New Cingular Wireless PCS, LLC v. City of Cambridge et al

Filing 37

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "In accordance with the foregoing, 1) Plaintiff's Motion for Partial Summary Judgment (DocketNo. 21 ) is DENIED, but 2) Defendants' Motion for Leave to Amend Answer (Docket No. 29 ) is also DENIED. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
NEW CINGULAR WIRELESS PCS, LLC, )
Plaintiff,
)
)
v.
)
Civil Action No.
)
10-11541-NMG
CITY OF CAMBRIDGE, BOARD OF
)
ZONING APPEAL OF THE CITY OF
)
CAMBRIDGE, and CONSTANTINE
)
ALEXANDER, TIMOTHY HUGHES,
)
BRENDAN SULLIVAN, DOUGLAS MYERS )
and SLATER ANDERSON, in their
)
capacities as members of the
)
Board of Zoning Appeal of the
)
City of Cambridge,
)
Defendants.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
Plaintiff New Cingular Wireless PCS, LLC (“AT&T”) sues the
City of Cambridge (“Cambridge”), the Board of Zoning Appeal of
the City of Cambridge (“the Board”) and individual members
thereof in their capacity as members (collectively, “the
defendants”) for two alleged violations of the Federal
Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 332(c)(7)(B).
The complaint alleges that the defendants violated the TCA by
effectively prohibiting the provision of personal wireless
services (Count I) and by failing to issue a decision supported
by substantial evidence (Count II).
Currently before the Court is 1) plaintiff’s motion for
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summary judgment on Count II and 2) the defendants’ motion to
amend their answer.
I.

Background
This case arises from the Board’s denial of AT&T’s

application for a special permit to install wireless
communication antennae on the roof of an apartment building on
Massachusetts Avenue in Cambridge, Massachusetts.

AT&T’s

proposal calls for the installation of twelve antennae on six
“stealth chimneys” made of fiberglass and designed to match other
chimneys already on the roof.

The chimneys facing Massachusetts

Avenue would be the same height (six feet) and roughly the same
width as the existing chimneys and would be set back six feet
from the edge of the roof.

The chimneys on the other side of the

building would be ten feet high and set back ten feet from the
edge.
Three public hearings concerning the application were held
before the Board between January and June, 2010.

AT&T provided

the Board with photographs and photo-simulations of the proposed
plan and explained that its proposal had been presented to and
approved by the Cambridge Planning Board.

AT&T stated that the

proposed installation was necessary to close a coverage gap just
north of Harvard Square and that numerous other locations had
been considered but proved either infeasible or unresponsive.
Although the Board voted three-to-two in favor of AT&T’s

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application, that vote fell short of the four-member affirmative
vote required by ordinance to approve a special permit.

The

Board’s written decision provided a short summary of the relevant
proceedings, including a summary of the various aesthetic
objections to the proposal, and then stated that the denial was
based upon “all the information presented” and upon “the absence
of one or more” of six criteria.

The six criteria specified are

those listed in Section 10.43 of Cambridge’s Zoning Ordinance,
which sets forth the criteria by which local boards evaluate
whether a special permit should be denied as detrimental to the
public interest.
II.

Analysis
The purpose of the Telecommunications Act is to facilitate

the national development of wireless telephone service.

The Act,

“an exercise in cooperative federalism”, delegates authority over
the placement and construction of facilities to state and local
authority.

Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals,

297 F.3d 14, 21-22 (1st Cir. 2002).

That authority, however, is

subject to five limitations enumerated in 47 U.S.C.
§ 332(c)(7)(B).
Plaintiff alleges that the Board’s rejection of its special
application violates, as a matter of law, one such limitation
which provides that any decision from a local board denying a
request to place or construct personal wireless services

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facilities “shall be in writing and supported by substantial
evidence contained in a written record.”

§ 332(c)(7)(B)(iii).

