In this matter, Plaintiff-Appellee Up State Tower Co., L.L.C. (“Up State”) claimed that Kiantone violated 47 U.S.C. § 332(c)(7)(B)(iii) in denying Up State's application for a cell tower permit because the reasons for the denial were not supported by substantial evidence in the record. Kiantone's arguments failed in the lower court. On appeal, Kiantone argued 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.
The court was not persuaded by Kiantone's argument and expressly 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].” 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.