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American Towers, LLC v. Town of Shrewsbury

United States District Court, D. Massachusetts

June 22, 2018

AMERICAN TOWERS LLC and T-MOBILE NORTHEAST LLC, Plaintiffs,
v.
TOWN OF SHREWSBURY; SHREWSBURY ZONING BOARD OF APPEALS; and RONALD I. ROSEN, LISA A. COSSETTE, PAUL M. GEORGE, MELVIN P. GORDON, and DALE W. SCHAETZKE, in their capacities as members of the Town of Shrewsbury Zoning Board of Appeals, Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          F. Dennis Saylor, IV, United States District Judge

         This is 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”).

         Count 1 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.

         The 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.

         Plaintiffs 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.

         I. Background

         The following material facts are essentially undisputed.

         A. Factual Background

         American 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).

         The 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).

         American 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).

         The 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 surrounding neighborhoods.
[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 Street].

(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).

         The 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).

         During the January 30 meeting, Board Member Dale Schaetzke asked Edward Pare, the company's representative, to explain the claimed hardship:

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).

         During 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 17:14-20).

         The 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, Ex. 4).

         The 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 opposed.”)).

         At the 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 ...

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