Eco-Site, Inc. et al v. The Town of Wilmington et al
Filing
59
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Plaintiffs Eco-Site II, LLC and T-Mobile Northeast LLC's Motion for Summary Judgment (Docket Entry # 41 ). Plaintiffs' motion for summary judgment (Docket Ent ry # 41 ) is ALLOWED and defendants' request for summary judgment under Rule 56(f)(1) (Docket Entry # 46 ) is DENIED. The Board is ORDERED to issue within 30 days of this Order the requested dimensional variances and special permit necessary for the construction of the Proposed Facility. (Patton, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ECO-SITE, INC. and T-MOBILE
NORTHEAST LLC,
Plaintiffs,
v.
CIVIL ACTION NO.
17-10304-MBB
THE TOWN OF WILMINGTON,
THE TOWN OF WILMINGTON
ZONING BOARD OF APPEALS; and
EDWARD LOUD, DANIEL VEERMAN,
ANTHONY BARLETTA, THOMAS
SIRACUSA, and JACQUELYN
SANTINI, in their Capacities
as members of the Town of
Wilmington Zoning Board of
Appeals,
Defendants.
MEMORANDUM AND ORDER RE:
PLAINTIFFS ECO-SITE II, LLC AND T-MOBILE NORTHEAST LLC’S MOTION
FOR SUMMARY JUDGMENT (DOCKET ENTRY # 41)
March 25, 2019
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by plaintiffs Eco-Site II, LLC (“Eco-Site”) and T-Mobile
Northeast LLC (“T-Mobile”) (collectively “plaintiffs”).
Entry # 41).
(Docket
Defendants the Town of Wilmington (“the Town”),
the Town of Wilmington Zoning Board of Appeals (“the Board”),
Edward Loud (“Board Member Loud”), Daniel Veerman (“Board Member
Veerman”), Anthony Barletta (“Board Member Barletta”), Thomas
Siracusa (“Board Member Siracusa”), and Jacquelyn Santini
(“Board Member Santini”) (collectively “defendants”) oppose the
motion.
(Docket Entry # 49).
After conducting a hearing, this
court took the motion (Docket Entry # 41) under advisement.
PROCEDURAL HISTORY
Plaintiffs filed this action on February 23, 2017,
challenging the Board’s denial of their application for
dimensional variances and a special permit under the Town’s
Zoning Bylaw to construct a wireless telecommunications facility
at a designated property in the Town.
(Docket Entry # 1).
“Plaintiffs seek an order from this court directing the Board to
grant Plaintiffs’ requests for zoning relief in accordance with
their rights under the” federal Telecommunications Act of 1996
(“the TCA”), 47 U.S.C. § 332(c) (“section 332(c)”).
Entry # 1, p. 2).
(Docket
Specifically, they assert that the Board’s
denial violates section 332(c)(7)(B) of the TCA because it:
(1)
is not supported by substantial evidence; and (2) effectively
prohibits T-Mobile from providing personal wireless service.
(Docket Entry # 42, p. 6).
Defendants oppose the summary judgment motion and request
“disposition on their behalf in accordance with the” TCA,
Massachusetts General Laws chapter 40A (“the Massachusetts
Zoning Act”), and Federal Rule of Civil Procedure 56(f)(1)
(“Rule 56(f)(1)”) and 56(f)(3) (“Rule 56(f)(3)”).
2
(Docket Entry
# 46, p. 3).
judgment.
Defendants did not file a cross motion for summary
Defendants contend that the Board’s decision is
supported by substantial evidence in the written record and that
neither the Town’s Zoning Bylaw nor the Board’s decision
constitute an “‘effective prohibition’” under the TCA because it
does not prohibit cell towers within the Town.
46, p. 3).
(Docket Entry #
Principally, they argue that notwithstanding the
TCA, the Board’s denial is in accordance with the Town’s Zoning
Bylaw, as allowed by the Massachusetts Zoning Act.
(Docket
Entry # 46, pp. 4-5).
STANDARD OF REVIEW
Summary judgment is designed “‘to pierce the boilerplate of
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”
Davila v. Corporación De
Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.
2007) (internal citations omitted).
It is appropriate when the
summary judgment record shows “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).
“‘A dispute is genuine
if the evidence about the fact is such that a reasonable jury
could resolve the point in the favor of the non-moving party.’”
American Steel Erectors, Inc. v. Local Union No. 7, Int’l Ass’n
of Bridge, Structural, Ornamental & Reinforcing Iron Workers,
536 F.3d 68, 75 (1st Cir. 2008) (internal citation omitted).
3
“‘A fact is material if it carries with it the potential to
affect the outcome of the suit under the applicable law.’”
Id.
(internal citation omitted).
Facts are viewed in favor of the non-movant, i.e.,
defendants, and resolved in their favor.
See Jones v. City of
Boston, 845 F.3d 28, 32 (1st Cir. 2016) (“district court was
required to assume that any disputes of material fact-including
conflicting opinions offered by competent experts—could be
resolved by the jury in the Officers’ favor”).
Plaintiffs
submit a LR. 56.1 statement of undisputed facts.
Uncontroverted
statements of fact in the LR. 56.1 statement comprise part of
the summary judgment record.
LR. 56.1; Cochran v. Quest
Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (the plaintiff’s
failure to contest date in LR. 56.1 statement of material facts
caused date to be admitted on summary judgment); Stonkus v. City
of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st Cir. 2003).
FACTUAL BACKGROUND
“T-Mobile provides wireless telecommunications services
pursuant to licenses issued by the Federal Communications
Commission” (“FCC”).
45, p. 2).
(Docket Entry # 43, ¶ 2) (Docket Entry #
“To provide its services, T-Mobile must deploy a
network of interrelated ‘cell sites’ that must overlap in a grid
pattern, and must provide adequate signal strength and network
capacity.”
(Docket Entry # 43, ¶ 3) (Docket Entry # 45, p. 2).
4
“Eco-Site is in the business of developing telecommunication
towers” that allow wireless carriers, such as T-Mobile, to
create and maintain their network of cell sites.
(Docket Entry
# 43-2, p. 12).
Based on research and analysis by radio frequency (“RF”)
engineers, T-Mobile determined “that it has a significant gap in
its ability to provide service in the Town . . . in the vicinity
of Tacoma Drive . . . caused by a lack of reliable in-building
residential and commercial coverage.”1
14-15) (Docket Entry, # 45, p. 5).
(Docket Entry # 43, ¶¶
The coverage gap at a 2100
MHz frequency spans approximately 2.1 square miles.
(Docket
Entry # 43, ¶¶ 9, 11, 18) (Docket Entry # 45, pp. 4, 6) (Docket
Entry, # 43-1, ¶ 7, 18).
“The gap in coverage includes
residences, commercial buildings, and strip malls within a
boundary composed of I-93, Middlesex Avenue, Salem Street,
Lawrence Street, Shady Lane Drive, and Concord Street.”
(Docket
1
Plaintiffs rely primarily on the expert report of Richard
Conroy (“Conroy”), an RF engineer, submitted in support of the
motion for summary judgment (“the Conroy Report”). (Docket
Entry # 43-1). The Conroy Report purports to show, using
“calculated propagation maps” and “key system performance data”
(“KPI Data”), that T-Mobile has a “significant gap in reliable
wireless service” in the vicinity of Tacoma Drive. (Docket
Entry # 43-1) (capitalization omitted). Plaintiffs also
submitted to the Board an affidavit prepared by Ryan Monte de
Ramos (“Monte de Ramos”), an RF engineer for T-Mobile, that
states, among other things, that T-Mobile “provides insufficient
wireless communication service” to the Town in the vicinity of
Tacoma Drive (“the RF Affidavit”). (Docket Entry # 43-2, p.
46).
5
Entry # 43, ¶ 19) (Docket Entry, # 45, p. 6) (Docket Entry, #
43-1, ¶ 19).
“According to 2010 U.S. Census data, there are
approximately 2,320 to 5,494 residents in the in-building
coverage gap area.”
(Docket Entry # 43, ¶ 20) (Docket Entry #
45, p. 7) (Docket Entry, # 43-1, ¶ 19).
In light of the gap, T-Mobile’s RF engineers identified a
search area (“the search ring”) in the vicinity of Tacoma Drive
which needed a new wireless telecommunications facility to
remedy the service gap.
# 45, p. 7).
(Docket Entry # 43, ¶ 21) (Docket Entry
The search ring “consisted mostly of single-family
homes, an industrial area, single story retail stores with
accompanying parking lots, a school, fresh water ponds, and
conservation land.”
45, p. 8).
(Docket Entry # 43, ¶ 24) (Docket Entry #
The parties agree that “[a]n appropriate candidate
within the search ring must be able to work within T-Mobile’s
existing network to remedy the service gap, comply with local
zoning requirements, hav[e] a willing landlord, and be
buildable.”
(Docket Entry # 43, ¶ 26) (Docket Entry # 45, p.
8).
“Plaintiffs performed a detailed and thorough search of the
area within the search ring for available properties that would
be suitable for construction of a wireless telecommunications
facility” and “worked to find a site . . . that complied with
the Town’s local zoning bylaws.”
(Docket Entry # 43, ¶¶ 23, 27)
6
(Docket Entry # 45, pp. 7-9).
An unsigned affidavit purportedly
prepared by a “Site Acquisition Specialist” on behalf of
plaintiffs identifies four separate locations within the search
ring that were considered and ultimately rejected:
“St.
