Eco-Site II, LLC v. The Town of Wilmington

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ECO-SITE, INC. and T-MOBILE

NORTHEAST LLC,

Plaintiffs,

v. CIVIL ACTION NO.

17-10304-MBB

THE TOWN OF WILMINGTON,

THE TOWN OF WILMINGTON

ZONING BOARD OF APPEALS; and

EDWARD LOUD, DANIEL VEERMAN,

ANTHONY BARLETTA, THOMAS

SIRACUSA, and JACQUELYN

SANTINI, in their Capacities

as members of the Town of

Wilmington Zoning Board of

Appeals,

Defendants.

MEMORANDUM AND ORDER RE:

PLAINTIFFS ECO-SITE II, LLC AND T-MOBILE NORTHEAST LLC’S MOTION

FOR SUMMARY JUDGMENT (DOCKET ENTRY # 41)

March 25, 2019

BOWLER, U.S.M.J.

Pending before this court is a motion for summary judgment

filed by plaintiffs Eco-Site II, LLC (“Eco-Site”) and T-Mobile

Northeast LLC (“T-Mobile”) (collectively “plaintiffs”). (Docket

Entry # 41). Defendants the Town of Wilmington (“the Town”),

the Town of Wilmington Zoning Board of Appeals (“the Board”),

Edward Loud (“Board Member Loud”), Daniel Veerman (“Board Member

Veerman”), Anthony Barletta (“Board Member Barletta”), Thomas

Siracusa (“Board Member Siracusa”), and Jacquelyn Santini

(“Board Member Santini”) (collectively “defendants”) oppose the

motion. (Docket Entry # 49). After conducting a hearing, this

court took the motion (Docket Entry # 41) under advisement.

PROCEDURAL HISTORY

Plaintiffs filed this action on February 23, 2017,

challenging the Board’s denial of their application for

dimensional variances and a special permit under the Town’s

Zoning Bylaw to construct a wireless telecommunications facility

at a designated property in the Town. (Docket Entry # 1).

“Plaintiffs seek an order from this court directing the Board to

grant Plaintiffs’ requests for zoning relief in accordance with

their rights under the” federal Telecommunications Act of 1996

(“the TCA”), 47 U.S.C. § 332(c) (“section 332(c)”). (Docket

Entry # 1, p. 2). Specifically, they assert that the Board’s

denial violates section 332(c)(7)(B) of the TCA because it: (1)

is not supported by substantial evidence; and (2) effectively

prohibits T-Mobile from providing personal wireless service.

(Docket Entry # 42, p. 6).

Defendants oppose the summary judgment motion and request

“disposition on their behalf in accordance with the” TCA,

Massachusetts General Laws chapter 40A (“the Massachusetts

Zoning Act”), and Federal Rule of Civil Procedure 56(f)(1)

(“Rule 56(f)(1)”) and 56(f)(3) (“Rule 56(f)(3)”). (Docket Entry

# 46, p. 3). Defendants did not file a cross motion for summary

judgment. Defendants contend that the Board’s decision is

supported by substantial evidence in the written record and that

neither the Town’s Zoning Bylaw nor the Board’s decision

constitute an “‘effective prohibition’” under the TCA because it

does not prohibit cell towers within the Town. (Docket Entry #

46, p. 3). Principally, they argue that notwithstanding the

TCA, the Board’s denial is in accordance with the Town’s Zoning

Bylaw, as allowed by the Massachusetts Zoning Act. (Docket

Entry # 46, pp. 4-5).

STANDARD OF REVIEW

Summary judgment is designed “‘to pierce the boilerplate of

the pleadings and assay the parties’ proof in order to determine

whether trial is actually required.’” Davila v. Corporación De

Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.

2007) (internal citations omitted). It is appropriate when the

summary judgment record shows “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “‘A dispute is genuine

if the evidence about the fact is such that a reasonable jury

could resolve the point in the favor of the non-moving party.’”

American Steel Erectors, Inc. v. Local Union No. 7, Int’l Ass’n

of Bridge, Structural, Ornamental & Reinforcing Iron Workers,

536 F.3d 68, 75 (1st Cir. 2008) (internal citation omitted).

“‘A fact is material if it carries with it the potential to

affect the outcome of the suit under the applicable law.’” Id.

(internal citation omitted).

Facts are viewed in favor of the non-movant, i.e.,

defendants, and resolved in their favor. See Jones v. City of

Boston, 845 F.3d 28, 32 (1st Cir. 2016) (“district court was

required to assume that any disputes of material fact-including

conflicting opinions offered by competent experts—could be

resolved by the jury in the Officers’ favor”). Plaintiffs

submit a LR. 56.1 statement of undisputed facts. Uncontroverted

statements of fact in the LR. 56.1 statement comprise part of

the summary judgment record. LR. 56.1; Cochran v. Quest

Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (the plaintiff’s

failure to contest date in LR. 56.1 statement of material facts

caused date to be admitted on summary judgment); Stonkus v. City

of Brockton Sch. Dep’t, 322 F.3d 97, 102 (1st Cir. 2003).

FACTUAL BACKGROUND

“T-Mobile provides wireless telecommunications services

pursuant to licenses issued by the Federal Communications

Commission” (“FCC”). (Docket Entry # 43, ¶ 2) (Docket Entry #

45, p. 2). “To provide its services, T-Mobile must deploy a

network of interrelated ‘cell sites’ that must overlap in a grid

pattern, and must provide adequate signal strength and network

capacity.” (Docket Entry # 43, ¶ 3) (Docket Entry # 45, p. 2).

“Eco-Site is in the business of developing telecommunication

towers” that allow wireless carriers, such as T-Mobile, to

create and maintain their network of cell sites. (Docket Entry

# 43-2, p. 12).

Based on research and analysis by radio frequency (“RF”)

engineers, T-Mobile determined “that it has a significant gap in

its ability to provide service in the Town . . . in the vicinity

of Tacoma Drive . . . caused by a lack of reliable in-building

residential and commercial coverage.”1 (Docket Entry # 43, ¶¶

14-15) (Docket Entry, # 45, p. 5). The coverage gap at a 2100

MHz frequency spans approximately 2.1 square miles. (Docket

Entry # 43, ¶¶ 9, 11, 18) (Docket Entry # 45, pp. 4, 6) (Docket

Entry, # 43-1, ¶ 7, 18). “The gap in coverage includes

residences, commercial buildings, and strip malls within a

boundary composed of I-93, Middlesex Avenue, Salem Street,

Lawrence Street, Shady Lane Drive, and Concord Street.” (Docket

1 Plaintiffs rely primarily on the expert report of Richard

Conroy (“Conroy”), an RF engineer, submitted in support of the

motion for summary judgment (“the Conroy Report”). (Docket

Entry # 43-1). The Conroy Report purports to show, using

“calculated propagation maps” and “key system performance data”

(“KPI Data”), that T-Mobile has a “significant gap in reliable

wireless service” in the vicinity of Tacoma Drive. (Docket

Entry # 43-1) (capitalization omitted). Plaintiffs also

submitted to the Board an affidavit prepared by Ryan Monte de

Ramos (“Monte de Ramos”), an RF engineer for T-Mobile, that

states, among other things, that T-Mobile “provides insufficient

wireless communication service” to the Town in the vicinity of

Tacoma Drive (“the RF Affidavit”). (Docket Entry # 43-2, p.

46).

Entry # 43, ¶ 19) (Docket Entry, # 45, p. 6) (Docket Entry, #

43-1, ¶ 19). “According to 2010 U.S. Census data, there are

approximately 2,320 to 5,494 residents in the in-building

coverage gap area.” (Docket Entry # 43, ¶ 20) (Docket Entry #

45, p. 7) (Docket Entry, # 43-1, ¶ 19).

In light of the gap, T-Mobile’s RF engineers identified a

search area (“the search ring”) in the vicinity of Tacoma Drive

which needed a new wireless telecommunications facility to

remedy the service gap. (Docket Entry # 43, ¶ 21) (Docket Entry

# 45, p. 7). The search ring “consisted mostly of single-family

homes, an industrial area, single story retail stores with

accompanying parking lots, a school, fresh water ponds, and

conservation land.” (Docket Entry # 43, ¶ 24) (Docket Entry #

45, p. 8). The parties agree that “[a]n appropriate candidate

within the search ring must be able to work within T-Mobile’s

existing network to remedy the service gap, comply with local

zoning requirements, hav[e] a willing landlord, and be

buildable.” (Docket Entry # 43, ¶ 26) (Docket Entry # 45, p.

8).

“Plaintiffs performed a detailed and thorough search of the

area within the search ring for available properties that would

be suitable for construction of a wireless telecommunications

facility” and “worked to find a site . . . that complied with

the Town’s local zoning bylaws.” (Docket Entry # 43, ¶¶ 23, 27)

(Docket Entry # 45, pp. 7-9). An unsigned affidavit purportedly

prepared by a “Site Acquisition Specialist” on behalf of

plaintiffs identifies four separate locations within the search

ring that were considered and ultimately rejected: “St.

Dorothy’s Church,” “200 Jefferson Road,” Town-owned land (“Town

Hall”), and the “Anderson property.”2 (Docket Entry # 43-2, p.

41).

The Town Hall, although a permitted location under the

Town’s Zoning Bylaw, “was not an appropriate candidate because

the Town refused to enter into a lease that would permit T-

Mobile to deploy a wireless telecommunications facility at the”

location. (Docket Entry # 43, ¶¶ 28-29) (Docket Entry # 45, p.

