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

United States District Court

District of Massachusetts

)

VWI TOWERS, LLC, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 18-10345-NMG

TOWN OF NORTH ANDOVER PLANNING )

BOARD, JOHN SIMONS, PETER )

BOYNTON, JENNIFER LUZ, EITAN )

GOLDBERG, AARON PRESTON, )

CHRISTINE ALLEN and TOWN OF )

NORTH ANDOVER, )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of the denial of a special permit for

the construction and operation of a wireless communication

facility by VWI Towers, LLC (“Varsity” or “plaintiff”) to be

located at a site in the Town of North Andover. Varsity brings

this action against the Town of North Andover Planning Board

(“the Planning Board”), individual members thereof and the Town

of North Andover (collectively “the Town” or “defendants”),

alleging that they have violated the Telecommunications Act of

1996, 47 U.S.C. § 332 (“the TCA”).

Plaintiff alleges that 1) the Planning Board’s written

decision denying the permit application is not supported by

substantial evidence contained in the written record as required

by § 332(c)(7)(B)(iii) (Count I) and 2) the denial of the permit

effectively prohibits the provision of personal wireless

services in violation of § 332(c)(7)(B)(i)(II) (Count II).

Plaintiff seeks the annulment of the Planning Board’s decision

denying its permit application and the issuance of a permanent

injunction ordering the Town to issue all necessary permits for

the immediate construction and installation of the proposed

facility.

Before this Court is plaintiff’s motion for summary

judgment. For the following reasons, that motion will be

allowed, in part, and denied, in part.

I. Background

A. The Coverage Gap and the Proposed Facility

Varsity develops communications facilities for the

deployment of personal wireless services. It leases its

facilities to telecommunications providers who install their own

equipment to provide service to a particular geographic area.

Cellco Partnership, doing business as Verizon Wireless

(“Verizon”), and New Cingular Wireless PCS, LLC (“AT&T”) are

telecommunication providers licensed with the Federal

Communications Commission to provide personal wireless services

in the Commonwealth of Massachusetts, including the Town of

North Andover.

In order for a telecommunications carrier to provide an

effective wireless communications system, it must maintain a

network of cell sites with slightly overlapping coverage areas.

Cell sites are typically comprised of a base station and a cell

tower with mounted antennae and other electronic communications

equipment. Those cell sites must be overlapping to allow users

to move freely through a geographic area without losing service.

They need to be constructed at a sufficient height as defined by

various factors, such as location, coverage of existing cell

sites, terrain, land use characteristics and population density.

Verizon and AT&T are continuously building their networks

of cell sites to provide reliable service through current “4G

LTE” technology while also planning for future needs and

demands. Consistent with that goal, Verizon and AT&T have

identified a gap in their coverage within the Town of North

Andover in the area comprising Foster Street, Salem Street,

Boxford Street, Bridges Lane, Vest Way and surrounding roads and

neighborhoods (“the Coverage Objective”).

Verizon hired a radio frequency expert to analyze the

existing wireless communications network coverage and needs in

the Coverage Objective using radio frequency propagation maps

and drive test data. He determined that there were over 1,000

residents in the affected area receiving inadequate service from

Verizon. Moreover, the expert estimated that the Coverage

Objective experienced a significant amount of traffic with Salem

Street serving approximately 9,600 vehicles per day east of

Appleton Street and 2,900 vehicles per day south of Boxford

Street.1 AT&T is estimated to have a nearly identical area of

deficient coverage and approximately 1,300 customers in the

Coverage Objective area who lack adequate service.

In August, 2017, Varsity applied to the Planning Board for

a special permit and site plan review for the installation and

operation of a proposed facility located at 122 Foster Street in

North Andover (“the Proposed Facility”). It also applied

separately to the Town of North Andover Zoning Board (“the

Zoning Board”) for a series of variances needed to construct the

Proposed Facility. The Proposed Facility would consist of a

130-foot-tall cell tower camouflaged as a pine tree (“the

monopine” or “the tower”), faux pine branches that extended five

feet above the tower to a height of 135 feet, a compound of

nearly 4,000 square feet surrounded by a six-foot-high wooden

stockade fence, an ice bridge, a back-up generator, a pad-

mounted transformer and other communications equipment. Verizon

and AT&T agreed to enter into separate leases with Varsity

whereby they would co-locate their antennas on the monopine.

