GRASSROOTS FOR GREENBURGH
P.O. Box 877, Elmsford, NY 10523
NEXTEL FILES FEDERAL LAWSUIT AGAINST TOWN FOR WFAS SITE DENIAL
April 14, 1999
The following is the scanned text of the Complaint filed by David Snyder, attorney for Nextel Communications, on April 14, 1999. The complaint alleges that the Town's actions have already caused Nextel to suffer direct economic injury in excess of $500,000.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------
NEXTEL OF NEW YORK, INC.
d/b/a NEXTEL COMMUNICATIONS
Plaintiff,
-against
CIVIL ACTION NO.
98 CIV. 6800 (CLB)
THE TOWN OF GREENBURGH, the
Greenburgh Town Board, the Town of
Greenburgh Antenna Review Board, the
Zoning Board of Appeals of the Town
of Greenburgh, and Building Department
of the Town of Greenburgh,
FIRST AMENDED
COMPLAINT
Defendants.
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Plaintiff, Nextel of New York, Inc., d/b/a Nextel Communications, by its undersigned counsel, Snyder & Snyder, complaining of defendants, alleges as follows:
I. PRELIMINARY STATEMENT
1. This action is brought under §704 of the federal Telecommunications Act of 1996 ("TCA"), to enjoin and declare unlawful the delay in considering and the denial by defendants, of the land use approvals required by plaintiff to install (12) small panel antennas on an existing 450' radio tower.
II. JURISDICTION AND VENUE
2. Jurisdiction is vested in this Court pursuant to 28 U.S.C. §1343 and §1331. This Court has pendant jurisdiction over any and all New York Law claims pursuant to 28 U.S.C. §1367. Venue is proper in this district under the provisions of 28 U.S.C. §1391(a).
[PAGE 2 STARTS HERE]
III. THE PARTIES
3. Plaintiff, Nextel of New York, Inc. d/b/a Nextel Communications (hereinafter the "plaintiff"), is a Delaware corporation, with an office located at One North Broadway, White Plains, New York 10601. Plaintiff is duly authorized to conduct business in the State of New York.
4. Plaintiff provides "commercial mobile radio service" and "personal wireless service," as those terms are defined, respectively, under 47 U.S.C. §332(d)(1) and 47 U.S.C. §332(c)(7)(C)(i).
5. Plaintiff has been authorized by the Federal Communications Commission ("FCC") to construct and operate a digital mobile radio system in various areas of the United States of America, including the State of New York, and within the defendant Town of Greenburgh.
6. Defendant, Town of Greenburgh (the "Town") and the Greenburgh Town Board, are respectively, a municipal corporation and its governing body, created under the laws of the State of New York, and each having an office at 320 Tarrytown Road, Elmsford, New York 10523.
7. Defendant, Town of Greenburgh Building Department, is authorized by the laws of the State of New York to interpret and enforce the building code and zoning ordinance (the "Zoning Ordinance") of the Town of Greenburgh, and to issue building permits in accordance therewith.
8. Defendant, Town of Greenburgh Zoning Board of Appeals is an adjudicative body authorized by the laws of the State of New York, to inter alia, determine appeals from [PAGE 3 STARTS HERE] decisions of the Building Department, and to grant special permits for the construction and installation of antenna and related telecommunications facilities, such as those proposed by Plaintiff.
9. Defendant, Town of Greenburgh Antenna Review Board (the "ARB" f/k/a the "Antenna Advisory Board"), is an advisory board, created by Local Law No. 7 of 1996 of the Town of Greenburgh, to inter alia, provide comments to the Town government on the placement of antennas.
FACTS COMMON TO ALL COUNTS
10. Plaintiff is authorized by the FCC to construct and operate a new mobile radio service, which competes with traditional cellular and wireless phone service. Plaintiff provides enhanced Specialized Mobile Radio Service ("SMR Service"), which combines traditional mobile telephone, paging, messaging, and dispatch services into a single handset. Plaintiff's customers communicate through their handsets via a network of personal wireless service facilities constructed and operated by plaintiff.
11. The provision of SMR Service is only possible through a carefully designed network of antenna sites, which take account of natural and manmade features in the environment, to establish a seamless and consistent communications grid.
