Varsity Wireless, LLC v. Boxford Zoning Board of Appeals et al

Filing 90

Judge Mark L. Wolf: MEMORANDUM AND ORDER entered denying 40 Motion for Partial Summary Judgment; granting in part and denying in part 57 Motion to Strike ; adopting Report and Recommendations re 86 Report and Recommendations. (Bono, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

VARSITY WIRELESS, LLC,
Plaintiff,
V.

C.A. No. 15-11833-MLW
BOXFORD

ZONING

BOARD

OF

APPEALS ET AL.,
Defendants.

MEMORANDUM AND ORDER

September 22, 2017

WOLF, D.J.

In this action, plaintiff Varsity Wireless, LLC {"Varsity")

challenges the Town of Boxford's denial of Varsity's application

for a special permit and dimensional variances for the construction
and

operation

of

a

wireless

communication

facility

(the

"Facility"). Specifically, Varsity is suing the Town of Boxford
(the "Town"), Boxford Zoning Board of Appeals (the "Board"), and
Board

members

Kathleen

0'Sullivan

Fortin,

Barbara

Jessel,

and

David Peterson on May 12, 2015, alleging that the denial violated
Section

704

of

the

Telecommunications

Act

of

1996,

47

U.S.C.

§332(c)(7) (the "TCA"), which requires that any decision by a local

government "to deny a
personal

request to place, construct, or modify

wireless service facilities:" (a) be "in

writing and

supported by substantial evidence contained in a written record;"
and

(b)

not "have

the

effect of prohibiting the

provision

of

personal wireless services." Varsity also alleges that the denial
violated state law.

The court referred the case to Magistrate Judge Jennifer Boal

for pretrial purposes, including a report and recommendation on
dispositive motions. On September 9, 2016, Magistrate Judge Boal
allowed certain abutters and immediate neighbors to the proposed

Facility to intervene. On September 7, 2016, Varsity moved for

partial summary judgment on Count 2 of the Amended Complaint, which

alleges that the Defendants' denial of Varsity's application is
not supported by substantial evidence, in violation of 47 U.S.C.
§

332(c)(7)(B)(iii).

Defendants,

joined

by

the

intervenors,

opposed.

On October 12, 2016, Varsity filed a motion to strike certain

evidence submitted by defendants with its opposition, arguing that
the evidence was not part of the administrative record of the

hearings before the Board and, therefore, could not be considered
in reviewing the Board's decision.

On July 26, 2017, defendants moved for the Magistrate to defer
consideration of the motion for summary judgment until discovery
was

closed

and

defendants filed

their

own

motions for

summary

judgment. They stated that "summary judgment must wait until
discovery discloses whether Varsity is a party in interest or
otherwise has 'statutory standing' to prosecute TCA claims." See
Docket No. 18-19.

On August 23, 2017, Magistrate Judge Boal issued a report

recommending that the motion to strike be allowed in part and
denied in part, and that the motion for summary judgment be denied.
In

determining

whether

substantial

evidence

supports

an

administrative agency's decision, the court may only consider "the
administrative record, absent a claim of procedural irregularity."

Nat'l Tower, LLC v. Plainville Zoning Ed. of Appeals, 297 F.Sd 14,
22 {1st Cir. 2002). The Magistrate Judge found that Docket Nos.

54-10,1 54-11,2 and 54-123 are relevant to Varsity's legal interest

in

the

building

site

and, therefore, to

whether

Varsity

has

standing in this court. Accordingly, she found that those documents

may be considered in deciding the jurisdictional question even if
they were not part of the administrative record. In addition.
Varsity did not move to strike first two paragraphs of the
affidavit

of

Samuel

Perkins,

Esq.

(Docket

No.

54-1)

or

the

documents to which they refer (Docket No. 54-3, Docket No. 54-4,
Docket No. 54-5, Docket No. 54-13, and Docket No. 54-14). However,

1 Varsity's lease agreement with Martin D. Sholomith for 346
Congress St., Unit 703, Boston, MA.

2 Assignment and Assumption Agreement between Varsity and Varsity
Wireless Investors, LLC.

3 Affidavit of Michael Cassidy.
3

the Magistrate Judge struck the rest of the exhibits submitted by
defendants, which were not part of the administrative record.

The Magistrate Judge recommended that the motion for summary

judgment be denied without prejudice. As an initial matter, she
found that "Varsity has standing to bring this action under the
TCA." R&R at 13. However, she also found that the parties did not

submit the complete record that the Board considered in its
decision to deny Varsity's application for a variance. In reviewing
the decision of an administrative agency, the court must consider
"the record as a whole." Universal Camera Corp. v. NLRB, 340 U.S.

474, 490 (1951);^ see also Nextel Commc'ns of the Mid-Atlantic v.
Town of Brookline, 520 F. Supp. 2d 238, 248 (D. Mass. 2007).
Because the record is incomplete, she concluded that the court is
"unable to determine whether the Board's decision is supported by

substantial evidence" and, therefore, recommended that the motion

for summary judgment be denied without prejudice.

The

time

period

for

objections

to

the

Report

and

Recommendation has expired. Varsity did not file any objections.

Therefore,

it is

not entitled to

review

of the

Report and

4 The Court in Universal Camera interpreted the Administrative
Procedure Act. Nevertheless, the TCA's "substantial evidence"
standard of review is the same standard, which is the standard

"traditionally applicable to a review of an administrative
agency's findings of fact." Second Generation Properties, L.P. v.
Town of Pelham, 313 F.3d 620, 627 {1st Cir. 2002).
4

Recoininendation. Borden v. Sec' y of Health & Human Servs.^ 836 F.

