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Eco-Site II, LLC v. The Town of Wilmington

United States District Court, D. Massachusetts

March 25, 2019




         Pending before this court is a motion for summary judgment filed by plaintiffs Eco-Site II, LLC (“Eco-Site”) and T-Mobile Northeast LLC (“T-Mobile”) (collectively “plaintiffs”). (Docket Entry # 41). Defendants the Town of Wilmington (“the Town”), the Town of Wilmington Zoning Board of Appeals (“the Board”), Edward Loud (“Board Member Loud”), Daniel Veerman (“Board Member Veerman”), Anthony Barletta (“Board Member Barletta”), Thomas Siracusa (“Board Member Siracusa”), and Jacquelyn Santini (“Board Member Santini”) (collectively “defendants”) oppose the motion. (Docket Entry # 49). After conducting a hearing, this court took the motion (Docket Entry # 41) under advisement.


         Plaintiffs filed this action on February 23, 2017, challenging the Board's denial of their application for dimensional variances and a special permit under the Town's Zoning Bylaw to construct a wireless telecommunications facility at a designated property in the Town. (Docket Entry # 1). “Plaintiffs seek an order from this court directing the Board to grant Plaintiffs' requests for zoning relief in accordance with their rights under the” federal Telecommunications Act of 1996 (“the TCA”), 47 U.S.C. § 332(c) (“section 332(c)”). (Docket Entry # 1, p. 2). Specifically, they assert that the Board's denial violates section 332(c)(7)(B) of the TCA because it: (1) is not supported by substantial evidence; and (2) effectively prohibits T-Mobile from providing personal wireless service. (Docket Entry # 42, p. 6).

         Defendants oppose the summary judgment motion and request “disposition on their behalf in accordance with the” TCA, Massachusetts General Laws chapter 40A (“the Massachusetts Zoning Act”), and Federal Rule of Civil Procedure 56(f)(1) (“Rule 56(f)(1)”) and 56(f)(3) (“Rule 56(f)(3)”). (Docket Entry # 46, p. 3). Defendants did not file a cross motion for summary judgment. Defendants contend that the Board's decision is supported by substantial evidence in the written record and that neither the Town's Zoning Bylaw nor the Board's decision constitute an “‘effective prohibition'” under the TCA because it does not prohibit cell towers within the Town. (Docket Entry # 46, p. 3). Principally, they argue that notwithstanding the TCA, the Board's denial is in accordance with the Town's Zoning Bylaw, as allowed by the Massachusetts Zoning Act. (Docket Entry # 46, pp. 4-5).


         Summary judgment is designed “‘to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'” Davila v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir. 2007) (internal citations omitted). It is appropriate when the summary judgment record shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 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.'” American Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir. 2008) (internal citation omitted). “‘A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.'” Id. (internal citation omitted).

         Facts are viewed in favor of the non-movant, i.e., defendants, and resolved in their favor. See Jones v. City of Boston, 845 F.3d 28, 32 (1st Cir. 2016) (“district court was required to assume that any disputes of material fact-including conflicting opinions offered by competent experts-could be resolved by the jury in the Officers' favor”). Plaintiffs submit a LR. 56.1 statement of undisputed facts. Uncontroverted statements of fact in the LR. 56.1 statement comprise part of the summary judgment record. LR. 56.1; Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (the plaintiff's failure to contest date in LR. 56.1 statement of material facts caused date to be admitted on summary judgment); Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102 (1st Cir. 2003).


         “T-Mobile provides wireless telecommunications services pursuant to licenses issued by the Federal Communications Commission” (“FCC”). (Docket Entry # 43, ¶ 2) (Docket Entry # 45, p. 2). “To provide its services, T-Mobile must deploy a network of interrelated ‘cell sites' that must overlap in a grid pattern, and must provide adequate signal strength and network capacity.” (Docket Entry # 43, ¶ 3) (Docket Entry # 45, p. 2). “Eco-Site is in the business of developing telecommunication towers” that allow wireless carriers, such as T-Mobile, to create and maintain their network of cell sites. (Docket Entry # 43-2, p. 12).

