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Varsity Wireless Investors, LLC v. Town of Hamilton

United States District Court, D. Massachusetts

March 31, 2019

VARSITY WIRELESS INVESTORS, LLC, Plaintiff,
v.
TOWN OF HAMILTON, ET AL., Defendants.

          MEMORANDUM AND ORDER

          WOLF, D.J.

         I. INTRODUCTION

         In 2017, plaintiff Varsity Wireless Investors LLC ("Varsity") applied for a special permit for the installation of a wireless telecommunications facility (the "Facility") in the Town of Hamilton (the "Town"). The special permit was denied by the Town of Hamilton Planning Board (the "Planning Board"). Varsity filed this suit, against the Town, the Planning Board, and its members in their official capacities. Varsity alleges two claims under the Telecommunications Act of 1996 (the "TCA"), based on the Planning Board's denial of the special permit. Varsity and the Town have negotiated an Agreement for Judgment (the "Agreement"), settling Varsity's claims and requiring the issuance of the special permit with certain conditions. Varsity and the Town have asked the court to approve the Agreement and enter the Judgment.

         Two additional motions now before the court arise out of a feature of the special permit granting process under the laws of the Commonwealth of Massachusetts. The Massachusetts state zoning law requires that a permit be approved by two-thirds of the members of the special permit granting authority when that board has more than five members. Although four members of the seven-person Town of Hamilton Planning Board voted to give Varsity the requested permit, the permit was denied because three Planning Board members - Peter Clark, Edwin Howard, and Claudia Woods (the "Planning Board Defendants") - voted against the request. When Varsity sued the Town, the Planning Board, and the members of the Planning Board in their official capacities, the Town filed an answer. The Planning Board did not. However, the Planning Board Defendants, by privately retained counsel, filed an answer separate from the Town's answer.

         The Planning Board Defendants oppose approval of the Agreement for Judgment. The Town and Varsity contend that the Planning Board Defendants lack standing to participate in this litigation separately from the Town and to challenge the Agreement. Therefore, they have moved to strike the Planning Board Defendants' answer to the complaint.

         The Planning Board Defendants have moved, pursuant to Federal Rule of Civil Procedure 21, to dismiss the Town as a party. This motion was filed after a hearing on the motion to strike, in another effort by the Planning Board Defendants to prevent entry of judgment pursuant to the Agreement.

         For the reasons explained in this Memorandum and Order, the court is: (1) denying the Planning Board Defendants' Rule 21 Motion to Dismiss the Town for Misjoinder (the "Rule 21 Motion"); (2) allowing the Town's Motion to Strike the Planning Board Defendants' Answer; and after nevertheless considering the Planning Board Defendants' objections, (3) entering judgment in accordance with the Agreement for Judgment.

         II. PROCEDURAL HISTORY

         In its Complaint, Varsity named as defendants, the Town, the Planning Board, and the seven members of the Planning Board in their official capacities. Varsity alleges that the defendants violated Section 704 of the Telecommunications Act of 1996 because the denial of the requested special permit "effectively prohibits provision of personal wireless services" in a particular area and was not based on "substantial evidence in a written record." See 47 U.S.C. §332(c) (7) (B) (iii); id. (B) (i) (II) . In addition, Varsity sought review of the Planning Board decision under M.G.L Chapter 40A, asserting that the Board exceeded its authority in denying Varsity's request for a special permit. Accordingly, Varsity sought an order directing the Board to grant Varsity all necessary permits for the construction and operations of the Facility. See Complaint (Docket No. 1) at 1.

         Defendant Town of Hamilton filed an answer to the Complaint. See Docket No. 19. The Planning Board did not file an answer. See Joint Statement (Docket No. 34) at 2, 3. However, the Planning Board Defendants filed a separate answer, containing both denials and affirmative defenses. See Docket No. 17. After this answer was filed, Woods moved out of Hamilton and resigned from the Planning Board. See Joint Statement (Docket No. 34) at 2-3. The Town subsequently filed a Motion to Strike the Answer of the Planning Board Defendants. See Docket No. 21. Varsity joined that motion, see Docket No. 24, which the Planning Board Defendants opposed, see Docket No. 26.

