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holding that the decision was not supported by substantial evidence because the zoning board failed to consider whether its decision would violate the effective-prohibition clause and holding that, even if the board were not required to consider that, its decision was still not supported by substantial evidence for other reasons
Summary of this case from Am. Towers LLC v. Town of ShrewsburyOpinion
CIVIL ACTION NO. 02-11646-DPW.
The two cases comprising this litigation, Civil Action No. 02-11646-DPW and Civil Action No. 02-12406-DPW, were consolidated by order dated January 16, 2003, as a result of which Civil Action No. 02-11646-DPW was designated the lead action.
June 26, 2003.
MEMORANDUM AND ORDER
In this litigation, Nextel Communications challenges certain actions of the Town of Provincetown, its Planning Board, Zoning Board of Appeals (ZBA), and individual members of the ZBA, (collectively, "Defendants," "Provincetown," "Town") in denying Nextel's request to place a wireless communications facility ("WCF") in the cupola of a private home. Nextel alleges chiefly that the Defendants' actions were not based on substantial evidence in a written record and constitute effective prohibition of wireless services in violation of the Telecommunications Act of 1996, 47 U.S.C. § 332 et seq, (TCA). Nextel moves for summary judgment.
The Defendants have filed a cross-motion for summary judgment upholding the Town's refusal to allow construction of the Nextel facility. The Defendants claim that the rejection of Nextel's WCF was supported by substantial evidence and that neither the Town's decision nor the aggregate effect of its zoning by-laws constitute effective prohibition of wireless services. Moreover, they argue that subsequent action by Town meeting has raised the prospect of relaxation of some of the limitations on wireless service by the Plaintiff in Provincetown. For the reasons set forth below, I will grant Nextel's motion for summary judgment and deny the Defendants' cross-motion.
I. BACKGROUND
The following undisputed facts are derived from the administrative record submitted by Nextel in support of its applications for special permits and other approvals before the Provincetown Zoning Board of Appeal and the Provincetown Planning Board.
A. The Parties
Nextel Communications ("Nextel," "Company") is a Delaware corporation with a regional office in Lexington, Massachusetts. Nextel is licensed by the Federal Communications Commission to provide "personal wireless services" in Massachusetts. Nextel provides commercial mobile radio services that fall within the definition of personal wireless services set out in Section 704 of the Telecommunications Act of 1996, 47 U.S.C. § 332 (c)(7) (C)(i).
The Planning Board and Zoning Board of Appeals ("ZBA") are agencies or instrumentalities of the Town of Provincetown, charged with responsibility for making the land use, zoning and planning decisions at issue in this case. The individual defendants are named in their official capacities as members of the ZBA and Planning Board.
B. Factual History
1. Nextel's Operations Generally
Nextel operates a personal wireless service network throughout the country and in Massachusetts. The network requires the deployment of wireless communication facilities, including antennas, throughout the area to be covered. The areas covered by a given antenna and its related receivers and transmitters are known as "cells." Nextel's portable wireless telephones operate by sending low-powered radio frequency transmissions to and from these cells. Sophisticated switching equipment operated by Nextel links these wireless transmissions to ground telephone lines, making it possible for a user of Nextel's wireless services to have, at least in theory, a seamless connection to the entire available network of telephone service. The size and efficiency of a given cell is determined by factors including the number of antennas used, the height of the antennas, the topography and vegetation of the terrain of the cell, as well as the presence of man-made or naturally occurring obstacles in the area.
The efficiency of a wireless network, such as Nextel's, is dependent on the radio frequency coverage and consequently the geographic scope of the antenna network. In other words, a Nextel customer's ability to use the Nextel network efficiently is dependent on the existence of overlapping cells in a given area so as to effectuate uninterrupted hand-offs of calls from cell to cell. As a consequence, Nextel's WCFs must be located so as to insure adequate overlap of cells and adequate propagation of radio frequency signals; antennas must 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.
2. Nextel on Cape Cod
Nextel is licensed by the federal government to provide wireless services to Cape Cod. Certain geographic and cultural features of the Cape Cod area make the siting of WCFs problematic however. Specifically, Cape Cod's attraction as a tourist destination is dependent in large part on the appearance of the environment of the area, including its beaches, ponds, and national parks. Since 1990, development of Cape Cod has been overseen by the Cape Cod Commission (CCC), which is charged by the Massachusetts legislature with the authority to approve or deny any "development" of Cape Cod which poses a possibility "of regional impact" ("DRI") (emphasis supplied). Any new wireless facility taller than 35 feet high is considered a DRI. CCC regulations prohibit towers in excess of 150-feet tall. The CCC is authorized to reject any new WCF if an existing structure, which is not a DRI, is available.
