MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, United States District Judge

Nextel Communications brings this suit against the Town of Sudbury, Massachusetts and its land use authorities alleging violations of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7) et seq., in the Town's denial of Nextel's applications for variances and special permits sought for the construction of a wireless antenna facility. Before me is Nextel's motion for summary judgment.

I. BACKGROUND

A. The Parties

The plaintiff, Nextel Communications of the Mid-Atlantic, Inc., doing business under the name Nextel Communications, ("Nextel," "Company") is a Delaware corporation with a regional office in Lexington, Massachusetts. It is a provider of enhanced specialized mobile radio services, a type of commercial mobile radio service ("CMRS"), which fall within the definition of "personal wireless services" ("PWS") as set forth in 47 U.S.C. § 332(c)(7)(i). Nextel is licensed to provide CMRS in Massachusetts, among other locations, by the Federal Communications Commission.

The Town of Sudbury is a municipal corporation of the Commonwealth of Massachusetts. The Zoning Board of Appeals ("ZBA" "Board") is an instrumentality of the Town of Sudbury. Patrick J. Delaney, III (Delaney), Lauren S. O'Brien (O'Brien), Thomas W.H. Phelps (Phelps), Melinda M. Berman (Berman), and Jonathan G. Gossels (Gossels) are residents of Massachusetts and are sued in their individual capacities as members of the ZBA.

B. Factual History

The efficiency of a wireless network, such as Nextel's, is dependent on the radio frequency coverage and, therefore, the geographic scope of the antenna network. Because subscribers to these personal wireless services commonly use them while traveling, it is essential that wireless carriers provide radio frequency coverage in all the territory in which their customers are located or travel. To facilitate this use, Nextel employs sophisticated electronic switching equipment which automatically "hands-off" the radio signal as a customer travels from one cell to another without interrupting service. However, in order for this hand-off to happen without service interruption — without the call being "dropped" — there must be overlapping coverage between cells. As a consequence, Nextel's WCFs must be located so as to insure adequate overlap of cells and propagation of radio frequency signals. Antennas must therefore be placed above trees, buildings and other obstacles that may hinder the radio signals. Areas without a comprehensive antenna network are likely to have substandard wireless service leading to dropped calls or an inability to place or receive calls.

The deployment of wireless communication facilities in Sudbury is regulated by Chapter 4300 of the Sudbury zoning by-laws (the "Bylaw"). The Bylaw establishes, and limits construction of wireless antennas to, a zoning "Overlay District" comprising five town-owned properties, as well as "all properties within Business, Limited Business, Industrial, Limited Industrial, Industrial Park and Research Districts" established by the zoning regulations. Id.

The Bylaw provides that certain facilities, such as "interior mounted wireless communications," certain roof-mounted, and facade-mounted equipment may also be constructed within the Overlay District "as of right." Id. at §§ 4340-4345. The Bylaw provides that other equipment, such as "free-standing monopoles," may be installed pursuant to the issuance of a special permit, and are subject to certain other restrictions and limitations, including a license period of five years, and obligatory co-location, "upon commercially reasonable terms," of the equipment of other wireless providers. Id. at §§ 4350-4355. However, notwithstanding the fact that the Overlay District includes essentially all of the non-residential zones in Sudbury, § 4351 expressly limits the construction of free-standing monopoles to the five town-owned sites within the district. Id. at 65. Section 4350 also imposes height and setback requirements for freestanding monopoles: the height of antenna facilities is limited to a maximum of 100 feet above grade; the facility must be located 125 feet from any property line. Id. at §§ 4352-4353. Additional setback requirements of 1000 feet from "any school building" and 500 feet from a residential lot line are applicable to all wireless facilities, except "small transceiver sites." Id. at § 4363.

Under state law, before a wireless service provider may build a facility at one of the town-owned parcels within the Overlay District, the town must first issue a "request for proposals" ("RFP") for the particular parcel. Thus, for a wireless service provider such as Nextel to receive a special permit to construct a free-standing monopole facility on any of the specified town-owned parcels, Sudbury must first issue an RFP.

In or about February 2000, Nextel determined that it needed to install an antenna or antennas in Sudbury in order to provide coverage to its customers in the Town as well as along Massachusetts Route 27. Radio frequency engineers employed by Nextel studied the Sudbury area, paying particular attention to the need for facilities that would provide coverage to the town center area. Nextel's engineers determined that only one of the five town-owned sites, the "Willis Hill" parcel, fell within Nextel's "search ring," the boundary within which an antenna must be located to fill the Company's existing coverage gap in the center of town.

Around this time the Town issued an RFP for the Willis Hill parcel. The Town's RFP for Willis Hill required a minimum bid of $300,000 for the five year lease. The RFP also required the successful bidder to attach its equipment to an existing fifty foot high water tower rather than build a new tower. ATT Wireless PCS (ATT), one of Nextel's competitors, was the highest bidder but, departing from the stated terms of the RFP, proposed the construction of a new tower. As a consequence, in spite of having won the RFP, ATT also needed a "special permit" for its plan to build a new tower on the site. The ZBA subsequently denied ATT's special permit application.

At some point prior to the Town's issuance of the Willis Hill RFP, ATT and the Town had been involved in litigation in this court. In May 2000, approximately three months after the Willis Hill RFP, ATT and Sudbury agreed to settle the outstanding litigation as well as all outstanding claims arising out of the ZBA's denial of the special permit. The Consent Decree and Final Judgment in the suit allowed ATT to construct an eighty foot tower with internally mounted antennas on the parcel. Furthermore, the Consent Decree provided that ATT's single carrier facility could be converted into a multi-carrier facility upon issuance of either an additional award from the February RFP or a new RFP by the Town.

