Industrial Communications & Electronics v. Town of Falmouth, Civil No. 98-397-P-H (D. Me. 5/9/2000)
| Decision Date | 09 May 2000 |
| Docket Number | Civil No. 98-397-P-H.,Civil No. 99-96-P-H. |
| Parties | INDUSTRIAL COMMUNICATIONS AND ELECTRONICS, INC., Plaintiff, v. TOWN OF FALMOUTH, ET AL., Defendants. |
| Court | U.S. District Court — District of Maine |
INDUSTRIAL COMMUNICATIONS AND PAUL MCDONALD, ESQ. ELECTRONICS, INC., plaintiff, CAPE ELIZABETH, ME.
JOHN GRAUSTEIN, ESQ., defendant WILLIAM L. PLOUFFE, ESQ., AMY K. TCHAO, ESQ., DRUMMOND, WOODSUM, PLIMPTON & MACMAHON, PORTLAND, ME.
FALMOUTH ZONING BOARD OF JOHN GRAUSTEIN, ESQ. APPEALS WILLIAM L. PLOUFFE, ESQ., defendant AMY K. TCHAO, ESQ.
PAUL GRIESBACH, In his JOHN GRAUSTEIN, ESQ. capacity as the Town of Falmouth WILLIAM L. PLOUFFE, ESQ. Code Enforcement Officer, defendant.
WILFRED AUDET, JR., In his JOHN GRAUSTEIN, ESQ. capacity as a member of the WILLIAM L. PLOUFFE, ESQ. Town of Falmouth Zoning Board of Appeals, defendant.
HUGH SMITH, In his JOHN GRAUSTEIN, ESQ., capacity as a member of the WILLIAM L. PLOUFFE, ESQ., Town of Falmouth Zoning Board of Appeals, defendant.
KATHLEEN SILVERMAN, In her JOHN GRAUSTEIN, ESQ. capacity as a member of the WILLIAM L. PLOUFFE, ESQ., Town of Falmouth Zoning Board of Appeals, defendant.
MICHAEL PEARCE, In his JOHN GRAUSTEIN, ESQ. capacity as a member of the WILLIAM L. PLOUFFE, ESQ., Town of Falmouth Zoning Board of Appeals, defendant.
DAVID McCONNELL, In his JOHN GRAUSTEIN, ESQ. capacity as a member of the WILLIAM L. PLOUFFE, ESQ., Town of Falmouth Zoning Board of Appeals, defendant.
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
These two lawsuits arise out of the Falmouth Zoning Board's denials of conditional use permits and variances to Industrial Communications and Electronics, Inc. ("ICE") for a transmission tower. ICE claims that Falmouth has violated the Telecommunications Act of 1996 (the "Act"), 47 U.S.C.A. § 332(c)(7)(B) (1999), by failing to base its decisions upon substantial evidence contained in a written record; prohibiting or effectively prohibiting personal wireless service facilities in Falmouth; and unreasonably discriminating among providers of functionally equivalent services. The Falmouth defendants' motions for summary judgment on all Counts of the two Complaints are GRANTED and ICE's motion for summary judgment on the substantial evidence claim is DENIED.
Since 1990, Falmouth has had a special section of its zoning ordinance devoted to transmission towers.1 Under Falmouth's ordinance, transmission towers are permitted as a conditional use in the Farm and Forest District as long as the tower base sits at least 400' above sea level. Town of Falmouth's Zoning and Site Plan Review Ordinance ("ordinance") §§ 3.2, 5.33(a) (1990).
On September 15, 1997, ICE purchased from Richard Berry approximately 2.35 acres of land (the "site") located off Hardy Road in the Farm and Forest District. At the time, there were two equipment shelters and four communications towers-two guyed towers of approximately 110 feet (the "110' towers"), one tower of fifty feet (the "50' tower"), and one tower of 170 feet (the "170' tower") on the site. There are four other towers on adjacent lots. All of the towers in the area were constructed before the tower portion of the ordinance was adopted in 1990. From the date of the purchase, ICE broadcast a community repeater service2 and maintained collocated3 antennas for a paging service on the 170' Tower. ICE chose the site for various reasons, including its pre-existing use as a communications tower facility, its coverage patterns, and its availability.
In October and December 1997, the Federal Communication Commission ("FCC") licensed ICE to provide specialized mobile radio services ("SMRS")4 at a number of channels on the 900 MHz frequency band in the Boston Major Trading Area ("MTA"), which includes the State of Maine. According to FCC regulations, ICE must operate a sufficient number of base stations to provide coverage to at least one-third of the population of the Boston MTA within three years, and at least two-thirds of the Boston MTA population in five years, or else it will forfeit a significant portion of its license. See 47 C.F.R. § 90.665(c) & (d) (2000).