         Based on research and analysis by radio frequency (“RF”) engineers, T-Mobile determined “that it has a significant gap in its ability to provide service in the Town . . . in the vicinity of Tacoma Drive . . . caused by a lack of reliable in-building residential and commercial coverage.”[1] (Docket Entry # 43, ¶¶ 14-15) (Docket Entry, # 45, p. 5). The coverage gap at ¶ 2100 MHz frequency spans approximately 2.1 square miles. (Docket Entry # 43, ¶¶ 9, 11, 18) (Docket Entry # 45, pp. 4, 6) (Docket Entry, # 43-1, ¶ 7, 18). “The gap in coverage includes residences, commercial buildings, and strip malls within a boundary composed of I-93, Middlesex Avenue, Salem Street, Lawrence Street, Shady Lane Drive, and Concord Street.” (Docket Entry # 43, ¶ 19) (Docket Entry, # 45, p. 6) (Docket Entry, # 43-1, ¶ 19). “According to 2010 U.S. Census data, there are approximately 2, 320 to 5, 494 residents in the in-building coverage gap area.” (Docket Entry # 43, ¶ 20) (Docket Entry # 45, p. 7) (Docket Entry, # 43-1, ¶ 19).

         In light of the gap, T-Mobile's RF engineers identified a search area (“the search ring”) in the vicinity of Tacoma Drive which needed a new wireless telecommunications facility to remedy the service gap. (Docket Entry # 43, ¶ 21) (Docket Entry # 45, p. 7). The search ring “consisted mostly of single-family homes, an industrial area, single story retail stores with accompanying parking lots, a school, fresh water ponds, and conservation land.” (Docket Entry # 43, ¶ 24) (Docket Entry # 45, p. 8). The parties agree that “[a]n appropriate candidate within the search ring must be able to work within T-Mobile's existing network to remedy the service gap, comply with local zoning requirements, hav[e] a willing landlord, and be buildable.” (Docket Entry # 43, ¶ 26) (Docket Entry # 45, p. 8).

         “Plaintiffs performed a detailed and thorough search of the area within the search ring for available properties that would be suitable for construction of a wireless telecommunications facility” and “worked to find a site . . . that complied with the Town's local zoning bylaws.” (Docket Entry # 43, ¶¶ 23, 27) (Docket Entry # 45, pp. 7-9). An unsigned affidavit purportedly prepared by a “Site Acquisition Specialist” on behalf of plaintiffs identifies four separate locations within the search ring that were considered and ultimately rejected: “St. Dorothy's Church, ” “200 Jefferson Road, ” Town-owned land (“Town Hall”), and the “Anderson property.”[2] (Docket Entry # 43-2, p. 41).

         The Town Hall, although a permitted location under the Town's Zoning Bylaw, “was not an appropriate candidate because the Town refused to enter into a lease that would permit T-Mobile to deploy a wireless telecommunications facility at the” location. (Docket Entry # 43, ¶¶ 28-29) (Docket Entry # 45, p. 9). Although St. Dorothy's “Church is [within] a residential zone, the Town's bylaws [] permit construction so long as the facility [is] deployed in the church steeple.” (Docket Entry # 43, ¶ 31) (Docket Entry # 45, p. 10). However, the unsigned affidavit states that “[t]he existing steeple is too low to provide coverage.”[3] (Docket Entry # 43-2, p. 41). Finally, “T-Mobile expressed interest in 200 Jefferson Road, a site that sits in a general business zone, and was being used to store old eighteen-wheelers at the time.” (Docket Entry # 43, ¶ 34) (Docket Entry # 45, p. 10). The landlord of the property, however, “refused to lease the property.” (Docket Entry # 43, ¶ 35) (Docket Entry # 45, p. 11).

         After evaluating the properties within the search ring, T-Mobile determined that a property at 4 Waltham Street (“the Proposed Site”) was an appropriate site because: “[i]t is located in a General Business Zone, it would provide coverage relative to its location, it is buildable, and the site owner agreed to lease the site.”[4] (Docket Entry # 43, ¶ 40) (Docket Entry # 45, p. 12). The zoning location of the Proposed Site does not prohibit a telecommunications facility. (Docket Entry # 43, ¶ 72) (Docket Entry # 45, p. 23). On October 31, 2016, plaintiffs entered into a lease with the owner of the Proposed Site that permitted construction of a wireless telecommunications facility. (Docket Entry # 43, ¶ 42) (Docket Entry # 45, p. 13).

