Nextel Communications of Mid-Atlantic, Inc. v. Town of Hanson
| Citation | 311 F.Supp.2d 142 |
| Decision Date | 26 March 2004 |
| Docket Number | No. CIV.A. 00-11417-DPW.,No. CIV.A. 03-12563-DPW.,CIV.A. 00-11417-DPW.,CIV.A. 03-12563-DPW. |
| Parties | NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC., d/b/a Nextel Communications, Plaintiff v. THE TOWN OF HANSON, the Town of Hanson Zoning Board of Appeals, and Gaytha Wallace, David Nagle and Steven De Dominici, in their capacities as Members of the Town of Hanson Zoning Board of Appeals, and the State Building Code Appeals Board, Defendants; Steven DeFrancesco and Susan DeFrancesco, Putative Intervenors. Nextel Communications of the Mid-Atlantic, Inc., d/b/a Nextel Communications, Plaintiff v. The Town of Hanson, Massachusetts, and the Massachusetts State Board of Building Regulations and Standards, Defendants; Steven DeFrancesco and Susan DeFrancesco, Putative Intervenors. |
| Court | U.S. District Court — District of Massachusetts |
Joel B. Bard, Kopelman & Paige, PC, Boston, MA, for The Town of Hanson Zoning Board of Appeals, Town of Hanson, David Nagle, Gaytha Wallace, Steven De Dominici, Defendants.
James S. Dittmar, Goodwin Procter LLP, Boston, MA, for Hirschfeld Communications LLC, Marston Realty Trust, Steven DeFrancesco, Movants.
Katharine Goree Doyle, Kopelman & Paige, PC, Boston, MA, for The Town of Hanson Zoning Board of Appeals, Town of Hanson, David Nagle, Gaytha Wallace, Steven De Dominici, Defendants.
Anthony M. Feeherry, Goodwin Procter, LLP, Boston, MA, for Hirschfeld Communications LLC, Marston Realty Trust, Steven DeFrancesco, Movants.
Steven E. Grill Devine, Millimet & Branch, Manchester, NH, for Nextel Communications of the Mid-Atlantic, Inc., Plaintiff.
John R. Hitt, Attorney General's Office, Boston, MA, for State Building Code Appeal Board, Defendant.
Paul J. Moriarty, Norwell, MA, for S. DeFrancesco, Interested Party.
Kenneth J. Rossetti, Tarlow, Breed, Hart, Murphy & Rodgers, Boston, MA, for Nextel Communications of the Mid-Atlantic, Inc., Plaintiff.
At issue in these two closely related actions are the scope and enforceability of an April 19, 2001 consent order issued by this court in the first action, directing the Town of Hanson, its Zoning Board of Appeals ("ZBA"), and the ZBA's members (collectively, "the Town" or "Hanson") to issue a special zoning permit for Nextel's proposed wireless telecommunications tower. The Town issued the special permit, but the Town's Building Inspector thereafter denied Nextel's application for a building permit, and the Massachusetts Building Code Appeals Board ("State Board") has upheld the Building Inspector's decision.
In the second action, Nextel seeks to establish that the Town and the State Board's denial of the building permit violated the April 19, 2001 order, and that even if the denial did not violate that order, it violated the Telecommunications Act of 1996, which requires denials of authority to build or modify wireless facilities to be supported by substantial evidence in a written record.
Steven and Susan DeFrancesco, abutters to the proposed facility, move in both actions to intervene on behalf of defendants.1
Nextel's claims originate in a lawsuit originally filed in this court on July 19, 2000 (Case No. 00-CV-11417-DPW, "the prior action"). As discussed in greater detail below, the prior action alleged that the Town of Hanson had violated the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. §§ 332(c)(7)(B)(i) & (iii), by denying Nextel's application to replace an existing radio tower with a newer facility. The background facts set forth below are derived from the record in the prior case and the procedural paths the controversy has taken.
Nextel Communications is a Delaware corporation with a regional office in Lexington, Massachusetts. Nextel is licensed by the Federal Communications Commission to provide "personal wireless services" in Massachusetts.
The Town of Hanson is a municipal corporation within the Commonwealth of Massachusetts. The ZBA is a zoning board of appeals under Mass. Gen. Laws ch. 40A, § 12. Individual named defendants are or were members of the ZBA.