9). Although St. Dorothy’s “Church is [within] a residential

zone, the Town’s bylaws [] permit construction so long as the

2 The unsigned affidavit is part of an application Eco-Site

submitted to the Board for the special permit and variances at

issue. The “Site Acquisition Specialist” identifies himself as

Timothy Greene (“Greene”) at the beginning of the report, but

the signature line at the end of the report contains a different

name and is not signed. (Docket Entry # 43-2, pp. 39-42).

Defendants’ argument that the unsigned affidavit lacks a

foundation is well taken. (Docket Entry # 45, p. 8).

Defendants, however, admit that the application Eco-Site filed

on November 15, 2016 with the Town (“the Application”) contained

the affidavit. (Docket Entry # 43, ¶ 62) (Docket Entry # 45,

pp. 16-20) (Docket Entry # 43-2, pp. 39-42, 149-150).

Accordingly, this court only considers the affidavit to the

extent that it is in the administrative record as part of the

Application Eco-Site filed with the Board. This court does not

consider the unsigned affidavit when assessing the effective

prohibition argument.

facility [is] deployed in the church steeple.” (Docket Entry #

43, ¶ 31) (Docket Entry # 45, p. 10). However, the unsigned

affidavit states that “[t]he existing steeple is too low to

provide coverage.”3 (Docket Entry # 43-2, p. 41). Finally, “T-

Mobile expressed interest in 200 Jefferson Road, a site that

sits in a general business zone, and was being used to store old

eighteen-wheelers at the time.” (Docket Entry # 43, ¶ 34)

(Docket Entry # 45, p. 10). The landlord of the property,

however, “refused to lease the property.” (Docket Entry # 43, ¶

35) (Docket Entry # 45, p. 11).

After evaluating the properties within the search ring, T-

Mobile determined that a property at 4 Waltham Street (“the

Proposed Site”) was an appropriate site because: “[i]t is

located in a General Business Zone, it would provide coverage

relative to its location, it is buildable, and the site owner

agreed to lease the site.”4 (Docket Entry # 43, ¶ 40) (Docket

3 The Conroy Report also concludes that St. Dorothy’s Church “is

not a viable option.” (Docket Entry # 43-1, ¶ 33).

Specifically, the Conroy Report notes:

Assuming an antenna structure could be mounted in a fashion

acceptable to the [Board], it would be at a height of

approximately 50’ above ground level. This is too low and

within the tree line of the surrounding tree canopy to

provide substantive coverage to the gap area.

(Docket Entry # 43-1, ¶ 32).

4 As noted below, the Board rejected the location.

Entry # 45, p. 12). The zoning location of the Proposed Site

does not prohibit a telecommunications facility. (Docket Entry

# 43, ¶ 72) (Docket Entry # 45, p. 23). On October 31, 2016,

plaintiffs entered into a lease with the owner of the Proposed

Site that permitted construction of a wireless

telecommunications facility. (Docket Entry # 43, ¶ 42) (Docket

Entry # 45, p. 13).

As previously noted, “Eco-Site filed an Application for a

special permit for a wireless communication facility” with the

Town on November 15, 2016. (Docket Entry # 43, ¶ 54) (Docket

Entry # 45, p. 16). The Application “requested that the Town

grant Eco-Site a Special Permit, Site Plan Review, and specific

dimensional variances so that Eco-Site could construct a 120-

foot monopole style wireless tower at 4 Waltham Street” (“the

Proposed Facility”). (Docket Entry # 43, ¶ 55) (Docket Entry #

45, p. 17).

“The Application included detailed site plans for the

[Proposed Facility]; photographic simulations; an alternative

site analysis; an inventory of existing towers; an RF Affidavit;

T-Mobile’s coverage maps; a Federal Airways & Airspace Report; a

fall zone letter [“the Fall Zone Letter”];5 evidence of T-

5 The Fall Zone Letter is in the form of letter correspondence

addressed to Eco-Site and signed by “Brenden Alexander, P.E.,”

on behalf of Dewberry Engineers, Inc. (Docket Entry # 43-2, p.

60). As defendants point out, the Fall Zone Letter “is not in

Mobile’s FCC licenses; a list of abutters to the [Proposed

Site]; and a Storm Water Pollution Prevention Plan prepared by

professional engineers.” (Docket Entry # 43, ¶ 59) (Docket

Entry # 45, p. 18). The Fall Zone Letter states, among other

things:

[T]owers can be specifically designed for a reduced fall

zone so that if a catastrophic event results in an overload

of the structure, it will yield at a specific height

resulting in failure that allows the top section of the

tower to collapse while the lower section remains upright.

This type of design could reduce the fall zone by as much

as half if properly designed. Using this type of tower[,]

the tower fall zone could be designed to avoid the building

on the northern abutting parcel (355), located

approximately 120’+ feet from the tower location, as shown

in revision c zoning drawings by Infinigy dated 10/31/16.

(Docket Entry # 43-2, p. 60).

Overall, the Application purported to demonstrate that

plaintiffs “were ‘entitled to a Special Permit, Site Plan

Approval and Dimensional Variances[] because their proposal

satisfies the requirements set forth in Section 6.8.5, Section

10.5, Section, 10.6, and Section 6.5 of the [Town’s Zoning]

Bylaw and [the Massachusetts Zoning Act] and the [TCA][.]’”

(Docket Entry # 43, ¶ 57). Specifically, the Application

states:

[B]ecause the Bylaw restricts wireless facilities to the

General Business (GB), General Industrial (GI) and Highway

the form of an affidavit and does not contain any attestation of

its veracity.” As such, it simply evidences that it was part of

the Application which Eco-Site filed for the Board to consider.

(Docket Entry # 45, pp. 19-20).

Industrial (HI) districts, and further requires that

wireless facilities be set back at least five hundred feet

(500’) from a residential building and setback from the

property line by a distance equal to the height of the

tower, the Town of Wilmington has effectively prohibited

wireless facilities from certain areas of the Town. It is

impossible for T-Mobile to provide reliable wireless

coverage to the Town of Wilmington under the present zoning

scheme without obtaining the requisite dimensional

variances and zoning relief.

(Docket Entry # 43-2, p. 8).

The Application also contains statements arguing that the

Town and its residents will “benefit from construction of the

Proposed Facility because it will provide increasingly reliable

wireless service with E911 enhanced emergency service, Global

Positioning System (‘GPS’) technology, and will generally

promote the safety and welfare” of “the Town [and] its

residents, businesses, and drivers by providing reliable state-

of-the-art digital wireless voice and data services.” (Docket

Entry # 45, p. 20) (Docket Entry # 43, ¶ 63).

A public hearing on the Application before the Board took

place on January 17, 2017 (“the hearing”). (Docket Entry # 45,

p. 20) (Docket Entry # 43, ¶ 64). Board members Loud, Veerman,

Barletta, Siracusa, and Santini (“the board members”) were

present at the hearing. (Docket Entry # 48-1, p. 199). Ricardo

Sousa, Esq. (“Sousa”), an attorney representing plaintiffs, gave

a presentation about the Proposed Site and the Proposed

Facility. (Docket Entry # 45, p. 22) (Docket Entry # 43, ¶ 68)

(Docket Entry # 48-1, pp. 201-203). Monte De Ramos and Greene

also spoke on behalf of plaintiffs. (Docket Entry # 43, ¶ 69)

(Docket Entry # 45, p. 22). “Monte De Ramos, an RF Engineer,

produced RF propagation maps demonstrating T-Mobile’s existing

network coverage and a propagation map depicting the anticipated

coverage from the proposed facility.” (Docket Entry # 43, ¶ 70)

(Docket Entry # 45, p. 22). The Board did not conduct an

independent analysis and “no contrary information concerning”

the coverage gap “was presented at the hearing.” (Docket Entry

# 45, p. 22).

Board Member “Loud asked if Plaintiffs had evaluated the

Tewksbury Fire Department pole” (“the Tewksbury Fire Department

Tower”). (Docket Entry # 45, p. 23) (Docket Entry # 43, ¶ 73)

(Docket Entry # 48-1, p. 201). The hearing minutes note that

plaintiffs “had not” evaluated this location at the time of the

hearing.6 (Docket Entry # 48-1, p. 201). In addition, “Sousa

6 The minutes read: “Edward Loud asked if they had checked into

the pole in Tewksbury located at the Fire Station not far from

the Wilmington line and it appeared that this might be the

location to fill in the gap. They had not.” (Docket Entry #

48-1, p. 201). After the hearing, “T-Mobile considered the

Tewksbury Fire Department Tower,” which is one mile from the

search ring, and concluded allegedly that the location would not

remedy the coverage gap. (Docket Entry # 45, p. 11) (Docket

Entry # 43, ¶ 37). Specifically, the Conroy Report states that

“[t]he Tewksbury Fire Station is located approximately 1 mile

from the search ring center” and therefore “is easily ruled

out.” (Docket Entry # 43-1, ¶ 34). In addition, the parties

agree that because “T-Mobile is already operating from [an]

existing site” across the street from the Tewksbury Fire

testified that Plaintiffs believed that the Town Hall was the

ideal location for a facility to remedy the significant gap, but

that the Town was not interested.” (Docket Entry # 43, ¶ 74)

(Docket Entry # 45, p. 23) (Docket Entry # 48-1, p. 201).