2d 4, 6 (1st Cir. 1987); Thomas

v. Arn, 474

U.S. 140, 149-50

(1985). In any event, the court has reviewed the Magistrate Judge's
reasoning and finds it to be thorough, thoughtful, and persuasive.
Therefore, the recommendation to deny the plaintiff's motion for

summary judgment without prejudice is being adopted.
Defendants

timely

objected

to

the

Magistrate

Judge's

recommendation that Varsity has standing. They request that the
court not adopt that recommendation because the issue of standing

"was not presented

by motion,

briefed

or

argued, and

was not

necessary to the Magistrate's recommended disposition." Objection
at

2.

The

court

is

denying

the

objection.

The

court

has

the

independent obligation to determine subject matter jurisdiction
even without a Rule 12(b)(1) motion to dismiss. See Am. Airlines,
Inc. V. Cardoza-Rodriquez, 133 F. 3d 111, 115 n. 1 (1st Cir. 1998).

In essence, the court must satisfy itself that it has subject-

matter jurisdiction before it can decide the merits of the case.
See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95

(1998).

As

explained

below,

considered

the

question

of

determined

that

Varsity

has

the

Magistrate

subject
standing

matter
in

the

Judge

correctly

jurisdiction
absence

of

and
any

challenge to the jurisdictional facts alleged in the complaint.
To establish standing, the plaintiff must first show that
there is a "case" or "controversy" within the meaning of Article

Ill, §1 of the United States Constitution. It must satisfy the

"set

of

requirements

constitutional

that

minimum

of

together

make

standing.'"

up

the

Lexmark

'irreducible

Int'l,

Inc.

v.

Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014).

Plaintiff must have suffered or be imminently threatened with a

concrete

and

particularized

"injury

in

fact"

that

is

fairly

traceable to the challenged actions of the defendants and likely

to be redressed by a favorable judicial decision. Id. at 1386
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
Courts

may,

however,

in

limited

circumstances,

decline

to

adjudicate claims on "prudential" grounds such as "the general

prohibition on a litigant's raising another person's legal rights"
and "the rule barring adjudication of generalized grievances more

appropriately addressed in the representative branches." Id.
Finally, most relevant here, the plaintiff's stake in the
controversy must "fall within the zone of interests protected by
the

law

invoked."

determine,

using

Id.

at

1388.

traditional

This

requires

the

court

statutory-interpretation

"to

tools,

whether a legislatively conferred cause of action encompasses a

particular plaintiff's claim." Id. at 1387. Varsity alleges claims
under the TCA, which authorizes "any person adversely affected by
a final action or failure to act by a State or local government or

any instrumentality thereof...[to] commence an action in any court
of competent jurisdiction." 47 U.S.C. §332(c)(7)(B)(v).

The plaintiff must support each element of standing "in the
same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation." Lujan, 504
U.S.

at

561.

When

the

facts

underlying

the

plaintiff's

jurisdictional allegations are unchallenged, the court is only
required

to

averments

satisfy

in

the

itself

that

the

"well-pleaded

plaintiff's...complaint,"

if

factual

true,

would

establish that the plaintiff has standing. In Valentin v. Hospital
Bella Vista, the First Circuit elaborated:

In performing this task, the court must credit the
plaintiff's well-pleaded factual allegations {usually
taken from the complaint, but sometimes augmented by an
explanatory affidavit or other repository of uncontested
facts), draw all reasonable inferences from them in her
favor, and dispose of the challenge accordingly...

254

F.

3d

358,

363

(1st

Cir.

2001).

In

contrast,

when

defendant:

controvert[s] the accuracy (rather than the sufficiency)
of the jurisdictional facts asserted by the plaintiff and
proffer[s] materials of evidentiary quality in support of
that position...the plaintiff's jurisdictional averments
are entitled to no presumptive weight; the court must
address the merits of the jurisdictional claim by

resolving the factual disputes between the parties. In
conducting this inquiry, the court enjoys broad authority
to order discovery, consider extrinsic evidence, and hold
evidentiary hearings in order to determine its own
jurisdiction.
Id.

the

As explained earlier, in their opposition to Varsity's motion
for summary judgment, defendants suggested that the TCA does not
authorize

Varsity

telecommunications

to

sue

provider

because

and

Varsity

because

it

is

has

not

no

a

property

interest in the building site, having assigned the lease to Varsity
Wireless Investors, LLC ("Varsity Investors"), another company.

Defendants did not request a ruling on the issue, but requested

that the Magistrate postpone ruling on the plaintiff's motion for
summary judgment until discovery has closed and defendants file
their own motions for summary judgment arguing, among other things,

that plaintiff lacks standing. Therefore, defendants do not now

challenge the accuracy of the jurisdictional facts asserted by the
plaintiff. Accordingly, at this stage, it is unnecessary to decide
whether the evidence establishes Varsity's standing. Rather, the

court is only required to satisfy itself that the "well-pleaded
factual allegations" in the complaint and the affidavits, if

proven, would be sufficient to establish standing. Valentin, 254
F. 3d at 363.