3. Nextel in Provincetown
Nextel identified a coverage gap in its network in the Provincetown area in 1997. To correct this coverage gap, engineers employed by Nextel used computer models to identify a search ring, consisting of potential locations on which a WCF could be sited. Nextel determined that a site in Provincetown would need to be significantly north of the neighboring town of Truro to provide adequate coverage to Provincetown and avoid signal redundancy.
Nextel currently provides limited coverage to a small portion of the Town by means of a Nextel WCF in neighboring Truro.
At the Annual town meeting in April 1999, Provincetown enacted a zoning by-law regulating telecommunications facilities ("By-law," "Article 7"). Article 7 contained a number of requirements, including setbacks for WCFs, insurance and indemnification, radio-frequency monitoring, and permit renewal requirements, in addition to sundry technical and procedural filing requirements.
In or around June 1999, Nextel obtained a lease to a portion of property located at 20 Provincetown Road in Provincetown, but was ultimately unable to build its WCF at this location. Nextel then investigated the viability of other locations, including sites within the Cape Cod National Seashore, as well as property owned by the state of Massachusetts and the Town itself. Nextel understood that each of these sites it had identified would constitute DRIs requiring CCC approval and substantial zoning relief from the Town.
In November, 2000, David Maxson issued a report on behalf of the Cape Cod Commission which analyzed the Provincetown By-Law enacted the prior year. The Maxson Report identified the restrictive nature of the Provincetown By-law as making the Town an "area of critical concern" for the installation of wireless facilities in lower Cape Cod. Specifically, the Maxson Report concluded that the By-law had the effect of limiting the installation of wireless facilities to only five "permissible areas," all of which were near environmentally sensitive locations or which were vulnerable to negative visual impacts from the siting of WCFs. To address the dearth of potential WCF sites, Maxson recommended that Provincetown end its restriction on the siting of WCFs on municipal water towers, warning that, unless it did so, Provincetown risked a court finding that it had effectively prohibited wireless service.
In addition to sites on public land, Nextel also explored the possibility of locating its antennas on existing structures within the Town, including the Pilgrim Monument, the Provincetown Town Hall, the Mount Gilboa water tank, certain water tanks on Winslow Street, and the Unitarian Universalist Meeting House. Nextel determined however that each of these possible sites, even if available, would not satisfy the Company's signal propagation requirements. Further weighing against these locations, in Nextel's view, was the fact that these sites would also require substantial zoning relief before they would be approved by the Town.
4. Nextel at Bradford Street
On or around October 5, 2001, Nextel obtained permission from Richard Wrigley, the owner of a five acre parcel located at 232-236R Bradford Street in Provincetown, to construct an antenna facility within a cupola to be built atop Wrigley's residence. The proposed antenna facility would be enclosed entirely within and concealed by the cupola, a structure which itself could be constructed as a matter of right within the zoning district. The antennas in the cupola would be connected to switching facilities concealed in an underground room near the residence. As proposed, the Bradford Street facility would not require approval by the CCC because it did not constitute a DRI. However, the facility did not conform to the setback rules described in Article 7 of the By-law which required that a WCF be at least 500 feet from any dwelling units, schools, municipal water supply towers, child care facilities, and housing for the elderly.
5. Nextel's Applications
On or around August 5, 2002 Nextel submitted a joint application to Provincetown's ZBA and its Planning Board requesting land use and zoning relief in order to install its WCF at the Bradford Street site. Specifically, Nextel requested relief from the setback requirements of § 7070(L) (M), from the radio frequency monitoring regulation of § 7110, from the indemnification and insurance requirements of § 7130 and from the licensing term requirement of § 7140. In support of its application, Nextel submitted a description of its site selection process, including an analysis provided by Nextel Radio frequency engineer Tammy Smith describing the signal propagation gap in Provincetown and the characteristics of various alternative sites considered by the Company. Nextel also included a wide variety of supporting materials, including a study of the likely real estate impact of the WCF, certification that the proposed facility posed no danger to aircraft, a structural engineering analysis, and statements from the Massachusetts Historical Commission and Wampanoag Indian Tribe that the facility posed "no adverse impact" to historical or cultural resources. Finally, Nextel submitted extensive reports, maps, photographs and design specifications, as well as visual impact tests including photo simulations of the cupola.
6. The Hearing Process
a. The ZBA — The ZBA held a public hearing on Nextel's application on September 19, 2002. At the hearing, Nextel proffered testimony and documentary evidence describing the gap in its coverage, its site selection process, its design for the proposed WCF, and the implications of federal law for local zoning authorities. At the hearing, the ZBA acknowledged receiving seventeen letters from Town residents opposed to the facility. Approximately twenty residents attended the public hearing, a small number of whom spoke against the proposal.