         As previously noted, “Eco-Site filed an Application for a special permit for a wireless communication facility” with the Town on November 15, 2016. (Docket Entry # 43, ¶ 54) (Docket Entry # 45, p. 16). The Application “requested that the Town grant Eco-Site a Special Permit, Site Plan Review, and specific dimensional variances so that Eco-Site could construct a 120-foot monopole style wireless tower at 4 Waltham Street” (“the Proposed Facility”). (Docket Entry # 43, ¶ 55) (Docket Entry # 45, p. 17).

         “The Application included detailed site plans for the [Proposed Facility]; photographic simulations; an alternative site analysis; an inventory of existing towers; an RF Affidavit; T-Mobile's coverage maps; a Federal Airways & Airspace Report; a fall zone letter [“the Fall Zone Letter”];[5] evidence of T- Mobile's FCC licenses; a list of abutters to the [Proposed Site]; and a Storm Water Pollution Prevention Plan prepared by professional engineers.” (Docket Entry # 43, ¶ 59) (Docket Entry # 45, p. 18). The Fall Zone Letter states, among other things:

[T]owers can be specifically designed for a reduced fall zone so that if a catastrophic event results in an overload of the structure, it will yield at a specific height resulting in failure that allows the top section of the tower to collapse while the lower section remains upright. This type of design could reduce the fall zone by as much as half if properly designed. Using this type of tower[, ] the tower fall zone could be designed to avoid the building on the northern abutting parcel (355), located approximately 120' feet from the tower location, as shown in revision c zoning drawings by Infinigy dated 10/31/16.

(Docket Entry # 43-2, p. 60).

         Overall, the Application purported to demonstrate that plaintiffs “were ‘entitled to a Special Permit, Site Plan Approval and Dimensional Variances[] because their proposal satisfies the requirements set forth in Section 6.8.5, Section 10.5, Section, 10.6, and Section 6.5 of the [Town's Zoning] Bylaw and [the Massachusetts Zoning Act] and the [TCA][.]'” (Docket Entry # 43, ¶ 57). Specifically, the Application states:

[B]ecause the Bylaw restricts wireless facilities to the General Business (GB), General Industrial (GI) and Highway Industrial (HI) districts, and further requires that wireless facilities be set back at least five hundred feet (500') from a residential building and setback from the property line by a distance equal to the height of the tower, the Town of Wilmington has effectively prohibited wireless facilities from certain areas of the Town. It is impossible for T-Mobile to provide reliable wireless coverage to the Town of Wilmington under the present zoning scheme without obtaining the requisite dimensional variances and zoning relief.

(Docket Entry # 43-2, p. 8).

         The Application also contains statements arguing that the Town and its residents will “benefit from construction of the Proposed Facility because it will provide increasingly reliable wireless service with E911 enhanced emergency service, Global Positioning System (‘GPS') technology, and will generally promote the safety and welfare” of “the Town [and] its residents, businesses, and drivers by providing reliable state-of-the-art digital wireless voice and data services.” (Docket Entry # 45, p. 20) (Docket Entry # 43, ¶ 63).

         A public hearing on the Application before the Board took place on January 17, 2017 (“the hearing”). (Docket Entry # 45, p. 20) (Docket Entry # 43, ¶ 64). Board members Loud, Veerman, Barletta, Siracusa, and Santini (“the board members”) were present at the hearing. (Docket Entry # 48-1, p. 199). Ricardo Sousa, Esq. (“Sousa”), an attorney representing plaintiffs, gave a presentation about the Proposed Site and the Proposed Facility. (Docket Entry # 45, p. 22) (Docket Entry # 43, ¶ 68) (Docket Entry # 48-1, pp. 201-203). Monte De Ramos and Greene also spoke on behalf of plaintiffs. (Docket Entry # 43, ¶ 69) (Docket Entry # 45, p. 22). “Monte De Ramos, an RF Engineer, produced RF propagation maps demonstrating T-Mobile's existing network coverage and a propagation map depicting the anticipated coverage from the proposed facility.” (Docket Entry # 43, ¶ 70) (Docket Entry # 45, p. 22). The Board did not conduct an independent analysis and “no contrary information concerning” the coverage gap “was presented at the hearing.” (Docket Entry # 45, p. 22).

         Board Member “Loud asked if Plaintiffs had evaluated the Tewksbury Fire Department pole” (“the Tewksbury Fire Department Tower”). (Docket Entry # 45, p. 23) (Docket Entry # 43, ¶ 73) (Docket Entry # 48-1, p. 201). The hearing minutes note that plaintiffs “had not” evaluated this location at the time of the hearing.[6] (Docket Entry # 48-1, p. 201). In addition, “Sousa testified that Plaintiffs believed that the Town Hall was the ideal location for a facility to remedy the significant gap, but that the Town was not interested.” (Docket Entry # 43, ¶ 74) (Docket Entry # 45, p. 23) (Docket Entry # 48-1, p. 201).

