Nextel Commun. of Mid-Atlantic v. Town of Randolph

Decision Date20 March 2002
Docket NumberNo. Civ.A. 00-12351-PBS.,Civ.A. 00-12351-PBS.
Citation193 F.Supp.2d 311
PartiesNEXTEL COMMUNICATIONS OF the MID-ATLANTIC, INC. d/b/a Nextel Communications, Plaintiff, v. The TOWN OF RANDOLPH, MASSACHUSETTS, The Board of Selectmen of the Town of Randolph, and James F. Burgess, Jr., Daniel L. Lam, William Alexopolous, Stephen J. Toomey, and Dorothy M. Burke, in Their Capacities as Members Of The Board of Selectmen of the Town of Randolph, Massachusetts, Defendants.
CourtU.S. District Court — District of Massachusetts

Matthew R. Johnson, Devine, Millimet & Branch, P.A., Manchester, NH, Steven E. Grill, Devine, Millimet & Branch, PA, Manchester, NH, for Plaintiff.

Paul R. DeRensis, Kimberly M. Saillant, Deutsch, Williamss, Brooks, DeRensis, Holland & Drachman, Boston, MA, for Defendants.

A. David Mazzone, Walter J. Skinner, United States District Court, Boston, MA, for ADR Providers.


SARIS, District Judge.

The Town of Randolph, Massachusetts (the "Town"), through its Board of Selectmen (the "Board"), denied an application by plaintiff, Nextel Communications of the Mid-Atlantic, Inc. ("Nextel"), seeking permission to build a 120-foot-tall telecommunications antenna facility on a parcel of land within the Town. Nextel claims this denial violates the Telecommunications Act of 1996 ("TCA"), and that the Town's regulatory scheme for the siting of wireless communication towers violates the TCA, state and federal law, and the United States Constitution.1

The parties have filed cross-motions for summary judgment. After hearing, the Court orders that the case be remanded on the ground that the reason given for the denial of the application is not supported by substantial evidence in the written record. However, the Court allows the plaintiff's motion for summary judgment that the fees are contrary to state law and allows the Town's motion for summary judgment on Nextel's claim that the two-year duration of the special permit violates the Due Process Clause and its claim for damages and fees pursuant to 42 U.S.C. § 1983.

A. Randolph's Bylaw

Article X of the Town's zoning bylaws ("Article X"), entitled "Wireless Communications Facilities," regulates the "placement, construction, installation, modification, use, monitoring and removal of Wireless Communications Facilities" ("WCFs"), including towers and antennae, within the Town. Article X, §§ 200-57, 200-59. Article X seeks to "preserve the character and appearance of the Town," while "guid[ing] sound development ... consistent with applicable federal law." Article X, § 200-57. No cellular phone towers or antennae may be constructed within the Town without the issuance of a special permit, issued by the Board. Article X, § 200-58.

Article X places significant restrictions on the siting and construction of WCFs. WCFs are permitted only in Industrial Districts and on Town-owned property. Id., § 200-62. It gives preference to locating the WCF in an existing structure. Id., § 200-64(A). A WCF must be set back from the property lines of the lot on which it is located by a distance equal to the total height of the WCF plus five feet. Id., § 200-64(C). In addition, no structure (with the exception of the WCF's structures) may be constructed within 500 feet of the WCF, and no WCF may be built within 300 feet of a traveled way, or within 500 feet of any habitable dwelling or business. Id., §§ 200-64(D) & (F). No WCF may exceed 150 feet in height. Id., § 200-65(A). Article X also places significant limitations on the appearance of the WCF, and requires buffers of camouflaging vegetation for WCF towers. Id., § 200-66; see also id., §§ 200-67, 200-68.

Article X provides for "flexibility" in the requirements for setback distances. See id., § 200-65E. The requirements for a "fall zone" setback equal to the height of the tower plus five feet and for the construction of a structure within 500 feet of the WCF may be waived. See Article X, § 200-64(C) & (D). Article X contains no similar waiver provision for the 500-foot setback from a habitable building or the 300-foot setback from a traveled way. See id., § 200-64(F). The Board may also "reduce the required setback distance of the zoning district by as much as 50% of the required distance, if it finds that such reduction shall substantially better serve the purposes" of the Article. Id., § 200-65(E). The Board must consider the visual and safety impacts of the proposed use. Id.

