The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a challenge to the Town of Alton's decision, in December 2006, to deny the plaintiffs the variance necessary to construct a 120-foot cell tower there. The plaintiffs, who are Industrial Communications and Electronics, Inc. ("ICE"), RCC Atlantic, Inc., d/b/a Unicel ("Unicel") and U.S.C.O.C. of New Hampshire RSA #2, Inc., d/b/a U.S. Cellular ("U.S. Cellular"), claim that this decision effectively prohibits the provision of personal wireless services in violation of § 704(a) of the Telecommunications Act of 1996 (the "TCA"), 47 U.S.C. § 332(c)(7)(B)(i)(II). This court has subject-matter jurisdiction under 28 U.S.C. § 1331 (federal question).
The plaintiffs commenced this action in March 2007. About four months later, David and Marilyn Slade, who own property abutting the site of the proposed tower, were granted leave to intervene in the case. See Fed. R. Civ. P. 24. While the Slades' motion to intervene asserted that their "claims/defenses share commonality with the main action," they never filed a complaint, answer, or other pleading setting forth any claims or defenses, even though they were represented by counsel at all times. In fact, they filed nothing of substance in the case until late August 2009, when they purported to "oppose the tentative settlement" between the plaintiffs and the Town which, at that point, had been recently reported to the court. Nor, so far as the record indicates, did the Slades engage in discovery, designate experts, or otherwise participate in the litigation.
Eventually, in March 2010, the plaintiffs and the Town filed an agreement for judgment embodying a settlement of the plaintiffs' claims, under which, inter alia, a variance would be allowed for a tower 100 feet, as opposed to 120 feet, high. The Slades objected to the entry of judgment, arguing that, despite the settlement between the plaintiffs and the Town, the Slades "retain[ed] the right to press their claims that the proposed telecommunications tower violates local zoning ordinances and that the ZBA's decision does not contravene the" TCA. In rejecting this argument, the court ruled that, among other things, the Slades had never previously made any such claims (again, they had never filed any pleading) and "[t]his unexplained delay is reason enough to conclude that the Slades cannot now start pursuing a claim that Alton's decision to disallow the proposed tower complied with the TCA." Indus. Commc'ns & Elecs. v. Town of Alton, 710 F. Supp. 2d 189, 193 (D.N.H. 2010). So the court approved the agreement for judgment, with one modification, and directed the Clerk to close the case.
The Slades, however, appealed this decision to the court of appeals, which vacated the judgment and remanded for further proceedings. Indus. Commc'ns & Elecs., Inc. v. Town of Alton, 646 F.3d 76 (1st Cir. 2011). The court of appeals ruled that "the Slades are entitled to resist the entry of a decree that terminates their protectable rights unless a violation of the [TCA] is proven," observing that this court "ha[d] not yet so found" because "it deemed itself no longer entitled to decide that question because the original defendant," i.e., the Town, "no longer chooses to defend the [denial of the] variance." Id. at 80. "But the Slades are prepared to do so," the court of appeals observed. Id. The court of appeals did not address this court's ruling that, because the Slades had not announced that they were "prepared to do so"--or taken any action in the case at all--until nearly three years after they had intervened, they had waived any argument that the Town's denial of the variance did not violate the TCA. See Indus. Commc'ns & Elecs., 2010 DNH 081, 4-6 (discussing Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 528-29 (1986)).
In any event, following remand, the court conducted a bench trial on the plaintiffs' claim over the course of three days in November 2011. Before trial, the plaintiffs and the Slades each submitted a trial memorandum and a set of proposed findings and rulings, see L.R. 16.2(b)(2), and jointly filed a timeline and statement of agreed-upon facts as directed by the court, see Order of Sept. 28, 2011. The parties agreed to submit the direct testimony of their witnesses by affidavit, and to produce the affiants for cross-examination at trial.*fn1 Id. They further agreed that the records of the proceedings before Town authorities on the plaintiffs' applications for the variance and related relief, which were on file with the court--and spanned nearly 2,300 pages--would be part of the record at trial.*fn2 Id.
Based on these materials, the court makes the following findings of fact and rulings of law, see Fed. R. Civ. P. 52(a), which result in the entry of judgment for the plaintiffs on their claim that the Town's denial of their application for a variance amounts to an effective prohibition on the provision of wireless services in violation of the TCA. The plaintiffs have shown, by a preponderance of the evidence, that both Unicel and U.S. Cellular have significant coverage gaps in the area and that, despite their thorough investigation of viable alternatives, the proposed tower is the only feasible way to close those gaps. By and large, the Slades have failed to come forward with any evidence contesting the existence of the gaps or the feasibility of any alternative plan, arguing instead that (1) the fact that an entity controlled by another wireless carrier, Verizon, acquired Unicel in August 2008 (several months after the permitting decision at issue here) means that Unicel cannot show a coverage gap without accounting for Verizon's coverage in the area, and (2) the plaintiffs' failures to investigate constructing two new towers, as well as a third set of new antennas on an existing tower, as an alternative to the single tower they proposed, and to propose a tower lower than 120 feet, are fatal to their effective prohibition claim.
