Independent Wireless One v. Town of Charlotte

• Decision Date: 17 January 2003
• Docket Number: No. 2:02-CV-261.,2:02-CV-261.
• Citation: 242 F.Supp.2d 409
• Parties: INDEPENDENT WIRELESS ONE CORPORATION and Independent Wireless One Leased Realty Corporation, Plaintiffs, v. TOWN OF CHARLOTTE, Town of Charlotte Zoning Board of Adjustment, Town of Charlotte Planning Commission and Town of Charlotte Zoning Administrator, Defendants.
• Court: U.S. District Court — District of Vermont

242 F.Supp.2d 409

INDEPENDENT WIRELESS ONE CORPORATION and Independent Wireless One Leased Realty Corporation, Plaintiffs, v. TOWN OF CHARLOTTE, Town of Charlotte Zoning Board of Adjustment, Town of Charlotte Planning Commission and Town of Charlotte Zoning Administrator, Defendants.

No. 2:02-CV-261.

United States District Court, D. Vermont.

January 17, 2003.

Andrew D. Manitsky, Gravel and Shea, Burlington, VT, John F. Clark, Perkins Coie, LLP, Washington, DC, for Plaintiffs.

James F. Carroll, English, Carroll & Ritter, P.C., Middlebury, VT, Robert Earle Fletcher, Jr., Joseph S. McLean, Stitzel, Page & Fletcher, PC, Burlington, VT, for Defendants.

OPINION AND ORDER

(Paper 3)

NIEDERMEIER, United States Magistrate Judge.

Plaintiffs Independent Wireless One Corporation and Independent Wireless One Leased Realty Corporation ("IWO") have brought this action against Defendants Town of Charlotte, Town of Charlotte Zoning Board of Adjustment, Town of Charlotte Planning Commission, and Town of Charlotte Zoning Administrator ("Charlotte") under the Telecommunications Act of 1996, 47 U.S.C. § 332(c), appealing two separate decisions denying IWO's applications for conditional use approval to install operate, and maintain telecommunications antennas on privately owned silos in the Town. This case is currently before the Court on IWO's motion for a preliminary injunction ordering Charlotte to issue all necessary permits for construction and maintenance of the antennas for the duration of this proceeding.

For the following reasons, IWO's Motion is GRANTED.

Background

In April 2002, IWO, which is engaged in the business of designing, constructing and operating Sprint PCS's Service Area Network for Vermont, sought two conditional use permits from the Charlotte Zoning Board of Adjustment ("ZBA") in order to install an antenna and associated concrete pad on each of two existing farm silos (with no increase in height or any other change to the structures (silos)).¹ These permits were denied on September 9 and September 18, 2002.²

Under the Charlotte Zoning Bylaws, the ZBA may not grant an application for a conditional use permit unless the application meets the requirements of § 6.4(E) & (F). The General Standards, set out in § 6.4(E) provide:

A permit shall be granted by the Board of Adjustment after the applicant presents information to demonstrate that the proposal will not adversely affect the following:

1. The capacity of existing planned community facilities or services

2. The character of the neighborhood, area, or district affected

3. Traffic on the roads and highways in the vicinity

4. The Town Plan and all Town regulations in effect

5. The utilization of renewable energy resources

6. Existing water supplies and aquifers

7. Views and vistas, natural areas, wildlife habitat, productive woodlands, historic sites, and agricultural land, as designated in the Town Plan.

(Charlotte Zoning Bylaws, § 6.4(E), Paper 16, exhibit 1.) The ZBA found that each of IWO's applications met all these general conditional use standards. (Paper 1, exhibit C at 5-7; exhibit D at 4-6.)

The ZBA determined that only two of the Specific Standards, set out in § 6.4(F) applied to IWO's applications. These provisions provide:

A permit shall be granted only upon a finding by the Board of Adjustment that the following specific standards, in addition to the standards and requirements in the district regulations, will be met:

1. Obnoxious or excessive noise, smoke, vibration, dust, glare, odors, electrical interference or heat that is detectable at the boundaries of the lot shall not be generated...

7. In determining the appropriateness of the use in the district, the Board shall consider the scale of the proposal in relation to the scale of existing uses and buildings and the effect of the use on the continued enjoyment and access to existing and approved uses in the vicinity of the> proposed use.

(Charlotte Zoning Bylaws, § 6.4(E), Paper 16, exhibit 1.) The ZBA found that IWO met these standards in both of its applications. (Paper 1, exhibit C at 5-7; exhibit D at 4-6.)

