United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
Dennis Saylor, IV, United States District Judge
a dispute over the proposed construction of a cell-phone
tower. Plaintiffs American Towers LLC and T-Mobile Northeast
LLC propose to build a multi-carrier monopole-style tower in
Shrewsbury, Massachusetts. The property on which the tower is
proposed to be constructed is located in a zoning district
that prohibits such construction. Plaintiffs applied for
variances from the zoning by-law to defendant Shrewsbury
Zoning Board of Appeals, which denied the application.
Plaintiffs contend that that denial violated the Federal
Communications Act of 1934, as modified by the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56 (“TCA”).
alleges that the town has effectively prohibited cell-phone
service in violation of 47 U.S.C. § 332(c)(7)(B)(i).
Count 2 alleges that the Zoning Board's opinion is not
based on substantial evidence contained in a written record,
in violation of 47 U.S.C. § 332(c)(7)(B)(iii).
Plaintiffs have moved for partial summary judgment on Count 2
only. Defendants filed a cross-motion for summary judgment on
the same count.
core of the dispute concerns the standard the Zoning Board
was required to use to evaluate the application, and
therefore what conclusions were required to be supported by
substantial evidence. The Court concludes that the Board is
not required-although it is encouraged-to take the TCA into
account when evaluating an application for a zoning variance
for the purpose of building a telecommunications facility.
Rather, the Board need only evaluate the application under
the applicable standard as set forth in state law or the
local zoning bylaw. However, the Board may not simply parrot
that standard; it must give specific reasons why the
particular application before it does not meet that standard,
in order to permit effective review in federal court. Because
the Board failed to do that here, partial summary judgment as
to liability will be granted as to Count 2.
contend that a violation of the
“substantial-evidence” requirement, without more,
entitles it to a remedy of an injunction requiring the town
to approve the variance. The Court is not convinced that such
a violation should automatically result in injunctive relief.
In any event, the Court will not impose a remedy at this
time, but will await the disposition of the entire case.
following material facts are essentially undisputed.
Towers LLC and T-Mobile Northeast LLC (collectively,
“American Towers”) entered into an agreement with
the owners of 271 Spring Street, Shrewsbury, Massachusetts,
to lease a certain part of the property and construct a
wireless communications facility there. (Rinne Decl. Ex. 2 at
1, Ex. 2 at Tab 2). American Towers seeks to construct a
149-foot multi-carrier monopole-style tower. (Rinne Decl. Ex.
2 at 2).
property is in a Rural A Zoning district, which does not
allow wireless communication towers and does not allow
structures taller than 35 feet. (Rinne Decl. Ex. 1 at 2). No.
special-permit process is available. Thus, in order to build
the planned tower, American Towers required (1) a use
variance from Zoning Bylaw Table I (the Use Regulation
Schedule), and (2) a dimensional variance from Zoning Bylaw
Table II (Minimum Requirements and Maximum Conditions).
Towers filed an application for a zoning variance with the
Town of Shrewsbury Zoning Board of Appeals on January 4,
2017. (Rinne Decl. Ex. 1 at 1, Ex. 2 at Tab 1; see
Shrewsbury Zoning Bylaw § IX(B)(2) (Amendments Through
May 18, 2016) (allowing any person seeking a variance to
appeal to the Board of Appeals)). The application contended
that the proposal met the standard for a variance outlined in
Mass. Gen. Laws ch. 40A, § 10 because “[t]he Site
is unique owing to the shape and topography of the land and
its location within the narrowly defined area within which a
facility will provide the necessary coverage to fill
significant gaps in T-Mobile's network, ” and
“the size of the lot allows ample setbacks to lot
lines, providing a natural buffer of distance and vegetation
to adjoining properties and nearby roads.” (Rinne Decl.
Ex. 2 at 4).
application included a report from Ryan Monte de Ramos, a
radio frequency engineer, that stated the following:
Based on the radio frequency studies, reports and computer
models prepared in connection with this project, it is my
professional assertion that there is inadequate network
service available to existing and potential T-Mobile
customers within the Town of Shrewsbury, especially along
North Street, High Street, Main Street, Spring Street and
[I]t is my further professional opinion that T-Mobile would
be able to achieve the coverage objective by filling these
significant gaps in coverage through the installation of the
[proposed wireless communications facility] at [271 Spring
(Rinne Decl. Ex. 2 at Tab 4 ¶¶ 10-11). The
application also included coverage maps showing existing
T-Mobile LTE 2100 MHz coverage in the area, and the improved
coverage that a tower on the proposed site would provide.
(Rinne Decl. Ex. 2 at Tab 5).
