Opinion
09-1685.
Decided October 2, 2009.
Law Office of David K. Gordon, Attorneys For Petitioners-Plaintiffs.
David K. Gordon, Esq., of counsel, New Paltz, New York.
Van De Water Van De Water, LLP, Attorneys for Respondent-Defendant Town.
David D. Hagstrom, Esq., of counsel, Poughkeepsie, New York.
The Law Offices of Richard Malagiere, PC, Attorneys For Respondent-Defendant JNS Towers Inc., Richard Malagiere, Esq., of counsel, New York, New York.
This is a combined CPLR Article 78 proceeding and declaratory judgment action involving respondents'/defendants' plans to erect a cell tower in the Town of Gardiner. Respondents/defendants moved for dismissal of the petition and complaint under CPLR 7804(e) and (f) as well as CPLR 3211(a)(1), (3) and (7). The Court converted the motion to a motion for summary judgment.
As noted in the Court's prior decision, the main issues for decision are whether petitioners have standing, whether the Town Board followed proper procedures under SEQRA, whether it acted properly in exempting itself from local zoning laws and whether it violated the General Municipal Law.
First, the Court will address the motion to add Michelle Rhodes as a petitioner/plaintiff. After the Court converted the pending motion to dismiss to a summary judgment motion and provided for time for submission of additional papers, a motion was made to add proposed petitioner Michelle Rhodes, along with petitioners' opposition to the motion for summary judgment. Counsel for respondent Town of Gardiner Town Board objects to the Court's consideration of the motion on the basis that the motion does not comply with the Court's prior order extending time for submission of papers for purposes of the summary judgment motion, and noting that this proceeding was filed just prior to the expiration of the statute of limitations. Counsel for petitioners argues that a motion for leave to add a petitioner may be made at any time and that the Court's prior order did not address such a motion.
The Court denies the motion to add Michelle Rhodes as a petitioner. First, the Court notes the expiration of the statute of limitations, which may still be considered when parties are added as of right and without court leave ( see, e.g., Hirsh v Perlmutter , 53 AD3d 597 [2d Dept 2008]). Additionally, the Court has considered proposed petitioner's claim that her claim is identical to the petitioners and therefore she is entitled to have her claim relate back for statute of limitations purposes. As a nearby landowner, she is clearly correct that her claim is similar to the other petitioners who assert that their scenic views will be affected from their land. However, the Court also notes the arguments of proposed petitioner that appear to reference also that her addition to the case will either strengthen claims already asserted or will add new claims, specifically relating to Town Law § 265. "An otherwise time-barred claim should not be permitted under the relation-back doctrine of CPLR 203(f) where to do so would increase the measure of liability to which the defendants are exposed.'" ( Fazio Masonry, Inc. v Barry, Bette Led Duke, Inc. , 23 AD3d 748 , 749 [3d Dept 2005] [citation omitted]). It appears that proposed petitioner is claiming that her addition to the proceeding will increase the likelihood of liability of respondents under certain claims already set forth and under new theories of liability. Under the circumstances, the Court finds that it would be inappropriate to allow addition of proposed petitioner Michelle Rhodes. This motion is therefore denied.
Petitioners seek to annul the December 9, 2008 resolution of the Gardiner Town Board which exempted a proposed cell tower from the Town's zoning requirements, concluded the Town's State Environmental Quality Review Act (SEQRA) review with a determination of no potential for significant impact, and approved the Town's application for construction of the cell tower. Petitioners also seek to declare the Board's finding of no impact and negative declaration after its SEQRA review to be void, unlawful, arbitrary and capricious and to enjoin respondents from constructing the cell tower.
Petitioners' causes of action assert that the Board failed to comply with multiple requirements in the General Municipal Law, that the Town's SEQRA review was deficient for failing to designate the matter as a type I action, for failing to take a hard look at impacts and for failing to take a hard look at the information gathered, and that the Town failed to comply with Town zoning law.
The motion to dismiss of the Town Board, joined by JNS Towers, LLC, argues that the Town was immune from both local zoning laws and the requirement of referral to the Ulster County Planning Board, that the Town properly completed the SEQRA review in question, and that petitioners lack standing. Petitioners oppose the motion, which as noted above has been converted to a summary judgment motion.
