VWI Towers, LLC v. Town of North Andover Planning Board et al

Filing 39

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: For the foregoing reasons, plaintiffs motion for summary judgment (Docket No. 28 ) is, with respect to Count I, DENIED, but, with respect to Count II, ALLOWED. The defendants are directed to issue the requested permits and thereby authorize the construction of the plaintiffs Proposed Facility. So ordered. (Vieira, Leonardo)

United States District Court
District of Massachusetts

VWI TOWERS, LLC,
Plaintiff,
v.
TOWN OF NORTH ANDOVER PLANNING
BOARD, JOHN SIMONS, PETER
BOYNTON, JENNIFER LUZ, EITAN
GOLDBERG, AARON PRESTON,
CHRISTINE ALLEN and TOWN OF
NORTH ANDOVER,
Defendants.

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Civil Action No.
18-10345-NMG

MEMORANDUM & ORDER
GORTON, J.
This case arises out of the denial of a special permit for
the construction and operation of a wireless communication
facility by VWI Towers, LLC (“Varsity” or “plaintiff”) to be
located at a site in the Town of North Andover.

Varsity brings

this action against the Town of North Andover Planning Board
(“the Planning Board”), individual members thereof and the Town
of North Andover (collectively “the Town” or “defendants”),
alleging that they have violated the Telecommunications Act of
1996, 47 U.S.C. § 332 (“the TCA”).
Plaintiff alleges that 1) the Planning Board’s written
decision denying the permit application is not supported by

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substantial evidence contained in the written record as required
by § 332(c)(7)(B)(iii) (Count I) and 2) the denial of the permit
effectively prohibits the provision of personal wireless
services in violation of § 332(c)(7)(B)(i)(II) (Count II).
Plaintiff seeks the annulment of the Planning Board’s decision
denying its permit application and the issuance of a permanent
injunction ordering the Town to issue all necessary permits for
the immediate construction and installation of the proposed
facility.
Before this Court is plaintiff’s motion for summary
judgment.

For the following reasons, that motion will be

allowed, in part, and denied, in part.
I.

Background
A.

The Coverage Gap and the Proposed Facility

Varsity develops communications facilities for the
deployment of personal wireless services.

It leases its

facilities to telecommunications providers who install their own
equipment to provide service to a particular geographic area.
Cellco Partnership, doing business as Verizon Wireless
(“Verizon”), and New Cingular Wireless PCS, LLC (“AT&T”) are
telecommunication providers licensed with the Federal
Communications Commission to provide personal wireless services
in the Commonwealth of Massachusetts, including the Town of
North Andover.
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In order for a telecommunications carrier to provide an
effective wireless communications system, it must maintain a
network of cell sites with slightly overlapping coverage areas.
Cell sites are typically comprised of a base station and a cell
tower with mounted antennae and other electronic communications
equipment.

Those cell sites must be overlapping to allow users

to move freely through a geographic area without losing service.
They need to be constructed at a sufficient height as defined by
various factors, such as location, coverage of existing cell
sites, terrain, land use characteristics and population density.
Verizon and AT&T are continuously building their networks
of cell sites to provide reliable service through current “4G
LTE” technology while also planning for future needs and
demands.

Consistent with that goal, Verizon and AT&T have

identified a gap in their coverage within the Town of North
Andover in the area comprising Foster Street, Salem Street,
Boxford Street, Bridges Lane, Vest Way and surrounding roads and
neighborhoods (“the Coverage Objective”).
Verizon hired a radio frequency expert to analyze the
existing wireless communications network coverage and needs in
the Coverage Objective using radio frequency propagation maps
and drive test data.

He determined that there were over 1,000

residents in the affected area receiving inadequate service from
Verizon.

Moreover, the expert estimated that the Coverage
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Objective experienced a significant amount of traffic with Salem
Street serving approximately 9,600 vehicles per day east of
Appleton Street and 2,900 vehicles per day south of Boxford
Street. 1

AT&T is estimated to have a nearly identical area of

deficient coverage and approximately 1,300 customers in the
Coverage Objective area who lack adequate service.
In August, 2017, Varsity applied to the Planning Board for
a special permit and site plan review for the installation and
operation of a proposed facility located at 122 Foster Street in
North Andover (“the Proposed Facility”).

It also applied

separately to the Town of North Andover Zoning Board (“the
Zoning Board”) for a series of variances needed to construct the
Proposed Facility.