For the reasons explained in the Report and Recommendation,

the

Varsity's

establish

that

allegations
Varsity's

interests" protected

by

and

affidavits

interests

the

TCA

fall

and,

are

within

sufficient

to

the

of

therefore,

"zone

the

court's

authority to consider Varsity's motion for summary judgment on its

merits. See R&R at 12-13.^ In particular, plaintiff has submitted

an affidavit from Christopher J. Davis, manager of Varsity and

Varsity Investors, which holds the lease for the site, stating
that Varsity is authorized to act on behalf of Varsity Investors.
See

Docket

No.

challenged

56-1.

Varsity

conduct

within

was "adversely affected" by the

the

meaning

of

47

U.S.C.

§332(c)(7)(B)(v) when, acting on behalf of Varsity Investors, it

was denied an Application for a zoning variance to build the

proposed facility. This case, therefore, is comparable to Liberty
Towers, LLC v. Zoning Hearing Bd. of Twp. Lower Makefield, Bucks

Cnty.,

Pa.,

where

the

plaintiff

had

standing

to

appeal

the

township's denial of its application for a zoning variance to build
a new telecommunications facility under the TCA, even though the

plaintiff

was

provider

but

"not

a

merely

telecommunications
constructs

and

carrier
operates

or

service
wireless

telecommunication facilities." 748 F. Supp. 2d 437, 442 (E.D. Pa.
2010).

The court is

adopting the

Magistrate's

recommendation to

decide the issues raised in the plaintiff's motion for summary

5 The allegations also satisfy Article Ill's requirements:
Varsity's inability to build the Facility, from which it would
profit, is a concrete and particularized injury traceable to the
defendants' denial of the variance—which makes it illegal for

Varsity to build—and redressable through an injunction ordering
defendants to reconsider the decision.

judgement without prejudice. Accordingly, defendants may challenge
the

accuracy

of

plaintiff's

jurisdictional

allegations

in

connection with their anticipated motion(s) for summary judgment.
In view of the foregoing, it is hereby ORDERED that:

1.

The Magistrate Judge's Report and Recommendation (Docket

No. 86) is ADOPTED and INCORPORATED pursuant to 28 U.S.C. §636.
2.

in

American's Motion to Strike (Docket No. 57) is ALLOWED

part

and

DENIED

in

part

as

described

in

the

Report

and

Recommendation at 3-4.

3.

For the reasons stated in the Report and Recommendation,

Varsity's Motion for Summary Judgment (Docket Nos. 40) is DENIED
without prejudice.
4.

Judge

This case continues to be referred to the Magistrate

for

pretrial

proceedings,

including

a

Report

and

Recommendation on any dispositive motions.

UNITED STATES DISTRICT JlijDGE

10

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 1 of 18

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

VARSITY WIRELESS,LLC,
Plaintiff,
V.

Civil Action No. 15-11833-MLW

TOWN OF BOXFORD,M al,
Defendants.

REPORT AND RECOMMENDATION ON PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT

[Docket No.40]
August 23,2017
Boal, M.J.

In this action, plaintiff Varsity Wireless, LLC("Varsity") challenges the Town of
Boxford's denial of Varsity's application for a special permit and dimensional variances for the

construction and operation of a multi-user monopine wireless communication facility (the

"Facility"). Specifically, Varsity alleges that the denial is in violation of both Section 704 ofthe
Telecommunications Act of 1996,47 U.S.C. § 332(c)(7)(the "TCA"),and also state law.

Varsity has moved for partial summary judgment on Count 2 of the Amended Complaint, which
alleges that the Defendants' denial of Varsity's application is not supported by substantial
evidence in violation of47 U.S.C. § 332(c)(7)(B)(iii). Docket No. 40.^ For the following

reasons, this Court recommends that the District Judge assigned to this case deny Varsity's

• On June 27,2016,the District Court referred this case to the undersized for full pretrial
proceedings, including report and recommendation on dispositive motions. Docket No.33.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 2 of 18

motion without prejudice.
1.

PROCEDURAL BACKGROUND

Varsity filed its complaint against defendants Town ofBoxford (the "Town"),Boxford
Zoning Board of Appeals (the "Board"), and Board members Kathleen O'Sullivan Fortin,
Barbara Jessel, and David Peterson on May 12,2015. Docket No. 1. On June 29, 2015, Varsity
filed an amended complaint. Docket No. 13.

On September 9, 2016,this Court granted the motion to intervene filed by certain abutters
and immediate neighbors to the proposed Facility. Docket No.48. This Court also issued a
scheduling order. Docket No. 49.^ Thereafter, the parties have engaged in discovery.

On September 7, 2016, one day before the Scheduling Conference, Varsity filed the
instant motion for partial summary judgment. Docket No.40. Defendants filed an opposition on

September 28, 2016.^ Docket No. 53. On October 12, 2016, Varsity filed a reply. Docket No.
55. The Court held oral argument on July 19, 2017.

Because it appeared that the Court did not have all ofthe materials considered by the
Board in its decision, on July 20, 2017, this Court ordered the parties to confer and submit any

materials considered by the Board that were not already part ofthe summary judgment record.
See Docket No.74. The parties requested, and the Court granted, two extensions ofthe deadline
for submitting the complete record. See Docket Nos. 77-80.

On August 10, 2017,Defendants filed a number of documents in response to the Court's

order. However,it appeared that the parties still had not provided a copy ofthe complete record

^ On the parties' requests, the deadlines in the scheduling order have been extended several
times. Docket Nos. 61,65,68, 71.

^ At oral argument, the Intervenors' counsel explicitly joined the Defendants opposition. S^
also Docket No. 58 at 1, n. 1.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 3 of 18

before the Board, as the Court was unable to find three letters referenced in the Board's decision.

