Roberts v. Southwestern Bell Mobile Systems, Inc.

• Decision Date: 30 April 1999
• Citation: 709 N.E.2d 798,429 Mass. 478
• Parties: David W. ROBERTS & another 1 v. SOUTHWESTERN BELL MOBILE SYSTEMS, INC., & another. 2 Supreme Judicial Court of Massachusetts, Middlesex
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 798

709 N.E.2d 798

429 Mass. 478

David W. ROBERTS & another ¹ v. SOUTHWESTERN BELL MOBILE SYSTEMS, INC., & another.² Supreme Judicial Court of Massachusetts Middlesex.

Argued Feb. 5, 1999.

Decided April 30, 1999.

Wendy H. Sibbison, Greenfield (Mary A. Barker, Harvard & Harris Freeman with her) for the plaintiffs.

F. Alex Parra, Acton (Louis N. Levine with him) for Southwestern Bell Mobile Systems, Inc.

Judith Pickett, Boston, for planning board of Littleton.

Wayne F. Dennison & Cheryl B. Pinarchick, Boston, for Sprint Spectrum L.P., amicus curiae, submitted a brief.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

MARSHALL, J.

This is an appeal by two property owners of a judgment entered in the Superior Court dismissing their action challenging a special permit granted to Southwestern Bell Mobile Systems, Inc. (Southwestern Bell). The permit allows Southwestern Bell to construct a one hundred foot wireless telecommunications tower in a residential area of Littleton (town) on land abutting the owners' respective properties. On February 1, 1996, Congress enacted the Telecommunications Act of 1996 (TCA), Pub.L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. §§ 151 et seq., as amended). The Act made substantial changes to Federal regulation of telecommunications in recognition of, and to facilitate the spread of, new technologies nationwide. H.R. Conf. Rep. No. 104-458, 104th Cong., 2d Sess. 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124. Prior to the TCA, telecommunications regulation envisioned natural monopolies predicated on one-wire, one-carrier systems. See, e.g., 47 U.S.C. §§ 151-613. The TCA abolished artificial distinctions among signal delivery methods and opened markets to multiple providers employing various service delivery technologies. ³ See, e.g., H.R. Conf. Rep. No. 104-458 at 148, 159 (1996), reprinted in 1996 U.S.C.C.A.N. 160-161, 172.

The new emphasis on competition is reflected in the many provisions of the TCA that seek to accelerate private sector deployment of new telecommunications technologies. Personal wireless services (PWS) technology is among those the TCA specifically addresses. See, e.g., 47 U.S.C. § 332(c)(7). ⁴ PWS technology sends low-power, high-frequency radio signals among relay towers (PWS towers) and switching stations. For signals to be available throughout an area, or cell, a network of PWS towers and associated support structures must be placed in a lattice or honeycomb grid. If a tower is not present at a site mandated by the lattice arrangement, a coverage gap arises. Coverage gaps prevent customers from receiving and sending signals, and when customers pass through a coverage gap their calls are disconnected. Such gaps not only inconvenience current customers, but may also impede the spread of the technology by making it less useful and less attractive to potential customers. See PrimeCo Personal Communications, L.P. v. Fox Lake, 26 F.Supp.2d 1052, 1054 (N.D.Ill.1998); Note, Wading Through the Rhetoric of the Telecommunications Act of 1996: Uncertainty of Local Zoning Authority Over Wireless Telecommunications Tower Siting, 22 Vt. L.Rev. 461, 467-477 (1997).

The PWS towers must be of sufficient height and placed at sufficient elevation to allow for the passage of the signals. The resulting visibility of PWS towers frequently spawns local resistance to their placement within communities. To facilitate the spread of this technology, and to promote transparency and accountability in local zoning decisions regarding permits for PWS providers, the TCA imposes procedural and substantive obligations on local zoning authorities. See 47 U.S.C. § 332(c)(7), entitled "Preservation of local zoning authority," the full text of which is set forth in the margin. ⁵ Substantively, local regulation may not "unreasonably discriminate" among PWS providers, nor may it "prohibit or have the effect of prohibiting" the provision of PWS services. 47 U.S.C. § 332(c)(7)(B)(i). There may be no regulation of facilities "on the basis of the environmental effects of radio frequency emissions," other than as required by the Federal Communications Commission (FCC). 47 U.S.C. § 332(c)(7)(B)(iv). Procedurally, a local zoning authority must act "within a reasonable period of time" on any request regarding a PWS facility, "taking into account the nature and scope of such request." 47 U.S.C. § 332(c)(7)(B)(ii). Any local authority decision "to deny a request" to site such a facility must be "in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). Congress further provided that expedited redress be available in either Federal or State court to "[a]ny person adversely affected" by an act of a local zoning authority "that is inconsistent with this subparagraph." 47 U.S.C. *802s 332(c)(7)(B)(v). ⁶

