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Cellco Partnership v. The Town of Leicester

United States District Court, D. Massachusetts

September 29, 2017

CELLCO PARTNERSHIP, d/b/a VERIZON WIRELESS, Plaintiff,
v.
THE TOWN OF LEICESTER, MASSACHUSETTS, THE TOWN OF LEICESTER, MASSACHUSETTS ZONING BOARD OF APPEALS, and DAVID KIRWAN, DAVID ORTH, VAUGHN HATHAWAY, JIM BUCKLEY, AND PAUL SCHOLD, in their Capacities as Members of the TOWN OF LEICESTER, MASSACHUSETTS ZONING BOARD OF APPEALS Defendants.

          MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKT. NOS. 15 & 28)

          MARK G. MASTROIANNI UNITED STATES DISTRICT JUDGE

         I. Introduction

         In October of 2015, Plaintiff, Cellco Partnership, doing business as Verizon Wireless (“Verizon”) applied for a special permit to install a wireless communications facility at 30 Huntoon Memorial Highway in Leicester, Massachusetts. After holding four public hearings, the Town of Leicester Zoning Board of Appeals (“ZBA”) denied the application in a decision dated March 9, 2016. Verizon then filed this case against the Town of Leicester, the ZBA and members of the ZBA, in their official capacities, on April 11, 2016. Plaintiff asserts the denial of the special permit application violates Section 704 of the Telecommunications Act of 1996, 47 U.S.C. § 332 (the “TCA”) because the denial (1) is not supported by substantial evidence and (2) has effect of prohibiting the provision of personal wireless services. Additionally, Plaintiff asserts the Board exceeded its authority and violated Massachusetts law because the decision was arbitrary and capricious.

         The case was initially assigned to Judge Timothy Hillman and proceeded through the filing of cross motions for summary judgment. Following oral argument on those motions, Judge Hillman entered an order of recusal on April 11, 2017 and the case was transferred to this court. This court held a status conference in June of 2017 and the parties re-argued their summary judgment motions on August 3, 2017.

         II. Jurisdiction

         This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 over the claims in Counts I and II, which are brought pursuant to the TCA, which allows persons effected by a local government's denial of an application to install personal wireless service facilities to bring an action within thirty days of the local government's action. 47 U.S.C. § 332(c)(7)(B)(v). Verizon's third claim arises under state law. Federal courts may exercise supplemental jurisdiction over state law claims related to and brought together with claims arising under federal law. 28 U.S.C. § 1367.

         III. Summary Judgment Standard

         At the summary judgment stage, the court must view the facts in the light most favorable to the non-moving party “and draw all reasonable inferences in its favor.” CNE Direct, Inc. v. Blackberry Corp., 821 F.3d 146, 148 (1st Cir. 2016). “Summary judgment is permissible only when examination of the record in that light reveals ‘no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'” Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016) (quoting Fed.R.Civ.P. 56(a)). “‘A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it has the potential of determining the outcome of the litigation.'” Patco Const. Co. v. People's United Bank, 684 F.3d 197, 206-07 (1st Cir. 2012) (quoting Rodríguez-Rivera v. Federico Trilla Reg'l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008)). “Cross-motions for summary judgment require the district court to ‘consider each motion separately, drawing all inferences in favor of each non-moving party in turn.'” AJC Int'l, Inc. v. Triple-S Propiedad, 790 F.3d 1, 3 (1st Cir. 2015) (quoting D & H Therapy Assocs., LLC v. Boston Mut. Life Ins. Co., 640 F.3d 27, 34 (1st Cir. 2011)).

         IV. Statutory Background

         The First Circuit describes the TCA as representing “an exercise in cooperative federalism that attempts, subject to five limitations, to preserve state and local authority over the placement and construction of telecommunications facilities.” Green Mountain Realty Corp. v. Leonard (Green Mountain II), 750 F.3d 30, 38 (1st Cir. 2014) (internal quotation marks and alterations omitted). Under the TCA, state and local governments and instrumentalities may regulate the placement of wireless service facilities, provided they (1) act on requests to authorize the placement, construction, or modification of such facilities within a reasonable time, (2) do not give consideration to any “environmental effects of radio frequency emissions” that comply with FCC regulations, (3) do not “unreasonably discriminate among providers of functionally equivalent services, ” (4) make all decisions in writing and support those decisions with “substantial evidence contained in a written record, ” and (5) do not make decisions that “prohibit or have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. § 332(c)(7)(B). The court describes these last two limitations in more detail as Verizon asserts these two were violated by the ZBA decision.

         “‘Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Green Mountain Realty Corp. v. Leonard (Green Mountain I), 688 F.3d 40, 50 (1st Cir. 2012) (quoting Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 58 (1st Cir. 2001) (abrogated on other grounds by T-Mobile South, LLC v. City of Roswell, 135 S.Ct. 808 (2015)). The decision of a local authority is entitled to deference, “‘provided that the local board picks between reasonable inferences from the record before it.'” Id. (quoting Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 23 (1st Cir. 2002)). Though this is a deferential standard, it “is not a rubber stamp” and a local authority “is not free to prescribe what inferences from the evidence it will accept and reject, but must draw all those inferences that the evidence fairly demands.” Green Mountain I, 688 F.3d at 50 (internal quotations omitted). “The burden of demonstrating that the determination of a local authority is not supported by substantial evidence is with the party seeking approval.” Id.

         Similarly, the telecommunications provider “has the burden to show an effective prohibition [on the provision of personal wireless services] has occurred.” Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48 (1st Cir. 2009). In order to show an effective prohibition, the telecommunications provider must establish both a “significant gap” in a carrier's coverage in an area and an absence of feasible alternatives to the proposed solution for remedying that significant coverage gap. Id. A telecommunications provider “attempting to show that local authorities have rejected the only feasible plan, ” must demonstrate not only that the local authority denied the application, “but that further reasonable efforts to find another solution are so likely to be fruitless that it is a waste of time even to try.” Green Mountain II, 750 F.3d at 40 (internal quotation marks omitted). A telecommunications provider that does not “prove it investigated thoroughly the possibility of other viable alternatives” has not met its burden. Omnipoint Holdings, 586 F.3d at 52 (internal quotation marks omitted).

         When a local authority has made findings about coverage gaps and whether there are feasible alternatives to the proposed solution, a court conducting an “effective prohibition” analysis grants “no special deference” to the conclusions reached by the local authority. Green Mountain II, 750 F.3d at 39. It is up to the court to definitively determine “whether or not a local denial constitutes an effective prohibition violative of the [TCA].” Id. at 38-39. “When conducting the ‘effective prohibition' inquiry, district courts” can consider, and may even require parties to present, evidence that was not part of the record before the local authority. Id. at 39.

         Once the court determines a denial has “effectively prohibited [a wireless service provider] from providing wireless services . . . it is incumbent upon the district court to craft an appropriate remedy.” Id. at 42. Courts should craft remedies based on “the specific facts and circumstances appearing in the record” before it. Id. “‘[I]n the majority of cases the proper remedy for a zoning board decision that violations the [TCA] will be an order . . . instructing the board to authorize construction, '” rather than allow ...


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