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Case 7:20-cv-08566 Document 1 Filed 10/14/20 Page 1 of 33
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`Docket No. 20-CV-08566
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`COMPLAINT
`AND PETITION
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`DAVID EISENBACH, GEORGE H. EISENBACH,
`JOANNE EISENBACH, JENNIFER YOUNG, DANA
`CARINI, ROSEMARIE ORSHAKOSKI, MICHAEL
`ORSHAKOSKI, JONATHAN D. CHAMPLIN, ANNE
`CHAMPLIN, RAYMOND H. CHAMPLIN, KENNETH
`LEVINE, CATHERINE POLERA, JULIEN DAVIES
`HOPE ROGERS, PHIL WEISS, CYNTHIA KING, JO
`MANGO, and LAURALEE HOLMBO,
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` Plaintiffs/Petitioners,
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` -against-
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`VILLAGE
`NELSONVILLE,
`OF
`VILLAGE
`ZONING
`BOARD
`OF
`OF NELSONVILLE
`APPEALS, VILLAGE OF NELSONVILLE PLANNING
`BOARD, WILLIAM BUJARSKI, as Building Inspector
`of
`the Village
`of Nelsonville, HOMELAND
`TOWERS, LLC, NEW YORK SMSA LIMITED
`PARTNERSHIP d/b/a VERIZON WIRELESS, and
`NEW CINGULAR WIRELESS PCD LLC d/b/a AT&T,
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` Defendants/Respondents.
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`Statement of the case
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`1.
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`This lawsuit challenges the legal sufficiency of the Consent Order1, which
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`represents a collection of defective land use decisions. As a contractual remedy, the
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`Consent Order’s authority derives from the statutes it implements; specifically, the TCA,2
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`1 Reference is made to a certain Stipulation of Settlement and Consent Order, dated January 29, 2020
`(the “Consent Order”), which is attached as Exhibit “A”, entered in the action styled: New York SMSA
`Limited Partnership d/b/a Verizon Wireless and Homeland Towers v. The Village of Nelsonville, et
`al., Docket No. 18-cv-5932 (Briccetti, J.) (the “DJ Action”).
`2 47 U.S.C. § 151, et seq. (“Communications Act” or “TCA”)
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`

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`Case 7:20-cv-08566 Document 1 Filed 10/14/20 Page 2 of 33
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`NEPA,3 SEQRA, and ESA.4 As a judicial act, endorsing the Consent Order bypassed
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`indispensable environmental review that should have first been implemented. This
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`action implicates the Court’s approval of the Consent Order as violating federal and state
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`laws, and thus failing to promote the objectives envisioned by the TCA, NEPA, SEQRA,
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`and the ESA.
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`2.
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`3.
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`Now, this Court must vacate, annul, and set aside the Consent Order.
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`In the DJ Action, the Providers5 sought to enforce alleged TCA violations
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`relating to the Village constructively denying its applications for site plan approval and
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`a variance to construct a one-hundred ten-foot (110’) monopine tower and ancillary
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`wireless telecommunications equipment in the Village of Nelsonville.
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`4.
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`The Providers mainly targeted the Village’s delays, flawed environmental
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`significance review of the project under SEQRA, and its failure to make a significance
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`determination before denying their applications. The Providers also asserted claims for
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`direct violations of TCA § 704. The Village caved to the hefty thud of the Providers’
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`claims in the DJ Action, which resulted in the de facto approval of the Providers’
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`applications. These were previously met with heavy public opposition.
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`5.
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`This “sue and settle” gambit paid off for the Providers, but prevented
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`interested members of the public from a meaningful opportunity to participate in the
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`SEQRA process. In its role as parens patriae, the Village failed in adequately
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`representing the interests of its citizens, who now bring this action.
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`3 The federal policies embodied by National Environmental Policy Act (“NEPA”) are implemented at
`the state level in this case by the New York State Environmental Quality Review Act, which is
`promulgated under 6 NYCRR Part 617, et seq. (“SEQRA”).
`4 16 U.S.C. § 1531, et seq. (the “ESA”).
`5 Collective reference is made to Homeland, Verizon, and AT&T (the “Providers”).
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`2
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`6.
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`Plaintiffs also seek to vacate, annul, and set aside the building permit
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`issued to Homeland on June 15, 2020 to construct a 95-foot tall monopine tower to
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`distribute wireless telecommunications services, for ancillary equipment, and site work
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`including construction of retention walls and a roadway (the “Building Permit”).
