Nextel Com. of Mid-Atlantic v. Town of Wayland Ma, CIV.A. 02-10260-REK.
| Decision Date | 22 November 2002 |
| Docket Number | No. CIV.A. 02-10260-REK.,CIV.A. 02-10260-REK. |
| Citation | 231 F.Supp.2d 396 |
| Parties | NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC. d/b/a Nextel Communications, Plaintiff v. THE TOWN OF WAYLAND MASSACHUSETTS, the Zoning Board of Appeals of the Town of Wayland, Massachusetts and Lawrence K. Glick, Eric Goldberg, James Grumbach, Carolyn Klein and Mary L. Lentz in their capacities as Members of the Zoning Board of Appeals of the Town of Wayland, Massachusetts, Defendants |
| Court | U.S. District Court — District of Massachusetts |
Steven E. Grill, Esq., Devine, Millimet & Branch, Manchester, NH, for Plaintiff.
Joel B. Bard, Kopelman & Paige, P.C., Patricia A. Cantor, Kopelman and Paige. P.C., Boston, MA, for Defendants.
Pending for decision are the following motions:
(1) Plaintiff's Motion for Summary Judgment (Docket No. 20, filed August 15, 2002). Defendants have filed an opposition. (Docket No. 29, filed September 18, 2002).
(2) Defendants' Cross Motion for Summary Judgment (Docket No. 28, filed September 18, 2002). Plaintiffs have filed an opposition. (Docket No. 37, filed October 11, 2002).
Nextel is a provider of personal wireless services. In or about 1994, Nextel sought authorization from the Town of Wayland to construct a monopole antenna tower on a wooded parcel of land in the Town, but such authorization was denied. Nextel then obtained permission from Boston Edison Electric Company ("BECO") to attach antennas to an existing 97' tall electric transmission tower ("BECO 111"), with the goal of providing coverage to central Wayland. Nextel filed an application with the Wayland Planning Board for review of the proposed antenna facility. On June 2, 1998, the Board issued an "approval not required" determination ("ANR"), thereby "freezing" the applicable zoning regulations, making at least some types of future amendments to the zoning regulations inapplicable to the subject site.
On June 4, 1998, the Town enacted a twelve-month moratorium, banning new construction of telecommunications facilities, including Nextel's desired construction of antennas on BECO 111, for that time period. This moratorium was later found to be unlawful by the Massachusetts Attorney general, but the Town responded on December 2, 1998 by enacting a six-month moratorium.
Three times the Town repealed its existing by-law provisions governing wireless communication facilities and replaced them with new or modified provisions. Nextel, whose application for the BECO site was still pending, continued to wait until the Town made these changes to its zoning by-laws. After the changes, the area in which the BECO site is located was no longer zoned for wireless communication facilities.
Nextel filed an application for a zoning variance from the general thirty-five foot height restriction contained in the new By-Law in order to install its antennas atop the existing 97' tower. The Wayland Zoning Board of Appeals ("ZBA" or "the Board") held five public hearings on Nextel's application, stretching over an eight-month period beginning on May 1, 2001, and ending on January 15, 2002. The ZBA voted to deny Nextel's application for the variance. This decision was reduced to writing and filed with the Town Clerk on January 29, 2002.
On February 15, 2002, Nextel filed a complaint in this court seeking declaratory and injunctive relief based on three claims for relief: the denial of permission to build the proposed facility was not supported by substantial evidence contained in a written record (Count I); the Town's regulatory scheme, as applied by the ZBA, has the effect of prohibiting Nextel from providing wireless services (Count II); and, the Town's regulatory scheme, as applied by the ZBA, is arbitrary, capricious, unreasonable and in excess of the authority lawfully granted to the Town or its ZBA under the laws of the Commonwealth of Massachusetts (Count III). Both sides to this lawsuit now seek summary judgment on each of these Counts.
Summary judgment should be granted only where the court, viewing the evidence in the light most favorable to the nonmoving party, determines that no genuine dispute of material fact exists. See Fed. R.Civ.P. 56. The movant has the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions" of the record showing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Then the non-moving party must demonstrate that "every essential element of its claim or defense is at least trialworthy." Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir.1991) (italics in original).