1 Those traffic estimates are based on data from the Massachusetts Department

of Transportation from 2016.

Along with its application, Varsity submitted the report of

Verizon’s radio frequency expert and several documents

demonstrating its site selection process. Those documents

included a spreadsheet of 19 alternative properties Varsity

reviewed and rejected as a location for the Proposed Facility

with the reasons for their rejection. The report also explained

that so-called “macro sites” (such as the Proposed Facility) are

the more common solution for larger areas of wireless service

coverage but that those sites can be supplemented by so-called

“small cells” which generally consist of smaller antenna mounted

on existing utility poles, light poles or short rooftops and are

designed to service discrete areas rather than broad coverage

gaps. The expert concluded that the use of only small cells

would be inadequate to provide the desired level of service to

the Coverage Objective.

B. The Relevant Bylaw

In assessing Varsity’s application for a special permit,

the Planning Board considered the following relevant provisions

of the North Andover Zoning Bylaw (“the Bylaw”), among others.

Section 8.9(1) of the Bylaw provides that its express purpose is

to minimize the visual and environmental impacts as

well as any potential deleterious impact on property

value, of wireless service facilities located within

the Town or adjacent thereto.

Pursuant to Section 8.9(3)(a)(i) of the Bylaw,

[t]he carrier must demonstrate that the facility is

necessary in order to provide adequate service to the

public.

Under Section 8.9(3)(b)(i), wireless service facilities are

to be located on pre-existing structures if feasible, such as

existing buildings, telecommunications facilities, utility poles

and towers or related facilities.

In accordance with Section 8.9(3)(b)(ii), the wireless

facility must be camouflaged to the greatest extent possible if

it is not going to be located on a pre-existing structure and

under Section 8.9(4)(a)(II), the facility must be surrounded by

a buffer of dense trees or vegetation to provide a year-round

visual buffer. Section 8.9(4)(d) provides that:

(i)[n]o facility shall be located within 300 feet of a

Scenic Road and

(ii)[w]ireless service facilities shall not be located

within open areas that are visible from public roads,

recreational areas or residential development.

Finally, under Section 10.31(1) of the Bylaw,

[t]he Special Permit Granting Authority shall not

approve any such application for a Special permit

unless it finds that in its judgment all the following

conditions are met: [(1)] [t]he specific site is an

appropriate location for such a use, structure or

condition; [(2)] [t]he use as developed will not

adversely affect the neighborhood; [(3)] [t]here will

be no nuisance or serious hazard to vehicles or

pedestrians; [(4)] [a]dequate and appropriate

facilities will be provided for the proper operation

of the proposed use; . . . [and (5)] [it] make[s] a

specific finding that the use is in harmony with the

general purpose and intent of this Bylaw.

C. The Hearing Process, the Town’s Expert Reports and the

Board’s Decision

Between September, 2017, and January, 2018, the Planning

Board held five public hearings at which Varsity’s application

for a special permit was discussed. At those hearings,

representatives of Varsity presented their analysis with respect

to the Coverage Objective and the impact of the Proposed

Facility. Numerous residents testified regarding the visual

impact of the Proposed Facility on the historic landscape,

including the farm on which the Proposed Facility was to be

located. They pointed out the adverse visual impact on the

community soccer fields near the Proposed Facility and the

likely negative impact on the property values of surrounding

residences. Several residents testified that there was already

adequate wireless coverage in their area, abutters to the

proposed property submitted a petition signed by 21 residents

who opposed the tower and two direct abutters submitted a letter

requesting that the Proposed Facility be built on a different

location farther back on the proposed site.

In response to those concerns, Varsity agreed to reduce the

height of the proposed tower to 110 feet (115 feet to the top of

the fake branches) and conducted expert studies of both the

visual impact of the Proposed Facility at the modified height

and its possible effect on residential property values.2 Varsity

presented photographs to the Planning Board which demonstrated

that, while the tower would be visible year-round from several

locations (including the community soccer fields and several

residences), it was minimally visible from many locations and

not visible at all from most others. Furthermore, Varsity’s

real estate consultants concluded that the Proposed Facility

would have no measurable impact on surrounding property values.