Dorothy’s Church,” “200 Jefferson Road,” Town-owned land (“Town
Hall”), and the “Anderson property.”2
(Docket Entry # 43-2, p.
41).
The Town Hall, although a permitted location under the
Town’s Zoning Bylaw, “was not an appropriate candidate because
the Town refused to enter into a lease that would permit TMobile to deploy a wireless telecommunications facility at the”
location.
9).
(Docket Entry # 43, ¶¶ 28-29) (Docket Entry # 45, p.
Although St. Dorothy’s “Church is [within] a residential
zone, the Town’s bylaws [] permit construction so long as the
2
The unsigned affidavit is part of an application Eco-Site
submitted to the Board for the special permit and variances at
issue. The “Site Acquisition Specialist” identifies himself as
Timothy Greene (“Greene”) at the beginning of the report, but
the signature line at the end of the report contains a different
name and is not signed. (Docket Entry # 43-2, pp. 39-42).
Defendants’ argument that the unsigned affidavit lacks a
foundation is well taken. (Docket Entry # 45, p. 8).
Defendants, however, admit that the application Eco-Site filed
on November 15, 2016 with the Town (“the Application”) contained
the affidavit. (Docket Entry # 43, ¶ 62) (Docket Entry # 45,
pp. 16-20) (Docket Entry # 43-2, pp. 39-42, 149-150).
Accordingly, this court only considers the affidavit to the
extent that it is in the administrative record as part of the
Application Eco-Site filed with the Board. This court does not
consider the unsigned affidavit when assessing the effective
prohibition argument.
7
facility [is] deployed in the church steeple.”
43, ¶ 31) (Docket Entry # 45, p. 10).
(Docket Entry #
However, the unsigned
affidavit states that “[t]he existing steeple is too low to
provide coverage.”3
(Docket Entry # 43-2, p. 41).
Finally, “T-
Mobile expressed interest in 200 Jefferson Road, a site that
sits in a general business zone, and was being used to store old
eighteen-wheelers at the time.”
(Docket Entry # 45, p. 10).
(Docket Entry # 43, ¶ 34)
The landlord of the property,
however, “refused to lease the property.”
(Docket Entry # 43, ¶
35) (Docket Entry # 45, p. 11).
After evaluating the properties within the search ring, TMobile determined that a property at 4 Waltham Street (“the
Proposed Site”) was an appropriate site because:
“[i]t is
located in a General Business Zone, it would provide coverage
relative to its location, it is buildable, and the site owner
agreed to lease the site.”4
(Docket Entry # 43, ¶ 40) (Docket
3
The Conroy Report also concludes that St. Dorothy’s Church “is
not a viable option.” (Docket Entry # 43-1, ¶ 33).
Specifically, the Conroy Report notes:
Assuming an antenna structure could be mounted in a fashion
acceptable to the [Board], it would be at a height of
approximately 50’ above ground level. This is too low and
within the tree line of the surrounding tree canopy to
provide substantive coverage to the gap area.
(Docket Entry # 43-1, ¶ 32).
4
As noted below, the Board rejected the location.
8
Entry # 45, p. 12).
The zoning location of the Proposed Site
does not prohibit a telecommunications facility.
# 43, ¶ 72) (Docket Entry # 45, p. 23).
(Docket Entry
On October 31, 2016,
plaintiffs entered into a lease with the owner of the Proposed
Site that permitted construction of a wireless
telecommunications facility.
(Docket Entry # 43, ¶ 42) (Docket
Entry # 45, p. 13).
As previously noted, “Eco-Site filed an Application for a
special permit for a wireless communication facility” with the
Town on November 15, 2016.
Entry # 45, p. 16).
(Docket Entry # 43, ¶ 54) (Docket
The Application “requested that the Town
grant Eco-Site a Special Permit, Site Plan Review, and specific
dimensional variances so that Eco-Site could construct a 120foot monopole style wireless tower at 4 Waltham Street” (“the
Proposed Facility”).
(Docket Entry # 43, ¶ 55) (Docket Entry #
45, p. 17).
“The Application included detailed site plans for the
[Proposed Facility]; photographic simulations; an alternative
site analysis; an inventory of existing towers; an RF Affidavit;
T-Mobile’s coverage maps; a Federal Airways & Airspace Report; a
fall zone letter [“the Fall Zone Letter”];5 evidence of T
5
The Fall Zone Letter is in the form of letter correspondence
addressed to Eco-Site and signed by “Brenden Alexander, P.E.,”
on behalf of Dewberry Engineers, Inc. (Docket Entry # 43-2, p.
60). As defendants point out, the Fall Zone Letter “is not in
9
Mobile’s FCC licenses; a list of abutters to the [Proposed
Site]; and a Storm Water Pollution Prevention Plan prepared by
professional engineers.”
Entry # 45, p. 18).
(Docket Entry # 43, ¶ 59) (Docket
The Fall Zone Letter states, among other
things:
[T]owers can be specifically designed for a reduced fall
zone so that if a catastrophic event results in an overload
of the structure, it will yield at a specific height
resulting in failure that allows the top section of the
tower to collapse while the lower section remains upright.
This type of design could reduce the fall zone by as much
as half if properly designed. Using this type of tower[,]
the tower fall zone could be designed to avoid the building
on the northern abutting parcel (355), located
approximately 120’+ feet from the tower location, as shown
in revision c zoning drawings by Infinigy dated 10/31/16.
(Docket Entry # 43-2, p. 60).
Overall, the Application purported to demonstrate that
plaintiffs “were ‘entitled to a Special Permit, Site Plan
Approval and Dimensional Variances[] because their proposal
satisfies the requirements set forth in Section 6.8.5, Section
10.5, Section, 10.6, and Section 6.5 of the [Town’s Zoning]
Bylaw and [the Massachusetts Zoning Act] and the [TCA][.]’”
(Docket Entry # 43, ¶ 57).
Specifically, the Application
states:
[B]ecause the Bylaw restricts wireless facilities to the
General Business (GB), General Industrial (GI) and Highway
the form of an affidavit and does not contain any attestation of
its veracity.” As such, it simply evidences that it was part of
the Application which Eco-Site filed for the Board to consider.
(Docket Entry # 45, pp. 19-20).
10
Industrial (HI) districts, and further requires that
wireless facilities be set back at least five hundred feet
(500’) from a residential building and setback from the
property line by a distance equal to the height of the
tower, the Town of Wilmington has effectively prohibited
wireless facilities from certain areas of the Town. It is
impossible for T-Mobile to provide reliable wireless
coverage to the Town of Wilmington under the present zoning
scheme without obtaining the requisite dimensional
variances and zoning relief.
(Docket Entry # 43-2, p. 8).
The Application also contains statements arguing that the
Town and its residents will “benefit from construction of the
Proposed Facility because it will provide increasingly reliable
wireless service with E911 enhanced emergency service, Global
Positioning System (‘GPS’) technology, and will generally
promote the safety and welfare” of “the Town [and] its
residents, businesses, and drivers by providing reliable stateof-the-art digital wireless voice and data services.”
(Docket
Entry # 45, p. 20) (Docket Entry # 43, ¶ 63).
A public hearing on the Application before the Board took
place on January 17, 2017 (“the hearing”).
p. 20) (Docket Entry # 43, ¶ 64).
(Docket Entry # 45,
Board members Loud, Veerman,
Barletta, Siracusa, and Santini (“the board members”) were
present at the hearing.
(Docket Entry # 48-1, p. 199).
Ricardo
Sousa, Esq. (“Sousa”), an attorney representing plaintiffs, gave
a presentation about the Proposed Site and the Proposed
Facility.
(Docket Entry # 45, p. 22) (Docket Entry # 43, ¶ 68)
11
(Docket Entry # 48-1, pp. 201-203).
Monte De Ramos and Greene
also spoke on behalf of plaintiffs.
(Docket Entry # 43, ¶ 69)
(Docket Entry # 45, p. 22).
“Monte De Ramos, an RF Engineer,
produced RF propagation maps demonstrating T-Mobile’s existing
network coverage and a propagation map depicting the anticipated
coverage from the proposed facility.”
(Docket Entry # 45, p. 22).
(Docket Entry # 43, ¶ 70)
The Board did not conduct an
independent analysis and “no contrary information concerning”
the coverage gap “was presented at the hearing.”
(Docket Entry
# 45, p. 22).
Board Member “Loud asked if Plaintiffs had evaluated the
Tewksbury Fire Department pole” (“the Tewksbury Fire Department
Tower”).
(Docket Entry # 45, p. 23) (Docket Entry # 43, ¶ 73)
(Docket Entry # 48-1, p. 201).
The hearing minutes note that
plaintiffs “had not” evaluated this location at the time of the
hearing.6
(Docket Entry # 48-1, p. 201).
In addition, “Sousa
6
The minutes read: “Edward Loud asked if they had checked into
the pole in Tewksbury located at the Fire Station not far from
the Wilmington line and it appeared that this might be the
location to fill in the gap. They had not.” (Docket Entry #
48-1, p. 201). After the hearing, “T-Mobile considered the
Tewksbury Fire Department Tower,” which is one mile from the
search ring, and concluded allegedly that the location would not
remedy the coverage gap. (Docket Entry # 45, p. 11) (Docket
Entry # 43, ¶ 37). Specifically, the Conroy Report states that
“[t]he Tewksbury Fire Station is located approximately 1 mile
from the search ring center” and therefore “is easily ruled
out.” (Docket Entry # 43-1, ¶ 34). In addition, the parties
agree that because “T-Mobile is already operating from [an]
existing site” across the street from the Tewksbury Fire
12
testified that Plaintiffs believed that the Town Hall was the
ideal location for a facility to remedy the significant gap, but
that the Town was not interested.”
