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Home My WebLink AboutVerizon Stipulation of Settlement1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK BELL ATLANTIC MOBILE SYSTEMS, LLC d/b/a VERIZON WIRELESS, Plaintiff, - v – TOWN OF ITHACA, TOWN OF ITHACA TOWN BOARD, AND TOWN OF ITHACA ZONING BOARD OF APPEALS Defendants. STIPULATION OF SETTLEMENT AND CONSENT ORDER Civil Action No. 3:25-cv-00409-ECC-ML WHEREAS, plaintiff Bell Atlantic Mobile Systems, LLC d/b/a/ Verizon Wireless (“Plaintiff” or “Verizon Wireless”) commenced this action (the “Action”) against defendants Town of Ithaca (“Ithaca”), Town of Ithaca Town Board (“Town Board”), and Town of Ithaca Zoning Board of Appeals (“ZBA”) (collectively “Defendants” or “the Town”) (Plaintiff and Defendants are referred to herein collectively as the “Parties” or each individually as a “Party”), by filing a complaint (“Complaint”) (Doc. 1) regarding the February 25, 2025 denial of an application by Verizon Wireless to the Town of Ithaca and its ZBA (the “Application”) for an area variance (“Height Variance”) to allow Verizon Wireless to construct and operate a 134’ wireless telecommunications facility (with 4’ lightning rod) (the “Project”) located at 111 Wiedmaier Court (Tax Parcel No. 56.-4-1.22) in the Town of Ithaca, Tompkins County, New York (the “Site”). The Complaint seeks, inter alia, a Judgment and Order: (1) (i) declaring that the ZBA Denial was illegal as it was not based on substantial evidence contained in the written record in violation of the Federal Telecommunications Act of 1996 (“TCA”), and (ii) enjoining the Town to immediately issue 2 Verizon Wireless all necessary permits and authorizations that allow Verizon Wireless to construct and operate the Project; (2) (i) declaring that the Town effectively prohibited the provision of personal wireless services in violation of the TCA, and (ii) enjoining the Town to immediately issue Verizon Wireless all necessary permits and authorizations that allow Verizon Wireless to construct and operate the Project; (3) (i) declaring that § 270-219 of the Town Code effectively prohibits the provision of personal wireless services in violation of the TCA, and (ii) striking down § 270-219; (iii) declaring that, when considering an area variance for a wireless telecommunications facility, such as the Height Variance here, the Public Necessity Standard applies, and (iv) enjoining the Town to immediately issue Verizon Wireless all necessary permits and authorizations that allow Verizon Wireless to construct and operate the Project; (4) (i) declaring that the Town’s failure to apply the Public Necessity Standard to the Application was arbitrary and capricious, not supported by substantial evidence in the record, is affected by error(s) of law, and/or constitutes an abuse of its discretion and violates its duty as a public body under New York Article 78 and the TCA, and (ii) enjoining the Town to immediately issue Verizon Wireless all necessary permits and authorizations that allow Verizon Wireless to construct and operate the Project; (5) (i) declaring that the Town’s actions are arbitrary and capricious, not supported by substantial evidence in the record, are affected by error(s) of law, and/or constitutes an abuse of its discretion and violation of its duty as a public body under New York Article 78 and the TCA, and (ii) enjoining the Town to immediately issue Verizon Wireless all necessary permits and authorizations that allow Verizon Wireless to construct and operate the Project; (6) declaring that to the extent the provisions of the Town Code cited are inconsistent with applicable federal law, including but not limited to the TCA, they are preempted under the facts of this case; and (7) awarding Verizon Wireless its costs, expenses, and attorney fees, and any and all other damages 3 and interest to which Verizon Wireless is lawfully entitled, together with such other and further relief as the Court deems just and proper; WHEREAS, on May 28, 2025, Defendants filed an Answer (Doc. 13) denying liability for all claims in Plaintiff’s Complaint; WHEREAS, Defendants expressly deny any and all liability and this Stipulation of Settlement and Consent Order (the “Consent Order”) does not constitute an admission of any wrongdoing, nor is any Party considered a prevailing party; WHEREAS, a significant gap in Verizon Wireless’ service capabilities exists in the Town and surrounding areas (the “Service Gap”). Verizon Wireless maintains that the Project is needed to fill the Service Gap; WHEREAS, as set forth in Cellular Tel. Co. v. Rosenberg, 82 N.Y.2d 364, 371 (1993) and Consolidated Edison Co. v. Hoffman, 43 N.Y.2d 598, 611 (1978), wireless telecommunications providers are public utilities for zoning purposes (the “Public Necessity Standard”); WHEREAS, to avoid the delay, expense, inconvenience, and uncertainty of protracted litigation, the Parties have agreed to settle the Action pursuant to the terms and conditions set forth herein this Consent Order; WHEREAS, the Town Board approved this Consent Order at a duly noticed meeting on October __, 2025, which approval was memorialized by Resolution [#]; WHEREAS, the ZBA approved this Consent Order at a duly noticed meeting by Resolution on October __, 2025, which approval was memorialized by Resolution [#]; WHEREAS, the ZBA previously held a public hearing on Verizon’s Application for the Height Variance on February 25, 2025; and 4 WHEREAS, Verizon Wireless has applied for all permits and licenses necessary for the construction of the Project and the Approved Tower (as defined in paragraph 3 below); and WHEREAS, the Parties, intending to be legally bound, have consulted with their respective counsel and the undersigned counsel herein have the requisite authority and approval to enter into the Consent Order. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED BY THE PARTIES AND ORDERED BY THE COURT THAT: 1. The Defendants have the authority to settle this action and to enter into the Consent Order. 2. Effective immediately, the Town Board and the ZBA shall apply the Public Necessity Standard when considering land use and zoning applications for wireless telecommunications facilities (including but not limited to area variances, use variances, and special use permits) in the Town of Ithaca. 3. The administrative record in the Action demonstrates that there is a Service Gap in the area of the Project, that the location of the proposed facility will substantially remedy that Service Gap, and that if the requested height of the facility is reduced to 110’ ACL (with total tower height of 115’ AGL with attached 4’ and lightning rod for an overall height of 119’ AGL), as shown on the plans attached hereto and made a part hereof as Attachment A (the “Approved Tower”), it would present a minimal intrusion on the community. 4. By adoption of a resolution approving this Consent Order by the ZBA, a Height Variance for the Approved Tower is granted. Because the ZBA previously held a public hearing for Verizon’s Application for the Height Variance and the only modifications to the Application are reductive, no additional public hearing is necessary. 5 5. Upon adoption of the resolutions approving this Consent Order, the Town is hereby ordered by the Court to issue all permits and licenses necessary for the construction of the Approved Tower for which Verizon Wireless has duly applied. 6. No other approvals are required for the installation and operation of the Approved Tower. 7. For purposes of Town Code § 270-235(J), the date of the Consent Order shall be deemed to be the date that the Height Variance was granted. For purposes of Town Code § 270- 194(C), which governs the expiration of site plan approvals, and Town Code § 270-202, which governs the expiration of special permits, the date in which the Planning Board approved the site plan and special permit shall be November 19, 2024. 8. In the event that an application is made in the future by any wireless telecommunications provider to extend the height of the Approved Tower above the agreed-upon overall height of 119’ AGL, Verizon Wireless shall have a right of first refusal to elect to occupy the highest location on any extended facility. 9. All time frames herein may be extended by the mutual written consent of the Parties. 10. This Consent Order shall not be construed to create rights for, or grant any cause of action to, any third party not a party to this Consent Order. 11. The Parties acknowledge that this Consent Order was the product of negotiation by all Parties through their counsel, including negotiation as to the language set forth herein, and as such, to the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Consent Order, the ambiguity shall not be resolved based on who drafted the Consent Order. The obligations of this Consent Order apply to and are binding upon the Parties, and any successors and assigns or other entities or persons otherwise bound by law. 6 12. Upon the issuance of all permits and approvals required for the construction and operation of the Approved Tower, this Action shall be dismissed with prejudice and without any costs, attorneys’ fees, disbursements, damages, or interest due to any Party to this Action. However, in the event that any such permits and/or approvals are challenged by a non-party to this action in any court, Verizon Wireless shall have the right to reinstate this Action by notifying the Court of its intent to do so by written letter to be filed via ECF, in which case the Parties may elect to not be bound by the terms of this Consent Order. 13. The Court shall retain jurisdiction over this matter, including the enforcement of this Consent Order, and Verizon Wireless or Defendants may, upon notice, move this Court to enforce this Consent Order against any other Party or any non-party, including but not limited to injunctive relief or any other appropriate relief. DEFENDANTS: PLAINTIFF: Dated: October ___, 2025 Dated: October ___, 2025 KNAUF SHAW LLP ____________________________________ Alan J. Knauf (Bar Roll No. 1710334) 2600 Innovation Square 100 South Clinton Avenue Rochester, New York 14604 Telephone: (585) 546-8430 aknauf@nyenvlaw.com Attorneys for Defendants NIXON PEABODY LLP _________________________ Laurie Styka Bloom (Bar Roll No. 505291) 211 High Point Drive Suite 110 Victor, New York 14564 Telephone: (716) 853-8102 lbloom@nixonpeabody.com Attorneys for Plaintiff SO ORDERED: Hon. Elizabeth C. Coombe United States District Judge EXHIBIT A NY industrial code rule 753 requires no less than two working days notice, but not more than ten days notice. Before You Dig, Drill Or Blast! CALL US TOLL FREE 811 OR 1-800-962-7962 UNDERGROUND FACILITIES PROTECTIVE ORGANIZATION UDIG NY LEGEND LEGEND LEGEND GENERAL CONSTRUCTION NOTES SAFETY NOTES PROJECT SPECIFIC NOTES TESTING SCHEDULE