Plaintiff contends that the decision was insufficient because 1)
it did not adequately explain why the permit was denied and 2)
the denial was not supported by substantial evidence in the
record.
The defendants counter that the disputed limitation on local
authority violates the Tenth Amendment of the United States
Constitution and that, in any event, the board’s decision met its
requirements.

Defendants also move to amend their answer to add

their constitutional defense, which they raised for the first
time in opposition to plaintiff’s motion.
A.

Summary Judgment Standard

The role of summary judgment is “to pierce the pleadings and
to assess the proof in order to see whether there is a genuine
need for trial.”

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822

(1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46,
50 (1st Cir. 1990)).

The burden is on the moving party to show,

through the pleadings, discovery and affidavits, “that there is
no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.”
P. 56(c).

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Fed. R. Civ.

B.

Constitutional Analysis

The Tenth Amendment declares that “powers not delegated to
the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the
people.”

U.S. Const. amend. X.

The Amendment affirms the

principle of federalism and has been described as a “truism” that
“all is retained which has not been surrendered.”

United States

v. Darby, 312 U.S. 100, 124 (1941).
A Tenth Amendment challenge to federal regulation requires a
court to determine whether the federal government has exceeded
its constitutional authority and impermissibly encroached on
state sovereignty.
157 (1992).

See New York v. United States, 505 U.S. 144,

One way in which Congress exceeds its constitutional

authority is by “commandeering” states to accomplish federal
ends, i.e., by “directly compelling [states] to enact and enforce
a federal regulatory program.”

Id. at 161 (quoting Hodel v.

Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 288
(1981)).

Although Congress may, pursuant to its enumerated

powers and the Supremacy Clause, govern the people directly or
preempt state regulation with direct federal regulation, it may
not “require the States to govern according to [its]
instructions.”

Id. at 162.

Nonetheless, Congress may encourage states to promote
federal policies in a variety of ways.

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For example, where

Congress has the authority to regulate private activity under the
Commerce Clause, it may encourage states to take desired
affirmative action by offering them the choice of 1) regulating
that activity according to federal standards or 2) having state
law pre-empted by federal regulation.

Id. at 167; see FERC v.

Mississippi, 456 U.S. 742, 765-66 (1982).

Such an arrangement

falls short of outright coercion and “offers the States a vehicle
for remaining active in an area of overriding concern.”
456 U.S. at 766.

FERC,

State autonomy is preserved because a state may

choose not to regulate and instead “supplement [the federal]
program to the extent state law is not pre-empted.”
505 U.S. at 168.

New York,

Where, however, the federal government attempts

to offer states a “choice” between two options which each require
affirmative state enactment or administration of a federal
program, it crosses the line from encouragement to coercion.

See

Printz, 521 U.S. at 927; New York, 505 U.S. at 168.
Here, the Court does not doubt that Congress, pursuant to
the Commerce Clause, may preempt states from regulating the
construction and operation of personal wireless communications
facilities.

Defendants agree yet contend that Congress has not

preempted but instead employed a “partial preemption approach”
which runs afoul of the Tenth Amendment insofar as the only
alternative to abiding by federal standards is to abdicate zoning
authority over the construction of communication towers.

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A local

board is left with no meaningful choice, defendants assert,
because to withdraw from land-use regulation and leave the
construction of such structures “to the whims of the market”
terminates one of its most vital functions.
Plaintiff counters that Congress has undoubtedly preempted
local permitting decisions to the extent they violate
§ 332(c)(7)(B) and has simply imposed a procedural standard on
local administrative agencies as a condition to their continued
involvement in a preemptable field such as wireless
communications.

Thus, plaintiffs assert, local boards are left

with the perfectly constitutional choice of 1) denying an
application to place or construct wireless service facilities
only where the denial is memorialized in writing and supported by
substantial evidence or 2) not regulating the placement or
construction of such facilities.
The Court agrees with plaintiff and concludes that the
substantial evidence requirement does not violate the Tenth
Amendment.

