Orange County-Poughkeepsie Ltd. Partnership v. Town of East Fishkill (84 F. Supp. 3d 274, 2015)

OPINION & ORDER

KENNETH M. KARAS, District Judge.

Plaintiffs, Orange County-Poughkeepsie Limited Partnership d/b/a Verizon Wireless (“Verizon”) and Homeland Towers, LLC (“Homeland”), bring this Action against Defendants, the Town of East Fishkill (“East Fishkill”) and the Town of East Fishkill Zoning Board of Appeals (the “Board”) (collectively, the “Town”), under Section 704 of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B) (the “Telecommunications Act” or the “TCA”), and Article 78 of the New York Civil Practice Law and Rules, N.Y. C.P.L.R. § 7803 (“Article 78”). Plaintiffs’ claims arise from the Town’s denial of Plaintiffs’ application for a special permit, together with a 40-foot height variance and a wetland/watercourse disturbance permit, to install a wireless telecommunication facility. Plaintiffs move for summary judgment. For the following reasons, Plaintiffs’ Motion is granted.

I. BACKGROUND

A. Factual History

1. The Application

Plaintiff Verizon is licensed by the Federal Communications Commission (“FCC”) to provide wireless telephone services throughout the State of New York, (see Pis.’ Local Civil Rule 56.1 Statement (“Pis.’ 56.1”) ¶ 61 (Dkt. No. 21); Decl. of Andrew P. Schriever in Supp. of Pis.’ Mot. for Summ. Judgment (“Schriever Deck”) Ex. C, Administrative Record (“Admin. R.”) 66, 1471 (Dkt. No. 22)), and Plaintiff Homeland is a business that constructs tower facilities for personal wireless services, (Pis.’ 56.1 ¶ 62). Plaintiffs seek to construct a new wireless telecommunications facility consisting of an approximately 150 foot tall monopole (the “Monopole” or the “Tower”) and associated equipment and installations (together the “Facility”), (Pis.’ 56.1 ¶ 11; Admin. R. 119, 1491), at 23 Dartantra Drive, Hopewell Junction, New York, 12533 located in the Town’s R-l (Residential) Zoning District (the “Site”), (Pis.’ 56.1 ¶ 7; Admin. R. 1491).

Under the Town of East Fishkill’s Zoning Code (the “Code”), a special permit issued by the Board is required for the construction of a wireless communication facility within the R-l (Residential) Zoning District. (Pis.’ 56.1 ¶ 8; Defs.’ Resp. to Pis.’ Statement of Facts (“Defs.’ 56.1' Resp.”) ¶ 8 (Dkt. No. 25); Schriever Decl. Ex. D, Code (“Code”) § 194-78(A).) Moreover, as provided by § 194-84(D)(6)(c) of the Code, the maximum "height of a freestanding tower in a residential area is 110 feet. (Pis.’ 56.1 ¶ 10; Code § 194-84(D)(6)(c).) East Fishkill is serviced by Verizon, AT & T, Sprint, and T-Mobile wireless service providers. (Admin. R. 689.)

On November 28, 2011, Plaintiffs submitted their joint application with a detailed cover letter to the Town for a special permit with requests for a 40 foot height variance and a wetland/watercourse disturbance permit to install the Facility on the Site pursuant to §§ 194-76 through 194-84 of the Code (the “Application”). (Pis.’ 56.1 ¶ 3; Admin. R. 22, 33-34.) In the Application, Plaintiffs explained that the purpose of constructing the Facility is “to provide reliable wireless service along the Taconic State Parkway and Route 82 as well as the surrounding local roads, residences, and businesses located in the vicinity of [the Site].” (Admin. R. 22.) Similarly, Plaintiffs asserted that the Facility “will meet the primary objectives of Verizon Wirelesses] target area because it will provide reliable wireless signal coverage to a significant portion of one of Verizon Wirelesses] critical gaps in service coverage in the Town of East Fishkill, and offer new and improved service coverage” in three “spectrums.” (IcL at 45.) To support their assertions, Plaintiffs relied on a Radio Frequency (“RF”) Analysis and Statement of Need, dated November 15, 2011, (the “Initial RF Analysis”) prepared by Johnathan Edwards (“Edwards”), a Verizon Wireless Radio Frequency Design Engineer. (Id. at 43, 45-46, 49.)

In the Application, Plaintiffs described the Site as “an approximately sixteen (16) acre property ... consisting of underdeveloped forested land and a small wetland area and associated intermittent watercourse along its northern portion.” (Id. at 22.) The Application explained that the Monopole “will be engineered to accommodate [the Facility], as well as the future co-location of up to five (5) additional wireless carriers.” (Id. at 22-23.) Plaintiffs proposed to install twelve panel antennas at a centerline height of approximately 146 feet above grade level (“AGL”) on the Monopole (the “Antennas”), as well as an associated unmanned equipment shelter and a Global Positioning Satellite (“GPS”) system within the fenCed-in compound. (Pis.’ 56.1 ¶ 12; Admin. R. 23, 1492.) The Monopole is situated within an associated 65 foot by 78 foot fenced compound. (Pis.’ 56.1 ¶ 11.)

Plaintiffs explained to the Board how, in their view, the Facility and the Site conformed with the Code and the Telecommunications Act. (Admin. R„ 23-24.) Plaintiffs advised the Board that “[b]ased on an extensive search of the area, [Plaintiffs] have confirmed that there are no available existing tall structures or towers that meet Verizon’s radio frequency needs for purposes of providing reliable wireless coverage to the targeted area in the Town.” (Id. at 24.) To support their conclusion, Plaintiffs submitted -a Site Selection and Alternate Site Analysis, prepared by Homeland (the “ASA”). (Id. at 121-25.) The ASA listed three alternative existing structures and ten alternative new tower sites that were evaluated, and concluded that “the proposed Site was selected as the optimal location because it met the criterion for site selection better than any other available property in the geographic area where the need for wireless service exists.” (Id. at 124).

Plaintiffs also advised the Board that because of its location and surrounding vegetation, the Facility “has been designed and sited with the goal of minimizing potential impacts on the surrounding area.” (Pis.’ 56.1 ¶ 14; Admin. R. 24.) Moreover, the Application stated that the Site “complies with the parameters for the development of new towers” as provided by the Code. (Pis.’ 56.1 ¶ 15; Admin. R. 124.) Specifically, Plaintiffs explained that the Facility “is located on a very large[ ] and well vegetated property in the R-l zone, that provides excellent distance from residential homes,” the location “should minimize the potential visual impacts on these properties,” the “foliage should ... provide a natural cover that reduces the appearance of the tower from many perspectives,” and “[although the Site is located in relatively close proximity to the [Taeonic State Parkway], it will be setback a substantial distance from certain scenic areas and ridge lines identified in the Code, including the intersection of Route 1-84 and the Taconic State Parkway, the Appalachian National Scenic Trail, Hosner Mountain, Stormville Mountain and the Mountains of Wiccopee.” (Pis.’ 56.1 ¶ 15; Admin. R. 124-25.) Plaintiffs also submitted a photograph of the Site to the Board. (Pis.’ 56.1 ¶ 16.)