B. Randolph's Filing Rules and Regulations

In addition to the strictures of Article X, a party wishing to construct a WCF in the Town must comply with the "Application Filing Rules & Regulations" ("Filing Rules") promulgated by the Town. The Filing Rules specify those documents that must be submitted with an application for a special permit to construct a WCF. They require, inter alia, that for each application, the applicant pay:

A. A filing fee of one hundred ($100) dollars per linear foot of tower, plus one hundred ($100) dollars per square foot of building; together with, five hundred ($500) dollars per cell or antenna.

B. A review Fee [sic][of] one hundred ($100) dollars per linear foot of tower plus one hundred ($100) dollars per square foot of building; together with, five hundred ($500) dollars per cell or antenna.

Filing Rules, H(A) & (B).

C. Board Consideration of Nextel's Application

The Board's July 10, 2000 meeting minutes first reflect Nextel's intention to construct a WCF at 451 High Street. At the following Board meeting, on August 7, 2000, Nextel participated in a "pre-conference" during which Nextel presented its plan for the High Street WCF. Daniel Rosemark, who presented the WCF plan for Nextel, specifically mentioned during the meeting that the plan would not conform to requirements that the WCF be 300 feet from a public way and 500 feet from a residence. Nextel proposed to locate its 120-foot monopole within 311 feet of an abutting residence; it also abutted a publicly traveled way. (Nextel Application, pp. 12-16, Aff. of David Rosemark Ex. C(2)). Board Chairman Burgess then stated that "this can be waived, if the petitioner asks, at the formal hearing." (Minutes of the August 7, 2000 Meeting of the Randolph Board of Selectman, Aff. of James Burgess, Ex. E.) The Board advised Nextel to file its application and scheduled the final hearing on the special permit for September 25, 2000.

On September 8, 2000, Nextel submitted its Special Permit Application for the construction, installation, operation and maintenance of a 120-foot WCF located at 451 High Street in Randolph. The parcel is approximately 120 feet by 115 feet in size and contains an uninhabited single-family home and garage. The application included two requests for dimensional variances from the setback provisions of the Bylaw, if the Board deemed such variance requests necessary. Specifically, Nextel sought variances from the requirement, under § 200-64(F) of Article X, that the WCF tower be set back a distance of its height plus five feet from the edge of the lot, and from the traveled way and habitable building setback requirements.

Nextel did not submit the Filing and Review Fees with its application. Instead, its application included a challenge to both fees as unlawful and unenforceable under federal and state law. Nextel argued that under the Town's current fee structure, it would have to pay $76,000 to file their application and have it considered by the Board.

Due to Chairman Burgess's absence from the September 25, 2000 meeting, Nextel requested and received a continuance of the hearing on its application. The rescheduled hearing took place on October 16, 2000. At the October meeting, the Board announced that it had received two letters from abutters opposing Nextel's application. However, no one spoke in opposition to the application during the meeting.

Nextel described both its current coverage in the Town and the gap in its coverage, including a lack of service in and around portions of North Randolph and for a two- to three-mile stretch of Route 128. Nextel also reported its search for a WCF site, including its unsuccessful attempt to locate the WCF on an existing WCF pole at 490 High Street, the unsuitability of locating the WCF on three existing buildings because the buildings were too low, and its inability to locate the WCF on two other parcels because of space and availability issues. Nextel then outlined its landscaping and construction plans for the proposed WCF, and its performance of a "crane test" to gauge the visual impact of the proposed tower. On questioning from the Town Counsel, Nextel conceded that the WCF would be within 125 feet of the property line, and that there would be three buildings within 500 feet of the tower. Nextel requested waivers of the 125-foot and 500-foot setback provisions.

Nextel raised the issue of the amount of the fee required under the Filing Rules. Mr. Rosemark estimated that, between the Filing fee and the Review fee, Nextel would be required to pay $76,000 to have its application considered.

At the request of one of the Board members, no vote was taken, and the hearing was continued to November 13th. At that meeting, Nextel reiterated the particulars of its application and its need for waivers. The Chairman stated that prior to the November meeting, the Board had attempted to get independent verification that the site was necessary, but was unable to obtain this information. Nextel stated that a parcel would have to encompass 22 industrial acres, if square, or 18 acres, if circular, to fully comply with the Bylaw's requirements.

Nextel and the Board then engaged in a discussion concerning "reasonable fees" for the application's filing and review. Nextel stated that the current fees would total $76,000. Selectman Lam asked Nextel what it would consider a "reasonable fee." Nextel later answered that it typically paid $200 in other towns, but that a reasonable...

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