Congress acted pursuant to its power to regulate

interstate commerce and “made its intent to preempt certain areas
of local zoning control clear and manifest in the TCA's specific
limitations on state zoning powers.”

Patterson v. Omnipoint

Comm’ns, Inc., 122 F. Supp. 2d 222, 229 (D. Mass. 2000); see also
Cellular Phone Taskforce v. F.C.C., 205 F.3d 82, 96-97 (2d Cir.
2000).

It has placed a procedural requirement on a board’s

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decision-making process by requiring that such decisions be in
writing and supported by substantial evidence.

Local zoning

boards may either abide by that limitation or relinquish
authority over the construction and placement of personal
wireless service facilities.

Although the latter option may not

be attractive, it involves no affirmative obligation to enforce
federal policy.

The state (or municipality) retains the ultimate

decision as to whether to comply or opt out entirely.
The Court will therefore deny the defendants’ motion to
amend their answer as futile and will proceed to analyze whether
the Board’s denial of plaintiff’s application complies with the
substantial evidence requirement.
C.

The Board’s Decision
1.

Standard of Review

A district court’s review of a board’s decision is not de
novo.

ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 95 (1st

Cir. 2002).

Rather, a board’s decision must be upheld unless it

is not supported by substantial evidence.

Id.

The burden of proving that the record contains substantial
evidence rests with the zoning board.

T-Mobile Northeast LLC v.

City of Lawrence, 755 F. Supp. 2d 286, 291 (D. Mass. 2010);
Sprint Spectrum, LLP v. Town of Easton, 982 F. Supp. 47, 49 (D.
Mass. 1997).

“Substantial evidence is such relevant evidence as

a reasonable mind might accept as adequate to support a

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conclusion.”

Nat’l Tower, 297 F.3d at 22 (internal citation and

quotation omitted).

When recording its decision, the board need

not present “formal findings of fact or conclusions of law” or
“state every [supporting] fact in the record.”
Nevertheless, it may not “hide the ball”.

Id. at 20-21.

Id. at 21.

At a

minimum,
[a] written denial must contain a sufficient explanation
of the reasons for the denial to allow a reviewing court
to evaluate the evidence in the record supporting those
reasons.
Id. (internal quotation omitted).
The Court’s review is confined to the record before the
zoning board, ATC Realty, 303 F.3d at 95, and must take into
account evidence that supports and contradicts the board’s
conclusions.

Cellco P’ship v. Town of Grafton, 336 F. Supp. 2d

71, 79 (D. Mass. 2004).

A mere recitation of provisions of state

and local zoning law does not constitute “substantial evidence”
under the Act.

See T-Mobile Northeast, 755 F. Supp. 2d at 291;

Sprint Spectrum L.P. v. Town of Swansea, 574 F. Supp. 2d 227, 236
(D. Mass. 2008).

However, if the evidence permits inconsistent

conclusions, the court will defer to the decision of the local
authority, “provided the local board picks between reasonable
inferences from the record before it.”
23.

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Nat’l Tower, 297 F.3d at

2.

Application

Indisputably, the Board’s “one or more” approach did not
particularize the legal grounds upon which its decision was
based.

Even so, the defendants argue that it is easy to infer

that the denial was pursuant to the first criterion, which calls
for the denial of a special permit where it appears the
application does not meet the requirements of the ordinance.
Among those requirements is that a local board, when evaluating
special permits for wireless communication facilities, considers
“[t]he extent to which the visual impact of the various elements
of the proposed facility is minimized” through use of mechanical
elements or other materials serving to blend the communications
facility with its environment.
4.40(49)(2).

