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T-Mobile Northeast, LLC v. Town of Bedford

United States District Court, D. New Hampshire

November 28, 2018

T-Mobile Northeast, LLC et al
Town of Bedford, NH et al


          Landya McCafferty, United States District Judge

         To fill a gap in cellular telephone coverage, plaintiffs, T-Mobile Northeast, LLC (“T-Mobile”) and American Towers, LLC (“American Towers”), seek to construct a new wireless telecommunications tower in Bedford, New Hampshire. They applied for a special exception from the Town of Bedford Zoning Board of Adjustment (“ZBA”) to allow this construction, which the ZBA denied. Plaintiffs filed suit against the ZBA and the Town of Bedford, NH (“Town”), alleging that the ZBA's denial of their special exception application effectively prohibited the provision of personal wireless services in the identified gap in violation of the Federal Telecommunications Act, 47 U.S.C. § 332(c)(7)(B)(i)(II). Before the court are the parties' cross-motions for summary judgment. For the following reasons, plaintiffs' motion is granted and defendants' motion is denied.


         A movant is entitled to summary judgment if it “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is material if its resolution might affect the outcome of the case under the controlling law.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003). “A genuine issue exists as to such a fact if there is evidence from which a reasonable trier could decide the fact either way.” Id.; see also Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” (quotation omitted)).

         “To defeat a properly supported motion for summary judgment, the nonmoving party must establish a trial-worthy issue by presenting enough competent evidence to enable a finding favorable to the nonmoving party.” ATC Realty, LLC v. Town of Kingston, N.H., 303 F.3d 91, 94 (1st Cir. 2002) (quotation and brackets omitted). In reviewing the record, the court construes all facts and reasonable inferences in the light most favorable to the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013). “Where the parties file cross-motions for summary judgment, [the court] employ[s] the same standard of review, but view[s] each motion separately, drawing all inferences in favor of the nonmoving party.” Fadili v. Deutsche Bank Nat. Tr. Co., 772 F.3d 951, 953 (1st Cir. 2014).


         T-Mobile provides wireless communications services, including voice, data, and wireless broadband internet services, throughout New England pursuant to licenses issued to it by the Federal Communications Commission. To ensure seamless provision of these services, T-Mobile uses a network of wireless telecommunication facility sites, commonly known as cell towers, spaced in a grid-like, or “honeycomb-like” pattern. American Towers constructs, owns, and manages wireless telecommunication facilities used by T-Mobile and other wireless carriers to provide services.

         This suit arises out of plaintiffs' desire to construct a 130-foot monopole wireless telecommunications facility at 25 Tirrell Road in Bedford. Plaintiffs allege that this facility is necessary to fill a coverage gap of approximately 6.7 square miles in southern Bedford, near the areas of Back River Road, County Road, and a portion of Wallace Road.

         After discovering the lack of adequate wireless services in the above-described gap area, T-Mobile determined that none of its existing facilities could be upgraded or modified to remedy the gap in services. It then surveyed the greater Bedford area for collocation opportunities on pre-existing cell towers, and for other existing structures that could be adapted for use. Finding no suitable existing structures, plaintiffs' radio frequency engineer identified a “search ring” within which a new facility would need to be constructed to remedy the gap in services.[1]

         Plaintiffs' site analysts surveyed the properties within the search ring for viable construction sites. The analysts conducted an initial screening process using an aerial or satellite survey of the search ring to identify potential exceptions to the land use pattern that would provide an opportunity for a wireless telecommunications facility site. See doc. no. 13-8 at 3. In particular, the analysts searched for large areas of open land, preferably forested but not wet, that do not have extreme topography. Id. After locating possible sites, the analysts then conducted a four-step feasibility analysis for each potential site. Doc. no. 13-6 at 10. First, they determined which sites were radio frequency approved, meaning that a tower at that site could technically provide coverage in the gap. Second, they determined whether any radio frequency viable sites were “leaseable;” in other words, whether the owner of the land was interested in leasing it. Id. Third, they considered the likelihood of “environmental approval” of the sites, including zoning and wetland concerns. Id. Finally, they evaluated the “constructability” of the sites, including access to the site, and availability of utilities. Id.