Accordingly, the Court ordered the parties to direct the Court to where it could find the letters in
the record or submit them forthwith. Docket No. 83. In response, counsel for Defendants filed a

letter stating that the Board had not been able to locate the referenced letters. Docket No. 84.
Later that day, counsel filed, without any explanation, what appeared to be two of the three
referenced letters. Docket No. 85.

XL

FACTUAL BACKGROUND
A.

Scone OfThe Record

Varsity has filed a motion to strike certain evidence submitted by the Defendants because
that evidence is outside ofthe administrative record ofthe hearings before the Board. Docket

No. 57. Varsity is correct that where, as here, the Court's analysis is directed to whether the
Board's written decision is supported by substantial evidence, the Court "is confined to the

administrative record, absent a claim of procedural irregularity. Nat 1 Tower,LLC v. Plainville
Zoning Bd. of Anneals. 297 F.Sd 14,22(1st Cir. 2002). However,the Defendants have also

raised the issue of whether Varsity has standing to bring this action. The Court finds that it is

appropriate to consider evidence regarding this issue, even ifsuch evidence was not part of the
administrative record. Accordingly, the Court recommends that the District Judge grant in part

and deny in part Varsity's motion to strike. Specifically, the Court finds that it is appropriate to
consider the following: Docket No. 54-10,Docket No. 54-11, Docket No. 54-12. All ofthese

documents pertain to Varsity's legal interest in the Facility and/or the Site. In addition. Varsity
does not move to strike the first two paragraphs of the Perkins Affidavit(Docket No. 54-1)or the

documents to which they refer(Docket No. 54-3, Docket No. 54-4, Docket No. 54-5, Docket No.

54-13, and Docket No. 54-14). This Court will not consider the remaining exhibits submitted by

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 4 of 18

the Defendants, which were not part ofthe administrative record and pertain to the Town's
arguments regarding effective prohibition.
B.

Facts'*

1.

Varsitv And Verizon Wireless

Varsity is engaged in the business of developing "personal wireless communications

facilities" for the deployment of personal wireless services.^ Bell Atlantic Mobile of
Massachusetts Corporation Ltd. d^/a Verizon Wireless("Verizon")is licensed by the Federal
Communications Commission("FCC")to provide personal wireless services in the

Commonwealth of Massachusetts, including in the Town.^

Varsity maintains that Verizon has a significant gap in coverage within Boxford in the
area of Main Street, Lawrence Road,and many ofthe adjacent neighborhood streets within west
central Boxford.'^ In order to close that gap. Varsity proposed to build the Facility at 12

In accordance with the Court's ruling on Varsity's motion to strike, the facts are derived from

the following materials to the extent those materials reflect evidence contained in the
administrative record before the Board or which refer to standing issues:(1)Plaintiffs Varsity

Wireless, LLC's Statement of Undisputed Facts in Support of Its Motion for Partial Summary

Judgment(Docket No.41)("PI. SOF");(2)the Affidavit of Francis D. Parisi in Support of
Plaintiff Varsity Wireless, LLC's Partial Motion for Summary Judgment and the exhibits
attached thereto (Docket No.46)("Parisi Aff.");(3)the Combined Statement of Undisputed
Facts with Defendants' Objections(Docket No. 54)("Def. Resp.");(4)the Combined Statement

of Undisputed Facts with Defendants' Objections and Varsity Wireless, LLC's Reply to
Defendants' Objections(Docket No. 56)("PI. Reply"); and(5)the Affidavit of Christopher J.
Davis in Support of Varsity Wireless LLC's Partial Motion for Summary Judgment(Docket No.
56-1)("Davis Aff").

^ Parisi Aff.^ 2.

6 PI. SOF ^ 2.
^Pl. SOF 113.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 5 of 18

Mortimer Road, Boxford, Massachusetts (the "Site").^ Martin D. Sholomith, the owner ofthe

Site, and Varsity entered into a lease agreement by which Sholomith granted Varsity the

exclusive right to build the Facility in the Property.^
In June 2014, Varsity assigned all of its rights to the Site to Varsity Wireless Investors,

LLC("Varsity Investors").'® Varsity is the Managing Member of Varsity Investors."
Christopher J. Davis is the manager of both Varsity and Varsity Investors.'^ As manager,Davis
has the authority to allow either entity to act on behalf of, or together with, the other and to ratify
actions taken by one entity on behalf ofthe other.^^ Varsity is and was authorized to act on

behalf of Varsity Investors in prosecuting the application for a special permit and variances with
the Board as well as maintaining this appeal.'"'

Varsity was not a party to Verizon's Tower Use Agreement.'^ Rather, the agreement was
between Verizon and Varsity Investors.'^ Defendants, in their submission dated September 28,

2016, maintain that Verizon has terminated its lease agreement with Varsity Investors, leaving

Varsity and Varsity Investors without any provider committed to using the proposed Facility for

» Ex. A to PI. SOF at Varsity 000011.

^ Ex. A to PI. SOF at Varsity 000011; sec also Docket No.54-10.
Def. Resp. H 59.

"Davis Aff. at 11 3.
Davis Aff. at H 4.

"Davis Aff. at H 4.
Davis Aff. at H 5.
Def. Resp. H 60.
Def. Resp. H 60.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 6 of 18

personal wireless communications.^^ At oral argument, Varsity maintained that it currently has a
lease agreement with Verizon. The Town does not dispute that there is currently such a lease

agreement but asserts there may have been a period oftime between the filing ofthe instant suit
and today that there was no agreement.