12. Plaintiff's network must be capable of "handing of" communications to another wireless facility within plaintiff's system. Where gaps in service exist, plaintiff's customers are unable to initiate, receive or maintain calls.
13. Plaintiff's engineers conduct detailed technical studies and measurements to determine where wireless facilities must be installed to close a gap in coverage. Unlike [PAGE 3 STARTS HERE] wireline communications, SMR Service cannot be piped to subscribers over the conventional landline telephone system. Rather, each site in plaintiff's network is itself a vital link in the wireless network upon which plaintiff's customers rely for service.
14. Consistent with the foregoing, and prompted by a need to close a gap in coverage which continues to exist in the Town of Greenburgh, plaintiff identified the existing 450' WFAS radio tower located on Secor Road, Hartsdale, New York as an ideal candidate for the installation of SMR antennae. The WFAS radio tower was originally approved in the mid-1940's.
15. On March 31, 1998, plaintiff filed an application pursuant to Section 285-37A(1) of the Town of Greenburgh Zoning Ordinance (the "Application"), requesting authority to install nine (9) small panel antennas (43"H x 6.5"W x 8"D) on the existing 450' WFAS radio tower, together with a 200 square foot equipment shelter at the base thereof, with three (3) diagnostic antennas, each roughly the size of a coffee cup (collectively plaintiff's proposed installation is hereinafter referred to as the "Facility").
16. The Application included extensive documentation supporting the need for the site, documenting the gap in coverage the site was designed to eliminate, and demonstrating that the Facility would have no environmental, aesthetic or other impact on the surrounding community.
17. The material submitted by plaintiff in support of the Application contained all the information required under the Zoning Ordinance. By stipulation filed with this Court and dated October 15, 1998, defendants declared the Application complete.
18. On March 25, 1999, nearly one year after the Application was filed, and after [Page 5 STARTS HERE] this Court issued an Order directing defendants to consider the Application without further unreasonable delay, the Town of Greenburgh Zoning Board of Appeals (the "ZBA") denied the Application (the "Denial"). A copy of the Denial is attached hereto as Exhibit 1.
19. The ZBA denied the Application, finding that "a better site" was available to meet plaintiff's coverage requirements. The "better site" selected by the ZBA is the K-45 Con-Ed electrical transmission tower (the "K-45 Tower"). The K-45 Tower is located in a residential zone, within the Town's "Hilltop Preservation District," and would have required a special permit and numerous land use variances under the Zoning Ordinance now, and as the Zoning Ordinance existed at the time of the Denial.
20. The ZBA selected the K-45 Tower as an "alternative," having first determined that plaintiff's network should be limited to providing signal coverage to a hand held outdoor cell phone. However, plaintiff has designed its network for in-car coverage, which requires a signal strength stronger than the ZBA is willing to permit.
21. The ZBA is not expert in the field of radio communications. It therefore hired John Hidle, an engineer employed by the Carl T. Jones Corporation, to review sites selected by the ARB as alternates to the WFAS site proposed by plaintiff. On January 28, 1999, Mr. Hidle submitted his report to the ZBA (the "Hidle Report"). The Hidle Report did not review, and offered no opinion on plaintiff's need for the Facility. The Hidle Report simply compared predicted coverage from the Facility with two (2) alternative locations -- one of which was the K-45 Tower. A copy of the Hidle Report is attached hereto as Exhibit 2.
22. The Hidle Report "predicted" in error, that plaintiff "should be able to achieve" comparable coverage from the K-45 Tower, albeit with a "slightly different" [PAGE 6 STARTS HERE] coverage pattern.
23. The Hidle Report erroneously concluded that the K-45 Tower was a suitable alternate, having assumed without any basis in law, that plaintiff would voluntarily limit its coverage to "on-street portable phones." See page 6, Transcript of Public Hearing of February 8, 1999, a copy of which is attached as Exhibit 3.
24. The erroneous predictions in the Hidle Report also stem from the fact that Mr. Hidle thought plaintiff operated an FM Analog System, rather than an SMR Digital System. See page 11, Transcript of Public Hearing, February 8, 1999. Mr. Hidle further admitted that he had no experience in operating or designing a system of the type operated by plaintiff. See page 23, Transcript of Public Hearing, February 8, 1999.