Following the settlement, Nextel representative John J. Keene, Jr. ("Keene"), among others at the Company, made written and oral inquiries of Town officials about possible locations for a wireless facility which would achieve Nextel's coverage objective for the center of Sudbury. According to Keene's uncontroverted affidavit, he was told by town officials that no further RFPs would be issued for the Willis Hill parcel, or for any other location within Nextel's search ring. In particular, in a letter dated January 9, 2001 to Keene, Sudbury Town Manager Maureen Valente stated that the Town would not make the Fire Station site available to Nextel for a wireless facility because it was "sufficiently encumbered." Valente also stated that because "the Town has not addressed utilization of its various properties for some time" she expected that the Town would soon start developing a "master plan", one element of which could conceivably include the installation of additional wireless facilities such as Nextel was requesting. Valente concluded that, due to these and other factors, "it does not appear that the Town will be addressing the use of its property for additional cell towers in the near future."

According to Keene, these statements from Town officials induced Nextel to search for sites outside of the five town owned sites and the Overlay District that would accommodate a monopole antenna facility and satisfy the Company's coverage objectives. In documents later submitted to the ZBA with its special permit and variance applications, Nextel described its search for suitable sites in and around the Sudbury area.

Nextel had made the determination by approximately 1997 that it would have to have three cells in the Sudbury environs — generally north, south and center — to achieve complete coverage in the Town. In the course of trying to find an appropriate location for its center cell, Nextel examined twenty one alternative locations. As noted above, Nextel could not gain access to its preferred site, having failed to win either the RFP or a co-location position on the ATT tower at Willis Hill. Nextel also analyzed the possibility of locating on Highway Department property south of the center of Sudbury but concluded that the site was too far south to meet the Company's coverage objectives. Nextel was also unable to locate on several parcels because the Town refused to offer RFPs for these sites, including the Fire Station property and a parcel of town-owned property at 30 Hudson Road, which was immediately adjacent to the site ultimately proposed by the Company.

Nextel encountered topographical obstacles at other of the alternative sites it investigated, such as at the Fairbanks Community Center, the Mauri Service Station, and the Sudbury Regional High School. Nextel was also hindered by an unwillingness of a number of property owners to consider leasing their property to the Company for a tower. Several of the alternative sites Nextel investigated, including church steeples, another water tank and the Sudbury Town Hall, were simply too low to provide the requisite coverage. Finally, Nextel ruled out other locations, such as the Peter Noyes Elementary School and the Mt. Pleasant Cemetery, on the grounds that locating the Company's proposed tower at these sites would have considerable negative visual impact on the Town because the site was in an historic district or other prominent location.

Nextel ultimately settled on a site at 36 Hudson Road ("Hudson Road" the "Site") as meeting its coverage requirements and being less disruptive to the Town. One portion of the Site was located within Sudbury's zoned Business District #7 and the remainder in the Residential Zone. A commercial building housing "Ti Sales," a water/ sewer supply company, occupied a portion of the Site. The Site's largest abutters were parcels of undeveloped property owned by the Town and by the Commonwealth of Massachusetts. Nextel obtained permission from the Site owner to construct an antenna facility on that section of the Site within the business district.

Because Hudson Road was not one of the five parcels designated for the construction of monopole antenna facilities under the Bylaw, Nextel was obligated to submit two applications to the ZBA. First, Nextel sought a special permit for the construction of the wireless facility pursuant to Bylaw § 4350. Nextel also sought four variances allowing construction of a monopole facility outside the overlay district; allowing location within 1000 feet of a day care center; and permitting departures from the setback requirements required by § 4353 and § 4363. In its variance application, Nextel proposed, among other things, that the design of the proposed pole include internally mounted antennas and permit co-location of up to two additional wireless carriers.

Nextel explained in its May 21 application that it was seeking the variance and the special permit for the Hudson Road Site because it found no alternative site within a one-half mile that would meet its coverage objectives. Specifically, Nextel stated that the only structures which would "adequately fill Nextel's coverage gap would be the Willis Hill water tanks" or ATT's proposed tower at the Willis Hill site. Nextel stated it was unable to co-locate on the ATT tower however, because ATT's tower was only designed to accommodate one carrier. Nextel further stated that even if the Tower were designed to accommodate two carriers, as provided in the ATT's settlement with the Town, it would not be able to locate on the tower because the rights to any eventual second position had already been claimed by Sprint PCS.

Finally, Nextel stated that it had been informed by the Sudbury Water District that the Water District would not be issuing RFPs, "nor entertain any further Wireless facilities on that site either on a tower or on the tanks." The Town had similarly stated that no more RFPs would be forthcoming.

In support of its application, Nextel submitted maps of Sudbury denoting existing and proposed wireless facilities and photographic simulations of the proposed tower as it would look at the site. Nextel also submitted radio frequency coverage maps which, the company claimed, demonstrated the absence of adequate coverage in the center of Sudbury. Nextel also submitted the affidavit of John Dzialo, a Nextel radio frequency engineer, attesting to the "unique radio frequency characteristics of the Site," Nextel's diligence in investigating alternative sites, as well as the existence of a coverage gap in Sudbury. Finally, submitted a Memorandum describing its efforts to identify alternative sites which could provide the necessary coverage to the center of Sudbury.