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`7.
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`At its essence, this case is about balancing the implementation of
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`environmental significance review with the TCA’s mandate of promoting the swift
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`development of wireless telecommunications infrastructure.
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`8.
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`The Communications Act does not entirely preempt NEPA and SEQRA by
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`virtue of the Supremacy Clause of the U.S. Constitution. But a balance must be struck
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`between preserving federal interests in developing wireless technology infrastructure
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`and implementing mandatory environmental review.
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`Jurisdiction and venue
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`9.
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`The declaratory and injunctive relief Plaintiffs seek are authorized by 28
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`U.S.C. §§ 2201 and 2202 and FRCP6 57.
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`10.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C §§ 1331
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`and 1343.
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`11.
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`Venue in the Southern District of New York is proper under 28 U.S.C. §
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`1391(b)(2) as Plaintiffs’ claims arose in the Ninth Judicial District.
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`12.
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`Jurisdiction over Plaintiffs’ state law claims is proper pursuant to 28 U.S.C.
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`§ 1367.
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`13.
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`The Court has pendent jurisdiction over Plaintiffs’ claims arising under
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`CPLR7 § 7803(3).
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`6 Fed. R. Civ. P. (“FRCP”).
`7 New York Civ. Prac. L. & R. (“CPLR”).
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`3
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`14.
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`Pursuant to CPLR § 271 this hybrid special proceeding is timely because it
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`is within four months of the Building Permit being issued on June 15, 2020.
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`15. No prior application for similar relief has been sought from this Court or
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`any other court of competent jurisdiction.
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`The parties and their legal standing
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`16.
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`Plaintiffs/petitioners David Eisenbach, George H. Eisenbach, and Joanne
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`Eisenbach are individuals who own and/or reside on real property known as 34 Billy’s
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`Way, Cold Spring, New York 10516 (the “Eisenbach Property”).
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`17.
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`Plaintiffs/petitioners Jennifer Young and Catherine Polera are individuals
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`who own and/or reside on real property known as 449 Lane Gate Road, Cold Spring, New
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`York 10516 (the “Young Property”).
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`18.
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`Plaintiffs/petitioners Dana Carini and Julien Davies are individuals who
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`own and/or reside on real property known as 75 Moffat Road, Cold Spring, New York
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`10516 (the “Carini Property”).
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`19.
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`Plaintiff/petitioners Rosemarie Orshakoski and Michael Orshakoski are
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`individuals who own and/or reside on real property known as 115 Moffat Road, Cold
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`Spring, New York 10516, (the “Orshakoski Property”).
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`20.
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`Plaintiff/petitioner Jonathan D. Champlin, Anne Champlin, and Raymond
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`H. Champlin are individuals who own and/or reside on real property known as 9
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`Rockledge Road, Nelsonville, New York 10516 (the “Champlin Property”).
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`21.
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`Plaintiff/petitioner Kenneth Levine is an individual who owns and/or
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`resides on real property known as 103 Healy Road, Nelsonville, New York 10516 (the
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`“Levine Property”).
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`4
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`22.
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`Plaintiff/petitioner Hope Rogers is an individual who owns and/or resides
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`on real property known as 160 Moffat Road, Cold Spring, New York 10516 (the “Rogers
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`Property”).
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`23.
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`Plaintiffs/petitioners Phil Weiss and Cynthia King are individuals who own
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`and/or reside on real property known as 752 East Mountain Road South, Cold Spring,
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`New York 10516 (the “Weiss Property”).
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`24.
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`Plaintiff/petitioner Jo Mango is an individual who owns and/or resides on
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`real property known as 392 Main Street, Nelsonville, New York 10516 (the “Mango
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`Property”).
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`25.
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`Plaintiff/petitioner Lauralee Holmbo is an individual who owns and/or
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`resides on real property known as 6 Parsonage Street, Cold Spring, New York 10516 (the
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`“Holmbo Property”).
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`26.
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`The Champlin Property is within very close proximity (i.e. less than five
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`hundred (500) feet) to the Project, thus intensifying its adverse physical and
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`environmental impacts--both qualitatively and quantitatively--from the general public
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`and community
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`27.
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`The Eisenbach Property, Young Property, Carini Property, Orshakoski
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`Property, Champlin Property, Levine Property, Rogers Property, and Weiss Property are
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`within close proximity (i.e. less than one thousand five hundred (1,500) feet) to the
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`Project, which still magnifies its adverse environmental impacts to a greater degree than
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`the general public and community.
