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Up State Tower Co. LLC v. Town of Kiantone

Court Adheres to Ruling That Town Should Approve Cell Tower Application, Issue Variances

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DECISION and ORDER INTRODUCTION   Up State Tower Co., LLC (“Plaintiff”) commenced this action against the Town of Kiantone, the Town Board of the Town of Kiantone and the Building Department of the Town of Kiantone (collectively, “Defendants”) alleging that Defendants violated the Telecommunications Act of 1996 (“TCA”), Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. §151 et seq., as amended), in denying its application for a special use permit to construct a public utility wireless telecommunication facility. Presently before the Court is Defendants’ Motion for Reconsideration. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Plaintiff develops and builds telecommunications facilities on behalf of Blue Wireless, a telecommunications carrier licensed by the Federal Communications Commission (“FCC”) to operate in the Jamestown, New York area, including the Town of Kiantone (“the Town”). The Town is a municipal corporation in Chatauqua County, New York. The Town Board of the Town of Kiantone (“the Board”) is the Town’s governmental body. At issue in this litigation is Plaintiff’s Tower Permit Application (“the Application”) dated July 30, 2015, seeking permission to construct a wireless telecommunications tower at 1710 Foote Avenue, in Jamestown, New York (“the Proposed Site”). On December 9, 2016, this Court issued a Decision and Order granting Plaintiff’s motion for summary judgment on as to its first cause of action and ordered, as a remedy, that the Town issue a written decision on the Application within 20 days. On December 19, 2016, the Board issued a “Resolution Denying the Application of Up State Tower Co., LLC For Town Tower Permit, Area Variances and Site Plan Review” (“the Resolution”) (Dkt #39-3). After making a number of factual findings, see id.

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