As more fully explained below, the court rejects these arguments. First, they rely largely on proffered expert opinion testimony that the Slades did not disclose until the week before trial and, as a result, is inadmissible. Second, the mere fact that Verizon acquired control of Unicel, even if Verizon did so in order to get control of Unicel's network, does not mean that the two networks should be treated as one for purposes of the substantial gap analysis, and the Slades adduced no other admissible evidence on this point. Third, there is no credible evidence (properly disclosed or otherwise) that the proposed three-tower solution would fill the coverage gaps, and the significantly greater visual impacts and financial costs of such a solution mean that it was never a feasible alternative in any event--and readily explain the plaintiffs' claimed "failure" to investigate such a plan. Fourth, and finally, the evidence overwhelmingly shows that lowering the tower height is also not a feasible alternative such that the plaintiffs' "failure" to offer that to the Town during its review of their variance applications would defeat their effective prohibition claim.
Unicel and U.S. Cellular coverage gaps in Alton
1. In 2004, plaintiffs Unicel and U.S. Cellular, holding federal licenses to provide personal wireless services in areas including the Town, determined that they had gaps in their wireless networks there. In Belknap County, where Alton is located, U.S. Cellular holds a federal license to provide personal wireless services in the 800 megahertz or "cellular" band, while Unicel holds a federal license to provide those services in the higher-frequency "PCS" band. Because signals at the higher frequency do not propagate as well as those at the lower frequency, PCS networks generally require a greater number of antenna sites to serve a given area than cellular networks.
2. Unicel engaged plaintiff ICE, a company that deploys infrastructure for wireless networks, to locate sites in the Town where Unicel could potentially locate antennas to close those gaps. ICE assigned this task to Kevin Delaney, its regulatory and compliance manager. For its part, U.S. Cellular retained both Kenneth Kozyra and Daniel Goulet, who work as consultants to wireless companies, to assist it in closing, in particular, one of the same gaps in the Town.
3. That coverage gap is located largely within an area surrounding the southern tip of Alton Bay, which is itself the southern tip of Lake Winnipesaukee, and located just to the northwest of the town of Alton proper. This area includes portions of Routes 11 and 28A, which run from the town proper, past the tip of Alton Bay, and alongside the eastern and western shores of the bay, respectively. The area also includes a portion of Route 28, which, beginning just to the southeast of the town proper, runs to the east of, and at a higher elevation than, Route 28A. Route 28 continues on the path for roughly three miles until it intersects with Route 28A again at a point about one mile east of Alton Bay, then heads in a northeasterly direction for several miles before reaching the town line between Alton and Wolfeboro.
5. U.S. Cellular's gaps in the vicinity of Alton Bay included: a small area along the eastern edge of Route 11, just south of the tip of the bay; several stretches of Route 28A between its intersections with Route 11 and Route 28; and nearly all of Route 28A as it runs parallel to Route 28 along that same stretch. Unicel also had gaps in its coverage in the vicinity of Alton Bay, including, inter alia, portions of Routes 11, 28, 28A, and 140 (which intersects with Route 11 south of Alton Bay).
Plaintiffs' search for wireless antenna locations
6. Much of the terrain within a few miles of Alton Bay consists of mountains, many with elevations reaching more than 1000 feet, rising up steeply from the bay. Many of these slopes are heavily forested and inaccessible by existing roads. Such mountains, hills, ridge lines, and trees can obstruct the path of the radio signals transmitted through wireless networks.
7. When Unicel, through ICE, began looking for potential wireless antenna sites in the Town, its zoning ordinances limited the siting of personal wireless facilities to four "overlay districts." These districts generally encompassed the areas of greatest elevation within the Town. The overlay districts included Prospect Mountain, an area several miles to the southeast of Alton Bay, and Old Wolfeboro Road, named for a thoroughfare traversing a ridge line running roughly parallel to, but to the east of and at a higher elevation than, Route 28.