25. The ZBA does not have the authority in this instance, to impose a competitive restraint on the signal coverage plaintiff provides for its nationwide wireless network, particularly since such a coverage restraint operates as a de facto standard, for which no rulemaking has been undertaken.
26. Plaintiff operates its national network under license from the FCC. Plaintiff is designing its network to provide a dependable and consistent level of nationwide service and coverage. The inferior level of service the ZBA seeks to impose, is akin to a misplaced speed-bump. It unfairly impedes plaintiff's ability to attract and retain subscribers, and undermines plaintiff's ability to compete with incumbent landline and other wireless carriers.
27. Plaintiff requires a level of signal coverage sufficient to provide service to a hand held phone operating inside a car or building. See Affidavit of Douglass A. White, P.E. plaintiff's radio frequency engineer which was submitted to the ZBA on February 8, 1999 [PAGE 7 STARTS HERE] (the "White Affidavit"). A copy of the White Affidavit is attached hereto as Exhibit 4.
28. The White Affidavit establishes that plaintiff has a gap coverage that the Facility is designed to cover, and that plaintiff has designed its network for in-car coverage, so that mobile users (including residential, commercial, police, fire and ambulance personnel) can send and receive information from inside a moving vehicle.
29. The FCC has not defined the minimum level of service a wireless carrier must provide, nor has it restricted the maximum level of service a carrier must provide, or the area of coverage to be served under an FCC license. That competitive decision is left to the carrier, which in this case, operates as a public utility of the State of New York.
30. The Second Circuit recently held in AT&T v. Town of Oyster Bay, 166 F.3d 490, at 494 (2d Cir. 1999), that "In New York, cellular telephone companies are afforded the status of public utilities. As such, a cellular telephone company's application for a variance must be judged by the Town Board on a different standard than that applied to the usual application for a use variance. See Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 403 N.Y.S.2d 193, 374 N.E.2d 105 (1978)."
31. In Consolidated Edison Co. v. Hoffman, supra., the New York Court of Appeals determined that where a public utility demonstrates a need for its proposed facility, required land use approvals must be granted, noting further that "where the intrusion or burden on the community is minimal, the showing required by the utility should be correspondingly reduced." Id., 43 N.Y.2d at 611.
32. The record in this case shows that plaintiff's use of the WFAS tower would not impose any noise, odor, dust, traffic, aesthetic, or other burdens on the community. In the [PAGE 8 STARTS HERE] absence of such impacts, the denial of the Application is plainly unlawful under the TCA and New York State law.
33. The TCA is central to this case.
34. The TCA was landmark legislation, because inter alia it shifted to local governments, the burden of proof in land use cases involving federally licenced [sic] wireless facilities. Under Section 704 of the TCA (codified as 47 U.S.C. §332(c)(7)(B) (iii)), a local government, not the applicant, must justify its land use decisions based upon substantial evidence.
35. In this case, the Town has not met its burden of proving that the public utility facility proposed by the Application was unnecessary, would impose a substantial burden on the community, or that a feasible alternative site existed.
36. The record demonstrates that plaintiff did not propose to enlarge, increase the height of, or change the use of the WFAS tower. No traditional zoning or environmental impacts were before the ZBA when it denied the Application.
37. The record further demonstrates that plaintiff needs the Facility to close an existing gap in coverage, and that the Facility did not threaten public health, safety and welfare. Accordingly, the police powers of local government cannot in this instance, be used to constrain the legitimate coverage requirements of a federally licensed wireless carrier.
38. The decision of the ZBA delaying and denying the Application, is contrary to law, and continues to impose significant economic damage on plaintiff.
FIRST CAUSE OF ACTION
39. Plaintiff repeats and realleges each and every allegation contained in [PAGE 9 STARTS HERE] Paragraphs 1 through 38 as if fully set forth herein.
40. The TCA was signed into law on February 8, 1996, with the stated purpose to "promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." (Preamble to the TCA).
41. The TCA contemplates expedited resolution of actions brought thereunder, and provides that:
"Any person adversely affected by any final action or failure to act by a state or local government or any instrumentality thereof that is inconsistent with this subparagraph may, within thirty (30) days after such action, or failure to act, commence an action in any court of competent jurisdiction. The court shall hear and decide such action on an expedited basis (emphasis supplied)." (47 U.S.C. §332[c][7][B][v]).