The Proposed Facility would consist of a

130-foot-tall cell tower camouflaged as a pine tree (“the
monopine” or “the tower”), faux pine branches that extended five
feet above the tower to a height of 135 feet, a compound of
nearly 4,000 square feet surrounded by a six-foot-high wooden
stockade fence, an ice bridge, a back-up generator, a padmounted transformer and other communications equipment.

Verizon

and AT&T agreed to enter into separate leases with Varsity
whereby they would co-locate their antennas on the monopine.

1

Those traffic estimates are based on data from the Massachusetts Department
of Transportation from 2016.

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Along with its application, Varsity submitted the report of
Verizon’s radio frequency expert and several documents
demonstrating its site selection process.

Those documents

included a spreadsheet of 19 alternative properties Varsity
reviewed and rejected as a location for the Proposed Facility
with the reasons for their rejection.

The report also explained

that so-called “macro sites” (such as the Proposed Facility) are
the more common solution for larger areas of wireless service
coverage but that those sites can be supplemented by so-called
“small cells” which generally consist of smaller antenna mounted
on existing utility poles, light poles or short rooftops and are
designed to service discrete areas rather than broad coverage
gaps.

The expert concluded that the use of only small cells

would be inadequate to provide the desired level of service to
the Coverage Objective.
B.

The Relevant Bylaw

In assessing Varsity’s application for a special permit,
the Planning Board considered the following relevant provisions
of the North Andover Zoning Bylaw (“the Bylaw”), among others.
Section 8.9(1) of the Bylaw provides that its express purpose is

to minimize the visual and environmental impacts as
well as any potential deleterious impact on property
value, of wireless service facilities located within
the Town or adjacent thereto.
Pursuant to Section 8.9(3)(a)(i) of the Bylaw,
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[t]he carrier must demonstrate that the facility is
necessary in order to provide adequate service to the
public.
Under Section 8.9(3)(b)(i), wireless service facilities are
to be located on pre-existing structures if feasible, such as
existing buildings, telecommunications facilities, utility poles
and towers or related facilities.
In accordance with Section 8.9(3)(b)(ii), the wireless
facility must be camouflaged to the greatest extent possible if
it is not going to be located on a pre-existing structure and
under Section 8.9(4)(a)(II), the facility must be surrounded by
a buffer of dense trees or vegetation to provide a year-round
visual buffer.

Section 8.9(4)(d) provides that:

(i)[n]o facility shall be located within 300 feet of a
Scenic Road and
(ii)[w]ireless service facilities shall not be located
within open areas that are visible from public roads,
recreational areas or residential development.
Finally, under Section 10.31(1) of the Bylaw,
[t]he Special Permit Granting Authority shall not
approve any such application for a Special permit
unless it finds that in its judgment all the following
conditions are met: [(1)] [t]he specific site is an
appropriate location for such a use, structure or
condition; [(2)] [t]he use as developed will not
adversely affect the neighborhood; [(3)] [t]here will
be no nuisance or serious hazard to vehicles or
pedestrians; [(4)] [a]dequate and appropriate
facilities will be provided for the proper operation
of the proposed use; . . . [and (5)] [it] make[s] a
specific finding that the use is in harmony with the
general purpose and intent of this Bylaw.

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C.

The Hearing Process, the Town’s Expert Reports and the
Board’s Decision

Between September, 2017, and January, 2018, the Planning
Board held five public hearings at which Varsity’s application
for a special permit was discussed.

At those hearings,

representatives of Varsity presented their analysis with respect
to the Coverage Objective and the impact of the Proposed
Facility.

Numerous residents testified regarding the visual

impact of the Proposed Facility on the historic landscape,
including the farm on which the Proposed Facility was to be
located.

They pointed out the adverse visual impact on the

community soccer fields near the Proposed Facility and the
likely negative impact on the property values of surrounding
residences.

Several residents testified that there was already

adequate wireless coverage in their area, abutters to the
proposed property submitted a petition signed by 21 residents
who opposed the tower and two direct abutters submitted a letter
requesting that the Proposed Facility be built on a different
location farther back on the proposed site.
In response to those concerns, Varsity agreed to reduce the
height of the proposed tower to 110 feet (115 feet to the top of
the fake branches) and conducted expert studies of both the
visual impact of the Proposed Facility at the modified height

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and its possible effect on residential property values. 2

Varsity

presented photographs to the Planning Board which demonstrated
that, while the tower would be visible year-round from several
locations (including the community soccer fields and several
residences), it was minimally visible from many locations and
not visible at all from most others.

