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New Cingular Wireless PCS, LLC v. City of Manchester

United States District Court, District of New Hampshire

February 28, 2014

New Cingular Wireless PCS, LLC, Plaintiff
City of Manchester, NH; and Zoning Board of Adjustment of the City of Manchester, NH, Defendants Opinion No. 2014 DNH 044

Stephen D. Anderson, Esq.

Peter R. Chiesa, Esq.

Adam T. Kurth, Esq.

Anne Robbins, Esq.


Steven J. McAuliffe, United States District Judge.

Plaintiff, New Cingular Wireless PCS, LLC ("AT&T"), proposes to construct a cell tower in Manchester, New Hampshire, to fill a gap in cellular telephone coverage. The Zoning Board of Adjustment of the City of Manchester ("Board") denied an area variance twice - once prior to the filing of this suit, and once on remand by consent of the parties. AT&T sues the City of Manchester ("City") and the Board under the Telecommunications Act of 1996, 47 U.S.C. § 151 et. seq. ("TCA") and section 677:4 of the New Hampshire Revised Statutes Annotated.

AT&T argues that the Board' s decisions to deny the variance are not supported by substantial evidence (Count I), result in an effective prohibition on the extension of personal wireless services in an identified coverage gap (Count II), and violate state law (Count V). Before the court are the parties' cross-motions for summary judgment on Count II (document nos. 28 and 31). After the motions were filed, the parties stipulated to all material facts and submitted all counts for trial by the court as a case stated. The court held a hearing on February 20, 2014.

Having heard the parties' arguments and having carefully reviewed and considered the evidence presented, the court makes the following findings of fact and conclusions of law, as required by Rule 52 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 52(a). The court notes that AT&T submitted a very detailed and extensive set of proposed findings and conclusions. It is well settled, however, that the court "does not have to make findings on every proposition put to it by the parties." Applewood Landscape & Nursery Co. v. Hollingsworth, 884 F.2d 1502, 1503 (1st Cir. 1989) (quoting Morgan v. Kerrigan, 509 F.2d 580, 588 n.14 (1st Cir. 1974)). Rather, the findings simply need be "sufficient to indicate the factual basis for the ultimate conclusion." Kelley v. Everglades Drainage District, 319 U.S. 415, 422 (1943) (per curiam). If either party believes that additional findings of fact and conclusions of law, beyond those made below, are necessary to support the court's ruling or clarify the status of a claim or defense, it should submit a written request for (a limited number of) additional findings and conclusions within fifteen days of the date of this Order.


1. The City of Manchester's zoning ordinance prohibits the siting of wireless communication facilities in 80-85% of the City, including all residential zoning districts, except that variances may be allowed.

2. On December 21, 2010, AT&T applied for variances from certain sections of the ordinance to construct a 100' tower facility at 235 South Mammoth Road in Manchester, which is located in an R-1B Residential District. AT&T sought to address coverage problems in and around the R-1A and R-1B Residential Districts in south central Manchester, where telecommunications towers and antennas are not permitted.

3. After public hearings in January and February of 2011, the Board voted 3-2 to approve AT&T's application, subject to two conditions.

4. At the request of individuals opposed to construction of the tower, however, the Board held a rehearing on April 14, 2011, and reversed itself, voting 4-1 to deny the variances. AT&T's own subsequent request for a rehearing was denied in June of 2011 and AT&T appealed.

5. At the parties' request, the court, by order dated July 25, 2013 (document no. 58), remanded this matter to the Board "for the limited purpose of allowing the Board to consider AT&T's additional information."

6. On September 25, 2013, the Board held a public hearing to consider AT&T's additional information. The Board voted 3-1 to affirm its denial of AT&T's variance application. It denied AT&T's subsequent request for rehearing.

7. AT&T's second amended complaint includes an appeal and challenge to both the Board's original denial of AT&T's application in April of 2011, and its denial after remand in September of 2013.

Count I Effective Prohibition Under 47 U.S.C. § 332(c)(7)(B)(i)(II)

8. The TCA provides, in part, that "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality . . . 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) .

9. The court reviews AT&T's effective prohibition claim de novo. National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 22 (1st Cir. 2002).

10. When a carrier claims an individual denial [of a permit] is an effective prohibition, virtually all circuits require courts to (1) find a ''significant gap' in coverage

exists in an area and (2) consider whether alternatives to the carrier's proposed solution to that gap mean that there is no effective prohibition." Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 57 (1st Cir. 2012) (quoting Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48 (1st Cir. 2009)) .

11. The City's denials of AT&T's site-specific application in 2011 and 2013, individually and in combination with the City's failure to lease AT&T a suitable nearby city-owned alternative property because of neighborhood opposition, effectively prohibit AT&T from providing competitive and reliable personal wireless services in the residentially-zoned area.

Significant Coverage Gap

12. AT&T has a significant gap in coverage in Manchester within the meaning of the TCA and AT&T's proposed facility will address that coverage gap.

13. In finding that a significant coverage gap exists, the court has considered factors such as the physical size of the gap, the number of users the gap affects, percentages of unsuccessful calls or inadequate service during calls in the gap area, the need for coverage around a heavily traveled and important route, and the carrier's "standard for reliable service ...

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