VERTEX TOWERS LLC v. BOARD OF APPEALS OF THE TOWN OF YORK MAINE

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

VERTEX TOWERS LLC, )

)

Plaintiff )

)

v. ) No. 2:22-cv-00355-JDL

)

TOWN OF YORK et al., )

)

Defendants )

RECOMMENDED DECISION ON MOTIONS FOR JUDGMENT

ON A STIPULATED RECORD AND MOTION TO DISMISS

Vertex Towers LLC claims that the Town of York’s denial of its application for

zoning variances to construct a 120-foot cellphone tower violates the federal

Telecommunications Act because the Town’s decision is unsupported by substantial

evidence and amounts to an effective prohibition of personal wireless services.1

Vertex and the Town have both moved for judgment on a stipulated record as to the

substantial evidence claim, and the Town has separately moved to dismiss the

effective prohibition claim for failing to state a claim. For the reasons that follow, I

recommend that the Court grant judgment to the Town on Vertex’s substantial

evidence claim and dismiss Vertex’s effective prohibition claim.2

1 Vertex sues both the Town and the Town’s Board of Appeals. For the sake of simplicity, I will refer

to the Defendants collectively as the Town unless specifically referring to the Board.

2 The Town filed its motion to dismiss before the parties filed their cross-motions for judgment. The

Town has not answered Vertex’s substantial evidence claim presumably because its motion to dismiss

Vertex’s effective prohibition claim tolled the time for it to file an answer. See BTL Indus., Inc. v.

Rejuva Fresh LLC, No. 1:23-cv-00032-LEW, 2023 WL 3604806, at *1 (D. Me. May 23, 2023) (rec. dec.)

(“[T]he majority rule is that a partial motion to dismiss suspends the time to respond to the entire

complaint, not just to the claims that are the subject of the motion.” (cleaned up)), aff’d, ECF No. 32

(D. Me. June 7, 2023). Despite the lack of answer and the pendency of the motion to dismiss, the

parties have indicated that the substantial evidence claim is ready for adjudication on the stipulated

I. Background

A. Allegations in Vertex’s Complaint

Vertex is a company that builds and operates personal wireless service

facilities (PWSFs) throughout the country that are leased by various carriers to

provide customers with personal wireless services. See Complaint (ECF No. 1) ¶¶ 1,

10, 22-23, 25. PWSFs typically consist of a driveway, utility connections, an

equipment compound, a tower, and carriers’ antennas and associated radio

equipment; they operate by sending and receiving voice and data signals to and from

personal wireless communications devices such as cellphones. See id. ¶¶ 15-16, 24.

PWSFs are a crucial part of carriers’ network infrastructures. See id. ¶ 17.

To maintain consistent and reliable coverage, PWSFs must be interconnected with

slightly overlapping coverage so that they can hand off signals as customers move

through coverage areas. See id. ¶¶ 17, 20. Radio frequency engineers use a variety

of techniques to identify ideal PWSF locations including computer modeling and field

testing. See id. ¶ 19. The suitability of a location for a PWSF depends on several

factors including terrain, land use characteristics, and population density, as well as

the coverage provided by surrounding PWSFs. See id. ¶ 18.

Although carriers ultimately decide where to locate new PWSFs within their

networks, they increasingly rely on third party developers such as Vertex to provide

options for improving their coverage. See id. ¶ 21. Vertex identifies, surveys, tests,

record. If the Court agrees with my recommendations but is concerned about acting on the

cross-motions for judgment in the absence of an answer, it could first grant the motion to dismiss and

give the Town an opportunity to answer before granting judgment to the Town.

and markets proposed locations for PWSFs in areas where carriers are not providing

reliable service to their customers. See id. ¶ 23. In the last three years, Vertex has

constructed eleven new PWSFs in Massachusetts, New Hampshire, and Vermont

after receiving approval from municipal, state, and federal authorities; it has also

received municipal approval to build PWSFs in thirty other locations throughout New

England. See id. ¶ 26. Vertex’s PWSFs have resulted—or will result—in substantial

improvements to multiple carriers’ services throughout the region. See id.

As part of these endeavors, Vertex’s radio frequency engineers identified “a

significant gap in wireless service impacting a roughly” three “square mile area of

[the Town of] York from the intersection of US Routes 1 and 1A just past the I-95

interchange, running along York Street past Long Sands Road and ME Route 103

until reaching the seacoast, then following US Route 1A north from York Harbor

along the seacoast to York Beach.” Id. ¶ 33. The lack of reliable service in this “Target

Area” is significant given its high concentration of residences, businesses, and traffic.

Id. ¶ 34.

Using computer simulations, one of Vertex’s radio frequency engineers

identified a way to provide coverage to the Target Area by constructing a PWSF with

a 120-foot monopole tower on a forty-four-acre parcel on York Street owned by the

First Parish Church. See id. ¶¶ 38-39. The tower’s proposed 120-foot height is

necessary to accommodate up to four carriers, with each carrier’s antenna array

needing at least ten feet of vertical space between the next. See id. ¶ 41. After

completing initial site designs, Vertex entered into a lease agreement with the First

Parish Church to construct the PWSF on the property. See id. ¶ 42.