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`5
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`28.
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`The Mango Property and Holmbo Property are close enough to the Project
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`that its adverse impacts will still yield an impact and permanent harm different that
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`those cast on general public and community.
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`29.
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`Each of the individual properties identified in Paragraphs 16-25, above, are
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`in such close proximity to the Project and the Premises to generate adverse
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`environmental impacts that are unique and fundamentally different from the public at
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`large including:
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`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`(f)
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`negative visual impacts (e.g., Project bulk and scale from
`building elements, and increased light and visual pollution);
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`physical disturbances to natural habitats due to Project site
`disturbances, grading, and an increase in impervious
`surface coverage on the Premises;
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`stormwater
`increased
`sedimentation;
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`runoff
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`causing erosion and
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`destruction and elimination of native wildlife habitats such
`as birds, bats, mammals, and native plant species;
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`displacement of rare and protected species of plants and
`animals including Indian Bats and Northern Long-eared
`Bats; and
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`displacement of native animals that once frequented the
`Premises and surrounding properties of plaintiffs.
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`30.
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`The Project’s individual and cumulative environmental impacts will
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`uniquely and particularly impact Plaintiffs due to their proximity, alone, to the Project.
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`31.
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`The failure to consider private rights of way and limited means of access to
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`the Premises over private roads or ways could also seriously compromise access to the
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`Project and the Premises.
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`6
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`32.
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`Plaintiffs will otherwise be directly and uniquely impacted by the Project
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`and its adverse physical and environmental impacts.
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`33. Upon information and belief, the Village is a municipal corporation
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`organized and existing under New York State laws with its principal office located at
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`Village Hall, 258 Main Street, Nelsonville, New York 10516.
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`34.
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`The Village, as a municipality, its departments, bureaus and officers
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`thereof, is empowered and responsible to perform and exercise all powers, duties,
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`privileges and immunities granted to it by the United States Constitution, New York
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`State Constitution and other applicable provisions of law.
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`35. Upon information and belief, the Planning Board was and is a duly
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`constituted board created by the Village pursuant to Article 2 of New York’s Village Law
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`and the Village’s Charter, Local Laws, Ordinances, and Resolutions.
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`36. Upon information and belief, the ZBA was and is a duly constituted board
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`created by the Village pursuant to Article 2 of New York’s Village Law and the Village’s
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`Charter, Local Laws, Ordinances, and Resolutions.
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`37. Homeland is a domestic limited liability company having an office located
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`at 9 Harmony Street, 2nd Floor, Danbury, Connecticut 06810.
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`38.
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`Verizon is a limited partnership authorized to do business in the State of
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`New York having an office located at One Verizon Way, Basking Ridge, New Jersey
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`07920.
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`39.
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`AT&T is a domestic corporation authorized to do business in the State of
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`New York.
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`7
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`40. Defendants8 are each a “person” subject to suit and are being sued for
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`declaratory relief, injunctive relief, or seeking judicial review of a final agency action(s)
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`discharged in their capacity as a Village official or a duly constituted board.
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`A. The Communications Act
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`Statutory background
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`41.
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`In 1996, Congress amended the Communications Act of 1934 to establish
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`“a pro-competitive, de-regulatory national policy framework designed to accelerate
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`rapidly private sector deployment of advanced telecommunications and information
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`technologies and services to all Americans by opening all markets to competition.”9 These
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`amendments were designed to dismantle legal, operational, and financial barriers to
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`telecommunications markets that had previously stifled competition in the past.
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`42.
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`TCA § 253(a) embodies this preemptive mandate in providing that
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`“[n]o State or local statute or regulation, or other State or local legal requirement, may
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`prohibit or have the effect of prohibiting the ability of any entity to provide any interstate
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`or intrastate telecommunications service.”10
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`43.
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`The Supremacy Clause of the U.S. Constitution empowers Congress to
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`preempt state or local laws or regulations under certain specified conditions.11 And
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`8 Defendants/respondents the Village of Nelsonville (“Village”), Village of Nelsonville Zoning Board of
`Appeals (“ZBA”), Village of Nelsonville Planning Board (“Planning Board”), William Bujarski, as
`Building Inspector of the Village of Nelsonville (the “Building Inspector”) (collectively, the “Village”),
`Homeland Towers, LLC (“Homeland”), New York SMSA Limited Partnership d/b/a Verizon Wireless
`(“Verizon”), and New Cingular Wireless PCD LLC d/b/a AT&T (“AT&T”) (collectively, the
`“Defendants”).