         Plaintiffs contend that, applying these criteria, they considered and ruled out eleven viable properties within the search ring: Utility Transmission Stanchions on Camp Allen Road; 25 Strawberry Hill Road; Camp Allen, 56 Camp Allen Road; Pennichuck Water Works, Sebbins Pond Drive; Girl Scouts of the Green and White Mountains, 26 Camp Allen Road; Global Premier Soccer League, Camp Allen Road; Manchester Boys and Girls Club, 36 Camp Allen Road; 22 Tirrell Road; 94 Back River Road; 80 Forest Drive; and 148 Back River Road. Doc. no. 14-1 at 6-9. As will be discussed in more detail below, plaintiffs ruled out each of these properties for various reasons. Plaintiffs contend that they ultimately settled on 25 Tirrell Road (the “subject property”) because it was the only property in the search ring that met all of the feasibility criteria, including a willing landowner.

         The subject property is located in Bedford's Residential-Agricultural district. The Town's Zoning Ordinance permits wireless telecommunication facilities in all zoning districts. However, under the Ordinance, an applicant seeking to construct a “[n]ew commercial ground mount wireless telecommunications facilit[y], ” must obtain a special exception from the ZBA. Doc. no. 13-4 at 9. Even with a special exception, such facilities are limited to 130 feet in height. Id. The Ordinance further outlines the applicant's burden of proof in seeking a special exception:

The applicant shall have the burden of proving that there are no existing structures that are suitable to locate its wireless telecommunications facility; that the proposed facility will fill an existing significant gap in the ability of remote users to access the national telephone network; that the manner in which the applicant proposes to fill the significant gap in service is the least intrusive manner with respect to visual impact, environmental impact and safety. This will require a showing that a good-faith effort has been made to identify and evaluate less intrusive alternatives, including that the provider has considered less sensitive sites, alternative system designs, alternative tower designs or placement of antennas on existing structures.

Id. at 10. The Ordinance requires an applicant to provide with its application, among other things, “[a] list of all contacts made with owners of potential sites regarding the availability of potential space for” a facility, and an aesthetic mitigation proposal. Id. at 10-11.

         In December 2016, after executing an option to lease the subject property, plaintiffs applied for a special exception and a dimensional variance for tower height to construct a 150-foot monopole telecommunications facility on the subject property. Doc. no. 13-3 at 9, 15. Plaintiffs submitted numerous materials in support of their application, including a radio frequency analysis, maps demonstrating current coverage and projected coverage after construction, and an analysis of alternative sites. Id. at 43-61. Specifically, the alternative site analysis identified five potentially viable sites: Camp Allen Road Utility Stanchions, 80 Forest Drive, 25 Strawberry Hill Road, 97 Back River Road, and 25 Tirrell Road. Id. at 58. The alternative site analysis explained why the four other sites were not feasible, leaving 25 Tirrell Road.

         The ZBA held hearings on plaintiffs' special exception application on January 17, March 21, and April 18, 2017. At the March 21 hearing, some ZBA members raised concerns about plaintiffs' efforts to identify and evaluate alternative sites. Specifically, a ZBA member pointed out that the address “97 Back River Road” did not exist in town records, and that 80 Forest Drive did not appear to be a large enough lot for construction of a wireless tower. See doc. no. 13-6 at 9. Plaintiffs' site acquisition consultant, Mike Almada, responded that there may have been a “mismatch” of the address for 97 Back River Road. Id. Almada further explained that he was not familiar with 80 Forest Drive and that the person who did the initial field survey was “no longer with [plaintiffs].” Id. ZBA members also pointed out that plaintiffs had mischaracterized the lot sizes in the search ring as small, one-fourth to one-half acre lots, when the average lot size is one acre. Id. at 14-15. Plaintiffs' counsel conceded that he was unable to provide a “clear answer” to all of the ZBA's questions about alternative sites. Id. at 10. ZBA Chairman John Morin stated that he was “not comfortable with [plaintiffs'] alternative site submission.” Id. ZBA member Chris Swiniarski also commented that the alternative site analysis was “the biggest hurdle in this application, ” and that it would be helpful if plaintiffs provided specific details of the feasibility analysis it applied to each potential site. Id. at 11. Plaintiffs' counsel replied that he heard the ZBA's concerns “loud and clear” and asked that they table the application until the ZBA's next public hearing. Id.

         Prior to the ZBA's April 18 hearing, plaintiffs amended their special exception application to request approval for a 130-foot tower, rather than a 150-foot tower, and, consequently withdrew their request for a height variance. Plaintiffs also supplemented their alternative site analysis. The supplemental analysis concerned the same five potential sites addressed in the initial analysis, but provided greater detail as to why each of the four alternative sites had been rejected.