B. Stipulated Record

The Town regulates the construction of PWSFs through its Wireless

Communications Facilities (WCF) Ordinance. See Stipulated Record (“Record”)

(ECF No. 13-5) at 219-34. Section 1.7(B) of the WCF Ordinance limits the placement

of ground mounted towers greater than eighty-five feet in height to two Monopole

WCF Overlay Districts comprising two areas—“the area between Route 1 and the

Maine Turnpike, and the east-west corridor which is 2500 feet wide and bounded on

the southwest by Route 91, on the southeast by New Boston Road and Boulter Pond

and its outlet, and on the northwest by the York town line.” Record at 222.

Section 1.9(E)(3) of the WCF Ordinance further limits the height of towers outside

the Monopole WCF Overlay Districts by dictating that they “shall not project higher

than twenty (20) feet above the average tree height, measured from the ground level.”

Record at 227.

In June 2022, Vertex submitted an application requesting that the Town’s

zoning Board of Appeals grant it variances from Sections 1.7(B) and 1.9(E)(3) of the

WCF Ordinance in order to build its proposed 120-foot tower outside the Monopole

WCF Overlay Districts and at a height greater than twenty feet above the

surrounding tree canopy. See Record at 1-2. Along with its application, detailed

project narrative, and site plans, Vertex submitted radio frequency maps and an

affidavit from one of its radio frequency engineers attesting that without a tower at

the proposed First Parish Church site the area would continue to have a significant

gap in coverage and that the proposed tower was “the minimum height necessary to

satisfy the coverage objectives of multiple wireless carriers providing” services “in the

area.” Id. at 74-79. Vertex also submitted a spreadsheet detailing its investigation

of several alternative sites together with a statement by its site acquisition specialist

that it was his professional opinion that the First Parish Church site was the “least

intrusive and only available and viable” option to fill the “significant gap in coverage.”

Id. at 66-72. Vertex further submitted several photographs from a balloon simulation

it conducted showing that the tower would be barely visible above the tree canopy

and then only from limited vantage points. See id. at 83-116.

The Board conducted a hearing on Vertex’s application in August 2022, which

was ultimately continued to a second date in September 2022. See id. 145-56,

160-217. The record reflects that the Board received a letter from the fire chief

supporting the proposed tower, two letters from local residents opposing the tower,

and an email from the superintendent of the Town’s Water District indicating that

AT&T had signed a lease to place antennas on a nearby water tower. See id.

at 134-35, 139-44. During the hearing, Board members heard from and questioned

Vertex’s agent regarding the proposed tower, the gap in coverage, alternative sites

such as the water tower, and whether Vertex had sufficiently demonstrated the

undue hardship necessary to grant its requested variances. See generally id.

at 160-217. It also heard from several Town residents who all expressed opposition

to the proposed tower for various reasons ranging from aesthetic and environmental

qualms to concerns about setting a precedent of allowing over-height towers outside

the Monopole WCF Overlay Districts. See id. at 180-89.

During its deliberations, the Board discussed whether Vertex had shown

undue hardship and questioned whether it even had the authority to grant the

requested variances under the terms of the Town’s general zoning ordinance; it also

considered Vertex’s argument that a denial of its request for variances would amount

to an effective prohibition of wireless services in violation of federal law. See id.

at 194-98. After deliberating, the Board unanimously voted to deny Vertex’s

requested variances on three alternative grounds: that (1) Vertex failed “to meet all

of the standards for determination of ‘undue hardship’ specifically” that “[t]he

granting of a variance will not alter the essential character of a locality”; (2) there

were feasible alternatives to remedy the gap in coverage; and (3) that it (the Board)

lacked the authority under the Town’s zoning ordinance to grant the requested

variances. Id. at 155-56, 197-98, 515-17. The Board subsequently issued a short

written decision detailing its ultimate conclusions. See id. at 515-17.

Following the denial of its application, Vertex filed a two-count complaint

against the Town in November 2022, alleging that the denial contravened the

Telecommunications Act because it was not supported by substantial evidence

(Count I) and it constituted an effective prohibition of personal wireless services

(Count II). See Complaint ¶¶ 52-69. The Town then filed its motion to dismiss

Vertex’s effective prohibition claim and, while that motion was pending, the parties

filed their cross-motions for judgment on a stipulated record. See Motion to Dismiss

(MTD) (ECF No. 9); Vertex’s Motion for Judgment (“Vertex’s Motion”) (ECF No. 20);

Town’s Motion for Judgment (“Town’s Motion”) (ECF No. 22). All three motions have

been referred to me for a recommended decision.

