Patterson v. Omnipoint Communications, Inc.
| Citation | 122 F.Supp.2d 222 |
| Decision Date | 21 November 2000 |
| Docket Number | Civil Action No. 99-CV-12336-JLT.,Civil Action No. 00-CV-10561-JLT. |
| Parties | Randall PATTERSON, et al., Plaintiffs, v. OMNIPOINT COMMUNICATIONS, INC., et al., Defendants. and Randall Patterson, et al., Plaintiffs, v. Zoning Board of Appeals of the Town of Scituate, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Edward J. Collins, Cambridge, MA, for Plaintiffs.
Kenneth I. Spigle, Rosenberg, Freedman & Goldstein, Newton, MA, Barbara J Saint Andre, Kopelman and Paige, P.C., Boston, MA, for Defendants.
This Memorandum concerns two related actions filed by the same Plaintiffs, ten residents from the neighboring towns of Scituate and Cohasset. The permitting and construction of a wireless communications relay tower ("relay tower") in Scituate, near that town's border with Cohasset, provides the backdrop to both cases. The issue presented is whether a local zoning board must follow state and local procedures for issuing a special permit when granting that permit pursuant to a federal court order. Federal question jurisdiction rests on the Telecommunications Act of 1996 ("TCA"), 47 U.S.C. §§ 151 et seq.1
In the first action ("Patterson 1"), Plaintiffs sued six members of the Scituate Planning Board and four corporate Defendants, alleging procedural violations of the Massachusetts Zoning Act ("Zoning Act"), Mass. Gen. Laws ch. 40A, §§ 1-17. The corporate Defendants are Omnipoint Communications Inc. and its successor-in-interest, Omnipoint Communications MB, OPS, LLC (collectively, "Omnipoint"2), the wireless communication providers; and King K. Corporation, which owns the land where Defendant Tower Ventures ("Tower") built the relay tower for Omnipoint. Plaintiffs brought the second action ("Patterson 2") against three members of Scituate's Zoning Board of Appeals, the Building Inspector, and the same corporate Defendants. Alleging the same Zoning Act violations as in Patterson 1, they added a 42 U.S.C. § 1983 claim against the Board of Appeals and the Building Inspector, and a Mass. Gen. Laws ch. 93A claim against an unspecified defendant.
On February 22, 1999, Omnipoint and Tower applied to the Planning Board for a special permit to build a relay tower. In accordance with the Zoning Act's procedural requirements, the Planning Board gave notice to Scituate and Cohasset "parties in interest,"3 developed factual findings, and held public hearings. See Mass. Gen. Laws ch. 40A, §§ 9, 11, 16. On June 11, 1999, the Planning Board officially denied the application.4 In a case heard by this court, Omnipoint and Tower then sued the Planning Board, alleging that the denial violated the TCA.5 See Tower Ventures v. Warner, No. 99-CV-11422-JLT (D.Mass. Sept. 28, 1999).
On September 28, 1999, pursuant to an Agreement for Judgment between the Parties and its own factual findings, the court entered judgment for Omnipoint and Tower on Count I, finding that the denial "lacked substantial evidence," in violation of the TCA. See Tower Ventures, slip op. at 1-2.6 The court ordered the Planning Board to issue the special permit and ordered the appropriate municipal agent to issue a building permit, in accordance with the conditions set forth in the initial application. See id. On October 15, 1999, the Planning Board issued the special permit to Omnipoint and Tower, but did not require a new application, provide a new round of notice, develop findings of fact, or hold another public hearing, as required by the Zoning Act. See Mass. Gen. Laws ch. 40A, § 16.
Plaintiffs filed the Patterson 1 suit on November 8, 1999. After the Building Inspector issued the building permit in December 1999, some of the Plaintiffs appealed to the Zoning Board of Appeals. The Board of Appeals held a public hearing on February 24, 2000, and voted to uphold the issuance of the permits on March 3, 2000. Omnipoint and Tower then built the relay tower within the 20-day window of appeal prescribed by Mass. Gen. Laws ch. 40A, § 11. On March 23, 2000, Plaintiffs filed the Patterson 2 suit.
In Patterson 1, Plaintiffs allege that the Planning Board exceeded its legal authority by entering into the Agreement for Judgment and by issuing the special permit, without following the Zoning Act's procedural requirements for reversing a previous denial of a special permit. See Mass. Gen. Laws ch. 40A, §§ 9, 11, 16. In Patterson 2, Plaintiffs allege that the Building Inspector exceeded his authority because he issued the building permit based on a procedurally-defective special permit, and did so while the issuance of that permit remained in litigation (Patterson 1). See id. Plaintiffs further allege that the corporate Defendants violated the Zoning Act by building the tower within the twenty-day appeal period following the Board of Appeal's March 3, 2000 decision. See Mass. Gen. Laws ch. 40A, § 11. Finally, Plaintiffs allege that the Board of Appeals violated 42 U.S.C. § 1983 by upholding the special permit in reckless disregard of the Plaintiffs' due process rights.
