Second Generation Props. v. Town of Pelham

• Decision Date: 17 December 2002
• Docket Number: No. 02-1688.,02-1688.
• Citation: 313 F.3d 620
• Parties: SECOND GENERATION PROPERTIES, L.P., Plaintiff, Appellant, v. TOWN OF PELHAM, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

313 F.3d 620

SECOND GENERATION PROPERTIES, L.P., Plaintiff, Appellant, v. TOWN OF PELHAM, Defendant, Appellee.

No. 02-1688.

United States Court of Appeals, First Circuit.

Heard October 10, 2002.

Decided December 17, 2002.

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Andrew R. Schulman with whom Getman, Stacey, Tamposi, Schulthess & Steere, P.A. was on brief for appellant.

Diane M. Gorrow with whom Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C. was on brief for appellee.

Before LYNCH, Circuit Judge, BOWNES, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

In this Telecommunications Act case the plaintiff, a landowner, was denied permission to build a wireless communications tower by the Pelham, New Hampshire Zoning Board of Appeals (ZBA or Board). The federal district court, on cross motions for summary judgment, rejected the landowner's claims that (1) the ZBA decision was not supported by substantial evidence and (2) the decision was an unlawful effective prohibition on the provision of wireless services. In doing so, the district court adopted a rule that so long as any carrier provides service in the area, there is never a basis for a claim that a town has effectively prohibited personal wireless service, in violation of the Act, by preventing other carriers from filling a significant geographic gap in their cellular networks. This holding raises a novel and interesting question. We disagree with the district court's rule, but affirm on other grounds.

I.

Second Generation planned to build on its land in Pelham¹ a telecommunications tower which would permit carriers to provide service along N.H. Route 128, a state highway. Pelham has four commercial cell towers, one approved after the ZBA denied Second Generation's first variance application. Pelham has six licensed, operating wireless carriers: Voicestream Communications; AT & T Wireless; Sprint PCS; Verizon; U.S. Cellular; and Nextel Communications (as they are currently known). Cingular Wireless is not among them. Second Generation owns a ninety acre, heavily wooded lot at the top of Seavy Hill (also called Spaulding Hill) directly above a portion of Route 128, which runs through a narrow valley between two ridges of hills. Daily traffic on this portion ranges from 10,000 cars, just south of N.H. Route 111A, to around 4,500 cars, north of Route 111A.

Two wireless carriers, AT & T Wireless and Voicestream, originally committed to use the Second Generation tower, but Voicestream withdrew from its agreement, leaving only AT & T under contract. Two other carriers, Sprint PCS and Nextel, had expressed interest in using the proposed tower.

In 1998, Second Generation applied for a special exception to erect a 400-foot cell tower on Spaulding Hill. The zoning ordinance then provided that communications towers in residential zones were a permitted use, subject to obtaining a special exception. The Zoning Board of Appeals (ZBA) denied the request for a special exception on June 8, 1998. Second Generation appealed to the state Superior Court, which upheld the decision. Second Generation then applied to build a smaller, 250-foot cell tower.

In March 1999, the town passed a Personal Wireless Services Ordinance which authorizes the town's Planning Board to issue conditional use permits for the construction of cell towers in a newly established "Telecommunications Overlay Zone." The Overlay Zone includes only areas currently zoned for industrial and commercial uses, and is separated from Route 128 by hills. A variance must be obtained from the ZBA to construct a tower outside the Overlay Zone. Since Second Generation's property is in a residential zone, it needed a variance.²

In February 2000, Second Generation filed a federal court complaint alleging that the ordinance violated the TCA by effectively prohibiting the provision of personal wireless services, in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) (2000), and unreasonably discriminating against some licensed wireless carriers, in violation of § 332(c)(7)(B)(i)(I). It also brought a claim against the town under 42 U.S.C. § 1983 (2000). The court issued a stay in August 2000 to allow Second Generation to seek a variance from the ZBA.

At the ZBA variance hearing, Second Generation presented testimony from its engineers (one a Voicestream employee), consultants (one from AT & T), attorneys, and its general partner. Representatives of AT & T and Voicestream stated that their networks had coverage gaps on Route 128.³ Blaine Hopkins, a Second Generation consultant, purported to show that the presence of a cell tower has no impact on property values, and that the alleged gaps could not be serviced by existing Pelham towers or new 190-foot towers in the Overlay Zone. A Second Generation executive testified that the cell tower would generate less noise and traffic than would a single residence, that the surrounding topography would hide the lower part of the tower, and that research by a local appraiser confirmed that the tower would not diminish the value of surrounding properties.

