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Industrial Tower and Wireless, LLC v. Haddad

United States District Court, D. Massachusetts

May 18, 2015

INDUSTRIAL TOWER AND WIRELESS, LLC, Plaintiff,
v.
DAVID HADDAD, KIMBERLY BIELAN, MATTHEW McNAMARA, and PATRICIA JOHNSON, as they are members of the ZONING BOARD OF APPEALS OF THE TOWN OF FALMOUTH, Defendants.

MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ALLISON D. BURROUGHS, District Judge.

I. INTRODUCTION

This case involves a local zoning dispute over the construction of a cell phone tower. On July 29, 2014, the Zoning Board of Appeals for the Town of Falmouth (the "ZBA" or the "Board") denied Plaintiff Industrial Tower & Wireless, LLC's application for a Special Permit to construct a wireless communications tower on a parcel of land located at 284 Old Meeting House Road, Falmouth, Massachusetts. Thereafter, Plaintiff ("ITW") filed a Complaint with this Court, arguing that the ZBA's decision violates the Federal Telecommunications Act of 1996 (the "TCA") on two independent grounds. First, ITW asserts in Count I that the ZBA's decision denying the application was not supported by "substantial evidence, " as required by the TCA, 47 U.S.C. § 332(c)(7)(B)(iii). Second, ITW argues in Count I that even if the ZBA's decision was supported by substantial evidence, denying ITW's application has the practical effect "of prohibiting the provision of personal wireless services, " in contravention of the TCA, 47 U.S.C. § 332(c)(7)(B)(i)(II). ITW seeks to vacate the ZBA's decision, and further requests an injunction ordering the ZBA to issue the necessary permitting and authorize construction of the cell tower.

Before the Court is ITW's Motion for Summary Judgment, filed on January 29, 2015 [ECF No. 23], along with a supporting Memorandum of Law [ECF No. 24]; a Statement of Material Facts pursuant to Local Rule 56.1 [ECF No. 25]; and several Affidavits in support [ECF Nos. 26-30]. The Defendants[1] filed a Memorandum in Opposition to ITW's Motion for Summary Judgment on February 19, 2015 [ECF No. 32], but they did not challenge ITW's Local Rule 56.1 Statement of Material Facts. ITW filed a Reply Memorandum on March 5, 2015 [ECF No. 33]. The Court held a hearing on ITW's Motion on April 28, 2014.

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 47 U.S.C. § 332(c)(7)(B)(v).[2] Having carefully considered the parties' written submissions and oral arguments, and in accordance with Congress' directive that TCA claims should be heard and decided "on an expedited basis, " 47 U.S.C. § 332(c)(7)(B)(v), the Court hereby ALLOWS ITW's Motion for Summary Judgment, for the reasons set forth herein.

II. STATEMENT OF FACTS[3]

Plaintiff Industrial Tower and Wireless, LLC is part of a family of companies that provide telecommunications services in New England and Florida [ITW's Rule 56.1 Statement of Material Facts, ECF No. 25 ("ITW Facts") ¶ 1]. Together with these related companies, ITW constructs, owns, and operates a network of personal wireless service facilities, including communications towers, transmitters, and antennae, that are used by carriers such as Metro PCS, Verizon Wireless, and AT&T to support their cellular networks [Complaint & Answer, ¶ 14; see Affidavit of Jeffrey Angley, ECF No. 26 ("Angley Aff."), Exh. 3, pp. 1-2]. These wireless facilities also support a Specialized Mobile Radio system that provides two-way radio communications for local public safety, emergency response, and school bus services, among other uses [ITW Facts ¶ 9]. ITW's particular role is to acquire, lease, and develop property on which to build wireless communications towers and supporting facilities [Id. ¶ 4]. ITW owns and operates approximately 100 such tower facilities in New England [Id.; see Affidavit of Michael J. Umano, ECF No. 16 ("Umano Aff.") ¶ 5].

Personal wireless services use a "line-of-sight" technology, which requires radio signals to pass between towers and the end user's phone or mobile radio [ITW Facts ¶ 13]. A tower's location is carefully selected so that its coverage area overlaps with those of other towers, such that the entire network provides contiguous and continuous coverage to wireless users traveling in a given area [Affidavit of Kevin Delaney, ECF No. 29 ("Delaney Aff.") ¶ 7; Angley Aff., Exh. 1, at Tab 3].

To ensure that its network of towers delivers continuous, high-quality service, ITW regularly performs propagation studies that identify gaps in coverage provided by its wireless facilities [ITW Facts ¶ 14]. ITW looks for coverage gaps in its own coverage networks, as well as in the networks of the five nationwide carriers who utilize ITW's services (Sprint, T-Mobile, Verizon, AT&T, and Metro PCS) [Id.].