42. Congress enacted the TCA recognizing that local land use approvals could impede the rapid development of competitive telecommunications networks. Congress therefore directed, that when a federally licenced [sic] telecommunications facility is the subject of a local zoning decision, the local government, not the applicant, must show that its decision is supported by substantial evidence. The TCA provides:
"Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record (emphasis supplied)." (47 U.S.C. §332[c][7][B](iii).
43. The Facility is a "personal wireless service facility" as defined in the TCA. See (47 USC §332[c][7][C](ii)). [PAGE 10 STARTS HERE]
44. Plaintiff has demonstrated that: (i) the Facility is required to close an existing gap in plaintiff's wireless network; (ii) the Facility would not impose a substantial burden on the community; and (iii) the K-45 Tower does not provide coverage sufficient to close the existing gap in plaintiff's network.
45. The K-45 Tower is located in a residential zone, in a Hilltop Preservation District (which qualifies as a Critical Environmental Area), and is within forty-five feet (45') of the property line of a public park and a playground. See letter from Tectonic Engineering and Consultants P.C., dated February 8, 1999, attached hereto as Exhibit 5. At the time of the Denial, Section 285-37A(8) of the Zoning Ordinance expressly prohibited plaintiff from placing its antenna within 350' feet of public park or playground.
46. Under the Zoning Ordinance, the K-45 Tower is no better than the WFAS tower. From a coverage perspective, the K-45 Tower is inferior to the WFAS tower.
47. The record demonstrates that plaintiff is a public utility; that the Facility is required to close a gap in coverage; that the Facility would not impose a substantial burden on the community; and that the K-45 Tower is not an acceptable alternative.
48. The Denial complained of herein, is not based on substantial evidence and is violative of the rights secured to plaintiff under 47 U.S.C. §332[c][7][B](iii), and the Due Process Clause of the United States Constitution.
SECOND CAUSE OF ACTION
49. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 48 as if fully set forth herein.
50. The TCA is "an unusually important legislative enactment," establishing a [PAGE 11 STARTS HERE] national goal of encouraging the "rapid deployment of new telecommunications technologies (emphasis added)." Reno v. ACLU, 117 S.Ct. 2329, 2337-38, 138 L.Ed.2d 874 (1997).
51. Section 704 of the TCA established the National Wireless Telecommunications Siting Policy.
52. The National Wireless Telecommunications Siting Policy, furthers the decision by Congress "to establish a federal regulatory framework to govern the offering of all commercial mobile [radio] services." See Omnibus Budget and Reconciliation Act of 1993, 107 Stat. 312; H.R. Conf. Rep. 103-213, 103d Cong., 1st Sess. 490 (1993) (emphasis added). The intent of Congress in establishing this federal regulatory strategy, was to "foster the growth and development of mobile services that, by their nature, operate without regard to state lines as an integral part of the national telecommunications infrastructure." H.R. Rep. No. 103-111, 103d Cong., 1st Sess. 260 (1993) (emphasis added).
53. Section 704 of the TCA, as codified at 47 U.S.C. §332(c)(7)(B)(ii), is the core of the National Wireless Telecommunications Siting Policy, and mandates inter alia, that:
"A State or local government or instrumentality thereof shall act on any request for authorization to place, construct or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request (emphasis supplied)." Id.
54. Plaintiff provides personal wireless service within the meaning of the National Wireless Telecommunications Siting Policy, and is legally entitled to the procedural safeguards established under the TCA. [PAGE 12 STARTS HERE]
55. On March 24, 1999, the night before the Denial, the defendant Town Board enacted amendments to the Zoning Ordinance that would further inhibit and delay plaintiff's use of the WFAS tower. The Zoning Ordinance, as amended, provides inter alia, that an applicant requiring a special permit for an antenna installation must show "that the facility is needed to provide coverage to an area of the unincorporated area of the Town that currently has inadequate coverage [.]"
56. The amendments to the Zoning Ordinance were enacted as a local law. As such, the amendments could not take effect until filed with the NYS Secretary of State in Albany. No such filing had taken place, and the amendments were not in effect when the ZBA denied the Application.
57. The Denial plainly states that defendants intend to retroactively apply the Zoning Ordinance amendments to the Facility.