As relevant to their request for a height variance, Plaintiffs submitted that the Facility — “designed at a height of one-hundred and fifty (150) feet, with Verizon’s antennas located at a centerline height of one-hundred and forty-six (146) feet,” (Admin. R. 25) — will “enable Verizon to provide the requisite service to its customers living in and traveling through the targeted area,” (Id. at 26). Moreover, Plaintiffs stated that “by designing the facility to accommodate the future collocation of up to five (5) additional wireless carriers, Homeland is complying with the intent of the Wireless Law by minimizing the potential need for future communication towers in this portion of the Town.” (Id.) To support their assertions, Plaintiffs relied on the Initial RF Analysis. (Id. at 27, 46^47.)

The Application also requested a wetland/watercourse disturbance permit based on the September 19, 2011 wetlands investigation of the Site conducted by Tectonic Engineering & Surveying Consultants, P.C. (“Tectonic”), which found that “certain federal and town regulated freshwater wetlands and an associated intermittent watercourse are located within and around the proposed project area.” (Id. at 28, 133.)

Attached to the Application, Plaintiffs submitted: (1) a deed demonstrating ownership of the underlying premises, (id. at 29, 38); (2) the Initial RF Analysis, which included several RF signal propagation maps and images depicting the Site, and copies of Verizon’s FCC Licenses, (id. at 29, 43); (3) an Antenna Site FCC RF Compliance Assessment and Report prepared by Pinnacle Telecom Group, dated October 26, 2011, explaining that the radio frequency emissions associated with the proposed Facility will not exceed federal or state regulations (the “FCC RF Compliance Report”), (id. at 29, 71); (4) a Full Environmental Assessment Form (“EAF”) and Visual EAF Addendum, dated October 25, 2011, prepared by Tectonic, (id. at 29, 95); (5) a letter dated October 14, 2011 certifying that the proposed Tower will be designed and constructed in accordance with applicable standards, (id. at 29, 119); (6) the ASA, (id. at 29, 121); (7) a letter from Homeland dated October 27, 2011 confirming that Homeland will coordinate to rent or lease available space on the Monopole to other telecommunications providers in the future, under the terms of a fair market lease, (id. at 30, 128); (8) a letter from Homeland dated November 11, 2011 committing to, among other things, keep the proposed tower and accessory structures in good order and repair, (id. at 30, 131); (9) the Wetlands Investigation Report, prepared by Tectonic (id. at 30, 133); (10) a Federal Aviation Administration Determination of No Hazard to Air Navigation, dated October 31, 2011, (id. at 30, 184); and (11) an explanation' of the TCA, (id. at 30,188).

2. The Coverage Gap

The Board retained its own wireless consultant, Ronald Graiff, P.E. (“Graiff’ or the “Board’s consultant”) to review and advise the Board on RF issues related to the Application. (Pis.’ 56.1 ¶ 17; Admin. R. 348, 1475.) On April 10, 2012, Graiff submitted a letter and accompanying materials to the Board (“Graiffs Initial Report”), concluding that even though “Verizon has reasonably demonstrated that it has a gap in coverage in the general area of the Taconic State Parkway,” it “has not demonstrated ... that the [Site] is unique in its ability to provide coverage relief.” (Admin. R. 366(b).) Accordingly, Graiff suggested to the Board that Plaintiffs provide additional information with respect to what alternative sites and means were available to provide the coverage, demonstrate that 150 feet above the ground is the minimum height necessary, provide information about alternate means to “ameliorate the visual impact of the antennas,” demonstrate how the lines required for seven carriers could be placed within the pole without external mounting, and provide a revised RF report. (Id. at 366(b)-(e).) In his Initial Report, Graiff also noted his concerns about “Pilot Pollution,” — a “condition ... which is a direct result of cells located too closely together ... [that] results in system interference, poor hand off and a loss of system capacity.” (Id. at 365.) Specifically, he stated that “the proposed site only provides approximately 20% new coverage (un-duplicated) and nearly 80% overlap with existing coverage[,] .... [and] [s]uch excessive overlap is an inefficient use of the radio spectrum.” (Id.)

In response to Graiffs Initial Report, Plaintiffs submitted additional RF Analy-ses and responses to the Board, as well as additional drive test data and propagation maps depicting Verizon’s actual coverage needs. (Pis.’ 56.1 ¶ 25; Admin. R. 408-37; 548-68; 1286-1330; 1337.) In its final RF Analysis dated March 22, 2013, Verizon stated that its analyses and presentations “clearly demonstrate (through the use of scientific data and sophisticated propagation and coverage analysis tools) that a significant gap exists in the Verizon network along the Taconic State Parkway, Route 82, and the surrounding areas.” (Pis.’ 56.1 ¶ 37; Admin. R. 1301.) Verizon , advised the Board that in addition to “expanding reliable service along the Taconic State Parkway and surrounding areas,” the Site is required to bring 4G data and internet service to residences and businesses in the area, and allow customers to cancel landline service. (Defs.’ 56.1 ¶ 3; Admin. R. 1300.) Plaintiffs also submitted the New York State Department of Transportation “Traffic Data Viewer” that indicates the average volume that passes through the gap, along the segments of the Taconic State. Parkway and Route 82, is an estimated 35,000 travelers per day. (Pis.’ 56.1 ¶ 39; Admin. R. 1332).

In a letter dated April 3, 2013, Graiff concluded that the coverage models provided by. Plaintiffs were “reasonable representations of real world coverage.” (Defs.’ Resp. ¶ 18; Admin. R. 1341.) Moreover, Graiff stated that “[i]t is evident ... that the gap is real and defined.” (Pis.’ 56.1 ¶ 31; Admin. R. 1341.) At a public hearing on April 9, 2013, Graiff testified that:

[A]s I said in my 4th report to [the Board], knowing that you can rely on the propagation maps as being a very good demonstration of the coverage, [the Board] can believe what they say, therefore when they show you a coverage map from the site at 146ft which is what they’ve done and at lower, you can believe that that’s a good representation of coverage that would come from this site.

(Pis.’ 56.1 ¶ 19; Admin. R. 1411 (DVD 2:13:26-56).) According to the Minutes of the Board’s April 9, 2013 meeting, Graiff also informed the Board that:

[H]e offers no interpretation of the law of what a significant gap is. Along Route 82,' there is a significant gap. There is nothing there. What is significant? If this was just 1/8 of a mile, just two pixels on this map of the Taconic Parkway and it was down in the red, a person can be through that in a zip.... The problem is that in addition to the road of gray which is around it, there are some reds around it. The signal is already deteriorating there. That was what he was trying to flesh out ... from a review point of view.... It is up to the Board and lawyers to determine what is significant. A person can drive through a gap if it is a small gap. These are reasonably sized gaps.

