National Tower v. Plainville Zoning Bd. of Appeals, 01-2472.
| Decision Date | 18 July 2002 |
| Docket Number | No. 01-2472.,01-2472. |
| Parties | NATIONAL TOWER, LLC; Omnipoint Communications, Inc., Plaintiffs, Appellees, v. PLAINVILLE ZONING BOARD OF APPEALS, Frank A. Frey Jr., Walter S. Lewicki, Clay Conrad, Philip Sias, Leland Sullivan, Defendants, Appellants. |
| Court | U.S. Court of Appeals — First Circuit |
John P. Lee with whom Maureen A. Lee was on brief for appellants.
Brian C. Levey with whom Marisa L. Pizzi and Bowditch & Dewey, LLP were on brief for appellees.
Before SELYA, LYNCH, and HOWARD, Circuit Judges.
The federal courts now routinely hear cases brought under the Telecommunications Act of 1996 by those who wish to construct cellular antenna towers and have been denied permission to do so by local town officials. Here, the Zoning Board of Appeals of the Town of Plainville, Massachusetts denied the needed zoning permits and variances to National Tower and Omnipoint Communications (collectively "Omnipoint").
Omnipoint sued under 47 U.S.C. § 332(c)(7)(B)(v), which provides a federal cause of action to a person adversely affected by a state or local decision that violates the 1996 Act. It also raised claims under state law and under 42 U.S.C. § 1983. The district court found that defendants had violated the Act, and granted Omnipoint partial1 summary judgment. Nat'l Tower, LLC v. Frey, 164 F.Supp.2d 185 (D.Mass.2001). The court concluded that the actions of the board effectively prohibited the provision of seamless wireless service in Plainville in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). As a remedy, the court ordered issuance of the variances and permit. We affirm.
Because the district court granted summary judgment, we review the facts taking all inferences in the light most favorable to the board. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st Cir. 2002). The material facts as set forth in the district court's opinion are essentially undisputed, and so we adopt them and add some others from the record. The parties do, however, dispute the inferences to be drawn from those facts.
In June 2000, Omnipoint applied to the board for variances from the dimensional by-laws (prohibiting both multiple uses on one lot and structures over two stories) and from the by-law prohibiting radio transmission use. Omnipoint needed these variances in order to erect a 170-foot-tall "lattice" transmission tower on approximately 5000 square feet of a two-and-one-half-acre parcel at 75 Washington Street in Plainville. The site abuts property owned by the New England Power Company, which contains electric transmission lines and poles and is developed for public utility use.
Omnipoint's objective was to close a two-mile (non-contiguous) gap in its cellular coverage along the heavily traveled highway Routes 1 and 106. In the vicinity of the coverage gap, approximately 17,000 vehicles travel daily along Route 1 and 10,000 along Route 106. Because of the gap in coverage, a cellular user either cannot connect or cannot maintain a connection. The proposed site lies in a General Commercial District (a "CB District"), and is partially covered by a Watershed Protection Overlay District. Under the town by-law, a radio tower is a prohibited use in a CB District and requires a special permit in a Watershed Protection District. Plainville, Mass. Zoning By-law ch. III, § 2.8 (1999). Moreover, a structure in a CB District may not exceed two stories in height. An engineer working for Omnipoint testified, and the board does not dispute, that a two-story tower in compliance with the by-law would not close the gap. The board may, however, grant both use and dimensional variances for reasons consistent with the state zoning law. See Mass. Gen. Laws ch. 40A, §§ 10, 14 (2000). Similarly, the board may grant a special use permit in a Watershed Protection District so long as it makes certain findings, primarily that there will be no adverse impact on the watershed as a result. By-law ch. III, § 3.12.5.
Omnipoint conducted computer simulations and drive tests to identify possible sites for a tower to rectify the break in its coverage. An investigation of the sites thus identified led to the selection of the disputed site. All other possible sites were in the same general area and therefore subject to the same zoning restrictions.2 This evidence was submitted to the board, primarily through Omnipoint's application for the use and dimensional variances. In its initial application Omnipoint characterized its tower as a wireless communications facility. It sought the needed permits and variances, which the by-law permitted the town to grant. See By-law ch. III, § 1.4.3.