II. Discussion

A. Telecommunications Act Overview

In the dawning days of our hyperconnected era, Congress passed the

Telecommunications Act (TCA) of 1996 to facilitate the development of a national

wireless communications system that had been hampered by an inconsistent

patchwork of state and local wireless tower siting regulations. See City of Rancho

Palos Verdes v. Abrams, 544 U.S. 113, 127-28 (2005) (Breyer, J., concurring). Rather

than preempt local control entirely, however, the TCA “generally preserves the

traditional authority of state and local governments to regulate the location,

construction, and modification of wireless communications facilities like cell phone

towers, but imposes specific limitations on that authority.” T-Mobile S., LLC v. City

of Roswell, 574 U.S. 293, 300 (2015) (cleaned up). Those limitations include that any

decision “to deny a request to place, construct, or modify personal wireless service

facilities shall be in writing and supported by substantial evidence in a written

record” and “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), (iii).

The TCA also requires that local authorities make decisions within “a

reasonable amount of time” and provides for “expedited” judicial review of those

decisions. Id. § 332(c)(7)(B)(ii), (v). The First Circuit has interpreted these provisions

to mean “that Congress did not intend multiple rounds of decisions and litigation, in

which a court rejects one reason and then gives the” local authority another

opportunity to offer a different reason. Nat’l Tower, LLC v. Plainville Zoning Bd. of

Appeals, 297 F.3d 14, 21 (1st Cir. 2002). Accordingly, if a court concludes that a local

authority’s decision violates the TCA, the “proper remedy” is, in most instances, an

order directing the local authority to authorize construction of the tower. Id. at 21-22;

but see T-Mobile S., 574 U.S. at 309 (Alito, J., concurring) (“Nothing we say today

should be read to suggest that when a locality has erred, the inevitable remedy is that

a tower must be built. The Court has not passed on what remedial powers a court of

competent jurisdiction may exercise. This unanswered question is important given

the federalism implications of this statute.” (cleaned up)).

B. Cross-Motions for Judgment on the Stipulated Record

Even though the Town’s motion to dismiss was filed before the parties’

cross-motions for judgment, I will address the cross-motions first because a decision

in Vertex’s favor on its substantial evidence claim could potentially obviate the need

to decide whether it should be allowed to go forward with its effective prohibition

claim. See, e.g., T-Mobile Ne. LLC v. City of Lawrence, 755 F. Supp. 2d 286, 292

(D. Mass. 2010) (“Under the TCA, the Court may order injunctive relief if the

defendant violates either the substantial evidence requirement or the effective

prohibition ban. Thus, having found that summary judgment will enter for the

plaintiff with respect to the substantial evidence claim, the Court need not address

the effective prohibition ban claim.” (cleaned up)).

i. Legal Standard

The parties have agreed that the Court should render judgment on Vertex’s

substantial evidence claim based on the stipulated record. Under this procedure, they

have authorized the Court to resolve any disputed issues of fact in order to avoid any

delay in adjudication that might have arisen had they filed cross-motions for

summary judgment. See Joint Motion (ECF No. 14); Boston Five Cents Sav. Bank v.

Sec’y of Hous. & Urban Dev., 768 F.2d 5, 11-12 (1st Cir. 1985) (encouraging litigants

who wish for a court to decide a case based on a written record to stipulate to the

record and authorize the judge to decide any factual issues rather than file

cross-motions for summary judgment).3

ii. Substantial Evidence Overview

As mentioned, the TCA requires that a local authority’s decision denying a

request to place a cellphone tower be in writing and supported by substantial

evidence. See 47 U.S.C. § 332(c)(7)(B)(iii). In conducting substantial evidence

review, courts generally consider only the evidence submitted to the local authority

and contained in the administrative record. See Nat’l Tower, 297 F.3d at 22.

“Substantial evidence,” in this context, “does not mean a large or considerable amount

of evidence, but rather such evidence as a reasonable mind might accept as adequate

to support a conclusion.” ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94

3 Confusingly, after agreeing to this procedure, Vertex filed what it styled as a motion for summary

judgment together with a separate statement of material facts. See Vertex’s Motion; Statement of

Material Facts (ECF No. 21). Nevertheless, it clarified in a subsequent letter to the Court that

notwithstanding its “inadvertent reference” to summary judgment, it intends for the Court to render

a decision on the stipulated record as originally agreed. ECF No. 23.

(1st Cir. 2002) (cleaned up). This standard of review is “highly deferential,” meaning

that a local authority’s reasonable resolution of conflicting evidence is conclusive even

if it might have supportably reached a different conclusion. Second Generation

Props., L.P. v. Town of Pelham, 313 F.3d 620, 627 (1st Cir. 2002).

Also pertinent to the substantial evidence inquiry is the requirement that local

authorities “provide reasons when they deny cell phone tower siting applications.”

T-Mobile S., 574 U.S. at 302. Because local authorities are often boards made up of

laypeople, however, the reasons “need not be elaborate or even sophisticated, but

rather, . . . simply clear enough to enable judicial review.” Id. If the reasons are clear

enough, courts may look beyond “the facts specifically offered” by the local authority

and “evaluate the evidence in the record supporting those reasons.” Sw. Bell Mobile

Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001), abrogated on other grounds by

T-Mobile S., 574 U.S. 293.

iii. Whether Substantial Evidence Supports the Board’s Decision

Under Maine law, a zoning variance may be granted only when strict

application of the ordinance would cause undue hardship. See 30-A M.R.S.A.