The ZBA held public hearings on Nextel's Hudson Road application on July 10, 2001 and September 5, 2001. At the initial hearing on July 10, Keene described Nextel's investigation of sixteen other sites around Sudbury. He explained that Nextel had rejected these sites for a variety of reasons; for example, sites were rejected because they provided coverage that too closely overlapped existing coverage, did not fill the coverage gap in the center of Sudbury center, were not available because the owner was unwilling to lease space, or, in the case of several church steeples, were too low to meet Nextel's coverage goals.

In the memorandum describing its search for alternative sites, Nextel summarized the advantages of the Hudson Road site over all the alternative locations the Company had considered:

First, [the site] is on a property that is currently used for commercial purposes and borders two unoccupied parcels, the Town Property and the former railroad property. Secondly, as demonstrated by the photo simulations, real estate impact study and other evidence the site would have no detrimental impact on the community. . . Lastly, the subject property offered a reasonable location for construction of such a facility and had a willing landlord.

ZBA Chairperson Delaney read into the record the letter from the Sudbury Planning Board which had rejected Nextel's application primarily on grounds that the Site was within a zoned residential district and was not within the overlay district. Delaney also read into the record a letter from the Town Manager conveying the "strong feeling" of the Sudbury Board of Selectmen that all wireless facilities should be within the overlay district.

At one point in the July 10, 2001 ZBA meeting, Delaney questioned why Nextel needed a 100 foot tower to reach the center of Sudbury whereas a Nextel competitor, Omnipoint, had been able to satisfy its coverage objectives for Sudbury by locating its equipment on a pole twelve feet above a building in the center of town. Keene replied that he could not speak to Omnipoint's coverage needs.

Delaney also inquired as to what Nextel's coverage objective for Sudbury was, asking what standard of coverage federal law required Nextel to provide. Keene stated that federal law required licensed carriers to provide "adequate or reliable" coverage, and to do so within a certain limited time frame. Cameron Syme, a Nextel radio frequency engineer attending the hearing, stated that, under current conditions, Sudbury center and the Route 27 area would be considered to have "less than adequate coverage." Nextel attorney Michael Rosen stated that the federal standard for coverage, as defined by federal precedent was service that is "comparable to land lines."

The ZBA repeatedly questioned Nextel as to the availability and suitability of other sites, including the Willis Hill site, and as to the extent of the alleged coverage gap in Sudbury center.

At one point, Lawrence O'Brien, representing the Board of Selectmen, summarized the view of the Selectmen that the Town of Sudbury "has been more than gracious, flexible, and accommodating to all carriers requesting RFPs." Yet O'Brien also stated that "it is also the position of the current Board that. . . the Selectmen feel no need or desire to issue more RFPs. We do not plan to accommodate every request of every cellular carrier that comes to the Town asking for coverage on monopoles." Later in the meeting, O'Brien stated that the Board of Selectmen did not feel that it was the obligation of the Town of Sudbury to "provide 100% coverage for 100% of the carriers." Toward the conclusion of the July 10 meeting, O'Brien reiterated this position, stating that it was not the obligation of the Town of Sudbury to provide "superior coverage" for every carrier that wished to come to town. The July 10 meeting was continued to September 5, 2001 without reaching a conclusion.

At the September 5, 2001 hearing, the ZBA focused to a significant degree on Nextel's alleged coverage gap in the center of Sudbury. Chairperson Delaney stated that he had conducted a "semi-scientific test" of Nextel coverage throughout Sudbury. Delaney said that he had borrowed a Nextel phone from the Town and had driven around Sudbury placing calls from a variety of locations, and that all of the locations he had tried worked well. He stated that he was generally able to initiate and receive calls, with the exception of the area around Parker Street in Maynard where he said he was sometimes unable to initiate calls. He further stated that the signal strength meter on the phone's display had consistently shown strong signals. Delaney contrasted the reliability of this coverage with that at issue in the earlier ATT Willis Hill application. Delaney stated that, based on his test, Nextel's coverage gap was not as severe as ATT's had been.

At this hearing, Keene submitted to the ZBA overlay coverage maps depicting coverage from other sites, including the "highway garage" and "Village Green" sites. Keene claimed that, on the basis of the coverage areas illustrated by the maps, neither of these sites was sufficient to fill the gap in the center of the Town.

After the public portion of the meeting was concluded, the ZBA met to discuss and vote on Nextel's special permit and variance applications. Each element of Nextel's application was denied by a unanimous vote of the ZBA.

The Board based its denial of the Special Permit on a number of grounds. The ZBA found that the grant of a Special Permit under the circumstances would "nullify and substantially derogate from the intent and purpose" of the overlay district. The ZBA also stated that while the existing coverage was less than Nextel desired, the ZBA had not been persuaded that the company's desired degree of coverage was "a necessity to serve the public good and the requirements of the federal telecommunications act." The ZBA stated that it based this decision on the informal test of Nextel coverage carried out by Chairperson Delaney.

The ZBA also declared that it determined that the Town did not "unreasonably discriminate among providers of functionally equivalent services" in violation of the TCA, citing its prior approval of six applications of PCS providers. The reasons given for the ZBA's denial of Nextel's variance applications restated in all material respects the several reasons for the denial of the special permit.

The ZBA issued its formal "Notice of Decision" rejecting Nextel's applications on September 14, 2001. The Notice stated that the reasons for the decision were to be "found in the minutes of the hearing. . . which are incorporated herein and made a part hereof."

