Muttontown to Seek Leave to Dismiss AT&T’s Cell Tower Complaint
The village of Muttontown, New York, signaled its intention to file a motion to dismiss AT&T’s complaint alleging the municipality violated the Telecommunications Act by denying AT&T’s application to build a 165-foot-tall cell tower to remedy service gaps in its wireless coverage (see 2210090001).
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It was Muttontown’s first official answer to AT&T’s Sept. 15 complaint. The letter motion filed Monday came after multiple deadline extensions in the case, plus two motions to intervene filed by nearly three dozen resident property owners. The residents said they fear the village is colluding with AT&T behind their backs and would settle the complaint by allowing the tower project to move forward over their objections. AT&T and Muttontown said they oppose the motions to intervene.
The village and its four component boards seek leave to dismiss the complaint “in its entirety,” Muttontown’s lawyers wrote U.S. District Judge Joanna Seybert for Eastern New York in Central Islip, in the letter motion (docket 2:22-cv-05524) seeking a conference to address its anticipated motion to dismiss. AT&T sued the village itself, plus its board of trustees, its planning board, its site and architectural review board (SARB) and its zoning board of appeals (ZBA), but only the board of trustees and ZBA had authority to approve the tower, so the action against the other village entities “must be dismissed,” said the letter.
The shot clock allegation against the ZBA “should be dismissed as moot” because ZBA's denial of AT&T's application was issued before the shot clock expired Aug. 18, Muttontown told the judge. The shot clock allegation against the board of trustees, planning board and SARB should also be dismissed, since none of those boards “issued a final decision” on the cell tower, it said. Even when carriers have asserted claims of prohibition, courts “have regularly dismissed such claims where there has been no final decision,” it said. “Nothing in the Telecommunications Act disturbs the doctrine of ripeness,” and that should be grounds for dismissing the action against the boards that never weighed in on AT&T’s cell tower, it said.
On AT&T’s allegation that Muttontown violated New York Town Law by failing to hold a public hearing on AT&T’s application for a special use permit within 62 days after receiving the application, there are “corresponding provisions” in Muttontown’s village law about special permit and site plan hearings, the municipality told the judge. The courts “have been clear that where there is a violation of such sections, the only appropriate remedy is a special proceeding to compel the local boards to issue a decision on the applications,” it said.
The statutes setting those time frames “impose no penalty for their violations,” said Muttontown. There's no “corresponding 62-day deadline” for ZBA and SARB hearings under New York law, it said. Since the ZBA did hold a hearing, AT&T’s allegation that the ZBA violated New York law is moot, it said. As for the allegations that the ZBA violated the Telecommunications Act by the manner in which it denied AT&T’s application for the cell tower, AT&T has failed to, “in the light most favorable” to the company, “plausibly state a valid claim for relief in the complaint,” it said.