Numerous abutters and other Pelham residents testified that the tower would interfere with their view and spoil the pristine character of the neighborhood. Three abutters said that the tower would diminish property values; one reported that local real estate firms had informed him that the surrounding homes would be devalued by approximately fifteen percent. A ZBA member, also a realtor, strongly criticized the methodology used in Mr. Hopkins's analysis of the impact of cell towers on property values.⁴ Two residents contended that the Second Generation property could be put to other uses: for agriculture, residential development, tree harvesting, or elderly housing. One abutter and one ZBA member stated that they had phone service within the alleged gap. A resident also testified that the area could be largely served by a tower in a commercial zone in Dracut, Massachusetts.

The Board voted unanimously to deny the variance on the ground that Second Generation failed to prove "hardship" as required by New Hampshire law.

Second Generation amended its complaint to challenge the ZBA decision as well as the ordinance. It alleged that Pelham had instituted an "absolute prohibition" against the construction of cell towers in residential zones, that at least four of the six licensed wireless carriers had significant coverage gaps along Route 128, and that it would be impossible to eliminate these gaps without building a cell tower in a residential zone. The ordinance and waiver, it asserted, violated 47 U.S.C. § 332(c)(7)(B)(i) by effectively prohibiting wireless service and unreasonably discriminating against the four carriers. It also added new claims that the ZBA's waiver denial was not supported by adequate written findings or substantial evidence in the record, in violation of § 332(c)(7)(B)(iii). Second Generation dropped its 42 U.S.C. § 1983 claim and its request for damages; it now requested only that the court enjoin the town ordinance.

Shortly after the ZBA decision, the New Hampshire Supreme Court decided Simplex Technologies, Inc. v. Town of Newington, 145 N.H. 727, 766 A.2d 713 (2001), which relaxed the criteria for proving hardship in zoning board proceedings. Id. at 717. In May 2001, both parties filed summary judgment motions. On June 27, 2001, the district court remanded the case to the ZBA for a redetermination of hardship.

At the ZBA hearing on September 24, 2001, Second Generation presented testimony from two experts and two attorneys; several residents again testified in opposition. The hearing yielded the following new information. The Pelham Planning Director testified that the Planning Board was considering proposed subdivisions with approximately forty-five homes near the Second Generation tract. Second Generation's radio frequency engineer, Anthony Wells, presented a propagation study purporting to show that the alleged gap could not be serviced by existing Pelham towers, new 195-foot towers in the Overlay Zone, or an existing tower in Hudson, New Hampshire. Second Generation also made a number of concessions. First, Second Generation experts acknowledged that the company's tract was not the only site that could provide coverage in the alleged gap. Second, they did not contest that a tower shorter than 250 feet could allow a limited number of carriers to service the alleged gap. Second Generation executives later said that they were willing to settle, at least temporarily, for a variance to build a 199-foot tower. Finally, when counsel to an abutter stated that carriers in New Hampshire can enter into right-of-way leases along state highways, Second Generation acknowledged that it had not explored this option and was unsure about its effectiveness.

The ZBA denied the waiver in a written decision dated September 27, 2001, finding that Second Generation did not meet any of the five conditions for obtaining a waiver, and, more specifically, that Second Generation had failed to meet any of the three unnecessary hardship criteria.

The parties again filed cross-motions for summary judgment in district court and agreed to resolve the case essentially on a case-stated basis. The court had before it the record developed as a result of the ZBA hearings; for the effective prohibition claim, it also considered other evidence submitted by the parties in support of their motions. Second Generation submitted affidavits that four of the six carriers licensed to provide wireless services in Pelham experienced gaps in coverage along Route 128, but that one licensed carrier, U.S. Cellular, had roaming coverage in the alleged gap via the network of Cingular Wireless.

On May 21, 2002, the district court granted Pelham's motion for summary judgment and denied Second Generation's motion. Second Generation Props., L.P. v. Town of Pelham, No. Civ. 00-90-B, 2002 WL...