Cellco P'ship v. City of Peabody
| Decision Date | 24 September 2020 |
| Docket Number | No. 19-P-1164,19-P-1164 |
| Citation | 157 N.E.3d 609,98 Mass.App.Ct. 496 |
| Parties | CELLCO PARTNERSHIP v. CITY OF PEABODY & another. |
| Court | Appeals Court of Massachusetts |
The case was submitted on briefs.
Scott H. Harris & Andrew R. Hamilton for the plaintiff.
Dana Alan Curhan, Boston, for the defendants.
Present: Wolohojian, Maldonado, & Ditkoff, JJ.
Cellco Partnership, doing business as Verizon Wireless (Verizon), sought a special permit from the city council of Peabody (city council) to construct a facility at 161 Lynn Street to provide personal wireless service to its customers. The proposed facility would have filled gaps in Verizon's coverage network. The city council denied Verizon's special permit application, and, on Verizon's appeal, a judge of the Land Court granted summary judgment to Verizon and ordered the city council to grant the permit. Concluding that Verizon met its high burden of showing, as a matter of law, that the proposed facility is the only feasible option for filling the gaps in the coverage network and thus the denial of Verizon's special permit application constituted an effective prohibition on personal wireless services in violation of the Federal Telecommunications Act (TCA), we affirm.
1. Background. a. The TCA. To provide context for our discussion of the undisputed facts, we first provide a brief background on the TCA. Congress enacted the TCA to make "substantial changes to Federal regulation of telecommunications in recognition of, and to facilitate the spread of, new technologies nationwide." Roberts v. Southwestern Bell Mobile Sys., Inc., 429 Mass. 478, 479, 709 N.E.2d 798 (1999). "The new emphasis on competition is reflected in the many provisions of the TCA that seek to accelerate private sector deployment of new telecommunications technologies," including personal wireless services. Id. For example, because there is often "local resistance" to having necessary equipment placed within a community, the TCA includes provisions that "impose[ ] procedural and substantive obligations on local zoning authorities." Id. at 480, 709 N.E.2d 798.
The TCA provides that "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof ... 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). Accordingly, the TCA preempts to some extent State and local authority with respect to zoning and land use issues pertaining to personal wireless service facilities. See Roberts, 429 Mass. at 482, 709 N.E.2d 798.
b. Proposed facility. Verizon is a licensed provider of personal wireless services and, pursuant to Federal regulations, must provide substantial service in its license area. See 47 C.F.R. § 27.14. Verizon accomplishes that by deploying a network of antennae installed in locations where buildings and topographical features do not obstruct the radio frequency signals. Caused in part by the distances and topographies between existing antennae, Verizon has significant coverage gaps in Peabody.
When trying to fill coverage gaps, Verizon follows a systematic procedure to locate sites for additional antennae. To begin, Verizon uses computer modeling software to define a ring that will have a high probability of meeting Verizon's coverage and capacity objectives. After defining that ring, Verizon searches therein for an existing building, tower, or other structure of sufficient height on which it may install an antenna. If no such structure is found, Verizon then searches for a raw land site where it may build a personal wireless service facility. Following this procedure, Verizon concluded that the property at 161 Lynn Street was the only feasible option that would have filled the coverage gaps at issue. Verizon also considered, but rejected, a utility pole owned by NSTAR and a church steeple, both of which the parties admit were not feasible options.3
On June 18, 2014, Verizon submitted a special permit application to install, operate, and maintain a personal wireless service facility at 161 Lynn Street. As described by Verizon, the facility would have "consist[ed] of three (3) panel antennae and remote radio heads flush mounted to a sixty foot (60') monopole constructed on the [p]roperty," plus an equipment shed.4
On August 28, 2014, the city council voted to deny Verizon's special permit application. Verizon then filed an appeal from that decision in the Land Court pursuant to G. L. c. 40A, § 17.5
c. Alternative options. Shortly after Verizon filed its appeal in the Land Court, the parties discussed two other options: (1) having Verizon install a number of small cell antennae on utility poles that were owned by Peabody Municipal Light Plant (PMLP) and (2) building a personal wireless service facility at 38 Coolidge Avenue.6 PMLP, a municipal utility separate from the defendants, rejected the first proposal, and the city council denied Verizon's special permit application to build a personal wireless service facility at 38 Coolidge Avenue.7