Furthermore, Varsity’s

real estate consultants concluded that the Proposed Facility
would have no measurable impact on surrounding property values.
In addition to the testimony and materials submitted by
Varsity and residents, the Planning Board also considered
analysis conducted by its own consultant, David Maxson
(“Maxson”).

He concluded, based on his own radio frequency

propagation maps, that there was a gap in coverage generally in
the geographic area identified by Verizon and AT&T and that
placing a facility somewhere in that area would improve the
service to the covered residences.

He also agreed that 1) there

did not appear to be any existing structures where Verizon and
AT&T could co-locate and which was capable of providing the
desired coverage, 2) both Verizon and AT&T would require a
minimum tower height of 97 feet in order to provide adequate
coverage and 3) both carriers could not locate their antennas at
the same height on the tower.

2

The visual impact studies consisted of floating a red balloon at the
simulated height of the proposed tower and taking photographs from various
locations in the surrounding neighborhood to assess its visibility.

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Moreover, Maxson agreed with Varsity that the use of “Cloud
Radio Access Nodes” (“C-RANs”) alone, which are a type of small
cell site, would be unable to satisfy the desired service to the
Coverage Objective.

He explained that C-RANs could provide

service to portions of Salem Street and Boxford Street where
there are existing utility poles on which the devices could be
mounted but that a new macro site would be needed to provide
coverage to many other streets and residences in the Coverage
Objective which lacked existing utility poles and would likely
oppose the erection of new utility poles.

He explained that

Verizon, but not AT&T, currently deploys C-RANs in North Andover
and thus the use of C-RANs alone would not be a feasible
alternative for the gap in AT&T’s coverage.
Maxson confirmed that at least eight of the sites
considered and rejected by Varsity were indeed unavailable
because they were conservation land but nevertheless concluded
that there were other feasible alternative sites which would
provide comparable or superior service coverage to the subject
area.

He identified a purportedly superior site at 409 Foster

Street (“Parcel 28”) based upon the fact that there was already
a power substation located on the property and it was farther
east and thus would provide more coverage to residents than the
Proposed Facility.

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Maxson disagreed with Varsity’s conclusion that Parcels 28
and 29 were too far east to provide the desired service to the
Coverage Objective.

He expressed the opinion that the

alternative of placing a tower at the top of Bruin Hill (north
of Foster Street) would require a right of way over Town-owned
land for access but would provide the best overall improvement
in coverage to residents.

Maxson did not conduct an analysis of

the availability or constructability of the Bruin Hill site or
verify its visual impact.

All of the alternative parcels of

land are owned by National Grid.
Another alternative identified by Maxson was a location
farther back on the proposed property.

That site would require

the tower to be slightly taller but would be potentially less
visible to the street and neighbors because of denser tree
coverage.

He also suggested locating the tower on the parcel of

land adjacent to the proposed property which was owned by the
same landowner but did not conduct an analysis of the
accessibility, availability or visual impact of a tower on
either of those parcels.
Maxson noted that there were several other possible
alternatives on Town-designated open space, including two sites
close to the community soccer fields.

He acknowledged, however,

that he had not conducted specific coverage analysis with
respect to those sites or determined whether they were actually
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available for use, suitable for construction, accessible or
would have a better or worse visual impact than the Proposed
Facility.

Furthermore, Maxson explained that, while the use of

“open space” for wireless facilities was not expressly
prohibited by the Bylaw, he was unsure whether the Town
nevertheless restricted the use of open space for such
facilities.

He also noted that because those open spaces are

Town-owned parcels, they are subject to a public hearing process
in order to make them available for leasing which he considered
to be “a time-consuming process with uncertain outcome”.
Furthermore, he explained that location on Town-designated open
spaces
may do more to mar the scenery than the proposed
facility . . . [and] [f]urther analysis would be
needed to vet them for visual impact.
To rebut Maxson’s conclusions that there are feasible
alternative sites available, Varsity submitted a letter from
National Grid in which the company notified Varsity that it
would not enter a lease agreement for commercial development on
Parcels 28 and 29.

