Franklin Ave. R.E. Corp. v. Heaship, 74 A.D.3d 980, 980, 901 N.Y.S.2d 863). Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action." Rosenberg v. New York State Office of Parks, Recreation and Historic Preservation, 94 A.D.3d 1006 [2d Dep't 2012].
At this time, the Court cannot grant relief on this cause of action as no party has moved for summary judgment on this claim
THE PETITIONERS' MOTION FOR A PRELIMINARY INJUNCTION (MOTION # 2)
In light of the foregoing determinations, the Petitioners' motion for a preliminary injunction is moot.
Based on the foregoing, it is hereby
ORDERED, ADJUDGED AND DECREED that the Wireless Defendants' motion to dismiss the Petitioners' Petition/Complaint (Motion Sequence #3) is granted only as to the Fifth and Seventh causes of action asserted in the Petition/Complaint, and the motion is otherwise denied; and it is further
ORDERED, ADJUDGED AND DECREED that the remainder of the Petitioners' Petition/Complaint (Motion Sequence #1) is hereby determined as follows:
1. The First Cause of Action in the Petition/Complaint is granted and this Court finds:
a. that the Town of Carmel Town Board's agreement to execute, and its execution of, the Federal Consent Order was unlawful, in that the Town Board had no authority to agree to the terms set forth in the Federal Consent Order, effectively usurping the authority of the Town of Carmel Zoning Board of Appeals and the Town of Carmel Planning Board; and
b. that the Town of Carmel Town Board's agreement to execute, and its execution of, the Federal Consent Order was unlawful in that Town Councilman Lombardi failed to recuse himself from the Town Board vote on May 13, 2020 to approve the Consent Order despite having a conflict of interest; and
c. The proposed cell tower at Walton Drive does not comply with the Town of Carmel Zoning Code because no site plan was submitted to the Planning Board for review, no application to the ZBA was made for any requisite variances and special use permit and no SEQRA review was undertaken.
2. The Second Cause of Action in the Petition/Complaint is granted. Before any permits, variances or other approvals may be granted to the Wireless Defendants with respect to their proposal for a cell tower at the Walton Drive location that is the subject of this action, and before the Wireless Defendants can proceed with any construction of said cell tower, the Town of Carmel Zoning Board of Appeals and the Town of Carmel Planning Board must perform all necessary reviews of the Walton Drive cell tower as are required under the Town of Carmel Zoning Code, which include but may not be limited to, site plan review, special permit review, variance review and SEQRA review. Absent such reviews and determinations by the Planning Board and ZBA, the Wireless Defendants must cease all construction activities at the Walton Drive site; and
3. The Third Cause of Action in the Petition/Complaint is granted. The Building Permit issued for construction of the 140-foot cell tower on Maple Hill Road (referred to in the within action as the Walton Drive location) on or about July 23, 2020 bearing Permit # 20-0507, and any other approvals issued for said cell tower, is/are annulled and vacated inasmuch as the Town of Carmel Town Board did not have authority to agree to the terms set forth in the Federal Consent Order pursuant to which said Building Permit was issued without SEQRA review; and
4. The Fourth Cause of Action in the Petition/Complaint is granted to the extent that this Court finds the Town Board of the Town of Carmel to have violated Public Officers Law §103(e) by failing to post documents related to the settlement of the Federal Action on its website prior to the Town Board meeting on May 13, 2020, and all other relief requested in the Fourth Cause of Action is denied; and
5. The Sixth Cause of Action in the Petition/Complaint is severed from the causes of action which are disposed by this Decision and Order, for its further determination and disposition; and
And it is further
ORDERED, ADJUDGED AND DECREED that the Petitioners' request for a preliminary injunction (Motion Sequence #2) is denied as moot; and it is further
ORDERED, ADJUDGED AND DECREED that an in-person status conference on the remaining cause of action is scheduled for July 28, 2022 at 9:30am; and it is further
ORDERED, ADJUDGED AND DECREED that all other relief requested but not granted herein is denied.
This constitutes the decision and order of this Court.
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.