2.

The Application For A Special Permit And Variances

The Site is located in the Residential-Agricultural(R-A)zoning district. The proposed

Facility includes, without limitation, a 150-foot multi-carrier tower camouflaged to appear as a

pine tree ("monopine"),^^ a 47-foot by 69-foot compound surrounded by an 8-foot high wooden
stockade fence, VZW's panel antennas, GPS antenna, an ice bridge, cabling, an equipment

shelter, radio communications equipment within the equipment shelter, a generator for backup
power, and a pad mounted transformer.^®
On or about November 20, 2014, Varsity filed its application for a special permit and

dimensional variance (height), and on March 19, 2015, Varsity amended the application to

formally include Verizon as a co-applicant and to request a variance to permit exterior mounted
antennas (collectively, the "Application").^' Specifically, and as relevant for purposes ofthis
motion. Varsity sought the following:

(1) Varsity sought a special permit for the construction of a wireless telecommunication

Def. Resp. ^61.

'«P1. SOP 120.

The proposed faux pine branches extend above the tower structure by six feet to a total height
of 156 feet. PI. SOP 1122.

2® PL SOP 1121.

PL SOP H 19; Exs. A,D to PL SOP.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 7 of 18

facility, which requires compliance with the special permit provisions ofthe Zoning

Bylaw. Among other things, Section 196-30(C)ofthe Bylaws requires the Board to

consider negative impacts on the adjacent neighborhood.^^
(2) Varsity also sought a variance from Section 196-11(C)(1) ofthe Town's Bylaws,
which provides that "[t]he only wireless communication facilities allowed are
freestanding monopoles, with associated antenna and/or panels to be installed
internally within the monopole." The proposed Facility is a monopine
telecommunications tower, which is a monopole disguised as a pine tree. According

to Varsity, its coverage needs do not allow for the internal concealment ofthe
antennas at this height and location.^^

(3) In addition, Varsity sought a variance from Section 196-22(C)(5)ofthe Town's
Bylaws, which provides for facilities to be constructed "at the minimum height
necessary to accommodate the anticipated present and fixture use but in no event to
exceed 120 feet..." The proposed monopine is 150 feet above ground level. Varsity
maintains that this proposed height is the minimal height necessary to close a

significant gap in wireless coverage.^"^
The Board held three public hearings on Varsity's Application on January 22,2015,

February 26, 2015, and April 2, 2015.^^ At the public hearings, the Board heard testimony

22 Ex. G to PI. SOF at Varsity 000458-459.
2^ Ex. A to PI. SOF at Varsity 000013.

24 Ex. A to PI. SOF at Varsity 000014.

25 PI. SOFT!23.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 8 of 18

presented by Varsity and the public.^® With the Application and during the public hearings,
Varsity submitted evidence regarding;(1)the design of its proposed Facility;(2) Verizon's

existing coverage;(3)the extent of Verizon's gap within this identified area of Boxford,(4)the
lack offeasible alternatives;(5)the need for and associated benefits of the camouflaged

monopine design over the Bylaw's requirement for a tower utilizing internally mounted
antennas;(6)satisfaction ofthe legal standards for the issuance ofthe requested relief;(7)a

viewshed analysis; and(8)drive test data regarding coverage.^''
3.

The Board's Decision

a.

Denial Of Variance Requests

At the hearing on April 2,2015,the Board voted 3-0 to deny Varsity's application.^^ The
Board filed its written decision with the Boxford Town Clerk on April 15,2015 (the

"Decision").^^

With respect to Varsity's request for variances, the Board noted that Varsity chose not to

specifically address the requirements for proving a variance under Massachusetts law, which
allows the Board to grant variance relief upon a finding that;

. . . owing to circumstances relating to the soil conditions, shape, or

topography of such land or structures and especially affecting such land or
structures but not affecting generally the zoning district in which it is
located, a literal enforcement of the provisions of the ordinance or by-law
would involve substantial hardship, financial or otherwise, to the petitioner

or appellant, and that desirable relief may be granted without substantial
detriment to the public good and without nullifying or substantially
derogating from the intent or purpose ofsuch ordinance or by-law.
26PI. SOPH24.
27 PI. SOFT125.
28 PI. SOFTI26.
29 PI. SOFTI27.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 9 of 18

M.G.L. c. 40A,§ 10.^® Rather, Varsity argued that the variance was required under the

provisions ofthe TCA so long as it could provide evidence of a significant gap in coverage for
the area of Boxford.^' The Board was split as to whether or not the requirements ofthe TCA

could supplant the necessary finding of hardship under Massachusetts law.^^ Nevertheless, the
Board reviewed Varsity's application for a variance pursuant to the TCA.^^
The Board denied Varsity's request for a variance from the internal mount requirement of

Section 196-22(C)(1).^'* In so doing, the Board found that Varsity had not proven a significant

gap in coverage.^^ It noted that Varsity had provided "much testimony, supported by various
charts and visual aids, defining the gap in 4G wireless coverage in Boxford."^^ While the
various data charts presented by Varsity Wireless showed differing levels of coverage, the Board

was not persuaded that the differences in intensity of coverage yielded an actual deficiency in
functional use of the data network in Boxford.^' The Board also stated that it was not satisfied

that the Verizon Wireless 4G network is, in practice, suffering from widespread dysfunction and

In its decision, the Board summarized the provisions of M.G.L. c. 40A,§ 10. The Court finds
it important to cite the entirety ofthe statute.
Ex. G to PI. SOF at Varsity 000448,000451.
Ex. G to PI. SOF at Varsity 000448.