58. The delay in processing the Application, the Denial of the Application by the ZBA, and the stated intention of defendants to retroactively apply the Zoning Ordinance amendments to the Facility, each constitute unreasonable delays in violation of the TCA.
THIRD CAUSE OF ACTION
59. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 58 as if fully set forth herein.
60. Section 704 of the TCA, as codified at 47 U.S.C. §332(c)(7)(B)(i)[II) [sic], provides that:
"The regulation of the placement, construction, and modification of personal wireless service facilities by any state or local government or instrumentality [PAGE 13 STARTS HERE] thereof shall not prohibit or have the effect or [sic] prohibiting the provision of personal wireless services (emphasis supplied)." 47 U.S.C. §332(c)(7)(B)(i)[II) [sic].
61. The Denial prohibits and denies plaintiff the right to provide personal wireless services, in violation of §332(c)(7)(B)(i)(II) of the 1996 Act.
FOURTH CAUSE OF ACTION
62. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 61 as if fully set forth herein.
63. Section 101(a) of the TCA, codified at 47 U.S.C. §253, provides in relevant part, that: "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." 47 U.S.C. §253(a).
64. The Denial prevents plaintiff from developing the Facility, and prohibits plaintiff from effectively competing in the telecommunications marketplace compromised of persons traveling in and through the area to be served by the Facility. This prohibition constitutes a barrier to the interstate or intrastate delivery of telecommunications services, and is violative of §101(a) of the TCA.
FIFTH CAUSE OF ACTION
65. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 64 as if fully set forth herein.
66. The Denial and the attempt to retroactively apply amendments to the Zoning Ordinance which became effective after the Application was decided, is arbitrary and capricious in violation of Article 78 of New York State Civil Practice Law and Rules. [PAGE 14 STARTS HERE]
SIXTH CAUSE OF ACTION
67. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 66 as if fully set forth herein.
68. The Denial is based on a finding by the ZBA that plaintiff can use an "altemative site" if plaintiff abandons its preferred level of service and area of coverage.
69. The inferior level of service mandated by the ZBA, is not set forth in any lawfully promulgated law or standard, and would unfairly limit plaintiff's network to providing wireless coverage to hand held outdoor cell phones. Plaintiff has designed its network to provide coverage to cell phones operating inside a car, ambulance or other vehicle.
70. The action taken by the ZBA relies on a performance standard limited to providing coverage to an outdoor cell phone. The ZBA's reliance on an unpromulgated standard in denying the Application, constitutes unlawful rulemaking, rather than adjudication.
71. The denial of the Application on the basis of a "rule" that was not lawfully promulgated, violates the procedural rights secured to plaintiff under the New York State Administrative Procedures Act and the Due Process Clause of the United States Constitution.
SEVENTH CAUSE OF ACTION
72. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 71 as if fully set forth herein.
73. The dely [sic] in processing the Application and the Denial of the Application, continue to impose severe economic damage on plaintiff. [PAGE 15 STARTS HERE]
74. As a result of the delay in processing the Application and as long as plaintiff is prohibited by defendants from closing its existing gap in coverage, plaintiff will continue to suffer losses of revenue, erosion of customer good will and loss of market share.
75. To date, as a result of the actions complained of herein, plaintiff has suffered direct economic injury in excess of $500,000.00. Plaintiff respectfully reserves the right to supplement and amend its claim for damages up to the time of trial.
EIGHTH CAUSE OF ACTION
76. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 75 as if fully set forth herein.
77. The Denial of the Application erodes the value of plaintiff's license from the FCC, deprives plaintiff of its leasehold at the WFAS tower, as well as the value of the investment plaintiff has made in the development of its nationwide network.
78. The Denial of the Application constitutes an unjustified and uncompensated taking which is violative of the 5th and 14th Amendments of the United States Constitution.
NINTH CAUSE OF ACTION
79. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 78 as if fully set forth herein.
80. 42 U. S.C. § 1983 provides in relevant part that:
"[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable [PAGE 16 STARTS HERE] to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
81. Defendants herein acted under color of the laws, when they delayed and denied the Application for the Facility.
82. The delay and Denial complained of herein,, deprived plaintiff of the rights, privileges and immunities secured to plaintiff under: (i) the TCA and (ii) the Constitution of the United States.
TENTH CAUSE OF ACTION
83. Plaintiff repeats and realleges each and every allegation contained in Paragraphs 1 through 82 as if fully set forth herein.