A dispute is genuine if it "may reasonably be resolved in favor of either party." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997). Facts are "material" if they possess "the capacity to sway the outcome of litigation under the applicable law." Id. The facts in genuine dispute must be significantly probative in order for summary judgment to be denied; "conclusory allegations, improbable inferences, and unsupported speculation will not suffice." Id.
Because plaintiff and defendants filed cross-motions for summary judgment, each filed a statement of undisputed facts. Those facts from each statement that have been admitted, or not properly disputed, are directly quoted as follows:
A. Nextel's undisputed facts, admitted by defendants.
1. [Nextel] is a provider of enhanced specialized mobile radio services, a type of commercial mobile radio services ("CMRS") which are within the definition of "personal wireless services" (hereinafter "PWS") set forth at 47 U.S.C. § 332(c)(7)(C)(i).
2. Nextel is licensed by the Federal Communications Commission ("FCC") to provide CMRS in certain markets, including Massachusetts.
3. Nextel's PWS network is entirely digital and employs time division multiple access technology. The network requires deployment of antennas throughout the area to be covered, which are connected to receivers and transmitters that operate in a limited geographic area known as a "cell." Nextel's portable telephones operate by transmitting and receiving low power radio frequence signals to and from these cell sites. The signals are transferred to and from ground telephone lines and routed to their destinations by sophisticated electronic equipment.
4. The size of the area served by each cell site is dependent on several factors, including the number of antennas used, the height at which the antennas are deployed, the topography of the land, vegetative cover and natural or man-made obstruction in the area. As customers move throughout the service area, the transmission from the portable unit is automatically transferred to the closest Nextel facility without interruption in service, provided that there is overlapping coverage from the cells. In order for Nextel's PWS network to function effectively, there must be some overlapping coverage between adjoining cells to allow for the transfer or "hand-off" of calls from one cell to another and to avoid disconnection or "dropped" calls. In other words, Nextel's antennas must be strategically located within the targeted area in order to provide sufficient radio frequency coverage, connectivity with surrounding sites, and adequate service. Nextel's antennas also must be located high enough above ground level to allow transmission (or "propagation") of the radio frequency signals above trees, buildings and natural or man-made other structures that may obstruct the signals. Areas without adequate radio frequency coverage have substandard or no wireless service.
5. Nextel has had a need since at least 1994 for coverage in the central part of Wayland, an area which includes important commuter thoroughfares such as Routes 20 and 27. Nextel needs to install antenna facilities in this area in order to provide adequate service.
6. In or about 1994, Nextel sought authorization from the Town to construct a monopole antenna tower on a wooded parcel of land in the Town, but such authorization was denied.
7. Nextel then obtained permission from Boston Edison Electric Company ("BECO") to attach antennas to an existing 97' tall electric transmission tower, with the goal of providing coverage to central Wayland while minimizing the visual impact caused by such a facility.
8. ... [Nextel filed an application with the Wayland Planning Board for review of the proposed antenna facility.] On June 2, 1998, the Planning Board issued an "approval not required" determination ("ANR"), which amounted to a determination that Nextel's proposal was exempt from subdivision regulations and also operated to "freeze" the applicable zoning regulations, i.e., to make at least certain types of future amendments to the land use regulations inapplicable to the subject site. On June 4, 1998, however, before Nextel could obtain final site plan approval, the Town enacted a twelve-month moratorium which banned all construction of wireless telecommunications facilities. This moratorium was later found to be unlawful by the Massachusetts Attorney General, but the Town responded on December 2, 1998 by enacting a six-month moratorium, thus extending the ban on new construction of telecommunications facilities, even though Nextel and as many as three other wireless carriers were actively seeking to construct such facilities in Wayland at the time.
9. On May 3, 1999, the Town repealed its existing by-law provisions governing wireless communication facilities and replaced them with new provisions, which in turn were modified again on November 17, 1999 and yet again at the Town's Annual Town Meeting in 2000. Nextel, whose application for the BECO site was still pending, continued to wait while the Town made these changes to its zoning by-law and, although it had...
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