At the conclusion of Nextel's presentation at the hearing, ZBA Chairman Gary Reinhardt disputed the Company's contention that it would be impossible for Nextel to locate its WCF at any of the five alternative sites it had identified. Reinhardt stated that while the other sites may have created more difficulty for the company in siting a facility, such difficulty did not amount to a hardship requiring the grant of a variance from the setback requirements stated in the By-law. An attorney for Nextel responded by pointing out that Nextel had received notice from the United States Department of Interior that locating a WCF within the Cape Cod National Seashore was contrary to the purposes for which the Seashore was established, thus effectively eliminating one of the five sites mentioned by Reinhardt. Moreover, of the remaining four sites identified by Reinhardt, Nextel's attorney stated, two were on town-owned property requiring "requests for proposals" (RFPs) which had not been issued, while the remaining two sites would require the construction of a free standing tower which would be likely to create a greater negative visual impact and generate more public criticism than the proposed Bradford Street facility.
Chairman Reinhardt replied that, notwithstanding the limitations supposedly created by the By-law, Nextel did not face a hardship attributable to the land itself, such as "soil conditions, shape or topography of land or structures" which, he claimed, was the only basis on which a variance could be granted. Reinhardt stated: "it's clear to us that the issue you have is with the By-law and it's not — we can't overturn the By-law. Only a court can do that." ZBA member Melamed stated that he felt that Nextel had not demonstrated a hardship sufficient to merit a variance but declared, "I love the proposal, it's wonderful."
Chairman Reinhardt then conducted a straw poll of audience members and found that twenty people opposed the proposal. Resident Patrick Patrick spoke out against the Nextel proposal on the grounds that an installation at Bradford Street would "harm real estate values," and the purported health risks of electromagnetic radiation from cell phones; Patrick also challenged Nextel's inability to find an alternative site, given the fact, he said, that other wireless carriers had coverage in Provincetown. Resident Salvador Del Deo opposed the Nextel installation because "the proliferation of cell phone towers in communities everywhere is also a recognized diminution of the quality of life. People live here, among many reasons, but to escape the impact of all such superficial paraphernalia of the technological age." At the conclusion of the hearing, the ZBA voted unanimously to deny the Nextel application.
The ZBA issued its formal written decision denying Nextel's application on October 4, 2002. The ZBA based its denial on its finding that Nextel did not in fact suffer from a hardship caused by the land itself, but rather by virtue of its attempt to locate its WCF in a location heavily regulated by the By-law. The ZBA also rejected Nextel's request for relief from the insurance, licensing period, and radiation monitoring requirements of the By-law, concluding that Nextel was attempting to have these sections of the By-law nullified.
b. The Planning Board — In spite of the ZBA's denial of its application, Nextel proceeded with its application to the Provincetown Planning Board, filed in August, 2002. Nextel sought issuance from the Planning Board of a special permit required by § 5300 and Article 7 of the By-law, waivers from the By-law restrictions Nextel had sought, unsuccessfully, from the ZBA, and other minor changes to the building plans. In reviewing the Nextel application, the Planning Board received a report prepared by Mark Hutchins, a certified radio-frequency engineer retained by the Town, who agreed with Nextel's contention that denial of its application to construct a facility at the Bradford Street site could well result in a finding that the Town was effectively prohibiting wireless service in violation of the TCA. The Planning Board conducted two public hearings on Nextel's amended site plan on October 2, and October 16, 2002. At these public hearings, Nextel submitted documentary evidence and testimony in support of its application; the Board also heard opposition from Town residents.
The Planning Board approved Nextel's amended site plan at the October 2, 2002 hearing. In reviewing the application for the special permit, the Planning Board found that Nextel was not able to provide adequate coverage in the Town, and that no existing structures in the town could be modified to correct this gap. The Board also found that the proposed cupola facility would not have an adverse impact on real estate values, historical and cultural resources, or scenic or natural beauty of the Provincetown area. The Board also determined that the proposed site would be less detrimental than a freestanding facility would be. The Planning Board stated that the proposal was "at the highest level in order of site acceptability" but acknowledged that Nextel had nevertheless failed to receive a variance from the ZBA required for construction, noting that Nextel was challenging that denial in federal court. Upon these and related factual findings, the Planning Board voted unanimously to grant Nextel's request for a special permit, subject to the condition that Nextel either comply with or receive a variance from By-law § 7070(L). The Planning Board denied Nextel's request for waivers of the other conditions of the By-law, namely the insurance/indemnification, monitoring, and licensing term requirements, claiming that it lacked the authority to grant such waivers.