Nextel filed the instant complaint on October 12, 2001.

II. DISCUSSION

The claims in this dispute center on 47 U.S.C. § 332(C)(7) et seq. of the Telecommunications Act of 1996 ("TCA", "Act"), which provides that "anyone adversely affected by any final action or failure to act by local government that is inconsistent with the limitations [of the TCA] may seek review in any court of competent jurisdiction and the court shall hear and decide such action on an expedited basis." National Tower v. Plainville Zoning Board of Appeals, 297 F.3d 14, 17 (1st Cir. 2002); Town of Amherst, New Hampshire v. Omnipoint Communications Enterprises, 173 F.3d 9, 12 (1st Cir. 1999) (quoting 47 U.S.C. § § 332(c)(7)(B)(ii),(iii),(v)).

The First Circuit has described the TCA as "an exercise in cooperative federalism [which] represents a dramatic shift in the nature of telecommunications regulation." National Tower, 297 F.3d at 19. Section 332(c)(7) of the TCA reflects a "deliberate compromise" between two competing aims: facilitating the national growth of wireless telephone service while maintaining substantial local control over the siting of WCFs. See ATC Realty, LLC v. Town of Kingston, New Hampshire, 303 F.3d 91, 94 (1st Cir. 2002) (TCA works "like a scale" that attempts to balance need to accelerate deployment of telecommunications technology and desire to preserve state and local control over zoning matters); Amherst, 173 F.3d at 13; Omnipoint Communications, M.B. Operations LLC v. Town of Lincoln, 107 F. Supp. 2 108, 114 (D.Mass. 2000) ("[The] TCA [was] passed in order to provide a pro-competitive national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunication markets to competition.") (Internal quotations and citations omitted.) "Accordingly, the TCA significantly limits the ability of state and local authorities to apply zoning regulations to wireless telecommunications." Telecorp Realty, LLC v. Town of Edgartown, 81 F. Supp.2d 257, 259 (D.Mass. 2000). See Lincoln, 107 F. Supp.2d at 14. The balancing effectuated by the TCA "strengthens the decision making authority of local zoning boards, while protecting wireless service providers from unsupported decisions that stymie the expansion of telecommunication technology." ATC Realty, 303 F.3d at 94 (citing Brehmer v. Planning Board of Wellfleet, 238 F.3d 117, 122 (1st Cir. 2001)).

The "cooperative federalism" of the TCA is embodied in its effort to insure state and local authority over the placement and construction of wireless facilities while subjecting this authority to five limitations, three of which form the subject of this dispute. See National Tower, 297 F.3d at 19. In addition to these limitations of state and local authority, the TCA also specifies the terms of judicial review of local decision making. The First Circuit explained in National Tower that the terms of judicial review set forth in the TCA amount to nothing less than a further "allocation of decisional authority between the local boards and the federal courts." See id. However, as the National Tower Court pointed out, the TCA standard of judicial review is not unitary, but instead "depends on the nature of the issue presented and the statutory limitation involved." See id. In other words, the scope of federal court review of a decision of a state or local authority is determined by the statutory limitation alleged to have been violated.

Because I find for Nextel on substantial evidence grounds alleged in Count I, I find no occasion to explore the appropriate standard of review in the context of the other particular violations alleged by Nextel. The TCA provision upon which my judgment in this dispute turns requires that the denial of a request by a wireless provider to establish a wireless facility must be in writing and "supported by substantial evidence in a written record." 47 U.S.C. § 332(c)(7)(b)(iii).

A. Adequacy of the Written Record

Nextel first alleges that the Sudbury Zoning Board of Appeals violated the requirements of §§ (c)(7)(B)(iii) by providing no specific reasons for its denial of Nextel's variance and special permit applications in its report of decision on September 14, 2001. Nextel contends that the Board's incorporation of minutes of the July 10 and September 5 hearings as "the reasons for our decision" violated the act where the "reasons" in those meeting minutes were "simply general conclusions" or findings of fact not supported by the written record. The Town counters that its written decision and record support its denial of the Nextel application. Moreover, the Town asserts that under the deferential "substantial evidence" standard of review afforded to decisions of local authorities, its practices were appropriate.

The First Circuit has acknowledged that the TCA's provision requiring substantial evidence and a written record is a potential source of friction between state and local authorities and the national federal policy in favor of wireless services. See National Tower, 297 F.3d at 20-21. Thus, in National Tower, the Court recognized that, in light of the fact that local zoning boards composed of lay members and without substantial resources were compelled under the TCA to meet substantial procedural requirements, compliance with §§ (c)(7)(B)(iii) did not require formal findings of fact or conclusions of law. 297 F.3d at 20. The National Tower Court also reiterated that a zoning board's written decision need not state every fact in the record that supports its decision. See id., citing Southwestern Bell Mobile Sys. v. Todd, 244 F.3d 51, 59-60 (1st Cir. 2001) (requirement of formal findings of fact and conclusions of law has no basis in the language of the Act, noting contrast between § 332(c)(7)(B)(iii) and the express terms Administrative Procedures Act, as well as other sections of the TCA.) Instead, as the National Tower Court explained: "The Board's written denial must contain a sufficient explanation of the reasons to allow a reviewing court to evaluate the evidence in the record supporting those reasons." See id.