(Docket Entry # 43, ¶ 74)
(Docket Entry # 45, p. 23) (Docket Entry # 48-1, p. 201).
A number of abutters at the hearing expressed objections to
the Application.
(Docket Entry # 43, ¶ 75) (Docket Entry # 45,
pp. 23-24) (Docket Entry # 48-1, p. 201).
“Abutter Peter
Reinhart stated that he did not see the need for a tower at the
[Proposed] Site.”
(Docket Entry # 43, ¶ 76) (Docket Entry # 45,
p. 24) (Docket Entry # 48-1, p. 201).
“Abutter Paul Logan
(“abutter Logan”) was concerned that there was not a tree line
to screen the proposed tower from his view.”
(Docket Entry #
43, ¶ 77) (Docket Entry # 45, p. 24) (Docket Entry # 48-1, p.
201).
“Abutter Paul Kneeland submitted a memorandum opposing
the Application because of the proximity to [the] railroad
tracks.”
(Docket Entry # 43, ¶ 78) (Docket Entry # 45, p. 25).
“Abutter Barbara Fitzgerald was opposed to the Application
because she was ‘concerned about excavating or building anything
more on [the] site.’”
(Docket Entry # 43, ¶ 79) (Docket Entry #
45, p. 25).
Department, any potential coverage provided by the Tewksbury
Fire Department Tower “would be redundant with T-Mobile’s
existing site and would not provide coverage for the significant
gap.” (Docket Entry # 43, ¶¶ 38, 39) (Docket Entry # 45, p.
12).
13
During the hearing, abutter Logan opposed the Application
and raised his concern about a proposal a few years ago “that
involved rezoning the [Proposed Site] to a mixed
residential/business zone.”
(Docket Entry # 43, ¶ 80) (Docket
Entry # 45, pp. 25-26) (Docket Entry # 48-1, p. 201).
“The Town
did not offer any expert testimony concerning the design or
safety of the proposed facility during the hearing.”
(Docket
Entry # 43, ¶ 81) (Docket Entry # 45, p. 26).
Various Board members at the hearing also voiced their
opposition to the Application.
(Docket Entry # 43, ¶ 82)
(Docket Entry # 45, p. 26) (Docket Entry # 48-1, p. 201).
Board
Member Loud stated that the Proposed Facility “was too close to
the railroad tracks, adjacent building and residential abutters”
as well as not safe.
(Docket Entry # 43, ¶ 83) (Docket Entry #
45, p. 26) (Docket Entry # 48-1, p. 201).
agreed with Board Member Loud.
Board Member Barletta
(Docket Entry # 43, ¶ 84)
(Docket Entry # 45, p. 27) (Docket Entry # 48-1, p. 201).
Board
Member “Siracusa wanted to know how the Proposed Facility would
benefit the Town.”
45, p. 27).
(Docket Entry # 43, ¶ 85) (Docket Entry #
Board Member “Santini stated that granting the
Application was not in the best interest of the Town or
residential abutters.”
(Docket Entry # 43, ¶ 86) (Docket Entry
# 45, p. 27).
14
Board Member “Santini then made a motion to deny the
requested Special Permit because the Application did not meet
the criteria of § 6.8 of the [Town’s Zoning] Bylaw [because] the
Proposed Facility was too close to the lot line, railroad
tracks, abutting property, and residential zone.”
(Docket Entry
# 43, ¶ 87) (Docket Entry # 45, p. 28) (Docket Entry # 48-1, p.
203).
The Board members “voted unanimously to deny the
Application because it did not meet the criteria of the [Town’s
Zoning] Bylaw.”
(Docket Entry # 43, ¶ 88) (Docket Entry # 45,
p. 28) (Docket Entry # 48-1, p. 203).
The Board denied the application in two separate, similar
decisions, one for Eco-Site’s request for dimensional variances
(“the Variance Denial”) and the other for Eco-Site’s request for
a special permit (“the Special Permit Denial”) (collectively
“the Denial”).
(Docket Entry # 43, ¶ 66) (Docket Entry # 45, p.
21) (Docket Entry # 48-1, pp. 207, 209, 213, 215).
The Variance
Denial notes that Eco-Site is seeking variances from sections
6.8.5.2 and 6.8.5.3 of the Town’s Zoning Bylaw and states that:
To acquire a variance from the Zoning Bylaw Wireless
Communications Facilities §6.8.5.2 – facilities shall be
located a minimum of 500 feet from an existing residential
dwelling or proposed dwelling . . . located within a
residential district (the [P]roposed [F]acility is less
than 500 feet from the residential zones on First Avenue
and North Street) and §6.8.5.3 – monopoles shall be set
back from the property lines of the lot on which it is
located by a distance equal to the overall vertical height
of the monopole and any attachments plus five feet (the
15
proposed structure is 17 feet from the side lot line and 90
feet from the rear lot line abutting the railroad tracks).
(Docket Entry # 48-1, p. 207).
After reciting the hearing
minutes, the Variance Denial then states:
“[Board member
Santini] made a motion to deny the variances for the reasons
stated, too close to lot line, railroad tracks, abutting
property, residential zone . . . [t]herefore, the Board, having
considered the matter, a motion was made to deny the petition.”
(Docket Entry # 48-1, p. 209).
The Variance Denial then lists
each of the Board members and his or her respective “No” votes.
(Docket Entry # 48-1, p. 209).
Next to each “No” reads:
“Reasons for denial; As stated above.”
(Docket Entry # 48-1, p.
209).
The Special Permit Denial contains a similar recitation of
the hearing minutes before stating:
Therefore, the Board, having considered the matter, [Board
Member] Jacquelyn Santini made a motion to deny the Special
Permit under §6.8, does not meet the criteria of the
[Town’s Zoning] Bylaw. Each member was present and voted
in the following way . . ..
(Docket Entry # 48-1, p. 215).
Like the Variance Denial, the
Special Permit Denial then lists each of the Board members and
his or her votes along with the reason for denial next to each
“No” vote, namely, “Does not meet criteria of Bylaw.”
Entry # 48-1, p. 215).
(Docket
The Board “admits that its Decision does
not make specific mention of the purported ‘service gap’ in
16
coverage or the proposed facility itself.”
(Docket Entry # 45,
p. 29).
“Plaintiffs filed their complaint on February 23, 2017, and
alleged that the Town’s denial of the Application was not based
on substantial evidence and effectively prohibits the provision
of personal wireless services.”
(Docket Entry # 43, ¶ 92)
(Docket Entry # 45, p. 29) (Docket Entry # 1).
Defendants filed
an answer “on March 21, 2017, and included as an affirmative
defense that Plaintiffs, ‘failed to exhaust alternative site
proposals for the installation of the proposed
telecommunications tower at issue.’”
(Docket Entry # 43, ¶ 93)
(Docket Entry # 45, p. 30) (Docket Entry # 15).
The answer also
includes an affirmative defense referencing “‘the location of an
already existing tower which appears to fulfill the applicant’s
alleged reception gap without the required variances needed to
locate on the [Proposed Site].’”
(Docket Entry # 43, ¶ 94)
(Docket Entry # 45, p. 30) (Docket Entry # 15).
“The Town,
however, state[s] in its Answers to Interrogatories that it is
unaware of any potential alternative sites that could remedy TMobile’s significant gap in service.”
(Docket Entry # 43, ¶ 95)
(Docket Entry # 45, p. 31) (Docket Entry # 43-4, p. 3).
“The Town admitted in its Answers to Interrogatories that
it did not conduct an independent investigation into T-Mobile’s
significant gap in service.”
(Docket Entry # 43, ¶ 96); (Docket
17
Entry # 45, p. 31) (Docket Entry # 43-4, pp. 5-6).
“The Town
has not identified any expert who will testify about T-Mobile’s
significant gap.”
(Docket Entry # 43, ¶ 97) (Docket Entry # 45,
p. 31).
DISCUSSION
As discussed above, plaintiffs contend that the Board’s
denial of the Application violates section 332(c)(7)(B) of the
TCA “because it is not supported by substantial evidence in the
record and because it effectively prohibits T-Mobile from
providing personal wireless service.”
6).
(Docket Entry # 42, p.
Accordingly, they ask that this court grant the summary
judgment motion “and order the Town to immediately issue all
necessary permits and approvals.”
(Docket Entry # 42, p. 7).
This court will first discuss the overlay of the state and local
zoning laws at issue as well as the TCA before proceeding to
plaintiffs’ “substantial evidence” argument.
This court will
then address plaintiffs’ “effective prohibition” argument and
the appropriate remedy, if any.
I.
State and Local Zoning Laws
As explained by the court in American Towers LLC v. Town of
Shrewsbury, Civil Action No. 17-10642-FDS, 2018 WL 3104105, at
*5 (D. Mass. June 22, 2018) (“American Towers”),7 “[t]he
7
The American Towers case, discussed in detail below, involved
similar parties, including T-Mobile, and similar facts
18
Massachusetts Zoning Act authorizes individual cities and towns
to pass zoning bylaws, and describes the limits of that
authority and the manner in which it may be exercised.”
Mass. Gen. Laws ch. 40A, §§ 1 et seq.