C. Procedural History of this Litigation
On or about August 15, 2002, Nextel filed an action assigned Civil Action No. 02-11646 in this court seeking a declaration that Article 7, "Wireless Telecommunications Towers and Facilities," of the Town's zoning by-laws, as amended at a Town meeting on April 5, 1999, had the effect of prohibiting wireless services and that the Town's regulatory scheme was facially invalid under state law. In this original complaint, Nextel sought a permanent injunction restraining enforcement of the By-law, as well as any rules, regulations, policies or guidelines promulgated thereunder.
The ZBA issued its decision denying Nextel's application for four variances from the By-law on October 4 2002 and Nextel amended its complaint in response.
When, following the ZBA's denial of Nextel's variance application, the Planning Board granted a special permit for the Bradford street facility but refused to waive the variance requirements previously relied upon by the ZBA, Nextel initiated another action, assigned Civil Action No. 02-12406. This action was brought against Provincetown and the Planning Board alleging that the Planning Board's failure to waive the variance requirements amounted to effective prohibition of wireless services in Provincetown. Nextel sought an injunction requiring the Town and its instrumentalities to issue the special permit, building permit "and all other approvals and permits necessary to allow construction of the proposed facilities to begin without further delay." The cases have been consolidated under Civil Action No. 02-11646. See Note 1 supra.
II. DISCUSSION
Nextel seeks summary judgment alleging that the denial of its variance application by the ZBA was not based on substantial evidence and that, in any event, the overall effect of Provincetown's By-law is the effective prohibition of Nextel's wireless services in Provincetown. Nextel also requests summary judgment that the conditions which the Planning Board attached to its approval of the Special Permit constitute effective prohibition of its wireless services. Provincetown disputes these characterizations and moves for summary judgment approving its denial of the Nextel application.The claims in this dispute arise out of the TCA, 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." Nat'l Tower v. Plainville Zoning Board of Appeals, 297 F.3d 14, 17 (1st Cir. 2002); Town of Amherst, New Hampshire v. Omnipoint Communications Enters., 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 and represents a dramatic shift in the nature of telecommunications regulation." Nat'l 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 Amherst, 173 F.3d at 13; Omnipoint Communications, M.B. Operations LLC v. Town of Lincoln, 107 F. Supp. 2 108, 114 (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 (Mass. 2000). See Lincoln, 107 F. Supp.2d at 14.
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, two of which form the subject of this dispute: the requirement that decisions pertaining to wireless communications facilities be based on substantial evidence in a written record, and that such decisions not demonstrate effective prohibition of a carrier's wireless services. See Second Generation Props. v. Town of Pelham, 313 F.3d 620, 627 (1st Cir. 2002); Nat'l Tower, 297 F.3d at 19. "If a board decision is not supported by substantial evidence . . . or if it effectively prohibits the provision of wireless service, . . . then under the Supremacy Clause of the Constitution, local law is pre-empted in order to effectuate the TCA's national policy goals." Second Generation, 313 F.3d at 627 (internal citations omitted). I first consider Nextel's substantial evidence claim before turning to Nextel's claim that Provincetown's zoning bylaws and decisions constitute effective prohibition of its wireless services.
A. Substantial Evidence
The TCA requires that the decisions of local authorities attempting to regulate wireless carriers be based on substantial evidence contained in a written record. See, e.g., Second Generation Props., 313 F.3d at 627; Southwestern Bell Mobile Sys. v. Todd, 244 F.3d 51, 58 (1st Cir. 2001). 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 irregularity. See Nat'l Tower, 297 F.3d at 22; Omnipoint Communications, Inc. v. City of White Plains, 175 F. Supp.2d 697, 711 (S.D.N.Y. 2001). Application of the substantial evidence standard invokes a rule of deference; if the question presented in a given lawsuit is "simply one of whether the Board's decision is supported by substantial evidence, the courts defer to the decision of a local authority, provided that the local board picks between reasonable inferences from the record before it." See Nat'l Tower, 297 F.3d at 22-23. See also, Second Generation, 313 F.3d at 627.
Although the "substantial evidence" standard is deferential, it is not a rubber stamp. See Todd, 244 F.3d at 59. Thus, while it is true that a district court generally defers to a zoning board's decision and will 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 at 711. 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 Communications, Inc. v. Manchester-by-the-Sea, 115 F. Supp.2d 65, 66-67 (Mass. 2000). The question here is whether the evidence was adequate in the mind of a reasonable person to support the ZBA's conclusion. See Todd, 244 F.3d at 58.
Nextel bases its substantial evidence claim on two grounds. First, the Company contends that the recent decision by Judge Keeton in Nextel Communications v. Town of Wayland, 231 F. Supp.2d 396, 406-07 (Mass. 2001), holding that under the TCA a zoning board may not deny a request for a variance "if in so doing it would have the effect of prohibiting wireless services," requires the grant of the variance where it can be shown, as Nextel claims is the case here, that it was impossible for Nextel to find another feasible site within the strictures of the By-law for its facility sufficient to address its coverage needs. Second, Nextel claims that the ZBA's determination that Nextel should have sought to construct the facility at a site which would not require a variance is not based on substantial evidence because, Nextel argues, the record clearly demonstrates that no such sites were in fact available.