A number of abutters at the hearing expressed objections to

the Application. (Docket Entry # 43, ¶ 75) (Docket Entry # 45,

pp. 23-24) (Docket Entry # 48-1, p. 201). “Abutter Peter

Reinhart stated that he did not see the need for a tower at the

[Proposed] Site.” (Docket Entry # 43, ¶ 76) (Docket Entry # 45,

p. 24) (Docket Entry # 48-1, p. 201). “Abutter Paul Logan

(“abutter Logan”) was concerned that there was not a tree line

to screen the proposed tower from his view.” (Docket Entry #

43, ¶ 77) (Docket Entry # 45, p. 24) (Docket Entry # 48-1, p.

201). “Abutter Paul Kneeland submitted a memorandum opposing

the Application because of the proximity to [the] railroad

tracks.” (Docket Entry # 43, ¶ 78) (Docket Entry # 45, p. 25).

“Abutter Barbara Fitzgerald was opposed to the Application

because she was ‘concerned about excavating or building anything

more on [the] site.’” (Docket Entry # 43, ¶ 79) (Docket Entry #

45, p. 25).

Department, any potential coverage provided by the Tewksbury

Fire Department Tower “would be redundant with T-Mobile’s

existing site and would not provide coverage for the significant

gap.” (Docket Entry # 43, ¶¶ 38, 39) (Docket Entry # 45, p.

12).

During the hearing, abutter Logan opposed the Application

and raised his concern about a proposal a few years ago “that

involved rezoning the [Proposed Site] to a mixed

residential/business zone.” (Docket Entry # 43, ¶ 80) (Docket

Entry # 45, pp. 25-26) (Docket Entry # 48-1, p. 201). “The Town

did not offer any expert testimony concerning the design or

safety of the proposed facility during the hearing.” (Docket

Entry # 43, ¶ 81) (Docket Entry # 45, p. 26).

Various Board members at the hearing also voiced their

opposition to the Application. (Docket Entry # 43, ¶ 82)

(Docket Entry # 45, p. 26) (Docket Entry # 48-1, p. 201). Board

Member Loud stated that the Proposed Facility “was too close to

the railroad tracks, adjacent building and residential abutters”

as well as not safe. (Docket Entry # 43, ¶ 83) (Docket Entry #

45, p. 26) (Docket Entry # 48-1, p. 201). Board Member Barletta

agreed with Board Member Loud. (Docket Entry # 43, ¶ 84)

(Docket Entry # 45, p. 27) (Docket Entry # 48-1, p. 201). Board

Member “Siracusa wanted to know how the Proposed Facility would

benefit the Town.” (Docket Entry # 43, ¶ 85) (Docket Entry #

45, p. 27). Board Member “Santini stated that granting the

Application was not in the best interest of the Town or

residential abutters.” (Docket Entry # 43, ¶ 86) (Docket Entry

# 45, p. 27).

Board Member “Santini then made a motion to deny the

requested Special Permit because the Application did not meet

the criteria of § 6.8 of the [Town’s Zoning] Bylaw [because] the

Proposed Facility was too close to the lot line, railroad

tracks, abutting property, and residential zone.” (Docket Entry

# 43, ¶ 87) (Docket Entry # 45, p. 28) (Docket Entry # 48-1, p.

203). The Board members “voted unanimously to deny the

Application because it did not meet the criteria of the [Town’s

Zoning] Bylaw.” (Docket Entry # 43, ¶ 88) (Docket Entry # 45,

p. 28) (Docket Entry # 48-1, p. 203).

The Board denied the application in two separate, similar

decisions, one for Eco-Site’s request for dimensional variances

(“the Variance Denial”) and the other for Eco-Site’s request for

a special permit (“the Special Permit Denial”) (collectively

“the Denial”). (Docket Entry # 43, ¶ 66) (Docket Entry # 45, p.

21) (Docket Entry # 48-1, pp. 207, 209, 213, 215). The Variance

Denial notes that Eco-Site is seeking variances from sections

6.8.5.2 and 6.8.5.3 of the Town’s Zoning Bylaw and states that:

To acquire a variance from the Zoning Bylaw Wireless

Communications Facilities §6.8.5.2 – facilities shall be

located a minimum of 500 feet from an existing residential

dwelling or proposed dwelling . . . located within a

residential district (the [P]roposed [F]acility is less

than 500 feet from the residential zones on First Avenue

and North Street) and §6.8.5.3 – monopoles shall be set

back from the property lines of the lot on which it is

located by a distance equal to the overall vertical height

of the monopole and any attachments plus five feet (the

proposed structure is 17 feet from the side lot line and 90

feet from the rear lot line abutting the railroad tracks).

(Docket Entry # 48-1, p. 207). After reciting the hearing

minutes, the Variance Denial then states: “[Board member

Santini] made a motion to deny the variances for the reasons

stated, too close to lot line, railroad tracks, abutting

property, residential zone . . . [t]herefore, the Board, having

considered the matter, a motion was made to deny the petition.”

(Docket Entry # 48-1, p. 209). The Variance Denial then lists

each of the Board members and his or her respective “No” votes.

(Docket Entry # 48-1, p. 209). Next to each “No” reads:

“Reasons for denial; As stated above.” (Docket Entry # 48-1, p.

209).

The Special Permit Denial contains a similar recitation of

the hearing minutes before stating:

Therefore, the Board, having considered the matter, [Board

Member] Jacquelyn Santini made a motion to deny the Special

Permit under §6.8, does not meet the criteria of the

[Town’s Zoning] Bylaw. Each member was present and voted

in the following way . . ..

(Docket Entry # 48-1, p. 215). Like the Variance Denial, the

Special Permit Denial then lists each of the Board members and

his or her votes along with the reason for denial next to each

“No” vote, namely, “Does not meet criteria of Bylaw.” (Docket

Entry # 48-1, p. 215). The Board “admits that its Decision does

not make specific mention of the purported ‘service gap’ in

coverage or the proposed facility itself.” (Docket Entry # 45,

p. 29).

“Plaintiffs filed their complaint on February 23, 2017, and

alleged that the Town’s denial of the Application was not based

on substantial evidence and effectively prohibits the provision

of personal wireless services.” (Docket Entry # 43, ¶ 92)

(Docket Entry # 45, p. 29) (Docket Entry # 1). Defendants filed

an answer “on March 21, 2017, and included as an affirmative

defense that Plaintiffs, ‘failed to exhaust alternative site

proposals for the installation of the proposed

telecommunications tower at issue.’” (Docket Entry # 43, ¶ 93)

(Docket Entry # 45, p. 30) (Docket Entry # 15). The answer also

includes an affirmative defense referencing “‘the location of an

already existing tower which appears to fulfill the applicant’s

alleged reception gap without the required variances needed to

locate on the [Proposed Site].’” (Docket Entry # 43, ¶ 94)

(Docket Entry # 45, p. 30) (Docket Entry # 15). “The Town,

however, state[s] in its Answers to Interrogatories that it is

unaware of any potential alternative sites that could remedy T-

Mobile’s significant gap in service.” (Docket Entry # 43, ¶ 95)

(Docket Entry # 45, p. 31) (Docket Entry # 43-4, p. 3).

“The Town admitted in its Answers to Interrogatories that

it did not conduct an independent investigation into T-Mobile’s

significant gap in service.” (Docket Entry # 43, ¶ 96); (Docket

Entry # 45, p. 31) (Docket Entry # 43-4, pp. 5-6). “The Town

has not identified any expert who will testify about T-Mobile’s

significant gap.” (Docket Entry # 43, ¶ 97) (Docket Entry # 45,

p. 31).

DISCUSSION

As discussed above, plaintiffs contend that the Board’s

denial of the Application violates section 332(c)(7)(B) of the

TCA “because it is not supported by substantial evidence in the

record and because it effectively prohibits T-Mobile from

providing personal wireless service.” (Docket Entry # 42, p.

6). Accordingly, they ask that this court grant the summary

judgment motion “and order the Town to immediately issue all

necessary permits and approvals.” (Docket Entry # 42, p. 7).

This court will first discuss the overlay of the state and local

zoning laws at issue as well as the TCA before proceeding to

plaintiffs’ “substantial evidence” argument. This court will

then address plaintiffs’ “effective prohibition” argument and

the appropriate remedy, if any.

I. State and Local Zoning Laws

As explained by the court in American Towers LLC v. Town of

Shrewsbury, Civil Action No. 17-10642-FDS, 2018 WL 3104105, at

*5 (D. Mass. June 22, 2018) (“American Towers”),7 “[t]he

7 The American Towers case, discussed in detail below, involved

similar parties, including T-Mobile, and similar facts

Massachusetts Zoning Act authorizes individual cities and towns

to pass zoning bylaws, and describes the limits of that

authority and the manner in which it may be exercised.” See

Mass. Gen. Laws ch. 40A, §§ 1 et seq. “The [Massachusetts]

Zoning Act allows towns to regulate the maximum and minimum

dimensions of structures and lots allowed in certain zoned

areas.” American Towers, 2018 WL 3104105, at *5. “It also

allows towns to regulate the uses to which land in a given area

may be put.” Id. “A town’s zoning ordinance or bylaw may

provide that a particular use is allowed in an area, allowed

only by special permit, or not allowed at all.” Id.

