Judge Correctly Recommended Dismissal of AT&T’s Complaint, Says Village

Contrary to the AT&T’s Jan. 18 objections to a magistrate judge’s Dec. 19 report recommending dismissal of AT&T’s cell tower complaint against Muttontown, New York, and its various boards (see 2401220003), the report “accurately states the applicable law and applies it to the undisputed facts at bar,” said the village’s reply Friday (docket 2:22-cv-05524) in U.S. District Court for Eastern New York in Central Islip. Based on the well-established doctrines of justiciable controversy and ripeness, the report correctly recommends dismissal of AT&T’s action under Rule 12(b)(1) of the Federal Rules of Civil Procedure, said the Muttontown’s reply. The report also correctly determined that AT&T’s complaint failed to properly plead plausible “shot clock” violation, prohibition and substantial evidence claims against the village in its July 2022 denial of AT&T’s variance application, it said. Contrary to the company's “repeated obfuscations,” it can’t deny that, under its consent, the shot clock expired in August 2022, said the reply. The village’s denial decision was adopted before the expiration of the shot clock, it said. The complaint and the documentary evidence annexed to it “irrefutably demonstrate” that the shot clock wasn’t violated, it said. As the magistrate judge’s report correctly noted, AT&T’s complaint “contains no allegation” of the filing of an application with the village itself, said the reply. The 2nd U.S. Circuit Court of Appeals has made clear that a municipal board “is without authority to approve a project where the applicable municipal ordinance conditions such approval on the approval of another board,” it said.