Furthermore, Varsity submitted the meeting

minutes from the public hearing held in December, 2017, in which
the Planning Board, Varsity representatives, Maxson and
residents discussed the problems of access over Bruin Hill,
including the need to cross over Town-owned property and
possible conservation restrictions.
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Varsity submitted an affidavit of Steven Young, the owner
of the proposed property, in which he contends that he discussed
with Varsity various potential locations on his property for the
Proposed Facility but refused to lease any portion of his
property or his adjacent property other than that specifically
identified in Varsity’s application for a special permit.

With

respect to one of the proposed alternative sites identified by
Maxson, Varsity submitted a letter from the owner of that
property voicing his opposition to the Proposed Facility.
Finally, Varsity notes that, with respect to the Town-owned open
spaces, Maxson has not identified whether they are actually
available for lease and has not considered the visual impact of
a tower on those sites (especially as to the proposed locations
having an unobstructed view of the community soccer fields).
D.

The Decisions of the Zoning Board and the Planning
Board

On January 3, 2018, the Zoning Board of Appeals granted
Varsity’s application for the necessary variances to construct
the Facility at the proposed location.

It determined that no

pre-existing structures, alternative technologies or reasonably
feasible alternative locations for a proposed tower existed to
provide the desired coverage.

It also found that the reduced

tower height of 115 feet (inclusive of the fake branches) was
the minimum height necessary to provide adequate service to the

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Coverage Objective.

The Zoning Board of Appeals determined that

denying the requested variances for the Proposed Facility would
effectively prohibit the provision of adequate wireless service
to the subject area.

It concluded that the granting of the

requested variances would not deviate from the intent or purpose
of the Bylaw but rather would serve the public good by providing
enhanced wireless service while, to the extent feasible,
minimizing the visual impact of the Facility through camouflage,
buffers and reduced height.
Despite the findings and conclusions of the Zoning Board of
Appeals, the Planning Board voted unanimously on January 16,
2018, to deny Varsity’s application for a special permit.

The

Planning Board offered essentially five reasons for denying the
permit: 1) Varsity failed specifically to define the exact
boundaries of the alleged area of inadequate coverage; 2) it
failed to demonstrate that the alleged gap in coverage was
“significant”; 3) it has not shown that the Proposed Facility is
necessary to provide adequate service to the public because
feasible alternatives exist, including location at possibly less
objectionable sites or the use of C-RANs on certain streets; 4)
it failed to minimize the significant, undesirable visual impact
of the Proposed Facility on the surrounding neighborhood and
landscape, including on the nearby soccer fields and “the
agricultural landscape and scenic views”; and 5) it provided
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insufficient evidence of the effect of the Proposed Facility on
property values.
The Planning Board conceded that a gap in adequate coverage
existed in the subject area but stated that its exact bounds
were “subject to interpretation and open to refinement”.

It

explicitly found, however, that the gap generally existed near
Foster Street, Winter Street and connecting neighborhoods and
that a number of residences would be served by the Proposed
Facility.

It also found that the gap existed in small sections

of Salem Street and Boxford Street but that the Proposed
Facility was not necessary to provide coverage to those areas
because of the existence of C-RANs that could be mounted on
existing utility poles along those streets.
The Planning Board determined that no existing utility
structures were adequate to provide the desired service but
concluded that there were reasonable alternatives to the
Proposed Facility which could provide substantially similar
levels of service.

The Planning Board’s decision did not

specify which of the other site locations was a feasible
alternative but noted that it was reasonable to assume that the
owner of the property for the Proposed Facility would be open to
discussing alternative locations on his property.

It also

stated that Varsity had not evaluated the potential visual
impact of other sites farther away from the proposed location.
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The Planning Board found that, while the Proposed Facility
would be camouflaged as a pine tree, it would not be surrounded
by sufficient trees and vegetation to provide an adequate, yearround visual buffer.

The Planning Board determined that the

Proposed Facility was not near a designated Scenic Road but
that, nevertheless, the proposed location’s history and current
state of development “creates a scenic experience for
passersby”.

The Planning Board concluded that the Proposed

Facility would adversely affect the neighborhood and surrounding
landscape and was therefore not in harmony with the general
purpose and intent of the Bylaw.
E.

Procedural History

In February, 2018, Varsity filed this action against the
Town.