See
“The [Massachusetts]
Zoning Act allows towns to regulate the maximum and minimum
dimensions of structures and lots allowed in certain zoned
areas.”
American Towers, 2018 WL 3104105, at *5.
“It also
allows towns to regulate the uses to which land in a given area
may be put.”
Id.
“A town’s zoning ordinance or bylaw may
provide that a particular use is allowed in an area, allowed
only by special permit, or not allowed at all.”
Id.
“Where a use is allowed in a district by special permit, an
applicant can seek such a permit from the board of appeals or
the special permit granting authority.”
Id.
The Massachusetts
Zoning Act provides that “[s]pecial permits may be issued only
for uses which are in harmony with the general purpose and
intent of the ordinance or by-law, and shall be subject to
general or specific provisions set forth therein; and such
permits may also impose conditions, safeguards and limitations
on time or use.”
Mass. Gen. Laws ch. 40A, § 9.
Consistent with
the Massachusetts Zoning Act, section 10.5 of the Town’s Zoning
Bylaw generally provides that a special permit:
surrounding the denial of an application to construct a wireless
telecommunications communications facility.
19
may be authorized only where, after notice and a public
hearing, [the Board] or Planning Board specifically finds:
That the proposed use is in harmony with the general
purpose and intent of [the Town’s Zoning] Bylaw; and
That the use complies with all the requirements of
[the Town’s Zoning] Bylaw.
(Docket Entry # 48-1, p. 179).
Relevant here, section 6.8 of
the Town’s Zoning Bylaw provides special rules and requirements
for the granting of special permits for “Wireless Communications
Facilities.”
“Where a particular use is not allowed in a district, a
town’s permit-granting authority nevertheless has the power to
grant a variance.”
American Towers, 2018 WL 3104105, at *5;
Mass. Gen. Laws ch. 40A, § 10.
The Massachusetts Zoning Act
provides that the permit granting authority may grant:
with respect to particular land or structures a variance
from the terms of the applicable zoning ordinance or by-law
where such permit granting authority specifically finds
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 of such
ordinance or by-law.
Mass. Gen. Laws ch. 40A, § 10.
Consistent with the
Massachusetts Zoning Act, the Town’s Zoning Bylaw generally
allows variances.
Specifically, section 10.6 provides:
20
A variance from the specific requirements of the [Town’s
Zoning] Bylaw, except a variance authorizing a use or
activity not otherwise permitted in a particular zoning
district, may be authorized by the [Board] only where,
after notice and a public hearing, the [Board] specifically
finds:
That there are circumstances relating to the soil
conditions, shape or topography which especially
affect the land or structure in question, but which do
not effect[] generally the zoning district in which
the land or structure is located;
That due to those circumstances especially affecting
the land or structure, a literal enforcement of the
provisions of [the Town’s Zoning] Bylaw would involve
substantial hardship, financial or otherwise to the
petitioner or appellant;
That desirable relief may be granted without
nullifying or substantially derogating from the intent
or purpose of this Bylaw; and
That desirable relief may be granted without
substantial detriment to the public good.
(Docket Entry # 48-1, p. 181).
Notably, under the Massachusetts
Zoning Act and the Town’s Zoning Bylaw, a variance may be
granted where there are “circumstances relating to the soil
conditions, shape, or topography of such land” where “a literal
enforcement” of the Town’s Zoning Bylaw “would involve
substantial hardship, financial, or otherwise” to the applicant.
II.
The TCA
“Overlaid on top of state and local zoning laws are the
requirements of the [TCA].”
at *6.
American Towers, 2018 WL 3104105,
As explained by the First Circuit, the TCA represents
“‘an exercise in cooperative federalism . . . [that] attempts,
21
subject to five limitations, to preserve state and local
authority over the placement and construction of
[telecommunications] facilities.’”
Green Mountain Realty Corp.
v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (“Green Mountain
II”) (quoting Nat’l Tower, LLC v. Plainville Zoning Bd. of
Appeals, 297 F.3d 14, 19 (1st Cir. 2002)).
It provides, among
other things, as follows:
(i) The regulation of the placement, construction, and
modification of personal wireless service facilities by any
State or local government or instrumentality thereof-(I) shall not unreasonably discriminate among
providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of
prohibiting the provision of personal wireless
services.
(iii) 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.
47 U.S.C. § 332(c)(7)(B)(i),(iii).
These federal provisions
preempt state and local laws to the extent they conflict.
Brehmer v. Planning Bd. of Wellfleet, 238 F.3d 117, 121-22 (1st
Cir. 2001).
The TCA also provides that other than the enumerated
limitations, “nothing in this chapter shall limit or affect the
authority of a State or local government or instrumentality
thereof over decisions regarding the placement, construction,
and modification of personal wireless service facilities.”
22
47
U.S.C. § 332(c)(7)(A).
Overall, the TCA “attempts to reconcile
the goal of preserving local authority over land use with the
need ‘to facilitate nationally the growth of wireless telephone
service.’”
Second Generation Properties, L.P. v. Town of
Pelham, 313 F.3d 620, 631 (1st Cir. 2002) (quoting Town of
Amherst v. Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 13 (1st
Cir. 1999)).
III.
A.
Substantial Evidence
Substantial Evidence Standard
The TCA sets out two requirements when a local zoning
authority denies an application to construct a wireless
facility:
the authority’s decision must be (1) “in writing” and
(2) “supported by substantial evidence contained in a written
record.”
47 U.S.C. § 332(c)(7)(B)(iii).
In this case, there is
no dispute that the Board’s decision satisfied the “in writing”
requirement.
The issue, rather, is whether the Board’s decision
was “supported by substantial evidence contained in a written
record.”
47 U.S.C. § 332(c)(7)(B)(iii).
In order to comply with the TCA, the reasons for denying an
application “need not be elaborate or even sophisticated, but
rather . . . simply clear enough to enable judicial review.”
T-
Mobile South, LLC v. City of Roswell, 135 S. Ct. 808, 815 (2015)
(“Roswell”).
Courts recognize that “local authorities are
frequently lay member boards without many resources” and
23
consequently “do not require formal findings of fact or
conclusions of law.”
Nat’l Tower, 297 F.3d at 20-21.
“Nor need
a board’s written decision state every fact in the record that
supports its decision.”
Id. at 21.
“‘Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion,’” taking into account
“‘contradictory evidence in the record.’”
Green Mountain Realty
Corp. v. Leonard, 688 F.3d 40, 50 (1st Cir. 2012) (“Green
Mountain I”) (internal citations omitted).
However, “a board must provide the reasons for its
decision; merely reciting the bylaw is insufficient to comply
with the substantial-evidence requirement.”
American Towers,
2018 WL 3104105 at *7; see, e.g., T-Mobile Northeast LLC v. City
of Lawrence, 755 F. Supp. 2d 286, 291 (D. Mass. 2010) (“mere
recitation of provisions of a local zoning ordinance does not
constitute ‘substantial evidence’ under the Act”); Sprint
Spectrum L.P. v. Town of Swansea, 574 F. Supp. 2d 227, 236 (D.
Mass. 2008) (holding that the zoning board could not “ignore the
requirements of the TCA by parroting Swansea’s Zoning By-Law”);
Nextel Communications of Mid-Atlantic, Inc. v. Town of Randolph,
193 F. Supp. 2d 311, 318 (D. Mass. 2002) (criticizing zoning
board’s decision as “pabulum” and “conclusory statements”)
(“Nextel Communications”); see also MCF Communications, LLC v.
Town of Portsmouth, 2012 WL 6706935, at *2 (“[c]onclusory
24
statements” insufficient to meet TCA’s “written denial
requirement”).
In determining whether a decision is supported by
substantial evidence, the reviewing court must consider the
written record as a whole and is limited to the administrative
record before the board.8
Green Mountain I, 688 F.3d at 50-51;
Nat’l Tower, 297 F.3d at 22.
The written record may include
more than the writing that conveys the denial if the “reasons
are sufficiently clear and are provided or made accessible to
the applicant essentially contemporaneously with the written
denial letter or notice.”
B.
Roswell, 135 S. Ct. at 811-12
Whether Town Violated Substantial Evidence Standard
Plaintiffs do not contest that the Denial is in writing;
rather, they challenge the reasons articulated in the Denial as
unsupported by substantial evidence in violation of section
332(c)(7)(B)(iii) of the TCA.
(Docket Entry # 42, pp. 17-29).
In their estimation, the Denial contains “at best” three reasons
for denying the Application:
“(1) safety concerns due to the
proximity of the Proposed Facility to other structures; (2) a
lack of evidence as to how the Proposed Facility would benefit
the Town; and (3) the [Board’s] opinion that construction of the
8
Because the Conroy Report is not part of the administrative
record, it is not considered with respect to the substantial
evidence assessment.
25
Proposed Facility was not in the best interest of the Town or
the residential abutters.’”9
(Docket Entry # 42, pp. 17-18).
Plaintiffs argue that “these reasons are either not supported by
substantial evidence in the written record or are not valid
reasons for denying the Application under the Town’s Zoning
Bylaw” and therefore cannot be grounds for denial that
constitutes substantial evidence.
(Docket Entry # 42, p. 18).
Plaintiffs contend that “[u]nder the substantial evidence
standard, localities may not deny applications for reasons not
set forth in their own zoning bylaw.”
(Docket Entry # 42, p.
17).