(Admin. R. 1404-05.)

At a Board meeting on December 11, 2012, Plaintiffs advised the Board that the size of the coverage gap “is approximately 2 miles on the Taconic State Parkway and ... 1.6 miles on Route 82.” (Pis.’ 56.1 ¶ 31; Admin. R. 708 (DVD at 1:20:53).) Graiff, in turn, confirmed the gap at the same meeting. (Pis.’ 56.1 ¶ 32; Admin. R. 708 (DVD at 1:21:13).) For the purposes of the Motion, Defendants contend that it was determined that there were two gaps on the Taconic State Parkway of 0.5 mile and 0.25 mile. (Defs.’ 56.1 Resp. ¶ 30.) Although Defendants cite Graiffs July 2, 2012 letter and statements at a July 10, 2012 meeting for support, there is nothing in the letter or statements that indicates that these were the sizes of the two gaps. (See Admin. R. 519, 532.)

3. The Antenna Height and Collocation

Plaintiffs have provided substantial information in support of their claim that the coverage gap can only be resolved at the Site with the Antennas placed at 146 feet AGL. (Pis.’ 56.1 ¶¶ 42-43; Defs.’ 56.1 Resp. ¶ 40; Admin. R. 408-09, 549-50, 1290, 1304-06, 1308.) The Parties dispute what this fact means for future collocation on the proposed Tower and what evidence, if any, was submitted to the Board about the likelihood that other wireless providers would need to locate their antennas at no lower than 146 feet AGL because of excessive clutter caused by topography in and around the Site. (Pis.’ 56.1 ¶ 45; Defs.’ 56.1 Resp. ¶ 45; Reply Decl. of Andrew P. Schriever in Supp. of Pis.’ Mot. for Summ. Judgment, Ex. A, Pis.’ Resp. to Defs.’ Resp. to Pis.’ Statement of Facts (“Pis.’ 56.1 Reply”) ¶45 (Dkt. No. 28).)

Defendants contend that there is limited to no coverage below 146 feet “due to excessive clutter.” (Defs.’ 56.1 Resp. ¶ 40). To support this claim, Defendants rely on the Initial RF Analysis, which states that “[a] lower antenna center line would limit the coverage due to the , terrain blockage and the surrounding foliage,” (Defs.’ 56.1 ¶7; Admin. R. 47), and at any distance below 146 feet, “clutter” — in the form of terrain, trees, and buildings — “weakens and disperses[ ] the RF energy necessary for wireless communications,” (Defs.’ 56.1 ¶ 8; Admin. R. 46). The Initial RF Analysis also states that:

At a lower height, the RF energy would be significantly reduced from providing coverage to the north along the Taconie State Parkway and an inconsistent transition to the next site would remain. The area around the intersection of Route 82 and Taconic Pkwy would also be greatly impacted by a lower center line; not only would the foliage be a factor but the terrain would significantly weaken the RF signal.

(Defs.’ 56.1 ¶ 9; Admin. R. 47.) Defendants state that “Graiff advised the [Board] that if Verizon needed to locate its antennas at 146 feet [AGL,] then it was likely that other wireless providers would need to locate their antennas at least [at] the same height, but not [at] a lesser height due to problems with excessive clutter,” (Defs.’ 56.1 Resp. ¶ 45), and point the Court to the Minutes from the Board meeting on April 9, 2013. Graiff made several statements as to collocation at the April 9, 2013 meeting, including that “in this hearing process there has been no evidence presented with respect to other carriers’ coverage[,]” “[i]f it takes 146 feet for this carrier, it is going to probably take that for another carrier[,]” and “[a]ll the evidence was presented with respect to Verizon[,] so he could[ ][not] give the Board an opinion on any other carrier.” (Admin. R. 1405.)

Plaintiffs, in turn, point to Graiff s statement in a letter dated April 12, 2013 that “[t]here has been no evidence presented in this proceeding that either demonstrates or discusses the coverage of existing carriers such as AT & T or Sprint PCS. That question can only be answered by another applicant should they come before [the] Board,” (Pis.’ 56.1 Reply ¶ 45; Admin. R. 1457), and Graiffs testimony at the Board’s April 9, 2013 meeting that “[i]n this hearing process there’s been no evidence presented with respect to other carriers’ coverage,” (Pis.’ 56.1 Reply ¶ 45; Admin. R. 1405). Plaintiffs also contend that they advised the Board that “Verizon cannot produce propagation plots for other carriers, nor can it make any representa-, tions that certain heights will or will not address other carriers’ coverage needs,” because “[e]ach carrier has a unique network, which may utilize different signal ‘hand-off sites, locations[,] and heights.” (Pis.’ 56.1 ¶ 49; Admin. R. 1209.) Plaintiffs point to other evidence in the record that supports the fact that they advised the Board that they could not opine on other carriers’ needs. (Pis.’ 56.1 Reply ¶ 46; Admin. R. 412, 622,1386-87.)

Defendants highlight, though, that the FCC RF Compliance Report submitted with the Application shows that other, providers in East Fishkill use similar transmission frequencies as Verizon. (Defs.’ 56.1 ¶¶ 17-18; Admin. R. 79-80.) Verizon established that locating the Antennas at 146 feet AGL was necessary to provide coverage for its transmission in the 700 MHz, 850 MHz, and 1900 MHz frequency bands. (Admin. R. 75.) AT & T uses identical frequency bands, (id. at 79), Sprint uses the 1900 MHz frequency band, (id), and T-Mobile uses the 1900 MHz and 2100 MHz frequency bands, (id). The FCC RF Compliance Report also identifies the panel antennas commonly used by each provider within their respective frequency band, (id at 80), and for the purposes of the study assumes that the providers would be located as follows: Verizon at 146 feet, AT & T at 96 feet, Sprint at 136 feet, and T-Mobile at 106 feet, (id at 79). Defendants state, and Plaintiffs do not dispute, that there is no evidence in the record that these are feasible mounting positions for collocation of wireless transmissions. (Defs.’ 56.1 ¶ 26.)