In June, 2019, it filed a motion for summary judgment on

the grounds that 1) the Planning Board’s decision is not
supported by substantial evidence as required by §
332(c)(7)(B)(iii) of the TCA and 2) its denial of the special
permit effectively prohibits Varsity from providing personal
wireless services in violation of § 332(c)(7)(B)(i)(II) of the
TCA.
Specifically, Varsity contends that defendants 1)
improperly rejected expert evidence concerning the significant
coverage gaps experienced by Verizon and AT&T, 2) required
Varsity to define the exact boundaries of inadequate coverage
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and to demonstrate no feasible alternatives neither of which is
expressly required by the Bylaw, 3) incorrectly determined that
feasible alternatives to the Proposed Facility exist,
4) incorrectly determined that the gap in coverage can be
addressed solely by C-RAN or other small cell devices, 5)
improperly concluded that the Proposed Facility would reduce
property values without any evidentiary support and 6)
improperly relied upon general aesthetic concerns in denying the
special permit.

Moreover, plaintiff asserts that the Planning

Board’s decision effectively prohibits the provision of wireless
services because 1) it materially inhibits the provision of such
services, 2) a significant gap in coverage exists in the subject
area and 3) no feasible alternatives exist to address that gap
in coverage.
Defendants respond that the Bylaw requires the carrier to
demonstrate that the Proposed Facility is necessary to provide
adequate service to the public and thus it was appropriate for
the Planning Board to consider feasible alternatives.

Moreover,

defendants contend that: 1) the testimony from residents with
respect to the visual impact of the Proposed Facility on the
landscape and its possible effect on property values was
substantial evidence in support of the Planning Board’s
decision, 2) Varsity failed to prove there was a significant gap
in coverage or there were no feasible alternatives to the
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Proposed Facility and therefore 3) Varsity did not establish an
effective prohibition to the provision of wireless service.
Defendants submit that even if the Court ultimately
concludes that the Planning Board’s decision is unsupported by
substantial evidence or effectively prohibits the provision of
wireless service, the proper relief is to remand the case to the
Planning Board for further proceedings rather than to enter an
injunction ordering it to grant the special permit.
II.

Motions for Summary Judgment
A.

Legal Standard

The role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d
816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,
895 F.2d 46, 50 (1st Cir. 1990)).

The burden is on the moving

party to show, through the pleadings, discovery and affidavits,
“that there is no genuine 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 fact is material if it “might affect the outcome of the
suit under the governing law . . . .” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).

A genuine issue of material

fact exists where the evidence with respect to the material fact

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in dispute “is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
If the moving party satisfies its burden, the burden shifts
to the non-moving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).

The Court must view the entire record in

the light most favorable to the non-moving party and make all
reasonable inferences in that party's favor. O'Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993).

Summary judgment is

appropriate if, after viewing the record in the non-moving
party's favor, the Court determines that no genuine issue of
material fact exists and that the moving party is entitled to
judgment as a matter of law.
B.

The TCA

The purpose of the TCA is to facilitate the national
development of wireless telephone service.

The Act, “an

exercise in cooperative federalism”, delegates authority over
the placement and construction of facilities to state and local
authority. Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals,
297 F.3d 14, 21-22 (1st Cir. 2002).

That authority, however, is

subject to five limitations enumerated in 47 U.S.C.
§ 332(c)(7)(B).

Two of those limitations are relevant here.

First, the TCA provides that any decision of a local board
denying a request to place or construct personal wireless
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services facilities “shall be in writing and supported by
substantial evidence contained in a written record”.
§ 332(c)(7)(B)(iii).

A district court’s review of a board’s

decision is not de novo. ATC Realty, LLC v. Town of Kingston,
303 F.3d 91, 95 (1st Cir. 2002).

The burden of proving that the

record contains substantial evidence rests with the party
seeking approval. Green Mountain Realty Corp. v. Leonard, 688
F.3d 40, 50 (1st Cir. 2012).

“Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Nat’l Tower, 297 F.3d at 22 (internal
citation and quotation omitted).

When recording its decision,

the board need not present “formal findings of fact or
conclusions of law” or “state every [supporting] fact in the
record.” Id. at 20-21.

At a minimum,

[a] written denial must contain a sufficient explanation
of the reasons for the denial to allow a reviewing court
to evaluate the evidence in the record supporting those
reasons.
Id. (internal quotation omitted).
The Court’s review is confined to the record before the
local board, ATC Realty, 303 F.3d at 95, and must take into
account evidence that supports and contradicts the board’s
conclusions. Cellco P’ship v. Town of Grafton, 336 F. Supp. 2d
71, 79 (D. Mass. 2004).