First, plaintiffs maintain that the concerns raised by the
Board regarding safety are directly contradicted by the expert
evidence contained in the Fall Zone Letter.
Specifically, they
reason that “[t]he Fall Zone Letter describe[s] how the Proposed
Facility could be designed so that it present[s] no danger to
the surrounding facilities and structures,” and there is no
contradictory expert or technical evidence.
pp. 18-19).
(Docket Entry # 42,
Thus, plaintiffs submit that by ignoring “‘the only
available expert [report] on the issue,’” “[t]he Board violated
9
The Special Permit Denial and the Variance Denial each state
while summarizing the hearing minutes that “[Board Member]
Santini agreed that this was not in the best interest of the
Town or the residential abutters.” (Docket Entry # 48-1, p.
213) (Docket Entry # 48-1, p. 209).
26
the substantial evidence requirement.”10
(Docket Entry # 42, p.
19).
Second, plaintiffs argue that the remaining reasons
contained in the Denial, i.e., that plaintiffs “failed to show
how the Proposed Facility would benefit the Town and that
granting the Application was not in the Town’s best interest,
are not supported by substantial evidence because they are not
valid reasons for denying the Application under § 6.8 of the
Town’s Zoning Bylaw.”
(Docket Entry # 42, pp. 19-20).
Specifically, they contend that “[t]he general purpose of
section 6.8,” as expressed in section 6.8.1,11 does not require
“applicant[s] to present evidence illustrating how the Town
would benefit from the [Proposed Facility],” nor does any other
section of the Town’s Zoning Bylaw.
(Docket Entry # 42, p. 20).
Plaintiffs note that although “section 6.8.7.312 allows the Board
10
In addition, plaintiffs assert that “[a] local government
cannot substitute the members’ lay opinion to contradict expert
evidence on technical issues.” (Docket Entry # 42, p. 19).
11
Section 6.8.1 of the Town’s Zoning Bylaw provides:
The purpose of these regulations is to minimize adverse
impacts of wireless communications facilities, satellite
dishes and antennas on adjacent properties and residential
neighborhoods; minimize the overall number and height of
such facilities to only what is essential; and promote
shared use of existing facilities to minimize the need for
new facilities.
(Docket Entry # 48-1, p. 119).
12
Section 6.8.7.3 of the Town’s Zoning Bylaw states:
27
to take into consideration ‘the proximity of the facility to
residential dwellings and its impact on those residences,’ but
the Town’s Denial does not assert that the Proposed Facility
would have an adverse impact on nearby residences,” and
regardless, plaintiffs “submitted evidence that demonstrated
that there were not legitimate safety concerns.”
# 42, p. 20).
(Docket Entry
Plaintiffs further argue that “[t]he Board
members’ opinions that the Proposed Facility was not in the
Town’s best interest and that Eco-Site had failed to show how it
would benefit the Town are separate and distinct from any
argument about the proximity of the Proposed Facility to
residential dwellings.”
(Docket Entry # 42, p. 20).
Thus,
plaintiffs assert that the Denial is not supported by
substantial evidence because “[i]t is well-established that
local government denials are not supported by substantial
evidence when they are based on factors that are not applicable
under the local code.”
(Docket Entry # 42, p. 20).
When considering an application for a wireless
communications facility, the [Board] shall take into
consideration the proximity of the facility to residential
dwellings and its impact on these residences. New
facilities shall only be considered after a finding that
existing (or previously approved) wireless communication
facilities suitable for and available to the applicant on
commercially reasonable terms cannot accommodate the
proposed uses(s), taking into consideration radio frequency
engineering issues and technological constraints.
(Docket Entry # 48-1, p. 127).
28
Third, plaintiffs argue that failure to give consideration
to the TCA “alone is sufficient for the Court to enter summary
judgment in Plaintiffs’ favor,” as “failure to consider the
possibility that enforcement of zoning bylaws may violate the
[TCA] automatically renders a decision not based on substantial
evidence and in violation of the [TCA].”
21).
(Docket Entry # 42, p.
They maintain that “a significant gap in wireless coverage
is considered a unique circumstance that would cause substantial
hardship to an applicant if the variance is not granted,” and,
moreover, “[t]he law is clear that the [TCA] ‘preempts state and
local laws when the application of those laws effectively
violates one of the [TCA’s] enumerated limitations on state
zoning authority.’”
(Docket Entry # 42, p. 21).
As an initial matter and contrary to plaintiffs’ assertion,
it is not a foregone conclusion that a zoning board’s failure to
“give consideration” to the TCA “automatically renders a
decision not based on substantial evidence and in violation of
the [TCA].”
(Docket Entry # 42, p. 21).
Notably, while
plaintiffs rely on Nextel Communications, 231 F. Supp. 2d at
404, that decision has been questioned by at least one court in
this district and is not supported by other First Circuit cases.
In Nextel Communications, the plaintiff sought a
dimensional variance from the Town of Wayland in order to build
a wireless telecommunications facility.
29
Nextel Communications,
231 F. Supp. 2d at 398.
The zoning board denied the variance,
explaining that “‘[t]he hardship alleged by the applicant is
related to its business plan of providing a certain amount of
wireless coverage to the Town, rather than to the unique shape
or topography of the Locus.’”
Id. at 407.
The court, however,
criticized the zoning board for failing to explain how the
plaintiff would be able to provide sufficient coverage without
the variance and ultimately held that the zoning board failed to
give “due consideration” to the TCA such that the denial was not
supported by substantial evidence:
Under the Telecommunications Act, the Board cannot deny the
variance if in doing so it would have the effect of
prohibiting wireless services. 47 U.S.C. §
332(c)(7)(B)(i)(II). In other words, the need for closing
a significant gap in coverage, in order to avoid an
effective prohibition of wireless services, constitutes
another unique circumstance when a zoning variance is
required . . .. The Board’s decision, particularly the
second step in its analysis, fails to give due
consideration to the requirements of the [TCA]. The
Board’s reasoning involved incorrect legal conclusions,
which led to the incorrect factual conclusion that no
unique circumstances existed that would require a zoning
variance. The decision, therefore, is not supported by
substantial evidence and in violation of [section]
332(c)(7)(B)(iii) [of the TCA].
Id. at 406-407.
In American Towers, however, the court held that the TCA
does not require a zoning board, when denying a particular
application, to determine expressly whether that denial is an
effective prohibition of service.
30
American Towers, 2018 WL
3104105, at *8.13
There, the plaintiffs, American Towers LLC and
T-Mobile, proposed to build a wireless telecommunications tower
at a location in a zoning district that prohibited such
construction.
Id. at *1.
The town’s zoning board of appeals
denied the plaintiffs’ application for a variance from the
town’s zoning bylaw, and the plaintiffs filed a complaint
asserting that the zoning board of appeals’ denial effectively
prohibited wireless service and was not supported by substantial
evidence contained in a written record.14
Id.
In considering
whether the zoning board was required to give consideration to
the TCA, the court determined that the zoning board of appeals
“need only evaluate the application for a zoning variance under
the applicable standard as provided by state and local law.”
Id. at *8.
Principally, the court noted that while “the
statutory text of the TCA” clearly dictates certain
requirements, including that a denial be supported by
substantial evidence and not effectively prohibit wireless
service, it does not likewise indicate that any one of those
requirements “is connected to or dependent on any of the
others.”
Id. at *9.
Instead, the court stated that the
13
In reaching that conclusion, the court explicitly stated that
it disagreed with the Wayland court. American Towers, 2018 WL
3104105 at *11.
14
The plaintiffs moved for summary judgment on the “substantial
evidence” issue only, so the court did not address their
“effective prohibition” claim. Id.
31
requirement that a town’s decision be supported by substantial
evidence is merely a requirement intended to permit effective
judicial review, not a “standard for granting a variance.”
at *9.
Id.
The court then noted:
incorporating a duty to consider an effective-prohibition
claim into the substantial-evidence requirement of the TCA
seems to clash with the overall regulatory scheme. The two
different types of claims (that is, effective prohibition
and failure to provide substantial evidence) are judged
according to different standards, and on a different
record.
Id. at *11.
Examining the statutory text of the TCA, this court agrees
with the American Towers court that the substantial evidence
requirement and ban on effective prohibition are two separate
requirements.
Section 332(c)(7)(B) clearly proscribes five
separate limitations on state and local zoning authorities in
subparagraphs (i) through (v), including that a decision be
supported by substantial evidence and not result in the
“‘effective prohibition of wireless service,’” and there is
nothing within the statute indicating that these requirements
are meant to be read together or as dependent on one another.
American Towers, 2018 WL 3104105, at *8.
Moreover, and as the
American Towers court noted, the First Circuit has indicated
that a zoning board need not consider whether its decision
amounts to an “‘effective prohibition’”; rather, the appropriate
standard for evaluating whether substantial evidence supports a
32
zoning board’s decision is the relevant state and local
standards for granting a variance or special permit.