Defendants also deny that Plaintiffs demonstrated that the Facility is designed to accommodate collocation of up to five additional commercial antenna installations, including municipal/emergency antennas, in the future. (Pis.’ 56.1 ¶ 46; Defs.’ 56.1 Resp. ¶46.) Instead, Defendants contend that Plaintiffs offered no evidence to support an inference that collocation was feasible, that a representative from Homeland, Mr. Giofree (“Giofree”), agreed, and that Homeland failed to document the Tower’s capacity for collocation, including the number and types of antennas it could accommodate and potential mounting locations, in violation of the Code. (Defs.’ 56.1 Resp. ¶46; Defs.’ 56.1 ¶ 13; Admin. R. 1390-91.) Plaintiffs disagree. First, they state that Giofree’s statements were made in reference to visual analysis, not collocation. (Pis.’ 56.1 Reply ¶ 46.) At a meeting on April 9, 2013, Giofree stated that the Facility “clearly meets the objective” that “a new telecommunication tower facility allow, accept, and accommodate collocation in the future.” (M; Admin. R. 1386.) In his explanation, Giofree noted that “Homeland has also agreed to coordinate to rent or lease available space on the facility to other providers in the future, in the terms of a fair market lease.” (Pis.’ 56.1 Reply ¶ 46; Admin. R. 686.) Second, Plaintiffs contend that drawings, a letter from a New York State licensed Professional Engineer, the FCC RF Compliance Assessment Report, and an affidavit from the president of Homeland demonstrate that the Facility is designed to accommodate the collocation of up to five additional commercial antennas. (Pis.’ 56.1 Reply ¶ 46; Admin. R. 119, 128-29, 443-44, 447-48, 601-02.)

k- Alternative Site Options

Plaintiffs contend that Homeland investigated alternative siting options to remed-iate the known service gap approximately a decade before submitting thé Application. (Pis.’ 56.1 ¶ 68.) Plaintiffs advised the Board that for a site to be a “viable alternative, the site must have a landlord who is willing to enter into a lease with a service provider.” (Pis.’ 56.1 ¶ 75; Admin. R. 1203.) In the ASA, supported by several RF Analyses that include propagation plots and topographic images prepared by Verizon’s RF Engineers, Plaintiffs outlined their search to identify potential siting locations, including “alternate, existing structure candidates evaluated for shared use or collocation, as well as new tower sites.” (Pis.’ 56.1 ¶¶ 76-77; Admin. R. 121-26, 410-12, 421-34, 548-49, 556-65, 1292-99, 1309-22.) The ASA “contains an inventory of all existing tall structures and existing approved towers within a two mile radius of the proposed Site.” (Admin. R. 122, 126.) Plaintiffs investigated thirteen alternate single site options (i.e., involving only one new wireless facility), and two-multi-site alternatives (i.e. each' involving two new facilities). (Pis.’ 56.1 ¶ 78; Admin. R. 122-26, 1202-05, 1292-99, 411-12, 548-49.) The ASA and supporting documents identify, among other locations, properties that contain existing public utility infrastructure, as well as existing towers and tall structures in the area, for purposes of evaluating, whether they could be utilized for collocation purposes. (Pis.’ 56.1 ¶ 80; Admin. R. 122-23, 409-10, 421-22, 548-49, 560-61, 570-71,1292-99.)

Based on their search, Plaintiffs advised Defendants “that there are no available existing tall structures or towers that meet Verizon’s radio frequency needs for purposes of providing reliable wireless coverage to the targeted area in the Town.” (Admin. R. 24.) Plaintiffs concluded that none of the single (new tower site) options identified in the ASA suffice, and Graiff confirmed this finding in a July 2, 2012 letter. (Pis.’ 56.1 ¶¶ 90-91; Admin. R. 519.) In the same letter, Graiff noted that “[a] careful evaluation of all of the possible alternate sites does, however, reveal an elegant ‘two site solution’ to provide the coverage relief sought,” discussed in further detail below. ■ (Admin. R. 519.) During a July 10, 2012 meeting, “Graiff stated that he found the [ASA] quite helpful. It was an excellent job in showing every site that [Graiff] had picked up and thought about, or the Board chose knowing the area better than [Graiff], that might work as a possible alternative.” (Id. at 532.)

Plaintiffs also investigated public utility high power transmission structures located approximately 3.5 miles west of the Taconic State Parkway, but in an RF Analysis, a Verizon Wireless RF Design Engineer, Rick Andras (“Andras”), concluded that “[d]ue to distance and the presence of ... significant terrain features, there is no practical height along theQ power lines from which a wireless facility could overcome the[] terrain impediments and provide service to the Hillside Lake coverage objective area.” (Pis.’ 56.1 ¶¶ 84-86; Admin. R. 1296.)

Moreover, from 2007 until February . 2013, Homeland made efforts to locate the Facility on non-residential and/or municipally controlled properties in the area, including the-“Beekman Water Company” property and the “Little Switzerland Water Tank” site. (Pis.’ 56.1 ¶¶ 111-12; Defs.’ 56.1 Resp. ¶¶ 111-12; Admin. R. 123, 1156-57, 1162.) In or around 2009, the Town rejected Little Switzerland Water Tank site as a possible option. (Pis.’ 56.1 Resp. ¶ 113; Admin. R. 12, 18, 1156-57, 1162-63.) On August 11, 2011, Homeland participated in a pre-application submission conference with representatives from the Town. (Pis.’ 56.1 ¶ 114; Admin. R. 8.) Subsequent to the pre-application conference, Town representatives recommended that Plaintiffs confirm the availability of the Beekman Water Company and Little Switzerland Water Tank sites. (Pis.’ 56.1 ¶ 116; Admin. R. 12, 18.) After the conference, Plaintiffs inquired by letter dated September 16, 2011 whether “the status and/or availability of’ two sites that were previously deemed unavailable by the Town for purposes of siting a new facility had changed. (Pis.’ 56.1 ¶ 5; Admin. R. 12.) Plaintiffs sent a second letter dated September 30, 2011, reiterating their request and notifying the Town that they were preparing the documentation necessary to file the Application. (Admin. R. 18.)

Throughout the application process, Plaintiffs suggested that the Little Switzerland Water Tank site may provide an alternative to the proposed Site..(Pis.’ 56.1 ¶¶ 119, 121-22, 124-25.) Specifically, Plaintiffs explained that the Little Switzerland Water Tank site “might be a better location for this facility,” given that “because of the increased elevation at that property which is adjacent to the current property we have a proposal on, the tower would only need to be 90 feet.” (Pis.’ 56.1 ¶ 122; Admin. R. 1164 (DVD at 20:44-21:03).) In response, the Board and Plaintiffs were advised by the neighbors that Little Switzerland Water Tank site “was not an option. Nobody want[s] it.... [T]he applicant needed to hear that.” (Pis.’ 56.1 ¶ 123; Admin. R. 1163.)

Defendants admit that Plaintiffs investigated the alternative sites and options, as discussed above. Defendants contend, however, that Plaintiffs did not thoroughly investigate the two-site alternative proposed by Graiff. (Defs.’ 56.1 Resp. ¶ 76.) The Board requested that Plaintiffs investigate two different two-site options. (Pis.’ 56.1 ¶ 95.) The requested two-site options would require installing a new communications facility on an existing wood pole at 190 Old Sylvan Lake Road (the “Sylvan pole”) — which Homeland does not own, and Verizon does not lease space on — in combination with also constructing either: (1) a new communications tower facility at 39 Loganberry Court, known as “Rand Water Company,” or (2) a new communications tower facility at 1643 Route 82, known as “Anthony Associates,” (Id. ¶ 96.)

