SW Bell Mobile Systems v. Todd

• Decision Date: 05 October 2000
• Docket Number: No. 00-1164,00-1164
• Parties: (1st Cir. 2001) SOUTHWESTERN BELL MOBILE SYSTEMS, INC., D/B/A CELLULAR ONE, Plaintiff, Appellant, v. LAURENCE M. TODD, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS; VAUGHN N. HATHAWAY, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS; JAMES T. BUCKLEY, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS; LINDA G. FINAN, AS SHE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS; DENNIS E. HENNESSEY, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS, Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 51

244 F.3d 51 (1st Cir. 2001)

SOUTHWESTERN BELL MOBILE SYSTEMS, INC., D/B/A CELLULAR ONE, Plaintiff, Appellant, v. LAURENCE M. TODD, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS;

VAUGHN N. HATHAWAY, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS; JAMES T. BUCKLEY, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS; LINDA G. FINAN, AS SHE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS; DENNIS E. HENNESSEY, AS HE IS A MEMBER OF AND CONSTITUTE THE BOARD OF APPEALS OF THE TOWN OF LEICESTER, WORCESTER COUNTY, MASSACHUSETTS, Defendants, Appellees.

No. 00-1164

United States Court of Appeals For the First Circuit

Heard October 5, 2000

Decided March 30, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] F. Alex Parra, with whom Louis N. Levine and D'Agostine, Levine, Parra & Netburn, P.C. were on brief, for appellant.

Joseph C. Cove for appellees.

Before Lipez, Circuit Judge, and Woodlock and Saris,^* District Judges.

LIPEZ, Circuit Judge.

On September 10, 1998, the Zoning Board of Appeals for the Town of Leicester, Massachusetts (the Board), voted unanimously to deny Southwestern Bell Mobile Systems, Inc.'s application for a special permit to construct a 150-foot high lattice telecommunications tower. Shortly after this denial, Southwestern Bell filed the present action in the district court, claiming, among other things, that the Board's decision was not supported by "substantial evidence contained in a written record," as required by the Telecommunications Act of 1996 (the TCA or the Act), and asking the district court to order the Board to issue the special permit. See 47 U.S.C. § 332(c)(7)(B)(iii). The district court disagreed and granted the defendants' motion for summary judgment. Southwestern Bell appeals from that judgment. Because we conclude that the record contains substantial evidentiary support for the Board's denial of the permit application, we affirm.

I. Background

We briefly recite the facts as gleaned from the record before the Board, leaving a more extended recitation for our analysis of whether the Board's denial of Southwestern Bell's application was supported by substantial evidence. Section 5.4 of the Leicester Zoning Bylaws sets forth regulations applicable to wireless telecommunications facilities proposed within the Town. This Bylaw regulates such facilities in order to "minimiz[e] adverse impacts of wireless communication facilities upon adjacent properties, historic areas and residential neighborhoods, minimize the overall number and height of such facilities to only what is essential, to encourage co-location on a single structure, and avoid damage to adjacent properties from facility failure through engineering and careful siting of facilities." Under the Bylaw, wireless communication facilities may be allowed in numerous zoning districts, but only "upon the issuance of a special permit" by the Board. In April of 1998, Southwestern Bell filed an application for a special permit to allow it to construct a 150-foot tall telecommunications tower on a property offered to it by the Leicester Water Supply District approximately six months before Southwestern Bell filed its application. Southwestern Bell wished to use this tower to provide cellular coverage for the northern and central parts of Leicester, including Routes 9 and 56, the two major roads running through the Town.

The water district property is located on Route 56, which is named Paxton Street at that location, in a suburban-agricultural zone. Geographically, the site is at the approximate center of the town, atop a fifty-foot hill in an open field. The property already has two forty-foot high water towers. The surrounding locale is a low-density residential area, with high-tension electrical wires running through it approximately 1000 feet from the water district property. Two subdivisions in various states of completion are located in the immediate vicinity of the proposed tower. The closest, Carey Hill Estates, was relatively new at the time of the application, containing 57 units adjacent to the Water District property. At least some of the Carey Hill Estates homes would be no more than 200 to 300 feet away from the tower. The second subdivision, Leicester Woods, is slightly older and slightly farther away, with residences approximately 750 feet from the tower. It is also shielded somewhat from the water district property by a line of trees. Although the record is unclear about the precise stage of completion of these two developments, both pre-dated Southwestern Bell's application and both had rapid pre-sales of homes, indicating a relatively high degree of desirability. In addition, the tower was 360 feet from an elementary school, 700 feet from a high school, and 1350 feet from a middle school.