33 Ex. G to PI. SOF at Varsity 000448. At oral argument,the Town's counsel represented that

the TCA is specifically incorporated into some town's bylaws. The TCA is not so incorporated
in the Town's bylaws.

34 Ex. G to PI. SOF at Varsity 000447-449.
35 Ex. G to PI. SOF at Varsity 000448-449.
36 Ex. G to PI. SOF at Varsity 000448.
32 Ex. G to PI. SOF at Varsity 000448.

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 10 of 18

inability to successfully initiate and hold a call in Boxford.^^ In addition, the Board stated that:
To the contrary, the abutters and abutters Counsel provided extensive

testimony showing a systematic review of coverage levels on the Verizon
Wireless' network in the area surrounding the Property. The abutters also

provided multiple accounts of Verizon Wireless representatives and
publications describing the robust, well-established 4G network in Boxford.
Specifically, abutters provided a coverage map from the Verizon wireless
website, evidence of written exchanges between Verizon Wireless
representatives and Boxford residents, and documentation of a study of
signal strength performed by abutters using Verizon Wireless equipment all

indicating that there is not a significant gap in coverage in Boxford.^^
Varsity argued that the Site is the only available location upon which they can site a

wireless communications facility in order to address the perceived gap in coverage."*® The Board
found that Varsity did not make such a showing."** The Board noted that Varsity evaluated other

potential sites within a search with a radius of0.5 miles but Varsity did not provide evidence

justifying the very limited size or placement ofits search ring."*^ Abutters argued, and the Board

agreed, that Varsity's search for potential sites was cursory and insufficient to show that the Site
was the only option available to Varsity."*^
The Board also denied Varsity's request for a variance from the height limitation of

Section 196-22(C)(5)."*^ First, the Board found that the additional 30-foot height requiring the

Ex. G to PI. SOF at Varsity 000448-449.
Ex. G to PI. SOF at Varsity 000449.
"*® Ex. G to PI. SOF at Varsity 000449.
"** Ex. G to PI. SOF at Varsity 000449.
"*^ Ex. G to PI. SOF at Varsity 000449.
"*^ Ex. G to PI. SOF at Varsity 000449.

"*"* Ex. G to PI. SOF at Varsity 000450-452.
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Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 11 of 18

variance was particularly detrimental to the neighborhood because the 156-foot pole would be
more than twice the height of the existing tree cover and would be an obtrusive eyesore

negatively affecting the surrounding neighborhoods."^^ The Board found that Varsity's own
testimony and documents show that the variance was unnecessary in light ofthe potential harm
to abutters and neighboring properties: Verizon would see a significant benefit from a tower of

compliant height but would prefer to have a larger tower."*^
b.

Special Permit

The Board denied Varsity's request for a special permit. In so doing, the Board noted,
among other things that:

The Board weighed heavily the testimony firom both Varsity Wireless and
abutters regarding the potential negative impact of the proposed cellular
tower on the Premises and the surrounding neighborhood. Varsity Wireless

provided a Qualitative Market Investigation authored by Andrew G.LeMay
dated January 20, 2015, in which Mr. LeMay provided specific evidence
that a survey of multiple properties in several Massachusetts, Vermont and
New Hampshire towns were not negatively impacted in value despite their
proximity to a cellular facility. Mr.LeMay testified at the January 22,2015
hearing that the placement of a cellular tower had little impact on home
sales values for the areas included in this study. The abutters provided

testimony at that same hearing that the homes included in Mr. LeMay's
study were not impacted to the same degree that the homes in the
neighborhoods surrounding the 12 Mortimer Property would be by the

placement of the proposed cell tower. The abutters noted that the cell
towers were not visible from the homes in Mr. LeMay s report. The Board

also received, however, multiple letters from local Boxford-area real estate
brokers who emphatically stated that a cellular tower at the Property would

have a significant detrimental impact on the abutter home values. The
Board considered these letters from Boxford real estate professionals and

found them more persuasive than the testimony provided to support Varsity
Wireless' application based on the fact that the Qualitative Market
Investigation (or its supplement, dated February 26, 2015) was not

representative ofthe market conditions in Boxford or, more specifically,the
neighborhood surrounding the 12 Mortimer Road Property which has
Ex. G to PI. SOP at Varsity 000451.

Ex. G to PI. SOF at Varsity 000451-452.
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Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 12 of 18

unique attributes of rural beauty, rolling lawns, quiet nature trails, and
proximity (within 0.5 miles) to three significant historical properties from
which the cellular tower would be highly visible."*^

For these, and other reasons,"^^ the Board denied Varsity's request for a special permit.''^
III.

ANALYSIS

A.

Standing

As a preliminary matter, the Defendants have raised the issue of whether Varsity has

standing to bring this action. Docket No. 53 at 18-20. The Defendants state that Varsity is a

spec tower developer, not a wireless services provider, no longer holds a lease for the Site, and
never had an agreement with Verizon for use of the proposed Facility. Id at 18-19. Defendants
argue, therefore, that summary judgment is not appropriate because they should be able to
conduct discovery in order to determine whether Varsity is a real party in interest or otherwise
has statutory standing to prosecute TCA claims. Id at 19.