         At the April 18 hearing, plaintiffs presented their supplemental alternative site analysis to the ZBA. As to 56 Camp Allen Road, plaintiffs explained that this property was originally considered based on the prospect of extending the existing utility stanchions. However, that scenario was rejected for a No. of reasons: insufficient height of stanchions, construction difficulties, and inability to conduct maintenance on antennas once installed. Doc. nos. 13-7 at 36, 13-8 at 3. Plaintiffs further explained that they had discovered that the 56 Camp Allen parcel was larger than initially believed, so another location in that parcel was considered for construction of a new tower. However, they eliminated that site as a possibility because “in addition to the fact that [the owners] did not respond to inquiry, [the site] is well beyond the search ring, [and] it is close to an existing T-Mobile site.” Doc. no. 13-8 at 3-4.

         Plaintiffs also addressed the other alternative sites. They explained that 80 Forest Drive had been rejected due to zoning concerns, including setback requirements, and that 94 Back River Road[2] had been rejected due to its proximity to conservation land. Plaintiffs represented that the owner of 25 Strawberry Hill Road did not respond to plaintiffs' written proposals to lease the property. Additionally, plaintiffs admitted that their description of the typical lot size in the search ring as one-fourth to one-half acre was inaccurate. However, they explained that the fact that the average lot size is, in fact, one acre did not affect their alternative site analysis. Id. at 7.

         Following plaintiffs' presentation and input by the public, the ZBA moved into deliberations on the application and reviewed each of the special exception criteria. Several ZBA members raised concerns regarding the Camp Allen property, noting that the information presented was contradictory and confusing. See Id. at 26. Specifically, ZBA members appeared confused about how the property could both be outside of the search ring and have been eliminated as a possibility because the property owner did not respond to inquiries. Id. ZBA members observed that they were not “satisfied that that alternative was explored” and that they did not think that they had “gotten enough information to really say yes Camp Allen was evaluated.” Id. at 26, 28. The ZBA also questioned whether plaintiffs made sufficient efforts to contact the owner of 25 Strawberry Hill Road.

         Given these reservations, the ZBA unanimously voted to deny plaintiffs' request for a special exception. The ZBA subsequently issued a written decision explaining that its denial was based on two primary findings: (1) plaintiffs offered insufficient evidence “that a good faith effort ha[d] been made to evaluate alternative sites that would present a lesser impact”; and (2) plaintiffs did not provide for adequate aesthetic mitigation of the tower.[3] Doc. no. 13-10 at 1-2.

         Plaintiffs moved for a rehearing. In support, they offered additional evidence of their efforts to evaluate alternative sites, including the affidavit of Amber Debole, who conducted the initial evaluation and contact of the Camp Allen property. They also offered evidence of their post-decision efforts “to solicit interest from Camp Allen and several other property owners in the vicinity.” Doc. no. 13-11 at 8. More specifically, the motion for rehearing listed seven alternative sites plaintiffs contacted after the ZBA's decision and noted that five of the seven-including Camp Allen-expressed interest in “explor[ing] the possibility of [locating] a wireless facility” at those sites. Id. at 8-9. Plaintiffs represented that they “intend[ed] to actively explore these properties with the owners between now and the ZBA's next schedule[d] meeting on June 20, as a measure of good faith and commitment to exhausting potential sites identified by the ZBA.” Id. at 9.

         Plaintiffs subsequently filed an amended motion for rehearing updating their post-decision efforts to evaluate alternative sites. Doc. no. 13-12 at 6-14. In this amended motion, plaintiffs represented that, as to the five interested property owners, they had met with the owners, walked their properties, and conducted initial feasibility analyses for tower location. Id. at 12. However, all five property owners ultimately concluded that they were not interested in having a facility located on their respective properties and each executed a written response to that effect.

         At its June 20 hearing, the ZBA denied plaintiffs' request for rehearing, reasoning that no “new facts had been presented in the rehearing request that could not have been reasonably discovered during the initial proceedings and prior to” the ZBA's original decision on the application. Doc. nos. 13-14 at 6, 13-15 at 1. During the hearing, some ZBA members expressed concerns that allowing plaintiffs to submit information that was previously available to them, and which ...

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