Brehmer v. Planning Bd of Wellfleet

• Decision Date: 04 December 2000
• Docket Number: No. 99-2185,99-2185
• Citation: 238 F.3d 117
• Parties: (1st Cir. 2001) BETHIA BREHMER, ET AL., Plaintiffs, Appellants, v. PLANNING BOARD OF THE TOWN OF WELLFLEET; OMNIPOINT COMMUNICATIONS, INC., ET AL., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 117

238 F.3d 117 (1st Cir. 2001)

BETHIA BREHMER, ET AL., Plaintiffs, Appellants, v. PLANNING BOARD OF THE TOWN OF WELLFLEET; OMNIPOINT COMMUNICATIONS, INC., ET AL., Defendants, Appellees.

No. 99-2185

United States Court of Appeals For the First Circuit

Heard December 4, 2000

Decided February 6, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Edward J. Collins for appellant.

Patrick J. O'Toole, Jr., with whom Craig M. Tateronis, Richard W. Holtz, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC, were on brief, for appellees.

Before Selya, Circuit Judge, Stahl, Circuit Judge, and Lisi,^* District Judge.

STAHL, Circuit Judge.

A group of citizens from Wellfleet, Massachusetts, seeking to undo their town Planning Board's award of a special zoning permit authorizing construction of a wireless telecommunications tower in the steeple of an historic church, sued the Planning Board and the permit recipient, Omnipoint Communications, Inc. The citizens' group claimed that the issuance of the permit, an action that the Planning Board was obliged to perform under a consent judgment for its earlier violation of the federal Telecommunications Act ("TCA" or "Act"), was unlawful because it failed to follow the procedural strictures of Massachusetts zoning law. The district court disagreed and granted defendants' motion for summary judgment, finding that the permit had been properly issued and that plaintiffs had not demonstrated standing under Massachusetts law. The plaintiffs below appeal from that judgment. We affirm.

I. Background

In May 1998, Omnipoint¹ submitted a formal application to the Planning Board of Wellfleet, Massachusetts ("Planning Board" or "Board") for a special permit to install wireless telecommunications equipment inside the steeple of the First Congregational Church of Wellfleet. This location was suggested by the Planning Board during initial consultations as an alternative to the nearby site that Omnipoint had initially proposed, and was worked out with the church's trustees in a site-lease agreement. After the formal request was submitted, the Planning Board held four hearings on the issue. During the pendency of the permit application, however, a measure of public opposition grew to the plan to locate the equipment inside the church steeple. At the final hearing on October 5, 1998, the Planning Board put the permit application to a vote. Although the five members of the Board unanimously concluded that Omnipoint had satisfied all criteria of the town's zoning bylaws, three members nonetheless voted against issuance of the permit. Two of the three Planning Board members voting "no" explained in written statements that their decisions were largely based on concerns about the potential health effects of the telecommunications facility.

On November 4, 1998, Omnipoint sued the Planning Board in federal district court under 47 U.S.C. § 332(c)(7)(B)(v) as a party "adversely affected by a[] final action . . . by a State or local government" acting to regulate personal wireless service facilities. It contended that the Board impermissibly relied on the potential environmental effects of the telecommunications tower as a reason for rejecting the permit application under the TCA. See id. § 332(c)(7)(B)(iv) (prohibiting state and local governments from regulating wireless telecommunications facilities "on the basis of the environmental effects of radio frequency emissions" provided that those facilities comply with pertinent federal regulations). Omnipoint also sought damages arising from the permit denial under 42 U.S.C. § 1983. Soon thereafter, Omnipoint and the Planning Board entered into publicly disclosed settlement negotiations.² The parties eventually settled their differences, with Omnipoint agreeing to abandon its claim for damages, to perform environmental testing on the telecommunications equipment, and to place warning signs in the vicinity of the site, in consideration of the Planning Board's pledge to issue the previously withheld special permit. This agreement was memorialized in a consent judgment entered by the district court on February 5, 1999. On March 24, 1999, the Planning Board issued the special permit as promised.