§ 4353(4) (Westlaw).4 Undue hardship means

A. The land in question can not yield a reasonable return unless a

variance is granted;

B. The need for a variance is due to the unique circumstances of the

property and not to the general conditions of the neighborhood;

C. The granting of a variance will not alter the essential character of

the locality; and

4 In its decision, the Board referenced these same factors but cited the Town’s zoning ordinance incorporating

30-A M.R.S.A. § 4353(4). See Record at 516.

D. The hardship is not the result of action taken by the applicant or a

prior owner.

Id.

The parties appear to agree that although the Board’s foremost concern in this

matter was the third of these criteria (the essential character of the locality), it also

considered and based its denial on Vertex’s failure to satisfy the other three.

See Vertex’s Motion at 17, 19, 26; Town’s Motion at 5. The Board’s emphasis that

Vertex “specifically” failed to satisfy the essential character of the locality criterion

gives me some pause in reading its decision as also being based on Vertex’s failure to

meet the other three undue hardship criteria, but the Board did specifically inquire

as to each criterion at the continued hearing, outline all four of the criteria in its

written decision, and conclude that Vertex “fail[ed] to meet all of the” criteria.

Record at 191-93, 197, 516-17; see T-Mobile S., 574 U.S. at 308-09 (Alito, J.,

concurring) (noting that courts “must uphold a decision of less than ideal clarity if

the [local authority’s] path may reasonably be discerned” and that nothing in the TCA

“imposes an opinion-writing requirement” on local authorities). Moreover, Vertex

addresses all four criteria and does not argue that the Board based the undue

hardship portion of its decision exclusively on its purported failure to satisfy the

essential character of the locality criterion. See Vertex’s Motion at 17-35.

Turning to the parties’ arguments, I begin (and, as it turns out, end) my

analysis with the first undue hardship criterion—that the “land in question” cannot

“yield a reasonable return unless a variance is granted.” 30-A M.R.S.A. § 4353(4)(A).

As the Law Court has explained, the “reasonable return prong of the undue hardship

test is met where strict application of the zoning ordinance would result in the

practical loss of all beneficial use of land. Reasonable return is not the maximum

return that could be afforded by a property.” Wister v. Town of Mount Desert,

2009 ME 66, ¶ 30, 974 A.2d 903 (cleaned up).

The Town argues that substantial evidence supports the Board’s finding that

Vertex failed to show the land in question cannot yield a reasonable return without

a variance. See Town’s Motion at 13. In support of its argument, the Town points to

the transcript of the Board’s deliberations, which includes the following exchange:

[BOARD MEMBER:] I have a question about the hardship question.

VICE CHAIR: Okay.

[BOARD MEMBER:] The reasonable return. Can you—could you

describe, again, what you said why it cannot yield a reasonable return?

VICE CHAIR: You’re asking the applicant?

[BOARD MEMBER:] Yeah. Is that—

VICE CHAIR: Go ahead.

[BOARD MEMBER:] You had—you had given a short answer. Could

you just repeat it so I—

[VERTEX’S AGENT:] I—I will tell you, it’s hard for us to say that the

land cannot offer a reasonable return when it’s already being used.

However, and—and to be honest, I think all of your discussion is

incredibly appropriate with one exception.

If you cannot find under the state standard, which I agree, that’s an issue

. . . then you have to look at it from the federal perspective and that’s

what your counsel said and our counsel and your counsel agreed.

So I think it’s shortsighted to look at just that provision without looking

at the—the bigger picture.

[BOARD MEMBER:] Okay. Well, our counsel certainly didn’t say that

we had to. She said we may.

VICE CHAIR: May.

[BOARD MEMBER:] We may look at it from the federal perspective—

VICE CHAIR: Yes.

[BOARD MEMBER:] —but that was not our obligation.

VICE CHAIR: Correct.

Record at 197 (emphasis added); see Town’s Opposition (ECF No. 26) at 7.

In its motion, Vertex again concedes that “the property in question can

continue to be used as a cemetery with a forested section” and a walking trail “in the

absence of a variance” permitting its proposed tower. See Vertex’s Motion at 33. But

it argues that the Board’s decision on the reasonable return criterion cannot

withstand substantial evidence review under the TCA because the Board failed to (1)

make specific findings about the criterion in its written decision and (2) recognize

that such a difficult to satisfy criterion was preempted by the TCA’s effective

prohibition clause. See id. at 32-35.

