Atc Realty, LLC v. Town of Kingston, New Hampshire

• Decision Date: 05 September 2002
• Docket Number: No. 01-2737.,01-2737.
• Citation: 303 F.3d 91
• Parties: ATC REALTY, LLC; SBA Towers, Inc., Plaintiffs, Appellees, v. TOWN OF KINGSTON, NEW HAMPSHIRE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 91

303 F.3d 91

ATC REALTY, LLC; SBA Towers, Inc., Plaintiffs, Appellees, v. TOWN OF KINGSTON, NEW HAMPSHIRE, Defendant, Appellant.

No. 01-2737.

United States Court of Appeals, First Circuit.

Heard June 14, 2002.

Decided September 5, 2002.

Robert D. Ciandella, with whom Robert M. Derosier and Donahue, Tucker & Ciandella were on brief, for appellant.

Steven E. Grill, with whom Devine, Millimet & Branch, P.A. were on brief, for appellees.

Before TORRUELLA, LYNCH and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiffs-appellees ATC Realty, LLC and SBA Towers, Inc. filed suit in district court seeking an order directing the Town of Kingston, New Hampshire to grant them all the permits necessary to construct a wireless telecommunications tower in the town. The district court granted summary judgment in plaintiffs' favor on the ground that there was insufficient evidence to support the Town of Kingston's decision to deny plaintiffs' application to construct a tower. Defendant-appellant Town of Kingston ("Town" or "Kingston") appeals the district court's grant of summary judgment, arguing that the Town's rejection of the plaintiffs' application is supported by substantial evidence. Because we conclude that there was substantial evidence to support the Town's decision in the record, we reverse entry of summary judgment for plaintiffs and direct that summary judgment be entered for the Town.

FACTUAL BACKGROUND

Wireless service companies provide consumers with mobile telephone service. To activate the technology upon which their service relies, these companies must construct a network of telecommunication towers that transmits low-power, high-frequency radio signals. Incapable of building this network alone, they rely on plaintiffs SBA Towers and ATC Realty (collectively, "SBA/ATC") to develop such telecommunication towers for them. Plaintiffs, in turn, lease antenna facilities on these towers to the wireless service companies.

In 1999, several wireless service providers noticed a significant coverage gap along Route 125 in the northern region of Kingston, New Hampshire. This gap left customers in the area without wireless telecommunications service and disconnected the telephone calls of mobile phone users passing through the gap. Seeking to rectify this problem, SBA/ATC applied to the Kingston Planning Board ("Planning Board" or "Board") for permission to construct "an unlighted 180 foot free standing multi-user telecommunication tower" on Marshall Road in Kingston.¹ Two months after the plaintiffs submitted their application, however, American Tower, a direct competitor, applied for a permit to construct a similar tower on Depot Road in Kingston.

After holding several public hearings, conducting on-site inspections of the proposed tower locations, and consulting a telecommunications expert, the Planning Board voted on October 17, 2000, to approve the construction of only one of the two proposed towers. In the same meeting, the Board voted to deny the plaintiffs' application for a construction permit and, in a subsequent vote, to grant American Tower's application. Finally, the Board voted again to deny plaintiffs' application.

Shortly thereafter, the Planning Board issued a written decision formally adopting the results of the votes taken at the October 17 meeting. Using the Town's Telecommunications Facility Ordinance to define its criteria, the Board rejected the plaintiffs' application on four grounds:

1) Based upon the purposes section of the Kingston zoning ordinance letters C and E it is the responsibility of the Kingston Planning board to provide for minimal impact siting and to require cooperation and coordination between telecommunications service providers in order to reduce cumulative negative impacts upon Kingston.

2) The location of [SBA/ATC's] proposed location is in close proximity to residential abutters. While there are commercial users backing into the property, the majority of the abutting and nearby properties are residential and of a rural nature. The siting of this tower does not meet the intent of the ordinance to reduce adverse impacts on neighborhood aesthetics.

3) The design of the [SBA/ATC] tower does not prevent nor reduce the visual intrusive ness [sic] along the NH Route 125 corridor. Minimizing the adverse visual impact is required by the Town's ordinances.

