13-2921-cv
Crown Castle v. Town of Greenburgh


                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 40 Foley Square, in the City of New
York, on the 17th day of January, two thousand fourteen.

PRESENT:    REENA RAGGI,
            DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                           Circuit Judges,

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CROWN CASTLE NG EAST INC.,
                    Plaintiff-Appellee,

                              -v.-                           13-2921-cv

TOWN OF GREENBURGH, NEW YORK, TOWN BOARD
OF THE TOWN OF GREENBURGH, NEW YORK,
                  Defendants-Appellants.

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FOR PLAINTIFF-APPELLEE:              T. SCOTT THOMPSON, Davis Wright
                                     Tremaine LLP, Washington, D.C.
FOR DEFENDANTS-APPELLANTS:     ANTHONY T. VERWEY (Andrew D.H.
                               Rau, Amanda J. Sundquist, on the
                               brief), Unruh, Turner, Burke &
                               Frees, P.C., West Chester,
                               Pennsylvania.

            Appeal from the United States District Court for the

Southern District of New York (Seibel, J.).

            UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

            Defendants-Appellants Town of Greenburgh and its Town

Board (together, the "Town") appeal from a judgment entered on

July 9, 2013, to the extent it ordered the Town to grant the

applications of plaintiff-appellee Crown Castle NG East Inc.

("Crown Castle") for special permits to install wireless

telephone equipment.    Judgment was entered after the district

court issued its opinion and order on July 3, 2013, granting

Crown Castle's motion for summary judgment with respect to Count

III of its first amended complaint, which alleged a violation of

§ 332(c)(7)(B)(iii) of the Telecommunications Act of 1996 (the

"Act"), 47 U.S.C. § 332(c)(7)(B)(iii).1   See Crown Castle NG East


1
     The district court also granted the Town's motion to
dismiss Counts I and II of the first amended complaint, which
asserted violations of 47 U.S.C. §§ 253 and 332(c)(7)(B)(ii),
respectively. Crown Castle has not appealed the dismissal of
these counts.


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Inc. v. Town of Greenburgh, N.Y., No. 12-cv-6157, 2013 WL

3357169, at *1 (S.D.N.Y. July 3, 2013).

          We assume the parties' familiarity with the facts and

record of the underlying proceedings, which we reference only as

necessary to explain our decision to affirm.

          Crown Castle designs and installs fiber-optic based

networks, known as Distributed Antenna Systems ("DAS").2

Beginning on November 13, 2009, Crown Castle applied for twenty

permits to install DAS equipment in the Town of Greenburgh, New

York.   After a protracted application process, the Town denied

the application on July 24, 2012, ostensibly for two reasons:

(1) Crown Castle failed to demonstrate a need for the proposed

facilities as required by § 285-37(A)(9)(a) of the Town's

Antenna Law "and consistent with the law of the Second Circuit,"

because the facilities were "either purely speculative or for

the apparent benefit of a single 'client' of the Applicant"; and

(2) Crown Castle failed to demonstrate that the proposed

facilities were "of the 'minimum height and aesthetic

intrusion,'" as required by § 285-37(A)(9)(b) of the Town's




2
     A DAS is made up of "nodes," each of which uses a small,
low-power antenna, laser and amplifier equipment to convert
radio frequency signals to optical signals and vice versa.

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Antenna Law, because the equipment was either "purely

speculative or . . . twice the size needed."

         Crown Castle commenced this action below asserting

violations of the Act.    "The purpose of the [Act] was to

encourage competition and facilitate the spread of new

technologies."     MetroPCS New York, LLC v. City of Mount Vernon,

739 F. Supp. 2d 409, 422 (S.D.N.Y. 2010); see H.R. Rep. No.

104-458, at 113 (1996)(Conf. Rep.); see also City of Rancho

Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115 (2005) (goal of

§ 332(c)(7) "was reduction of the impediments imposed by local

governments upon the installation of facilities for wireless

communications, such as antenna towers . . . , [through]

imposi[tion of] specific limitations on the traditional

authority of state and local governments to regulate the

location, construction, and modification of such facilities"

(internal citations omitted)).     Count III alleged a violation of

47 U.S.C. § 332(c)(7)(B)(iii), which provides that the denial of

a request for permission to build a wireless facility must be

"in writing and supported by substantial evidence contained in a

written record."

         In its July 3, 2013 opinion, the district court held

that the Town's determination was not supported by "substantial



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evidence" as required by Section 332(c)(7)(B)(iii).     Crown

Castle, 2013 WL 3357169, at *20.     This appeal followed.3

           We review a decision granting summary judgment de

novo, after construing all the evidence and drawing all

reasonable inferences in favor of the non-moving party.