The actual maximum available height and capacity on the Sylvan pole was determined to be lower than initially assumed. (Id. ¶ 98; Admin. R. 549, 570, 1292.) Plaintiffs submitted a certification from David Weinpahl (“Weinpahl”), an engineer at On Air Engineering, LLC, concluding that “additional co-location at the [Sylvan] pole is not possible due to structural and RF design concerns.” (Pis.’ 56.1 ¶ 99; Admin. R. 1219.) Plaintiffs also filed a second opinion from Antonio Gualtieri (“Gual-tieri”), an engineer at Tectonic, certifying that “the existing wooden' pole structure is not adequate to support the loads of the combination of the existing carriers and the proposed antenna installation by Verizon ... at an elevation of 57’ [AGL] ... [and] these types of structures are not designed to be extendable.” (Admin. R. 1224.)

Plaintiffs evaluated both two-site options with increased antenna heights at each of the locations, including: (1) a 175 foot tower at Rand Water Company, or (2) a 175 foot tower at Anthony Associates. (Pis.’ 56.1 ¶ 105; Admin. R. 1294.) Andras, Verizon’s engineer, concluded that, “Collocation on the 80 foot wood [Sylvan] pole is not a viable part of a two-site scenario,” because, among' other things, “[a] coverage gap would remain along the Taconic State Parkway, and the surrounding areas in either hypothetical two-site scenario far beyond Verizon’s -85dbm threshold.” (Pis.’ 56.1 ¶¶ 101, 106; Admin. R. 1296-97 (typeface altered).) Defendants admit that Andras concluded as much, but note that he did not state that there would be an absence of coverage at either the -85.1 to - 87dBm or -87dBm to 89dBm ranges, and Graiff' opined that the Verizon system “would work perfectly” in the -85.1 to - 87dBm range and “might work” in the - 87dBm to 89dBm range. (Defs.’ 56.1 Resp. ¶ 106; Admin. R. 1341.) In its March 13, 2013 analysis, Verizon explained that “when operating the Verizon system beyond the -85 d[B]m threshold level, communication between the handset and base station becomes increasingly unreliable, and will likely experience call failures and' significant performance degradation.” (Admin. R. 1292.) Defendants fault Verizon for failing to provide any data regarding the signal strength produced by the two-site alternative in the target area, (Defs.’ 56.1 ¶ 66 (second)), but Plaintiffs point out that its March 13, 2013 analysis identifies the signal strength for the two-site analysis, (Pls.’s 56.1 Resp. ¶ 66 (second); Admin. R. 1294-95).

Verizon’s revised RF analysis evaluating the two-site option did not quantify the remaining gap in service in the target area. (Admin. R. 534, 549, 571.) Graiff opined that the gap at Anthony Associates would be approximately 0.5 of a mile. (Id. at 609, 687.) In a June 2012 RF Analysis, Edwards stated that the remaining gap if the Rand Water Company site was used would be 0.6 of a mile. (Id. at 411.)

Based on their analyses, Verizon’s RF Engineers ultimately concluded that “[c]ol-location on the [Sylvan] pole ... is NOT a viable part of a two-site scenario (either from a structural integrity or coverage perspective).” (Id. at 1296.) Graiff, in turn, concluded that “[i]t is clear that ... the coverage relief with the two site solution is not achieved.” (Pis.’ 56.1 ¶ 107; Admin. R. 1304.) Although Graiff stated that “[i]t would ... appear that the existing monopole at [Sylvan] is not a viable alternate site for the two site solution,” (Pis.’-56.1 ¶ 104; Admin. R. 1340), and that “[i]t appears that the two site solution with all of the alternates considered fails to meet the need to fill the gap,” (Pis.’ 56.1 ¶ 108; Admin. R. 134), Defendants deny that the statement represents Graiff s final conclusion on the matter, (Defs.’ 56.1 Resp. ¶¶ 104, 108). Instead, Defendants state that Graiff also concluded that a two-site alternative would be feasible if the Sylvan pole was re-engineered to be structurally sound and extended in height. (Id.; Admin. R. 1340.) Indeed, a Verizon RF Design Engineer agreed that the tower at Sylvan would have to be re-engineered to make the two-site alternative work. (Defs.’- 56.1 Resp. ¶ 108; Admin. R. 1301.) Defendants point out that, despite these conclusions, Plaintiffs never proposed a re-engineering analysis. (Defs.’ 56.1 Resp. ¶ 108.)

Plaintiffs also advised the Board that the Sylvan tower “has a greater impact on the surrounding neighborhood .... [as][i]t is much closer to the- proximity of the homes in the area[,] .... [and] the location provides no visual buffer to the surrounding neighborhood^] which is relevant when compared to the [proposed Site],” and submitted an aerial image to the Board to support their statements. (Pis.’ 56.1 ¶¶ 109-10; Admin. R. 1388, 1411 (DVD at 23:33).) Defendants admit that the 80 foot pole at Sylvan was visible above the 70 foot trees. (Defs.’ 56.1 Resp. ¶ 110; Admin. R. 1220,1293.)

5. The Site’s Effect on the Community

The Site, as described in some detail above, is more than 16 acres in size, abuts the Taconic State Parkway, and is located in the R-l Zoning District. (Pis.’ 56.1 ¶¶ 126-27; Admin. R. 598.) An estimated traffic volume of 28,000 people pass by the specific segment of the Taconic State Parkway that abuts the Site each day, and an estimated traffic volume of 7,000 people per day travel along the specific segment of Route 82 that extends through the gap. (Pis.’ 56.1 ¶¶ 128-29; Admin. R. 1332.) A public utility site with water tower infrastructure is located immediately south of the Site. (Pis.’ 56.1 ¶ 130; Admin. R. 126, 1235.) The Board was advised “that there were recently four large ham radio towers in the neighborhood” near the Site, (Pis.’ 56.1 ¶ 131; Admin. R. 1407), and at least one 130 foot ham tower was previously located on a parcel at 21 Dartantra Drive, (Pis.’ 56.1 ¶ 132; Admin. R. 700). The parcel identified as 21 Dartantra Drive abuts the Site on its northern side, (Pis.’ 56.1 ¶ 133; Admin. R. 598), and neighbors opposing the Application confirmed that the ham towers existed on property along Dartantra Drive at the time that they purchased their homes, (Pis.’ 56.1 ¶ 134; Admin. R. 700-02.)

