Sprint Spectrum, L.P. v. Town of Ogunquit

Decision Date12 December 2001
Docket NumberNo. 01-137-P-DMC.,01-137-P-DMC.
Citation175 F.Supp.2d 77
PartiesSPRINT SPECTRUM, L.P., Plaintiff, v. TOWN OF OGUNQUIT, et al., Defendants.
CourtU.S. District Court — District of Maine

Catherine R. Connors, David P. Littell, Pierce, Atwood, Portland, ME, Wayne F. Dennison, Amanda Buck Varella, Brown, Rudnick, Freed & Gesmer, Boston, MA, for plaintiff.

Mark V Franco, Thompson & Bowie, Jeffrey T. Edwards, Roy T. Pierce, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, ME, for defendants.

MEMORANDUM DECISION ON CROSS-MOTIONS FOR JUDGMENT ON A STIPULATED RECORD1

COHEN, United States Magistrate Judge.

Plaintiff Sprint Spectrum, L.P. ("Sprint") and defendants the Town of Ogunquit (the "Town"), the Town of Ogunquit Planning Board ("Board") and certain named individuals2 acting in their official capacities (collectively, "Defendants") cross-move for judgment on a stipulated record in this action arising from the Board's denial of Sprint's request to attach a wireless-service antenna to an existing HAM radio tower in the Town. Plaintiff's Motion and Brief in Support of Judgment in Its Favor on the Stipulated Record ("Plaintiff's Motion") (Docket No. 9); Defendants' Cross-Motion and Brief in Support of Judgment in Their Favor on the Stipulated Record ("Defendants' Motion") (Docket No. 11). For the reasons that follow, both motions are granted in part and denied in part.

I. Applicable Legal Standards

In this case the parties agree, and the operative scheduling order directs, that "every claim asserted can be resolved based on the evidence presented in the Administrative Record. Therefore, ... this case may be resolved on briefs alone." Joint Motion To Amend the Scheduling Order, etc. ("Motion To Amend") (Docket No. 7) at 2 & endorsement thereon. "In a case submitted for judgment on a stipulated record, the district court resolves disputed issues of material fact." Brotherhood of Locomotive Eng'rs v. Springfield Terminal Ry. Co., 210 F.3d 18, 31 (1st Cir.2000) (citation omitted).

The parties further agree, and the scheduling order also directs, that "[w]hile resolution shall occur through a judgment on the Stipulated Record, to facilitate the court's review, the parties shall follow F.R.Civ.Rule 56 and Local Rule 56, in that they shall accompany their Briefs with supporting Statements of Material Fact." Motion To Amend at 2 & endorsement thereon.

II. Factual Context

The parties' statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Loc. R. 56, reveal the following relevant to this decision:

Sprint is in the process of building a nationwide wireless personal communications services ("PCS") network across the United States, using a new generation of technology. Plaintiff's Statement of Material Facts ("Plaintiff's SMF") (Docket No. 10) ¶¶ 1, 67; Defendants' Reply to Plaintiff's Statement of Material Facts ("Defendants' Reply SMF") (Docket No. 13) ¶¶ 1, 67.

In 1997 Sprint was the highest bidder at an auction held by the Federal Communications Commission for PCS wireless broadcast licenses covering Maine, New Hampshire, Massachusetts and other New England states. Id. ¶ 1. Sprint currently is actively building out its PCS system in Maine. Id. Sprint prefers to locate its wireless telecommunications facilities on either an existing building or an existing tower. Id. ¶ 2. If an appropriate preexisting structure cannot be located, Sprint provides service by constructing a new tower. Id.

The Town is a municipal corporation located in York County, Maine. Id. ¶ 3. The Board is a governmental agency established by and existing under the authority of the Town, with its only office in Ogunquit, Maine. Id. Defendants Hokans, Fette, Dello Russo, Sadowl, Hagerty and Starobin are residents of Ogunquit and served as the members of the Board that denied Sprint's application for a special exception. Id. ¶ 4. Defendant Lempicki serves as the code enforcement officer for the Town. Id. ¶ 5.

In 1994 Bruce Marton received a building permit from the Town allowing him to build four one-hundred-foot radio towers on his property. Defendants' Reply SMF ¶ 6; Record, Tab 14, at 1. Marton proceeded to construct the radio towers through 1999, when the Town issued a stop-work order. Plaintiff's SMF ¶ 7; Defendants' Reply SMF ¶ 7. Marton appealed the stop-work order to the Town's Zoning Board of Appeals ("ZBA"), which denied his appeal. Id. He then appealed to the Superior Court, which vacated the ZBA decision and rescinded the stop-work order. Id. The Town appealed the Superior Court's order to the Maine Supreme Judicial Court, which ruled that Marton was entitled to construct his towers pursuant to the 1994 permit. Id. Marton has fully constructed one ninety-nine-foot HAM radio tower. Id.

