Green Mountain Realty Corp. v. Leonard

• Decision Date: 23 April 2014
• Docket Number: No. 13–2163.,13–2163.
• Citation: 750 F.3d 30
• Parties: GREEN MOUNTAIN REALTY CORP., Plaintiff, Appellant, v. John S. LEONARD, Member and Chairman of Town of Milton Board of Appeals; Sara L. Harnish, Member of Town of Milton Board of Appeals; Virginia M. Donahue King, Member of Town of Milton Board of Appeals; Brian M. Hurley, Member of Town of Milton Board of Appeals; Jeffrey B. Mullan, Member of Town of Milton Board of Appeals; Francis C. O'Brien, Member of Town of Milton Board of Appeals; Emanuel Alves, Member of Town of Milton Board of Appeals; Steven M. Lundbohm, Member of Town of Milton Board of Appeals; Town of Milton, Massachusetts; Milton Conservation Commission; Milton Board of Appeals, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

750 F.3d 30

GREEN MOUNTAIN REALTY CORP., Plaintiff, Appellant,

v.John S. LEONARD, Member and Chairman of Town of Milton Board of Appeals; Sara L. Harnish, Member of Town of Milton Board of Appeals; Virginia M. Donahue King, Member of Town of Milton Board of Appeals; Brian M. Hurley, Member of Town of Milton Board of Appeals; Jeffrey B. Mullan, Member of Town of Milton Board of Appeals; Francis C. O'Brien, Member of Town of Milton Board of Appeals; Emanuel Alves, Member of Town of Milton Board of Appeals; Steven M. Lundbohm, Member of Town of Milton Board of Appeals; Town of Milton, Massachusetts; Milton Conservation Commission; Milton Board of Appeals, Defendants, Appellees.

No. 13–2163.

United States Court of Appeals, First Circuit.

April 23, 2014.

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

Brandon H. Moss, with whom John P. Flynn and Murphy, Hesse, Toomey & Lehane, LLP were on brief, for appellees.

Before THOMPSON, Circuit Judge, SOUTER, Associate Justice,^*STAHL, Circuit Judge.

THOMPSON, Circuit Judge.

This dispute over the location and height of a proposed cellular phone tower has been ongoing since 2009 and is now before us for the second time. In a nutshell, appellant Green Mountain Realty Corp. (“GMR”) originally sought to erect a 140–foot cell phone tower between Interstate Route 93 South (“I–93”) and the on-ramp by Exit 3 in Milton, Massachusetts. The tower's asserted purpose was to fill a significantgap in the wireless coverage provided by T–Mobile's and MetroPCS's networks. Milton's Board of Appeals (“BOA”) and Conservation Commission (“MCC”)—the two local entities whose approval GMR needed before it could begin construction—rejected the 140–foot proposed tower. GMR turned to the federal courts, asserting the denials were preempted by federal law and naming as defendants the BOA, the MCC, the individual members of both, and the Town of Milton itself (collectively, “Milton”). The district court granted summary judgment to Milton, finding that the BOA's and MCC's decisions were supported by substantial evidence in the administrative record, and GMR appealed to us.

Addressing this matter the first time, we upheld the “substantial evidence” findings but remanded to the district court with instructions to consider whether the local authorities' denials resulted in an “effective prohibition” of personal wireless services in contravention of the federal Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(i)(II). The parties filed cross-motions for summary judgment upon their return to the district court. After holding a hearing, the district court learned that T–Mobile and MetroPCS had merged into a single company—T–Mobile USA—and ordered the parties to brief whether and how the merger affected the pending cross-motions.

GMR then submitted evidence indicating that, as a result of the merger, a shorter tower would suffice to eliminate the coverage gap in T–Mobile's network. Milton took the position that GMR must file a brand new application, as the original request was for a 140–foot tower only. The district court denied GMR's motion for summary judgment and granted Milton's, thereafter entering judgment in favor of Milton and triggering GMR's second appeal to this Court.

Having carefully reviewed the record, we conclude the district court erred when it granted Milton's motion for summary judgment. Based on the summary judgment record and the supplemental materials bearing on the effective prohibition claim, a reasonable finder of fact could have found that the BOA's and MCC's denials rejected the only feasible plan for remedying the coverage gap and, therefore, constituted an unlawful effective prohibition of T–Mobile's provision of wireless services unless GMR was allowed to build a cell phone tower that was somewhere between 90 and 120 feet tall. Accordingly, we affirm the district court's denial of GMR's motion for summary judgment, reverse its grant of summary judgment in favor of Milton, vacate the judgment in Milton's favor, and remand for further proceedings consistent with this opinion.