Wayland considered a scenario similar in many ways to that described in the administrative record here. 231 F.3d at 406-07. The Zoning Board of Appeals in Wayland based its denial of the plaintiff's request for a variance on the ground that the applicant had not demonstrated the existence of "unique circumstances relating to soil condition, shape or topography of the location that would cause substantial hardship." 231 F. Supp.2d at 406. According to the Wayland ZBA, its authority to grant a variance was limited to cases in which such a showing of hardship was demonstrated. See id.
Judge Keeton disagreed, holding that "although the Board's statement may be a correct statement of the general law in Massachusetts regarding variances," the ZBA nevertheless failed to give due consideration to the requirements of the TCA which controlled in the "special case" of wireless communications facilities. See Wayland, 231 F. Supp.2d at 406-07. He held that under the TCA, a zoning board cannot deny a variance if in so doing it would have the effect of prohibiting wireless services. See id. at 406. Wayland held that a wireless carrier's need to close a significant gap in coverage, "in order to avoid an effective prohibition of wireless services," constitutes another "unique circumstance" when a zoning variance is required. See id. In other words, the possibility that a zoning decision might violate the TCA is evidence which a local zoning authority must take into account. See id. See also, Oyster Bay, 166 F.3d at 495; Manchester-by-the Sea, 115 F. Supp.2d at 66-67; White Plains, 175 F. Supp.2d at 711.
This reasoning applies in force to the instant dispute, where I find, as I discuss below in detail, that the denial of the requested variances, in light of the substantial regulation of WCFs by Article 7, effectively prohibits Nextel from offering its wireless services to its customers in Provincetown. Indeed, as was true in Wayland, the Defendants here seem not to have attended to their obligations in conforming to the TCA, notwithstanding the fact that Article 7 was adopted with the express intent that it be consistent with federal law. Because the ZBA did not fully consider the possibility that enforcement of § 7070 might violate the TCA, its decision was not based on substantial evidence. See Oyster Bay, 166 F.3d at 495;Wayland, 231 F. Supp.2d at 406-07; Manchester-by-the-Sea, 115 F. Supp.2d at 66-67; White Plains, 175 F. Supp.2d at 711.
Moreover, even if the ZBA need not have attended to the likelihood of effective prohibition of Nextel's wireless services in reaching its decision to deny the variance requests, I find that the particular grounds on which the denials were based were not supported by substantial evidence. The record shows that the ZBA premised its determination in large part on the unsubstantiated conclusion that Nextel's hardship was "self imposed" in that it had chosen the Bradford Street site as opposed to alternative sites "that would not require the granting of a variance by the ZBA." In particular, the ZBA cited the fact that Nextel's application referred to the Bradford Street site as a "perfect" location, one which made a "good location" for a WCF, as tending to show that Nextel faced no real hardship because of the land itself, but was attempting to use the variance process to secure for itself an optimal location.
Based on a careful review of the record, however, I conclude that the ZBA's claim that Nextel could have sited the WCF in a location not requiring a variance to be without merit. Of the five potential sites identified by Chairman Reinhardt that appeared to conform to the By-law, one was on land in the Cape Cod National Seashore controlled by the Department of the Interior which would not allow the construction of the Nextel facility. Two of the remaining four sites were on town-owned land for which no requests for proposals had been issued. The remaining two sites were not feasible because they would require the construction of towers which, as DRIs, would require the approval of the CCC as well as variances from the By-law. In short, neither the record nor the reasons offered for the ZBA's denial demonstrate substantial evidence supporting the Board's conclusion that other sites which would not require a variance were available to Nextel. For these reasons, I conclude that the ZBA decision denying Nextel's variance application violated § 322(c)(7)(B) (iii).
B. Effective Prohibition
I also find that even if they had been based on substantial evidence, the ZBA and Planning Board decisions to deny Nextel's applications constitute effective prohibition of wireless services. Section 332(c)(7)(B) of the TCA provides that "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Interpreting this provision of the statute, the First Circuit has held that the anti-prohibition clause is not restricted to "blanket bans" on cell towers imposed by towns. See Second Generation, 313 F.3d at 629; Amherst, 173 F.3d at 14. To establish an effective prohibition challenge to a zoning ordinance or decision, a carrier must "show from language or circumstances not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try." See Amherst, 173 F.3d at 14.