8. Prospect Mountain was home to a wireless tower at this time, but placing an antenna there would not have, in and of itself, remedied either Unicel's or U.S. Cellular's coverage gap in the vicinity of Alton Bay. Nevertheless, Unicel planned to add an antenna to the Prospect Mountain tower as part of its plan to provide coverage in the Town, and began looking for additional sites within the overlay districts.
9. Also around this time, the Town's planning board was considering an application to build a tower in one of the other overlay districts, Old Wolfeboro Road. The application was later approved, and a tower was built, on that site--which has come to be called the "National Grid" or "GridComm" tower--though neither Unicel nor U.S. Cellular has since placed an antenna there (another carrier, Sprint Nextel, has).
10. Unicel eventually determined that placing an antenna within any of the overlay districts would not be feasible. In particular, Unicel concluded that siting an antenna in any of the districts would leave significant gaps, as well as that two of the districts, Straightback Mountain and Mount Bet, could be accessed only by building a new road and utilities, which would require blasting and tree-cutting.*fn3
11. Unicel then began looking at potential antenna sites outside of the overlay districts, both in the vicinity of Alton Bay and in another area known as Roberts Knoll, which is in the northeastern part of the Town, near the Wolfeboro line. As part of this search, ICE sent letters to the record owners of ten different properties in the Alton Bay area, inquiring as to their interest in selling or leasing the parcel to ICE for the construction of a wireless communications tower. Two of these properties were located on Lakewood Drive, which runs roughly parallel to the western shore of Alton Bay for about a mile. The rest were located on the eastern side of the bay, generally on and around a prominence known as Miramachie Hill.
12. Seven of these landowners did not respond to ICE's inquiry. One of them did not because, as it turns out, the parcel in question--53 Miramachie Hill Road--was not owned by her, but by the Slades who, by December 2005, were publicly opposing the placement of a wireless tower in the vicinity of Miramachie Hill.
13. Four of the other landowners solicited by ICE expressed interest in selling or leasing their property. But ICE ultimately determined that only one of these properties, which was located at 486 East Side Drive, was a feasible location for a wireless tower. As to the three other properties, one was too small to accommodate the tower and the associated "fall zone" required by the Town's zoning by-laws; another did not allow access to the portion of the site where the tower would be located; and a tower at the third property would have left significant gaps in coverage, and also have been "extremely visible," according to the trial testimony.
14. Indeed, Delaney testified that ICE decided against siting on this third property--located on Lakewood Drive, on the western side of Alton Bay--"based on feedback from the town on visibility and their reaction to certain locations." Goulet further explained that many areas on the western side of the bay are either "highly visible" or divided into campsites or other parcels that are too small to accommodate a wireless tower. So, aside from the two Lakewood Drive parcels, ICE did not search for possible tower locations on the western side of Alton Bay.
15. Thus, ICE did not explore siting the tower on property on the west side of the bay owned by the Alton Bay Christian Conference Center ("ABCCC") and used as a summer youth camp. As Delaney explained, compared to the East Side Drive site, this property is "much closer to the bay itself and close to where people congregate in the town. There's shops down there as well as miniature golf, and [a tower there] would be highly visible from Route[s] 11 and 28A." The ABCCC is located less than half a mile uphill from the dock for the Mt. Washington Cruise Line, where, as the chairman of the Alton ZBA later observed at a public hearing, "a great number of people come to view this lake [and] the surrounding mountains."
16. Furthermore, Goulet testified at trial that, during U.S.
Cellular's search for a wireless site, he never did any computer
modeling of coverage from the ABCCC property because it is less than
600 feet in elevation, "just a little higher than the lake"--and lower
than tree-lined ridges "in excess of eight, nine hundred feet" in
elevation between that site and U.S.
Cellular's coverage gaps on the eastern side of the bay.*fn4
So, as Goulet explained, U.S. Cellular "would not have looked
at a site that was only some 540 odd feet to shoot through trees and
over ridges to cover the gaps that was [sic] in part of U.S.
Cellular's coverage areas . . . . [T]he Christian Conference Center
doesn't even cover the west side of the bay. I wouldn't have expected
it to cover the east side of the bay."*fn5
17. In May 2005, ICE bought the property at 486 East Side Drive from its then-owners, who insisted on an outright purchase (rather than a lease or an option to purchase). Generally, building a wireless tower in New Hampshire costs about $500,000 in acquiring the land, obtaining the necessary permits, designing and building the tower, and improving the site. In addition, each carrier who locates on the tower can expect to pay about $500,000 for its antenna and related equipment (and then to pay a monthly rental charge for space on the tower).
