Omnipoint Commun. Mb Operations v. Town of Lincoln
| Decision Date | 02 August 2000 |
| Docket Number | No. Civ.A. 99-11012-EFH.,Civ.A. 99-11012-EFH. |
| Citation | 107 F.Supp.2d 108 |
| Parties | OMNIPOINT COMMUNICATIONS MB OPERATIONS, LLC, Plaintiff, v. TOWN OF LINCOLN, Lincoln Board of Appeals and Despena F. Billings, Buckner M. Creel, IV, Pamela S. Green, Amalie Kass, and Susan Hall Mygatt, in their capacities as Members of the Lincoln Board of Appeals, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Kenneth Ira Spigle, Boston, MA, for Omnipoint Communications MB Operations, LLC, plaintiff.
Joseph L. Tehan, Jr., Joel B. Bard, Kopelman & Paige, P.C., Boston, MA, for defendants.
This matter is presently before the Court on the parties' Cross Motions for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. This is one of the many cases arising under the Federal Telecommunications Act of 1996, 47 U.S.C. § 332 (the "TCA"). The TCA sets in opposition the interest of telecommunication companies in developing a comprehensive nationwide wireless communications network and the interest of local governments in protecting the character and nature of their localities from the unseemly proliferation of wireless communications facilities ("WCFs") which are commonly referred to as wireless towers.
The Plaintiff Omnipoint Communications MB Operations, LLC ("Omnipoint"), is a telecommunications carrier licensed by the Federal Communications Commission ("FCC") to facilitate the development of a wireless telecommunication network in furtherance of the goals of the TCA and Omnipoint's license with the FCC.1 The Defendant Town of Lincoln, Massachusetts (the "Town"), is an unincorporated municipality located in eastern Massachusetts which utilizes an open town meeting form of governance.2 The five individuals named as defendants — Despena F. Billings, Buckner M. Creel, IV, Pamela S. Green, Amalie Kass and Susan Hall Mygatt — are the current members of the Lincoln Board of Appeals. The Lincoln Board of Appeals is the local governmental body which is empowered by state law with the authority to hear and decide requests for special permits and for variances for relief from local zoning regulations. See Mass. Gen.L. ch. 40A, § 14; Town of Lincoln, Zoning By-Law (as amended March 27, 1999) (hereinafter, the "By-Law"), §§ 20.2(c), (d).
In Count I of the Complaint, Omnipoint challenges the validity of the Town's By-Law on the ground that the By-Law has the effect of prohibiting the provision of personal wireless services within the Town in violation of Section § 332(c)(7)(B)(i)(II) of the TCA. In Counts II and III, Omnipoint challenges the April 20, 1999, decision of the Board of Appeals which denied Omnipoint's request for a special permit and/or variance to erect an 89-foot tall monopole WCF at Tracey's Towing which is located in the Town at the intersection of Bedford Road and Route 2. Omnipoint alleges in Count II that the Board of Appeals' decision violates Section 332(c)(7)(B)(i)(II) of the TCA because it has the effect of prohibiting the provision of personal wireless services. Omnipoint further alleges in Count III that the Board of Appeals' decision violates Section 332(c)(7)(B)(iii) of the TCA because it is not supported by substantial evidence contained in a written record.
For the reasons stated below, as to Count III summary judgment is granted for the defendants and denied for the plaintiff, while as to Counts I and II summary judgment is granted for the plaintiff and denied for the defendants.
The Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 1331, as these claims arise under the laws of the United States, specifically 47 U.S.C. § 332(c)(7) which provides that "anyone adversely affected by any final action or failure to act by local government that is inconsistent with the limitations [of the TCA] may seek review in any court of competent jurisdiction and the court shall hear and decide such action on an expedited basis." Town of Amherst, N.H. v. Omnipoint Communications Enterp., 173 F.3d 9, 12 (1st Cir.1999) (quoting 47 U.S.C. §§ 332(c)(7)(B)(ii), (iii), (v)) (internal quotations omitted).
In April of 1997, the Town of Lincoln, acting through its Town Meeting, amended the By-Law by adding Section 12.6 which is entitled "Wireless Communications Facilities Overlay District." The purpose of this section is to regulate the placement, construction and maintenance of WCFs in a manner that preserves the Town's unique community character. See By-Law, § 12.6.1. Section 12.6 establishes a Wireless Communications Facilities Overlay District (the "Overlay District") to provide for the safe and appropriate siting of WCFs, while minimizing the visual and other impacts of such WCFs. See id. The Town's Planning Board may issue a special permit allowing the erection of a WCF upon a parcel within the Overlay District if the Planning Board "determines that the adverse effects of the proposed [WCF] will not outweigh its benefits to the town ..." By-Law, § 12.6.5. As such, a wireless communications provider wishing to erect a WCF within the Town of Lincoln is limited to those parcels which the Town, through its Town Meeting, has designated as part of the Overlay District.