This standard flows not only from the policy considerations animating the Act, but from the use of the "substantial evidence" standard derived from federal judicial review of the action of administrative agencies. See National Tower, 297 F.3d at 21, citing H.R. Conf. Rep. No. 104-458, at 208 (1996). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See e.g., Todd, 244 F.3d at 58. While a reviewing court must take into account any contradictory evidence in the record, the First Circuit has stated that "the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Penobscot Air Services, Ltd. v. F.A.A., 164 F.3d 713 (1st Cir. 1999), quoting Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

Where the issue presented for judicial review is whether a written decision is supported by substantial evidence, the reviewing court is confined to the administrative record, barring a claim of procedural regularity. See ATC Realty, 303 F.3d at 95; National Tower, 297 F.3d at 22; Omnipoint Comms. v. City of White Plains, 175 F. Supp.2d 697,711 (S.D.N.Y. 2001). The application of the substantial evidence standard is a rule of deference; in short, if the question presented in a given lawsuit is "simply whether the Board's decision is supported by substantial evidence," courts will defer to the decision of a local authority, provided however, "that the local board picks between reasonable inferences from the record before it." National Tower, 297 F.3d at 22-23.

Nextel cites the First Circuit's decision in Southwestern Bell Mobile Systems v. Todd in support of its argument that the mere incorporation of the hearing minutes into the Report of Decision in lieu of a more extensive description of the reasons for the denial violates §§(c)(7)(B)(iii). See Todd, 244 F.3d at 61. The "substantial evidence/ written record" dispute in Todd concerned the question whether the board's decision violated the TCA, where the stated reasons did not perfectly mirror or embody the range of reasons contemplated by the Board as evidenced in the minutes. See id. at 56. In particular, the Todd court determined that many of the facts offered in support of the Board's legal conclusions were not reproduced in the written denial, and in fact, the factual underpinnings of these conclusions were far broader than the written decision indicated. See id. In spite of the brevity of the board's decision however, the Todd Court concluded that the decision did not violate the Act because the Board stated its decision "with sufficient clarity to permit an assessment of the evidence in the record." See id. at 60.

This rule is applicable here. While it is true, as Nextel argues, that the written report of decision issued on September 14, 2001 offers no fully developed reasons for the denial, it is equally true that the minutes of the September 14 meeting, particularly the record of the votes taken that were incorporated into the decision, provide more than adequate explanations of the grounds for decision. See National Tower, 297 F.3d at 20-21; Todd, 244 F.3d at 60. For example, the record of the vote on Nextel's application for a special permit (like the record of the other votes) states as a reason for the denial the fact that the Nextel facility would derogate from the intent of the by-laws to limit wireless facilities to certain specified districts and locations. The Board also stated that it denied the application because it disagreed with Nextel's assertion that its radio frequency coverage was not adequate in the center of town. The Board also reasoned that, upon evidence drawn from a "simulated crane test," the facility would constitute a "visual nuisance as an imposed background" for much of the year. Another reason provided by the Board for the denial was its opinion that other locations were available to Nextel which would not require zoning relief but would nevertheless achieve the Company's coverage goals.

These reasons are sufficient to satisfy the "written decision" requirement of §§(c)(7)(B)(iii). First, I conclude that on the basis of the information provided in the September 5 meeting, Nextel was provided with enough information as to the reasons for the Board's denial for it to have a "fair chance to respond to the board's reasons." See National Tower, 297 F.3d at 22. The First Circuit has stated clearly that formal findings of fact and conclusions of law are not required. See id. at 20-21. Moreover, the mere fact that the written decision incorporated the Board's reasons as they were stated at the time of the September 5 vote is not enough to deprive the Board of its entitlement to judicial deference. To impose a requirement that the local authority issue a separate statement of its reasons for the denial when the minutes are clear and demonstrate the final determination of the Board would be to impose a demanding burden on the local authority that would produce no commensurate benefits. See Todd, 244 F.3d at 60 (differentiating between statements which command support of entire board and those arguments put forth by individual members). In this respect, I bear in mind the First Circuit's observation that these Boards are composed of lay people who may have neither the time, experience, expertise or resources to provide procedurally perfect documentation.

This conclusion is not contrary to the First Circuit's comment in Todd that "even where the record reflects unmistakably the Board's reasons for denying a permit, allowing the written record to serve as the writing would contradict the language of the Act." See Todd, 244 F.3d at 60. The Todd court concluded that the TCA requires local boards to issue "written denial separate from the written record" which denial "must contain a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons." See id. (emphasis added). In other words, the crucial consideration in determining whether a Board's statement of decision complies with the TCA is whether the actual reasons underlying the Board's determination can be determined by a reviewing court. See National Tower, 297 F.3d at 21 (Board may not "hide the ball"); Todd, 244 F.3d at 60.

Admittedly, the situation here presents a hybrid aspect. The denial itself contains no statement of reasons or facts supporting its decision. However, the minutes which the "Notice of Decision" incorporates express clearly and comprehensively the Board's rationale for each decision. As will become clear from my discussion of that rationale below, I have had no difficulty in determining whether the Board's stated reasons arise from substantial evidence contained in the record. To reject the ZBA's procedures on this ground would be a victory of form over substance that is neither required by nor attentive to the purposes of the Act.

B. Substantial Evidence

Having concluded that the reasons contained within the minutes of the September 5 hearing as they were subsequently incorporated into the ZBA decision constitute a written decision in conformance with § (c)(7)(B)(iii), I now must consider whether these reasons were supported by substantial evidence in the written record. I conclude that they were not.