In addition to the testimony and materials submitted by

Varsity and residents, the Planning Board also considered

analysis conducted by its own consultant, David Maxson

(“Maxson”). He concluded, based on his own radio frequency

propagation maps, that there was a gap in coverage generally in

the geographic area identified by Verizon and AT&T and that

placing a facility somewhere in that area would improve the

service to the covered residences. He also agreed that 1) there

did not appear to be any existing structures where Verizon and

AT&T could co-locate and which was capable of providing the

desired coverage, 2) both Verizon and AT&T would require a

minimum tower height of 97 feet in order to provide adequate

coverage and 3) both carriers could not locate their antennas at

the same height on the tower.

2 The visual impact studies consisted of floating a red balloon at the

simulated height of the proposed tower and taking photographs from various

locations in the surrounding neighborhood to assess its visibility.

Moreover, Maxson agreed with Varsity that the use of “Cloud

Radio Access Nodes” (“C-RANs”) alone, which are a type of small

cell site, would be unable to satisfy the desired service to the

Coverage Objective. He explained that C-RANs could provide

service to portions of Salem Street and Boxford Street where

there are existing utility poles on which the devices could be

mounted but that a new macro site would be needed to provide

coverage to many other streets and residences in the Coverage

Objective which lacked existing utility poles and would likely

oppose the erection of new utility poles. He explained that

Verizon, but not AT&T, currently deploys C-RANs in North Andover

and thus the use of C-RANs alone would not be a feasible

alternative for the gap in AT&T’s coverage.

Maxson confirmed that at least eight of the sites

considered and rejected by Varsity were indeed unavailable

because they were conservation land but nevertheless concluded

that there were other feasible alternative sites which would

provide comparable or superior service coverage to the subject

area. He identified a purportedly superior site at 409 Foster

Street (“Parcel 28”) based upon the fact that there was already

a power substation located on the property and it was farther

east and thus would provide more coverage to residents than the

Proposed Facility.

Maxson disagreed with Varsity’s conclusion that Parcels 28

and 29 were too far east to provide the desired service to the

Coverage Objective. He expressed the opinion that the

alternative of placing a tower at the top of Bruin Hill (north

of Foster Street) would require a right of way over Town-owned

land for access but would provide the best overall improvement

in coverage to residents. Maxson did not conduct an analysis of

the availability or constructability of the Bruin Hill site or

verify its visual impact. All of the alternative parcels of

land are owned by National Grid.

Another alternative identified by Maxson was a location

farther back on the proposed property. That site would require

the tower to be slightly taller but would be potentially less

visible to the street and neighbors because of denser tree

coverage. He also suggested locating the tower on the parcel of

land adjacent to the proposed property which was owned by the

same landowner but did not conduct an analysis of the

accessibility, availability or visual impact of a tower on

either of those parcels.

Maxson noted that there were several other possible

alternatives on Town-designated open space, including two sites

close to the community soccer fields. He acknowledged, however,

that he had not conducted specific coverage analysis with

respect to those sites or determined whether they were actually

available for use, suitable for construction, accessible or

would have a better or worse visual impact than the Proposed

Facility. Furthermore, Maxson explained that, while the use of

“open space” for wireless facilities was not expressly

prohibited by the Bylaw, he was unsure whether the Town

nevertheless restricted the use of open space for such

facilities. He also noted that because those open spaces are

Town-owned parcels, they are subject to a public hearing process

in order to make them available for leasing which he considered

to be “a time-consuming process with uncertain outcome”.

Furthermore, he explained that location on Town-designated open

spaces

may do more to mar the scenery than the proposed

facility . . . [and] [f]urther analysis would be

needed to vet them for visual impact.

To rebut Maxson’s conclusions that there are feasible

alternative sites available, Varsity submitted a letter from

National Grid in which the company notified Varsity that it

would not enter a lease agreement for commercial development on

Parcels 28 and 29. Furthermore, Varsity submitted the meeting

minutes from the public hearing held in December, 2017, in which

the Planning Board, Varsity representatives, Maxson and

residents discussed the problems of access over Bruin Hill,

including the need to cross over Town-owned property and

possible conservation restrictions.