On its first point, Vertex is right that the Board did not make specific findings

about the reasonable return criterion, but—as the Town points out, see Town’s Motion

at 7-8—the caselaw is clear that this Court’s review is not limited to just the findings

in the Board’s written decision, see, e.g., Sw. Bell, 244 F.3d at 60 (“We stress . . . that

a meaningful review of the decision is not limited . . . only to the facts specifically

offered in the written decision. . . . [S]uch a requirement would place an unjustified

premium on the ability of a lay board to write a decision.”). Instead, the critical issue

is whether, considering the written record as a whole, the Board’s reasoning is clear

enough to enable judicial review. See T-Mobile S., 574 U.S. at 295 (“[T]he locality’s

reasons may appear in some other written record so long as the reasons are

sufficiently clear . . . .”). In the circumstances of this case, where the record reflects

that Vertex conceded during the Board’s deliberations that it could not satisfy the

reasonable return criterion of undue hardship under state law, the Board’s reasons

for finding Vertex failed to meet this criterion are plenty clear. See Indus. Tower &

Wireless, LLC v. Haddad, 109 F. Supp. 3d 284, 294 (D. Mass. 2015) (noting that,

although a zoning board’s decision did “not contain any findings or a statement of

reasons for its denial,” the minutes and transcripts of the board’s meeting

“sufficiently reveal[ed] the reasons” for its denial); USCOC of Greater Iowa, Inc. v.

Zoning Bd. of Adjustment, 465 F.3d 817, 824 (8th Cir. 2006) (“We are not precluded

from citing record evidence in our review of the Board’s decision merely because the

Board failed to mention that evidence in its order. The TCA requires only that the

Board’s final decision be in writing and supported by substantial evidence in a written

record, not that every necessary finding be in the written decision.” (emphasis

omitted)).5

5 Vertex also suggests that the Board’s failure to make specific findings would require remand for

clarification under Maine law. See Vertex’s Motion at 34; McGhie v. Town of Cutler, 2002 ME 62,

¶¶ 6-7, 793 A.2d 504 (remanding a local board’s decision granting a variance where the Board only

referenced the undue hardship criteria in its decision but made no findings on the record and the

record was “devoid of evidence to support the zoning variance”). I am not persuaded by this point for

two reasons. First and foremost, Vertex does not explain how state law articulation requirements are

relevant to reviewing a board’s decision under the substantial evidence requirements of the TCA. And

Vertex’s other argument—that the TCA’s effective prohibition clause should

have somehow preempted or altered the Board’s consideration of the state law

reasonable return criterion—is no more persuasive. As the Town correctly points out,

see Town’s Opposition at 1-3, the “substantial evidence inquiry does not require

incorporation of the substantive federal standards imposed by the TCA, but instead

requires a determination whether the zoning decision at issue is supported by

substantial evidence in the context of applicable state and local law,” T-Mobile Ne.

LLC v. City of Lowell, No. 11-11551-NMG, 2012 WL 6681890, at *9 (D. Mass.

Nov. 27, 2012) (rec. dec.) (cleaned up), aff’d, ECF No. 57 (D. Mass. Dec. 18, 2012);

see also ATC Realty, 303 F.3d at 94 (“The 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.”

(cleaned up)); Town of Amherst v. Omnipoint Commc’ns Enters., 173 F.3d 9, 14

(1st Cir. 1999) (explaining that the TCA’s substantial evidence standard “surely

refers to the need for substantial evidence under the criteria laid down by the zoning

law itself (e.g., for setbacks, conditions for variances, special exception

requirements)”); Haddad, 109 F. Supp. 3d at 298 (“It is the local zoning Bylaw which

provides the applicable standard for issuing a Special Permit, and it is with reference

to this standard that the Court must evaluate the ‘substantial evidence’ question.”).

In other words, whether the Board’s denial of Vertex’s request for variances

amounted to an effective prohibition is a separate issue from whether its conclusions

second, unlike in McGhie, the record here sufficiently reveals the Board’s reasoning and contains

evidence that supports its conclusion.

under state law are supported by substantial evidence. See Am. Towers LLC v. Town

of Shrewsbury, No. 17-10642-FDS, 2018 WL 3104105, at *11 (D. Mass.

June 22, 2018) (“[I]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.”). This means the caselaw that Vertex cites

regarding effective prohibition is irrelevant in this context. See Vertex’s Motion

at 33-34.

Vertex does point to two somewhat anomalous decisions from the District of

Massachusetts holding that local authorities must consider whether their decisions

amount to an effective prohibition under the TCA. See Vertex’s Motion at 33; Vertex’s

Opposition (ECF No. 27) at 20; Nextel Comms. of the Mid-Atl., Inc. v. Town of

Wayland, 231 F. Supp. 2d 396, 406-07 (D. Mass. Nov. 22, 2002) (“Under the [TCA],

the Board cannot deny the variance if in doing so it would have the effect of

prohibiting wireless services.”); Sprint Spectrum L.P. v. Town of Swansea,

574 F. Supp. 2d 227, 236 (D. Mass. 2008) (citing Wayland and holding similarly). But

Wayland and its progeny do not carry the day because they are directly contradicted

by First Circuit caselaw and have been called into doubt by more recent decisions by

judges on the same court. See, e.g., Second Generation Props., 313 F.3d at 630 (“The

TCA does not expressly authorize local zoning boards to consider whether individual

decisions amount to an effective prohibition. Since board actions will be invalidated

by a federal court if they violate the effective prohibition provision, many boards

wisely consider the point . . . [But n]o special deference is given to the [boards’]

conclusion[s] on this point.” (cleaned up)); Am. Towers, 2018 WL 3104105, at *11

(“The Court . . . disagrees with the Wayland court, and concludes that the Board need

not consider the requirements of the TCA. The relevant standard the Board must use

to determine a variance is that set forth by state and local law, and this Court’s

substantial evidence review is limited to the Board’s decision under that standard.”