While a local board must evaluate an

application for a permit or variance under the standard provided

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by state and local law, American Towers v. Shrewsbury, Civil
Action No. 17-10642-FDS, 2018 WL 3104105, at *8 (D. Mass. June
22, 2018), a mere recitation of provisions of state and local
zoning law does not constitute “substantial evidence” under the
TCA. See T-Mobile Ne. LLC v. City of Lawrence, 755 F. Supp. 2d
286, 291 (D. Mass. 2010); Sprint Spectrum L.P. v. Town of
Swansea, 574 F. Supp. 2d 227, 236 (D. Mass. 2008).

However, if

the evidence permits inconsistent conclusions, the court will
defer to the decision of the local authority, “provided the
local board picks between reasonable inferences from the record
before it.” Nat’l Tower, 297 F.3d at 23.
Second, the decision “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).

Even when there is substantial

evidence to support a local authority’s decision under the
applicable state and local law, the decision can still
constitute an effective prohibition in violation of the TCA.
Nat’l Tower, 297 F.3d at 20.
Citing a relatively recent FCC Declaratory Ruling,
plaintiff contends that the appropriate standard under the
effective prohibition provision is to determine whether the
decision materially inhibits the provision of wireless services,
including the carrier’s ability to introduce new services or
otherwise improve existing services. See In re Accelerating
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Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment, 33 FCC Rcd. 9088, 9104-05 (2018).
The First Circuit Court of Appeals has, however, applied a
seemingly more stringent test to effective prohibition claims
involving an individual denial of a permit.

First, the court

determines whether there is a “significant gap in coverage” in
the subject area. Green Mountain, 688 F.3d at 57.

Factors to

consider in determining whether a given gap in coverage is
“significant” are 1) the “physical size of the gap”, 2) “the
area in which there is a gap”, 3) “the number of users the gap
affects”, 4) “whether all of the carrier’s users in that area
are similarly affected by the gaps” and 5) “data about
percentages of unsuccessful calls or inadequate service during
calls in the gap area”. Omnipotent Holdings, Inc. v. City of
Cranston, 586 F.3d 38, 49 (1st Cir. 2009).

Second, the court

must consider whether feasible alternatives to the carrier’s
proposed solution exist such that there is no effective
prohibition. Green Mountain, 688 F.3d at 57.

Whether a decision

constitutes an effective prohibition is a case-by-case
determination and the plaintiff must
show from language or circumstances not just that this
application has been rejected but that further
reasonable efforts are so likely to be fruitless that
it is a waste of time even to try.

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Id. at 58 (citing Town of Amherst v. Omnipotent Commc’ns
Enters., Inc., 173 F.3d 9, (1st Cir. 1999) (describing the
plaintiff’s burden of proof as “a heavy one”)).

While the

carrier has the initial burden of conducting a systematic study
of alternative sites and demonstrating that no feasible
alternatives exist, once it has done so the local board must
either show that the plaintiff’s evidence was factually
insufficient or come forward with evidence of its own to
demonstrate a genuine dispute of fact. See Indus. Tower &
Wireless, LLC v. Haddad, 109 F. Supp. 3d 284, 303-04 (D. Mass.
2015).
Unlike the review under a substantial evidence challenge,
the court reviews any determinations of whether a decision
constitutes an effective prohibition de novo and may rely on
evidence outside of the administrative record compiled by the
local board. Id.
C.

Application
1.

Substantial Evidence

The Planning Board erred in relying upon Varsity’s failure
specifically to define the boundaries of the alleged area of
inadequate coverage as a reason to deny the special permit.
Nothing in the Bylaw requires that a carrier specifically define
the exact boundaries of the area of intended coverage in
applying for such a permit. See T-Mobile Ne. LLC v. City of
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Lowell, Civil Action No. 11-11551-NMG, 2012 WL 6681890, at *9
(D. Mass. Nov. 27, 2012) (holding that the local board failed to
act on the basis of substantial evidence when it relied upon a
criterion not provided for in the local ordinance).
Moreover, the Board erred in relying on the use of C-RANs
as a feasible alternative to the Proposed Facility because that
conclusion was directly contradicted by unrebutted evidence in
the record, including the reports submitted by both its own
consultant and Varsity’s consultant. See id. (finding that a
local board’s decision was based on unsubstantiated opinions or
conclusions and thus not supported by substantial evidence).