The First Circuit has identified two sets of circumstances in which zoning board action, short of a blanket ban, may nevertheless constitute effective prohibition of wireless services. See Second Generation, 313 F.3d at 630. The first circumstance arises when a town "sets or administers criteria which are impossible for any applicant to meet." See id., citing Nat'l Tower, 297 F.3d at 23-25. The second effective prohibition circumstance arises where the plaintiff's existing application is the only feasible plan, in which case the denial of a plaintiff's application might amount to a prohibition.See id., citing Amherst, 173 F.3d at 14.
Based on the record before me, I conclude that Article 7 of the zoning By-law, as created and administered by Provincetown, constitutes effective prohibition of wireless services in the Town. Specifically, the ZBA's claim that it lacks authority to issue variances from Article 7, in conjunction with the stringent geographical requirements of the By-law itself, make it virtually impossible for a wireless carrier to locate a wireless facility in or around Provincetown. See Nat'l Tower, 297 F.3d at 23; Amherst, 173 F.3d at 14. Moreover, I conclude that an effective prohibition determination is warranted here because, in rejecting the Nextel proposal for the Bradford Street site, the ZBA denied the only feasible plan under which Nextel could provide wireless services to Provincetown. See Second Generation, 313 F.3d at 630;Amherst, 173 F.3d at 14.
As a threshold matter, I note that there is no evidence in the record which would show any genuine dispute about the existence of a significant coverage gap in Nextel's network in Provincetown. See Second Generation, 313 F.3d at 631-33; (rejecting rule that any coverage by any carrier disproves significant coverage gap); Nat'l Tower, 297 F.3d at 20. Nextel provided unrefuted testamentary and documentary evidence of a gap in its coverage comprising virtually all of Provincetown. Instead, distilled to its essence, the dispute here concerns whether Provincetown would allow Nextel to construct any wireless facility which would actually address this coverage gap.
Section 7070(L) of the By-law requires that a WCF be located no closer than "500 feet horizontally from dwellings, public or private schools, municipal water supply towers, child care facilities and housing for the elderly and infirm." While seemingly innocuous on its face, this provision of the By-law makes the installation of a WCF in or around Provincetown for all intents and purposes impossible. As Nextel has demonstrated, the effect of this setback provision is to require that wireless facilities be located on parcels of approximately one million square feet, or twenty-two acres. As stated in Nextel's application for the permit, given the density of development in Provincetown, there are only four parcels of land meeting these dimensional requirements within the Town, three of which are owned by the Town itself, and one by the state of Massachusetts; none was available to Nextel. As CCC consultant Maxson stated, the By-law restrictions imposed by Provincetown "significantly reduce the number of lots on which a wireless structure could be located." In this respect, Provincetown's elimination of water towers and other existing structures from use as WCF sites virtually compels carriers to propose the construction of free-standing towers, which would be antithetical to the declared purposes of the By-law and, moreover, would be unlikely to receive either local or regional approval from the Town or the CCC in any case. As Maxson stressed, the conjunction of Provincetown's zoning requirements with the state mandate regarding the regulation of DRIs across the Cape Cod region further diminishes the likelihood that a wireless carrier would be able to locate a WCF so as to correct its coverage gaps.
The potential availability of "alternative sites" which are, in fact, neither available nor technically feasible will not forestall an effective prohibition claim. See, e.g., Nat'l Tower, 297 F.3d at 23; Nextel Communications v. Town of Sudbury, 2003 WL 543383, *13 (Mass. 2003) (existence of overlay district does not immunize locality from effective prohibition challenge where sites in district were unavailable or would not rectify coverage gap); Wayland, 231 F. Supp.2d at 408 ("The alternative sites, even if technically feasible in the abstract, do not overcome the undisputed evidence in the record of the Town's hostility to the provision of wireless services");Omnipoint Holdings v. Town of Westford, 206 F. Supp.2d 166, 172 (Mass 2002) ("fixed hostility" of Board suggests that further applications would be futile). As the Court in National Tower explained, "Setting out criteria under the zoning law that no one could ever meet is an example of effective prohibition." 297 F.3d at 23. Under such circumstances, to suggest, as Chairman Reinhardt did, that Nextel could have chosen another site which for which a variance would not have been necessary was an idle offer; Provincetown, as a practical matter, had no such sites to offer.
Likewise, the record provides ample support for the conclusion that Nextel's Bradford Street proposal was the only feasible alternative under the circumstances. The comments of two members of the ZBA at the September 19, 2002 hearing, to the effect that they "liked" and even "loved" the proposal, while not dispositive, strongly suggest that the Bradford Street plan had appeal for some members of the Provincetown community. In particular, the fact that the antennas and other equipment were entirely invisible within the cupola, which was itself relatively unobtrusive (according to photo simulations submitted with the application), demonstrates that the facility had been designed in order to cause minimal visual impact to Provincetown and Cape Cod.