“Where a use is allowed in a district by special permit, an

applicant can seek such a permit from the board of appeals or

the special permit granting authority.” Id. The Massachusetts

Zoning Act provides that “[s]pecial permits may be issued only

for uses which are in harmony with the general purpose and

intent of the ordinance or by-law, and shall be subject to

general or specific provisions set forth therein; and such

permits may also impose conditions, safeguards and limitations

on time or use.” Mass. Gen. Laws ch. 40A, § 9. Consistent with

the Massachusetts Zoning Act, section 10.5 of the Town’s Zoning

Bylaw generally provides that a special permit:

surrounding the denial of an application to construct a wireless

telecommunications communications facility.

may be authorized only where, after notice and a public

hearing, [the Board] or Planning Board specifically finds:

That the proposed use is in harmony with the general

purpose and intent of [the Town’s Zoning] Bylaw; and

That the use complies with all the requirements of

[the Town’s Zoning] Bylaw.

(Docket Entry # 48-1, p. 179). Relevant here, section 6.8 of

the Town’s Zoning Bylaw provides special rules and requirements

for the granting of special permits for “Wireless Communications

Facilities.”

“Where a particular use is not allowed in a district, a

town’s permit-granting authority nevertheless has the power to

grant a variance.” American Towers, 2018 WL 3104105, at *5;

Mass. Gen. Laws ch. 40A, § 10. The Massachusetts Zoning Act

provides that the permit granting authority may grant:

with respect to particular land or structures a variance

from the terms of the applicable zoning ordinance or by-law

where such permit granting authority specifically finds

that owing to circumstances relating to the soil

conditions, shape, or topography of such land or structures

and especially affecting such land or structures but not

affecting generally the zoning district in which it is

located, a literal enforcement of the provisions of the

ordinance or by-law would involve substantial hardship,

financial or otherwise, to the petitioner or appellant, and

that desirable relief may be granted without substantial

detriment to the public good and without nullifying or

substantially derogating from the intent or purpose of such

ordinance or by-law.

Mass. Gen. Laws ch. 40A, § 10. Consistent with the

Massachusetts Zoning Act, the Town’s Zoning Bylaw generally

allows variances. Specifically, section 10.6 provides:

A variance from the specific requirements of the [Town’s

Zoning] Bylaw, except a variance authorizing a use or

activity not otherwise permitted in a particular zoning

district, may be authorized by the [Board] only where,

after notice and a public hearing, the [Board] specifically

finds:

That there are circumstances relating to the soil

conditions, shape or topography which especially

affect the land or structure in question, but which do

not effect[] generally the zoning district in which

the land or structure is located;

That due to those circumstances especially affecting

the land or structure, a literal enforcement of the

provisions of [the Town’s Zoning] Bylaw would involve

substantial hardship, financial or otherwise to the

petitioner or appellant;

That desirable relief may be granted without

nullifying or substantially derogating from the intent

or purpose of this Bylaw; and

That desirable relief may be granted without

substantial detriment to the public good.

(Docket Entry # 48-1, p. 181). Notably, under the Massachusetts

Zoning Act and the Town’s Zoning Bylaw, a variance may be

granted where there are “circumstances relating to the soil

conditions, shape, or topography of such land” where “a literal

enforcement” of the Town’s Zoning Bylaw “would involve

substantial hardship, financial, or otherwise” to the applicant.

II. The TCA

“Overlaid on top of state and local zoning laws are the

requirements of the [TCA].” American Towers, 2018 WL 3104105,

at *6. As explained by the First Circuit, the TCA represents

“‘an exercise in cooperative federalism . . . [that] attempts,

subject to five limitations, to preserve state and local

authority over the placement and construction of

[telecommunications] facilities.’” Green Mountain Realty Corp.

v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (“Green Mountain

II”) (quoting Nat’l Tower, LLC v. Plainville Zoning Bd. of

Appeals, 297 F.3d 14, 19 (1st Cir. 2002)). It provides, among

other things, as follows:

(i) The regulation of the placement, construction, and

modification of personal wireless service facilities by any

State or local government or instrumentality thereof--

(I) shall not unreasonably discriminate among

providers of functionally equivalent services; and

(II) shall not prohibit or have the effect of

prohibiting the provision of personal wireless

services.

(iii) Any decision by a State or local government or

instrumentality thereof to deny a request to place,

construct, or modify personal wireless service facilities

shall be in writing and supported by substantial evidence

contained in a written record.

47 U.S.C. § 332(c)(7)(B)(i),(iii). These federal provisions

preempt state and local laws to the extent they conflict.

Brehmer v. Planning Bd. of Wellfleet, 238 F.3d 117, 121-22 (1st

Cir. 2001).

The TCA also provides that other than the enumerated

limitations, “nothing in this chapter shall limit or affect the

authority of a State or local government or instrumentality

thereof over decisions regarding the placement, construction,

and modification of personal wireless service facilities.” 47

U.S.C. § 332(c)(7)(A). Overall, the TCA “attempts to reconcile

the goal of preserving local authority over land use with the

need ‘to facilitate nationally the growth of wireless telephone

service.’” Second Generation Properties, L.P. v. Town of

Pelham, 313 F.3d 620, 631 (1st Cir. 2002) (quoting Town of

Amherst v. Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 13 (1st

Cir. 1999)).

III. Substantial Evidence

A. Substantial Evidence Standard

The TCA sets out two requirements when a local zoning

authority denies an application to construct a wireless

facility: the authority’s decision must be (1) “in writing” and

(2) “supported by substantial evidence contained in a written

record.” 47 U.S.C. § 332(c)(7)(B)(iii). In this case, there is

no dispute that the Board’s decision satisfied the “in writing”

requirement. The issue, rather, is whether the Board’s decision

was “supported by substantial evidence contained in a written

record.” 47 U.S.C. § 332(c)(7)(B)(iii).

In order to comply with the TCA, the reasons for denying an

application “need not be elaborate or even sophisticated, but

rather . . . simply clear enough to enable judicial review.” T-

Mobile South, LLC v. City of Roswell, 135 S. Ct. 808, 815 (2015)

(“Roswell”). Courts recognize that “local authorities are

frequently lay member boards without many resources” and

consequently “do not require formal findings of fact or

conclusions of law.” Nat’l Tower, 297 F.3d at 20-21. “Nor need

a board’s written decision state every fact in the record that

supports its decision.” Id. at 21. “‘Substantial evidence is

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion,’” taking into account

“‘contradictory evidence in the record.’” Green Mountain Realty

Corp. v. Leonard, 688 F.3d 40, 50 (1st Cir. 2012) (“Green

Mountain I”) (internal citations omitted).

However, “a board must provide the reasons for its

decision; merely reciting the bylaw is insufficient to comply

with the substantial-evidence requirement.” American Towers,

2018 WL 3104105 at *7; see, e.g., T-Mobile Northeast LLC v. City

of Lawrence, 755 F. Supp. 2d 286, 291 (D. Mass. 2010) (“mere

recitation of provisions of a local zoning ordinance does not

constitute ‘substantial evidence’ under the Act”); Sprint

Spectrum L.P. v. Town of Swansea, 574 F. Supp. 2d 227, 236 (D.

Mass. 2008) (holding that the zoning board could not “ignore the

requirements of the TCA by parroting Swansea’s Zoning By-Law”);

Nextel Communications of Mid-Atlantic, Inc. v. Town of Randolph,

193 F. Supp. 2d 311, 318 (D. Mass. 2002) (criticizing zoning

board’s decision as “pabulum” and “conclusory statements”)

(“Nextel Communications”); see also MCF Communications, LLC v.

Town of Portsmouth, 2012 WL 6706935, at *2 (“[c]onclusory

statements” insufficient to meet TCA’s “written denial

requirement”).

In determining whether a decision is supported by

substantial evidence, the reviewing court must consider the

written record as a whole and is limited to the administrative

record before the board.8 Green Mountain I, 688 F.3d at 50-51;

Nat’l Tower, 297 F.3d at 22. The written record may include

more than the writing that conveys the denial if the “reasons

are sufficiently clear and are provided or made accessible to

the applicant essentially contemporaneously with the written

denial letter or notice.” Roswell, 135 S. Ct. at 811-12

B. Whether Town Violated Substantial Evidence Standard

Plaintiffs do not contest that the Denial is in writing;

rather, they challenge the reasons articulated in the Denial as

unsupported by substantial evidence in violation of section

332(c)(7)(B)(iii) of the TCA. (Docket Entry # 42, pp. 17-29).

In their estimation, the Denial contains “at best” three reasons

for denying the Application: “(1) safety concerns due to the

proximity of the Proposed Facility to other structures; (2) a

lack of evidence as to how the Proposed Facility would benefit

the Town; and (3) the [Board’s] opinion that construction of the

8 Because the Conroy Report is not part of the administrative

record, it is not considered with respect to the substantial

evidence assessment.

Proposed Facility was not in the best interest of the Town or

the residential abutters.’”9 (Docket Entry # 42, pp. 17-18).

Plaintiffs argue that “these reasons are either not supported by

substantial evidence in the written record or are not valid

reasons for denying the Application under the Town’s Zoning

Bylaw” and therefore cannot be grounds for denial that

constitutes substantial evidence. (Docket Entry # 42, p. 18).