Maraschiello v. City of Buffalo Police Dep't, 709 F.3d 87, 92

(2d Cir. 2013).   We affirm substantially for the reasons set

forth by the district court in its thorough and well-reasoned

opinion.

    A.      Necessity

           The Town concluded that Crown Castle had failed to

demonstrate a need for the DAS facilities, as required by

§ 285-37(A)(9)(a) of the Town's Antenna Law, because the

proposed facilities were "either purely speculative or for the

apparent benefit of a single 'client' of the Applicant."        We

agree with the district court that this determination was not

supported by substantial evidence.

           First, the conclusion that the need was "purely

speculative" was belied by the uncontradicted evidence presented

3
     On appeal, the Town moved to stay enforcement of the July
3, 2013, order. Crown Castle opposed the stay and requested an
order directing the Town to issue all permits within five days.
In an order dated October 21, 2013, this Court denied the motion
to stay enforcement as well as the request for an order
directing the Town to issue the permits within five days.

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in the special permit proceedings.    That evidence showed that

(1) Crown Castle was a public utility authorized by the New York

Department of Public Service to operate as a facilities-based

provider and reseller of telephone service, (2) Crown Castle did

not have any existing sites in the Town, and (3) Crown Castle's

client, MetroPCS, likewise had a gap in service in the area.

The fact that Crown Castle had only a single client at the time

that would benefit from the proposed facilities was not

significant, as there still was a need for the proposed

facilities.

          Second, the Town based its decision on an incorrect

interpretation of the law.   The Town suggested that this Court

had definitively ruled in Sprint Spectrum L.P. v. Willoth, 176

F.3d 630 (2d Cir. 1999), that a service gap is viewed from the

perspective of "users in the given area."    As this Court later

made clear, however, the question of which perspective to use in

determining a service gap –- that of the service provider or

that of users in the area –- is unsettled.    Omnipoint Commc'ns,

Inc. v. City of White Plains, 430 F.3d 529, 535 n.3 (2d Cir.

2005).   Thus, the district court was correct in finding that the

Town's determination was "premised on an error of law," and that




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therefore its determination was "not supported by substantial

evidence."    Crown Castle, 2013 WL 3357169, at *18.4

    B.       Aesthetic Intrusion

         The Town's determination regarding aesthetic intrusion

is also not supported by substantial evidence.    In its

determination, the Town's stated objection was that the proposed

installation was not minimally intrusive.    While recognizing

that "aesthetics can be a valid ground for local zoning

decisions," the district court found that "the evidence in the

Board's record does not support [the finding] that the size of

Plaintiff's proposed shroud box correlates with aesthetic

intrusion."    Id. at *20 (internal citations omitted).    We agree

with the district court that the intrusion was de minimus –- the

antenna added less than eight feet to existing thirty-foot


4
     We need not decide which perspective is correct, but merely
note that Town's suggestion that the law is clear is wrong.
Moreover, Willoth and Omnipoint were decided without the benefit
of the Federal Communications Commission's subsequent ruling
that state or local authorities cannot deny an application
"solely because 'one or more carriers serve a given geographic
market'" and that doing so unlawfully "'prohibits or ha[s] the
effect of prohibiting the provision of personal wireless
services,' within the meaning of Section 332(c)(7)(B)(i)(II)."
See Petition for Declaratory Ruling (Shot Clock Order), 24
F.C.C. Rcd. 13994, 14016 (2009), petition for review denied,
City of Arlington, Tex. v. FCC, 668 F.3d 229 (5th Cir. 2012),
aff'd, 133 S. Ct. 1863 (2013). While there may be room in the
process to consider the needs of the local community, the state
and local authorities cannot ignore the needs of service
providers.
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utility poles, and photographs in the record show that Crown

Castle's installations would be no more intrusive than existing

installations of other carriers.     In contrast, a more typical

cell tower is approximately 100 feet tall.       Id.   Moreover, the

Town did not explicitly find that Crown Castle's proposed shroud

boxes would constitute an aesthetic intrusion; it merely

speculated that the boxes could be smaller, without proof in the

record that this was so.   Id.    Moreover, even assuming a smaller

box were available, the aesthetic intrusion created by the

proposed box was still de minimus.       The Town's denial was,

therefore, not supported by substantial evidence.

         We have considered the Town's remaining arguments and

find them to be without merit.     Accordingly, we AFFIRM the

judgment of the district court.



                                 FOR THE COURT:
                                 CATHERINE O'HAGAN WOLFE, CLERK




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