Varsity submitted an affidavit of Steven Young, the owner

of the proposed property, in which he contends that he discussed

with Varsity various potential locations on his property for the

Proposed Facility but refused to lease any portion of his

property or his adjacent property other than that specifically

identified in Varsity’s application for a special permit. With

respect to one of the proposed alternative sites identified by

Maxson, Varsity submitted a letter from the owner of that

property voicing his opposition to the Proposed Facility.

Finally, Varsity notes that, with respect to the Town-owned open

spaces, Maxson has not identified whether they are actually

available for lease and has not considered the visual impact of

a tower on those sites (especially as to the proposed locations

having an unobstructed view of the community soccer fields).

D. The Decisions of the Zoning Board and the Planning

Board

On January 3, 2018, the Zoning Board of Appeals granted

Varsity’s application for the necessary variances to construct

the Facility at the proposed location. It determined that no

pre-existing structures, alternative technologies or reasonably

feasible alternative locations for a proposed tower existed to

provide the desired coverage. It also found that the reduced

tower height of 115 feet (inclusive of the fake branches) was

the minimum height necessary to provide adequate service to the

Coverage Objective. The Zoning Board of Appeals determined that

denying the requested variances for the Proposed Facility would

effectively prohibit the provision of adequate wireless service

to the subject area. It concluded that the granting of the

requested variances would not deviate from the intent or purpose

of the Bylaw but rather would serve the public good by providing

enhanced wireless service while, to the extent feasible,

minimizing the visual impact of the Facility through camouflage,

buffers and reduced height.

Despite the findings and conclusions of the Zoning Board of

Appeals, the Planning Board voted unanimously on January 16,

2018, to deny Varsity’s application for a special permit. The

Planning Board offered essentially five reasons for denying the

permit: 1) Varsity failed specifically to define the exact

boundaries of the alleged area of inadequate coverage; 2) it

failed to demonstrate that the alleged gap in coverage was

“significant”; 3) it has not shown that the Proposed Facility is

necessary to provide adequate service to the public because

feasible alternatives exist, including location at possibly less

objectionable sites or the use of C-RANs on certain streets; 4)

it failed to minimize the significant, undesirable visual impact

of the Proposed Facility on the surrounding neighborhood and

landscape, including on the nearby soccer fields and “the

agricultural landscape and scenic views”; and 5) it provided

insufficient evidence of the effect of the Proposed Facility on

property values.

The Planning Board conceded that a gap in adequate coverage

existed in the subject area but stated that its exact bounds

were “subject to interpretation and open to refinement”. It

explicitly found, however, that the gap generally existed near

Foster Street, Winter Street and connecting neighborhoods and

that a number of residences would be served by the Proposed

Facility. It also found that the gap existed in small sections

of Salem Street and Boxford Street but that the Proposed

Facility was not necessary to provide coverage to those areas

because of the existence of C-RANs that could be mounted on

existing utility poles along those streets.

The Planning Board determined that no existing utility

structures were adequate to provide the desired service but

concluded that there were reasonable alternatives to the

Proposed Facility which could provide substantially similar

levels of service. The Planning Board’s decision did not

specify which of the other site locations was a feasible

alternative but noted that it was reasonable to assume that the

owner of the property for the Proposed Facility would be open to

discussing alternative locations on his property. It also

stated that Varsity had not evaluated the potential visual

impact of other sites farther away from the proposed location.

The Planning Board found that, while the Proposed Facility

would be camouflaged as a pine tree, it would not be surrounded

by sufficient trees and vegetation to provide an adequate, year-

round visual buffer. The Planning Board determined that the

Proposed Facility was not near a designated Scenic Road but

that, nevertheless, the proposed location’s history and current

state of development “creates a scenic experience for

passersby”. The Planning Board concluded that the Proposed

Facility would adversely affect the neighborhood and surrounding

landscape and was therefore not in harmony with the general

purpose and intent of the Bylaw.

E. Procedural History

In February, 2018, Varsity filed this action against the

Town. In June, 2019, it filed a motion for summary judgment on

the grounds that 1) the Planning Board’s decision is not

supported by substantial evidence as required by §

332(c)(7)(B)(iii) of the TCA and 2) its denial of the special

permit effectively prohibits Varsity from providing personal

wireless services in violation of § 332(c)(7)(B)(i)(II) of the

TCA.