The Facility is located on the central to northwestern portion of the Site, and setback over 500 feet from the nearest residential structure and over 800 feet from the nearest local road, Dartantra Drive. (Pis.’ 56.1 ¶ 135; Admin. R. 598.) The Site is well vegetated, and the Facility is located in a heavily wooded area. (Pis.’ 56.1 ¶ 136; Admin. R. 1334). The tree height is 65 to 75 feet, (Admin. R. 1157;1390), and the Tower, therefore, will extend up to 75 to 85 feet above the tree line, (Admin. R. 649). -

The Tower is planned to be a metallic structure with visible antenna arrays each measuring over six feet in diameter and a foot in height. (Defs.’ 56.1 ¶ 46.) Defendants claim that Plaintiffs refused to con-: sider a proposal to camouflage the Tower as an evergreen or flagpole, and, instead, insisted that it was purposefully designed as a metallic structure. (Defs.’ 56.1 Resp. ¶ 191; Defs.’ 56.1 ¶ 45.) Plaintiffs assert that the record contains no evidence that the Board even requested to review specific camouflaging for the Facility, (Pis.’ 56.1. ¶ 191), and, indeed, the portions of the record that Defendants cite do not contain such information, (see Admin. R. 1340, 1396).

Plaintiffs submitted a Visual Resource Evaluation, dated January 30, 2012 (the “VRE”) and supplemental Responses, dated June 20, 2012 and March 21, 2013, which were prepared and submitted to the Board by Plaintiffs’ visual and environmental consultant, IVI Telecom Services, Inc. (“IVI”). (Pis.’ 56.1 ¶ 137; Admin. R. 234-93, 493-96, 1230-40.) Before submitting these documents, Plaintiffs requested to be placed on the October 11, 2011 Board meeting agenda to introduce the Facility to the Board, determine the vantage points that should be considered as part of the VRE, and set a schedule for a visual test in accordance with the Code. (Pis.’ 56.1 ¶ 138; R. 13.) Defendants did not grant Plaintiffs’ request. (Pis.’ 56.1 ¶ 140; Admin. R. 19-20.) At a December 13, 2011 meeting, the Board authorized Plaintiffs to proceed with conducting a viewshed analysis, including the requisite balloon test.. (Pis.’ 56.1 ¶ 144; Admin. R. 211.) Plaintiffs contend that the Board did not request any specific vantage points or locations from which it required photos to be taken, except from the viewpoint perspective of the Taconic State Parkway, nor did the Board request that IVI employ any other methodology. (Pis.’ 56.1 ¶ 146; Admin. R. 210-11). Defendants deny this statement and point to § 194-79(B)(7) of the Code, which identifies several scenic areas. (Defs.’ 56.1 Resp. ¶ 146.)

On January 7, 2012, IVI concluded its viewshed field investigation, including the authorized balloon test, which was noticed by newspaper publication on December 29, 2011. (Pis.’ 56.1 ¶ 150; Admin. R. 222, 226.) IVI informed the Board that “the balloon test and photosimulations were completed in a worst case, ‘leaf off condition so that for much of the year, any potential visibility will be even further minimized or removed.” (Pis.’ 56.1 ¶ 152; Admin. R. 494.) At a February 15, 2012 meeting, a Homeland representative stated that “[t]here is really no way of getting a perfectly accurate depiction during the balloon test of what it is going to be like without cutting down trees.” (Admin. R. 305.) The VRE notes that “IVI additionally reviewed those resources listed in § 194-79(B)(7) of [the Code and]_[according to [its] review, all of the listed resources were confirmed to be well beyond the [area of potential effect (the “APE”)].” (Pis.’ 56.1 ¶ 154; Admin. R. 237.) Plaintiffs contend that there is no evidence in the record that demonstrates or asserts that the Facility will be visible from or have any effect on resources listed in § 194-79(b)(7) of the Code. (Pis.’ 56.1 ¶ 156.) Defendants disagree, pointing to the VRE’s Figure 1, which notes that in fifteen photos, the balloons were visible, and Defendants conclude, instead, that there were multiple areas where the proposed Tower disrupts the scenic viewshed. (Defs.’ 56.1 Resp. ¶ 156; Defs.’ 56.1 ¶¶ 41, 43; Admin. R. 238-40, 244.)

In the VRE, IVI concluded that the Facility “will NOT have an adverse effect on visual resources,” and found that: (Pis.’ 56.1 ¶ 159; Admin. R. 241.) At a meeting on August 9, 2013, a representative from IVI explained that when “[t]he three balloons were floated at the location of the [T]ower_[f]rom all ... vantage points, I[V]I was able to find that none of them were actually visible[,] [and] [i]n all cases, they were partially visible[,] [which means] .... visible through the tree cover .... There is always a view through screening.” (Admin. R. 1390.)

[T]here will be minimal visibility of the [Facility] due to the variations in terrain, natural and man made obstructions[,] and significant tree cover. At the small number of viewpoints where the [Facility] will be visible, either intervening tree cover will limit the aesthetic effect of the proposed [Facility] or the [Facility] will be at such a significant distance from the viewpoint so as to limit the visual impact.

Neighbors opposing the Site retained George M. Janes (“Janes”) to review and challenge the VRE. (Pis.’ 56.1 ¶ 164; Admin. R. 690.) At the Town meeting on December 11, 2012, Janes criticized the VRE on the grounds that the photograph quality of the locations was poor and not in accordance with industry standards. (Admin. R. 690-91.) He opined that the VRE “cannot be used as an assessment of the project’s impact” and advised that the Board “needs to demand more.” (Id. at 691.) On February 12, 2013, Janes presented two photographic simulations taken from two locations: (1) private property, known as 23 Dartantra Drive, which is the proposed Site; and (2) from 70 Old Sylvan Lake Road. (Pis.’ 56.1 ¶ 167; Admin. R. 1413-14.)

Matthew W. Allen (“Allen”), a representative from Saratoga Associates Landscape Architects, Architects, Engineers, and Planners, P.C.- (“Saratoga”), was retained to by IVI to review the VRE and Jane’s conclusions. (Admin. R. 1243.) Saratoga “has over 30 years [of]-experience in the specialized discipline of visual impact assessment for a variety of project types including ... communications infrastructure,” (id. at 1243), and Janes acknowledged that Allen is a “reasonably well-known professional in this field,” (id. at 1415). In a letter dated March 22, 2013, Allen stated that although four images from the VRE “are of lesser quality than standard photographs[,] ... [g]iven the totality of photographic information contained in the VRE,” the VRE can still be used to make a “determination of visual significance.” (Id. at 1243-44.) Allen also noted that “Janes’s comments are limited to a critique of the quality and completeness of the VRE[,]” and “while highly critical of the methodology of the IVI analysis, Janes provides no independent analysis or evidence demonstrating that the VRE findings of ‘no significant impact’ are incorrect.” (Id. at 1246.) Allen concluded that:

[T]he VRE prepared by IVI associates is accurate and of sufficient detail, .... [and] [biased on ... review of this information, Janes[’s] rebuttal, and our own site visit and 3-D analysis[,] it is clear that the project will be well screened by intervening landform and vegetation for all sensitive visual resources resulting in no adverse visual impact. Further, a substantial buffer of existing mature forest vegetation will remain between the proposed project and adjacent residences. Although isolated views may occur above intervening trees, views from neighboring properties will be substantially screened by forest cover and understory vegetation during leafless winter months and fully screened during the summer months.