Board held a public meeting on January 30, 2017, to discuss
the application. (Rinne Decl. Ex. 3). At the meeting,
representatives of American Towers displayed the coverage
maps. (Rinne Decl. Ex. 2 at Tab 5). In response to a question
from a resident as to whether the white areas of the existing
coverage map represented “no coverage whatsoever, or
just no LTE coverage, a representative of the company
explained that the gap in coverage was specifically
“in-building” coverage: “You can probably
get phone calls in the area. If you're in a vehicle,
you're probably likely to maintain a call. But you would
not get in-building service, say, in the buildings throughout
the area. That's what the green depicts. Coverage,
phone-wise, would probably be most of the map you see in the
area.” (Rinne Decl. Ex. 3 at 18:2-16).
the January 30 meeting, Board Member Dale Schaetzke asked
Edward Pare, the company's representative, to explain the
BOARD MEMBER DALE SCHAETZKE: I understand you're looking
for relief variance for three portions of our zoning bylaw,
and I believe each of these would require that you
demonstrate a hardship. Can you do that please?
EDWARD PARE: I can. So I think we have two, actually, one for
use, and one for height, because your bylaw has kind of a
funny-we're staying within the 150 feet for poles, but
your underlying zoning district has a 35-foot height limit.
So in case it's applicable, we ask for relief. So I think
it's actually two, pursuant to your authority.
If you take a look at my materials, there's under
Massachusetts State Law, which you're all used to dealing
with, we have those hardship criteria that be related to the
soil, topography, land, et cetera. But there is another one
that's been developed over the years by the Federal
Courts, and that is significant gap in coverage. So we have
this federal law overlay, over state and local law. It's
been recognized by a number of courts, including through the
first circuit, so we can't always satisfy that direct
state law link, but this superimposes-it's like an
umbrella over that. So our hardship is really the significant
gap in coverage.
(Rinne Decl. Ex. 3 at 15:21-16:22).
the same meeting, an abutter requested a balloon test, in
which American Towers would loft a balloon at the proposed
location to the height of the proposed structure, take
pictures from various locations in the town to establish how
visible the structure would be, and use those pictures to
create a simulation of what the tower itself would look like
from different vantage points. (Rinne Decl. Ex. 3 at
meeting was continued pending the results of the balloon
test. That test was conducted on February 14, 2017, and the
results were included in the record. (Rinne Decl. Ex. 1 at 2,
public meeting resumed on February 27, 2017. (Rinne Decl. Ex.
5). Benjamin Caron, of Caron & Associates Design,
explained how he conducted the balloon test and what the
results showed. (Rinne Decl. Ex. 5 at 5:9-9:24). Pare and
Mike Almada, a representative of American Towers, discussed
the potential alternatives to the site that the company had
considered, and why they were not feasible. (Rinne Decl. Ex.
5 at 12:19-14:12, 19:20-20:23, 28:22-29:9, 31:23-36:6,
43:21-44:16). During the part of the meeting open to public
comments, many Shrewsbury residents spoke against the
project, primarily for aesthetic reasons. (Rinne Decl. Ex. 5
at 23:25-24:14, 27:4-23, 29:18-30:2, 32:4-7, 36:9-37:2,
38:11-22, 44:19-45:3, 54:15-21, 60:5-17; see also
Id. Ex. 5 at 50:9-14 (“CHAIR RON ROSEN: Is there
anyone here who is going to speak in support of this
proposal? Okay, I was curious. Just curious. I think
we've received a bunch of emails that were also
close of the meeting, on February 27, the Board voted
four-to-one to deny the variances. (Rinne Decl. Ex. 1 at 2;
id. Ex. 5 at 138:10-20). The entire deliberation on
the matter was follows:
CHAIR RON ROSEN: Okay, so 271 Spring Street, American Tower
Corporation, T-Mobile Northeast, LLC. I know where I'm
going with this.
BOARD MEMBER DALE SCHAETZKE: And I know where I am, too.
CHAIR RON ROSEN: And I think it doesn't matter who goes
first, I don't think there's anything to discuss.
BOARD MEMBER DALE SCHAETZKE: I don't believe they've
demonstrated a hardship.
CHAIR RON ROSEN: Yeah, okay. Can I get a motion.
BOARD MEMBER DALE SCHAETZKE: Move to deny.
CHAIR RON ROSEN: Second?
BOARD MEMBER PAUL GEORGE: Second.
CHAIR RON ROSEN: All in favor of the denial?
MULTIPLE SPEAKERS: Aye.
CHAIR RON ROSEN: Anyone opposed?
BOARD MEMBER MELVIN GORDON: Yes.
CHAIR RON ROSEN: Okay. The only thing I'll-my editorial
comment, we've only approved one cell tower, at least in
the 10 ...