Specifically, Varsity contends that defendants 1)

improperly rejected expert evidence concerning the significant

coverage gaps experienced by Verizon and AT&T, 2) required

Varsity to define the exact boundaries of inadequate coverage

and to demonstrate no feasible alternatives neither of which is

expressly required by the Bylaw, 3) incorrectly determined that

feasible alternatives to the Proposed Facility exist,

4) incorrectly determined that the gap in coverage can be

addressed solely by C-RAN or other small cell devices, 5)

improperly concluded that the Proposed Facility would reduce

property values without any evidentiary support and 6)

improperly relied upon general aesthetic concerns in denying the

special permit. Moreover, plaintiff asserts that the Planning

Board’s decision effectively prohibits the provision of wireless

services because 1) it materially inhibits the provision of such

services, 2) a significant gap in coverage exists in the subject

area and 3) no feasible alternatives exist to address that gap

in coverage.

Defendants respond that the Bylaw requires the carrier to

demonstrate that the Proposed Facility is necessary to provide

adequate service to the public and thus it was appropriate for

the Planning Board to consider feasible alternatives. Moreover,

defendants contend that: 1) the testimony from residents with

respect to the visual impact of the Proposed Facility on the

landscape and its possible effect on property values was

substantial evidence in support of the Planning Board’s

decision, 2) Varsity failed to prove there was a significant gap

in coverage or there were no feasible alternatives to the

Proposed Facility and therefore 3) Varsity did not establish an

effective prohibition to the provision of wireless service.

Defendants submit that even if the Court ultimately

concludes that the Planning Board’s decision is unsupported by

substantial evidence or effectively prohibits the provision of

wireless service, the proper relief is to remand the case to the

Planning Board for further proceedings rather than to enter an

injunction ordering it to grant the special permit.

II. Motions for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“that 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 fact is material if it “might affect the outcome of the

suit under the governing law . . . .” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the non-moving party to set forth specific facts showing that

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party's favor. O'Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party's favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law.

B. The TCA

The purpose of the TCA is to facilitate the national

development of wireless telephone service. The Act, “an

exercise in cooperative federalism”, delegates authority over

the placement and construction of facilities to state and local

authority. Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals,

297 F.3d 14, 21-22 (1st Cir. 2002). That authority, however, is

subject to five limitations enumerated in 47 U.S.C.

§ 332(c)(7)(B). Two of those limitations are relevant here.

First, the TCA provides that any decision of a local board

denying a request to place or construct personal wireless

services facilities “shall be in writing and supported by

substantial evidence contained in a written record”.

§ 332(c)(7)(B)(iii). A district court’s review of a board’s

decision is not de novo. ATC Realty, LLC v. Town of Kingston,

303 F.3d 91, 95 (1st Cir. 2002). The burden of proving that the

record contains substantial evidence rests with the party

seeking approval. Green Mountain Realty Corp. v. Leonard, 688

F.3d 40, 50 (1st Cir. 2012). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Nat’l Tower, 297 F.3d at 22 (internal

citation and quotation omitted). When recording its decision,

the board need not present “formal findings of fact or

conclusions of law” or “state every [supporting] fact in the

record.” Id. at 20-21. At a minimum,

[a] written denial must contain a sufficient explanation

of the reasons for the denial to allow a reviewing court

to evaluate the evidence in the record supporting those

reasons.

Id. (internal quotation omitted).

The Court’s review is confined to the record before the

local board, ATC Realty, 303 F.3d at 95, and must take into

account evidence that supports and contradicts the board’s

conclusions. Cellco P’ship v. Town of Grafton, 336 F. Supp. 2d

71, 79 (D. Mass. 2004). While a local board must evaluate an

application for a permit or variance under the standard provided

by state and local law, American Towers v. Shrewsbury, Civil

Action No. 17-10642-FDS, 2018 WL 3104105, at *8 (D. Mass. June

22, 2018), a mere recitation of provisions of state and local

zoning law does not constitute “substantial evidence” under the

TCA. See T-Mobile Ne. LLC v. City of Lawrence, 755 F. Supp. 2d

286, 291 (D. Mass. 2010); Sprint Spectrum L.P. v. Town of

Swansea, 574 F. Supp. 2d 227, 236 (D. Mass. 2008). However, if

the evidence permits inconsistent conclusions, the court will

defer to the decision of the local authority, “provided the

local board picks between reasonable inferences from the record

before it.” Nat’l Tower, 297 F.3d at 23.