See Section 4.32(g)(1) and

Defendants state that the written decision and

supporting record clearly demonstrate that the denial was based
on objections from board members and a member of the public to
the negative aesthetic impact of faux chimneys upon a highly
visible and architecturally significant building in “one of the
nicest residential areas in Cambridge.”
Although plaintiff makes a reasonable argument, the Court
infers from the summary of the facts provided in the written
decision, and from the record as a whole, that at least one
reason the permit was denied was the aesthetic objections raised
at the hearings and summarized in the Board’s written decision.

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It is also true, however, that the Board’s decision comes very
close to “hiding the ball.”

Nevertheless, it suffices and the

Court will evaluate whether the Board’s aesthetic objections were
supported by substantial evidence in the record.
Aesthetic objections, if properly supported by substantial
evidence, can justify denying a special permit.

See Southwestern

Bell Mobile Systs., Inc. v. Todd, 244 F.3d 51, 61 (1st Cir. 2001)
(holding that the TCA does not prevent “municipalities from
exercising their traditional prerogative to restrict and control
development based on aesthetic considerations”); New Cingular
Wireless PCS, LLC v. Town of Stow, No. 06-10659, 2009 WL 2018450,
at *7 (D. Mass. July 9, 2009) (“A negative aesthetic impact,
properly supported by substantial evidence, may itself be a
sufficient reason to deny a permit.”).

An aesthetic judgment,

however, may not “mask ... a de facto prohibition of personal
wireless services” and must be “grounded in the specifics of the
case.”

Southwestern Bell, 244 F.3d at 61.

Generalized concerns

that would apply to any wireless service facility or aesthetic
judgments that are “demonstrably without substance” do not amount
to substantial evidence, see id., “particularly where experts or
other administrative bodies have expressed a contrary view.”
Nextel Comm’ns v. Manchester-by-the-Sea, 115 F. Supp. 2d 65 (D.
Mass. 2000).
Plaintiff argues that the generalized concerns of a single

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neighbor and two board members about the look of the proposed
facility do not amount to substantial evidence where the Planning
Board expressed a contrary view and the record shows that AT&T’s
proposed facility would be concealed inside faux chimneys which
are painted, placed and oriented on the building roof to blend in
with the existing chimneys.
Defendants respond that, throughout the hearings, there were
lengthy discussions and questioning with respect to the visual
impact of the project.

They direct the Court’s attention to

several instances in which Board members stated that this was an
especially prominent, architecturally significant building upon
which the protruding and ersatz “stealth chimneys” would be
especially conspicuous and unattractive.

The written decision

summarizes those sentiments and expressly refers to certain
members’ judgment that the chimneys were too cheaply made and did
not actually blend in.

Although only one member of the community

opposed the installation, defendants point out that this
community member spoke on behalf of her 41-unit condominium in
the neighboring building.

Defendants contend that there is thus

ample basis upon which a reasonable arbiter could find the
aesthetic judgment supported by the record and the Board’s
judgment entitled to deference.
The Court agrees with defendants.

The Cambridge ordinance

explicitly directs Board members to consider, based on the

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evidence presented, the visual impact of the facility and thus
implicitly authorizes them to reject an application where the
impact is deemed detrimental.

As another judge in this district

has observed,
Beauty is in the eye of the beholder, and it is not
uncommon for persons to form differing opinions about
what is visually pleasing, especially in the mid-range,
rather than at the extremes, of the spectrum of
possibilities.
Nextel Comm’ns v. City of Cambridge, 246 F. Fupp. 2d 118, 124 (D.
Mass. 2003).
The objecting Board members discerned a substantial negative
impact based upon their assessment of the visual depictions of
the proposal.

In their opinion, the “stealth” chimneys did not

minimize the negative impact.

Because their conclusions are

adequately summarized and grounded in the specifics of the case,
the substantial evidence requirement is satisfied.
ORDER
In accordance with the foregoing,
1)

Plaintiff’s Motion for Partial Summary Judgment (Docket
No. 21) is DENIED, but

2)

Defendants’ Motion for Leave to Amend Answer (Docket
No. 29) is also DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated December 22, 2011
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