N.Y. Town Objects to Recommendation of Summary Judgment in Crown Castle’s Favor

Oyster Bay, New York, objects to a magistrate judge’s report and recommendation (R&R) that Crown Castle be granted summary judgment in its applications to install 23 small cells in the public rights of way (see 2401220028), said the town’s objection Friday (docket 6:22-cv-01635) in U.S. District Court for Eastern New York in Central Islip. Oyster Bay asks that the court reject and modify portions of the R&R and grant it summary judgment on those portions, said its objection. The R&R failed to acknowledge the town zoning board’s “permissible discretion,” it said. In light of the board’s discretion in zoning matters, the denial of Crown Castle’s application for 23 small cells wasn’t a prohibition of personal wireless services, in violation of the Telecommunications Act, as the R&R concluded, said the town’s objection. The 23 small cells were to be installed in various locations encompassing a five-square-mile portion of Oyster Bay, it said. If the issue pertains to only a five-square-mile area in a municipality that encompasses 169.5 square miles, it’s unclear how the R&R could determine that Oyster Bay prohibited personal wireless services anyplace outside that five-square mile area included in the Crown Castle application, it said. Oyster Bay submits that this “is a factual question that defeats summary judgment,” it said.