Regarding the issue of standing of individual petitioners, the Court finds that petitioners have standing to bring the present proceeding. Petitioners all assert that the scenic views from their properties, which are in the vicinity of the project, will be detrimentally affected by the construction of the cell tower at issue, and have produced photographs to that effect. Petitioners have each set forth additional claims, including their use of the river adjoining their properties and its scenic views, personal and business use of their properties that is reliant on the scenic view, and proof of potential decline in value of their real estate if the scenic view was detrimentally affected by construction of the cell tower. The Court finds that petitioners have set forth proof that the harm and injury they would suffer from the construction of the cell tower is different than that of the public at large ( Saratoga Lake Protection Improvement Dist. v Department of Public Works , 46 AD3d 979 [3d Dep't 2007]; Ziemba v City of Troy , 37 AD3d 68 [3d Dep't 2006]; Steele v Town of Salem Planning Board, 200 AD2d 870, 872 [3d Dep't 1994]).
Regarding respondents' motion to dismiss the claims of Sensible Wireless for Gardiner on the ground of standing, the Court concurs with respondents that the petition itself failed to set forth the necessary information to sustain a finding that the organization has standing. "[A]s an organization seeking standing, petitioner must demonstrate that at least one of its members would have standing to sue individually, that the interests it asserts are germane to its purpose and that the resolution of the claim does not require the participation of its individual members'" ( Save the Pine Bush, Inc. v Planning Board of the Town of Clifton Park , 50 AD3d 1296 , 1297 [3d Dep't 2008] [citation omitted]; see Society of the Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761, 775).
In response to respondents' motion, petitioners argue in a memorandum of law that Sensible Wireless for Gardiner has standing based on two of its members, who are also petitioners, Linda Kastan and Laurie Willow. The affidavit of Linda Kastan submitted with the petition indicates that she is the president of Sensible Wireless for Gardiner. Ms. Kastan also avers that the purpose of Sensible Wireless is to assist the Town in siting wireless telecommunications facilities with minimal environmental impact. The affidavit of Laurie Willow does not set forth her involvement with Sensible Wireless for Gardiner and the Court does not find that the reference in the memorandum of law is sufficient to establish this. The Court notes that despite a reference in a memorandum of law, petitioners have not established that resolution of the claim does not require participation of the individual members of Sensible Wireless for Gardiner. On this basis, the Court finds that respondents' motion should be granted to the extent that the claims of Sensible Wireless for Gardiner are dismissed based upon lack of standing.
Regarding the SEQRA claims of petitioners, the Court first notes that petitioners claimed the Town failed to designate the cell tower project as a Type I action. Respondents' motion to dismiss failed to directly address this claim, but argued that the requisite hard look was taken, as detailed below. Part of the argument contained in respondents' motion to dismiss is that the cell tower project was not subject to Town Zoning Laws. Considering this argument, the Court concurs with petitioners that this project was required to be classified as a Type I action pursuant to 6 NYCRR § 617.4(b)(7). The cell tower structure at issue will be 160 feet tall, which is higher than the height threshold of 100 feet set forth in the regulation for locations which do not have an applicable zoning regulation as to height (see 6 NYCRR § 617.4[b][7]).
The Court next considers respondents' motion to the extent it argues that the requisite hard look was taken. The petition claims that the requisite hard look was not taken, specifically in reference to the visual impact of the cell tower. Petitioners have claimed that the Town failed to generate sufficient information regarding the visual impact of the tower and that it failed to properly consider the information that was generated. Respondents argue in their motion that the Town identified the relevant areas of environmental concern, took the requisite hard look and made a reasoned elaboration of the basis for its determination. Specifically regarding visual impact, the Town argues that aesthetics are only one factor of many and also that a comprehensive visual assessment study was conducted and determined that the cell tower would not have a significant visual impact.
Pursuant to SEQRA, a proposed condemnor may issue a negative declaration, obviating the need for an EIS, only after it has identified the relevant areas of environmental concern, taken a "hard look" at them, and made a "reasoned elaboration of the basis for its determination."
( Munash v Town Board of the Town of East Hampton, 297 AD2d 345, 347 [2nd Dept 2002] [citation omitted]; see Kahn v Pasnik, 90 NY2d 569; Hubbard v Town of Sand Lake, 211 AD2d 1005 [3d Dep't 1995]). "[T]he extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals.'" ( Kahn, 90 NY2d at 574).
As detailed below, the Court finds that the Town failed to take the requisite hard look at issues relating to visual impact prior to issuing the negative declaration at issue ( Kahn, supra; Munash, supra; Hubbard, supra).
The Court notes that the Town's negative declaration discussed aesthetic resources and concluded that a visual assessment study demonstrated that the proposed cell tower would "not have a significant visual impact on the viewshed and surrounding community" (Return Ex. 9, Negative Declaration, at p. 4).