Undeterred, the parties continued to discuss other options.8 First, the defendants informed Verizon that PMLP planned to construct a municipal-wide distributed antenna system (DAS) that would have obviated the need for Verizon's proposed facility, but the DAS option failed to materialize.9 Second, the defendants asked Verizon to reconsider their earlier proposal to install small cell antennae on PMLP utility poles, but Verizon and PMLP were unable to reach an agreement. Third, Verizon submitted petitions to install its own utility poles to be used for small cell antennae, but the city council denied those petitions. The city council reasoned that a new Federal regulation required PMLP to make its utility poles available to Verizon under presumptively fair terms and conditions and that Verizon, therefore, did not need its own utility poles.10 Thus, fourth, Verizon again tried to negotiate with PMLP over the use of its utility poles. On November 9, 2018, after Verizon and PMLP were again unable to reach an agreement, Verizon submitted the motion for summary judgment that underlies this appeal.11 A judge of the Land Court declared that the denial of Verizon's special permit application constituted an effective prohibition on personal wireless services in violation of the TCA because, as a matter of law, no other feasible option would have filled the coverage gaps. This appeal followed.
2. Discussion. a. Standard of review. Review of an appeal under G. L. c. 40A, § 17, "involves a ‘peculiar’ combination of de novo and deferential analyses." Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381, 909 N.E.2d 1161 (2009), quoting Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555, 558, 120 N.E.2d 916 (1954). We owe "deference to the interpretation of a zoning by-law by local officials only when that interpretation is reasonable," but we owe no such deference to the interpretation of a statute by local officials. Pelullo v. Croft, 86 Mass. App. Ct. 908, 909-910, 18 N.E.3d 1092 (2014). Moreover, in the context of this appeal, where Verizon's case was decided on a motion for summary judgment, we review de novo whether there were genuine issues of material fact. See, e.g., Bellalta v. Zoning Bd. of Appeals of Brookline, 481 Mass. 372, 376, 116 N.E.3d 17 (2019).
Typically, we do not scrutinize decisions of local officials in light of events that occurred after those decisions were made. See Boston Edison Co. v. Boston Redev. Auth., 374 Mass. 37, 74 n.28, 371 N.E.2d 728 (1977). Contrary to this normal practice, the parties understandably ask us -- as they asked the motion judge in the Land Court -- to consider events that occurred during the four and one-half years following the denial of Verizon's special permit application.12 As the parties have agreed to this procedure, our analysis takes those events into consideration. See Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1629 (2019). Otherwise, the matter would have to be remanded to the city council for further consideration of the intervening events. We agree with the parties that this would not serve a useful purpose where the legal question we are asked to resolve is not one that is "within the authority of the [city council]," to which we would owe deference, but instead turns on the requirements of the TCA. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 454 Mass. at 381, 909 N.E.2d 1161.13 b. Feasibility of an alternative option. As noted above, the TCA provides that "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof ... 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). "When a carrier claims an individual denial is an effective prohibition, virtually all circuits require courts to (1) find a ‘significant gap’ in coverage exists in an area and (2) consider whether alternatives to the carrier's proposed solution to that gap mean that there is no effective prohibition." Omnipoint Holdings, Inc. v. Cranston, 586 F.3d 38, 48 (1st Cir. 2009) ( Cranston ).14 The carrier bears the burden of proving that "it ‘investigated thoroughly the possibility of other viable alternatives’ before concluding no other feasible plan was available." Id. at 52, quoting VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 834-835 (7th Cir. 2003). This is a heavy burden that requires showing "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." Amherst, N.H. v. Omnipoint Communications Enters., 173 F.3d 9, 14 (1st Cir. 1999). The...
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