Posted by: Patricia Salkin | October 5, 2019

Fed. Dist. Court in NY Finds Expiration of Telecommunications “Shot Clock” Barred Claims

This post was authored by Matthew Loeser, Esq.

Plaintiffs Up State Tower Co., LLC and Buffalo Lake Erie Wireless Systems Co., LLC submitted an application to construct a telecommunications tower. In this case, Plaintiffs claimed defendants the Town of Southport, New York, the Zoning Board of Appeals of the Town of Southport, New York (“ZBA”), and the Planning Board of the Town of Southport, New York unlawfully denied their application for a site plan approval and area variance to erect a wireless telecommunications tower.

Plaintiffs first argued that Defendants did not act within the scope of the legislative grant given to the Town by Article 16 of the New York Town Law, and that Plaintiffs were entitled to a declaratory judgment that certain provisions of the Town Zoning Law were unlawful and that Plaintiffs were therefore not liable to pay the fees charged by Defendants. The law at issue, Town Zoning Law § 525-50, did include a “reasonable” limitation; however, it did not limit the fees to those that were “necessary.” Furthermore, the ordinance did not contain a codified limit such as an audit procedure or guidance as to what fees can be charged. As such, the fees were only subject to the “unfettered discretion” of the Planning Board. Thus, while Plaintiffs did not move for summary judgment, the Court held summary judgment should be granted in Plaintiffs’ favor as to the declaratory judgment claim.

Plaintiffs next contended that Defendants’ denial of the Application was not based on substantial evidence since the Application initially provided by Plaintiffs was sufficient and the supplemental information Defendants requested was arbitrary. The record reflected that the ZBA had requested Plaintiffs provide it with additional information: more alternative locations, an explanation of why Plaintiffs want to locate the tower near State Route 14, and evidence Plaintiffs made attempts to co-locate that were denied. Despite Plaintiffs’ agreement to submit these documents, they failed to do so until June 1, 2018, three weeks after the time permitted had expired. Additionally, the record showed that Defendants made efforts to extend the Shot Clock by contacting Plaintiffs at least three months before it was set to expire and inquiring about an extension no less than five times. Defendants’ motion for summary judgement as to the substantial evidence claims was therefore granted.

The court further held that Defendants’ denial of the Application did not violate the effective prohibition provision of the TCA, as a reasonable trier of fact could not find on the record that Plaintiffs’ initial Application demonstrated that their proposal was the only feasible plan. Specifically, in their Application, Plaintiffs only provided a cursory analysis of three alternative sites, and one existing tower for potential co-location. Moreover, the court found a reasonable trier of fact could not find Defendants’ willingness to review an application with supplemental materials, that Plaintiffs agreed to provide, rose to the level of an effective prohibition on the provision of wireless services. Accordingly, the Court gratned Defendants’ motion for summary judgment as to this claim.

Up State Tower Co., LLC v. Town of Southport, New York, 2019 WL 4674298 (WDNY 9/25/2019)


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