Plaintiffs contend that “[u]nder the substantial evidence

standard, localities may not deny applications for reasons not

set forth in their own zoning bylaw.” (Docket Entry # 42, p.

17).

First, plaintiffs maintain that the concerns raised by the

Board regarding safety are directly contradicted by the expert

evidence contained in the Fall Zone Letter. Specifically, they

reason that “[t]he Fall Zone Letter describe[s] how the Proposed

Facility could be designed so that it present[s] no danger to

the surrounding facilities and structures,” and there is no

contradictory expert or technical evidence. (Docket Entry # 42,

pp. 18-19). Thus, plaintiffs submit that by ignoring “‘the only

available expert [report] on the issue,’” “[t]he Board violated

9 The Special Permit Denial and the Variance Denial each state

while summarizing the hearing minutes that “[Board Member]

Santini agreed that this was not in the best interest of the

Town or the residential abutters.” (Docket Entry # 48-1, p.

213) (Docket Entry # 48-1, p. 209).

the substantial evidence requirement.”10 (Docket Entry # 42, p.

19).

Second, plaintiffs argue that the remaining reasons

contained in the Denial, i.e., that plaintiffs “failed to show

how the Proposed Facility would benefit the Town and that

granting the Application was not in the Town’s best interest,

are not supported by substantial evidence because they are not

valid reasons for denying the Application under § 6.8 of the

Town’s Zoning Bylaw.” (Docket Entry # 42, pp. 19-20).

Specifically, they contend that “[t]he general purpose of

section 6.8,” as expressed in section 6.8.1,11 does not require

“applicant[s] to present evidence illustrating how the Town

would benefit from the [Proposed Facility],” nor does any other

section of the Town’s Zoning Bylaw. (Docket Entry # 42, p. 20).

Plaintiffs note that although “section 6.8.7.312 allows the Board

10 In addition, plaintiffs assert that “[a] local government

cannot substitute the members’ lay opinion to contradict expert

evidence on technical issues.” (Docket Entry # 42, p. 19).

11 Section 6.8.1 of the Town’s Zoning Bylaw provides:

The purpose of these regulations is to minimize adverse

impacts of wireless communications facilities, satellite

dishes and antennas on adjacent properties and residential

neighborhoods; minimize the overall number and height of

such facilities to only what is essential; and promote

shared use of existing facilities to minimize the need for

new facilities.

(Docket Entry # 48-1, p. 119).

12 Section 6.8.7.3 of the Town’s Zoning Bylaw states:

to take into consideration ‘the proximity of the facility to

residential dwellings and its impact on those residences,’ but

the Town’s Denial does not assert that the Proposed Facility

would have an adverse impact on nearby residences,” and

regardless, plaintiffs “submitted evidence that demonstrated

that there were not legitimate safety concerns.” (Docket Entry

# 42, p. 20). Plaintiffs further argue that “[t]he Board

members’ opinions that the Proposed Facility was not in the

Town’s best interest and that Eco-Site had failed to show how it

would benefit the Town are separate and distinct from any

argument about the proximity of the Proposed Facility to

residential dwellings.” (Docket Entry # 42, p. 20). Thus,

plaintiffs assert that the Denial is not supported by

substantial evidence because “[i]t is well-established that

local government denials are not supported by substantial

evidence when they are based on factors that are not applicable

under the local code.” (Docket Entry # 42, p. 20).

When considering an application for a wireless

communications facility, the [Board] shall take into

consideration the proximity of the facility to residential

dwellings and its impact on these residences. New

facilities shall only be considered after a finding that

existing (or previously approved) wireless communication

facilities suitable for and available to the applicant on

commercially reasonable terms cannot accommodate the

proposed uses(s), taking into consideration radio frequency

engineering issues and technological constraints.

(Docket Entry # 48-1, p. 127).

Third, plaintiffs argue that failure to give consideration

to the TCA “alone is sufficient for the Court to enter summary

judgment in Plaintiffs’ favor,” as “failure to consider the

possibility that enforcement of zoning bylaws may violate the

[TCA] automatically renders a decision not based on substantial

evidence and in violation of the [TCA].” (Docket Entry # 42, p.

21). They maintain that “a significant gap in wireless coverage

is considered a unique circumstance that would cause substantial

hardship to an applicant if the variance is not granted,” and,

moreover, “[t]he law is clear that the [TCA] ‘preempts state and

local laws when the application of those laws effectively

violates one of the [TCA’s] enumerated limitations on state

zoning authority.’” (Docket Entry # 42, p. 21).

As an initial matter and contrary to plaintiffs’ assertion,

it is not a foregone conclusion that a zoning board’s failure to

“give consideration” to the TCA “automatically renders a

decision not based on substantial evidence and in violation of

the [TCA].” (Docket Entry # 42, p. 21). Notably, while

plaintiffs rely on Nextel Communications, 231 F. Supp. 2d at

404, that decision has been questioned by at least one court in

this district and is not supported by other First Circuit cases.

In Nextel Communications, the plaintiff sought a

dimensional variance from the Town of Wayland in order to build

a wireless telecommunications facility. Nextel Communications,

231 F. Supp. 2d at 398. The zoning board denied the variance,

explaining that “‘[t]he hardship alleged by the applicant is

related to its business plan of providing a certain amount of

wireless coverage to the Town, rather than to the unique shape

or topography of the Locus.’” Id. at 407. The court, however,

criticized the zoning board for failing to explain how the

plaintiff would be able to provide sufficient coverage without

the variance and ultimately held that the zoning board failed to

give “due consideration” to the TCA such that the denial was not

supported by substantial evidence:

Under the Telecommunications Act, the Board cannot deny the

variance if in doing so it would have the effect of

prohibiting wireless services. 47 U.S.C. §

332(c)(7)(B)(i)(II). In other words, the need for closing

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 . . .. The Board’s decision, particularly the

second step in its analysis, fails to give due

consideration to the requirements of the [TCA]. The

Board’s reasoning involved incorrect legal conclusions,

which led to the incorrect factual conclusion that no

unique circumstances existed that would require a zoning

variance. The decision, therefore, is not supported by

substantial evidence and in violation of [section]

332(c)(7)(B)(iii) [of the TCA].

Id. at 406-407.

In American Towers, however, the court held that the TCA

does not require a zoning board, when denying a particular

application, to determine expressly whether that denial is an

effective prohibition of service. American Towers, 2018 WL

3104105, at *8.13 There, the plaintiffs, American Towers LLC and

T-Mobile, proposed to build a wireless telecommunications tower

at a location in a zoning district that prohibited such

construction. Id. at *1. The town’s zoning board of appeals

denied the plaintiffs’ application for a variance from the

town’s zoning bylaw, and the plaintiffs filed a complaint

asserting that the zoning board of appeals’ denial effectively

prohibited wireless service and was not supported by substantial

evidence contained in a written record.14 Id. In considering

whether the zoning board was required to give consideration to

the TCA, the court determined that the zoning board of appeals

“need only evaluate the application for a zoning variance under

the applicable standard as provided by state and local law.”

Id. at *8. Principally, the court noted that while “the

statutory text of the TCA” clearly dictates certain

requirements, including that a denial be supported by

substantial evidence and not effectively prohibit wireless

service, it does not likewise indicate that any one of those

requirements “is connected to or dependent on any of the

others.” Id. at *9. Instead, the court stated that the

13 In reaching that conclusion, the court explicitly stated that

it disagreed with the Wayland court. American Towers, 2018 WL

3104105 at *11.

14 The plaintiffs moved for summary judgment on the “substantial

evidence” issue only, so the court did not address their

“effective prohibition” claim. Id.

requirement that a town’s decision be supported by substantial

evidence is merely a requirement intended to permit effective

judicial review, not a “standard for granting a variance.” Id.

at *9. The court then noted:

incorporating a duty to consider an effective-prohibition

claim into the substantial-evidence requirement of the TCA

seems to clash with the overall regulatory scheme. The two

different types of claims (that is, effective prohibition

and failure to provide substantial evidence) are judged

according to different standards, and on a different

record.

Id. at *11.

Examining the statutory text of the TCA, this court agrees

with the American Towers court that the substantial evidence

requirement and ban on effective prohibition are two separate

requirements. Section 332(c)(7)(B) clearly proscribes five

separate limitations on state and local zoning authorities in

subparagraphs (i) through (v), including that a decision be

supported by substantial evidence and not result in the

“‘effective prohibition of wireless service,’” and there is

nothing within the statute indicating that these requirements

are meant to be read together or as dependent on one another.

American Towers, 2018 WL 3104105, at *8. Moreover, and as the

American Towers court noted, the First Circuit has indicated

that a zoning board need not consider whether its decision

amounts to an “‘effective prohibition’”; rather, the appropriate

standard for evaluating whether substantial evidence supports a

zoning board’s decision is the relevant state and local

standards for granting a variance or special permit. Id. at *9;

see Second Generation Props., 313 F.3d at 630 (“TCA does not

itself expressly authorize local zoning boards to consider

whether individual decisions amount to an ‘effective

prohibition’”); ATC Realty, LLC v. Town of Kingston, 303 F.3d

91, 94 (1st Cir. 2002) (“‘TCA’s substantial evidence test is a

procedural safeguard which is centrally directed at whether the

local zoning authority’s decision is consistent with the

applicable zoning requirements’”) (internal citations omitted);

Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51, 58

(1st Cir. 2001) (“‘Substantial evidence’ review under the TCA

does not create a substantive federal limitation upon local land

use regulatory power, but is instead ‘centrally directed to

those rulings that the Board is expected to make under state law

and local ordinance in deciding on variances, special

exceptions, and the like.’”) (internal citation omitted),

abrogated on other grounds by T-Mobile S., LLC v. City of

Roswell, 135 S.Ct. 808 (2015) ; Amherst, 173 F.3d at 14 (noting

that substantial evidence requirement “surely refers to the need

for substantial evidence under the criteria laid down by the

zoning law itself”); see also Tower and Wireless, LLC v. Haddad,

109 F. Supp. 3d 284, 299 (D. Mass. 2015) (overturning zoning

board’s decision because it was based only on effective

prohibition prong of TCA and failed to apply standard in local

zoning bylaw).