In addition to meeting the requirements of § 6.4(E) and (F), an applicant for a conditional use permit must meet specific requirements set out in Chapter 9 of the Charlotte Zoning Bylaws. The requirements of § 9.6.1(A)-(R) relate to information that the applicant must include with the application. (Charlotte Zoning Bylaws § 9.6.1, Paper 16, exhibit 1.) The ZBA found that IWO had met all of the requirements of § 9.6.1 on each of its applications.³ (Paper 1, exhibit C at app. A; exhibit D at app. A.) The ZBA also addressed the requirements in § 9.8, relating to general project requirements and standards. (Charlotte Zoning Bylaws, § 9.8, Paper 16, exhibit 1 at 61-62.) The ZBA found that §§ 9.8(A) and 9.8(E) were not applicable to IWO's applications and that the provisions of § 9.8(G) had been met. (Paper 1, exhibit C at 9; exhibit D at 8.) The ZBA also found that §§ 9.8(B)-9.8(D) and § 9.8(F) either had been or would be reviewed by the Planning Commission in conjunction with the applications. (Paper 1, exhibit C at 9; exhibit D at 8.) Finally, the ZBA found, upon advice of counsel, that the provisions of § 9.8(H) were either inapplicable or unenforceable under the Telecommunications Act of 1996 ("the TCA") and therefore could not be applied to IWO's applications.⁴

The ZBA ultimately denied IWO's applications because IWO failed to satisfy the requirements of § 9.7 of the Charlotte Zoning Bylaws. This section states: Section 9.7 Evidence of Need

A. Existing Coverage: Applicant shall provide written documentation to the Zoning Board demonstrating that existing telecommunications facility sites within a 30-mile radius of the proposed site cannot reasonably be made to provide adequate coverage and/or adequate capacity to areas within the town which lack such coverage and/or capacity. The documentation shall include, for each telecommunications facility site listed which is owned or operated by the applicant, the exact location (in longitude and latitude, to degrees, minutes, and seconds to the nearest tenth), ground elevation, height of tower or structure, type of antennas, antenna gain, height of antennas on tower or structure, output frequency, number of channels, power input and maximum power output per channel. Potential adjustments to these existing telecommunications facility sites, including changes in antenna type, orientation, gain, height or power output shall be specified. Tiled coverage plots showing each of these telecommunications facility sites, as they exist, and with adjustments as above, shall be provided as part of the application.

B. Use of Repeaters: The applicant shall demonstrate that it is not reasonably able to create adequate coverage in the Town of Charlotte from wireless base stations located in other towns or to fill holes within the area of otherwise adequate coverage by use of repeaters. Applicants shall detail the number, location, power output, and coverage of any proposed Repeaters in their system and provide engineering data to justify their use.

C. Five-Year Plan: All applications shall be accompanied by a written five-year plan for the utilization of the proposed facilities. This plan should include justification for capacity in excess of immediate needs, as well as plans for any further development within the town.

(Charlotte Zoning Bylaws § 9.7, Paper 16, exhibit 1 at 60-61.) In denying IWO's applications, the ZBA stated that "IWO presented credible evidence regarding the coverage that currently exists from its facilities, the coverage that it seeks, and (during the reopened proceedings) the coverage that it could purportedly obtain from collocating on existing telecommunications facilities."⁵ (Paper 1, exhibit C at 8; exhibit D at 7.) In other words, the ZBA does not seem to dispute the fact that IWO has a gap in the service it currently provides.⁶ The ZBA found, however, that § 9.7 was intended "to minimize the proliferation of telecommunications facilities once adequate coverage has been provided within the Town. Given the coverage provided by Verizon and Cellular One, there is no significant gap in coverage that necessitates the provision of redundant service by IWO." (Paper 1, exhibit C at 9; exhibit D at 8.) In addition, the ZBA noted that many of IWO's customers could be serviced through roaming, and that "IWO has not explained why service provided through roaming is unreasonable or inadequate." (Paper 1, exhibit C at 9; exhibit D at 8.) Accordingly, the ZBA concluded that "adequate personal wireless service coverage already exists in Charlotte," and denied IWO's applications solely on the basis of its failure to meet the standards set out in § 9.7. (Id.)

IWO filed an action against Charlotte in this Court on October 9, 2002, challenging both denials under the TCA. On November 19, 2002, IWO filed a motion for a preliminary injunction ordering Charlotte to issue all necessary permits to install and operate the antennas.

Discussion

1. Telecommunications Act of 1996

The TCA was intended "to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition ..." H.R. Conf. Rep. No. 104-58, at 206 (1996). Congress sought to strike "a deliberate compromise between two competing aims-to facilitate nationally the growth of wireless telephone service and to maintain substantial local control of siting of towers." Patterson v. Omnipoint Communications, Inc., 122 F.Supp.2d 222, 226 (D.Mass.2000) (quoting Town of Amherst, New Hampshire v. Omnipoint, 173 F.3d 9, 13 (1st Cir.1999)). To achieve this goal, Congress preserved local zoning authority with respect to the siting of wireless facilities, but placed specific...