The board published the requisite notice in a local newspaper, characterizing the application as being for a "radio tower." It held a hearing to consider the application on July 18. Midway through the hearing, the board determined that it had been mistaken in publishing notice of a proposed siting of a "radio tower" on the site. The board voted to suspend the hearing and readvertise the tower as a "public utility" (a permitted use in a CB District). The hearing resumed on September 26, with Omnipoint pressing its case for a dimensional variance. Omnipoint presented evidence of the coverage gap and evidence that it said showed there were no other suitable sites. The board at the hearing articulated no objections to the application, although several owners of abutting property did object.
Meanwhile, on August 24, 2000, Omnipoint filed an application for a special watershed permit. The hearing on this application was held on October 3, 2000. As at the hearing on the application for the dimensional variance, the board gave no indication that it might not grant the permit.
On October 17, the board unanimously rejected both applications. The board sent Omnipoint two letters dated October 27 explaining its decision. As to the request for the variances, the first letter stated:
In denying the variances, the Board found that in a CB Zoning District a wireless communications facility is not a use permitted as a matter of right or a use permitted by special permit and that a use variance, which would be required for the construction of such is not permitted under the Zoning By-Law. In this respect, the Board notes that Chapter 40A, Section 10 of the General Laws, provides in relevant part as follows:
"Except where local ordinances or by-laws shall expressly permit variances for use, no variance may authorize a use or activity not otherwise permitted in the district in which the land or structure is located."
The Zoning By-Law makes no provision for use variances. As the basis for its denial of the variances is that it has no legal authority to grant them, the Board made no further findings with respect to other objections made to the construction of such facility, particularly as to whether there exists any other location in the Town where such construction is permitted under the Zoning By-Law.
The reasons given in the second letter for the rejection of the watershed permit were as terse:
On this date, the Board denied the variances requested by the applicant on the grounds that in the underlying CB Zoning District a wireless communications facility is not a use permitted as a matter of right or a use permitted by special permit and that a use variance, which would be required for the construction of such facility, is not permitted under the Zoning By-Law. The construction of a wireless communications facility is clearly not permitted in the underlying CB Zoning District. Accordingly, it is not permitted by special permit in the overlay Watershed Protection District as the proposed use must meet the zoning requirements of both the underlying district and the overlay district.
This lawsuit, and appeal, followed.
The board appeals the order against it, making three arguments. It says the district court erred in granting Omnipoint's motion for partial summary judgment on the facts in this case because, first, the board's decisions do not prohibit or have the effect of prohibiting the provision of wireless services in the town; second, the board's decisions are supported by substantial evidence in a written record; and, third, the board's decisions do not unreasonably discriminate among providers of functionally equivalent services.
We reach only the first two of these arguments.
The Telecommunications Act is an exercise in cooperative federalism and represents a dramatic shift in the nature of telecommunications regulation. See generally Cablevision of Boston v. Pub. Improvement Comm'n, 184 F.3d 88, 97-100 (1st Cir.1999). The Act attempts, subject to five limitations, to preserve state and local authority over the placement and construction of facilities. 47 U.S.C. § 332(c)(7)(A)-(B) (1994 & Supp. II 1996); Town of Amherst, N.H. v. Omnipoint Communications Enters., 173 F.3d 9, 12 (1st Cir.1999). Several of those limiting provisions apply to this case.
The first relevant limitation, set forth in subsection (B)(i), provides that in regulating the placement and construction of facilities, a state or local government or instrumentality "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). It is undisputed that in this case there is a significant coverage gap. The argument that no tower is needed is unavailable to the town. Several courts have held that local zoning decisions and ordinances that prevent the closing of significant gaps in the availability of wireless services violate the statute. See Cellular Tel. Co. v. Zoning Bd. of Adjustment, 197 F.3d 64, 68-70 (3d Cir.1999); Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir.1999); Omnipoint Communications MB Operations, LLC v. Town of Lincoln, 107 F.Supp.2d 108, 117 (D.Mass.2000)....
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