Dissatisfied with this course of events, a group of Wellfleet citizens sued the Planning Board and Omnipoint in Barnstable Superior Court on April 14, 1999, seeking to have the federal consent judgment set aside as unlawful. Plaintiffs contended that the Planning Board, in issuing the special permit pursuant to the consent agreement, violated state zoning law by granting a previously denied special permit in the absence of public notice and hearing. Mass. Gen. Laws ch. 40A, §§ 9, 11. Plaintiffs also claimed that Omnipoint had violated sundry provisions of Wellfleet's zoning regulations, and had disregarded procedures mandated by the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4335, and Section 106 of the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f. Omnipoint successfully removed the case to federal district court based on the substantial issues of federal law implicated by plaintiffs' complaint, i.e., the preemptive effect of the TCA and the validity of the consent judgment that had been issued by the district court. See City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 164 (1997).

By May 24, 1999, Omnipoint had secured the historic-preservation and building permits that it needed to begin construction of the tower. Within hours of commencing work on the project on June 2, however, an emergency motion for a temporary restraining order was filed by the Wellfleet citizens' group. On June 4, the district court granted the TRO conditioned on plaintiffs' posting of a $50,000 bond. The TRO blocked further work on the installation until the hearing on plaintiffs' motion for a preliminary injunction in the zoning suit, scheduled to occur one week later. Because plaintiffs failed to meet the $50,000 bond requirement imposed by the court, the TRO automatically expired. This left Omnipoint free to construct the telecommunications facility in the church steeple, a task it completed within one week.

On June 11, 1999, the district court denied plaintiffs' motion for a preliminary injunction and invited the parties' motions for summary judgment. At a subsequent hearing on August 4, 1999, the district court informed the parties that it would grant Omnipoint's motion for summary judgment. In so ruling, the court reasoned that plaintiffs had not established their status as "aggrieved persons" under Massachusetts law, and hence had no standing to bring suit. Alternately, the district court held that Massachusetts zoning law did not provide relief to plaintiffs under these circumstances. The court found that since the Planning Board had acknowledged that its earlier denial of the special permit violated the TCA, "it would be inappropriate and, in fact, a waste of time and energy to order a Planning Board to reconvene a process when the appropriate remedy for a violation of the TCA, in fact, is injunctive relief by way of a written order such as the relief given by this Court."

On appeal, the Wellfleet citizens' group renews its objections to the procedure by which the special permit was awarded to Omnipoint. Appellants claim that the Planning Board, subsequent to its acknowledged contravention of the TCA, should not have simply awarded the permit, but was instead required by Massachusetts zoning law to convene further public hearings in order to allow for the presentation of additional evidence and the opportunity to vote anew on the permit application. Going one step further, appellants contend that nothing in the TCA requires that Massachusetts zoning law be disregarded in instances where a town planning board's decision to deny a special zoning permit is determined to have violated the TCA. Appellants also raise a host of other issues, including the significance of Omnipoint's separate entities in the permit-award process and the permissibility of the special permit under federal environmental and historic-preservation laws.

II. Special Permit Issuance Procedure

Appellants' principal contention is that the Wellfleet Planning Board acted outside the scope of its authority in issuing the special permit to Omnipoint pursuant to its negotiated settlement, rather than according to the procedures prescribed by state zoning law. Their brief cites extensively to Massachusetts cases holding that a planning board's decision to grant an application for a previously denied special permit is invalid if it was not preceded by a fresh round of public notice and hearing. We review the district court's grant of summary judgment de novo, and draw factual inferences in the light most favorable to appellants. Town of Amherst v. Omnipoint Communications Enters., Inc., 173 F.3d 9, 13 (1st Cir. 1999).

We start from the uncontroverted premise that the Planning Board violated the TCA when it rejected the initial special-permit request based on the potential health risks posed by the telecommunications equipment, in spite of its acknowledgment that Omnipoint had satisfied all criteria of Wellfleet's zoning bylaws. The Board essentially admitted as much when it entered into a negotiated settlement with Omnipoint and agreed to issue, without further process, a permit it had already denied. Because the TCA does not expressly state the remedy to be ordered for violations of its substantive provisions,³ the district court, in ruling on the Wellfleet citizens' suit, could have either endorsed the Planning Board's direct issuance of the permit, or required that the Board hold further hearings on the matter. In ratifying the settlement agreement, the district court chose the course followed by the majority of courts in comparable situations: awarding injunctive relief...