         A number of abutters at the hearing expressed objections to the Application. (Docket Entry # 43, ¶ 75) (Docket Entry # 45, pp. 23-24) (Docket Entry # 48-1, p. 201). “Abutter Peter Reinhart stated that he did not see the need for a tower at the [Proposed] Site.” (Docket Entry # 43, ¶ 76) (Docket Entry # 45, p. 24) (Docket Entry # 48-1, p. 201). “Abutter Paul Logan (“abutter Logan”) was concerned that there was not a tree line to screen the proposed tower from his view.” (Docket Entry # 43, ¶ 77) (Docket Entry # 45, p. 24) (Docket Entry # 48-1, p. 201). “Abutter Paul Kneeland submitted a memorandum opposing the Application because of the proximity to [the] railroad tracks.” (Docket Entry # 43, ¶ 78) (Docket Entry # 45, p. 25). “Abutter Barbara Fitzgerald was opposed to the Application because she was ‘concerned about excavating or building anything more on [the] site.'” (Docket Entry # 43, ¶ 79) (Docket Entry # 45, p. 25).

         During the hearing, abutter Logan opposed the Application and raised his concern about a proposal a few years ago “that involved rezoning the [Proposed Site] to a mixed residential/business zone.” (Docket Entry # 43, ¶ 80) (Docket Entry # 45, pp. 25-26) (Docket Entry # 48-1, p. 201). “The Town did not offer any expert testimony concerning the design or safety of the proposed facility during the hearing.” (Docket Entry # 43, ¶ 81) (Docket Entry # 45, p. 26).

         Various Board members at the hearing also voiced their opposition to the Application. (Docket Entry # 43, ¶ 82) (Docket Entry # 45, p. 26) (Docket Entry # 48-1, p. 201). Board Member Loud stated that the Proposed Facility “was too close to the railroad tracks, adjacent building and residential abutters” as well as not safe. (Docket Entry # 43, ¶ 83) (Docket Entry # 45, p. 26) (Docket Entry # 48-1, p. 201). Board Member Barletta agreed with Board Member Loud. (Docket Entry # 43, ¶ 84) (Docket Entry # 45, p. 27) (Docket Entry # 48-1, p. 201). Board Member “Siracusa wanted to know how the Proposed Facility would benefit the Town.” (Docket Entry # 43, ¶ 85) (Docket Entry # 45, p. 27). Board Member “Santini stated that granting the Application was not in the best interest of the Town or residential abutters.” (Docket Entry # 43, ¶ 86) (Docket Entry # 45, p. 27).

         Board Member “Santini then made a motion to deny the requested Special Permit because the Application did not meet the criteria of § 6.8 of the [Town's Zoning] Bylaw [because] the Proposed Facility was too close to the lot line, railroad tracks, abutting property, and residential zone.” (Docket Entry # 43, ¶ 87) (Docket Entry # 45, p. 28) (Docket Entry # 48-1, p. 203). The Board members “voted unanimously to deny the Application because it did not meet the criteria of the [Town's Zoning] Bylaw.” (Docket Entry # 43, ¶ 88) (Docket Entry # 45, p. 28) (Docket Entry # 48-1, p. 203).

         The Board denied the application in two separate, similar decisions, one for Eco-Site's request for dimensional variances (“the Variance Denial”) and the other for Eco-Site's request for a special permit (“the Special Permit Denial”) (collectively “the Denial”). (Docket Entry # 43, ¶ 66) (Docket Entry # 45, p. 21) (Docket Entry # 48-1, pp. 207, 209, 213, 215). The Variance Denial notes that Eco-Site is seeking variances from sections and of the Town's Zoning Bylaw and states that:

To acquire a variance from the Zoning Bylaw Wireless Communications Facilities § - facilities shall be located a minimum of 500 feet from an existing residential dwelling or proposed dwelling . . . located within a residential district (the [P]roposed [F]acility is less than 500 feet from the residential zones on First Avenue and North Street) and § - monopoles shall be set back from the property lines of the lot on which it is located by a distance equal to the overall vertical height of the monopole and any attachments plus five feet (the proposed structure is 17 feet from the side lot line and 90 feet from the rear lot line abutting the railroad tracks).