A. ITW Identifies a Gap in Wireless Coverage in East Falmouth

In January 2013, ITW conducted propagation studies of radio frequency signals in east Falmouth, Massachusetts, using a type of computer modeling that is widely accepted in the industry [Id. ¶¶ 15-17; Angley Aff. Exh. 6, pp. 8-9].[4] These studies indicated that there was a significant coverage gap in east Falmouth along a two-mile stretch of Sandwich Road, and over one-mile-long portions of Old Barnstable Road, Route 28 and John Parker Road, which affected the networks of Verizon, AT&T, and Metro PCS (the "Coverage Gap") [ITW Facts ¶ 18; Angley Aff. Exh. 2, at Tabs 14, 15, & 16; Exh. 4, at Exhibit 1]. In addition, Verizon Wireless and Metro PCS each conducted their own propagation studies, which confirmed the existence of the Coverage Gap identified by ITW [Angley Aff., Exh. 1, at Tab 3; Exh 2, at Tabs 14 & 16]. The results of the propagation studies were further corroborated through "drive tests, " which tested network coverage for AT&T and Metro PCS in the areas where the propagation studies had indicated poor coverage [ITW Facts ¶ 20; Angley Aff., Exh. 4, at Exhibit 2]. Verizon also conducted an independent drive test in the area [Id.]. All of the drive tests confirmed that none of these carriers had adequate signal strength within the Coverage Gap identified by ITW [ITW Facts ¶ 22]. Further, Verizon Wireless provided ITW with its blocked and dropped-call data maps, which showed that Verizon customers experienced more service issues within the Coverage Gap than in other areas of Falmouth [Id. ¶ 23; Angley Aff., Exh. 4, at Exhibit 3].

The Coverage Gap affects a substantial number of users, as Route 28, Old Barnstable Road, and Sandwich Road carry significant amounts of local traffic. ITW submitted evidence showing that the roads and highways within the Coverage Gap are traveled by up to 30, 000 users daily, based on traffic data compiled by the Massachusetts Highway Department [Angley Aff. Exh. 4, at Exhibit 5].

B. ITW Searches for Feasible Sites to Fill the Coverage Gap

After confirming the existence of the Coverage Gap, ITW then conducted a search for nearby properties capable of hosting a cell tower that would remedy the gap [ITW Facts ¶ 32; Affidavit of John Champ, ECF No. 30 ("Champ Aff.") ¶¶ 5-6; Angley Aff. Exh. 4, pp. 7-8]. ITW's primary goal was to augment coverage between Thomas Landers Road and East Falmouth Highway (Route 28), and thus it searched for a potential tower location that could provide service to this area, in coordination with existing cell towers in the vicinity [ITW Facts ¶ 34; Champ Aff. ¶ 8; Angley Aff. Exh. 4, pp. 7-8]. ITW established a search ring with a radius of approximately 1 mile, extending easterly of Sandwich Road and westerly of Old Barnstable Road between Thomas Landers Road and Route 28 (the "Search Ring") [ITW Facts ¶ 35; Angley Aff. Exh. 4, p. 7 and Exhibit 6]. The most optimal coverage would exist in the middle of the Search Ring, with the quality of coverage declining as one moved towards the periphery [ITW Facts ¶ 36]. ITW determined that there were 1340 separate parcels of land located within the Search Ring [Id. ¶ 38; see Angley Aff., Exh. 4, at Exhibit 6 (map of parcels within Search Ring)].

ITW evaluated each of these 1340 parcels for location, size, frontage, view shed, access, topography, driveway construction, utility construction, setbacks, and other design criteria relevant to suitability for telecommunications site development [ITW Facts ¶ 37; Champ Aff. ¶ 11; Angley Aff. Exh. 4, pp. 7-8, and Exhibits 6 & 7; Angley Aff. Exh. 2, at Tab 26]. A vast majority of the 1340 parcels (indeed, all but 18 of them) were summarily eliminated because they were simply too small to comply with regulatory setback requirements, and/or because they had existing structures or dwellings that would interfere with those setback requirements [Angley Aff., Exh. 2 at Tab 26; Exh. 4, p. 8 & Exhibit 7; Exh. 7, p. 21; Champ Aff. ¶ 12]. Of particular concern to ITW were the setback regulations of the Cape Cod Commission ("CCC"), whose approval would be required before ITW could construct a wireless tower [ITW Facts ¶ 39; see Champ Aff. ¶¶ 10-12].[5]