`9 S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1 (1996).
`10 47 U.S.C. § 253(a).
`11 See, e.g., Louisiana PSC, 476 U.S. at 368
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`8
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`preemption of state law or regulation occurs “when there is outright or actual conflict
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`between federal and state law.”12
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`44. However, TCA § 332(c)(7) entitled “preservation of local zoning authority”
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`delegates state and local authority over zoning and land use decisions for personal
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`wireless service facilities albeit with specific limitations on that authority. For example,
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`state or local governments may not discriminate against providers of functionally
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`equivalent services and must act on applications within reasonable periods of time.13
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`45.
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`Allegations that a state or local government has acted inconsistently with
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`TCA § 332(c)(7), et seq. are justiciable controversies that may be litigated.
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`B. NEPA and SEQRA
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`46. NEPA is “our basic national charter for protection of the environment.”14
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`The statute was conceived with the purpose of prioritizing comprehensive environmental
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`analysis to ensure that federal agencies carefully examine the environmental significance
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`and range of potential impacts from their decisions before they are undertaken. NEPA
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`also ensures that the public is made aware of the range of environmental effects and
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`impacts attending land use applications and agency decision-making.
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`47.
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`To license new wireless communications facilities, the FCC requires that
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`project proponents identify all actions that may have a significant environmental effect
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`for which environmental assessments must be prepared, and this includes:
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`(i)
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`Facilities that: (i) may affect listed threatened or endangered
`species or designated critical habitats; or (ii) are likely to
`jeopardize
`the continued existence of any proposed
`endangered or threatened species or likely to result in the
`destruction or adverse modification of proposed critical
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`12 Louisiana PSC, 476 U.S. at 368, citing, Free v. Bland, 369 U.S. 663 (1962).
`13 See 47 U.S.C. § 332(c)(7)(B) for a full list of enumerated limitations.
`14 40 C.F.R. § 1500.1(a).
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`9
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`Case 7:20-cv-08566 Document 1 Filed 10/14/20 Page 10 of 33
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`(ii)
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`habitats, as determined by the Secretary of the Interior
`pursuant to the Endangered Species Act of 1973 (“ESA”); and
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`Facilities that may affect districts, sites, buildings, structures
`or objects, significant in American history, architecture,
`archeology, engineering or culture, that are listed, or are
`eligible for listing, in the National Register of Historic
`Places.15
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`48.
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`In New York, NEPA’s charter and purpose is mechanized through SEQRA.
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`49.
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`Every land use decision requires that the reviewing agency examine the
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`proposed action’s impact on the environment by implementing the stages of the SEQRA
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`review process.16
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`50.
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`SEQRA’s implementing regulations require that “[n]o agency involved in
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`an action may undertake, fund or approve the action until it has complied with the
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`provisions of SEQRA.17 In determining the environmental significance of land use
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`decisions, the reviewing agency is charged with classifying the types of actions
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`comprising a land use and the potential to yield an adverse environmental impact.
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`51.
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` Type I or Unlisted actions under SEQRA are more likely to have significant
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`adverse environmental impacts.18 By contrast, Type II actions involve activities that
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`have been found by New York State as having no significant environmental impacts.
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`These actions are statutorily exempt from SEQRA review.19 Type II actions do not
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`require preparation of an EAF, a negative or positive declaration of environmental
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`15 47 C.F.R. § 1.1307(a)(3) and (4); 16 U.S.C. § 470f., which is also referred to as Section 106 of the
`National Historic Preservation Act (“NHPA”).
`16 22 N.Y.C.R.R. Part 617.
`17 6 NYCRR 617.3(a).
`18 6 NYCRR § 617.4.
`19 6 NYCRR § 617.5(a).
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`10
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`significance, or an EIS. SEQRA regulations enumerate certain actions as Type II, which
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`are categorically excluded from SEQRA review.20
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`52. Here, leaving aside how the Project could have or should have be typed
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`under SEQRA, the Village avoided this mandatory review process altogether.21
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`Factual background
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`53.
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`The Providers develop and operate telecommunications infrastructure to
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`provide mobile telephone and other wireless communication services nationwide by the
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`grant of licenses from the Federal Communications Commission.
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`54.
