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VWI Towers, LLC v. Town of North Andover Planning Board

United States District Court, D. Massachusetts

September 11, 2019

VWI TOWERS, LLC, Plaintiff,
v.
TOWN OF NORTH ANDOVER PLANNING BOARD, JOHN SIMONS, PETER BOYNTON, JENNIFER LUZ, EITAN GOLDBERG, AARON PRESTON, CHRISTINE ALLEN and TOWN OF NORTH ANDOVER, Defendants.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton, United States District Judge.

         This case arises out of the denial of a special permit for the construction and operation of a wireless communication facility by VWI Towers, LLC (“Varsity” or “plaintiff”) to be located at a site in the Town of North Andover. Varsity brings this action against the Town of North Andover Planning Board (“the Planning Board”), individual members thereof and the Town of North Andover (collectively “the Town” or “defendants”), alleging that they have violated the Telecommunications Act of 1996, 47 U.S.C. § 332 (“the TCA”).

         Plaintiff alleges that 1) the Planning Board's written decision denying the permit application is not supported by substantial evidence contained in the written record as required by § 332(c)(7)(B)(iii) (Count I) and 2) the denial of the permit effectively prohibits the provision of personal wireless services in violation of § 332(c)(7)(B)(i)(II) (Count II). Plaintiff seeks the annulment of the Planning Board's decision denying its permit application and the issuance of a permanent injunction ordering the Town to issue all necessary permits for the immediate construction and installation of the proposed facility.

         Before this Court is plaintiff's motion for summary judgment. For the following reasons, that motion will be allowed, in part, and denied, in part.

         I. Background

         A. The Coverage Gap and the Proposed Facility

         Varsity develops communications facilities for the deployment of personal wireless services. It leases its facilities to telecommunications providers who install their own equipment to provide service to a particular geographic area. Cellco Partnership, doing business as Verizon Wireless (“Verizon”), and New Cingular Wireless PCS, LLC (“AT&T”) are telecommunication providers licensed with the Federal Communications Commission to provide personal wireless services in the Commonwealth of Massachusetts, including the Town of North Andover.

         In order for a telecommunications carrier to provide an effective wireless communications system, it must maintain a network of cell sites with slightly overlapping coverage areas. Cell sites are typically comprised of a base station and a cell tower with mounted antennae and other electronic communications equipment. Those cell sites must be overlapping to allow users to move freely through a geographic area without losing service. They need to be constructed at a sufficient height as defined by various factors, such as location, coverage of existing cell sites, terrain, land use characteristics and population density.

         Verizon and AT&T are continuously building their networks of cell sites to provide reliable service through current “4G LTE” technology while also planning for future needs and demands. Consistent with that goal, Verizon and AT&T have identified a gap in their coverage within the Town of North Andover in the area comprising Foster Street, Salem Street, Boxford Street, Bridges Lane, Vest Way and surrounding roads and neighborhoods (“the Coverage Objective”).

         Verizon hired a radio frequency expert to analyze the existing wireless communications network coverage and needs in the Coverage Objective using radio frequency propagation maps and drive test data. He determined that there were over 1, 000 residents in the affected area receiving inadequate service from Verizon. Moreover, the expert estimated that the Coverage Objective experienced a significant amount of traffic with Salem Street serving approximately 9, 600 vehicles per day east of Appleton Street and 2, 900 vehicles per day south of Boxford Street.[1] AT&T is estimated to have a nearly identical area of deficient coverage and approximately 1, 300 customers in the Coverage Objective area who lack adequate service.

         In August, 2017, Varsity applied to the Planning Board for a special permit and site plan review for the installation and operation of a proposed facility located at 122 Foster Street in North Andover (“the Proposed Facility”). It also applied separately to the Town of North Andover Zoning Board (“the Zoning Board”) for a series of variances needed to construct the Proposed Facility. The Proposed Facility would consist of a 130-foot-tall cell tower camouflaged as a pine tree (“the monopine” or “the tower”), faux pine branches that extended five feet above the tower to a height of 135 feet, a compound of nearly 4, 000 square feet surrounded by a six-foot-high wooden stockade fence, an ice bridge, a back-up generator, a pad-mounted transformer and other communications equipment. Verizon and AT&T agreed to enter into separate leases with Varsity whereby they would co-locate their antennas on the monopine.

         Along with its application, Varsity submitted the report of Verizon's radio frequency expert and several documents demonstrating its site selection process. Those documents included a spreadsheet of 19 alternative properties Varsity reviewed and rejected as a location for the Proposed Facility with the reasons for their rejection. The report also explained that so-called “macro sites” (such as the Proposed Facility) are the more common solution for larger areas of wireless service coverage but that those sites can be supplemented by so-called “small cells” which generally consist of smaller antenna mounted on existing utility poles, light poles or short rooftops and are designed to service discrete areas rather than broad coverage gaps. The expert concluded that the use of only small cells would be inadequate to provide the desired level of service to the Coverage Objective.