ITW then conducted an in-depth analysis of the remaining 18 parcels that were sufficiently large to accommodate its proposed tower [ITW Facts ¶¶ 43-44; Champ Aff. ¶¶ 10-19]. By process of elimination, ITW determined that 17 of these parcels were not feasible sites for a cell tower, because they all had one or more of the following defects: (a) lack of adequate tree cover and visual screening;[6] (b) inadequate elevation for purposes of radio frequency transmission; (c) lack of frontage; (d) property was subject to restrictive covenants; (e) property was not available for sale; (f) property was subject to protected wetlands; and/or (g) property was located within a 3000 foot "Search and Rescue" fly zone between Otis Air Force Base and the Falmouth coast line, which cannot accommodate any structure exceeding 100 feet in height [ITW Facts ¶¶ 39-44; Champ. Aff. ¶¶ 16-17; Angley Aff. Exh. 4, at Exhibit 7; Angley Aff. Exh. 2, at Tab 26]. ITW determined that out of the 18 remaining parcels, only the property at 284 Old Meeting House Road in Falmouth (the "Subject Property") was a suitable for hosting a cell tower, as it was the only parcel that (a) met the size, setback, and buffering requirements of the CCC; (b) satisfied the coverage problems identified by ITW; (c) was available for lease; and (d) was located outside the Search and Rescue fly zone [ITW Facts ¶¶ 45, 48; Champ Aff. ¶ 17; Angley Aff. Exh. 4, pp. 7-8 & Exhibit 7; Angley Aff. Exh. 2, at Tab 26]. Furthermore, the Subject Property stood out amongst all other parcels in the Search Ring, in terms of the well-established and mature vegetated buffer of trees and woodlands at the site, which could provide visual screening for a wireless tower [Champ Aff. ¶ 19].

The Subject Property on Old Meeting House Road is a 19.7 acre parcel owned by the Midway Trap and Skeet Club of Falmouth, Inc. [ITW Facts ¶ 50]. ITW has entered into a long-term lease with the owners of the Subject Property, which would allow ITW to access, construct, and operate its proposed wireless facility on the grounds [Id. ¶ 54]. Specifically, ITW intends to build a 150-foot wireless communications tower and equipment compound within a 10, 000 square foot area surrounded by a chain link fence (the "Proposed Facility"). The Proposed Facility would be located in an area on the northwest corner of the Subject Property, and surrounded by heavily-wooded and naturally-vegetated land [Angley Aff. Exh. 2, at Tab 24; Exh. 4, at Exhibit 9; Exh. 5, at Exhibit 8].

C. ITW Applies to the ZBA for a Special Permit

Because the Subject Property is in an Agricultural zoning district under the local Zoning Bylaw, ITW required a Special Permit from the Falmouth Zoning Board of Appeals in order to proceed with development and construction. On October 21, 2013, ITW filed an application with the ZBA for a Special Permit to build a 150-foot, monopole-style telecommunications tower and equipment compound on the Subject Property [ITW Facts ¶¶ 51, 85]. Three cellular carriers, Verizon Wireless, AT&T Mobility, and MetroPCS, sought to co-locate on the tower and joined with ITW as co-applicants [Id. ¶¶ 53, 85].[7] Before taking any action on ITW's application, the ZBA referred the application to the Cape Cod Commission for its approval [Angley Aff. Exh. 11].[8]

1. Proceedings before the Cape Cod Commission

ITW's application underwent a five-month-long approval process before the CCC. The Commission scrutinized numerous aspects of ITW's Proposed Facility for compliance with its regulations. For example, the CCC required ITW to show that there were sufficient vegetation buffers at the site to protect adjacent agricultural land and mitigate the visual impact of the facility [ITW Facts ¶ 93]. The CCC also assessed the Proposed Facility's impact on the surrounding groundwater [Id. ¶¶ 97-99], the adequacy of road access to the facility [id. ¶ 100], and noise emissions from the facility [Id. ¶ 102]. In addition, the CCC conducted site visits and visibility tests to determine the Proposed Facility's visual impact on the surrounding areas [Id. ¶ 89]. The CCC further required ITW to pay for an independent consultant to review the propagation studies, drive tests, and dropped-call data provided by ITW and its co-applicants [Id. ¶¶ 90-91]. Based on the information provided by ITW and the carriers, the independent consultant agreed with ITW's conclusions that (1) none of the carriers had adequate signal levels within the Coverage Gap; and (2) the carriers' coverage problems would be mostly corrected by the addition of the proposed cell tower on the Subject Property [Angley Aff., Exh. 4, at Exhibit 4].

After nearly five months of review, on March 13, 2014, the CCC approved ITW's application, subject to numerous conditions [Id. ¶ 87]. The CCC's findings were set forth in a 36-page Decision [Angley Aff. Exh. 3]. The CCC found that the Proposed Facility "avoids adverse visual impacts to scenic resources through its siting well within a wooded landscape and set well back from scenic roads and vistas." [Id. p. 24]. The CCC further found that (1) there was a coverage gap in the area to be covered by the proposed wireless tower; (2) existing cell towers in the area were inadequate to remedy the problem; and (3) the ...


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