Village of Muttontown Seeks Dismissal of AT&T Cell Tower Complaint

Muttontown, New York, and its various component boards seek dismissal of AT&T’s complaint alleging the village unlawfully denied its application to build a 165-foot-high cell tower to remedy a significant coverage gap, said a memorandum in support of its motion Thursday (docket 2:22-cv-05524) in U.S. District Court for Eastern New York in Central Islip. The village seeks a May 1 evidentiary hearing in the motion to dismiss for AT&T’s failure to properly make “a legally justiciable claim.”

It was Muttontown’s first formal answer to AT&T’s Sept. 15 complaint, in a proceeding with many delays and sidetracks. About 30 village residents filed two October motions to intervene to block village officials from colluding with AT&T on a settlement that would allow the tower to proceed, as has happened in other municipalities in Eastern District of New York case law (see 2211030048). Emblematic of the delays in the case, there haven't been any formal pleadings on the two motions to intervene since they were filed roughly five months ago.

Since the village itself, its planning board and its site and architectural review board (SARB) had no “subject matter jurisdiction” over AT&T’s tower application, there’s no “justiciable controversy” between AT&T and those entities, and AT&T’s claims against those bodies must be dismissed under Article III, said Muttontown. The shot clock claims against the planning board, board of trustees and SARB also must be dismissed because the court lacks jurisdiction over such claims under the “doctrine of ripeness,” it said. The doctrine prohibits federal courts from exercising jurisdiction over a case until an actual controversy is presented involving a threat of injury that is real and immediate.

Nothing in the Telecommunications Act “disturbs the doctrine of ripeness,” said Muttontown. The zoning board of appeals decision denying the tower application, “divested” the board of trustees of its authority to approve the tower, it said. Though the board of trustees is empowered to grant special permits for monopole use, the village code “governs siting facilities when, as here, the location of the monopole site does not comply with the priority of locations for such facilities,” it said. Location sites not meeting the village’s “priority criteria” can only be considered by the zoning board of appeals, it said. The applicant must demonstrate to the board's satisfaction “that a priority site is not available and that the alternate site protects and preserves the aesthetic qualities, open space characteristic” of the village, its property values and the safety and welfare of its residents, it said.

AT&T’s claims against the planning board, board of trustees and SARB should be dismissed since none of those boards “issued a final decision and there are no pending applications” before those boards “that may be granted at this time,” said Muttontown. AT&T’s complaint also fails to “plausibly allege” the zoning board of appeals committed a shot clock violation, it said. AT&T concedes the zoning board of appeals denial of the cell tower was issued before the shot clock expired, it said. AT&T’s cause of action against the zoning board of appeals about the shot clock allegation therefore “must be dismissed in its entirety,” it said.

AT&T’s allegation that the zoning board of appeals failed to adopt a written denial as required by the Telecommunications Act is “belied by the plain facts” in the complaint and by “black letter law,” said Muttontown. Though the complaint cites no specific ground of alleged non-compliance, the issuance of zoning board of appeals decisions is governed by village law, which “only provides that a decision needs to be issued within 62 days of the close of the public hearing,” it said. New York state also doesn’t regulate the form of the written decision of the zoning board of appeals that follows a public hearing, “nor the timing of such written decision,” it said.

For AT&T’s tower application, the village adopted a denial on the record at a July 21 public hearing, said Muttontown. The decision memorialized the denial on the record based on the information before the zoning board of appeals, it said. The written decision was issued within 62 days of the close of the public hearing and before the shot clock expired, it said.

The Supreme Court has said municipalities must issue written reasons for denying an application to be in compliance with the Telecommunications Act, said Muttontown. The reason for this rule is so courts can readily identify the grounds of the denial when they're appealed, it said: “The Supreme Court further made clear that a denial and the writing containing the reasons for the denial need not be in same document.” Muttontown’s decision “enumerates the reasons for the denial in accordance with the requirements of the Telecommunications Act,” it said.