Before purchasing the site, ICE did not prepare a written analysis concerning the size, height, and strength of the existing towers or the demographics of the greater Portland market, or the existing competition. It did not perform a structural analysis of the towers, although it did perform a visual inspection. When ICE purchased the Hardy Road site, it also purchased Berry's equipment and FCC license to provide SMRS in the 800 MHz frequency band which, at that time, was being broadcast from a tower Berry owned at 351 Blackstrap Road. ICE planned to move the 800 MHz operation to its Hardy Road site. Fenton Dep. at 14.5 At or about the time ICE purchased the Hardy Road site, ICE's President, David Fenton, Jr., knew that ICE would need a new tower because the existing towers would not support the number of antennas needed to add the 900 MHz system to an 800 MHz system. Fenton Dep. at 23-24, 27-28.
In January 1998, a severe ice storm struck the area and damaged the 170' tower, toppling approximately one-third of the tower. After the storm, ICE mounted its paging service antennas and community repeater antennas on one of the undamaged towers. In February or March 1998, ICE attached four antennas to the damaged tower for 900 MHz SMRS. While these antennas emit a maintenance signal strong enough to "protect" ICE's FCC 900 MHz licenses, they are not strong enough for commercial use. During the spring of 1998, ICE sold to Nextel, as part of a nationwide deal, its right to use the 800 MHz frequency, the 800 MHz frequency equipment at the Blackstrap tower location, and its customer list for 800 MHz SMRS. After the ice storm and at Nextel's request, ICE attached two antennas to the damaged tower in order to preserve Nextel's 800 MHz licenses. While these antennas did not operate commercially, they could be made commercially operable.
On May 15, 1998, ICE applied to the Falmouth Zoning Board for permission to remove all four towers and replace them with one 200' tower that would use some of the supports (guy wire anchors and base) of one of the existing towers. ICE requested a conditional use permit, relying upon a safety provision (§ 5.33(g)) of the zoning ordinance. ICE later amended its application to request a variance for undue hardship if the Board decided to deny the conditional use permit.6 The Board denied both requests and issued written findings of fact and reasons for its decision. In essence, the Board decided that the safety provision did not permit the new tower because (1) the safety provision permits necessary "structural alterations," whereas the proposed structure was not an "alteration" but a new tower; (2) there was no evidence that the existing towers were not in compliance with safety regulations; and (3) the new tower would violate the setback requirement (§ 5.33(b))7 unless a variance were granted. The Board concluded that a variance should not be granted because ICE failed to prove three of the necessary elements of a variance-that it could not make a reasonable return on its property, that its need for a variance was due to the unique nature of the property, and that ICE did not create its own hardship.
ICE submitted a second application for a conditional use permit on January 4, 1999. This time ICE proposed to tear down the four towers and rebuild the 170' tower, claiming a permissible expansion of a grandfathered non-conforming use under section 6.2(c)8 and alternatively requesting a variance. However, ICE planned to build the 170' tower not where it currently existed, but "approximately" on the site of one of the 110' towers. The Board rejected ICE's proposal, concluding that (1) the proposed 170' tower was a new tower, not an alteration; (2) ICE still did not demonstrate that the existing towers were not safety compliant; (3) the 170' tower was not a permitted expansion of a grandfathered use; and (4) ICE failed the same variance requirements as in its earlier application.
The Telecommunications Act of 1996 (the "Act"), 47 U.S.C.A. §§ 151 et seq. (1996), was designed to "encourage the rapid deployment of new telecommunications technology." Reno v. American Civil Liberties Union, 521 U.S. 844, 857 (1997). The specific provision involved in this case, 47 U.S.C.A. § 332(c)(7), "is a deliberate compromise between two competing aims-to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers." Town of Amherst v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 13 (1999).
The Act requires that any decision denying "a request to place, construct or modify personal wireless service facilities shall be in writing9 and supported by substantial evidence contained in a written record." 47 U.S.C.A. § 332(c)(7)(B)(iii) (1999). The parties do not dispute what was in the written record before the Board. They do dispute the significance of various parts of the record and the permissibility of the Board's interpretation of the relevant ordinance provisions. This seems to be a purely state law issue that belongs in state courts. Nevertheless, Congress has directed that federal courts become involved. 47 U.S.C.A. § 332(c)(7)(B)(v) (1999).
According to the First Circuit, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Penobscot Air Servs., Ltd. v. Federal Aviation Admin., 164 F.3d 713, 718 (1st Cir. 1999), cited in Amherst, 173 F.3d at 16. While the reviewing court...
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