In Patterson 1, Plaintiffs request this court to annual and vacate the issuance of the special permit and the building permit. In Patterson 2, Plaintiffs seek an injunction ordering the dismantling of the tower, and the full extent of damages, costs and fees allowed by 42 U.S.C. § 1983 and Mass. Gen. Laws ch. 93A.
Both the corporate and municipal Defendants moved to dismiss all claims from Patterson 1 and Patterson 2. Plaintiffs opposed the Motions to Dismiss Patterson 1, but did not oppose municipal Defendants' Motion to Dismiss the § 1983 claim or the corporate Defendants' Motion to Dismiss the Mass. Gen. Laws. ch. 93A claim from Patterson 2. In the interest of judicial economy, and as agreed to by all parties at the October 19, 2000 hearing, the court consolidated Defendants' Motions to Dismiss from Patterson 1 and Patterson 2.7
When deciding a defendant's motion to dismiss, a court assumes as true the plaintiff's "well-pleaded factual averments" and favors the plaintiff with "every reasonable inference." Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. 1990). A court, however, need not accept the plaintiff's "bald assertions" or "unsupportable conclusions." Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 17 (1st Cir.1998). If it clearly appears that a plaintiff could not recover on any viable theory, dismissal is proper. Conley v. Gibson, 355 U.S. 41, 45, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).
Plaintiffs allege that the Planning Board, the Building Inspector and the Board of Appeals exceeded their authority by issuing and affirming the special permit and the building permit without following the Zoning Act's procedural requirements. Defendants move to dismiss on claim preclusion grounds, and because both suits amount to impermissible collateral attacks on a valid and final judgment from the Tower Ventures action, i.e., the court order requiring the issuance of the special permit and the building permit. The court agrees that Plaintiffs' suits represent impermissible collateral attacks,8 and finds that the TCA preempts the Zoning Act's procedural requirements as applied here.
Congress enacted the TCA "in order to provide ... [a] framework designed to accelerate rapidly private sector deployment of advanced telecommunications ... services to all Americans." Omnipoint Communications MB Operations, LLC v. Town of Lincoln, 107 F.Supp.2d 108, 114 (D.Mass.2000) (quoting Paging, Inc. v. Board of Zoning Appeals for County of Montgomery, 957 F.Supp. 805, 807 (W.D.Va.1997)); See also H.R. Conf. Rep. No. 104-458, 104th Congress, 2d Sess. at 206 (1996).9 It represents "a deliberate compromise between two competing aims — to facilitate nationally the growth of wireless telephone service and to maintain substantial local control of siting of towers." Town of Amherst, New Hampshire v. Omnipoint, 173 F.3d 9, 13 (1st Cir. 1999). Nonetheless, the TCA "significantly limits the ability of state and local authorities to apply zoning regulations to wireless telecommunications." Telecorp Realty, LLC v. Town of Edgartown, 81 F.Supp.2d 257, 259 (D.Mass.2000) (citing H.R. Conf. Rep. No. 104-458 at 207-08). The TCA limits state and local zoning control in three pertinent ways: 1) states shall not "prohibit or have the effect of prohibiting" services; 2) states shall act upon applications "within a reasonable period of time" and support all denials "in writing ... by substantial evidence;" and 3) a court of competent jurisdiction shall expeditiously review and decide upon state or local actions inconsistent with the above limitations. 47 U.S.C. § 332(c)(7)(B)(i)-(iii),(v).
An act of Congress rooted in a constitutionally enumerated power preempts conflicting state laws or regulations. See Strahan v. Coxe, 127 F.3d 155, 167-68 (1st Cir.1997). Preemption is triggered by congressional intent or when a state law "actually conflicts" with a federal statute. See Hillsborough County v. Automated Medical Lab., 471 U.S. 707, 712-13, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). Courts may infer congressional intent where, inter alia, it is implicit in the act, where the act involves a dominant federal interest, or where the application of state policies provides a result inconsistent with the objective of the federal statute. See id. at 713, 105 S.Ct. 2371. A state law "actually conflicts" with a federal statute where compliance with both is a physical impossibility, or when the state law "stands as an obstacle to the accomplishment of the full purposes and objectives" of the federal statute. Id. (citation omitted).
Developing case law holds that the TCA preempts state and local laws when the application of those laws...
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