The Court finds it notable that the Town enacted a Zoning Law relating to wireless telecommunications facilities, with one of the express purposes of protecting "the scenic qualities of the town while accommodating the growth of communications services" (Town of Gardiner Zoning Law § 220-46[A][1][a]). The purposes of the Zoning Law also recognize "the co-location on higher towers is not always preferable to a larger number of shorter, less visible, and less obtrusive towers" (Town of Gardiner Zoning Law § 220-46[A][1][e]). Regarding the demonstrated need for a tower, the law provides as follows:
It is an objective of this law to facilitate the provision of adequate wireless telecommunications coverage throughout the Town. It should be noted, however, that the achievement of complete coverage throughout the Town may not be possible or practicable. Evidence of incomplete coverage throughout the Town shall not, by itself, demonstrate need for a proposed [wireless telecommunications facility].
The Town Zoning Law also requires a visual impact assessment which would include a "zone-of-visibility" map, "which shall show all locations, within a radius of 7 miles, from which the [wireless telecommunications facility] may be clearly seen with the naked eye." (Town of Gardiner Zoning Law § 220-26 [C] [1] [q]). The Zoning Law also sets forth the procedure for conducting a balloon test (Town of Gardiner Zoning Law § 220-26 [B] [4] [a]). The maximum cell tower height in a clear area is limited to 80 feet and the law provides that "in no case shall the height of a [wireless telecommunications facility] exceed 120 feet." (Town of Gardiner Zoning Law 220-26 [B] [6]). The law further provides requirements for camouflage, visual screening and property line setbacks.
While the Court recognizes that the Town's failure to follow provisions in the Town Zoning Law does not compel a finding that the Town failed to meet the requirements of SEQRA, the Court does find that it is one relevant factor in the consideration of whether the requisite hard look was taken by the Town. The Town undisputedly failed to follow multiple requirements for a visual impact assessment considered mandatory by the Town's own Zoning Law. Specifically, the Town failed to follow the procedures for the balloon test, failed to create a zone of visibility map as required by the law, and failed to sufficiently consider the effects of the cell tower on the views from the local parks, preserves and waterways. The proposed cell tower also violates the height limits set forth in the law. The Court finds it striking how many provisions in the Town's own Zoning Law were not followed or were violated, and without sufficient or any explanation, including those relating to visual assessment, height of the tower, camouflage, screening and property line setbacks.
The Court has considered the visual impact assessments prepared for the Town. Petitioners have pointed out multiple insufficiencies with these reports and also the fact that the Town did not consider or address the discrepancies prior to issuing the negative declaration. The Court notes that the area of visual impact considered by the Town was limited to mostly a two mile radius from the proposed cell tower. Despite the fact that certain parks, preserves, waterways and scenic views and properties are expressly referenced as being intended to be protected in the Town's Zoning Law relating to wireless telecommunications facilities, some of these same areas were not considered for visual assessment purposes in connection with the proposed cell tower that is the issue of this proceeding. Specifically, petitioners have set forth proof of the potential effect of the proposed tower on views from Minnewaska State Park Preserve, the Shawangunk Ridge and the Wallkill River. The Court concurs with petitioners that to the extent the Town relied on conclusory statements that mature vegetation would significantly screen the tower, this is not elaborated on and petitioners have set forth photographs and other evidence that dispute this finding. Findings of the Town's balloon test relating to visibility of the proposed cell tower from multiple different locations are disputed and contradicted by petitioners' crane test and these discrepancies have not been explored or explained to date by the Town.
Additionally, the Court notes the short span of time between the Town Board's receipt of the updated viewshed analysis prepared by Airosmith Development. The Court notes the apparent dispute between the parties as to whether the analysis was received in late November or early December prior to the December 9, 2009 negative declaration and the Court finds that in either event there was little time for consideration of the report by the Town Board ( see, e.g., New York Archaeological Council v Town Bd. of the Town of Coxsackie, 177 AD2d 923 [3d Dept 1991]). There is also no evidence of consideration by the Town Board of the report submitted by petitioner by Hydroquest, which called into question certain key findings relating to visual impact of the proposed cell tower. The Court has also considered the fact that the Town Board only considered municipal properties and that the Town has a pecuniary interest in the proposed cell tower, as well as contractual financial disincentives if the tower is not constructed.
Based upon the foregoing, the Court concurs with petitioners that the information and analysis prepared by the Town and the information considered was insufficient and discrepancies were not sufficiently analyzed prior to issuance of the negative declaration. The Court finds that the Town failed to take the requisite "hard look" required under SEQRA and therefore acted in a manner that was arbitrary and capricious ( see New York Archaeological Council v Town Bd. of the Town of Coxsackie, 177 AD2d 923, 924 [3d Dept 1991]).