A

few generalized concerns from residents about the potential
decrease in property values is also not substantial evidence in
support of the Planning Board’s decision in light of the
contradictory expert testimony submitted by Varsity’s real
estate consultant. See Cellular Tel. Co. v. Town of Oyster Bay,
166 F.3d 490, 496 (2d Cir. 1999).
The Court does find, however, that there was substantial
evidence in the record for the Planning Board to deny Varsity’s
application on the basis of the Proposed Facility’s visual
impact on the surrounding landscape.

While mere general

aesthetic concerns do not constitute substantial evidence in
support of the denial of a permit, particularized aesthetic
concerns grounded in the specifics of the case can support a
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local authority’s decision. Green Mountain, 688 F.3d at 53.
Here, the Bylaw specifically provides that the Planning Board
must consider the visual impact of any proposed wireless
communication facility on the surrounding neighborhood.

Many of

the aesthetic concerns expressed by local residents were
complaints about the generally unappealing nature of the
Proposed Facility.

Other residents spoke specifically, however,

about the adverse visual impact that the tower would have on the
historic farm and scenic landscape, as well as to the fact that
the tower was visible year-round from the community soccer
fields.

While a close question, those aesthetic concerns are

sufficiently particularized to the specific facts of this case
to support the Planning Board’s decision.
Plaintiff’s motion for summary judgment with respect to
Count I will therefore be denied.
Varsity is wrong to suggest that the Planning Board was not
permitted to consider whether there was a significant gap in
coverage and whether there were feasible alternatives to the
Proposed Facility in assessing the application for a special
permit.

The Bylaw specifically provides that the Planning Board

must consider whether the Proposed Facility is necessary to
provide adequate service to the public.

It is reasonable that

in assessing whether a facility is necessary, the Planning Board
would consider the substantiality of the alleged coverage gap
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and possible alternatives that are less intrusive.

The Court

need not determine, however, whether there was substantial
evidence to support the Planning Board’s decision on that basis
because it nevertheless concludes that, based on all the
evidence now before it, the Planning Board’s denial of the
special permit effectively prohibits the provision of wireless
services in the Coverage Objective area.
2.

Effective Prohibition

While there was substantial evidence to support the
Planning Board’s decision based on specific aesthetic concerns,
its decision constitutes an effective prohibition in violation
of the TCA.

Because the Court finds that Varsity has

established an effective prohibition even under the First
Circuit’s more demanding “significant gap” test, it declines to
decide whether the appropriate standard under the TCA is the
FCC-endorsed “materially inhibit” test.
First, Varsity has demonstrated that there is a significant
gap in service with respect to both Verizon and AT&T.

Varsity’s

expert consultant has identified over 2,000 new residents who
would be served in the Coverage Objective by Verizon and AT&T.
Neither defendants nor their expert, Maxson, appear to contest
those figures.

Indeed, Maxson admits in his report that the

Proposed Facility would provide improved service to many new
residents.

Furthermore, data provided by Varsity shows that
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approximately 12,000 vehicles travel along Salem Street each
day.

The Coverage Objective is sufficiently large and serves a

substantially high number of residents to constitute a
significant gap.
Second, Varsity has carried its burden of demonstrating
that it has conducted a systematic analysis of various locations
throughout the Town and that the only feasible alternative is
the Proposed Facility.

While Maxson has proposed various

alternatives, there are several reasons to reject those proposed
sites as feasible.

With respect to Parcels 28 and 29, Varsity

has presented a letter from National Grid confirming that it is
unwilling to lease that property for a wireless communication
facility.

It also submitted an affidavit of the current

landowner of the site for the Proposed Facility in which he
asserts that he is unwilling to lease any other portion of that
property or his adjacent property for a communications facility.
Finally, Varsity demonstrated that at least one other
alternative site was owned by a resident who opposed the
original project and thus there was no reason to believe that he
would consent to the construction of a facility on his own
property.

Those sites are therefore unavailable and not

feasible alternatives.
With respect to Bruin Hill, Maxson conceded that it has
substantial access problems because Varsity would have to obtain
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a right of way over Town-owned land.

Given the Planning Board’s

apparent hostility to the tower and the need to obtain access
over Town property, it is unlikely that Bruin Hill is a feasible
alternative. See Nextel Commc’ns of the Mid-Atl., Inc. v. Town
of Wayland, 231 F. Supp. 2d 396, 408-09 (D. Mass. 2002).