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`Through the adoption of federal mandates, regulations, and as promulgated
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`through acts of Congress, the proliferation of telecommunications facilities--in particular,
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`wireless communications--is a widely-recognized demand throughout the United States.
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`To that end, telecommunications companies including the Providers closely study and
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`deploy resources to ensure consistency and wireless communication services and to avoid
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`interruptions and gaps in wireless service coverage.
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`55.
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`Telecommunications companies regularly analyze and perform studies
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`assessing the above referenced infrastructure and wireless communication needs
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`throughout New York State. In particular, the Providers recently identified natural
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`topographical features throughout the Village of Nelsonville making it prone to wireless
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`transmission and reliability problems for to personal wireless service coverage and
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`emergency service providers.
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`56.
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`To this end, the Providers sought to locate and install a wireless service
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`generating facility on a certain 9.63-acre tract of real property known as 15 Rockledge
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`20 6 NYCRR 617.5(c).
`21 Complaint, ¶¶ 141-143.
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`11
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`Road, Nelsonville, New York 10516 (the “Premises”). Originally, they sought permission
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`to construct this antenna and ancillary equipment by means of a special use permit as
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`required by Code § 188-67, et seq. In addition, because the Premises is landlocked, the
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`Providers requested interpretive relief from the ZBA to determine the need for a variance
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`from New York State Village Law § 7-736, which requires that a property be accessible
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`by a street recognized on a duly filed and recorded plat. Additionally, the Providers
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`required site plan approval from the Planning Board. The Providers made these three
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`applications to the Village as detailed below (collectively, the “Applications”).
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`A. Planning and Zoning Board Proceedings
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`57. On July 20, 2017, the Providers filed applications for special use permit, an
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`application for variance with the ZBA, and a site plan application with the Planning
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`Board in connection with the Project. Subsequently, the Providers supplemented the
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`Applications with a host of correspondence and submissions detailing physical and
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`engineering data supporting the Project, area analyses assessing deficiencies in the need
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`for enhanced wireless services, and a long form environmental assessment form.
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`58.
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`The Building Inspector then referred the Project to the ZBA for review of
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`its special use permit application for relief from Village Law § 7-736. If approved by the
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`ZBA, the Planning Board would have then considered the Project’s site plan application.
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`59.
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`In the ensuing year, the Providers made numerous submissions to the ZBA
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`and Planning Board supplying additional engineering data, radiofrequency studies,
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`consulting reports and analyses, and correspondence supporting the Project. In response,
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`the Village engaged engineers and site planning professionals to analyze the Project’s
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`numerous components to provide feedback and guidance to the Village in its review.
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`12
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`60.
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`The Village’s professional consultants made findings including that gaps in
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`wireless coverage existed in the process of reviewing Project submissions.
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`61. On or about October 18, 2017, counsel for the Providers supplied
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`correspondence from New York State’s Historic Preservation Office “(SHPO”) to the ZBA
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`and Planning Board identifying that the Project, in its then-form, would not adversely
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`affect those districts, sites, buildings, structures, or objects either listed or eligible for
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`listing on the National Register of Historic Places.
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`62.
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`In October, 2017, the Planning Board began questioning the need for
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`alternative site proposals from that of the Premises. The Providers, in turn, identified a
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`lack of feasible alternatives to the Project including four nearby church steeples of
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`significantly less height and a 120-foot tall facility located at 2 Secor Street, which was
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`owned by the Village. Ultimately, these alternatives failed due to engineering
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`insufficiency and heavy public opposition.
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`63. On November 15, 2017, the ZBA and Planning Board commenced their joint
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`public hearings on the Applications.
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`64.
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`From November 15, 2017 through April 4, 2018, both boards held
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`protracted public hearings, during which time Project opponents raised a plethora of
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`objections. Chief among these objections was the Premises being landlocked. Access was
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`proposed over a private right of way. For decades, the strip of private property known as
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`“Rockledge Road” was used exclusively and uninterrupted as access to various landlocked
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`parcels including the Premises for personal use. Certain Project opponents argued that
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`the Providers (specifically, Homeland) proposed a use entirely outside of the scope of the
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`right-of-way through their building permit application.
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`13
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`65. Major Project objections also included disputes over demonstrating
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`significant gaps in wireless coverage and actual need to provide such communication
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`services by constructing a tower.
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`66. Opponents also cited the Project’s negative aesthetic and environmental
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`impacts on the Cold Spring Rural Cemetery, which had recently been listed as a property
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`of historic significance.