Second, the decision “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). Even when there is substantial

evidence to support a local authority’s decision under the

applicable state and local law, the decision can still

constitute an effective prohibition in violation of the TCA.

Nat’l Tower, 297 F.3d at 20.

Citing a relatively recent FCC Declaratory Ruling,

plaintiff contends that the appropriate standard under the

effective prohibition provision is to determine whether the

decision materially inhibits the provision of wireless services,

including the carrier’s ability to introduce new services or

otherwise improve existing services. See In re Accelerating

Wireless Broadband Deployment by Removing Barriers to

Infrastructure Investment, 33 FCC Rcd. 9088, 9104-05 (2018).

The First Circuit Court of Appeals has, however, applied a

seemingly more stringent test to effective prohibition claims

involving an individual denial of a permit. First, the court

determines whether there is a “significant gap in coverage” in

the subject area. Green Mountain, 688 F.3d at 57. Factors to

consider in determining whether a given gap in coverage is

“significant” are 1) the “physical size of the gap”, 2) “the

area in which there is a gap”, 3) “the number of users the gap

affects”, 4) “whether all of the carrier’s users in that area

are similarly affected by the gaps” and 5) “data about

percentages of unsuccessful calls or inadequate service during

calls in the gap area”. Omnipotent Holdings, Inc. v. City of

Cranston, 586 F.3d 38, 49 (1st Cir. 2009). Second, the court

must consider whether feasible alternatives to the carrier’s

proposed solution exist such that there is no effective

prohibition. Green Mountain, 688 F.3d at 57. Whether a decision

constitutes an effective prohibition is a case-by-case

determination and the plaintiff 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.

Id. at 58 (citing Town of Amherst v. Omnipotent Commc’ns

Enters., Inc., 173 F.3d 9, (1st Cir. 1999) (describing the

plaintiff’s burden of proof as “a heavy one”)). While the

carrier has the initial burden of conducting a systematic study

of alternative sites and demonstrating that no feasible

alternatives exist, once it has done so the local board must

either show that the plaintiff’s evidence was factually

insufficient or come forward with evidence of its own to

demonstrate a genuine dispute of fact. See Indus. Tower &

Wireless, LLC v. Haddad, 109 F. Supp. 3d 284, 303-04 (D. Mass.

2015).

Unlike the review under a substantial evidence challenge,

the court reviews any determinations of whether a decision

constitutes an effective prohibition de novo and may rely on

evidence outside of the administrative record compiled by the

local board. Id.

C. Application

1. Substantial Evidence

The Planning Board erred in relying upon Varsity’s failure

specifically to define the boundaries of the alleged area of

inadequate coverage as a reason to deny the special permit.

Nothing in the Bylaw requires that a carrier specifically define

the exact boundaries of the area of intended coverage in

applying for such a permit. See T-Mobile Ne. LLC v. City of

Lowell, Civil Action No. 11-11551-NMG, 2012 WL 6681890, at *9

(D. Mass. Nov. 27, 2012) (holding that the local board failed to

act on the basis of substantial evidence when it relied upon a

criterion not provided for in the local ordinance).

Moreover, the Board erred in relying on the use of C-RANs

as a feasible alternative to the Proposed Facility because that

conclusion was directly contradicted by unrebutted evidence in

the record, including the reports submitted by both its own

consultant and Varsity’s consultant. See id. (finding that a

local board’s decision was based on unsubstantiated opinions or

conclusions and thus not supported by substantial evidence). A

few generalized concerns from residents about the potential

decrease in property values is also not substantial evidence in

support of the Planning Board’s decision in light of the

contradictory expert testimony submitted by Varsity’s real

estate consultant. See Cellular Tel. Co. v. Town of Oyster Bay,

166 F.3d 490, 496 (2d Cir. 1999).

The Court does find, however, that there was substantial

evidence in the record for the Planning Board to deny Varsity’s

application on the basis of the Proposed Facility’s visual

impact on the surrounding landscape. While mere general

aesthetic concerns do not constitute substantial evidence in

support of the denial of a permit, particularized aesthetic

concerns grounded in the specifics of the case can support a

local authority’s decision. Green Mountain, 688 F.3d at 53.