         Varsity and the Town later filed the Agreement for Judgment. See Docket No. 28. The Agreement provides for judgment for Varsity on all counts of the Complaint and directs the issuance of the special permit, subject to certain conditions. Id. at 2. The conditions consist largely of those that the Board indicated in its August, 2017 decision would have been necessary if the special permit had been granted. Compare Planning Board Findings and Decision (Docket No. 2) at 5-5 and Agreement for Judgment at 2-3. The Planning Board Defendants responded to the Agreement for Judgment, contending that the Motion to Strike, and a determination of the proper parties to the dispute, would have to be decided before the court decided whether to approve the proposed settlement. See Docket No. 29. Varsity filed a reply. See Docket Nos. 30-1.

         The court ordered the parties to be prepared to discuss, at an October 17, 2018 hearing, the implications of Indus. Commc'ns & Elecs., Inc. v. Town of Alton, N.H., 646 F.3d 76, 78-81 (1st Cir. 2011), concerning whether the Planning Board Defendants had standing to submit an answer to the Complaint separate from that of the Town and/or to challenge the Agreement for Judgment. The court also directed the parties' attention to a pertinent section of the Town of Hamilton By-laws (the "By-laws"). See Docket No. 35.

         At the October 17, 2018 hearing, the court ordered additional briefing concerning three issues: (1) whether the Planning Board Defendants have a protectable interest and, therefore, standing to participate in this case; (2) the applicable standards for court approval of a consent judgment; and (3) whether or not the Agreement for Judgment satisfies those requirements. See Docket No. 38. Varsity and the Town submitted memoranda on these issues. See Docket Nos. 40, 44.

         In addition to addressing the foregoing three issues, the Planning Board Defendants filed a motion to dismiss the Town as a party under Federal Rule of Civil Procedure 21. See Docket Nos. 42, 43. The Planning Board Defendants argue that the Town is not a necessary party in this case and, therefore, is dispensable. The Planning Board Defendants also assert that the Town has been "fraudulently joined" as a defendant to help Varsity obtain a consent decree, and that there is no relief Varsity can seek against the Town. See Docket No. 43 at 4-9. The court ordered Varsity and the Town to respond to the Rule 21 Motion. See Docket No. 46. They have done so jointly. See Docket No. 47.

         III. FACTUAL BACKGROUND

         The Planning Board is authorized by the Hamilton By-Laws to approve applications for special permits for the construction of communications towers and telecommunication antenna facilities. See Complaint (Docket No. 1) at ¶5. On May 19, 2017, Varsity applied to the Planning Board for a special permit to construct a 109 foot monopole tower at 557 Bay Road, in Hamilton. See Id. at ¶26.

         Varsity builds, owns, and operates communications infrastructure, and leases its infrastructure to personal wireless services providers, including Verizon Wireless ("Verizon"). Id. at ¶12. By mid-2017, Verizon had determined that there was a gap in its services in the area surrounding Bay Road in Hamilton. In collaboration with Varsity, it investigated potential sites for the installation of a personal wireless facility. Id. at ¶¶20-23. Determining that no existing structures were sufficient, Varsity identified the Bay Road site as the "sole appropriate and available location for the installation of a wireless telecommunications facility to fill the substantial and significant gap in Verizon Wireless' wireless service." Id. at ¶23. The Bay Road site is property owned by the Town. Id.

         The authority to issue a special permit in the Town is vested in the Planning Board. See Town of Hamilton Zoning By-Laws, §§3.1.3, 10.5, 7.2.2. Under Massachusetts law, M.G.L. Ch. 40A, §9a, a two-thirds majority vote, sometimes called a "supermajority," of a special permit granting authority is required to issue a special permit when the board is comprised of more than five members. See M.G.L. C.4 0A, §9a. The Hamilton Planning Board ...


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