Here, the Board’s Denial consisted of two separate written

decisions: the Variance Denial and the Special Permit Denial.

Although plaintiffs acknowledge that the Denial consisted of two

separate decisions, their briefs do not likewise evaluate each

decision on its own to determine whether either was supported by

substantial evidence. Thus, in claiming that the Denial was not

supported by substantial evidence, they appear to conflate the

special permit and variance standards. The Board appears to

have done the same, which, if this court were to follow American

Towers, is grounds on its own to find that the Variance Denial

was not supported by substantial evidence. See American Towers,

2018 WL 3104105, at *12; cf. Haddad, 109 F. Supp. 3d at 298

(local zoning board’s denial of application for a special permit

to build a wireless telecommunications tower was not supported

by substantial evidence where zoning board applied wrong legal

standard). In American Towers, the plaintiffs argued that the

zoning board’s written “decision merely parroted” the town’s

zoning bylaw “without offering any supporting facts or

analysis.” American Towers, 2018 WL 3104105, at *12. The

court, inclined to agree, noted that the zoning board’s written

decision was “worse than a mere parrot of the standard.” Id.

The decision, which purported to address the plaintiffs’

application for variances, parroted “both the variance standard,

without any further explanation, and the special permit

standard,” which was not relevant. Id.

Here, plaintiffs requested both a special permit and

dimensional variances, and the Board addressed each in the two

separate decisions. However, like the board in American Towers,

the Board appears to conflate the special permit and variance

standards under the Massachusetts Zoning Act and the Town’s

Zoning Bylaw, or else ignores the state and local variance

standards altogether. As discussed previously, section 10.5 of

the Town’s Zoning Bylaw provides that a special permit for a

particular use may be authorized only where the Board

specifically finds that the proposed use is in harmony with the

general purpose and intent of the Town’s Zoning Bylaw and

complies with all the requirements of the Town’s Zoning Bylaw.

Section 8.6 provides the specific rules and requirements for

granting a special permit for a wireless communications

facility. On the other hand, section 10.6 outlines the standard

for granting a variance from the specific requirements of the

Town’s Zoning Bylaw, including the requirements for granting a

special permit for a wireless communication facility like the

Proposed Facility. The Variance Denial, however, merely

acknowledges that the plaintiffs are requesting variances from

sections 6.8.5.2 and 6.8.5.3 before providing a rote recitation

of the hearing minutes where the board members and residential

abutters expressed their various concerns regarding the Proposed

Facility. The Variance Denial then identifies the specific

reasons as follows: “too close to the lot line, railroad

tracks, abutting property, residential zone.” (Docket Entry #

48-1, p. 209). However, similar to the zoning board in American

Towers, the Board, in identifying these “reasons,” merely

recites the various requirements set forth in section 6.8 for

granting a special permit for wireless communications

facilities. Unlike the zoning board in American Towers, which

at least parroted the applicable variance standard under the

town’s zoning bylaw, the Board fails to even parrot the

applicable zoning standard. Beyond the rote acknowledgement

that plaintiffs need variances from the special permit

requirements in section 6.8, the Board’s decision does not

mention section 10.6 and the applicable variance standard under

the Town’s Zoning Bylaw or, namely, any topographical feature or

hardship.

For the above reasons, this court is inclined to find that

the Variance Denial is not supported by substantial evidence.

However, plaintiffs do not make the specific argument that the

Board conflated the variance and special permit standards or

else ignored the applicable variance standard, and this court

declines to raise it sua sponte and overturn the Board’s

decision on this issue at this juncture. Rather, plaintiffs

argue more broadly that the “sole reason the Board voted against

the Application was because they felt it was unsafe due to its

proximity to other structures on abutting property.” (Docket

Entry # 42, p. 13).

Notwithstanding plaintiffs’ theory, this court interprets

the Board’s reasons for denying the Application, as expressed in

both the Variance Denial and Special Permit Denial, as being

directly related to the Proposed Facility failing to meet the

requirements in section 6.8 for granting a special permit for a

wireless communications facility. As defendants point out,

section 6.8.7.1 of the Town’s Zoning Bylaw provides that

“‘[a]pplications for Special Permits shall be approved or

approved with conditions if the petitioner can fulfill the

requirements of these regulations to the satisfaction of the

Board of Appeals.’” (Docket Entry # 49, p. 10) (Docket Entry #

48-1, p. 127). Thus, the Board may deny an application for a

special permit to construct a wireless communications facility

if the proposed facility fails to meet any of the requirements

in section 6.8, including sections 6.8.5.2 and 6.8.5.3. Section

6.8.5.3, however, also provides in relevant part that a

monopole:

shall be set back from the property lines of the lot on

which it is located by a distance equal to the overall

vertical height of the monopole and any attachments plus

five feet, unless the applicant demonstrates that due to

topography and/or other characteristics of the site lesser

setbacks shall not pose any public safety danger to any

adjacent properties.

(Docket Entry # 48-1, p. 123) (emphasis added).

Plaintiffs argue that the Board ignored uncontroverted

evidence that the Proposed Facility was safe. As a general

matter, it is true that a zoning board may not ignore

uncontroverted expert testimony. See City of Lawrence, 755 F.

Supp. 2d at 292 (finding that the zoning board “improperly

ignored the only available expert testimony on the issue” of

whether a coverage gap existed. The appropriate standard for

evaluating whether substantial evidence supports a zoning

board’s decision, as discussed previously, is the relevant state

and local standard for granting a variance or special permit.

Here, the language in section 6.8.5.3 of the Town’s Zoning

Bylaw, as allowed by the Massachusetts Zoning Act, indicates

that to avoid the specified setback requirement, an applicant

must demonstrate that “due to topography and/or other

characteristics of the site lesser setbacks shall not pose any

public safety danger to any adjacent properties.” (Docket Entry

# 48-1, p. 123) (emphasis added). Plaintiffs rely on the Fall

Zone Letter to show that the design of the Proposed Facility

will not pose any public safety danger to any adjacent

properties; however, section 6.8.5.3 speaks to topographic and

other characteristics of the site and makes no mention of the

characteristics or features of the actual wireless facility.

Thus, the fact that the Board ignored uncontroverted evidence

demonstrating that the Proposed Facility was safe does not

amount to the Special Permit Denial being unsupported by

substantial evidence.

Although this court is hesitant to stretch plaintiffs’

argument further to directly challenge the Board’s apparent

disregard or misunderstanding of the applicable variance

standard in the Variance Denial, this court need not and does

not make a determination as to whether the Variance Denial (and

the Denial) is supported by substantial evidence because the

Denial nevertheless effectively prohibits wireless service in

violation of the TCA. See Green Mountain II, 750 F.3d at 38

(“It is well-established in this Circuit that ‘local zoning

decisions . . . that prevent the closing of significant gaps in

the availability of wireless services violate the statute.’

This is true even where a local authority’s denial of an

individual application pursuant to its own local ordinances is

supported by substantial evidence.”) (quoting Nat’l Tower, 297

F.3d at 19-20).

IV. Effective Prohibition

As discussed previously, the TCA does not require a zoning

board or other local authority to consider whether its decision

constitutes an effective prohibition of wireless service.

However, that does not mean that a zoning board’s choice to

ignore evidence of a gap in coverage is insignificant. Second

Generation Props., 313 F.3d at 630 (noting that although TCA

does not itself expressly authorize local zoning boards to

consider whether individual decisions amount to an effective

prohibition, “many boards wisely do consider the point”);

American Towers, 2018 WL 3104105, at *8 (“[a] local zoning board

thus ignores evidence of a gap in coverage at its peril”).

Indeed, regardless of whether a zoning board or other local

authority determines expressly whether a decision is supported

by substantial evidence,15 a plaintiff may prove an “effective

prohibition” claim by demonstrating that: (1) “a ‘significant

gap’ in coverage exists;” and (2) the proposed plan, which the

local authority rejected, is the “‘only feasible plan.’”

Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48,

50 (1st Cir. 2009). Both of these determinations are “based,

not on bright-line legal standards, but on the facts in the

record.” Omnipoint Holdings, 586 F.3d at 48; see Green Mountain

15 The First Circuit explicitly states that “[t]he question of

whether or not a local denial constitutes an effective

prohibition violative of the [TCA] is definitely answered by the

district court, not the local zoning authority.” Green Mountain

II, 750 F.3d at 38-39. Moreover, “where a local authority

purports to pass upon the issue, the federal courts afford it

‘[n]o special deference.’” Id. at 39 (citations omitted)).