The

Planning Board has demonstrated its hostility to a proposed
tower by relying, in part, on ambiguous and unsupported reasons
to deny Varsity’s application. See American Towers, 2018 WL
3104105, at *13.

Those reasons include the Planning Board’s

conclusions that 1) Varsity provided insufficient evidence of
the impact of the tower on property values despite the report of
the real estate consultant, 2) C-RANs were a feasible
alternative despite the report of its own expert to the contrary
and 3) there were other feasible locations available without
specifying to which properties it was referring.
Similarly, there is no reason to believe that the Town is
willing to lease designated open space, such as the property
identified near the community soccer fields, for a wireless
communication facility.

Maxson acknowledged that it is unclear

whether those open spaces are restricted from such use and that
even if they are technically available, the Town must still vote
to approve any lease of those properties.

As noted above, it

seems unlikely that the Town would be willing to lease those

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properties in light of the opposition of both the Planning Board
and the public.
Furthermore, two of the designated open spaces identified
by Maxson as alternative sites are in close proximity to the
community soccer fields and have an unobstructed view of those
fields.

Given that one of the reasons cited by the Planning

Board for denying Varsity’s application was the visual impact of
the tower on the soccer fields and the historic agricultural
landscape nearby, it is highly unlikely that the Planning Board
would approve those sites for a communications facility.

In

fact, Maxson noted in one of his reports that a tower located on
a property near the soccer fields would not likely be
“materially less visually obtrusive than the proposed facility”.
Finally, the proposed use of open spaces as alternative
sites for the Proposed Facility is even more dubious given the
provision of the Bylaw providing that
[w]ireless service facilities shall not be located
within open areas that are visible from public roads,
recreational areas or residential development.
It is unclear how Maxson concluded that Town-designated open
areas are not expressly prohibited by the Bylaw in light of that
provision.

Even if those areas are not expressly prohibited,

the totality of the evidence indicates that they are unlikely to
be available for Varsity’s intended use and thus are not
feasible alternatives.
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As noted above, the experts of both Varsity and the
Planning Board agree that C-RANs, alone, are not a feasible
alternative and that at least some new macro site is required to
fully service the Coverage Objective.

Even if Verizon could

supplement its service in the Coverage Objective using
additional C-RANs along certain streets, that solution would not
remedy AT&T’s significant gap in coverage because it apparently
has not deployed C-RANs to that area and there are insufficient
utility poles present to provide adequate coverage to the whole
area.
Accordingly, Varsity has demonstrated that even those
technically available alternatives are so likely to be rejected
that it is a waste of time even to try to pursue them, see
Nextel Commc’ns, 231 F. Supp. 2d at 408, and thus it has
established that the Planning Board’s decision has effectively
prohibited the provision of wireless services.

Varsity’s motion

for summary judgment as to Count II will be allowed.
D.

Appropriate Relief

The TCA makes clear that it expects expeditious resolution
of zoning disputes on the part of local authorities and courts
enforcing federal limitations. See 47 U.S.C. § 332(c)(7)(B)(v).
Thus, an award of injunctive relief, rather than a remand, is
often the preferred method of relief.

Brehmer v. Planning Bd.

of Wellfleet, 238 F.3d 117, 121 (1st Cir. 2001).
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In many cases,

the proper remedy for a zoning violation is an order instructing
the local board to authorize construction of the facility. Nat'l
Tower, 297 F.3d at 21-22 (finding proper remedy for TCA
violations in most cases to be order instructing board to
authorize construction); Town of Oyster Bay, 166 F.3d at 497
(collecting cases).

On the other hand, where there has been

“good faith confusion by a board,” a remand may be more
appropriate. Id. at 24.
In this case, an injunction is warranted.

Defendants have

not articulated any good faith confusion by the Planning Board
regarding its decision and thus to remand the case would simply
extend the litigation, contrary to the TCA’s directive to the
Court to “hear and decide such action[s] on an expedited basis”.
T-Mobile Ne., 755 F. Supp. 2d at 293 (citing 47 U.S.C.
§ 332(c)(7)(B)(v)).

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ORDER
For the foregoing reasons, plaintiff’s motion for summary
judgment (Docket No. 28) is, with respect to Count I, DENIED,
but, with respect to Count II, ALLOWED.

The defendants are

directed to issue the requested permits and thereby authorize
the construction of the plaintiff’s Proposed Facility.

So ordered.

/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated September 11, 2019

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