As amended in 1999, the Town's Overlay District consists of six parcels scattered throughout the Town. Two of the parcels, identified on the Town Assessors Map as Parcel Nos. 96-2 and 103-6, are owned by the Town, and are the Department of Public Works and the Public Safety facilities, respectively. The other four Overlay District parcels, Minuteman Regional High School property (Parcel No. 19-4), the Farrington Memorial (Parcel No. 48-7), the Boston Institute of Intercultural Communications (the "BIIC") (Parcel No. 14-16), and the DeCordova Museum3 (Parcel No. 44-2), are owned by private non-profit organizations. While in sum these six parcels constitute over 175 acres which may be used for the erection of WCFs, the parcels are situated throughout the Town in such a manner that no two parcels, other than the two Town-owned parcels, would provide wireless coverage to the same section of Town. Furthermore, the six parcels are owned by only five landowners. Minuteman Regional High School property is located in, and would only provide coverage to, the northeastern section of the Town at the eastern end of Route 2A. The DeCordova Museum is located near Flints Pond and would provide coverage to the central section of the Town, just south of Route 2. The two Town-owned parcels are in close proximity to each other and would provide coverage to the southern section of the Town. The BIIC and the Farrington Memorial, which are located at the western and eastern ends of the Town on Route 2, respectively, would provide coverage along Route 2. The extent of the coverage which could be provided from these six Overlay District parcels is in dispute between the parties.
In addition to restricting the location of a WCF, the By-Law also places significant restrictions upon the manner in which a WCF may be constructed, as well as substantial filing requirements for obtaining a special permit. The By-Law provides that absent a significant tree canopy the height of any WCF shall not exceed sixty (60) feet above finished grade of ground elevation. If, however, there is a significant tree canopy, then the Planning Board may allow a WCF to extend twenty (20) feet above the surrounding tree canopy if, in the Board's opinion, such an increase in height would not cause a material increase in the visual impacts from the WCF.4 See By-Law, § 12.6.6(b). Aside from submitting the information required for a typical site plan approval under By-Law, § 17, the By-Law also requires supplementary information for an application to erect a WCF, including: a notarized statement attesting to the accuracy of the material submitted with the application; a map of the entire town and the area within two miles of the Town showing the location of existing and proposed WCFs; data detailing existing radio frequency levels; a plan at 1" = 40' scale for the proposed WCF; and other information with regard to the proposed facility which the Planning Board may require. See By-Law, § 12.6.4. These additional regulatory requirements were apparently added to the By-Law in furtherance of the Planning Board's avowed "stance of `precaution and procrastination' in order to stay just ahead of the demand for [WCFs]." Lincoln Planning Board Minutes, Zoning Amendments Hearing, March 18, 1998 (Plaintiff's Local Rule 56.1 Statement of Undisputed Material Facts, Attachment A.) The By-Law also imposes significant fees upon the filing of an application to erect a WCF. See By-Law, § 12.6.7.
The following facts are undisputed. Beginning in 1997, Omnipoint undertook efforts to locate one or more sites on which to place WCFs which would provide wireless service to north Lincoln, particularly along Route 2. Route 2 is a heavily traversed thoroughfare running east-west through north Lincoln and, as such, is a primary coverage objective for Omnipoint. Because the BIIC site is the only parcel within the Overlay District which would provide coverage to the northwestern section of Lincoln and to the western portion of Route 2, Omnipoint attempted to lease land from the BIIC for the purpose of erecting a WCF. In the Spring of 1998, Omnipoint presented the BIIC with detailed plans for the erection of an eighty (80) foot tall flagpole design WCF. (Complaint, Ex. 3, Attachment B, ¶ 4.)
Despite Omnipoint's numerous efforts to reach an agreement, the Board of Directors of the BIIC voted in August 1999 to decline Omnipoint's proposal to lease BIIC property for the purpose of building a WCF. (Id., ¶ 5.) The BIIC Board of Directors did not cite the financial terms of Omnipoint's proposal as a reason for its rejection. (Id.) On the contrary, a representative of the BIIC indicated...
To continue reading
Request your trial
-
Nextel Partners Inc. v. Kingston Tp.
...of practice, however, the typical relief in cases like the one before us has been injunctive. See Omnipoint Communications v. Town of Lincoln, 107 F. Supp.2d 108, 120-21 (D.Mass.2000) (observing that "the majority of district courts... have held that the appropriate remedy for a violation o......
-
Global Tower, LLC v. Hamilton Twp.
...the local zoning authority's decision is consistent with the applicable zoning requirements.” Omnipoint Communications MB Operations, LLC v. Town of Lincoln, 107 F.Supp.2d 108, 115 (D.Mass.2000). “Congress intended that the substantial evidence requirement of the TCA be equivalent to ‘the t......
-
Global Tower, LLC v. Hamilton Twp.
...local zoning authority's decision is consistent with the applicable zoning requirements." Omnipoint Communications MB Operations, LLC v. Town of Lincoln, 107 F. Supp.2d 108, 115 (D. Mass. 2000). "Congress intended that the substantial evidence requirement of the TCA be equivalent to 'the tr......
-
U.S. Cellular Corp. v. City of Wichita Falls, Tex.
...decision is consistent with the applicable zoning requirements," ATC Realty, 303 F.3d at 94 (quoting Omnipoint Communications MB Operations v. Lincoln, 107 F.Supp.2d 108, 115 (D.Mass.2000)), courts have consistently required that the challenged decision accord with applicable local zoning l......