Here, the Bylaw specifically provides that the Planning Board

must consider the visual impact of any proposed wireless

communication facility on the surrounding neighborhood. Many of

the aesthetic concerns expressed by local residents were

complaints about the generally unappealing nature of the

Proposed Facility. Other residents spoke specifically, however,

about the adverse visual impact that the tower would have on the

historic farm and scenic landscape, as well as to the fact that

the tower was visible year-round from the community soccer

fields. While a close question, those aesthetic concerns are

sufficiently particularized to the specific facts of this case

to support the Planning Board’s decision.

Plaintiff’s motion for summary judgment with respect to

Count I will therefore be denied.

Varsity is wrong to suggest that the Planning Board was not

permitted to consider whether there was a significant gap in

coverage and whether there were feasible alternatives to the

Proposed Facility in assessing the application for a special

permit. The Bylaw specifically provides that the Planning Board

must consider whether the Proposed Facility is necessary to

provide adequate service to the public. It is reasonable that

in assessing whether a facility is necessary, the Planning Board

would consider the substantiality of the alleged coverage gap

and possible alternatives that are less intrusive. The Court

need not determine, however, whether there was substantial

evidence to support the Planning Board’s decision on that basis

because it nevertheless concludes that, based on all the

evidence now before it, the Planning Board’s denial of the

special permit effectively prohibits the provision of wireless

services in the Coverage Objective area.

2. Effective Prohibition

While there was substantial evidence to support the

Planning Board’s decision based on specific aesthetic concerns,

its decision constitutes an effective prohibition in violation

of the TCA. Because the Court finds that Varsity has

established an effective prohibition even under the First

Circuit’s more demanding “significant gap” test, it declines to

decide whether the appropriate standard under the TCA is the

FCC-endorsed “materially inhibit” test.

First, Varsity has demonstrated that there is a significant

gap in service with respect to both Verizon and AT&T. Varsity’s

expert consultant has identified over 2,000 new residents who

would be served in the Coverage Objective by Verizon and AT&T.

Neither defendants nor their expert, Maxson, appear to contest

those figures. Indeed, Maxson admits in his report that the

Proposed Facility would provide improved service to many new

residents. Furthermore, data provided by Varsity shows that

approximately 12,000 vehicles travel along Salem Street each

day. The Coverage Objective is sufficiently large and serves a

substantially high number of residents to constitute a

significant gap.

Second, Varsity has carried its burden of demonstrating

that it has conducted a systematic analysis of various locations

throughout the Town and that the only feasible alternative is

the Proposed Facility. While Maxson has proposed various

alternatives, there are several reasons to reject those proposed

sites as feasible. With respect to Parcels 28 and 29, Varsity

has presented a letter from National Grid confirming that it is

unwilling to lease that property for a wireless communication

facility. It also submitted an affidavit of the current

landowner of the site for the Proposed Facility in which he

asserts that he is unwilling to lease any other portion of that

property or his adjacent property for a communications facility.

Finally, Varsity demonstrated that at least one other

alternative site was owned by a resident who opposed the

original project and thus there was no reason to believe that he

would consent to the construction of a facility on his own

property. Those sites are therefore unavailable and not

feasible alternatives.

With respect to Bruin Hill, Maxson conceded that it has

substantial access problems because Varsity would have to obtain

a right of way over Town-owned land. Given the Planning Board’s

apparent hostility to the tower and the need to obtain access

over Town property, it is unlikely that Bruin Hill is a feasible

alternative. See Nextel Commc’ns of the Mid-Atl., Inc. v. Town

of Wayland, 231 F. Supp. 2d 396, 408-09 (D. Mass. 2002). The

Planning Board has demonstrated its hostility to a proposed

tower by relying, in part, on ambiguous and unsupported reasons

to deny Varsity’s application. See American Towers, 2018 WL

3104105, at *13. Those reasons include the Planning Board’s

conclusions that 1) Varsity provided insufficient evidence of

the impact of the tower on property values despite the report of

the real estate consultant, 2) C-RANs were a feasible

alternative despite the report of its own expert to the contrary

and 3) there were other feasible locations available without

specifying to which properties it was referring.