Id. at *9;
see Second Generation Props., 313 F.3d at 630 (“TCA does not
itself expressly authorize local zoning boards to consider
whether individual decisions amount to an ‘effective
prohibition’”); ATC Realty, LLC v. Town of Kingston, 303 F.3d
91, 94 (1st Cir. 2002) (“‘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’”) (internal citations omitted);
Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51, 58
(1st Cir. 2001) (“‘Substantial evidence’ review under the TCA
does not create a substantive federal limitation upon local land
use regulatory power, but is instead ‘centrally directed to
those rulings that the Board is expected to make under state law
and local ordinance in deciding on variances, special
exceptions, and the like.’”) (internal citation omitted),
abrogated on other grounds by T-Mobile S., LLC v. City of
Roswell, 135 S.Ct. 808 (2015) ; Amherst, 173 F.3d at 14 (noting
that substantial evidence requirement “surely refers to the need
for substantial evidence under the criteria laid down by the
zoning law itself”); see also Tower and Wireless, LLC v. Haddad,
109 F. Supp. 3d 284, 299 (D. Mass. 2015) (overturning zoning
board’s decision because it was based only on effective
33
prohibition prong of TCA and failed to apply standard in local
zoning bylaw).
Here, the Board’s Denial consisted of two separate written
decisions:
the Variance Denial and the Special Permit Denial.
Although plaintiffs acknowledge that the Denial consisted of two
separate decisions, their briefs do not likewise evaluate each
decision on its own to determine whether either was supported by
substantial evidence.
Thus, in claiming that the Denial was not
supported by substantial evidence, they appear to conflate the
special permit and variance standards.
The Board appears to
have done the same, which, if this court were to follow American
Towers, is grounds on its own to find that the Variance Denial
was not supported by substantial evidence.
See American Towers,
2018 WL 3104105, at *12; cf. Haddad, 109 F. Supp. 3d at 298
(local zoning board’s denial of application for a special permit
to build a wireless telecommunications tower was not supported
by substantial evidence where zoning board applied wrong legal
standard).
In American Towers, the plaintiffs argued that the
zoning board’s written “decision merely parroted” the town’s
zoning bylaw “without offering any supporting facts or
analysis.”
American Towers, 2018 WL 3104105, at *12.
The
court, inclined to agree, noted that the zoning board’s written
decision was “worse than a mere parrot of the standard.”
The decision, which purported to address the plaintiffs’
34
Id.
application for variances, parroted “both the variance standard,
without any further explanation, and the special permit
standard,” which was not relevant.
Id.
Here, plaintiffs requested both a special permit and
dimensional variances, and the Board addressed each in the two
separate decisions.
However, like the board in American Towers,
the Board appears to conflate the special permit and variance
standards under the Massachusetts Zoning Act and the Town’s
Zoning Bylaw, or else ignores the state and local variance
standards altogether.
As discussed previously, section 10.5 of
the Town’s Zoning Bylaw provides that a special permit for a
particular use may be authorized only where the Board
specifically finds that the proposed use is in harmony with the
general purpose and intent of the Town’s Zoning Bylaw and
complies with all the requirements of the Town’s Zoning Bylaw.
Section 8.6 provides the specific rules and requirements for
granting a special permit for a wireless communications
facility.
On the other hand, section 10.6 outlines the standard
for granting a variance from the specific requirements of the
Town’s Zoning Bylaw, including the requirements for granting a
special permit for a wireless communication facility like the
Proposed Facility.
The Variance Denial, however, merely
acknowledges that the plaintiffs are requesting variances from
sections 6.8.5.2 and 6.8.5.3 before providing a rote recitation
35
of the hearing minutes where the board members and residential
abutters expressed their various concerns regarding the Proposed
Facility.
The Variance Denial then identifies the specific
reasons as follows:
“too close to the lot line, railroad
tracks, abutting property, residential zone.”
48-1, p. 209).
(Docket Entry #
However, similar to the zoning board in American
Towers, the Board, in identifying these “reasons,” merely
recites the various requirements set forth in section 6.8 for
granting a special permit for wireless communications
facilities.
Unlike the zoning board in American Towers, which
at least parroted the applicable variance standard under the
town’s zoning bylaw, the Board fails to even parrot the
applicable zoning standard.
Beyond the rote acknowledgement
that plaintiffs need variances from the special permit
requirements in section 6.8, the Board’s decision does not
mention section 10.6 and the applicable variance standard under
the Town’s Zoning Bylaw or, namely, any topographical feature or
hardship.
For the above reasons, this court is inclined to find that
the Variance Denial is not supported by substantial evidence.
However, plaintiffs do not make the specific argument that the
Board conflated the variance and special permit standards or
else ignored the applicable variance standard, and this court
declines to raise it sua sponte and overturn the Board’s
36
decision on this issue at this juncture.
Rather, plaintiffs
argue more broadly that the “sole reason the Board voted against
the Application was because they felt it was unsafe due to its
proximity to other structures on abutting property.”
(Docket
Entry # 42, p. 13).
Notwithstanding plaintiffs’ theory, this court interprets
the Board’s reasons for denying the Application, as expressed in
both the Variance Denial and Special Permit Denial, as being
directly related to the Proposed Facility failing to meet the
requirements in section 6.8 for granting a special permit for a
wireless communications facility.
As defendants point out,
section 6.8.7.1 of the Town’s Zoning Bylaw provides that
“‘[a]pplications for Special Permits shall be approved or
approved with conditions if the petitioner can fulfill the
requirements of these regulations to the satisfaction of the
Board of Appeals.’”
48-1, p. 127).
(Docket Entry # 49, p. 10) (Docket Entry #
Thus, the Board may deny an application for a
special permit to construct a wireless communications facility
if the proposed facility fails to meet any of the requirements
in section 6.8, including sections 6.8.5.2 and 6.8.5.3.
Section
6.8.5.3, however, also provides in relevant part that a
monopole:
shall be set back from the property lines of the lot on
which it is located by a distance equal to the overall
vertical height of the monopole and any attachments plus
37
five feet, unless the applicant demonstrates that due to
topography and/or other characteristics of the site lesser
setbacks shall not pose any public safety danger to any
adjacent properties.
(Docket Entry # 48-1, p. 123) (emphasis added).
Plaintiffs argue that the Board ignored uncontroverted
evidence that the Proposed Facility was safe.
As a general
matter, it is true that a zoning board may not ignore
uncontroverted expert testimony.
See City of Lawrence, 755 F.
Supp. 2d at 292 (finding that the zoning board “improperly
ignored the only available expert testimony on the issue” of
whether a coverage gap existed.
The appropriate standard for
evaluating whether substantial evidence supports a zoning
board’s decision, as discussed previously, is the relevant state
and local standard for granting a variance or special permit.
Here, the language in section 6.8.5.3 of the Town’s Zoning
Bylaw, as allowed by the Massachusetts Zoning Act, indicates
that to avoid the specified setback requirement, an applicant
must demonstrate that “due to topography and/or other
characteristics of the site lesser setbacks shall not pose any
public safety danger to any adjacent properties.”
# 48-1, p. 123) (emphasis added).
(Docket Entry
Plaintiffs rely on the Fall
Zone Letter to show that the design of the Proposed Facility
will not pose any public safety danger to any adjacent
properties; however, section 6.8.5.3 speaks to topographic and
38
other characteristics of the site and makes no mention of the
characteristics or features of the actual wireless facility.
Thus, the fact that the Board ignored uncontroverted evidence
demonstrating that the Proposed Facility was safe does not
amount to the Special Permit Denial being unsupported by
substantial evidence.
Although this court is hesitant to stretch plaintiffs’
argument further to directly challenge the Board’s apparent
disregard or misunderstanding of the applicable variance
standard in the Variance Denial, this court need not and does
not make a determination as to whether the Variance Denial (and
the Denial) is supported by substantial evidence because the
Denial nevertheless effectively prohibits wireless service in
violation of the TCA.
See Green Mountain II, 750 F.3d at 38
(“It is well-established in this Circuit that ‘local zoning
decisions . . . that prevent the closing of significant gaps in
the availability of wireless services violate the statute.’
This is true even where a local authority’s denial of an
individual application pursuant to its own local ordinances is
supported by substantial evidence.”) (quoting Nat’l Tower, 297
F.3d at 19-20).
IV.
Effective Prohibition
As discussed previously, the TCA does not require a zoning
board or other local authority to consider whether its decision
39
constitutes an effective prohibition of wireless service.
However, that does not mean that a zoning board’s choice to
ignore evidence of a gap in coverage is insignificant.
Second
Generation Props., 313 F.3d at 630 (noting that although TCA
does not itself expressly authorize local zoning boards to
consider whether individual decisions amount to an effective
prohibition, “many boards wisely do consider the point”);
American Towers, 2018 WL 3104105, at *8 (“[a] local zoning board
thus ignores evidence of a gap in coverage at its peril”).
Indeed, regardless of whether a zoning board or other local
authority determines expressly whether a decision is supported
by substantial evidence,15 a plaintiff may prove an “effective
prohibition” claim by demonstrating that:
(1) “a ‘significant
gap’ in coverage exists;” and (2) the proposed plan, which the
local authority rejected, is the “‘only feasible plan.’”
Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48,
50 (1st Cir. 2009).
Both of these determinations are “based,
not on bright-line legal standards, but on the facts in the
record.”
Omnipoint Holdings, 586 F.3d at 48; see Green Mountain
15
The First Circuit explicitly states that “[t]he question of
whether or not a local denial constitutes an effective
prohibition violative of the [TCA] is definitely answered by the
district court, not the local zoning authority.” Green Mountain
II, 750 F.3d at 38-39. Moreover, “where a local authority
purports to pass upon the issue, the federal courts afford it
‘[n]o special deference.’” Id. at 39 (citations omitted)).
40
II, 750 F.3d at 38-39 (“question of whether or not a local
denial constitutes an effective prohibition” is largely factdriven).