18. In late 2005, U.S. Cellular began looking for an antenna site in Alton so it could fill "major gaps in service" there, particularly in the town proper and along Routes 11, 28, and 28A. See ¶ 5, supra. Like Unicel, U.S. Cellular had concluded that this could not be accomplished by siting an antenna within any of the wireless overlay districts imposed by the ordinance in effect at that time.
19. U.S. Cellular determined, however, that an antenna site "of modest height" at the top of Pine Mountain, on the western side of Alton Bay about one and a half miles from the shoreline, would potentially close the gaps. So Kozyra, acting on U.S. Cellular's behalf, identified the six parcels "that were the best in terms of being located at or near the top of [Pine] Mountain and also having at least potential access" from existing roads. These parcels were owned by three different people, to whom Kozyra wrote in February 2006, offering to lease approximately one quarter acre of their property, for around $10,000 a year, to host a cell tower. Kozyra followed up on these letters by attempting to call their recipients. Each of them, however, either failed to respond or informed him that they were not interested in his proposal.
20 In May 2006, Kozyra returned to Pine Mountain, with a U.S. Cellular engineer, to attempt to identify other potential sites. They concluded that none of the parcels in the area, including the ones that Kozyra had asked about leasing, "would be feasible" because "they were either too low in elevation or else were on the north or west face of the mountain, and these factors made it obvious that at least without a very tall tower, the top of the mountain would block the signals and not allow [them] to reach the targeted coverage area."
Plaintiffs' initial applications for zoning relief
21. In September 2005, ICE and Unicel filed an application with the Town's Zoning Board of Adjustment ("ZBA") seeking variances to construct and operate a 120-foot wireless monopole tower on the parcel at 485 East Side Drive.*fn6 ICE and Unicel simultaneously filed an application with the ZBA seeking variances to construct and operate a 120-foot wireless tower at another site, known as Roberts Knoll Campground, located approximately three miles to the northeast of the East Side Drive site, near the Wolfeboro line. These applications were necessary because, as already discussed, the Town's zoning by-laws in effect at the time limited wireless towers to the overlay districts, and both of the proposed sites were outside of the overlay districts (and in districts with height limitations less than the 120 feet proposed for each tower).
22. The application for the tower at the East Side Drive site indicated that, at 120 feet, it could accommodate wireless antennas for at least five different service providers, with the antennas to be spaced at 10 foot intervals along the tower, beginning at an elevation of 80 feet, as well as two dish antennas at an elevation of 75 feet. The application also stated that, at that time, Unicel was the only service provider that planned to place an antenna on the tower.
23. While a public hearing on the applications was originally scheduled for October 2005, the ZBA did not hear any testimony on them until a session in December 2005. At this session, representatives of ICE and Unicel gave a presentation in support of the application for the tower at the East Side Drive property, while David Slade spoke in opposition to it. Other than requesting additional information from the applicants (which they later provided), the ZBA did not take an action on the application at this session.
24. Slade, a partner at the Washington, D.C., office of an international law firm, Allen & Overy, owns a 60-acre parcel on Miramachie Hill abutting the proposed East Side Drive site. Slade practices in the area of project finance, assisting clients in developing infrastructure--including, ironically, electric transmission and telecommunications networks--in foreign countries. Slade and his wife bought the Miramachie Hill property from his grandmother in 2001, and plan to make it their permanent home at some point. While the Slades would be able to see the proposed tower from their Miramachie Hill property, it would not impact their view of the lake from there.
25. In late January 2006, the ZBA retained (at the expense of ICE and Unicel) an independent radiofrequency engineer, Mark Hutchins, to evaluate the proposed cell towers. While Hutchins was working on his evaluation, in February and March 2006, the ZBA did not take any action on the applications.
26. In late March 2006, Hutchins completed a report of his evaluation. In relevant part, the report stated that "Unicel has shown inadequate coverage within the Town" and that providing "adequate PCS coverage, particularly north of Route 28A and the northern section of Route 28 . . . cannot be accomplished within the existing overlay districts at the maximum heights allowed in each." The report further stated that Unicel "still cannot provide adequate PCS coverage to [these] areas" even if it placed antennas on both the existing Prospect Mountain and National Grid towers, see ¶¶ 8-9, supra, so that "new facilities are warranted." He added that "[r]oaming, or the use of services that might be available from competing providers, is not a viable coverage alternative for Unicel customers." Hutchins delivered this report at an April 2006 public hearing before the ZBA.
The revised personal wireless service facilities ordinance
27. In the meantime, the Town's planning board was drafting a new personal wireless service facilities ordinance and, in fact, had held a public work session for that purpose in December 2005, less than two weeks after the hearing on ICE's applications before the ZBA. The planning board also held a public hearing on the draft ordinance in January 2006. While the Town provided public notice of this hearing as required by New Hampshire law, neither ICE nor Unicel was separately notified of the proposed ordinance until January 10, 2006, one week prior to the second public hearing on it. The ordinance was ultimately approved by a majority of the Town's voters at its annual meeting in mid-March 2006.