(emphasis added)).6

At bottom, the Board’s conclusion under Maine undue hardship law that

Vertex failed to satisfy the reasonable return criterion is supported by substantial

evidence—a reasonable mind could accept Vertex’s concession on this point before the

Board as adequate to support the Board’s conclusion. Because Vertex’s failure to

satisfy the reasonable return criterion is enough by itself to support the Board’s

finding that Vertex failed to show the necessary undue hardship to grant its request

for variances, I need not address the Board’s alternative reasons for denying Vertex’s

request, and the Court should grant judgment in favor of the Town on Vertex’s

substantial evidence claim (Count I). See Brooks v. Cumberland Farms, Inc.,

6 Vertex also cites a case where the New Hampshire Supreme Court held that one of that state’s undue

hardship criteria should be interpreted more broadly to avoid an effective prohibition under the TCA.

See Vertex’s Motion at 33; Daniels v. Town of Londonderry, 953 A.2d 406, 412 (N.H. 2008). It should

go without saying, however, that New Hampshire’s undue hardship law has no bearing on Maine’s

undue hardship law. Vertex additionally cites a Law Court case to show that the reasonable return

criterion is flexible and should be interpreted less strictly in the context of cellphone tower variances.

See Vertex’s Motion at 34; Hill v. Town of Wells, 2021 ME 38, ¶¶ 23-25, 254 A.3d 1161. That case,

however, had nothing to do with cellphone towers and focused on the essential character of the locality

criterion, not the reasonable return criterion. See Hill, 2021 ME 38, ¶ 32 n.12, 254 A.3d 1161 (noting

that neither side challenged the local board’s conclusion that the reasonable return criterion was met).

1997 ME 203, ¶ 13, 703 A.2d 844 (noting that a variance applicant must prove “each”

of the 30-A M.R.S.A. § 4353(4) criteria “[t]o establish undue hardship” and obtain a

variance); Sw. Bell, 244 F.3d at 60 n.3 (declining to address whether substantial

evidence supported alternative reasons for a zoning board’s denial of the plaintiff’s

permit application after concluding that one of the board’s reasons was sufficient and

supported by substantial evidence).

C. The Town’s Motion to Dismiss

I now turn to the Town’s motion to dismiss Vertex’s effective prohibition claim.

Unlike with the parties’ cross-motions for judgment, my analysis under Fed. R.

Civ. P. 12(b)(6) is cabined to the facts alleged in Vertex’s complaint. I must “accept

as true all well-pleaded facts set out in the complaint and indulge all reasonable

inferences in” Vertex’s favor. SEC v. Tambone, 597 F.3d 436, 441 (1st Cir. 2010).

To survive dismissal, Vertex’s well-pleaded facts must “possess enough heft to show

that [it] is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)

(cleaned up).

i. Effective Prohibition Overview

The TCA dictates that a local authority’s regulation of the placement of

personal wireless service facilities “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). This

“standard can be violated even if substantial evidence exists to support the denial of

an individual permit.” Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 57

(1st Cir. 2012) (cleaned up).

The First Circuit has established a two-step process for determining whether

an effective prohibition has occurred. See id. at 57-58. First, the Court must

determine whether a “significant gap” in coverage exists, considering factors such as

“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.” Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49

(1st Cir. 2009). Second, the Court must decide whether there are no feasible

alternatives to close the gap in coverage other than the applicant’s proposal such that

the locality’s decision constitutes an effective prohibition. See Green Mountain,

688 F.3d at 58.

As discussed, an “effective prohibition claim presents questions that a federal

district court determines in the first instance without any deference to the local

regulatory authority.” Id. (cleaned up). Accordingly, “a district court may rely on

evidence presented in court that is outside of the administrative record compiled by

the local authority.” Id. (cleaned up).

ii. Whether Vertex Has Stated an Effective Prohibition Claim

In its motion, the Town argues that Vertex has failed to state an effective

prohibition claim because it is a tower developer that does not itself provide personal

wireless services and it has not alleged that any carrier has committed to using its

proposed tower. See MTD at 2-3. The Town argues that the “absence of any specific

carrier’s participation or supporting data renders” it impossible to determine, under

the first prong of the First Circuit’s significant gap test, the size, area, and effect of

the purported gap, rendering Vertex’s claim “conclusory, speculative, and

implausible.” Id. at 3. The Town also asserts that Vertex’s claim “fails as a matter

of law” because, with no carrier participation, it cannot show that its plan is the only

feasible plan in order to satisfy the second prong of the significant gap test. Id.