The TCA provides, in relevant part, that "[a]ny person adversely affected by any fmal
action or failure to act by a State or local government or any instrumentality thereof that is
inconsistent with this subparagraph may, within 30 days after such action or failure to act,

commence an action in any court of competentjurisdiction." 47 U.S.C. § 332(c)(7)(B)(v). "The
term 'person' includes an individual, partnership, association,joint-stock company,trust, or

corporation." 47 U.S.C. § 153(39). Varsity was one of the applicants before the Board and it
has been adversely affected by the Board's denial of the Application as it cannot build the

Ex. G to PI. SOF at Varsity 000459.

In its recitation ofthe factual background, the Court has focused on those aspects ofthe
Board's decision that Varsity challenges in its motion for summary judgment.
Ex. G to PI. SOF at Varsity 000460.
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Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 13 of 18

proposed Facility. See, e.g.. Liberty Towers. LLC v. Zoning Hearing Bd. of Tp. Lower
Makefield. Bucks Cntv.. Pa.. 748 F. Supp. 2d 437,442(E.D. Pa. 2010)(entity that constructs

and operates wireless communication facility, as opposed to carrier or service provider, has
standing). To the extent that Defendants argue that Varsity is not the real party in interest

because it is Varsity Investors who now holds a lease for the Site, Varsity has averred that it has

the authority to act on behalf of or with Varsity Investors. Davis Aff.

4-6.

Brehmer

V Planning Bd. ofTown of Wellfleet. 238 F.3d 117, 122-123 (1st Cir. 2001). Accordingly, the

Court finds that Varsity has standing to bring this action under the TCA.^°
B.

The TCA

"[T]he TCA reflects Congress's intent to expand wireless services and increase

competition among ... providers." Green Mountain Realty Corp. v. Leonard,688 F.3d 40,48

(1st Cir. 2012)(quoting Sw. Bell Mobile Svs.. Inc. v. Todd.244 F.3d 51,57(1st Cir. 2001)). It
"works like a scale that, inter alia, attempts to balance two objects of competing weight: on one

arm sits the need to accelerate the deployment oftelecommunications technology, while on the

other arm rests the desire to preserve state and local control over zoning matters." ATC Realty,
LLC V. Town of Kingston. New Hampshire. 303 F.3d 91,94(1st Cir. 2002)(citations omitted).

Accordingly,"[t]he TCA preserves state and local authority over the siting and construction of
wireless communication facilities, subject to five exceptions specified in the Act. Second

Generation Props.- L.P. v. Town ofPelham. 313 F.3d 620,627(1st Cir. 2002). Two ofthose

exceptions are relevant for purposes of the instant motion. First, the TCA requires that any
At oral argument, the Court explored with the parties whether there was a mootness issue

given that the Defendants had maintained in their September 28,2016 filing that Varsity no
longer had an agreement with Verizon. Docket No. 53 at 19. The parties agreed that Varsity
currently has an agreement with Verizon. Accordingly, the Court does not believe there is a
mootness issue.

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Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 14 of 18

decision by a local government "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(c)(7)(B)(iii). Second, the TCA provides that "[t]he regulation

ofthe placement, construction, and modification of personal wireless service facilities by any

State or local government or instrumentality thereof—... shall not prohibit or have the effect of

prohibiting the provision of personal wireless services," 47 U.S.C. § 332(c)(7)(B)(i)(II).^^
C.

The Substantial Evidence Test

Here, Varsity moves for summary judgment on Count 2 of the Amended Complaint only,

which alleges that the Defendants' denial of Varsity's application is not supported by substantial
evidence in violation of47 U.S.C. § 332(c)(7)(B)(iii). "The TCA's substantial evidence test is a

procedural safeguard which is centrally directed at whether the local zoning authority's decision
is consistent with the applicable zoning requirements." ATC Realtv. LLC,303 F.3d at 94

(citations omitted). The substantial evidence test is highly deferential to the local board. Second
Generation Props., 313 F.3d at 627(citing Penobscot Air Servs., Ltd. v. Fed. Aviation Admin.,

164 F.3d 713,718 (1st Cir. 1999)). The First Circuit has described the substantial evidence test
as follows:

The 'substantial evidence' standard of review is the same as that

traditionally applicable to a review of an administrative agency's findings
offact. Judicial review under this standard, even at the summary judgment

stage, is narrow . . . Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion...[T]he
possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency's finding from being supported by
substantial evidence.

Id.(quoting Sw. Bel Mobile Svs.. Inc., 244 F.3d at 58).

For ease of reference, the Court refers to this requirement as the "effective prohibition'
provision.
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Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 15 of 18

Although the substantial evidence standard is deferential, it is not a rubber stamp.
Sw. Bell Mobile Svs.. 244 F.3d at 59. A local board "is not jfree to prescribe what inferences

from the evidence it will accept and reject, but must draw all those inferences that the evidence

fairly demands." Green Mountain Realtv Corp.,688 F.3d at 50(internal quotations and citation
omitted).

In conducting substantial evidence review, this Court considers only evidence contained
in the administrative record, i.e., the evidence presented to the Board. Second Generation Props.,

L.P., 313 F.3d at 628(citing Nat*l Tower. LLC v. Plainville Zoning Bd. of Appeals. 297 F.3d 14,

20-21 (1st Cir. 2002)). "The substantial evidence question is ordinarily resolved on the record
before the court and no trial is required." Nextel Commc*ns ofthe Mid-Atlantic. Inc. v.

Manchester-bv-the-Sea. 115 F. Supp. 2d 65,66(D. Mass. 2000)(citing Town of Amherst v.
Omnipnint Comms.. 173 F.3d 9, 16 n. 7(1st Cir. 1999)).
D.

