The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
The question in this case is whether the Town of Stoddard's Zoning Board of Adjustment, by granting rehearing of its decision to approve plaintiff New Cingular Wireless PCS, LLC's application to construct a wireless telecommunications facility, violated § 704(a) of the Telecommunications Act of 1996 by failing to act on the application "within a reasonable period of time." 47 U.S.C. § 332(c)(7)(B)(ii). By ruling of the Federal Communications Commission, a local government must act on siting applications like New Cingular's within 150 days---a timeframe that can be extended with the applicant's consent---and failure to act within this time is presumptively unreasonable under § 704(a). In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, 24 FCC Rcd. 13994 (Nov. 18, 2009) (colloquially referred to as the "Shot Clock Ruling"). Here, New Cingular agreed to extend the 150-day period by three months, and the Board approved its application within that agreed-upon deadline. Two months after the deadline expired, however, the Board voted to grant rehearing of its approval pursuant to a New Hampshire law providing for rehearing of zoning decisions. See N.H. Rev. Stat. Ann. §§ 677:2, 677:3.
New Cingular claims that this amounts to a violation of § 704(a), as clarified by the Shot Clock Ruling. New Cingular further alleges that what it characterizes as the Board's "failure to act" also amounted to (a) an effective prohibition on the provision of wireless services in and around Stoddard and (b) a de facto denial of the application that was unsupported by substantial evidence, both of which constitute further violations of § 704(a). This court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question).
The Town and the Board (collectively referred to herein as "the Town") have moved to dismiss New Cingular's complaint, see Fed. R. Civ. P. 12(b)(6) arguing that the Board did act on the application within a reasonable time by approving it before the agreed-upon deadline, and that the subsequent decision to grant rehearing is irrelevant. Alternatively, they argue, the Shot Clock Ruling establishes only a presumption of unreasonableness, and that presumption is overcome by the circumstances surrounding their decisions, as alleged in New Cingular's complaint. They further argue that the "effective prohibition" and "substantial evidence" claims must be dismissed because such claims may only be premised on the denial of a siting application, and New Cingular's application was never denied.
After hearing oral argument, the motion to dismiss is granted in part and denied in part. The Shot Clock Ruling contemplates that local governments will resolve siting applications for wireless facilities within its deadline. But New Cingular's application is not "resolved," because New Cingular may not act in accordance with the initial approval until the rehearing process is complete. Nor can the court say as a matter of law that the presumption of unreasonableness that the Shot Clock Ruling assigns to a delay of this length is overcome here, as the facts alleged in the complaint suggest that rehearing was a tactic calculated to unduly prolong the application process. Insofar as the motion seeks dismissal of New Cingular's claim that the Board failed to act on its application within a reasonable time, then, it is denied. Because, however, claims for effective prohibition and lack of substantial evidence cannot lie unless a local government has denied the plaintiff's application, and the Board has not done so here, the motion to dismiss those claims is granted.
I. Applicable legal standard
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff's complaint must make factual allegations sufficient to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In ruling on such a motion, the court must accept as true all well-pleaded facts set forth in the complaint and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Martino v. Forward Air, Inc., 609 F.3d 1, 2 (1st Cir. 2010). Nonetheless, the "allegations must be enough to raise a right to relief above the speculative level," Twombly, 550 U.S. at 555, and "[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do," Iqbal, 129 S. Ct. at 1949. The following summary is consistent with that approach.
On October 1, 2010, New Cingular filed an application with the Stoddard Zoning Board of Adjustment, seeking permission to construct a wireless communications facility in the town. As initially proposed, the facility consisted of a 150-foot lattice tower with six panel antennae mounted near the top. New Cingular currently has no wireless communications facilities in Stoddard or the abutting communities, and has a significant coverage gap throughout Stoddard and those communities. The proposed facility would help address that gap.
On November 10, 2010, the Board held an initial public hearing on the application. At the hearing, opponents of the proposed facility raised concerns about the alleged health effects of radio frequency emissions and the potential impacts of construction. New Cingular made efforts to respond to these concerns, and the Board held a second public hearing on December 15, 2010. At the second public hearing, opponents raised additional concerns, such as the aesthetic impact of the proposed facility and the availability of alternative sites. New Cingular again made efforts to address these concerns, and the Board held a third public hearing on January 5, 2011. The Board subsequently held fourth, fifth, and sixth public hearings on February 15, 2011; April 19, 2011; and May 5, 2011, respectively. Between hearings, New Cingular conducted numerous tests, and submitted voluminous additional materials, to address the concerns raised by opponents and Board members.
As already mentioned, and described in more detail elsewhere in this order, the Federal Communications Commission ("FCC") has prescribed a presumptive deadline of 150 days within which local authorities must act to approve or deny an application to construct a wireless communications facility. That 150-day deadline would have expired on March 1, 2011, but New Cingular agreed to extend it to May 31, 2011. On May 25, 2011, the Board voted 3-2 in favor of granting New Cingular's application, with some alterations. Rather than the 150-foot lattice tower originally proposed, the Board approved construction of a 130-foot unipole (a single pole with internal antennae), a decision New Cingular does not contest.
Over the next 30 days, numerous local opponents of the proposed facility filed motions for rehearing pursuant to N.H. Rev. Stat. Ann. § 677:2. Those motions argued, among other things, that the Board had failed to consider the effect construction of the tower would have on property values and the town's "rural character." On July 21, 2011, the Board met to discuss these motions. At the meeting, Board member Fred Ward--who had been among those most vocally opposed to the facility--speculated that the rehearing process might "take 20 or 30 meetings" and suggested that the Board engage a new radio frequency consultant because he considered the previous consultant "to be less than helpful." (That consultant had concluded that other proposed sites for the facility could not "provide a viable solution" to New Cingular's coverage gap, and had opined that maps Ward had submitted to support a contrary conclusion were "seriously flawed" and should be disregarded.)
At the close of the meeting, the Board voted to grant rehearing on its approval of the facility. The following day, all three of the Board members who voted in favor of New Cingular's application resigned, as did all of the Board's alternate members. The only two members remaining on the Board were Ward and his wife--the two members who had voted against the proposed facility. On August 1, 2011, the Stoddard Town Administrator issued a notice that "until such time that the Selectmen can appoint a full Zoning Board of Adjustment," ...