Indeed, based on my review of the Plans submitted with the application, it is hard to see how Nextel could have designed a facility more attuned to the stated goals of the Provincetown bylaws, namely "to preserve and protect historic and scenic vistas as well as the environmental, natural, or man made resources of the community in order to safeguard the welfare of residents and visitors to the community . . ." To put this another way, the attempt to locate the facility in the cupola rather than in a free-standing tower, which would be highly likely to run afoul of the stated goals of the By-law and Cape Cod Commission regulations, strongly supports the inference that Nextel's Bradford Street proposal was the only feasible plan that would rectify the undisputed coverage gap. See Second Generation, 313 F.3d at 630.
In short, Nextel has demonstrated the absence of any alternative locations, not requiring a variance or other extraordinary relief, which would correct its coverage gap. The Defendants have failed to refute or, for that matter even meaningfully to challenge, Nextel's evidence regarding the lack of feasible alternative locations. Moreover, Nextel has shown that, given the express terms of Article 7 and its enforcement by the ZBA and Planning Board, it is unlikely that the Town would approve any other proposal because any other feasible plan would require the construction of a tower, which the record shows, would pose a significant negative visual impact. As a consequence, I find that the Defendants have effectively prohibited wireless service in Provincetown. Summary judgment in Nextel's favor is therefore warranted.
C. Post Hoc Developments
Provincetown contends that recent action by the Town, taken after the summary judgment briefing in this case, militates against granting summary judgment to Nextel. Specifically, Provincetown contends that recent amendments to the By-law, and the Planning Board's authority thereunder, may make it easier for Nextel to find a suitable site for its WCF, thus obviating the need for court action at least until such possibilities have been explored.
The Defendants refer to the annual town meeting on April 7, 2003. At this meeting however, among other actions bearing on these cases, the residents of Provincetown specifically rejected a proposal which would have amended Article 7 to permit the installation of WCFs on the Town's water tanks. Warrant Article 19, which would have permitted use of the water tanks, was in fact amended at the Meeting by replacing the words "water tanks" in the proposed article with the "Old Burn Dump," or "wastewater treatment plant property." As I discuss below, while it is true that in hearings before the ZBA, Nextel expressed interest in locating its facility on one of the water tanks, the fact that this option was rejected by Provincetown residents at the Town meeting does not assist Provincetown in showing that the Town does not effectively prohibit wireless services.
Warrant Articles 22 and 23, which would have eased certain restrictions on the siting of WCFs in Provincetown, were also rejected by residents at the Annual Meeting. Article 22 would have created a "Telecommunications Overlay District" which could, in theory, have made additional sites available for WCFs. Article 23 would have liberalized the Town's regulation of "stealth" wireless facilities, such as that at issue here.
To be sure, Warrant Article 21, an amendment to § 7030 of the By-law, was approved at the Annual Meeting. Article 21 provides that the Planning Board may, in its discretion, waive particular provisions of the Zoning By-Law if it finds that the enforcement of that provision would prohibit or have the effect of prohibiting wireless services in the Town. In short, Article 21 permits the Planning Board to act, in its discretion, on some future finding of the type the Town has contested in this litigation.
I have already made the finding of effective prohibition. Waiting upon Provincetown to offer supererogatory agreement and act on it only prolongs the violations of the TCA the Town has engaged in. Indeed, the fact that the residents of Provincetown have granted the Planning Board discretion to waive provisions of the By-law to the extent that they conflict with federal telecommunications law does not alter the regulatory landscape because, as the First Circuit has consistently held, local zoning boards are already under an obligation to ensure that local regulations do not constitute effective prohibition of wireless services. See, e.g., Brehmer v. Planning Bd. of Wellfleet, 238 F.3d 117 (1st Cir. 2001) (under TCA, local zoning ordinances apply only to the extent they do not interfere with TCA); Amherst, 173 F.3d at 15-16 ("strictures of New Hampshire and Amherst law are preempted, under the Supremacy Clause of the Constitution, if they are read and applied so as effectively to preclude personal wireless service"); Wayland, 231 F. Supp.2d at 406-07 (notwithstanding provisions of Massachusetts Zoning Enabling Act, Mass. Gen. Laws Ch. 40A § 6, under federal law, the need for closing significant coverage gap, in order to avoid effective prohibition of wireless service, is "another unique circumstance" calling for a variance).
Likewise, Provincetown's belated issuance of a Request for Proposals for the Old Burn Dump Site is an insufficient basis on which to conclude that summary judgment is not warranted at this time. Record evidence shows that a WCF at this site faces many obstacles.
First, as Nextel has shown, locating its WCF at the Old Burn Dump Site would require Nextel to build a tower as much as 170 feet tall. However, as Nextel's engineer stated, a tower of this height would create significant interference problems for Nextel subscribers.
