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Varsity Wireless, LLC v. Boxford Zoning Board of Appeals

United States District Court, D. Massachusetts

September 22, 2017

VARSITY WIRELESS, LLC, Plaintiff,
v.
BOXFORD ZONING BOARD OF APPEALS ET AL., Defendants.

          MEMORANDUM AND ORDER

          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 0'Sullivan Fort in, 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 54-12[3] 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 and Recommendation. 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 Article Ill. §1 of the United States Constitution. It must satisfy the "set of requirements that together make up the 'irreducible constitutional minimum of standing.1" 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 "any person adversely affected by a final action or failure to act by a State or local government or any instrumentality thereof...[to] commence an action in any court of competent jurisdiction." 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:

controvert[s] the accuracy (rather than the sufficiency) of the jurisdictional facts asserted by the plaintiff and proffer[s] materials of evidentiary quality in support of that position...the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties. In conducting this inquiry, the court enjoys broad authority to order discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own jurisdiction.

Id.

         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 challenge the accuracy of the jurisdictional facts asserted by the plaintiff. Accordingly, at this stage, it is unnecessary to decide whether the evidence establishes Varsity's standing. Rather, the court is only required to satisfy itself that the "well-pleaded factual allegations" in the complaint and the affidavits, if proven, would be sufficient to establish standing. Valentin, 254 F.3d at 363.

         For the reasons explained in the Report and Recommendation, the Varsity's allegations and affidavits are sufficient to establish that Varsity's interests fall within the "zone of interests" protected by the TCA and, therefore, the court's authority to consider Varsity's motion for summary judgment on its merits. See R&R at 12-13.[5] In particular, plaintiff has submitted an affidavit from Christopher J. Davis, manager of Varsity and Varsity Investors, which holds the lease for the site, stating that Varsity is authorized to act on behalf of Varsity Investors. See Docket No. 56-1. Varsity was "adversely affected" by the challenged conduct within the meaning of 47 U.S.C. §332(c)(7)(B)(v) when, acting on behalf of Varsity Investors, it was denied an Application for a zoning variance to build the proposed facility. This case, therefore, is comparable to Liberty Towers, LLC v. Zoning Hearing Bd. of Twp. Lower Makefield, Bucks Cnty., Pa., where the plaintiff had standing to appeal the township's denial of its application for a zoning variance to build a new telecommunications facility under the TCA, even though the plaintiff was "not a telecommunications carrier or service provider but merely constructs and operates wireless telecommunication facilities." 748 F.Supp.2d 437, 442 (E.D. Pa. 2010).

         The court is adopting the Magistrate's recommendation to decide the issues raised in the plaintiff's motion for summary judgement without prejudice. Accordingly, defendants may challenge the accuracy of plaintiff's jurisdictional allegations in connection with their anticipated motion(s) for summary judgment. In view of the foregoing, it is hereby ORDERED that:

1. The Magistrate Judge's Report and Recommendation (Docket No. 86) is ADOPTED and INCORPORATED pursuant to 28 U.S.C. §636.
2. American's Motion to Strike (Docket No. 57) is ALLOWED in part and DENIED in part as described in the Report and Recommendation at 3-4.
3. For the reasons stated in the Report and Recommendation, Varsity's Motion for Summary Judgment (Docket Nos. 40) is DENIED without prejudice.
4. This case continues to be referred to the Magistrate Judge for pretrial proceedings, including a Report and Recommendation on any dispositive motions.

         REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [DOCKET NO. 40]

         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 multi-user monopine wireless communication facility (the "Facility"). Specifically, Varsity alleges that the denial is in violation of both Section 704 of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7) (the "TCA"), and also state law. Varsity has 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). Docket No. 40.[1] For the following reasons, this Court recommends that the District Judge assigned to this case deny Varsity's motion without prejudice.

         I. PROCEDURAL BACKGROUND

         Varsity filed its complaint against defendants 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. Docket No. 1. On June 29, 2015, Varsity filed an amended complaint. Docket No. 13.

         On September 9, 2016, this Court granted the motion to intervene filed by certain abutters and immediate neighbors to the proposed Facility. Docket No. 48. This Court also issued a scheduling order. Docket No. 49.[2]Thereafter, the parties have engaged in discovery.

         On September 7, 2016, one day before the Scheduling Conference, Varsity filed the instant motion for partial summary judgment. Docket No. 40. Defendants filed an opposition on September 28, 2016.[3] Docket No. 53. On October 12, 2016, Varsity filed a reply. Docket No. 55. The Court held oral argument on July 19, 2017.