4) The Planning Board hired a telecommunication consultant to assist in determining the technical viability of the SBA/ATC site. This consultant provided evidence that two proposed sites offered the same ability to cover existing service gaps. As a result, the SBA/ATC site failed to meet the standard of section D) of the Town's ordinance which indicates that all other reasonable opportunities have been exhausted. In addition Section VII.3., paragraph h and j require the Planning Board to consider other factors in making decisions that include availability of existing towers and other structures and the availability of alternative siting locations. The Planning board has done this with respect to this denial.

After their application was rejected in writing, SBA/ATC filed this suit in the United States District Court for the District of New Hampshire, claiming that the Board's decision was not supported by substantial evidence as required by statute. See 47 U.S.C. § 332(c)(7)(B)(iii). The district court granted summary judgment in plaintiffs' favor, and the Town filed this timely appeal.

STANDARD OF REVIEW

We review de novo the district court's grant of summary judgment. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.2001).

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]o defeat a properly supported motion for summary judgment, the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st Cir.1993) (internal quotation marks omitted). In exercising our review, we construe the record evidence "in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party." Feliciano De La Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000).

DISCUSSION

I.

The Telecommunications Act ("TCA") works like a scale that, inter alia, attempts to balance two objects of competing weight: on one arm sits the need to accelerate the deployment of telecommunications technology, while on the other arm rests the desire to preserve state and local control over zoning matters. 47 U.S.C. § 332(c)(7)(A)-(B) (1994 & Supp. II 1996); see generally Southwestern Bell Mobile Sys. v. Todd, 244 F.3d 51, 61 (1st Cir. 2001). Accordingly, though state and local governments have the power "to deny ... request[s] to place, construct, or modify personal wireless service facilities," their decisions must be "in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). This balance strengthens the decision making authority of local zoning boards, while protecting wireless service providers from unsupported decisions that stymie the expansion of telecommunication technology. See generally Brehmer v. Planning Bd. of Wellfleet, 238 F.3d 117, 122 (1st Cir.2001).

Plaintiffs SBA/ATC argue that they are entitled to summary judgment because the Town's rejection of their application is not supported by substantial evidence. "The TCA's substantial evidence test is a procedural safeguard which is centrally directed at whether the local zoning authority's decision is consistent with the applicable zoning requirements." Omnipoint Communications MB Operations v. Lincoln, 107 F.Supp.2d 108, 115 (D.Mass.2000) (citing Amherst v. Omnipoint Communications Enters., Inc., 173 F.3d 9, 16 (1st Cir.1999)). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such evidence as a reasonable mind might accept as adequate to support a conclusion." Cellular Tel. Co. v. Zoning Bd. of Adjustment of Ho-Ho-Kus, 197 F.3d 64, 71 (3d Cir.1999) (internal citations omitted). The Board's decision will thus withstand our scrutiny if it is "supported by ... more than a scintilla of evidence." Cellular Tel Co. v. Oyster Bay, 166 F.3d 490, 494 (2d Cir.1999); accord NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997) ("[Substantial evidence] requires more than a scintilla but less than a preponderance." (internal citations omitted)).

II.

This case does not involve a claim that the Board has effectively prohibited the provision of telecommunication services needed to close a service gap. See 47 U.S.C. § 332(c)(7)(B)(i)(II). Rather, the Board has granted permission to plaintiffs' competitors to build a tower which will close the service gap along Route 125.

The only question before us is whether the Board's decision to deny the plaintiff's application is supported by substantial evidence. In determining that question, in the absence of any claim of procedural irregularity by the Board, we restrict our review to the record before the Board. See Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 22 (1st Cir.2002); Todd, 244 F.3d at 58 (quoting Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164 F.3d 713, 718 (1st Cir.1999)). We do not review the question de novo; we must uphold the Board's decision unless it is not supported by substantial evidence.

Before scrutinizing the factors cited by the Board in defense of its decision to reject plaintiffs' application, we pause to consider what mode of analysis to apply. The Town argues that, in determining whether the Board's decision is supported by...