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Up State Tower Co. LLC v. Town of Cheektowaga

School District May Permissively Intervene in Action Over Cellular Tower Permit's Denial

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ORDER ON MOTION TO INTERVENE AND MOTION TO CONSOLIDATE CASES (Docs. 7, 14)   This case concerns the efforts of plaintiffs Up State Tower Co., LLC and Buffalo-Lake Erie Wireless Systems Co., LLC d/b/a Blue Wireless (collectively “Plaintiffs”) to construct a wireless telecommunication tower (the “tower”) in the Town of Cheektowaga, New York (the “Town”). Plaintiffs filed this suit against the Town and the Town Board, alleging that the defendants’ actions in denying their application for a special use permit to construct the towers violated the federal Telecommunications Act, 47 U.S.C. §§332(C)(7)(B)(i)(II) and 332(C)(7)(B)(iii), and Articles 78 and 30 of the New York Civil Practice Laws and Rules. (Doc. 1.) Two motions are currently pending. The first is a motion to intervene filed by the West Seneca Central School District (the “District”).1 (Doc. 7.) The second is Plaintiffs’ motion to consolidate this case with an action they previously filed against the Town. (Doc. 14.) Background In September 1985, the District executed a conveyance that transferred real property located at 294 North Seine Drive (the “Proposed Site”) to the Southline Little League, Inc. (“Southline”), formerly known as the Southline Athletic Association. (Doc. 7-1 5; Doc. 7-2.) The District’s conveyance was “subject to the restriction that the use of the [Proposed Site] shall be limited to recreational purposes only in accordance with the purposes set forth in the certificate of incorporation of Southline Athletic Association, Inc….” (Doc. 7-2 at 3.) On October 17, 2016, Plaintiffs applied for a special use permit to construct the tower on the Proposed Site to remedy an alleged gap in cellular service coverage. (Doc. 1

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