         Because it appeared that the Court did not have all of the materials considered by the Board in its decision, on July 20, 2017, this Court ordered the parties to confer and submit any materials considered by the Board that were not already part of the summary judgment record. See Docket No. 74. The parties requested, and the Court granted, two extensions of the deadline for submitting the complete record. See Docket Nos. 77-80.

         On August 10, 2017, Defendants filed a number of documents in response to the Court's order. However, it appeared that the parties still had not provided a copy of the complete record before the Board, as the Court was unable to find three letters referenced in the Board's decision. Accordingly, the Court ordered the parties to direct the Court to where it could find the letters in the record or submit them forthwith. Docket No. 83. In response, counsel for Defendants filed a letter stating that the Board had not been able to locate the referenced letters. Docket No. 84. Later that day, counsel filed, without any explanation, what appeared to be two of the three referenced letters. Docket No. 85. II. FACTUAL BACKGROUND A. Scope Of The Record Varsity has filed a motion to strike certain evidence submitted by the Defendants because that evidence is outside of the administrative record of the hearings before the Board. Docket No. 57. Varsity is correct that where, as here, the Court's analysis is directed to whether the Board's written decision is supported by substantial evidence, the Court "is confined to 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). However, the Defendants have also raised the issue of whether Varsity has standing to bring this action. The Court finds that it is appropriate to consider evidence regarding this issue, even if such evidence was not part of the administrative record. Accordingly, the Court recommends that the District Judge grant in part and deny in part Varsity's motion to strike. Specifically, the Court finds that it is appropriate to consider the following: Docket No. 54-10, Docket No. 54-11, Docket No. 54-12. All of these documents pertain to Varsity's legal interest in the Facility and/or the Site. In addition, Varsity does not move to strike the first two paragraphs of the Perkins Affidavit (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). This Court will not consider the remaining exhibits submitted by the Defendants, which were not part of the administrative record and pertain to the Town's arguments regarding effective prohibition.

         B. Facts[4]

         1. Varsity And Verizon Wireless

         Varsity is engaged in the business of developing "personal wireless communications facilities" for the deployment of personal wireless services.[5] Bell Atlantic Mobile of Massachusetts Corporation Ltd. d/b/a Verizon Wireless ("Verizon") is licensed by the Federal Communications Commission ("FCC") to provide personal wireless services in the Commonwealth of Massachusetts, including in the Town.[6]

         Varsity maintains that Verizon has a significant gap in coverage within Boxford in the area of Main Street, Lawrence Road, and many of the adjacent neighborhood streets within west central Boxford.[7] In order to close that gap, Varsity proposed to build the Facility at 12 Mortimer Road, Boxford, Massachusetts (the "Site").[8] Martin D. Sholomith, the owner of the Site, and Varsity entered into a lease agreement by which Sholomith granted Varsity the exclusive right to build the Facility in the Property.[9]

         In June 2014, Varsity assigned all of its rights to the Site to Varsity Wireless Investors, LLC ("Varsity Investors").[10] Varsity is the Managing Member of Varsity Investors.[11]Christopher J. Davis is the manager of both Varsity and Varsity Investors.[12] As manager, Davis has the authority to allow either entity to act on behalf of, or together with, the other and to ratify actions taken by one entity on behalf of the other.[13] Varsity is and was authorized to act on behalf of Varsity Investors in prosecuting the application for a special permit and variances with the Board as well as maintaining this appeal.[14]

         Varsity was not a party to Verizon's Tower Use Agreement.[15] Rather, the agreement was between Verizon and Varsity Investors.[16] Defendants, in their submission dated September 28, 2016, maintain that Verizon has terminated its lease agreement with Varsity Investors, leaving Varsity and Varsity Investors without any provider committed to using the proposed Facility for personal wireless communications.[17] At oral argument, Varsity maintained that it currently has a lease agreement with Verizon. The Town does not dispute that there is currently such a lease agreement but asserts there may have been a period of time between the filing of the instant suit and today that there was no agreement.

         2. The Application For A Special Permit And Variances

         The Site is located in the Residential-Agricultural (R-A) zoning district.[18] The proposed Facility includes, without limitation, a 150-foot multi-carrier tower camouflaged to appear as a pine tree ("monopine"), [19] a 47-foot by 69-foot compound surrounded by an 8-foot high wooden stockade fence, VZW's panel antennas, GPS antenna, an ice bridge, cabling, an equipment shelter, radio communications equipment within the equipment shelter, a generator for backup power, and a pad mounted transformer.[20]

         On or about November 20, 2014, Varsity filed its application for a special permit and dimensional variance (height), and on March 19, 2015, Varsity amended the application to formally include Verizon as a co-applicant and to request a variance to permit exterior mounted antennas (collectively, the "Application").[21] ...


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