II, 750 F.3d at 38-39 (“question of whether or not a local

denial constitutes an effective prohibition” is largely fact-

driven). “An effective prohibition claim asserts that the

decision, even if supported by the evidence, has an

impermissible effect, and thus the district court considers the

questions de novo, taking, it if chooses, additional evidence

not in the administrative record.” Green Mountain I, 688 F.3d

at 59 n.14; see, e.g., Second Generation Props., 313 F.3d at

626-627) (affirming summary judgment for town where district

court considered both the record developed before the local

board and “other evidence submitted by the parties in support of

their motions”).16

A. Existence of Significant Gap in Coverage

Plaintiffs argue that they established the existence of a

significant gap in coverage. Specifically, they assert that

propagation maps and analysis by RF engineers are sufficient to

show the existence of a gap in this circuit. They further point

out, correctly, that defendants “did not dispute the existence

of the gap at the hearing and admitted that [they] did not

conduct any independent investigation into the issue.” (Docket

Entry # 42, p. 24). It is true that defendants do not contest

that plaintiffs have established a significant gap in coverage

16 It is therefore appropriate to consider the Conroy Report in

determining effective prohibition.

exists in the Town in the vicinity of the Proposed Site.17

“However, because it is plaintiffs’ burden, as the provider, to

17 As plaintiffs point out, defendants’ only “response on the

Effective Prohibition claim appears to be that the denial was

supported by its local zoning bylaw.” (Docket Entry # 50, p.

9). Specifically, defendants assert:

The town’s zoning bylaws and the Board’s decision do not

prohibit cell towers within the [T]own nor do they violate

the ‘effective prohibition’ sections of the [TCA]. In

order to succeed on an effective prohibition claim, the

applicants must establish: (1) that the [T]own’s zoning

policies and decisions result in a significant gap in

wireless service within the town; and (2) that ‘from

language or circumstances not just that [their] application

has been rejected but that further reasonable efforts are

so likely to be fruitless that it is a waster [sic] of time

even to try.’

(Docket Entry # 49, p. 5) (internal citations and footnote

omitted). Defendants then go on to explain:

However, it must be remembered that . . . 47 U.S.C. §

332(c), which relates to the preservation of local zoning

authority, provides that ‘[e]xcept as provided in this

paragraph, nothing in this chapter shall limit or affect

the authority of a State or local government or

instrumentality thereof over decisions regarding the

placement, construction, and modification of personal

wireless service facilities.’ 47 U.S.C. § 332(c)(1996).

The statutory general reservation of the right of local

authorities to govern the sitting and construction of

telecommunications facilities is subject only to the

limitations which follow in 47 U.S.C. § 332(c)(7)(B) which

preclude such exercise of authority to the extent that it

‘unreasonably discriminate[s] among providers of

functionally equivalent services’ and/or ‘prohibit[s] or

have the effect of prohibiting the provision of personal

wireless services.’ 47 U.S.C. § 332(c)(7)(B)(1996). Here

no such prohibition has been shown as no such prohibition

has occurred.

(Docket Entry # 49, pp. 5-6). Beyond this paragraph, defendants

do not adequately explain why the Town’s Zoning Bylaw and the

Board’s decision do not constitute an effective prohibition in

violation of the TCA. (Docket Entry # 46). Moreover, and as

demonstrate both elements of an effective prohibition claim,

this court will address the evidence regarding the existence of

a significant gap in services.” See T-Mobile Ne., LLC v. Town

of Bedford, No. 17-CV-339-LM, 2018 WL 6201717, at *6 (D.N.H.

Nov. 28, 2018) (citing City of Cranston, 586 F.3d at 48

(“‘carrier has the burden to show an effective prohibition has

occurred’”)).

The “significant-gap analysis” focuses on “‘whether a

coverage problem exists at all.’” City of Cranston, 586 F.3d at

48-49 (citing Second General Props. 313 F.3d at 631).

Defendants contend that the analysis is concerned “with complete

coverage of wireless services within a town, not significant

gaps in a particular provider’s coverage.” (Docket Entry # 46,

p. 3, n.3). As plaintiffs point out, however, the First Circuit

rejects that test and holds that the relevant question is

whether a significant gap exists within the individual carrier’s

network. City of Cranston, 586 F.3d at 49 (“We have rejected

the Third Circuit’s rule that considers not the individual

carrier’s network but whether any carrier provides service to an

area.”). In deciding whether the coverage gap is significant,

plaintiffs argue, the fact that a decision comports with the

local zoning law is not a defense to an effective prohibition

claim because, as discussed previously, a decision may still

constitute an effective prohibition regardless of whether it is

supported by substantial evidence.

this court “should consider, inter alia, the physical size of

the gap, the area in which there is a gap, the number of users

the gap affects, and whether all of the carrier’s users in that

area are similarly affected by the gaps.” Id. at 49.

Here, plaintiffs provide sufficient undisputed evidence to

establish the existence of a significant gap in the vicinity of

Tacoma Drive. The RF Affidavit submitted as part of the

Application states that T-Mobile “provides insufficient wireless

communication services to the Town” in the vicinity of Tacoma

Drive and is further supported by the Conroy Report. The Conroy

Report, which utilizes propagation maps and radio frequency

data, demonstrates that there is a 2.1 square mile gap in T-

Mobile’s ability to provide service in the vicinity of Tacoma

Drive “caused by a lack of reliable in-building residential &

in-building commercial coverage.” (Docket Entry # 43-1, p. 8).

The Conroy Report further demonstrates that the gap includes

residences, commercial buildings, and strip malls; and that

according to 2010 U.S. Census data, there are approximately

2,320 to 5,494 residents in the in-building coverage gap area.

This evidence cumulatively establishes that a significant gap of

coverage exists. See Haddad, 109 F. Supp. 3d at 301 (provider

met its burden on summary judgment of establishing gap in

wireless coverage where provider provided multiple propagation

studies showing lack of service and defendants did not oppose

providers’ LR. 56.1 statement or raise “any significant issues

of fact in their Opposition”); accord Town of Bedford, 2018 WL

6201717, at *6 (finding that RF analysis submitted with

provider’s application to zoning board identifying coverage gap

and expert report submitted in support of plaintiff’s summary

judgment motion constituted sufficient evidence of coverage

gap); Nextel Commc’ns of the Mid-Atlantic, Inc. v. Town of

Sudbury, Civil Action No. 01-11754-DPW, 2003 WL 543383, at *12

(D. Mass. Feb. 26, 2003) (noting that coverage maps “are

commonly relied upon by wireless carriers, zoning boards, and

courts to determine the extent of coverage in a given

locality”). This evidence further supports a finding that the

identified gap is “significant.” See Branch Towers, LLC v. City

of Knoxville, No. 3:15-CV-00487, 2016 WL 3747600, at *1, 6 (E.D.

Tenn. July 11, 2016) (provider met burden on summary judgment of

demonstrating “significant gap” in services where gap consisted

of 1.5 square mile area that encompassed “residential streets,

churches, a school, and several heavily traveled roads”); AT&T

Mobility Servs., LLC v. Vill. of Corrales, 127 F. Supp. 3d 1169,

1174 (D.N.M. 2015) (finding sufficient evidence of “significant

gap” on summary judgment where gap was approximately two miles

across and much of it “include[d] a residential zone without

reliable in-home coverage”), aff’d, 642 F. App’x 886 (10th Cir.

2016); cf. Town of Bedford, 2018 WL 6201717, at *7 (finding

sufficient evidence of “significant gap” on summary judgment

where RF report and “propagation maps demonstrate[d] . . . 6.7

square mile gap in” provider’s reliable in-building services

encompassing “4,000 residents and three schools”).

B. Only Feasible Plan

Plaintiffs next argue that the Proposed Facility is the

only feasible means to remedy the significant gap.

Specifically, they contend that they “investigated thoroughly

the possibility of other viable alternatives” before concluding

“no other feasible locations were available.” (Docket Entry #

42, p. 25). In making this argument, plaintiffs point to their

“good faith” efforts to identify all of the properties in the

search ring and evaluate which of the properties was feasible

for a tower. (Docket Entry # 42, p. 7). They further argue

that upon demonstrating that they investigated other sites and

designs and there was no other feasible plan, “the Town has the

burden to demonstrate that technically feasible and actually

available alternatives exist.” (Docket Entry # 42, p. 25).

As noted previously, defendants, in response to the

“effective prohibition” claim, only contend that “no such

prohibition has been shown as no such prohibition has occurred.”

(Docket Entry # 49, pp. 5-6). They do not explicitly address

whether the Proposed Facility is the only feasible plan and

appear to argue that an effective prohibition can only occur

where a town’s zoning bylaw prohibits all cell towers, and not

just those towers that fail to meet certain zoning requirements.

While it is true that an individual denial by a zoning board

does not automatically equate to an effective prohibition, the

First Circuit and other courts in this district conclude that an

individual denial may amount to an effective prohibition in

certain circumstances, including where no alternative exists.

See, e.g., American Towers, 2018 WL 3104105, at *11 (citing

Amherst, 173 F.3d at 14) (“‘Obviously, an individual denial is

not automatically a forbidden prohibition violating the

“effects” provision. But neither can we rule out the

possibility that—based on language or circumstances—some

individual decisions could be shown to reflect or represent, an

effective prohibition on personal wireless services.’”).