The Massachusetts State Board of Building Regulations and Standards ("State Board") is an instrumentality of the Commonwealth of Massachusetts that serves, inter alia, to render interpretations of the Massachusetts Building Code. See generally Mass. Gen. Laws ch. 143, §§ 93-95. In its role as an appellate body reviewing decisions of building inspectors under the Building Code, it is also known as the Building Code Appeals Board. For all purposes relevant here, the Building Code Appeals Board and the State Board of Building Regulations and Standards are the same body.2 See id. § 100.
The putative intervenors, Steven and Susan DeFrancesco, reside at 123 Liberty Street in Hanson. Their property abuts the 141R Liberty Street site of the proposed Nextel tower.
Much of the underlying history derived from the prior action need only be recited briefly here. In 1999, Nextel found a significant coverage gap in its network, comprising most of the Town of Hanson. Nextel then began looking for locations for a wireless communications facility ("WCF") within the Town that would rectify this gap.
Nextel identified seventeen possible sites in Hanson as candidates for the siting of a WCF. Five of these candidate sites were located within the Commercial-Industrial district as defined by the Town's zoning by-laws. Nextel concentrated its efforts, at least initially, on developing one of those five sites in order to conform to the requirements of the zoning by-law that regulates the installation of WCFs within the town.
Sections VII.K.4 and K.6 of the by-laws extensively regulate the installation of WCFs within the Town, including permitting, zoning, dimensional and setback requirements. For example, they provide that WCFs may not exceed the height limits of the zoning area in which they are located by more than ten feet, with the exception of WCFs in the Commercial-Industrial District, which may be up to 150 feet high.
From computer tests, Nextel determined that none of the sites in the Commercial-Industrial district, which was located in the southwestern portion of Hanson, would bridge its coverage gap, which was mainly in the northeastern portion of the town. Nextel then considered locations outside the Commercial-Industrial district. In particular, Nextel investigated the possibility of using an existing 117 foot tower located on a six acre parcel at 141R Liberty Street near the center of Hanson. However, the existing tower was not tall enough to enable the necessary coverage. Based on further computer tests, Nextel concluded that placing a 130 foot facility at the Liberty Street site would satisfy Nextel's coverage requirements, and offered several other advantages.
On February 15, 2000 Nextel applied to the ZBA for a special permit to replace the existing Liberty Street tower.3 The special permit application explained Nextel's coverage gap, recounted the company's unsuccessful efforts to find a viable location in the designated Commercial-Industrial district, and described the design of the proposed tower.
On April 5, 2000 the ZBA held a public hearing on Nextel's application, but did not reach a final decision. The ZBA held additional hearings on May 11 and June 1, 2000. During these hearings, Nextel provided additional evidence, including signal propagation maps and testimony from a radio frequency engineer, describing how no other locations in Hanson would correct Nextel's coverage gap. The ZBA also received evidence from a firm, Merrill Associates, retained by the Board to evaluate the Nextel proposal's compliance with the by-laws. Merrill Associates recommended that the ZBA receive clarification of several design features of the proposed tower, including proper structural support and structural integrity, but did not recommend against approving the Nextel proposal.
The ZBA also received comments from neighbors and abutters, concerning whether the existing tower had been approved by the Board, whether the Nextel design was safe, and whether the Nextel tower would cause interference with television and satellite antennas. At the June 1, 2000 hearing, ZBA members raised the concern that the existing tower had been "abandoned" and that, as a result, a provision of the by-laws for replacing an existing tower would not apply. Nextel contended that this interpretation of the by-law was incorrect because the tower itself had not been abandoned, even if it was no longer being used. At the conclusion of the June 1, 2000 hearing, the ZBA denied Nextel's application by unanimous vote.
On June 14, 2000 the ZBA issued its written decision. As reasons for the denial, the ZBA stated that Nextel's proposed tower would be "substantially more detrimental" to the area than the existing tower and would have unspecified "adverse effects" on the Town. The ZBA also stated that because the existing tower had not been used for over a period of two years, Nextel was not able to take advantage of the by-law permitting modification of existing towers outside of the Commercial-Industrial district.
On July 19, 2000 Nextel filed the prior action against the Town of Hanson, the ZBA, and individually named ZBA members. Count I of the complaint alleged that the defendants violated 47 U.S.C. § 332(c)(7)(B)(iii) by failing to base the denial of the permit on "substantial evidence contained in a written record," and Count II alleged that they had violated § 332(c)(7)(B)(i)(II) by effectively prohibiting wireless service in the Town. Count III alleged a deprivation of rights under 42 U.S.C. § 1983; Count IV alleged violation of Massachusetts state law. Counts I, II, and IV requested a writ of mandamus or injunction "directing the Town to grant the special permit and all other permits and approvals necessary for tower construction to proceed."
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