28. The new personal wireless facilities ordinance, codified as section 603 of the Town's zoning by-laws, eliminated the four wireless overlay districts that existed under the prior by-law and allowed such facilities in all zoning districts in the Town instead. The new ordinance did, however, impose other restrictions on wireless facilities. First, the ordinance required the applicant to show that such a "facility's effect has been minimized on the viewshed containing the facility, and that the facility will not visually dominate any viewshed in the Town (though "viewshed" is not defined).
29. Second, the ordinance imposed restrictions on ground-mounted personal wireless facilities relative to the trees existing on the site. The ordinance stated that such facilities "shall not project higher than ten feet above the average tree canopy height of the trees located within an area defined by a 50 foot radius or perimeter of the mount, security barrier, or designated clear area for access to the equipment, whichever is greater." The ordinance further provided that ground-mounted personal wireless service facilities shall be surrounded by a buffer of dense tree growth that extends continuously for a minimum distance of one hundred fifty feet from the mount, security barrier, or designated clear area for access to equipment, whichever is greatest, and screens views of the facility in all directions. The easement or lease shall provide that the trees within the buffer shall not be removed or topped, unless the trees are dead or dying and present a hazard to persons or property. If removed for this reason, they must be replaced, unless Nature has provided a buffer.
30. Just prior to the April 2006 public hearing on their applications, see ¶ 26, supra, ICE and Unicel amended them in response to the Town's new personal wireless facilities ordinance. Within the next month or so, Kozyra learned of Unicel's application to construct a wireless tower at the East Side Drive site. U.S. Cellular's engineers determined that "antennas at 110 feet in this location would adequately close its coverage gap in the area." In June 2006, then, U.S. Cellular joined the pending application for the tower at the 486 East Side Drive site, explaining that it wanted to install an antenna at the tower at a height of 110 feet.
Hutchins's conclusions: Evans Hill and tower height
31. The ZBA asked Hutchins to complete an addendum to his report to reflect the new ordinance. After Hutchins began this work, he suggested that ICE and Unicel consider using--as an alternative to either the East Side Drive site, the Roberts Knoll site, or both--a site known as Evans Hill. Evans Hill is located approximately one mile to the north, and slightly to the east, of the East Side Drive site, and is approximately 100 feet higher in elevation. Compared to the East Side Drive site, Evans Hill is slightly further from the eastern shore of Alton Bay, but closer to the southern shore of Winnipesaukee proper. In fact, under the prior version of the Town's personal wireless facilities ordinance, Evans Hill was designated as a protected view shed.
32. In response to Hutchins's suggestion, Unicel analyzed the coverage it could obtain from a site located on Evans Hill. Unicel concluded that this coverage, even when combined with coverage from its existing antenna at Prospect Mountain, would leave two large gaps along Route 28A north of its intersection with Route 11 at the tip of Alton Bay, as well as a smaller gap in coverage along Route 28.
33. In June 2006, Hutchins provided the addendum to his earlier report, evaluating the proposal for the cell towers in light of the revised personal wireless service facilities ordinance--which, again, limited the height of such facilities to ten feet above the average tree canopy in the vicinity. In the addendum, Hutchins observed that, while this provision "evidences the desire of many towns to minimize the visual impact of antennas," it "sets up a conflict with the [radiofrequency] engineering requirement to adequately clear vegetative obstructions--something even more important at higher frequencies," such as PCS, see ¶ 1, supra. In fact, Hutchins noted, "antenna height clearance, as a rule of thumb, is fifteen feet above clutter."
34. Hutchins reported in the addendum that he had received conflicting information on the average tree canopy height at the East Side Drive site. A forester hired by the Town had calculated the average tree canopy height at 61 feet, while Unicel reported that its engineer had calculated the average tree canopy height at 84 feet (and noted that the heights of trees at the site ranged from 72 feet to 95 feet).*fn7
35. Hutchins ultimately concluded, as to the proposed East Side Drive facility, that "antenna height should be no lower than 75 feet above ground level, given the 60 foot average canopy." Hutchins did not explain, in either the addendum or his trial testimony, why he had chosen the forester's calculation (which was actually 61 feet), rather than Unicel's calculation.*fn8 He did testify, however, that the ordinance's limitation on tower height relative to the surrounding tree canopy is "arbitrary . . . ...