Defendants contend that to succeed on an effective

prohibition claim, plaintiffs “must establish: (1) that the

[T]own’s zoning policies and decisions result in a significant

gap in wireless services within the [T]own; and (2) that ‘from

language or circumstances not just that [their] application has

been rejected but that further reasonable efforts are so likely

to be fruitless that it is a waster [sic] of time even to try.’”

(Docket Entry # 49, p. 5) (internal citations and footnote

omitted). The First Circuit adheres to the following standard:

Whether or not an effective prohibition has occurred

depends on each case’s unique facts and circumstances, and

“there can be no general rule classifying what is an

effective prohibition.” Second Generation Props., 313 F.3d

at 630. We have, however, discussed certain “circumstances

where there is a prohibition ‘in effect.’” Id. “[W]here

the plaintiff’s existing application is the only feasible

plan . . . denial of the plaintiff’s application might

amount to prohibiting personal wireless service.” Id.

(citations and internal quotation marks omitted). In

attempting to show that local authorities have rejected the

only feasible plan, a carrier bears “the ‘heavy’ burden ‘to

show from the language and circumstances not just that this

application has been rejected but that further reasonable

efforts [to find another solution] are so likely to be

fruitless that it is a waste of time even to try.’” City

of Cranston, 586 F.3d at 50 (emphasis and alteration in

original) (quoting Town of Amherst, 173 F.3d at 14).

Green Mountain II, 750 F.3d at 40 (internal quotation marks and

footnote omitted). Thus, the applicable test is the one

articulated in City of Cranston, namely, whether plaintiffs have

shown “‘that further reasonable efforts . . . are so likely to

be fruitless that it is a waste of time even to try.’” City of

Cranston, 586 F.3d at 50 (internal citation omitted). In City

of Cranston, the court further explained that a carrier has the

burden to prove it “‘investigated thoroughly the possibility of

other viable alternatives’ before concluding no other feasible

plan was available.” Id. at 52 (internal citation omitted). As

discussed previously, whether the carrier proves an effective

prohibition is a factual question for this court to resolve.

Relevant facts a court may consider in assessing whether a

provider has carried this burden include the technical

feasibility of the proposed site and any alternative plans, the

overall cost of alternatives to the provider, the technological

efficiency of alternatives, whether local authorities are

willing to cooperate with carriers, and whether a “‘town could

prefer other solutions on aesthetic grounds.’” Town of Bedford,

2018 WL 6201717, at *8 (citing City of Cranston, 586 F.3d at

52). “Also relevant is the availability of alternative sites,

i.e. whether owners are willing to sell or lease the land.” Id.

“‘In order for a site to be an alternative sufficient to

forestall a claim of effective prohibition, it needs to be

available and technically feasible.’” Id. at *11 (internal

citation omitted). “‘Ultimately, the question is a practical

inquiry into feasible, available alternatives.’” Id. (citing

City of Cranston, 586 F.3d at 52-53).

Here, plaintiffs provided sufficient undisputed evidence to

establish that the Proposed Facility is the “only feasible

plan.” T-Mobile RF engineers identified a search ring to remedy

the coverage gap and that T-Mobile then proceeded to perform a

detailed and thorough search of the area within the search ring

for available properties that would be suitable for construction

of a wireless telecommunications facility that would remedy the

gap and comply with the Town’s Zoning Bylaw. The Conroy Report

shows, and defendants acknowledge, that T-Mobile expressed

interest in building its facility at the Town Hall. The Town

Hall, however, was not an appropriate candidate because the Town

refused to enter into a lease that would permit T-Mobile to

deploy a wireless telecommunications facility at the Town Hall.

Thus, the Town Hall is not a viable alternative because it is

not available. It is also undisputed that T-Mobile also

considered installing the wireless telecommunications facility

at St. Dorothy’s Church. Here again, the Conroy Report

establishes that St. Dorothy’s Church is not a viable option

because an antenna mounted in a fashion acceptable to the Board

would be at a height of approximately 50 feet above ground

level, which is too low to provide substantive coverage to the

gap area.18 Thus, St. Dorothy’s Church is not technically

feasible. Finally, it is undisputed that T-Mobile expressed

interest in 200 Jefferson Road, but the landlord of the property

refused to lease the property. Thus, 200 Jefferson Road is also

not a viable option because it is not available. See O’Rourke,

582 F. Supp. 2d at 110 (finding that parcel of land was “not an

alternative site because the owners [were] not interested in

selling the land”).

After evaluating the properties within the search ring, T-

Mobile determined that the Proposed Site is an appropriate site

18 Defendants do not sufficiently articulate an alternative

means to show that an antenna could be mounted in a way that

would both comply with the Town’s Zoning Bylaw and remedy the T-

Mobile’s coverage gap. (Docket Entry # 46, pp. 7-8).

because it is located in a general business zone, it would

provide coverage relative to its location, it is buildable, and

the site owner agreed to lease the site. Defendants object to

T-Mobile’s conclusion that the Proposed Site is an “appropriate

site” because it does not comply with the Town’s Zoning Bylaw.

Where no other feasible alternatives exist, however, the fact

that a proposed plan does not comply with local zoning laws does

not defeat an effective prohibition claim.

At the Board’s request, plaintiffs also considered the

Tewksbury Fire Department Tower. The Conroy Report demonstrates

that the tower is not a viable alternative because it is outside

of the search ring. In addition, it is undisputed that any

potential coverage provided by the Tewksbury Fire Department

Tower would be redundant with an existing T-Mobile site and

would not provide coverage for the significant gap. See City of

Cranston, 586 F.3d at 53 (district court did not err in finding

that fire department museum, which provided largely repetitive

coverage with another tower to solve the carrier’s gap, was not

a viable alternative).

In short, the evidence cumulatively demonstrates that the

Proposed Facility is the “only feasible plan.” Notably, there

is no evidence of any alternative that could remedy T-Mobile’s

significant gap. Id. at 52 (“When we have held the carrier has

not met its burden, the evidence has been essentially undisputed

that the carrier had other alternatives.”); id. at 53 (district

court “did not clearly err” in finding that constructing a

wireless telecommunications tower at proposed site “was the only

feasible way” to close the carrier’s coverage gap where evidence

presented by the carrier showed that it “had in fact

systemically searched for solutions to the gap problem using

technologically reliable criteria and methodologies”); cf.

Second Generation Props., 313 F.3d at 635 (carrier did not show

entitlement to summary judgment because it presented no

explanation why its proposal was the only feasible site);

Amherst, 173 F.3d at 15 (carrier did not show entitlement to

summary judgment because it “did not present serious

alternatives to the town” other than the most efficient solution

and “practically admitted that somewhat lower towers were

technically feasible”). Finally, there is little, if any,

reason to question the qualifications of Conroy or De Ramos, who

both have extensive experience as RF engineers. (Docket Entry #

43-1, pp. 41-44) (Docket Entry # 43-2, pp. 47-53).

V. Remedy

For the above reasons, plaintiffs meet their burden of

showing: (1) that a significant gap in coverage exists in the

vicinity of Tacoma Drive; and (2) that the Proposed Facility is

the only feasible plan that would remedy the significant gap in

coverage and that further reasonable efforts to identify

alternatives are likely to be fruitless such that it would be a

waste of time to try. A reasonable finder of fact would not

conclude otherwise. Having sufficiently established both prongs

of an effective prohibition of a matter of law, plaintiffs are

entitled to summary judgment. See Town of Bedford, 2018 WL

6201717, at *12 (granting summary judgment to carrier plaintiffs

where they “satisfied both prongs of their effective prohibition

claim”). Conversely and separately viewing defendants’ request

for summary judgment in their favor under Rule 56(f)(1),

defendants’ request lacks merit. In addition, because

plaintiffs are entitled to summary judgment, it is not necessary

for this court to “consider summary judgment on its own” under

Rule 56(f)(3), as requested by defendants. Having determined

that the Denial effectively prohibits T-Mobile from providing

wireless services in violation of the TCA, the appropriate

remedy, as plaintiffs argue, is an injunction ordering the Board

to issue the wrongfully withheld special permit and variances.

See Nat’l Tower, 297 F.3d at 25 & n.7 (affirming district

court’s order instructing zoning board “‘to issue within thirty

(30) days . . . the dimensional and use variances and special

permit necessary for the construction of the plaintiffs’ 170

foot lattice tower and maintenance facility’” where board

effectively prohibited provision of wireless services) (internal

citation omitted); Brehmer, 238 F.3d at 120–123 (discussing and

approving decisions by majority of district courts granting

injunctive relief in TCA cases); Town of Bedford, 2018 WL

6201717 at *12 (“While the TCA does not specify a remedy for a

violation, where the requisite showing has been made,

‘injunctive relief is the preferred remedy, given the [TCA’s]

stated objective of expediting judicial review.’”) (citing Nat’l

Tower LLC v. Frey, 164 F. Supp. 2d 185, 190 (D. Mass. 2001),

aff’d sub nom. Nat’l Tower, 297 F.3d at 14)).

CONCLUSION

In accordance with the foregoing discussion, plaintiffs’

motion for summary judgment (Docket Entry # 41) is ALLOWED and

defendants’ request for summary judgment under Rule 56(f)(1)

(Docket Entry # 46) is DENIED. The Board is ORDERED to issue

within 30 days of this Order the requested dimensional variances

and special permit necessary for the construction of the

Proposed Facility.

_/s/ Marianne B. Bowler_

MARIANNE B. BOWLER

United States Magistrate Judge