Zoning – Wireless facility – Telecommunications Act

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Where a plaintiff has filed a complaint alleging that the defendant town’s denial of a special permit and regulatory agreement permitting the plaintiff to install and operate wireless antennas and equipment in a church steeple violated the Telecommunications Act of 1996, the reasons for denying the plaintiff’s application for a regulatory agreement were not supported by substantial evidence.

“… Specifically, [plaintiff] T-Mobile claims that the denials were not based on substantial evidence (Count I), that they have effectively prohibited T-Mobile from providing personal wireless services (Count II) and that the denials were impermissibly based on claims regarding the environmental effects of radio frequency emissions (Count III), all in violation of the TCA. …

“The Planning Board declined to recommend that the Town Manager enter into a regulatory agreement with T-Mobile based on its determinations that (i) the alterations proposed in the application for regulatory agreement would ‘impact the historic integrity’ of the Proposed Site such that the proposed use is ‘not of an appropriate scale and function’; (ii) the in-building residential signal levels are adequate and in-building commercial coverage ‘is not necessary to provide adequate coverage given the unique character of the area, land use, and structures’; (iii) despite T-Mobile’s representations that the Water Tower was outside the search ring, ‘no evidence was submitted to the record identifying the level of coverage that would result’ from installing the facility at the Water Tower; and (iv) T-Mobile did not offer sufficient ‘factual basis or evidence’ that other potential locations were inadequate. … Based on a review of the record before the Planning Board, the reasons for denying T-Mobile’s application for regulatory agreement were not supported by substantial evidence.

“In the Planning Board’s denial, it focused on the installation of cables on the outside of the Proposed Site in determining that the wireless facility would ‘impact the historic integrity’ of the Proposed Site. … T-Mobile argues that this reasoning does not consider the fact that wire covering had not been completed because ‘T-Mobile stopped work before completion at the behest of [Barnstable].’ … Further, photos were submitted to the Planning Board that showed the Proposed Site both before and after the installation of the telecommunications facility that appeared to show no aesthetic changes to the structure and there is no contrary evidence in the record to suggest otherwise. … The Massachusetts Historical Commission also determined that installing the wireless facility at the Proposed Site would ‘have ‘no adverse effect’ on significant historic or archaeological properties.’ … With this evidence before the Planning Board, this Court cannot conclude that the Planning Board’s denial of the application for regulatory agreement based on aesthetic impacts was based on substantial evidence.

“To support the Planning Board’s second basis for denial of the application, it stated that inbuilding residential coverage was adequate in the ‘problem area.’ … Notably, the Planning Board appears to have misinterpreted the evidence regarding the area in which T-Mobile has identified a coverage gap. The Planning Board conflates the ‘problem area’ with the ‘search ring’ outlined on maps of the area showing coverage. … The ‘search ring,’ however, only indicates a smaller portion of the overall coverage gap area within which engineers determined that the wireless facility must be located to adequately remedy the larger coverage gap. … The coverage maps indicate that there is currently a gap in coverage at the 2100 MHz band, limiting coverage to only in-car service. … The gap shown on the maps was corroborated by testimony from T-Mobile’s engineers and data from ‘drive tests’ that tested the quality of coverage throughout the area. … Additionally, CityScape, the independent consultant hired by Barnstable to evaluate T-Mobile’s proposal, confirmed that ‘indoor levels are spotty’ across all frequencies and that, regarding the 2100 MHz band, which CityScape noted ‘is important for T-Mobile’s service,’ coverage ‘is limited to in-vehicle in most places and outdoor only in some areas.’ … CityScape ultimately concluded that ‘a new site within the Search Ring is needed and justified for T-Mobile.’ … The Planning Board’s error in conflating the search ring with the coverage gap area, considered alongside the evidence submitted by both T-Mobile and CityScape, lead to the conclusion that the Planning Board’s denial based on adequate in-building residential coverage was not supported by substantial evidence.

“The Planning Board’s third and fourth reasons for denying the application for a regulatory agreement are based upon its determination that T-Mobile had failed to submit sufficient evidence regarding the inadequacy of alternate sites for the wireless facility. … Regarding the Water Tower specifically mentioned by the Planning Board as a potential site, T-Mobile provided coverage maps indicating that locating the wireless facility at the Water Tower would not provide the necessary coverage to remedy the gap. … There is no evidence in the record contradicting this conclusion. Further, Defendants do not dispute that a representative from CityScape testified that the Water Tower is located too far away from the search ring to adequately address the coverage gap. … Defendants also do not dispute CityScape’s conclusion that the Proposed Site is the only viable location for the wireless facility. … Additionally, Defendants admit that they cannot identify an alternative location for the wireless facility that would adequately remedy the coverage gap. … The Planning Board’s denial based on a lack of evidence regarding alternative sites is not based on substantial evidence in the record. Each of the reasons enumerated in the Planning Board’s denial of the application for regulatory agreement falls short as, based on a review of the record before the Planning Board, the reasoning is not supported by substantial evidence. …

“T-Mobile argues that the appropriate remedy in this case is an order mandating that Defendants issue all necessary permission to conclude installation and operation at the Proposed Site. … Having found in favor of T-Mobile on the violations of the TCA, Counts I and II, as indicated by counsel for Defendant at the motion hearing, injunctive relief compelling the Planning Board and Town to approve execution of a regulatory agreement is the only measure needed to accomplish this purpose. Accordingly, the Court orders that T-Mobile file a proposed order of judgment reflecting the injunctive and declaratory relief that they seek by July 8, 2020.”

T-Mobile Northeast LLC v. The Town of Barnstable, et al. (Lawyers Weekly No. 02-270-20) (20 pages) (Casper, J.) (Civil Action No. 19-cv-10982) (June 17, 2020).

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