The "substantial evidence" standard, as I have noted, is deferential but it is not a rubber stamp. See Todd, 244 F.3d at 59 (internal quotations and citations omitted). On the other hand, the fact that the ZBA came to a conclusion differing from that proposed by Nextel on the basis of the evidence does not, in itself, mean that the decision was not based on substantial evidence. See e.g., Todd, 244 F.3d at 62 (quoting Penobscot Air Servs., 164 F.3d at 718). Thus, while it is true that a court will generally defer to a zoning board's decision and not substitute its judgment for that of the Board, it must overturn the board's decision under the substantial evidence standard if it cannot conscientiously find that the evidence supporting the decision is substantial when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the board's view. See White Plains, 175 F. Supp.2d 711 (internal quotations and citations omitted). Evidence opposed to the town's view must be considered. See Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494-95 (2d Cir. 1999); Nextel Comms. Inc. v. Mancester-by-the-Sea, 115 F. Supp.2d 65, 66-67 (D.Mass. 2000). The question here is whether the evidence would be adequate in the mind of a reasonable person to support the Board's conclusion. See Todd 244 F.3d at 58.

The ZBA minutes for the September 5 hearing provide a number of reasons for the denial of Nextel's application. Chief among these reasons, and the primary subject of discussion at the meetings, was the contention that Nextel's existing coverage was sufficient. The Board also explained that the proposed tower would constitute a visual nuisance and that the proposal would derogate from the intent of the bylaws and the Overlay district. I will consider each of these reasons in turn.

1. Coverage Gap

In support of its application for a special permit and variances, Nextel produced a comprehensive array of evidence that its network lacked coverage in the center of Sudbury. This evidence included several radio frequency coverage maps, the signed affidavit of Nextel radio frequency engineer John Dzialo, as well as statements by Cameron Syme, another Nextel engineer, at both hearings. In opposition to this Company evidence, the Board considered the "semi-scientific" test of ZBA chairperson Delaney who stated at the September 5 hearing that he had driven around Sudbury placing calls on a Nextel phone and had experienced no trouble initiating or receiving calls or having calls dropped. Delaney stated that although this was not a "controlled test," "this was what people would consider coverage." Keene apparently responded that the issue was not the complete absence of coverage, but the existence of adequate or reliable coverage.

There is a threshold question presented as to whether Delaney's "drive around" test can be considered adequate evidence in the mind of a reasonable person to support the Board's conclusion. See ATC Realty, 303 F.3d at 94; Todd, 244 F.3d at 58. The substantial evidence requirement plainly proscribes local government agencies from reaching decisions based on unsubstantiated conclusions. See Telecorp Realty, LLC v. Town of Edgartown, 81 F. Supp.2d 257, 260 (D.Mass. 2000) (finding no substantial evidence where Board based decision without conducting its own investigation); White Plains, 175 F. Supp.2d 715 -16, n. 7. Moreover, it seems but a corollary of this rule to say that a Board may not substantiate its conclusions by generating unscientific, anecdotal evidence. See id. As a counterweight to the record evidence provided by Nextel of the coverage gap, Delaney's test is clearly inadequate. See id.

To characterize Delaney's test as "semi-scientific" is overly generous. In fact, there was very little science to Delaney's experiment. The adequacy of Nextel's coverage was not examined in light of objective standards; rather it depends on Delaney's subjective impressions of how his borrowed phone functioned. Moreover, Delaney conducted his experiment on only one day. There is nothing to indicate that the day he chose wasn't simply a good day for cell phone use. Delaney's statements do not indicate the time of day at which he placed the experimental calls. Simply put, there is nothing in the record to indicate that Delaney's test reflects the true state of the Nextel network in the center of Sudbury over any meaningful period of time. Indeed, the ZBA itself recognized that Delaney's "informal test" did not demonstrate that Nextel network coverage may not be less than desired, or even non-existent, under other circumstances. No reasonable person could conclude on the basis of several hours of use on one day measured against a subjective standard that coverage is or is not reliable or adequate.

By contrast, Nextel's evidence is credible, authoritative, and reasonable. See White Plains, 175 F. Supp.2d at 716. Its coverage maps clearly show areas corresponding to the center of Sudbury where signal strength is non-existent or, at best, minimal based on objective criteria. Such maps are commonly relied upon by wireless carriers, zoning boards, and courts to determine the extent of coverage in a given locality. See e.g., Lincoln, 107 F. Supp.2d at 119. Moreover, the credible testimony of Nextel's licensed engineers provides compelling evidence that Nextel's coverage in the center of Sudbury was inadequate to meet the requirements of the TCA under Nextel's FCC license. The ZBA did not offer comparable evidence to rebut the Company's evidence. See White Plains, 175 F. Supp.2d at 716-17. While I acknowledge that the TCA requires deference to local authorities in most circumstances, I conclude that a reasonable person evaluating this evidence would find the ZBA's preference for Delaney's "semi-scientific test" over Nextel's evidence does not satisfy the substantial evidence standard. See Todd, 244 F.3d at 58; White Plains, 175 F. Supp.2d at 716; Group EMF, Inc. v. Coweta County, 50 F. Supp.2d 1338, 1348 (N.D.Ga. 1999) (Board may disbelieve testimony by licensed radio frequency engineer that coverage gap exists which could not be rectified except by proposed facility, but substantial evidence must exist in record to support this belief).

