United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...