(Docket Entry # 48-1, p. 207). After reciting the hearing minutes, the Variance Denial then states: “[Board member Santini] made a motion to deny the variances for the reasons stated, too close to lot line, railroad tracks, abutting property, residential zone . . . [t]herefore, the Board, having considered the matter, a motion was made to deny the petition.” (Docket Entry # 48-1, p. 209). The Variance Denial then lists each of the Board members and his or her respective “No” votes. (Docket Entry # 48-1, p. 209). Next to each “No” reads: “Reasons for denial; As stated above.” (Docket Entry # 48-1, p. 209).

         The Special Permit Denial contains a similar recitation of the hearing minutes before stating:

Therefore, the Board, having considered the matter, [Board Member] Jacquelyn Santini made a motion to deny the Special Permit under §6.8, does not meet the criteria of the [Town's Zoning] Bylaw. Each member was present and voted in the following way . . ..

(Docket Entry # 48-1, p. 215). Like the Variance Denial, the Special Permit Denial then lists each of the Board members and his or her votes along with the reason for denial next to each “No” vote, namely, “Does not meet criteria of Bylaw.” (Docket Entry # 48-1, p. 215). The Board “admits that its Decision does not make specific mention of the purported ‘service gap' in coverage or the proposed facility itself.” (Docket Entry # 45, p. 29).

         “Plaintiffs filed their complaint on February 23, 2017, and alleged that the Town's denial of the Application was not based on substantial evidence and effectively prohibits the provision of personal wireless services.” (Docket Entry # 43, ¶ 92) (Docket Entry # 45, p. 29) (Docket Entry # 1). Defendants filed an answer “on March 21, 2017, and included as an affirmative defense that Plaintiffs, ‘failed to exhaust alternative site proposals for the installation of the proposed telecommunications tower at issue.'” (Docket Entry # 43, ¶ 93) (Docket Entry # 45, p. 30) (Docket Entry # 15). The answer also includes an affirmative defense referencing “‘the location of an already existing tower which appears to fulfill the applicant's alleged reception gap without the required variances needed to locate on the [Proposed Site].'” (Docket Entry # 43, ¶ 94) (Docket Entry # 45, p. 30) (Docket Entry # 15). “The Town, however, state[s] in its Answers to Interrogatories that it is unaware of any potential alternative sites that could remedy T-Mobile's significant gap in service.” (Docket Entry # 43, ¶ 95) (Docket Entry # 45, p. 31) (Docket Entry # 43-4, p. 3).

         “The Town admitted in its Answers to Interrogatories that it did not conduct an independent investigation into T-Mobile's significant gap in service.” (Docket Entry # 43, ¶ 96); (Docket Entry # 45, p. 31) (Docket Entry # 43-4, pp. 5-6). “The Town has not identified any expert who will testify about T-Mobile's significant gap.” (Docket Entry # 43, ¶ 97) (Docket Entry # 45, p. 31).


         As discussed above, plaintiffs contend that the Board's denial of the Application violates section 332(c)(7)(B) of the TCA “because it is not supported by substantial evidence in the record and because it effectively prohibits T-Mobile from providing personal wireless service.” (Docket Entry # 42, p. 6). Accordingly, they ask that this court grant the summary judgment motion “and order the Town to immediately issue all necessary permits and approvals.” (Docket Entry # 42, p. 7). This court will first discuss the overlay of the state and local zoning laws at issue as well as the TCA before proceeding to plaintiffs' “substantial evidence” argument. This court will then address plaintiffs' “effective prohibition” argument and the appropriate remedy, if any.

         I. State and Local Zoning Laws

         As explained by the court in American Towers LLC v. Town of Shrewsbury, Civil Action No. 17-10642-FDS, 2018 WL 3104105, at *5 (D. Mass. June 22, 2018) (“American Towers”), [7] “[t]he Massachusetts Zoning Act authorizes individual cities and towns to pass zoning bylaws, and describes the limits of that authority and the manner in which it may be exercised.” See Mass. Gen. Laws ch. 40A, §§ 1 et seq. “The [Massachusetts] Zoning Act allows towns to regulate the maximum and minimum dimensions of structures and lots allowed in certain zoned areas.” American Towers, 2018 WL 3104105, at *5. “It also allows towns to regulate the uses to which land in a given area may ...

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