Opposing the Town’s motion, Vertex insists that it has “standing” to bring an

effective prohibition claim even as a noncarrier infrastructure developer. See MTD

Opposition (ECF No. 10) at 6-10. And although it maintains that it has alleged

sufficient facts to state an effective prohibition claim under the First Circuit’s

significant gap test, see id. at 10-13, Vertex also argues that the First Circuit’s test

has been superseded by a 2018 declaratory ruling by the Federal Communications

Commission (FCC) clarifying that an effective prohibition occurs when “a state or

local legal requirement ‘materially inhibits a provider’s ability to engage in any of a

variety of activities related to its provision of a covered service,’” id. at 14 (emphasis

omitted) (quoting In the Matter of Accelerating Wireless Broadband Deployment by

Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 9088, 9104 (2018)

[hereinafter 2018 FCC Ruling]).7

In its reply, the Town emphasizes that it is not challenging Vertex’s standing

to bring an effective prohibition claim but rather the legal sufficiency of Vertex’s

allegations. See MTD Reply (ECF No. 11) at 3 n.5. It also disputes that the 2018

FCC Ruling supplanted the First Circuit’s significant gap test but argues in the

7 Interestingly, Vertex told the Board that the First Circuit’s significant gap test “remains good law,

and is binding upon federal district courts in Maine.” Record at 130.

alternative that Vertex has failed to plead adequate facts to support an effective

prohibition claim under either standard. See id. at 5-7.

The Town has the better argument. Try as it might, Vertex cannot overcome

the plain language of the TCA, which preempts local tower siting decisions that

effectively prohibit “the provision of personal wireless services.” 47 U.S.C.

§ 332(c)(7)(B)(i)(II) (emphasis added); see id. § 332(c)(7)(C)(i) (“[T]he term ‘personal

wireless services’ means commercial mobile services, unlicensed wireless services,

and common carrier wireless exchange access services . . . .”); In re Fin. Oversight &

Mgmt. Bd. for P.R., 919 F.3d 121, 128 (1st Cir. 2019) (“If the statute’s language is

plain, the sole function of the courts is to enforce it according to its terms.”

(cleaned up)). Where Vertex acknowledges that it does not provide personal wireless

services and does not allege that any carriers have agreed to use its proposed tower

to provide wireless services, it has failed state a plausible claim that the Board’s

denial of its variance request effectively prohibits the provision of wireless services.

This is true under either the First Circuit’s significant gap test or the FCC’s

material inhibition standard. Even assuming that Vertex’s allegations regarding an

all-carrier gap in coverage are sufficient to satisfy the first prong of the significant

gap test, it cannot—as a matter of commonsense—show that its plan is the only

feasible way to rectify that gap when it has not alleged that any carrier has agreed to

use its proposed tower to provide coverage (let alone four carriers as the tower is

designed to support). See Green Mountain, 688 F.3d at 58. For the same reason,

even assuming the FCC’s material inhibition standard has supplanted the significant

gap test, Vertex’s allegations are insufficient to show that the Board’s decision

materially “inhibits a provider’s ability to engage in any of a variety of activities

relating to its provision of a covered service.” 2018 FCC Ruling, 33 FCC Rcd.

at 9104-05 (emphasis added); see also In the Matter of Petition for Declaratory Ruling

to Clarify Provisions of Section 332(C)(7)(B), 24 FCC Rcd. 13994, 14017 (2009)

(indicating that the effective prohibition clause’s limitation on state and local

authority “applies not just to the first carrier to enter the market, but also to all

subsequent entrants” (emphasis added)); Alta Towers, LLC v. City of New Braunfels,

No. 5:16-cv-00726-XR, 2017 WL 2703585, at *3 (W.D. Tex. June 22, 2017) (holding

that a tower developer could not seek relief under 47 U.S.C. § 332(c)(7)(B)(i)(I)—a

subsection of the TCA prohibiting local authorities from discriminating against

providers of functionally equivalent services—because it was not a service provider,

which “in the telecommunications context, . . . refers to wireless carriers like Verizon

and Sprint”).

While Vertex cites several cases involving tower developers to refute the

Town’s argument, see MTD Opposition at 6-10, those cases either involved developers

litigating effective prohibition in relation to the specific carriers that had agreed to

use the developers’ proposed towers or did not address the issue of effective

prohibition, see Indus. Tower & Wireless, LLC v. Esposito, No. 17-057-JJM-PAS,

2018 WL 526334, at *4 n.3 (D.R.I. Jan. 22, 2018) (expressly declining to “consider the

parties’ arguments on effective prohibition” after concluding that the local authority’s

decision was not supported by substantial evidence); ExteNet Sys., Inc. v. City of

Cambridge, 481 F. Supp. 3d 41, 47 (D. Mass. 2010) (noting that the plaintiff

“wholesale, facilities-based telecommunications services provider” had “a contract

with AT&T to install” the small wireless facilities at issue in the case); VWI Towers,

LLC v. Town of North Andover Planning Bd., 404 F. Supp. 3d 456, 460 (D. Mass.