Finally, I note the ZBA's statement that other locations were available which offer "substantial coverage to an area which is already greatly served, all with little or no zoning relief" is without merit. First, the minutes of the hearings, the materials provided with Nextel's application, as well as a letter from Town Manager Valente, all indicate that the Town was in fact unwilling to issue RFPs for the only other sites which would conceivably have met Nextel's coverage needs without requiring zoning relief. The statements of Board of Selectmen representative Lawrence O'Brien at the July 10 hearing put the Town's attitude bluntly, stating "the Selectmen see no need or desire to issue any more RFPs" and that the town "did not plan to accommodate every request of every cellular carrier that comes to town." I note again that Nextel's desire to co-locate on the ATT tower at the Willis Hill site was blocked, in significant part, by the unwillingness of the Town to issue the RFP that would make co-location possible. See Sprint Spectrum v. Town of Ogunquit, 175 F. Supp.2d 77, 91 (D.Me. 2001) (rejecting Town's claim that alternative sites existed for carrier's proposed facility finding absence of substantial evidence where so-called alternative sites were in zoning districts expressly prohibiting WCFs).

The Town's unwillingness to consider Nextel's proposals was also expressed in the letter by Town Manager Valente to Keene in which she stated that the "Fire Station property [an alternative site] is sufficiently encumbered at this time" and suggesting, cryptically, that "Further development is contraindicated for reasons too numerous to address here." Finally, Valente announced that "it does not appear that the Town will be addressing the use of its property for additional cell towers in the near future." From these statements of Town officials, it seems more than reasonable for Nextel to have assumed that it had no choice but to seek an alternative site. Moreover, the contention that Nextel could meet its coverage objectives by means of a smaller, stealth installation nearer to the center of town fails for the same reason that the ZBA's argument regarding the alleged adequacy of the Nextel network fails: there is simply no substantial evidence supporting the ZBA's conclusion that Nextel didn't need the type of tower which it claimed. See Nextel Comms. v. Town of Wayland, 231 F. Supp.2d 396, 407 (D.Mass. 2002) (no substantial evidence in record addressing whether carrier would be able to provide sufficient coverage to close significant gap); Sprint Spectrum, 175 F. Supp.2d at 92 (finding no substantial evidence for Town's conclusion that wireless carrier could meet coverage goals by locating its WCF on a number of smaller towers, noting that only evidence in record on this theory was wireless carrier's criticism of feasibility and efficiency of such a plan).

2. Visual Impact

The ZBA's factual basis for its conclusion that the proposed tower would constitute a visual nuisance appears to be without a substantial basis in the evidence.

In the minutes to the September 5 Meeting stating the reasons for the denial of the permit and variances, the ZBA stated two factors which influenced its decision regarding the tower's visual impact: a nearby property owner had testified that the tower would constitute a visual nuisance, and the belief that much of the concealment of the tower would depend on seasonal leaf cover. Nextel counters that the ZBA provided no photographs or other evidence in support of this conclusions. Moreover, the absence of evidence supporting the ZBA's conclusion is brought into sharp relief, Nextel contends, by the evidence proffered by the Company in its "View Shed Analysis" which, it claims, shows that the tower would not be visible from seven out of eight tested locations and is well-screened by the deciduous trees, even at times when the trees are leafless, such as in early Spring.

Aesthetic judgments against the construction or location of a wireless facility must be "grounded in the specifics of the case." See Todd, 244 F.3d at 61. While local zoning authorities are not obligated to provide evidence of adverse, quantifiable or economic impact, an adherence to generalized aesthetic norms may not be used to mask a de facto prohibition of wireless service. See Nextel Communications Inc. v Manchester-by-the-Sea, 115 F. Supp.2d 65, 71-72 (D.Mass. 2000) (generalized concerns about aesthetics not deemed substantial evidence where residents and Board opposing facility did not offer photographic evidence, property appraisal, or expert evidence with regard to aesthetics or possible injury to property values); White Plains, 175 F. Supp.2d at 716 (unsupported fears of local residents not substantial evidence in light of "thorough and detailed" report of visual impact of facility including photo simulations).

Based on a reading of the minutes of two ZBA meetings at which the Nextel applications were discussed, I conclude that the record reveals almost no discussion of the "visual nuisance" allegedly created by the tower. The conversation of the ZBA members and Nextel's representatives in both hearings focused almost exclusively on the height of the proposed tower and the possibility of locating the facility on smaller towers; the only comment in the record relating to the visibility of the tower was that made by the one Sudbury resident who complained that the tower would be visible from his back yard. At the time, Keene responded that, notwithstanding the resident's comment, the photo simulations provided by Nextel demonstrated that the tower would be "virtually invisible" except when viewed from the access way to the facility. What is more, there is no discussion of the results of the crane test in the minutes of either hearing to which the stated reasons refer. In fact, there is no evidence at all in the hearing minutes as to when and how the alleged crane test took place or who participated in this test.