On February 26, 2001 Sprint submitted a special exception application (the "Application") to the Board seeking authorization to place a telecommunications antenna array on the existing ninety-nine-foot HAM radio tower, located at 131 Maine Street, Ogunquit, Maine (the "Tower"). Id. ¶ 8. The Tower is located in an area defined by the Ogunquit Zoning Ordinance (the "Ordinance") as General Business District 1 ("GBD1"). Id.3

The Application proposed a flush-mounted three-panel antenna array attached to the Tower at a center-line height of seventy-seven feet, with no portion of the antenna array over eighty feet above ground level. Id. ¶ 10. Sprint further proposed to locate associated radio and powering equipment at the base of the Tower in a twelve-foot-by-twenty-two-foot compound connected to the antenna array via coaxial cable, thereby establishing a wireless communications facility ("Facility") on the property. Id. The Facility would connect with adjacent sites in York, Wells and South Berwick and provide coverage to the residents of Ogunquit, York and Wells as well as to travelers on U.S. Route One. Id. ¶ 25.4 The Marton site had "been on Sprint's radar screen" since 1997. Defendants' SMF ¶ 15; Record, Tab 36, at 12.

With the Application, Sprint submitted (i) a cover letter describing the proposal, (ii) an addendum addressing the Ordinance's special-exception and design-review criteria, (iii) a structural engineering letter regarding the Tower, (iv) an affidavit of a real estate expert, (v) an affidavit of Sprint's radio frequency ("RF") engineer, (vi) a copy of Sprint's lease with the Tower owner,5 (vii) a viewshed analysis of what the Tower would look like with the three-panel, flush-mounted antennas attached and (viii) engineering plans for the proposed facility. Plaintiff's SMF ¶ 8; Defendants' Reply SMF ¶ 8.

These attachments indicated inter alia that given the Ordinance's prohibition of construction of new towers within the GBD1 and RD zoning districts and the lack of other structures of equal or similar height to the Tower in the area, Sprint was unable to find any tower or attachment site in that part of Ogunquit. Plaintiff's SMF ¶ 45; Record, Tab 1, Exh. C, ¶ 6 & Exh. E, ¶ 12. According to these materials Sprint had concluded, based on its review of alternative sites, that the proposed site was the only feasible site for the provision of service to downtown Ogunquit and Route One. Id.6

The affidavit of RF expert Nooshin Zareian filed with the Application indicated that if Sprint were not granted the special exception it would "have to construct a new tower facility in order to provide adequate service coverage to Ogunquit." Defendants' SMF ¶ 7; Plaintiff's Reply SMF ¶ 7. Zareian also noted, "unlike other parcels of land in the area, the Site [the Tower] has unique radio frequency characteristics due to the topography of the Site, the height of the existing amateur radio tower, and its location within the narrow search area specified by Sprint PCS's service area computer model which make it especially suitable for Sprint PCS's proposed wireless telecommunications transmission facility." Plaintiff's Reply SMF ¶ 7; Record, Tab 1, Exh. E, ¶ 11.

On March 8, 2001 Sprint representatives met with Lempicki and the town planner, who stated that the Board would require evidence that the Tower was in use as an amateur radio service facility. Plaintiff's SMF ¶ 11; Defendants' Reply SMF ¶ 11. On March 12, 2001 the Board considered the Application and voted that it was complete as required under the Ordinance. Id. ¶ 12. At the commencement of the completeness hearing, Board Chairperson Hokans stated:

If we are going to allow this application to go forward and that is a question, because we can say no tonight. I think we have enough evidence to say that they can't meet the tests our Ordinance demands that they meet. But if you decide to allow it to go forward then we need to set a public hearing and get, see how the public feels about it. My personal opinion is that there is probably enough evidence in our hands at this moment to turn [the Application] down cold. I don't think they have presented any kind of a case that says this is an acceptable accessory use. We have evidence from minutes of previous meetings that very clearly state that these towers were to have no commercial use.

Defendants' Reply SMF ¶ 12; Record, Tab 36, at 20. The Board posed numerous questions and issues for Sprint to address in subsequent meetings, Plaintiff's SMF ¶ 12; Defendants' Reply SMF ¶ 12, and requested evidence regarding Marton's use of the Tower, Plaintiff's SMF ¶ 12; Record, Tab 36, at 4.7

Sprint considered numerous alternatives to siting its proposed Facility on the Tower. Plaintiff's SMF ¶ 48; Record, Tab 6, at 3-5; Tab 15, at 1 & Letter dated April 19, 2001 from Nooshin Zareian to Ogunquit Planning Board ("Zareian Letter"), attached thereto; Tab 37, at 15-16, 33-38; Tab 38, at 1-5.8 By letter dated March 30, 2001 Sprint described ten alternate locations investigated since 1997 to provide service to Ogunquit and Route One. Plaintiff's SMF ¶ 43; Defendants' Reply SMF ¶ 43. Sprint provided this partial...

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