19-4237-cv
Up State Tower Co. v. The Town of Kiantone, et al.

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 10th day of September, two thousand twenty.

PRESENT:            JOSÉ A. CABRANES,
                    BARRINGTON D. PARKER,
                    MICHAEL H. PARK,
                                 Circuit Judges.


UP STATE TOWER CO., L.L.C.,

                              Plaintiff-Appellee,                    19-4237-cv

                              v.

THE TOWN OF KIANTONE, NEW YORK, THE TOWN
BOARD OF THE TOWN OF KIANTONE, NEW YORK,
THE BUILDING DEPARTMENT OF THE TOWN OF
KIANTONE, NEW YORK,

                              Defendants-Appellants.




FOR PLAINTIFF-APPELLEE:                                    THOMAS SCOTT THOMPSON, Davis
                                                           Wright Tremaine LLP, Washington, DC.

                                                           Jon P. Devendorf, Barclay Damon LLP,
                                                           Syracuse, NY.


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FOR DEFENDANTS-APPELLANTS:                                  PAUL V. WEBB, JR., Erickson Webb
                                                            Scolton & Hajdu, Lakewood, NY.

        Appeal from a March 12, 2019 judgment of the United States District Court for the Western
District of New York (Michael A. Telesca, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Defendants-Appellants The Town of Kiantone, New York, The Town Board of the Town
of Kiantone, New York, and The Building Department of the Town of Kiantone, New York,
(jointly, “Kiantone”) appeal from a March 12, 2019 judgment of the District Court granting
summary judgment to Plaintiff-Appellee Up State Tower Co., L.L.C. (“Up State”) on its claim that
Kiantone violated 47 U.S.C. § 332(c)(7)(B)(iii) in denying Up State’s application for a cell tower
permit (the “application”) because the reasons for the denial were not supported by substantial
evidence in the record. 1 Kiantone’s subsequent motion for reconsideration was denied by the
District Court on November 26, 2019, which Kiantone also challenges in this appeal. We assume the
parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.

         On appeal, Kiantone argues that, in granting summary judgment to Up State, the District
Court erred by considering evidence that was not part of the record before the Kiantone Town
Board (the “Town Board”) when the Town Board denied Up State’s application. Specifically,
Kiantone claims that the District Court erroneously considered the facts in the October 30, 2018
affidavit of Donald W. Carpenter (Up State’s site acquisition specialist), and the October 30, 2018
affidavit of Eric Wong (Up State’s radio frequency engineer) (jointly, the “Carpenter and Wong
Affidavits”), the facts and substance of which, Kiantone contends, were not before the Town Board
when it denied Up State’s application. 2

        We review a grant of summary judgment de novo, construing the evidence in the light most
favorable to the non-movant and drawing all reasonable inferences in the non-movant’s favor. See
Natofsky v. City of N.Y., 

, 344 (2d Cir. 2019). We review a district court’s denial of a


    1
       47 U.S.C. § 332(c)(7)(B)(iii) provides that: “Any 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.”
    2
     Despite the puzzlingly intricate “Background Facts” section in Kiantone’s brief, we limit our
review in this appeal to the narrow question that Kiantone specifically asks us to address—i.e.,
whether the District Court erroneously considered the facts in the Carpenter and Wong Affidavits in
granting summary judgment to Up State.

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motion for reconsideration under Federal Rule of Civil Procedure 60(b) for abuse of discretion. See
Johnson v. Univ. of Rochester Medical Ctr., 

, 125 (2d Cir. 2011). “A district court has abused
its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous
assessment of the evidence, or rendered a decision that cannot be located within the range of
permissible decisions.” In re Sims, 

, 132 (2d Cir. 2008) (internal quotation marks,
alteration, and citations omitted); see also In re City of New York, 

, 943 n.21 (2d Cir. 2010)
(explaining that “abuse of discretion” is a nonpejorative “term of art”).

        Based on the record before us, we are not persuaded by Kiantone’s argument that the
District Court impermissibly relied on the Carpenter and Wong Affidavits in granting summary
judgment to Up State. In its November 26, 2019 order denying Kiantone’s motion for
reconsideration, the District Court stated expressly that it found no genuine issue of material fact
that Kiantone’s denial of the application was not based on substantial evidence, “even without
considering [the Carpenter and Wong Affidavits].” Sp. App’x 38. As noted by Up State, Kiantone
already advanced this exact argument before the District Court in its motion for reconsideration,
and the District Court rejected it. See

        In its well-reasoned order denying Kiantone’s motion for reconsideration on this very basis,
the District Court explained in detail that, Kiantone’s reasons for denying Up State’s application
were not supported by substantial evidence in the record, even without consideration of the facts
stated in the Carpenter and Wong Affidavits. See

We are satisfied by the District Court’s
explanation of how it reached that conclusion in relying solely on the evidence before it in its own
review of the independent administrative record. See

Town Board’s finding
regarding the Schuver Property is unsupported by substantial evidence, irrespective of the Carpenter
Affidavit, and why the Town Board’s finding regarding colocation on the light poles at the
Jamestown School District Sports Complex is unsupported by substantial evidence, irrespective of
the Wong Affidavit). Accordingly, we cannot conclude that the District Court abused its discretion
in denying Kiantone’s motion for reconsideration, nor do we find any legal error in its grant of
summary judgment to Up State.

                                            CONCLUSION

       We have reviewed all the arguments raised by Kiantone on appeal and find them to be
without merit. Accordingly, we AFFIRM the March 12, 2019 judgment of the District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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