I.BACKGROUND

We previously set forth many of the background facts in Green Mountain Realty Corp. v. Leonard, 688 F.3d 40 (1st Cir.2012). In order to provide context to the instant appeal, we sketch the outline of what has already transpired, at least insofar as is relevant here. Curious readers seeking additional details—and they are myriad—should refer directly to our 2012 opinion.

a. The Initial Proposal

GMR is not a telecommunications provider. Instead, it owns and manages personal wireless communications facilities (“PWCFs”), known in common parlance as cell phone towers. It makes money by leasing space on those towers to wireless carriers, who in turn place antennas on the towers to provide wireless coverage for their customers. Since 2008, GMR has leased from the Commonwealth of Massachusetts an unzoned, undeveloped, triangular plot of land approximately 2,700 square feet in area and located between I–93 South and the on-ramp at Exit 3 (“the Site”). The Site is located close to the Blue Hills Reservation and the Carisbrooke Road neighborhood in the town of Milton.

GMR leased the Site with the intention of putting up a cell phone tower to improve wireless coverage in the area around Exit 3. Wireless carriers T–Mobile and MetroPCS had given assurances to GMR, in the form of letters of intent, that they would place antennas on the new tower. Both companies were desirous of this location because it would allow them to improve their wireless coverage around Exit 3, an area in which each had identified a significant coverage gap that resulted in dropped calls when customers entered the area and an inability to reliably place calls from within the area of inadequate service. In order to begin construction, however, GMR needed to win approval from both the BOA and the MCC.

GMR applied to the BOA in May of 2009 for permission to build a 140–foot cell phone tower on the Site. According to its application, the height was necessary to accommodate video equipment from the Massachusetts Highway Department, along with five antenna mounts to be used by up to five different wireless carriers. GMR also submitted evidence tending to show that both T–Mobile and MetroPCS had significant coverage gaps in the area near Exit 3 and that the Site was the only feasible location on which a cell phone tower could be placed to fill in the gaps. There was some community opposition to the proposal that appears to have been based primarily on aesthetic concerns: the objectors were upset that the tower would have been visible from multiple locations in the Blue Hills Reservation, as well as from within the Carisbrooke Road neighborhood.

The BOA held several public hearings through the summer of 2009, with objectors maintaining that “the need for the tower did not outweigh the significant negative aesthetic effects.” Green Mountain Realty, 688 F.3d at 46. On August 19, 2009, the BOA voted to deny the application and issued a written opinion on September 24, 2009, which “emphasized the public opposition to the proposed tower and the importance of protecting the character and aesthetic beauty of the Blue Hills Reservation.” Id. In a similar vein, the BOA found the proposed 140–foot tower could be seen from the Carisbrooke Road neighborhood and “would substantially detract from the character of the neighborhood.” Id. (internal quotation marks omitted). The BOA further found that “existing [wireless] coverage while not perfect is reasonable and adequate under all of the circumstances.” Id. (internal quotation marks omitted). Finding that GMR failed to demonstrate its desired tower would “promote[ ] the safety, welfare, or aesthetic interests of the Town of Milton,” the BOA concluded the proposal was “not in harmony with the [zoning] Bylaw” and denied GMR's application. Id. (internal quotation marks omitted).

While all this was going on, GMR was also attempting to win approval from the MCC, another necessary prerequisite to construction because the Site is considered to be in a riverfront area given its proximity to the Blue Hills River. Green Mountain Realty, 688 F.3d at 47. The MCC ultimately denied GMR's application on September 19, 2009, finding that it could not approve the proposal given GMR's failure to provide it with any information about potential alternative sites. Id. at 48. Like the BOA, the MCC also cited aesthetic reasons: reiterating that it has a role in preserving aesthetics, the MCC explicitly stated that “the height of the tower was, and remains, an important factor for consideration.” Id. (internal quotation marks omitted). The MCC further called GMR to task for supposedly failing to provide requested data about whether a shorter tower would solve the coverage gap. Id. It noted that because the Site was already in a “degraded” condition as a result of I–93, the wetlands there “are in greater need of protection, rather than less.” Id. (internal quotation marks omitted). Accordingly, and like the BOA before it, the MCC denied GMR's application to build a 140–foot cell phone tower. Id.

b. Federal Litigation Begins

GMR appealed to the district court, arguing that the BOA and MCC decisions violated various provisions of the Telecommunications Act. Green Mountain Realty, 688 F.3d at 48. First, GMR argued that the two denials were not based on substantial evidence in contravention of the requirement that “[a]ny decision ... to deny a request to place, construct, or modify personal wireless service facilities shall be ... supported by substantial evidence contained in the written record.” Id. at 49 (quoting 47 U.S.C. § 332(c)(7)(B)(iii)) (internal quotation marks omitted). GMR further argued that the denials ran afoul of the Act's ban of local decisions that “prohibit or have the effect of prohibiting the provision of personal wireless...