Given the paucity of discussion of the aesthetic issues created by the tower, I conclude that the decision was not supported by substantial evidence on this ground. See ATC Realty, 303 F.3d at 97-98 (holding town planning board's decision to approve proposal supported by substantial evidence where nearly forty percent of residential abutters complained about effect of rejected facility whereas no one had complained about approved facility which was virtually identical to rejected proposal in all other respects); Todd, 244 F.3d at 61 (noting cases in which aesthetic objections were "demonstrably without substance" because of evidence that facility or equipment were difficult to see or were aesthetically compatible with area); Omnipoint Corp. v. Zoning Hearing Board of Pine Grove Township, 181 F.3d 403, 407 (3d Cir. 1999); Manchester-by-the-Sea, 115 F. Supp.2d. at 72 (record includes significant evidence that tower design would blend in with masts of vessels in the area). In this case, the View Shed Analysis provided by Nextel provides compelling, and unchallenged, evidence that the tower would be very difficult to see. Attempting to counter this evidence, the ZBA asserts that its "simulated crane test" demonstrated that the tower would not be hidden by leaf cover during much of the year. Given that there is no evidence in the record concerning the alleged "crane test," let alone that the results of the test were discussed, the "crane test" results are "demonstrably without substance" and fail to provide substantial evidence of negative visual impact. See Todd, 244 F.3d at 61. By contrast, Nextel's View Shed Analysis contains photo simulations which show that the tower is not visible, even at a time in which the surrounding trees have negligible, if any, leaf cover. See id.

Furthermore, the generalized objection of one resident that the tower would constitute a "visual nuisance" is insufficient evidence on which to base the denial. See ATC Realty, 303 F.3d at 97-98; Edgartown, 81 F. Supp.2d at 260-61 (testimony of a few residents not substantial evidence justifying denial of permit on aesthetic grounds); Manchester-by-the-Sea, 115 F. Supp.2d at 72 (general aesthetic objections of eleven residents insufficient evidence for denial). Because aesthetic bases for denying a permit must correlate to the specifics of the case, the ZBA must have evidence rebutting particular features of Nextel's proposal to support its aesthetic objection. See Todd 244 F.3d at 61. The ZBA produced no such evidence.

3. Derogation of Intent and Purpose of By-Laws

The ZBA also bases its denial of the Nextel application on the grounds that approving the location of a wireless communication facility outside of the Overlay District would defeat the purpose of the zoning regulation. The ZBA states that the Nextel proposal is at odds with the variance requirements of the zoning regulations, as well as the Town's attempt to minimize the impact of wireless communication facilities. The ZBA stated:

The Board feels that this special permit application, along with the accompanying application for use variance and the third application for a variance constitutes an overall request for an extreme departure of the underlying intent of the Bylaw that wireless facilities be combined in preselected locations and be established so as to have minimal impact on adjoining properties and the Town as a whole.

Of the several rationales offered by the ZBA in defense of its decision to deny the Nextel permits, the issue of the adherence to the town's plan for wireless facilities is the most compelling. However, I conclude that on the basis of the record in light of the demands of the TCA, the Town's stated commitment to its established plan as justification for the permit denial is not supported by substantial evidence.

A proper analysis of the Board's justification of its denial under the substantial evidence standard requires that I determine whether the particular purpose defined by the Bylaws is, in fact, nullified or derogated by Nextel's proposal. On this basis, I conclude that there is no substantial evidence to support the Board's rationale. See Cellco Partnership v. Town of Douglas, 81 F. Supp.2d 170, 174 (D.Mass. 1999) (failure of town to provide particular evidence as to why proposed WCF "derogates and nullifies" zoning bylaw constitutes failure to demonstrate substantial evidence).

I turn to the text of the Sudbury zoning by-law, § 4300. The Bylaw defines its purpose as

to establish districts within Sudbury in which wireless services may be provided with minimal harm to the public health, safety and general welfare of the inhabitants of Sudbury; and to regulate the installation of such facilities by 1) minimizing visual impact, 2) avoiding potential damage to adjacent properties, 3) by maximizing the use of existing towers and buildings, 4) by concealing new equipment to accommodate the needs of wireless communication in order to reduce the number of towers needed to serve the community and 5)promoting shared use of existing facilities.

§ 4310 at 63. As applied to the facts of the Nextel application, the ZBA's denial may not be justified by resort to a desire to reduce visual impact because, as indicated above, the visual impact of the proposed tower was negligible. There was almost no indication, aside from the complaint of one resident, that adjacent properties were at risk of potential damage from the Nextel tower. Indeed, I note that at the July 10 hearing, the parties discussed a letter from Town Manager Valente to Nextel in which she expressed the view that "the parcel immediately adjacent" the site proposed by Nextel might be suitable for a wireless facility.

Adherence to the goal of by "maximizing the use of existing towers and buildings," and "concealing wireless equipment to reduce the number of towers," while ostensibly valid justifications for the denial of a permit, is not supported by evidence in the record in this case. See Cellco, 81 F. Supp.2d at 174. In fact, the record clearly shows that the town was unwilling to issue further RFPs for the Willis Hill site, the only site in the overlay district from which Nextel could have achieved its coverage goals. Indeed, the ZBA seemed to be working actively against the express purpose of the Bylaw to promote "shared use of facilities" by refusing to issue RFPs that would make such shared use possible.

C. Summary

To summarize, I find that there is a written record adequate to conclude that the ZBA decision lacked substantial evidence. The ZBA's contention that adequate coverage by the Nextel network existed in the center of Sudbury, that the proposed tower constituted a visual nuisance, and that the proposed tower would "nullify and derogate" the purposes and intent of the bylaws are unsupported by evidence that a reasonable person would find adequate to support its decision. As a consequence, Nextel's motion for summary judgment on Count I is granted.

III. CONCLUSION

For the reasons set forth above, the Plaintiff's motion for summary judgment is GRANTED as to Count I, and the Clerk is hereby directed to enter judgment for Nextel requiring the Town to issue the special permit, variances and all other approvals and permits necessary to allow construction of the proposed facility at 36 Hudson Road to begin without further delay.