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Gondolfo v. Town of Carmel

Lawsuit Over Wireless Facilities' Siting Remanded; 'Artful Pleading' Rule Inapplicable

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OPINION & ORDER Before the Court are Plaintiffs’ motion to remand or, alternatively, for a preliminary injunction, (Doc. 18), and the motion to dismiss of Defendants New York SMSA Limited Partnership d/b/a Verizon Wireless and Homeland Towers, LLC (together, the “Wireless Defendants”), (Doc. 28). For the following reasons, Plaintiffs’ motion to remand is GRANTED, and the other motions are DENIED as moot. I. BACKGROUND The following facts are drawn from the Complaint, (Doc. 1 (“Notice of Removal”) Ex. A (“Compl.”)), which I accept as true for the purposes of the motion to remand. See Skornick v. Principal Fin. Grp., 383 F. Supp. 3d 176, 178 n.1 (S.D.N.Y. 2019). Because the validity of a removal involves a jurisdictional inquiry, I may draw additional facts where necessary from the parties’ submissions, such as their affidavits and declarations, see Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); Winters v. Alza Corp., 690 F. Supp. 2d 350, 353 n.3 (S.D.N.Y. 2010), but it is not necessary to do so here. In August 2018, the Wireless Defendants applied for approval from the Town of Carmel Planning Board to build two wireless telecommunications facilities: one on Dixon Road and one on Croton Falls Road. (Compl. 17.) After more than a year of review and hearings, the Board denied the applications in October 2019. (See id.

18-28.) Soon after, the Wireless Defendants filed suit in federal court against the Town of Carmel, the Town of Carmel Town Board, the Town of Carmel Planning Board, the Town of Carmel Zoning Board of Appeals, Town Building Inspector Michael Carnazza in his official capacity (together, the “Town Defendants”), and the Town of Carmel Environmental Conservation Board,1 alleging that the denial of their applications was unlawful under the Telecommunications Act of 1996 (“TCA”). (Id.

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