         B. The Relevant Bylaw

         In assessing Varsity's application for a special permit, the Planning Board considered the following relevant provisions of the North Andover Zoning Bylaw (“the Bylaw”), among others. Section 8.9(1) of the Bylaw provides that its express purpose is

to minimize the visual and environmental impacts as well as any potential deleterious impact on property value, of wireless service facilities located within the Town or adjacent thereto.
Pursuant to Section 8.9(3)(a)(i) of the Bylaw, [t]he carrier must demonstrate that the facility is necessary in order to provide adequate service to the public.

         Under Section 8.9(3)(b)(i), wireless service facilities are to be located on pre-existing structures if feasible, such as existing buildings, telecommunications facilities, utility poles and towers or related facilities.

         In accordance with Section 8.9(3)(b)(ii), the wireless facility must be camouflaged to the greatest extent possible if it is not going to be located on a pre-existing structure and under Section 8.9(4)(a)(II), the facility must be surrounded by a buffer of dense trees or vegetation to provide a year-round visual buffer. Section 8.9(4)(d) provides that:

(i) [n]o facility shall be located within 300 feet of a Scenic Road and
(ii) [w]ireless service facilities shall not be located within open areas that are visible from public roads, recreational areas or residential development.
Finally, under Section 10.31(1) of the Bylaw,
[t]he Special Permit Granting Authority shall not approve any such application for a Special permit unless it finds that in its judgment all the following conditions are met: [(1)] [t]he specific site is an appropriate location for such a use, structure or condition; [(2)] [t]he use as developed will not adversely affect the neighborhood; [(3)] [t]here will be no nuisance or serious hazard to vehicles or pedestrians; [(4)] [a]dequate and appropriate facilities will be provided for the proper operation of the proposed use; . . . [and (5)] [it] make[s] a specific finding that the use is in harmony with the general purpose and intent of this Bylaw.

         C. The Hearing Process, the Town's Expert Reports and the Board's Decision

         Between September, 2017, and January, 2018, the Planning Board held five public hearings at which Varsity's application for a special permit was discussed. At those hearings, representatives of Varsity presented their analysis with respect to the Coverage Objective and the impact of the Proposed Facility. Numerous residents testified regarding the visual impact of the Proposed Facility on the historic landscape, including the farm on which the Proposed Facility was to be located. They pointed out the adverse visual impact on the community soccer fields near the Proposed Facility and the likely negative impact on the property values of surrounding residences. Several residents testified that there was already adequate wireless coverage in their area, abutters to the proposed property submitted a petition signed by 21 residents who opposed the tower and two direct abutters submitted a letter requesting that the Proposed Facility be built on a different location farther back on the proposed site.

         In response to those concerns, Varsity agreed to reduce the height of the proposed tower to 110 feet (115 feet to the top of the fake branches) and conducted expert studies of both the visual impact of the Proposed Facility at the modified height and its possible effect on residential property values.[2] Varsity presented photographs to the Planning Board which demonstrated that, while the tower would be visible year-round from several locations (including the community soccer fields and several residences), it was minimally visible from many locations and not visible at all from most others. Furthermore, Varsity's real estate consultants concluded that the Proposed Facility would have no measurable impact on surrounding property values.

         In addition to the testimony and materials submitted by Varsity and residents, the Planning Board also considered analysis conducted by its own consultant, David Maxson (“Maxson”). He concluded, based on his own radio frequency propagation maps, that there was a gap in coverage generally in the geographic area identified by Verizon and AT&T and that placing a facility somewhere in that area would improve the service to the covered residences. He also agreed that 1) there did not appear to be any existing structures where Verizon and AT&T could co-locate and which was capable of providing the desired coverage, 2) both Verizon and AT&T would require a minimum tower height of 97 feet in order to provide adequate coverage and 3) both carriers could not locate their antennas at the same height on the tower.

         Moreover, Maxson agreed with Varsity that the use of “Cloud Radio Access Nodes” (“C-RANs”) alone, which are a type of small cell site, would be unable to satisfy the desired service to the Coverage Objective. He explained that C-RANs could provide service to portions of Salem Street and Boxford Street where there are existing utility poles on which the devices could be mounted but that a new macro site would be needed to provide coverage to many other streets and residences in the Coverage Objective which lacked existing utility poles and would likely oppose the erection of new utility poles. He explained that ...


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