Posted by: Patricia Salkin | February 9, 2021

Fed Dist. Court in NY Grants Motion to Remand Telecommunications Act Case Settlement to State Court Since Claims Were State Law in Nature

This post was authored by Matthew Loescher, Esq.

Wireless Defendants applied for approval from the Town of Carmel Planning Board to build two wireless telecommunications facilities: one on Dixon Road and one on Croton Falls Road. The Board denied the applications, and the Wireless Defendants filed suit in federal court alleging that the denial of their applications was unlawful under the Telecommunications Act of 1996 (“TCA”). The lawsuit ended with a settlement agreement in which the Town agreed to issue permits for the Dixon Road facility and a facility to be located on Walton Drive rather than Croton Falls Road. In May 2020, U.S. District Court Judge Philip M. Halpern entered the stipulation of settlement and consent order memorializing the agreement.

Plaintiffs, owners of property near the proposed Walton Drive facility, brought an Article 78 proceeding in state court against the Town Defendants, the Wireless Defendants, and Maple Hill Estates Homeowners Association, Inc., to invalidate the consent order on various state law grounds. Defendants removed the action, asserting federal question jurisdiction, and Plaintiffs filed a motion to remand or, alternatively, a motion for a preliminary injunction enjoining construction of the Walton Drive facility.

Plaintiffs first argued that the case needed be remanded to state court because they only pleaded state law claims and the federal court lacked subject matter jurisdiction. Defendants argued that Plaintiffs framed the issues in the Complaint as state law issues to avoid federal jurisdiction. Defendants further claimed that “Plaintiffs’ case could easily have been brought in federal court had the complaint been well-pleaded with no artful omissions of the TCA issues involved.” The court rejected this position, noting that the “TCA does not support a private right of action to persons adversely affected by a local zoning board’s decision to allow the construction of a wireless cell antenna.” As Plaintiffs’ state law claims did not raise a federal issue, and federal subject matter jurisdiction did not arise from a federal preemption defense, the artful pleading rule did not apply and the court therefore lacked subject matter jurisdiction over Plaintiffs’ claims.

Notwithstanding the above, Defendants argued that removal was proper because “Plaintiffs were using their pleading to collaterally attack a federal court order.” The court found that the mere fact that Plaintiffs’ claims concerned a federal court order and sought to invalidate it was not a proper basis for removal. Even assuming arguendo that Plaintiffs could have brought Rule 60(b) motion in the prior federal action as third parties who were strongly affected by the judgment, Defendants failed to offer any authority or argument establishing that they were required to do so. Accordingly, Plaintiffs’ motion to remand was granted, and Plaintiffs’ alternative motion for a preliminary injunction and the Wireless Defendants’ motion to dismiss was denied as moot.

Gondolfo v Town of Carmel, 2021 WL 431148 (SDNY 2/8/2021)


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