Regarding the applicability of the Town Zoning Laws to the proposed cell tower, the Court has analyzed this case under the "balancing of public interest" test set forth in In re County of Monroe, 72 NY2d 338 (1988). Respondents argue in their motion to dismiss that the Town is exempt from the Town Zoning Laws relating to construction of cell towers and also exempt from General Municipal Law § 239-m. Petitioners oppose the exemption and note that the Town previously applied to the Zoning Board of Appeals for a variance for the proposed cell tower. Regarding exemption from the Town Zoning Laws, the Court finds that the Town's determination in its resolution dated December 9, 2008 that the Town was exempt from zoning laws was in error.
The balancing of the public interest test includes the following factors: "the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests' (citations omitted) . . ., the applicant's legislative grant of authority, alternative locations for the facility and less restrictive zoning areas, and alternative methods of providing the needed improvement . . . [in addition to] intergovernmental participation in the project development process and an opportunity to be heard." ( In re County of Monroe, 72 NY2d 338, 339; see Gache v Town of Harrison, 813 F Supp 1037, 1051-52 [SDNY 1993] ["The more severe the environmental harms, the more untenable it would be to hold that the balance of public and private interests tips in favor of allowing the Town's zoning ordinances to shield its dumping activities with immunity."]).
The resolution makes clear that the Town did not consider sites other than on municipal property. Additionally the Town notes that it could amend its Zoning Code if it so desired and attempts to distinguish the present situation, where a Town seeks immunity from its own Zoning Laws, from reported cases where one governmental entity seeks immunity from another entity's zoning laws. The resolution notes that the proposed cell tower would promote public safety and emergency services, while also noting that "the potential impact on the surrounding environs was very limited given the terrain and vegetated screening afforded" (Exhibit 8 to Return, Resolution, p. 4).
As noted above, the Court has already determined that the Town's analysis of the potential visual and aesthetic impact of the proposed cell tower was not sufficient. Therefore, the Town's reliance in the resolution on the purported limited visual impact is likewise flawed under the circumstances. In light of the incomplete visual assessment review, along with the Town's admitted lack of consideration of non-municipal sites, the Court finds insufficient proof to support the Town's finding in the resolution dated December 9, 2008 that the Town is exempt from Town Zoning Laws with regard to the proposed cell tower ( In re County of Monroe, 72 NY2d 338, 339; Gache v Town of Harrison, 813 FSupp 1037, 1051-52 [SDNY 1993]). Based upon the foregoing, the Court finds that the motion of the Town Board must be denied to the extent it sought dismissal of the petition's claims relating to Town Zoning Laws on the basis of exemption. The Court finds that the Town's determination that the Town was exempt from Town Zoning Laws was without reasonable basis and was arbitrary and capricious under all the circumstances set forth above.
The Court recognizes, as noted by respondents, that wireless phone service providers are treated as public utilities for zoning purposes and "the general principles governing the variances sought by private individuals or entities do not govern their application" ( Site Acquisitions, Inc. v Town of New Scotland , 2 AD3d 1135 , 1136 [3d Dep't 2003]; see Cellular Tel. Co. v Rosenberg, 82 NY2d 364).
Regarding the applicability of General Municipal Law § 239-m, the Court finds that the Town was required to comply with its provisions. The Town Board argues that its exemption from Town Zoning Laws mandates its exemption from the General Municipal Law § 239-m. First, the Court notes that it found that the Town is not exempt from its own zoning laws, as set forth above. Second, the Court notes that the Town Board previously made a referral to the Ulster County Planning Board, as noted by petitioners. The Planning Board requested further information, which the Town Board failed to provide apparently. The Court finds the provisions of General Municipal Law § 239-m applicable and finds that the Town Board has failed to establish its exemption from its provisions (General Municipal Law § 239-m; Lamar Advertising of Penn, LLC v Village of Marathon , 24 AD3d 1011 [3d Dept 2005]). Additionally, in light of the Planning Board's prior disapproval, as noted by petitioners, the Town Board was required to only act contrary if it had a vote of a majority plus one of its members (General Municipal Law § 239-m). As noted by petitioners, this provision was not met with the 3-2 vote on the resolution.
Accordingly, it is
ORDERED that the motion to add Michelle Rhodes as a petitioner is denied; and it is further
ORDERED that respondents' motion is granted in part and denied in part, as set forth above; and it is further
ORDERED that the claims of Sensible Wireless for Gardiner are dismissed; and it is further
ORDERED that respondents' motion is denied and the petition is granted to the extent of annulling the resolution and negative declaration issued by the Town Board on December 9, 2008 and requiring preparation of an environmental impact statement, as detailed above; and it is further
ORDERED that respondents' motion is denied and the petition is granted to the extent of finding the proposed project subject to Town Zoning Laws and General Municipal Law § 239-m.
This constitutes the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is returned to the attorneys for the petitioners-plaintiffs. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.