(Id. at 1246-47). On April 9, 2013, Janes submitted a supporting letter and materials to the Board. (Id. at 1412-14.) Allen also testified before the Board that, among other things, he had “never seen an application with a less visual impact than this one.” (P-ls.’ 56.1 ¶ 173; Admin. R. 1411 (DVD at 54:34-40).),

59 trees would be cut down to allow for the construction of the Facility, of which Plaintiffs claim only 7 are greater than 20 inches in diameter and “the rest are either saplings or something a little bit more like that.” (Admin. R. 1389.) Allen explained that creating simulations illustrating the removal of vegetation in the area is “an extremely difficult and imprecise task” and “[e]ven if you assume the photo simulations provided by Janes are accurate, these visualizations demonstrate that visibility of ground level facilities is minimal and does not represent a significant visual impact.” (Id. at 1245.) Plaintiffs submitted a photo to the Board during the April 9, 2013 public hearing to show the “actual footprint of the disturbance.” (Id. at 1389.)

Also relevant, neighbors of the Site testified that the Facility would negatively affect the views from their residences. (Id. at 701-06.) However, the New York State Historic Preservation Office (“SHPO”) found that IVI followed proper procedures and concluded that there will be “No Adverse Effect on Historic Properties in [the APE]” from the Facility, which includes the Taconic State Parkway as-“[t]he sole resource identified.” (Pis.’ 56.1 ¶ 163; Admin. R. 498, 500.) The Board’s planning consultant, Michelle Robbins (“Robbins”) concluded that “[d]ue to intervening distance and topography as well as existing vegetation, views of the tower would be partially screened from most locations in the study area.” (Admin. R. 297.)

The Parties also dispute whether the Facility will negatively affect property values in the surrounding area. An affidavit submitted by Anthony V. Serino (the “Ser-ino Affidavit”) concluded that property values decline approximately 20% in areas where a cell tower exists. (Id. at 815.) Serino based his affidavit on his experience as a Dutchess County realtor. (Defs.’ 56.1 Resp. ¶ 199; Admin. R. 815). Based on this experience, Serino opined that “many people are reluctant to purchase homes in neighborhoods where cell towers are located because there is a perception among potential buyers that a health risk exists.” (Admin. R. 815 (typeface altered).)

Plaintiffs submitted a report by Edward J. Ferrarone, a certified appraiser employed at Lane Appraisals, Inc., Real Estate Valuation Consultants (the “Ferrar-one Report”). (Pls.’s 56.1 ¶ 202; Admin. R. 1260-84.) Ferrarone explained that he reviewed the Application and that his opinion was based on an “ongoing study of sales of homes within a close proximity of similar facilities in Westchester, Putnam[,] and Rockland Counties.” (Admin. R. 1261.) The Ferrarone Report concluded that “the installation, presence and/or operation of the [Facility] will not result in the diminution of property values or reduce the marketability of properties in the immediate area.” (Id. at 1263.)

6. Hearings

The Board conducted reviews and public hearings on the Application on November 13, 2012, December 11, 2012, February 12, 2013, March 12, 2013 April 9, 2013, and June 11, 2013. (Id. at 679, 1155, 1384, 1470, 1495.) The Denial states that on April 9, 2013, ... the [p]ublic [hjearing was closed, and the time for a Decision & Order was extended by mutual agreement to June 12, 2013.” (Id. at 1495.) Plaintiffs contend that the “Board closed the public hearing on April 9, 2013 and did not continue it to June 11, 2013, but rather reserved its decision to an uncertain date.” (Pis.’ 56.1 Reply ¶ 221.) Plaintiffs state that the Board did not inform them or the public at the April 9, 2013 public hearing, or directly any time thereafter that the special meeting would take place. (Pis.’ 56.1 ¶ 224.) Defendants point out that the Board meeting, like all Town meetings, was posted on the Town website, as Plaintiffs had been previously notified. (Defs.’ 56.1 Resp. ¶ 224.) On April 29, 2013, the Board held a special meeting to discuss the Application, with an agenda stating that “the Board expects to go into executive session for the purpose of discussing this matter with [its] attorney.” (Admin. R. 1465.) Accordingly, the Board opened the April 29, 2013 meeting and adopted a motion to “go into Executive Session with [its] Attorneys for the purpose of discussing” the Application. (Pis.’ 56.1 ¶ 225; Admin. R. 1466.)

7. The Board’s Decision

On June 11, 2013, the Board issued a decision denying the Application (the “Denial”), which was reduced to a final written resolution on June 15, 2013. (Pis.’ 56.1 ¶¶ 20-21; Admin. R. 1468, 1470, 1475, 1491-1517.) First, the Board concluded that there “is not a significant gap because there is tremendous redundancy and overlap from the proposed Tower with existing coverage.” (Admin. R. 1477.) Specifically, the Board relied on the conclusion in Graiffs Initial Report that “the proposed site only provides approximately 20% new coverage (un-duplicated) and nearly 80% overlaps with existing coverage ....” (Defs.’ Resp. ¶ 29; Admin. R. 1476.) Furthermore, the Board explained that “although numerous calculated and drive test propagation plots of existing coverage were presented in support of its case, Verizon provided no actual call or traffic data from its system demonstrating that its customers were suffering from a lack of service or ‘dropped calls’ in the two distinct but very small purported gaps (estimated ... to be approximately one quarter mile and one half mile, which a driver on the Taconic Parkway would pass through in approximately 20-35 seconds).” (Defs.’ Resp. ¶ 29; Admin. R. 1477.)

Second, the Board concluded that “collocation, as presented by [Plaintiffs] throughout the review and public hearing process, is not feasible due to topographic considerations.” (Admin. R. 1478.) Specifically, the Board explained that documents Plaintiffs submitted show that “only Verizon will achieve full coverage to the target area; other carriers will likely encounter significant signal attenuation, and minimal or no coverage is achieved at heights below the 146’ cover line.” (Id. (emphasis omitted).) The Board based this explanation on Plaintiffs’ admission that “[a]t a lower center [than 146’] the Verizon Wireless signal would be impacted by additional clutter,” and reasoned “this could apply to carriers other than Verizon as well.” (Id. (alteration in original) (internal quotation marks omitted).) Moreover, the Board noted that “[b]y building in tower height expansion, the Applicant could increase the height of the tower without going through the rigorous requirements of the [Code] as it pertains to construction of a new tower, and the [Board] could be bound as a matter of Federal Law to approve any such increase under the recently enacted Middle Class Tax Relief and Job Creation Act of 2012.” (Id. (emphasis omitted).) In short, the Board explained, “coverage below the 146’ center line of the proposed 150’ tower is essentially useless, and a single carrier tower serving Verizon only is likely,” and the Application “implies that additional variances could be sought which may increase the height of the tower,” which “would have a substantial effect on the neighboring property owners.”s (Id.) Further, according to the Board, Plaintiffs did not “provide any information on minimal impact alternate technologies ... that could provide the relief [Verizon] (as well as other carriers) might seek in filling this obvious very small gap in coverage.” (Id. at 1479.)