Second, Nextel produced evidence tending to show that a tower of this height, located within a mile of the Provincetown airport, would run afoul of FAA regulations which limit the height of towers in that proximity to the airport to 158 feet. Similarly, FAA guidelines require that a tower of this specification at the Old Burn Dump Site be painted red and white, with permanent red flashing lights mounted to the top. These requirements would demonstrably increase the negative visual impact of the facility.
Third, a tower of this height would likely be rejected by the Cape Cod Commission, which prohibits towers in excess of 150 feet. The study of the Provincetown's wireless policies conducted by David Maxson on behalf of the CCC found that a tower even as high as eighty-feet at the Old Burn Dump site would cause a significant negative impact to a visually sensitive area, namely the National Seashore, Route 6 and Provincetown Dune areas. And, even if the CCC were ultimately to approve the tower — after a process which could take as long as six months — Nextel would be still be obligated to return to the Planning and Zoning Boards to request a variance and a permit for construction because § 7070(F)(2) of the By-law limits the height of towers in Provincetown to 150 feet.
Given these circumstances, I conclude that delaying resolution of this matter would not conform to the terms of § 332(c)(7) (B)(v) of the TCA requiring expeditious resolution of disputes. Speculation that Provincetown, if given another chance, might approve a suitable Nextel facility is at best simply that: hopeful speculation the Town will belatedly come into compliance with the law. The First Circuit's reasoning in National Tower is apposite:
The statutory requirements that the board act within 'a reasonable period of time,' and that the reviewing court hear and decide the action 'on an expedited basis,' indicate that Congress did not intend multiple rounds of decisions and litigation, in which a court rejects one reason and then gives the board the opportunity, if it chooses, to proffer another. Instead, in the majority of cases the proper remedy for a zoning board decision that violates the Act will be an order . . . instructing the board to authorize construction. . . . In short, a board's decision may not present a moving target and a board will not ordinarily receive a second chance.297 F.3d at 21-22.
Having found that the decisions of the ZBA and the Planning Board not to grant variances from the By-law were not based on substantial evidence and constitute effective prohibition of wireless service in violation of federal law, I conclude that the proper course is to grant summary judgment to Nextel and to issue an order directing that all necessary permits and approvals for construction of Nextel's WCF at the Bradford Street site be granted forthwith.
Although Nextel originally requested variances from the By-law's insurance/indemnification, electromagnetic radiation monitoring and term of permit requirements, Nextel has not argued here that the denial of these requests constitutes an independent grounds for finding that the ZBA or Planning Board decisions were not based on substantial evidence or demonstrate effective prohibition of wireless service. Moreover, neither party has briefed the validity of these additional provisions of the By-law. As a consequence, the record does not permit me at this point to decide whether the provisions, either singly or in combination, represent effective prohibition of wireless service.
Nevertheless, I note that, in general, the Federal Communications Commission has broad preemption authority under the Telecommunications Act, particularly with respect to attempts by a state or locality to regulate wireless services on the basis of perceived environmental effects of radio frequency emissions. 47 U.S.C. § 332(c)(7)(B) See, e.g., Cellular Phone Task Force v. FCC, 205 F.3d 82, 96 (2d Cir. 2000); In re Appeal of Graeme and Mary Beth Freeman, 975 F. Supp. 570 (D. Vt. 1997) ("given FCC's pervasive regulation," TCA does not authorize state or local regulation of radio frequency interference, notwithstanding grant of authority to localities in § 332(c)(7) to administer regulations pertaining to "placement, construction and modification" of wireless facilities). See also, 47 U.S.C. § 332(c)(3) (preventing states and localities from regulating either the entry of wireless carriers or the rates of wireless service). Imposition of the monitoring requirement established by § 7110 of the By-law may ultimately prove problematic for the Town should further litigation over enforcement of this provision of the By-law be necessary. With respect to the insurance/indemnification (§ 7130), and license term provisions (§ 7140), however, neither the statute nor the caselaw provides a clear answer to the question whether such requirements are preempted or may be deemed to have caused effective prohibition of wireless services. 47 U.S.C. § 332 (c)(3), (c)(7). Although these provisions, unlike the monitoring requirement, appear to fall within the proper range of authority of states and localities contemplated by Congress in § 332(c)(7), Second Generation, 313 F.3d 627; Nat'l Tower, 297 F.3d at 19, in light of the parties' meager discussion of these aspects of the By-law and the slender record before me, it is appropriate to defer consideration until such time, if at all, as the parties chose to present them in a more meaningful fashion. As a consequence, the Order which I will issue requiring that permits and approvals for construction of Nextel's Bradford Street WCF is without prejudice to imposition of the insurance/indemnification, radio frequency monitoring and license term provisions of the By-law. I express no view, however, whether such requirements would, if the subject of focused challenge, survive.