“An effective prohibition claim asserts that the
decision, even if supported by the evidence, has an
impermissible effect, and thus the district court considers the
questions de novo, taking, it if chooses, additional evidence
not in the administrative record.”
Green Mountain I, 688 F.3d
at 59 n.14; see, e.g., Second Generation Props., 313 F.3d at
626-627) (affirming summary judgment for town where district
court considered both the record developed before the local
board and “other evidence submitted by the parties in support of
their motions”).16
A.
Existence of Significant Gap in Coverage
Plaintiffs argue that they established the existence of a
significant gap in coverage.
Specifically, they assert that
propagation maps and analysis by RF engineers are sufficient to
show the existence of a gap in this circuit.
They further point
out, correctly, that defendants “did not dispute the existence
of the gap at the hearing and admitted that [they] did not
conduct any independent investigation into the issue.”
Entry # 42, p. 24).
(Docket
It is true that defendants do not contest
that plaintiffs have established a significant gap in coverage
16
It is therefore appropriate to consider the Conroy Report in
determining effective prohibition.
41
exists in the Town in the vicinity of the Proposed Site.17
“However, because it is plaintiffs’ burden, as the provider, to
17
As plaintiffs point out, defendants’ only “response on the
Effective Prohibition claim appears to be that the denial was
supported by its local zoning bylaw.” (Docket Entry # 50, p.
9). Specifically, defendants assert:
The town’s zoning bylaws and the Board’s decision do not
prohibit cell towers within the [T]own nor do they violate
the ‘effective prohibition’ sections of the [TCA]. In
order to succeed on an effective prohibition claim, the
applicants must establish: (1) that the [T]own’s zoning
policies and decisions result in a significant gap in
wireless service within the town; and (2) that ‘from
language or circumstances not just that [their] application
has been rejected but that further reasonable efforts are
so likely to be fruitless that it is a waster [sic] of time
even to try.’
(Docket Entry # 49, p. 5) (internal citations and footnote
omitted). Defendants then go on to explain:
However, it must be remembered that . . . 47 U.S.C. §
332(c), which relates to the preservation of local zoning
authority, provides that ‘[e]xcept as provided in this
paragraph, nothing in this chapter shall limit or affect
the authority of a State or local government or
instrumentality thereof over decisions regarding the
placement, construction, and modification of personal
wireless service facilities.’ 47 U.S.C. § 332(c)(1996).
The statutory general reservation of the right of local
authorities to govern the sitting and construction of
telecommunications facilities is subject only to the
limitations which follow in 47 U.S.C. § 332(c)(7)(B) which
preclude such exercise of authority to the extent that it
‘unreasonably discriminate[s] among providers of
functionally equivalent services’ and/or ‘prohibit[s] or
have the effect of prohibiting the provision of personal
wireless services.’ 47 U.S.C. § 332(c)(7)(B)(1996). Here
no such prohibition has been shown as no such prohibition
has occurred.
(Docket Entry # 49, pp. 5-6). Beyond this paragraph, defendants
do not adequately explain why the Town’s Zoning Bylaw and the
Board’s decision do not constitute an effective prohibition in
violation of the TCA. (Docket Entry # 46). Moreover, and as
42
demonstrate both elements of an effective prohibition claim,
this court will address the evidence regarding the existence of
a significant gap in services.”
See T-Mobile Ne., LLC v. Town
of Bedford, No. 17-CV-339-LM, 2018 WL 6201717, at *6 (D.N.H.
Nov. 28, 2018) (citing City of Cranston, 586 F.3d at 48
(“‘carrier has the burden to show an effective prohibition has
occurred’”)).
The “significant-gap analysis” focuses on “‘whether a
coverage problem exists at all.’”
City of Cranston, 586 F.3d at
48-49 (citing Second General Props. 313 F.3d at 631).
Defendants contend that the analysis is concerned “with complete
coverage of wireless services within a town, not significant
gaps in a particular provider’s coverage.”
p. 3, n.3).
(Docket Entry # 46,
As plaintiffs point out, however, the First Circuit
rejects that test and holds that the relevant question is
whether a significant gap exists within the individual carrier’s
network.
City of Cranston, 586 F.3d at 49 (“We have rejected
the Third Circuit’s rule that considers not the individual
carrier’s network but whether any carrier provides service to an
area.”).
In deciding whether the coverage gap is significant,
plaintiffs argue, the fact that a decision comports with the
local zoning law is not a defense to an effective prohibition
claim because, as discussed previously, a decision may still
constitute an effective prohibition regardless of whether it is
supported by substantial evidence.
43
this court “should consider, inter alia, the physical size of
the gap, the area in which there is a gap, the number of users
the gap affects, and whether all of the carrier’s users in that
area are similarly affected by the gaps.”
Id. at 49.
Here, plaintiffs provide sufficient undisputed evidence to
establish the existence of a significant gap in the vicinity of
Tacoma Drive.
The RF Affidavit submitted as part of the
Application states that T-Mobile “provides insufficient wireless
communication services to the Town” in the vicinity of Tacoma
Drive and is further supported by the Conroy Report.
The Conroy
Report, which utilizes propagation maps and radio frequency
data, demonstrates that there is a 2.1 square mile gap in TMobile’s ability to provide service in the vicinity of Tacoma
Drive “caused by a lack of reliable in-building residential &
in-building commercial coverage.”
(Docket Entry # 43-1, p. 8).
The Conroy Report further demonstrates that the gap includes
residences, commercial buildings, and strip malls; and that
according to 2010 U.S. Census data, there are approximately
2,320 to 5,494 residents in the in-building coverage gap area.
This evidence cumulatively establishes that a significant gap of
coverage exists.
See Haddad, 109 F. Supp. 3d at 301 (provider
met its burden on summary judgment of establishing gap in
wireless coverage where provider provided multiple propagation
studies showing lack of service and defendants did not oppose
44
providers’ LR. 56.1 statement or raise “any significant issues
of fact in their Opposition”); accord Town of Bedford, 2018 WL
6201717, at *6 (finding that RF analysis submitted with
provider’s application to zoning board identifying coverage gap
and expert report submitted in support of plaintiff’s summary
judgment motion constituted sufficient evidence of coverage
gap); Nextel Commc’ns of the Mid-Atlantic, Inc. v. Town of
Sudbury, Civil Action No. 01-11754-DPW, 2003 WL 543383, at *12
(D. Mass. Feb. 26, 2003) (noting that coverage maps “are
commonly relied upon by wireless carriers, zoning boards, and
courts to determine the extent of coverage in a given
locality”).
This evidence further supports a finding that the
identified gap is “significant.”
See Branch Towers, LLC v. City
of Knoxville, No. 3:15-CV-00487, 2016 WL 3747600, at *1, 6 (E.D.
Tenn. July 11, 2016) (provider met burden on summary judgment of
demonstrating “significant gap” in services where gap consisted
of 1.5 square mile area that encompassed “residential streets,
churches, a school, and several heavily traveled roads”); AT&T
Mobility Servs., LLC v. Vill. of Corrales, 127 F. Supp. 3d 1169,
1174 (D.N.M. 2015) (finding sufficient evidence of “significant
gap” on summary judgment where gap was approximately two miles
across and much of it “include[d] a residential zone without
reliable in-home coverage”), aff’d, 642 F. App’x 886 (10th Cir.
2016); cf. Town of Bedford, 2018 WL 6201717, at *7 (finding
45
sufficient evidence of “significant gap” on summary judgment
where RF report and “propagation maps demonstrate[d] . . . 6.7
square mile gap in” provider’s reliable in-building services
encompassing “4,000 residents and three schools”).
B.
Only Feasible Plan
Plaintiffs next argue that the Proposed Facility is the
only feasible means to remedy the significant gap.
Specifically, they contend that they “investigated thoroughly
the possibility of other viable alternatives” before concluding
“no other feasible locations were available.”
42, p. 25).
(Docket Entry #
In making this argument, plaintiffs point to their
“good faith” efforts to identify all of the properties in the
search ring and evaluate which of the properties was feasible
for a tower.
(Docket Entry # 42, p. 7).
They further argue
that upon demonstrating that they investigated other sites and
designs and there was no other feasible plan, “the Town has the
burden to demonstrate that technically feasible and actually
available alternatives exist.”
(Docket Entry # 42, p. 25).
As noted previously, defendants, in response to the
“effective prohibition” claim, only contend that “no such
prohibition has been shown as no such prohibition has occurred.”
(Docket Entry # 49, pp. 5-6).
They do not explicitly address
whether the Proposed Facility is the only feasible plan and
appear to argue that an effective prohibition can only occur
46
where a town’s zoning bylaw prohibits all cell towers, and not
just those towers that fail to meet certain zoning requirements.
While it is true that an individual denial by a zoning board
does not automatically equate to an effective prohibition, the
First Circuit and other courts in this district conclude that an
individual denial may amount to an effective prohibition in
certain circumstances, including where no alternative exists.
See, e.g., American Towers, 2018 WL 3104105, at *11 (citing
Amherst, 173 F.3d at 14) (“‘Obviously, an individual denial is
not automatically a forbidden prohibition violating the
“effects” provision.
But neither can we rule out the
possibility that—based on language or circumstances—some
individual decisions could be shown to reflect or represent, an
effective prohibition on personal wireless services.’”).
Defendants contend that to succeed on an effective
prohibition claim, plaintiffs “must establish: (1) that the
[T]own’s zoning policies and decisions result in a significant
gap in wireless services within the [T]own; and (2) that ‘from
language or circumstances not just that [their] application has
been rejected but that further reasonable efforts are so likely
to be fruitless that it is a waster [sic] of time even to try.’”