The facility that Southwestern Bell proposed consisted of the tower, an equipment shed, a propane tank for emergency operation, and a utility pole to bring electricity and telephone lines to the property. The entire structure would be surrounded by an eight-foot high fence, painted green, topped with three rows of barbed wire. In order to camouflage the shed and fence, ten-foot high plantings would ring the security fencing. The tower would be 350 feet from Paxton Street and 130 feet from the two water tanks. Because of the proximity of the site to the Worcester Airport, Southwestern Bell had applied for a permit from the Federal Aviation Administration. Though this permit had not been obtained at the time of the hearings, Southwestern Bell's consultant indicated that the FAA would likely require that the tower be painted in contrasting sections of red and white and be topped by at least one beacon to light the tower at night. The facility would run automatically with remote monitoring and would only require occasional maintenance visits.

Following its receipt of Southwestern Bell's application, the Board held a series of public meetings, during which it accepted Southwestern Bell's written materials and heard comment from the public and from Southwestern Bell's representatives and experts. Though the police, fire, and emergency medical services departments were all in favor of the tower, there was significant public opposition to its proposed location.¹ At the conclusion of the last meeting on September 8, 1998, a member of the Board moved to deny the application. After a brief discussion that revisited several concerns raised during the course of the hearings, the Board voted unanimously to deny the application. Two days later, the Board filed with the Town Clerk a written denial of the application. In this written decision, the Board listed three areas in which it had concluded that the application did not comply with the Bylaw:

It doesn't satisfy criteria of Minimum Visual Impact. Any tower that will be red and white with a beacon, that needs to be seen by a plan [sic] traveling over 100 mph, cannot have minimum visual impact, when there are no trees to hide it. Roads go 360 [degrees] around the site. The cirteria [sic] for granting a Special Permit cannot be satisfied. It would be an attractive nuisance being located next to schools. This does demonstrate that there is an adverse effect on property values.

This language mirrored the oral motion to deny from the last public hearing, albeit in a somewhat edited form as many of the facts offered orally in support of the three legal conclusions were not reproduced in the written denial. Indeed, the factual underpinnings of these conclusions, as reflected by the Board's discussion of the motion, were far broader than this paragraph indicates.

In response to this denial, Southwestern Bell filed the present complaint in the district court, naming the members of the Board as defendants and contending that the court should order the Board to issue the permit because the permit denial was not supported by "substantial evidence contained in a written record" as required under the TCA. Both sides moved for summary judgment. Following a hearing, the district court granted the defendants' motion and denied Southwestern Bell's, reasoning that while there was not sufficient evidence to support a conclusion that the tower would affect property values or be an attractive nuisance to schoolchildren, there was sufficient evidence to conclude that the tower would have more than a minimal visual impact. Southwestern Bell appeals from that judgment.

II. The Telecommunications Act of 1996

Personal wireless services of the type at issue here are dependent upon "low-power, high-frequency radio signals" that are transmitted from "relay towers . . . and switching stations." Roberts v. Southwestern Bell Mobile Sys., Inc., 709 N.E.2d 798, 801 (Mass. 1999). In order "to provide consumers with mobile telephone service over a broad geographic area," that area is divided into cells, each transmitting and receiving signals on a specified frequency. Federal Communications Commission, Wireless Telecommunications Bureau, Fact Sheet #2, National Wireless Facilities Siting Policies at 27 (Sept. 17, 1996) (FCC Fact Sheet). Frequencies are assigned to multiple non-adjacent cells. See id. "When a cellular subscriber makes or receives a call, the call is connected to the nearest cell site. As a subscriber travels within a cellular provider's service area, the cellular telephone call in progress is transferred, or 'handed off,' from one cell site to another without noticeable interruption." Id.

Coverage within a cell is maintained by arranging antennae in a honeycomb grid. See Roberts, 709...