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Global Tower Assets, LLC v. Town of Rome

United States Court of Appeals, First Circuit

January 8, 2016


As Amended January 14, 2016.

Page 78


Erica M. Johanson, with whom Neal F. Pratt, Jonathan A. Pottle, and Eaton Peabody, were on brief, for appellants.

Theodore Small, with whom Issacson & Raymond, P.A. was on brief, for appellees.

Before Barron, Selya, and Lipez, Circuit Judges.


Page 79

BARRON, Circuit Judge.

The Telecommunications Act of 1996 (" TCA" ) provides relief to those who are denied permission to build telecommunications facilities at the state or local level. The TCA makes such relief available if state or local land use authorities have denied such permission through " final action." The TCA, however, does not define what counts as " final action." The result has been disputes -- like this one -- over whether a denial is a " final action."

We have considered this issue once before. We held then that a local zoning board's denial of a special use permit and variance to build a wireless tower did constitute " final action." We recognized that the board's denial could have been reviewed in state court under state law at the time that the TCA claim had been filed. But we explained that Congress did not intend to make TCA relief available only once that judicial process had run its course. We concluded that the zoning board's denial counted as " final action" because the denial marked the end of the administrative process. As a result, we permitted the TCA claim to proceed as a challenge to " final action." See Omnipoint Holdings v. City of Cranston, 586 F.3d 38 (1st Cir. 2009).

This time the issue is somewhat different. It concerns whether the administrative process itself has come to an end. The issue arises because the appellants filed their TCA challenge to a local planning board decision at a time when that decision was still subject to further review by a local board of appeals.

The appellants contend that the opportunity to bring an administrative appeal should not prevent their TCA challenge from going forward. But, in keeping with basic principles of administrative law and the purposes of the TCA, we disagree. As a matter of state law, the planning board's denial may be reviewed in state court only after the local board of appeals has exercised its own independent review. As a result, we agree with the appellees -- the planning board and the Town of Rome, Maine -- that the planning board's decision does not mark the end of the administrative process and thus is not a " final action" for TCA purposes.

We thus affirm the District Court's dismissal of appellants' TCA claims. We also affirm the District Court's dismissal of appellants' separate federal constitutional due process challenges, as we hold that the complaint failed to plead facts sufficient to state such claims.


The appellants are Northeast Wireless Networks, LLC and Global Tower Assets, LLC (" Applicants" ). Northeast Wireless holds a Federal Communications Commission (" FCC" ) license to provide personal communications service -- a form of wireless communications technology -- in and around the Town of Rome, Maine (" Rome" ), which is one of the two appellees. Global Tower is a company that assists wireless companies with locating and constructing wireless communications towers.

Together, the Applicants acquired a leasehold interest in land in Rome, on which land they seek to build a wireless communications tower. Rome regulates the siting of wireless towers via the " Town of Rome Wireless Telecommunications Facility Siting Ordinance" (the " Ordinance" ).

The Ordinance requires applicants first to seek permission to build from the Rome Planning Board (the " Planning Board" ), which, along with Rome, is the other appellee.

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The Ordinance further provides that " [a]dministrative appeals and variance applications submitted under this Ordinance shall be subject to the standards and procedures established by the Town of Rome Board of Appeals" (the " Board of Appeals" ).

On April 8, 2013, the Applicants sought permission from the Planning Board to build the tower. The Planning Board held its first meeting to discuss the application on May 20, 2013. Over the course of the next several months, the Planning Board held a number of additional meetings.

During this time, the Applicants objected repeatedly to the Planning Board's procedures and to what the Applicants perceived to be bias against the siting of the tower on the part of Planning Board members whom the Applicants allege belonged to a local private organization, the Belgrade Region Conservation Association (the " BRCA" ). Over the course of the application process, the Applicants and the Planning Board agreed on four occasions to extend the deadline for the Planning Board to make its decision on the application.

February 10, 2014, was the final day of the last agreed upon extension. On that day, the Planning Board met, deliberated, and voted to (a) adopt some of the findings of fact and conclusions of law that the Planning Board's counsel had prepared in advance, (b) adopt some of the specific findings included in section 10 of the Ordinance, and (c) find that the application comported with some of the requirements set forth in section 11 of the Ordinance.

The Planning Board then conducted a " completeness review," during which the Planning Board determined that the Applicants had not submitted written evidence of the need for the tower. Lastly, the Planning Board voted to deny the Applicants' application. Twenty-eight days later, on March 10, 2014, the Planning Board issued a one page " decision" that memorialized the February 10 votes.

The next day, the Applicants filed suit in the United States District Court for the District of Maine. The complaint alleged various claims under the TCA, the Due Process Clause of the United States Constitution, and Maine law, both statutory and constitutional.

As to the TCA, the complaint alleged that the Planning Board's decision violated the requirements of § 332(c)(7)(B) in that the decision (1) unreasonably discriminated against the providers of functionally equivalent services; (2) had the effect of prohibiting the provision of wireless services; and (3) was not " in writing and supported by substantial evidence on a written record." The complaint also alleged that the Planning Board had unreasonably delayed taking action on the application -- and thus violated § 332(c)(7)(B)(ii) -- by failing " to issue a written decision within the mutually agreed upon review period."

As to the federal constitutional claim, the Applicants alleged that the Planning Board's procedures -- including ex parte communications -- and perceived bias on the part of those Planning Board members who also belonged to the BRCA denied them a fair and impartial tribunal, as well as notice and an opportunity to be heard.

Rome moved to dismiss the complaint under both Rule 12(b)(1) and Rule 12(b)(6). Analyzing the motion under Rule 12(b)(6),[1]

Page 81

the District Court dismissed the majority of the TCA claims, without prejudice, because the Applicants had not appealed to the Board of Appeals at the time that the Applicants filed their TCA claim. Global Tower Assets, LLC. v. Town of Rome, Me., No. 1:14--cv--00085--GZS, 2014 WL 3784233, *10 (D. Me. July 31, 2014). For that reason, the District Court held that the Planning Board's denial of the application was not a " final action" that Applicants were entitled to challenge under the TCA. Id.; see 47 U.S.C. § 332(c)(7)(B)(v).

The District Court also dismissed the unreasonable delay claim that the Applicants brought under the TCA. Global Tower Assets, 2014 WL 3784233 at *7. The District Court concluded (" Despite this allegation, Plaintiffs expressly allege that the Planning Board 'adopted findings of fact and conclusions of law that the Applicants failed to plead facts adequate to allege that the Planning Board had not issued a written decision. Id. concerning the Application' prior to the expiration of the agreed upon review period and then detail twenty-four of those findings and conclusions. Therefore, Plaintiffs' claim in paragraph 95 of the Complaint is belied by their factual own [sic] allegations." )(citations omitted) (quoting complaint).

With respect to the Applicants' Due Process claims (both procedural and substantive), the District Court dismissed them with prejudice. Id. at *11. The District Court ruled that the allegations set forth in the complaint did not rise to the level of a federal constitutional violation. Id. Having thus disposed of all of the federal claims, the District Court declined to exercise supplemental jurisdiction over the ...

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