(Docket Entry # 49, p. 5) (internal citations and footnote
omitted).
The First Circuit adheres to the following standard:
47
Whether or not an effective prohibition has occurred
depends on each case’s unique facts and circumstances, and
“there can be no general rule classifying what is an
effective prohibition.” Second Generation Props., 313 F.3d
at 630. We have, however, discussed certain “circumstances
where there is a prohibition ‘in effect.’” Id. “[W]here
the plaintiff’s existing application is the only feasible
plan . . . denial of the plaintiff’s application might
amount to prohibiting personal wireless service.” Id.
(citations and internal quotation marks omitted). In
attempting to show that local authorities have rejected the
only feasible plan, a carrier bears “the ‘heavy’ burden ‘to
show from the language and circumstances not just that this
application has been rejected but that further reasonable
efforts [to find another solution] are so likely to be
fruitless that it is a waste of time even to try.’” City
of Cranston, 586 F.3d at 50 (emphasis and alteration in
original) (quoting Town of Amherst, 173 F.3d at 14).
Green Mountain II, 750 F.3d at 40 (internal quotation marks and
footnote omitted).
Thus, the applicable test is the one
articulated in City of Cranston, namely, whether plaintiffs have
shown “‘that further reasonable efforts . . . are so likely to
be fruitless that it is a waste of time even to try.’”
Cranston, 586 F.3d at 50 (internal citation omitted).
City of
In City
of Cranston, the court further explained that a carrier has the
burden to prove it “‘investigated thoroughly the possibility of
other viable alternatives’ before concluding no other feasible
plan was available.”
Id. at 52 (internal citation omitted).
discussed previously, whether the carrier proves an effective
prohibition is a factual question for this court to resolve.
Relevant facts a court may consider in assessing whether a
provider has carried this burden include the technical
48
As
feasibility of the proposed site and any alternative plans, the
overall cost of alternatives to the provider, the technological
efficiency of alternatives, whether local authorities are
willing to cooperate with carriers, and whether a “‘town could
prefer other solutions on aesthetic grounds.’”
Town of Bedford,
2018 WL 6201717, at *8 (citing City of Cranston, 586 F.3d at
52).
“Also relevant is the availability of alternative sites,
i.e. whether owners are willing to sell or lease the land.”
Id.
“‘In order for a site to be an alternative sufficient to
forestall a claim of effective prohibition, it needs to be
available and technically feasible.’”
citation omitted).
Id. at *11 (internal
“‘Ultimately, the question is a practical
inquiry into feasible, available alternatives.’”
Id. (citing
City of Cranston, 586 F.3d at 52-53).
Here, plaintiffs provided sufficient undisputed evidence to
establish that the Proposed Facility is the “only feasible
plan.”
T-Mobile RF engineers identified a search ring to remedy
the coverage gap and that T-Mobile then proceeded to perform a
detailed and thorough search of the area within the search ring
for available properties that would be suitable for construction
of a wireless telecommunications facility that would remedy the
gap and comply with the Town’s Zoning Bylaw.
The Conroy Report
shows, and defendants acknowledge, that T-Mobile expressed
interest in building its facility at the Town Hall.
49
The Town
Hall, however, was not an appropriate candidate because the Town
refused to enter into a lease that would permit T-Mobile to
deploy a wireless telecommunications facility at the Town Hall.
Thus, the Town Hall is not a viable alternative because it is
not available.
It is also undisputed that T-Mobile also
considered installing the wireless telecommunications facility
at St. Dorothy’s Church.
Here again, the Conroy Report
establishes that St. Dorothy’s Church is not a viable option
because an antenna mounted in a fashion acceptable to the Board
would be at a height of approximately 50 feet above ground
level, which is too low to provide substantive coverage to the
gap area.18
feasible.
Thus, St. Dorothy’s Church is not technically
Finally, it is undisputed that T-Mobile expressed
interest in 200 Jefferson Road, but the landlord of the property
refused to lease the property.
Thus, 200 Jefferson Road is also
not a viable option because it is not available.
See O’Rourke,
582 F. Supp. 2d at 110 (finding that parcel of land was “not an
alternative site because the owners [were] not interested in
selling the land”).
After evaluating the properties within the search ring, TMobile determined that the Proposed Site is an appropriate site
18
Defendants do not sufficiently articulate an alternative
means to show that an antenna could be mounted in a way that
would both comply with the Town’s Zoning Bylaw and remedy the TMobile’s coverage gap. (Docket Entry # 46, pp. 7-8).
50
because it is located in a general business zone, it would
provide coverage relative to its location, it is buildable, and
the site owner agreed to lease the site.
Defendants object to
T-Mobile’s conclusion that the Proposed Site is an “appropriate
site” because it does not comply with the Town’s Zoning Bylaw.
Where no other feasible alternatives exist, however, the fact
that a proposed plan does not comply with local zoning laws does
not defeat an effective prohibition claim.
At the Board’s request, plaintiffs also considered the
Tewksbury Fire Department Tower.
The Conroy Report demonstrates
that the tower is not a viable alternative because it is outside
of the search ring.
In addition, it is undisputed that any
potential coverage provided by the Tewksbury Fire Department
Tower would be redundant with an existing T-Mobile site and
would not provide coverage for the significant gap.
See City of
Cranston, 586 F.3d at 53 (district court did not err in finding
that fire department museum, which provided largely repetitive
coverage with another tower to solve the carrier’s gap, was not
a viable alternative).
In short, the evidence cumulatively demonstrates that the
Proposed Facility is the “only feasible plan.”
Notably, there
is no evidence of any alternative that could remedy T-Mobile’s
significant gap.
Id. at 52 (“When we have held the carrier has
not met its burden, the evidence has been essentially undisputed
51
that the carrier had other alternatives.”); id. at 53 (district
court “did not clearly err” in finding that constructing a
wireless telecommunications tower at proposed site “was the only
feasible way” to close the carrier’s coverage gap where evidence
presented by the carrier showed that it “had in fact
systemically searched for solutions to the gap problem using
technologically reliable criteria and methodologies”); cf.
Second Generation Props., 313 F.3d at 635 (carrier did not show
entitlement to summary judgment because it presented no
explanation why its proposal was the only feasible site);
Amherst, 173 F.3d at 15 (carrier did not show entitlement to
summary judgment because it “did not present serious
alternatives to the town” other than the most efficient solution
and “practically admitted that somewhat lower towers were
technically feasible”).
Finally, there is little, if any,
reason to question the qualifications of Conroy or De Ramos, who
both have extensive experience as RF engineers.
(Docket Entry #
43-1, pp. 41-44) (Docket Entry # 43-2, pp. 47-53).
V.
Remedy
For the above reasons, plaintiffs meet their burden of
showing:
(1) that a significant gap in coverage exists in the
vicinity of Tacoma Drive; and (2) that the Proposed Facility is
the only feasible plan that would remedy the significant gap in
coverage and that further reasonable efforts to identify
52
alternatives are likely to be fruitless such that it would be a
waste of time to try.
conclude otherwise.
A reasonable finder of fact would not
Having sufficiently established both prongs
of an effective prohibition of a matter of law, plaintiffs are
entitled to summary judgment.
See Town of Bedford, 2018 WL
6201717, at *12 (granting summary judgment to carrier plaintiffs
where they “satisfied both prongs of their effective prohibition
claim”).
Conversely and separately viewing defendants’ request
for summary judgment in their favor under Rule 56(f)(1),
defendants’ request lacks merit.
In addition, because
plaintiffs are entitled to summary judgment, it is not necessary
for this court to “consider summary judgment on its own” under
Rule 56(f)(3), as requested by defendants.
Having determined
that the Denial effectively prohibits T-Mobile from providing
wireless services in violation of the TCA, the appropriate
remedy, as plaintiffs argue, is an injunction ordering the Board
to issue the wrongfully withheld special permit and variances.
See Nat’l Tower, 297 F.3d at 25 & n.7 (affirming district
court’s order instructing zoning board “‘to issue within thirty
(30) days . . . the dimensional and use variances and special
permit necessary for the construction of the plaintiffs’ 170
foot lattice tower and maintenance facility’” where board
effectively prohibited provision of wireless services) (internal
citation omitted); Brehmer, 238 F.3d at 120–123 (discussing and
53
approving decisions by majority of district courts granting
injunctive relief in TCA cases); Town of Bedford, 2018 WL
6201717 at *12 (“While the TCA does not specify a remedy for a
violation, where the requisite showing has been made,
‘injunctive relief is the preferred remedy, given the [TCA’s]
stated objective of expediting judicial review.’”) (citing Nat’l
Tower LLC v. Frey, 164 F. Supp. 2d 185, 190 (D. Mass. 2001),
aff’d sub nom. Nat’l Tower, 297 F.3d at 14)).
CONCLUSION
In accordance with the foregoing discussion, plaintiffs’
motion for summary judgment (Docket Entry # 41) is ALLOWED and
defendants’ request for summary judgment under Rule 56(f)(1)
(Docket Entry # 46) is DENIED.
The Board is ORDERED to issue
within 30 days of this Order the requested dimensional variances
and special permit necessary for the construction of the
Proposed Facility.
_/s/ Marianne B. Bowler_
MARIANNE B. BOWLER
United States Magistrate Judge
54
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