2019) (noting that “Verizon and AT & T agreed to enter into separate leases” with the

plaintiff tower developer “whereby they would co-locate their antennas on the”

proposed tower); Haddad, 109 F. Supp. 3d at 291 (noting that “[t]hree cellular

carriers, Verizon Wireless, AT & T Mobility, and MetroPCS, sought to co-locate on”

the tower developer’s proposed tower and joined the developer as “co-applicants”);

Green Mountain, 688 F.3d at 44 (noting that the tower developer plaintiff had

“obtained letters of intent from two carriers, T-Mobile and MetroPCS, stating their

intention to locate antennae on the proposed tower”); ATC Realty, 303 F.3d at 95

(“This case does not involve a claim that the Board has effectively prohibited the

provision of telecommunication services needed to close a service gap.”).

In light of the TCA’s broad conferral of standing, see 47 U.S.C. § 332(c)(7)(B)(v),

it makes sense that tower developers can litigate effective prohibition claims on

behalf of the specific carriers for which they seek to build towers because, in such

circumstances, it can still be discerned how a local authority’s decision will affect the

carriers’ ability to provide wireless services (e.g., if Acme Tower Developer is

prohibited from building a tower for Acme Wireless Provider at the proposed location,

Acme Wireless Provider will be unable to provide coverage to the area). But if a tower

developer could show an effective prohibition based merely on its hope that some

carrier will agree to use its tower at some point, it is unclear to me how a local

authority could ever show that its decision did not amount to an effective prohibition

at least under some hypothetical scenario. And given that the usual remedy for a

TCA violation is an injunction requiring the local authority to permit the construction

of the proposed tower (and, indeed, that is the remedy Vertex seeks here), it would be

against the spirit of the TCA’s cooperative federalism to force a locality to allow the

construction of a tower that might never actually be used.8

At bottom, Vertex’s allegations are insufficient “to support the reasonable

inference that the” Board’s decision amounted to an effective prohibition of wireless

services. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013)

(cleaned up); cf. Global Tower Assets, LLC v. Town of Mount Vernon,

22 F. Supp. 3d 47, 58 (D. Me. May 27, 2014) (“The Court simply cannot infer from

Plaintiffs’ vague and conclusory statements that they have adequately pleaded an

effective prohibition claim.”). Accordingly, Vertex’s effective prohibition claim

(Count II) should be dismissed.9

8 Vertex emphasized at oral argument that it agreed not to build the tower unless it obtained a carrier

commitment and that it would have sought a waiver of the WCF Ordinance’s carrier requirement if

its matter had proceeded to the Town’s Planning Board. I fail to see how these things change the

plausibility of its claim that the Board’s denial of its requested variances amounted to an effective

prohibition. Moreover, in its complaint, Vertex seeks an unconditional order directing the “Board

and/or the Town” to “grant all other permits and approvals necessary to construct, maintain, and

operate” its proposed tower. Complaint at 15.

9 To the extent that Vertex complains that it is being forced to prove its entire case in its pleadings or

suggests that it could flesh out its effective prohibition claim if allowed to proceed to discovery, the

Supreme Court has made clear that pleading sufficient facts is what unlocks the doors to discovery

and enables a plaintiff’s claim to survive a motion to dismiss. See Twombly, 550 U.S. at 556-57

(“Asking for plausible grounds to infer [illegal conduct] does not impose a probability requirement at

the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence of illegal [conduct]. . . . The need at the pleading stage for allegations plausibly

suggesting (not merely consistent with) [illegal conduct] reflects the threshold requirement of [Fed. R.

Civ. P.] 8(a)(2) that the plain statement possess enough heft to show that the pleader is entitled to

III. Conclusion

For the foregoing reasons, I recommend that the Court (1) GRANT the Town’s

motion for judgment on Count I; (2) DENY Vertex’s motion for judgment on Count I;

and (3) GRANT the Town’s motion to DISMISS Count II.10

NOTICE

A party may file objections to those specified portions of a Magistrate

Judge’s report or proposed findings or recommended decisions entered

pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the District

Court is sought, together with a supporting memorandum and request for

oral argument before the District Judge, if any is sought, within fourteen (14)

days after being served with a copy thereof. A responsive memorandum and

any request for oral argument before the District Judge shall be filed within

fourteen (14) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right

to de novo review by the District Court and to appeal the District Court’s

order.

Dated: July 31, 2023

/s/ Karen Frink Wolf

United States Magistrate Judge

relief.” (cleaned up)); Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (“Rule 8 marks a notable and

generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock

the doors of discovery for a plaintiff armed with nothing more than conclusions. . . . [O]nly a complaint

that states a plausible claim for relief survives a motion to dismiss.”).

10 See supra n.2 regarding the Town’s lack of answer to Count I.