Subject to these enumerated constraints, the TCA recognizes and protects local autonomy regarding PWS facility placement. Congress was explicit that the TCA does not preempt State and local authority with respect to any zoning and land use issues pertaining to PWS facilities, other than as delineated in § 332(c)(7) of the TCA. See 47 U.S.C. § 332(c)(7)(A). At issue in this case is whether the TCA requirement of local zoning authorities that any decision "to deny" a request to construct a cellular facility "be in writing and supported by substantial evidence contained in a written record," 47 U.S.C. § 332(c)(7)(B)(iii), preempts, under the supremacy clause of the United States Constitution, de novo judicial review of all local zoning authority decisions pursuant to G.L. c. 40A, § 17. We hold that it does not. We vacate, in part, the judgment of the Superior Court and remand the case for further proceedings consistent with this opinion.

I

In 1997, Southwestern Bell applied to the planning board of Littleton (planning board) for a special permit and site plan approval to build a PWS facility. ⁷ Southwestern Bell proposed to build the facility on a residentially zoned parcel containing a water standpipe (locus) ⁸ on Newtown Hill in the town. The plaintiffs, David W. Roberts (Roberts) and Jean H. Lawlis (together, abutters), own parcels of land immediately adjacent either to the locus, or to an easement burdened by use of the locus. ⁹ The abutters were among those who opposed Southwestern Bell's application in public planning board hearings. On June 19, 1997, the planning board granted Southwestern Bell a special permit and site plan approval. Pursuant to G.L. c. 40A, § 17, ¹⁰ the abutters sought judicial review of that decision, naming Southwestern Bell and the planning board as defendants.

Southwestern Bell moved for summary judgment on the existing administrative record. ¹¹ It claimed that the TCA preempted G.L. c. 40A, § 17, and that any review of the planning board's decision should be limited to the existing record using the "substantial evidence" standard contained in 47 U.S.C. § 332(c)(7)(B)(iii). A judge in the Superior Court agreed. He concluded that the written record of the planning board contained "substantial evidence" to support the approval of the special permit, granted Southwestern Bell's motion for summary judgment, and ordered that summary judgment enter in favor of the planning board "to the same extent as to Southwestern Bell." ¹² He awarded costs to Southwestern Bell and the planning board.

Southwestern Bell had also moved to dismiss five counts of the abutters' second amended complaint for failure to state claims upon which relief could be granted, and for failure to name necessary parties. ¹³ Those counts alleged that (1) Southwestern Bell's failure to file its application with the town clerk as required by G.L. c. 40A, § 9, deprived the planning board of jurisdiction to consider the application; (2) the planning board did not have jurisdiction to change the use of the locus owned by the water department or (3) to change the use of the locus because the easement runs over conservation land; (4) the special permit constituted spot zoning; and (5) the planning board's decision-making process was tainted by bias and violated the abutters' due process rights. The judge granted Southwestern Bell's motion. He again ordered that partial summary judgment and dismissal of specific counts in favor of the planning board be allowed "to the same extent as to Southwestern Bell."

Southwestern Bell also moved to dismiss the second amended complaint pursuant to Mass. R. Civ. P. 12(b)(1), 365 Mass. 754 (1974), claiming that the abutters were not "person[s] aggrieved" under G.L. c. 40A, § 17. While the judge's order does not specifically reference this motion, in his memorandum of decision he concluded that the abutters did have standing to challenge the decision of the planning board, citing Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 660 N.E.2d 369 (1996). Southwestern Bell does not appeal from this determination.

The abutters took an appeal from the final judgment in the Superior Court dismissing their action and awarding costs, including all orders "underlying" the judgment. We granted their application for direct appellate review. ¹⁴

II

Southwestern Bell argues that the TCA preempts de novo judicial review of the planning board's decision to grant its special permit on two grounds: (1) it would frustrate the Federal scheme embodied in the TCA "to accelerate rapidly private sector deployment of advanced telecommunications technologies," H.R. Conf. Rep. No. 104-458 at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124; and (2) de novo determination of the facts, as required by G.L. c. 40A, § 17, conflicts with the requirement of 47 U.S.C. § 332(c)(7)(B)(iii) that a decision of a planning board to deny a request "be in writing and supported by substantial evidence contained in a written record."

Massachusetts is one of several States that provide for de novo review...