Third, the Board concluded that “[b]ased upon a review of the various [s]ite [p]lans, actual photographs, and visual projections, the proposed tower and associated equipment compound will be highly intrusive to the communities affected.” (Id.) Specifically, the Board found that the Tower, “approximately [three] times the height of the tallest existing tree,” will be seen from “numerous vantage points,” “will not be disguised as a tree or flagpole” and, therefore, “will be an eyesore in mature, residential neighborhoods.” (Id.) Further, the Board found that numerous trees will be cut down, which will make the Facility even more visible, and the Facility will impact “the viewshed” of the Taconic State Parkway. (Id. at 1479-80.) Accordingly, because it concluded that the Facility is “not pleasing to the senses,” the Board determined that the Facility fails to comply with § 194 — 80(a)(11)(b) of the Code, which requires applicants to minimize visual impacts upon residential properties, and New York Environmental Conservation Law § 8-0103(1). (Id. at 1480.)

Fourth, in analyzing the Facility’s effect on property values, the Board relied on the Serino Affidavit, to conclude that “property values decline approximately 20% in areas where a cell tower exists.” (Id.) The Board found the Ferrarone Report deficient because it did not rely on data concerning the effect of a cell tower on property values in rural Dutchess County, the bulk of the data provided was “relatively antiquated,” no photographic evidence was provided, and the examples discussed were irrelevant. (Id. at 1481.)

Finally, the Board concluded that a special permit was not warranted under the Code because the Facility did not meei; every condition required by the Code. (Id. at 1482.)

B. Procedural History

Plaintiffs filed the instant Complaint on July 10, 2013, alleging that Defendants violated Section 704 of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(i)(II), by effectively prohibiting Plaintiffs from fulfilling a need for wireless services to East Fishkill and the surrounding area, and Section 704 of the Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(iii), by failing to support its decision with substantial evidence in the record. (Pis.’ Compl. ¶¶ 180-91 (Dkt. No. 1).) Plaintiffs also claim that they are entitled to reversal of the Denial pursuant to Article 78 of the New York Civil Practice Laws and Rules (the “CPLR”). (Id. ¶¶ 192-98.) After a conference on March 13, 2014, the Court set a briefing schedule. (Dkt. No. 13.) The Court heard oral argument on December 9, 2014.

II. DISCUSSION

A Applicable Law

1. Standard of Review for Summary Judgment.

Summary judgment shall be granted where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (internal quotation marks omitted); see also Borough of Upper Saddle River, N.J. v. Rockland Cnty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y.2014) (same). Additionally, “[i]t is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co., Inc. v: 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Price-Waterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (alterations and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a metaphysical possibility that his allegations were correct; he need[s] to come forward with specific facts showing that there is a genuine issue for trial,” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir.2012) (emphasis and internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings,” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009) (‘When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading-”)).

“On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of New York, 746 F.3d 538, 544 (2d Cir.2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court’s goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir.2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Schatzki v. Weiser Capital Mgmt., LLC, No. 10-CV-4685, 2013 WL 6189465, at *14 (S.D.N.Y. Nov. 26, 2013) (same).

2. The Telecommunications Act of 1996

The Telecommunications Act of 1996, codified in part at 47 U.S.C. § 332, is “an omnibus overhaul of the federal regulation of communications companies,” enacted to “provide for a pro-competitive, de-regula-tory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services ... by opening all telecommunications markets to competition.” Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 637 (2d Cir.1999). To further this goal, Congress enacted 47 U.S.C. § 332(c)(7), which “preserve^] the authority of state and local governments over zoning and land use,' but impose[s] limitations on that authority.” N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 101 (2d Cir.2010) (citing 47 U.S.C. § 332(c)(7)); see also Willoth, 176 F.3d at 637 (explaining that § 332(c)(7) “limits the state and local government’s authority to deny construction of wireless telecommunications towers, see [47 U.S.C.] § 332(e)(7)(B)(i), and regulates how such decisions must be made, see id. §§ 332(c)(7)(B)(ii)-(iv)”).

a. Effective Prohibition Provision

Under the TCA, local governments retain authority over “decisions regarding the placement, construction, and modification of personal wireless service facilities,” 47 U.S.C. § 332(c)(7)(A), but may not, among other things, “prohibit or have the effect of prohibiting the provision of personal wireless services,” id. § 332(c)(7)(B)(i)(II). This Section is known as the effective prohibition provision, see T-Mobile Northeast LLC v. Town of Ramapo, 701 F.Supp.2d 446, 463 (S.D.N.Y.2009), and “precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user’s ability to reach a cell site that provides access to land lines,” Willoth, 176 F.3d at 643.

“Although the TCA does not specify a remedy for violations of [this] subsection ... the majority of district courts that have heard these cases have held that the appropriate remedy is injunctive relief in the form of an order to issue the relevant permits.” T-Mobile Northeast LLC v. Inc. Vill. of E. Hills, 779 F.Supp.2d 256, 275 (E.D.N.Y.2011) (second alteration in original) (internal quotation marks omitted); see also Town of Ramapo, 701 F.Supp.2d at 463 (“[U]nder Willoth, a violation of the effective prohibition provision requires injunctive relief: an application proposing the least intrusive means for closing a significant coverage gap cannot be denied — or, put differently, it must be granted” (citation, alteration, and internal quotation marks omitted)).

b. Substantial Evidence Requirement and Relevant State and Local Law

The TCA also requires that “[a]ny 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.” 47 U.S.C. § 332(e)(7)(B)(iii). In general, “denials subject to the [Telecommunications Act] are reviewed ... more closely than other types of zoning decisions to which federal courts generally accord great deference.” Willoth, 176 F.3d at 637 (internal quotation marks omitted). “Whether a decision is supported by substantial evidence must be determined according to the traditional standard used for judicial review of agency actions.” Id. at 638 (internal quotation marks omitted). “Substantial evidence requires eyaluation of the entire record, including opposing evidence, and requires a decision to be supported by less than a preponderance but more than a scintilla of evidence.” Id. (citation omitted). In other words, substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). A court must view the record in its entirety, and “may neither engage in [its] own fact-finding nor supplant the Town Board’s reasonable determinations.” Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir.1999).

“When evaluating the evidence, loc