The Court Is Unable To Determine Whether The Board's Decision

l.s Supported Bv Substantial Evidence Without A Complete Record

Although Varsity styled its motion as a motion for summary judgment, and submitted a
statement of"undisputed facts,"

Docket No.41,the usual summary judgment standard of

review does not apply. Here, the question is whether the Board s decision denying Varsity s

Application was supported by substantial evidence. "The 'substantial evidence standard of
review is the same as that traditionally applicable to a review of an administrative agency's

findings offact." Second Generation Props.. 313 F.3d at 627(quoting Sw. Bell Mobile Sys., 244
F.3d at 58). For motions for summary judgment, under the APA,the Court's review "is limited
to the administrative record," Lovsren v. Locke,701 F.3d 5, 20(1st Cir. 2012), and the entire

case' on review is a question oflaw." Am.Bioscience. Inc. v. Thompson,269 F.3d 1077, 1083

(D.C. Cir. 2001)(citation omitted). Thus, a district court's role in considering summary
15

Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 16 of 18

judgment in a case such as this one is not to resolve contested fact questions which may exist in
the underlying administrative record, but rather to determine the legal question of whether the
Board's decision was supported by substantial evidence. Cf. Northwest Bvpass Group v. United
States Armv Corns of Eng'rs. 552 F. Supp. 2d 97, 107(D.N.H. 2008)(internal quotations

omitted);s^ also Commonwealth Den't ofPub. Welfare v. Sec, of Agriculture. 984 F.2d 514,
525 (1st Cir. 1993)(explaining that the relevant inquiry "is not whether the facts [can establish

some dispute], but rather, whether the administrative record, now closed, reflects a sufficient

dispute concerning the factual predicate on which [the agency] relied... to support a finding that
the agency acted arbitrarily or capriciously.").

As discussed earlier, the court's review is confined to the record before the zoning board.
Nevertheless it must have a complete record to conduct such review. The court "must consider
the record as a whole." Nextel Commc'ns ofthe Mid-Atlantic v. Town of Brookline, 520 F.

Supp. 2d 238,248(D. Mass. 2007). See also Industrial Tower and Wireless. LLC v. Haddad,
109 F. Supp. 3d 284,296(D. Mass. 2015)(the court"must review that written record as a

whole"). Indeed a reviewing court is charged with taking into account any contradictory
evidence in the record. Nextel Commc'ns of Mid-Atlantic v. Town of Sudbury,01-11754-DPW,

2003 WL 543383, at *9(D. Mass. Feb. 26,2003). This is particularly necessary because

substantial evidence questions are resolved on the record before the court and no trial is required.
Nextel Commc'ns. 115 F. Supp. 2d at 66. As Judge Lindsay stated: "In order to make[a
substantial evidence determination], I must review the entire record, taking into account evidence

that is both supportive of and contradictory to the Board's conclusions." Cellco P'ship v. Town
ofGrafton. 336 F. Supp. 2d 71,79(D. Mass. 2004).

Here, however, it does not appear that the parties have submitted the complete record that
16

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the Board considered in its decision denying Varsity's application. As referenced above,the
Board's decision refers to materials that are not part ofthe record before this Court. For

example, the parties have not submitted the February 15, 2015 letter from the Boxford Historical
District Commission. Despite the Court granting an opportunity to the parties to confer and
submit the entire record, the parties have not done so. Also, they have submitted documents in

response to the Court's request but have not made clear that these documents were those

considered by the Board.^Docket Nos. 84,85. Without the complete record, this Court is
unable to determine whether the Board's decision is supported by substantial evidence."

Accordingly, the Court recommends that the District Court deny Varsity's motion for summary
judgment without prejudice at this time.^^
IV.

RECOMMENDATION

For the foregoing reasons,this Court recommends that the District Judge assigned to this

case deny without prejudice Varsity's motion for partial summary judgment on Count 2 ofthe
Amended Complaint.
V.

REVIEW BY DISTRICT JUDGE

The parties are hereby advised that under the provisions ofFed. R. Civ. P. 72(b), any

party who objects to these proposed findings and recommendations must file specific written

objections thereto with the Clerk of this Court within 14 days ofthe party's receipt of this Report
and Recommendation. The written objections must specifically identify the portion ofthe

While it may not be necessary for the parties to submit a certified record in all cases, the
downside of not doing so is evident here.

"The Court recognizes that the TCA calls for the expeditious resolution ofcases.^47 U.S.C.
§ 332(c)(7)(B)(v)("The court shall hear and decide such action an expedited basis."). In light of
the parties' failure to provide a complete record, however,the Court is unable to issue a decision
on the merits at this time.
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Case l:15-cv-11833-MLW Document 86 Filed 08/23/17 Page 18 of 18

proposed findings, recommendations, or report to which objection is made,and the basis for such
objections.^Fed. R. Civ. P. 72. The parties are further advised that the United States Court
of Appeals for this Circuit has repeatedly indicated that failure to comply with Fed. R. Civ. P.
72(b) will preclude further appellate review of the District Court's order based on this Report
and Recommendation. See Phinnev v. Wentworth Douglas Hosp., 199 F.3d 1 (IstCir. 1999);
Sunview Condo. Ass'n v. Flexel Int'l. Ltd.. 116 F.3d 962(1st Cir. 1997); Pagano v. Frank,983
F.2d 343 (1st Cir.1993).
/s/ Jennifer C. Boal
JENNIFER C. BOAL

UNITED STATES MAGISTRATE JUDGE

18