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`67. Many homeowners living in close proximity to the Project including
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`Plaintiffs spoke out against its adverse aesthetic and environmental impacts that would
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`be foisted upon them especially given their proximity to it.
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`B. Deciding the Applications
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`68. On May 30, 2018, the ZBA and Planning Board convened a joint meeting to
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`decide the Applications. At this meeting, the ZBA extensively discussed the progress of
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`the Applications and alternative concepts to a one-hundred and ten (110) foot monopine
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`antenna. Ultimately, Project alternatives were abandoned.
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`69.
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`The boards discussed that granting the Applications required two
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`conditions, the first being that telecommunications facility be made available for public
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`safety purposes and the second that tree preservation and screening be prioritized.
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`70.
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`The boards discussed the viability of potential alternative locations for the
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`Project and the lack of a viable alternative to the Project being sited on the Premises.
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`71.
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`The ZBA Chairman then discussed in detailed architectural and historical
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`basis for conserving the cultural and strict aesthetic characteristics surrounding the
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`Premises including the Cold Spring Cemetery. He then concluded that deciding the fate
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`of such wireless telecommunications facilities in the village of Nelsonville was best suited
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`14
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`
`to local boards rather than “a Federal District Court judge” dictating their future.22 The
`
`ZBA Chairman then voted in favor of the Providers’ special use permit application.
`
`72.
`
`ZBA Member Clements then followed by articulating her concerns to
`
`preserve viewsheds and visual impacts she believed exceeded the Code, and subsequently
`
`voting against the application. Two additional “no” votes followed and then a final vote
`
`in favor of the special use permit application.
`
`73.
`
`The ZBA denied the Providers’ special use permit application by a 3-2 vote.
`
`74. When prompted by Homeland’s attorney, the ZBA’s attorney then indicated
`
`that the related applications before the ZBA for relief from Village Law § 7-736 and for
`
`site plan approval were constructively denied.
`
`75. On June 12, 2018, the ZBA published notice of its decisions.
`
`C. The DJ Action.
`
`76. On June 29, 2018, the Providers commenced litigation against the Village
`
`alleging a host of federal and state claims. In particular, the Providers asserted the
`
`following ten causes of action against the Village:
`
`Count
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`Nature of relief sought
`ZBA determinations not in writing:
`47 U.S.C. § 332(c)(7)(B)(iii)
`Village’s actions violated FCC “Shot Clock Order”:
`47 U.S.C. § 332(c)(7)(B)(ii)
`Effective denial of applications:
`47 U.S.C. § 332(c)(7)(B)(iii)
`Effective prohibition:
`47 U.S.C. § 332(c)(7)(B)(i)(II)
`Prohibition of services, bar to entry,
`and unreasonable discrimination: 47 U.S.C. § 253
`Excessive fees
`
`
`22 Reference is made to Page 70, Lines 2-324 of the transcript of proceedings from a joint meeting of
`the ZBA and Planning Board held on May 30, 2018 and accompanying transcript that is available at:
`https://static.wixstatic.com/ugd/b667a0_176ee59251a9446d8e17f92ee1487ab8.pdf.
`
`15
`
`

`

`Case 7:20-cv-08566 Document 1 Filed 10/14/20 Page 16 of 33
`
`7
`8
`9
`
`10
`
`Judicial review (CPLR Article 78)
`Violation of Freedom of Information Law
`New York Constitutional claims alleging
`violation of 5th Amendment and Taking
`Violation of
`Open Meetings Law by illegal executive session
`
`
`
`
`
`77. On July 30, 2020, the Village appeared in the DJ Action by filing an answer
`
`with broad and qualified denials and raising stock affirmative defenses. The Village did
`
`not interpose any counterclaims.