Similarly, there is no reason to believe that the Town is

willing to lease designated open space, such as the property

identified near the community soccer fields, for a wireless

communication facility. Maxson acknowledged that it is unclear

whether those open spaces are restricted from such use and that

even if they are technically available, the Town must still vote

to approve any lease of those properties. As noted above, it

seems unlikely that the Town would be willing to lease those

properties in light of the opposition of both the Planning Board

and the public.

Furthermore, two of the designated open spaces identified

by Maxson as alternative sites are in close proximity to the

community soccer fields and have an unobstructed view of those

fields. Given that one of the reasons cited by the Planning

Board for denying Varsity’s application was the visual impact of

the tower on the soccer fields and the historic agricultural

landscape nearby, it is highly unlikely that the Planning Board

would approve those sites for a communications facility. In

fact, Maxson noted in one of his reports that a tower located on

a property near the soccer fields would not likely be

“materially less visually obtrusive than the proposed facility”.

Finally, the proposed use of open spaces as alternative

sites for the Proposed Facility is even more dubious given the

provision of the Bylaw providing that

[w]ireless service facilities shall not be located

within open areas that are visible from public roads,

recreational areas or residential development.

It is unclear how Maxson concluded that Town-designated open

areas are not expressly prohibited by the Bylaw in light of that

provision. Even if those areas are not expressly prohibited,

the totality of the evidence indicates that they are unlikely to

be available for Varsity’s intended use and thus are not

feasible alternatives.

As noted above, the experts of both Varsity and the

Planning Board agree that C-RANs, alone, are not a feasible

alternative and that at least some new macro site is required to

fully service the Coverage Objective. Even if Verizon could

supplement its service in the Coverage Objective using

additional C-RANs along certain streets, that solution would not

remedy AT&T’s significant gap in coverage because it apparently

has not deployed C-RANs to that area and there are insufficient

utility poles present to provide adequate coverage to the whole

area.

Accordingly, Varsity has demonstrated that even those

technically available alternatives are so likely to be rejected

that it is a waste of time even to try to pursue them, see

Nextel Commc’ns, 231 F. Supp. 2d at 408, and thus it has

established that the Planning Board’s decision has effectively

prohibited the provision of wireless services. Varsity’s motion

for summary judgment as to Count II will be allowed.

D. Appropriate Relief

The TCA makes clear that it expects expeditious resolution

of zoning disputes on the part of local authorities and courts

enforcing federal limitations. See 47 U.S.C. § 332(c)(7)(B)(v).

Thus, an award of injunctive relief, rather than a remand, is

often the preferred method of relief. Brehmer v. Planning Bd.

of Wellfleet, 238 F.3d 117, 121 (1st Cir. 2001). In many cases,

the proper remedy for a zoning violation is an order instructing

the local board to authorize construction of the facility. Nat'l

Tower, 297 F.3d at 21-22 (finding proper remedy for TCA

violations in most cases to be order instructing board to

authorize construction); Town of Oyster Bay, 166 F.3d at 497

(collecting cases). On the other hand, where there has been

“good faith confusion by a board,” a remand may be more

appropriate. Id. at 24.

In this case, an injunction is warranted. Defendants have

not articulated any good faith confusion by the Planning Board

regarding its decision and thus to remand the case would simply

extend the litigation, contrary to the TCA’s directive to the

Court to “hear and decide such action[s] on an expedited basis”.

T-Mobile Ne., 755 F. Supp. 2d at 293 (citing 47 U.S.C.

§ 332(c)(7)(B)(v)).

ORDER

For the foregoing reasons, plaintiff’s motion for summary

judgment (Docket No. 28) is, with respect to Count I, DENIED,

but, with respect to Count II, ALLOWED. The defendants are

directed to issue the requested permits and thereby authorize

the construction of the plaintiff’s Proposed Facility.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated September 11, 2019