Varsity Wireless, LLC v. Boxford Zoning Bd. of Appeals
| Decision Date | 22 September 2017 |
| Docket Number | C.A. No. 15-11833-MLW |
| Parties | VARSITY WIRELESS, LLC, Plaintiff, v. BOXFORD ZONING BOARD OF APPEALS ET AL., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
WOLF, D.J.
In this action, plaintiff Varsity Wireless, LLC ("Varsity") challenges the Town of Boxford's denial of Varsity's application for a special permit and dimensional variances for the construction and operation of a wireless communication facility (the "Facility"). Specifically, Varsity is suing the Town of Boxford (the "Town"), Boxford Zoning Board of Appeals (the "Board"), and Board members Kathleen O'Sullivan Fortin, Barbara Jessel, and David Peterson on May 12, 2015, alleging that the denial violated Section 704 of the Telecommunications Act of 1996, 47 U.S.C. §332(c)(7) (the "TCA"), which requires that any decision by a local government "to deny a request to place, construct, or modify personal wireless service facilities:" (a) be "in writing and supported by substantial evidence contained in a written record;" and (b) not "have the effect of prohibiting the provision of personal wireless services." Varsity also alleges that the denial violated state law.
The court referred the case to Magistrate Judge Jennifer Boal for pretrial purposes, including a report and recommendation on dispositive motions. On September 9, 2016, Magistrate Judge Boal allowed certain abutters and immediate neighbors to the proposed Facility to intervene. On September 7, 2016, Varsity moved for partial summary judgment on Count 2 of the Amended Complaint, which alleges that the Defendants' denial of Varsity's application is not supported by substantial evidence, in violation of 47 U.S.C. § 332(c)(7)(B)(iii). Defendants, joined by the intervenors, opposed.
On October 12, 2016, Varsity filed a motion to strike certain evidence submitted by defendants with its opposition, arguing that the evidence was not part of the administrative record of the hearings before the Board and, therefore, could not be considered in reviewing the Board's decision.
On July 26, 2017, defendants moved for the Magistrate to defer consideration of the motion for summary judgment until discovery was closed and defendants filed their own motions for summary judgment. They stated that "summary judgment must wait until discovery discloses whether Varsity is a party in interest or otherwise has 'statutory standing' to prosecute TCA claims." See Docket No. 18-19.
On August 23, 2017, Magistrate Judge Boal issued a report recommending that the motion to strike be allowed in part and denied in part, and that the motion for summary judgment be denied. In determining whether substantial evidence supports an administrative agency's decision, the court may only consider "the administrative record, absent a claim of procedural irregularity." Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 22 (1st Cir. 2002). The Magistrate Judge found that Docket Nos. 54-10,1 54-11,2 and 54-123 are relevant to Varsity's legal interest in the building site and, therefore, to whether Varsity has standing in this court. Accordingly, she found that those documents may be considered in deciding the jurisdictional question even if they were not part of the administrative record. In addition, Varsity did not move to strike first two paragraphs of the affidavit of Samuel Perkins, Esq. (Docket No. 54-1) or the documents to which they refer (Docket No. 54-3, Docket No. 54-4, Docket No. 54-5, Docket No. 54-13, and Docket No. 54-14). However,the Magistrate Judge struck the rest of the exhibits submitted by defendants, which were not part of the administrative record.
The Magistrate Judge recommended that the motion for summary judgment be denied without prejudice. As an initial matter, she found that "Varsity has standing to bring this action under the TCA." R&R at 13. However, she also found that the parties did not submit the complete record that the Board considered in its decision to deny Varsity's application for a variance. In reviewing the decision of an administrative agency, the court must consider "the record as a whole." Universal Camera Corp. v. NLRB, 340 U.S. 474, 490 (1951);4 see also Nextel Commc'ns of the Mid-Atlantic v. Town of Brookline, 520 F. Supp. 2d 238, 248 (D. Mass. 2007). Because the record is incomplete, she concluded that the court is "unable to determine whether the Board's decision is supported by substantial evidence" and, therefore, recommended that the motion for summary judgment be denied without prejudice.
The time period for objections to the Report and Recommendation has expired. Varsity did not file any objections. Therefore, it is not entitled to review of the Report andRecommendation. Borden v. Sec'y of Health & Human Servs., 836 F. 2d 4, 6 (1st Cir. 1987); Thomas v. Arn, 474 U.S. 140, 149-50 (1985). In any event, the court has reviewed the Magistrate Judge's reasoning and finds it to be thorough, thoughtful, and persuasive. Therefore, the recommendation to deny the plaintiff's motion for summary judgment without prejudice is being adopted.
Defendants timely objected to the Magistrate Judge's recommendation that Varsity has standing. They request that the court not adopt that recommendation because the issue of standing "was not presented by motion, briefed or argued, and was not necessary to the Magistrate's recommended disposition." Objection at 2. The court is denying the objection. The court has the independent obligation to determine subject matter jurisdiction even without a Rule 12(b)(1) motion to dismiss. See Am. Airlines, Inc. v. Cardoza-Rodriguez, 133 F. 3d 111, 115 n. 1 (1st Cir. 1998). In essence, the court must satisfy itself that it has subject-matter jurisdiction before it can decide the merits of the case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998). As explained below, the Magistrate Judge correctly considered the question of subject matter jurisdiction and determined that Varsity has standing in the absence of any challenge to the jurisdictional facts alleged in the complaint.
To establish standing, the plaintiff must first show that there is a "case" or "controversy" within the meaning of ArticleIII, §1 of the United States Constitution. It must satisfy the "set of requirements that together make up the 'irreducible constitutional minimum of standing.'" Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). Plaintiff must have suffered or be imminently threatened with a concrete and particularized "injury in fact" that is fairly traceable to the challenged actions of the defendants and likely to be redressed by a favorable judicial decision. Id. at 1386 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Courts may, however, in limited circumstances, decline to adjudicate claims on "prudential" grounds such as "the general prohibition on a litigant's raising another person's legal rights" and "the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches." Id.
Finally, most relevant here, the plaintiff's stake in the controversy must "fall within the zone of interests protected by the law invoked." Id. at 1388. This requires the court "to determine, using traditional statutory-interpretation tools, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim." Id. at 1387. Varsity alleges claims under the TCA, which authorizes 47 U.S.C. §332(c)(7)(B)(v).
The plaintiff must support each element of standing "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. When the facts underlying the plaintiff's jurisdictional allegations are unchallenged, the court is only required to satisfy itself that the "well-pleaded factual averments in the plaintiff's...complaint," if true, would establish that the plaintiff has standing. In Valentin v. Hospital Bella Vista, the First Circuit elaborated:
In performing this task, the court must credit the plaintiff's well-pleaded factual allegations (usually taken from the complaint, but sometimes augmented by an explanatory affidavit or other repository of uncontested facts), draw all reasonable inferences from them in her favor, and dispose of the challenge accordingly...
254 F. 3d 358, 363 (1st Cir. 2001). In contrast, when the defendant:
As explained earlier, in their opposition to Varsity's motion for summary judgment, defendants suggested that the TCA does not authorize Varsity to sue because Varsity is not a telecommunications provider and because it has no property interest in the building site, having assigned the lease to Varsity Wireless Investors, LLC ("Varsity Investors"), another company. Defendants did not request a ruling on the issue, but requested that the Magistrate postpone ruling on the plaintiff's motion for summary judgment until discovery has closed and defendants file their own motions for summary judgment arguing, among other things, that plaintiff lacks standing. Therefore, defendants do not now...
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