84. Plaintiff operates its nationwide interstate SMR Service pursuant to licenses granted from the FCC.
85. The area plaintiff is authorized to provide coverage to under its licenses from the FCC, include all areas of the Town, as well as the surrounding areas in the County of Westchester.
86. The Zoning Ordinance, as in effect at the time of the Denial, provided inter alia, that an applicant requiring a special permit for an antenna installation must show "that the facility is needed to provide coverage to an area of the Town that currently has inadequate coverage [.]"
87. The Zoning Ordinance, as amended, provides inter alia, that an applicant requiring a special permit for an antenna installation must show "that the facility is needed to provide coverage to an area of the unincorporated area of the Town that currently has [PAGE 17 STARTS HERE] inadequate coverage [.]"
88. To the extent the Zoning Ordinance as it existed at the time of the Denial, or as amended, is applicable to plaintiff or any person licensed by the FCC to provide wireless services within the Town, it is violative of the Supremacy Clause of the United States Constitution, as it requires applicants to demonstrate a need for coverage in an area where the applicant is already entitled to provide coverage under license from the FCC.
89. To the extent the Zoning Ordinance as it existed at the time of the Denial, or as amended, is applicable to plaintiff or any person licensed by the FCC to provide wireless services within the Town, it is violative of the Commerce Clause of the United States Constitution as it favors incumbent local communications companies at the expense of interstate providers, and unreasonably interferes with, operates to restrict, and unfairly burdens the delivery of interstate telecommunications services.
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WHEREFORE, plaintiff respectfully requests that this Court issue an order and judgment:
(a). Directing the defendants to immediately issue all necessary approvals required for construction of the Facility;
(b). Finding that the Denial of the Application was arbitrary and capricious in violation of Article 78 of the New York Civil Practice Law and Rules, was not supported by substantial evidence, unreasonably delayed, and operates as a barrier to the delivery of interstate and intrastate telecommunications services by plaintiff, in violation of 47 U.S.C. §332;
(c). Finding that by denying the rights secured to plaintiff under the TCA, under the New York State Administrative Procedures Act, and under the Constitution of the United States, defendants violated under color or law, the rights secured to plaintiff under the Federal Civil Rights Act of 1871;
(d). Finding that the Denial undermined the value of plaintiff's FCC license, its network as a whole, and the lease for the site, without basis in law, without just compensation, in derogation of the rights secured to plaintiff under the Fifth and Fourteenth Amendments of the United States Constitution.
(e). Awarding plaintiff direct and consequential damages, the costs and disbursements incurred in connection with this action, including attorneys' fees pursuant to 42 U.S.C. §1988;
(f). Declaring that defendants may not retroactively apply amendments to the Zoning Ordinance, which took effect after the final decision on the Application was [PAGE 19 STARTS HERE] rendered;
(g). Declaring that the Zoning Ordinance as it existed at the time of the Denial, or as amended, violates the Supremacy and Commerce Clauses of the United States Constitution, by favoring incumbent local carriers, by requiring interstate providers of telecommunications services to demonstrate a need for coverage in areas where such providers are already licensed by the FCC to provide coverage, and by otherwise limiting federally licensed carriers to providing coverage only within the Town; and
(h). Granting such other legal and or equitable relief as this Court shall deem just and proper.
//original signed David L. Snyder//
David L. Snyder (ID # 5936)
Snyder & Snyder
6 Avery Court
White Plains, New York 10604
(914) 948-9700
Of Counsel:
Leon Friedman (ID # LF 7142)
148 East 78th Street
New York, New York 10021
(212) 737-0400
[PAGE 20 STARTS HERE]
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Plaintiff of New York, Inc.
d/b/a Nextel Communications
Plaintiff, 98 Civ 6800 (CLB)
v.
The Town of Greenburgh, et al.,
Defendants
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the attached First Amended Complaint was served upon the attorney for defendants, on April 14, 1999 by personally hand delivering a true and complete copy of same to Rocco Conte, Esq., of O'Connor, McGuinness, Conte & Doyle, 1 Barker Avenue, New York, NY 10601, who agreed to accept service on behalf of all defendants named herein.
Dated: April 14,1999.
//original signed David L. Snyder//
David L. Snyder (ID # 5936)