`
`78. On January 29, 2020, the DJ Action was then settled by executing the
`
`Consent Order, which reduced the height of the monopine tower from 110 feet to 95 feet.23
`
`Additionally, the Consent Order outlined physical, environmental, and aesthetic
`
`parameters to mitigate the Project’s imposing nature, chief among them:
`
`(a)
`
`
`(b)
`
`
`
`surrounding the telecommunications facility on the premises with 8-
`foot-high cedar privacy fencing;
`
`implementing security and lighting systems designed to minimize or
`eliminate light pollution;
`
`(d)
`
`(c) minimizing or eliminating the Project’s noise pollution;
`
`reserving certain Project elements for the Building Inspector’s
`“reasonable approval” at the “building permit stage”24 such as
`monopine tower color, retaining wall design and appearance,
`retaining wall fencing, level spreader sizing and stone riprap at pipe
`outlets, and layout and geometry of the site access driveway;
`
`
`(e)
`
`
`(f)
`
`
`
`simulation of a pine tree to the greatest extent commercially
`reasonable for the monopine tower with high density branches in
`needles running from the top down to approximately 40 feet above
`finished grade consistent with attached drawings; and
`
`installation of vegetative screening and camouflaged netting and
`fencing.
`
`
`23 A true and correct copy of the Consent Order is attached as Exhibit “B”.
`24 Neither of these phrases are defined in the Consent Order.
`
`16
`
`

`

`Case 7:20-cv-08566 Document 1 Filed 10/14/20 Page 17 of 33
`
`
`
`(the “Consent Order Site Modifications”); (Consent Order, ¶ 2).
`
`
`79. Upon successfully completing the Consent Order Site Modifications, the
`
`Building Inspector was required to issue a certificate of compliance within fifteen (15)
`
`days. (Consent Order, ¶ 4).
`
`80.
`
`The Providers were also required to establish a $30,000 fund “to be held
`
`and distributed by the Village to nearby property owners to install landscaping” and the
`
`Providers “have no responsibility to maintain any such landscaping.” (Consent Order, ¶
`
`6). No further specificity was provided on how this parameter would be implemented.
`
`81. Oddly, the Consent Order also recites that “the Village makes no
`
`representation whatsoever whether the ability or authority to construct or maintain the
`
`proposed improvements in Exhibit A are within the rights Plaintiffs claim under the
`
`‘Existing Rockledge Road Access Easement’ (Liber 667, pg. 615) referenced therein.”25
`
`(Consent Order, ¶ 8)
`
`82.
`
`Perhaps the most controversial recitation is that “this Consent Order shall
`
`be deemed a Type II action under the New York State Environmental Quality Review
`
`Act, as it is the action of a court. 6 N.Y.C.R.R. § 617.5(c)(46).” (Consent Order, ¶ 13).
`
`
`
`D. Project changes and building permit review
`
`83.
`
`Since the ZBA denied the Providers’ special use permit application and
`
`constructively denied the balance of the sought-after relief nearly two years and six
`
`
`25 This reference is believed to harken back to significant neighbor opposition to the Applications
`addressing whether the Homeland, as successor-in-interest to the Premises, is actually possessed of a
`right, title, or interest to the right of way providing access to the otherwise landlocked Premises. This
`issue is concurrently being litigated by interested parties in State Court (i.e. Supreme Court of the
`State of New York, Putnam County).
`
`17
`
`

`

`Case 7:20-cv-08566 Document 1 Filed 10/14/20 Page 18 of 33
`
`
`
`months ago, the Project has undergone significant changes beyond the Consent Order
`
`Site Modifications.
`
`84.
`
`Shortly after adopting the Consent Order, the Providers filed an application
`
`for building permit for the Project with the Village’s Building Department.
`
`85.
`
`By a rejection letter, dated March 26, 2020, the Building Inspector cited
`
`substantial changes to the Project including:
`
`(a)
`
`(b)
`
`(c)
`
`Significantly less detailed plans than the original set supplied
`to the Court in the DJ Action (i.e. fewer drawings, details, and
`Code compliance tables);
`
`Realignment of the access drive to and on the Premises
`requiring potential removal of additional trees;
`
`Lack of compliance with NYS Fire Code including omission of
`the required “turnaround” and omission of emergency access
`key box;
`
`(d)
`
`Omission of two required parking spaces required by Code;
`
`(e)
`
`(f)
`
`(g)
`
`Drive profile reflecting gradient of 14.89% exceeding NYS
`Fire Code maximum of 10%;
`
`Omission of drawings reflecting nature, appearance, and
`positioning of communications tower pole; and
`
`Omission of retaining wall design reflecting appearance and
`structural composition.
`
`
`
`
`
`
`
`
`
`
`
`
`
`86.
`
`By letter, dated May 28, 2020, Homeland responded to the Building
`
`Inspector’s deficiency letter including access drive realignment:
`
`“the access drive has been realigned in consideration to minimizing
`impacts to the subject property both during and after completion of
`construction. The minor realignment of t

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