Zoning – Telecommunications Tower – Timely Action – Emergency Repairs

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Where (1) the defendant town of Barnstable’s zoning board denied the plaintiffs’ requests for a special permit and a variance for a telecommunications tower and (2) the plaintiffs have responded by filing suit under the Telecommunications Act of 1996, the parties’ cross-motions for summary judgment should be denied because question exists as to whether the zoning board acted upon the plaintiffs’ applications within a reasonable time as required by the Act.

Further, the plaintiffs’ request for a injunctive relief permitting them to perform emergency repairs to the existing tower is denied.

Special Permit/Variance

“The Telecommunications Act of 1996 generally preserves the authority of state and local governments over land use and zoning issues that may arise with respect to the siting of towers for personal wireless communications services, but nonetheless imposes some particular limitations on that authority. State or local governments may not prohibit the provision of personal wireless services. 47 U.S.C. Sect. 332(c)(7)(B)(i)(II). To the extent that they act within their authority to regulate such matters, they may ‘not unreasonably discriminate among providers of functionally equivalent services.’ … In addition, local governments are affirmatively required to ‘act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed.’ …

“… Because the [Barnstable Zoning Board of Appeals] has not acted within the time prescribed under state law, the plaintiffs sum up, it has not acted ‘within a reasonable period of time’ in violation of the requirement of Sect. 332(c)(7)(B)(ii), and they are entitled to summary judgment to that effect.

“The necessary premise that the ZBA has not acted within the time limits applicable under state law is true, however, only if the running of the applicable time periods has not been suspended by the discretionary referral of the issue to the [Cape Cod] Commission. The Town and the Commission take the position that a discretionary referral suspends the ‘local time clock’ just as a mandatory referral does. The plaintiffs contend that this proposition is in error: that a discretionary referral does not suspend the running of the clock, and as a consequence the clock has run out on the defendants’ opportunity to deny the applications.

“Resolving the question requires construing the Cape Cod Commission Act, 1990 Mass. Acts ch. 716, in the absence of directly controlling legal authority from the state courts. In such a circumstance, the task of a federal court is to ‘determine what the outcome ofthe case must be unless the state court of last resort chooses to overrule or modify its decisions most nearly in point with respect to the precise issues presented by the pending case.’ … In other words, the federal court does not approach the matter guided by its own lights, but by the signals that may be discerned from the body of state precedents. …

“[T]he Cape Cod Commission Act is not entirely silent about tolling local time periods during review. It expressly provides for such tolling during the Commission’s review of a mandatory referral: ‘The suspension of municipal agency review shall extend all constructive grant periods for municipal agencies for a period equal to the duration of commission review, such periods to resume running after a final commission decision is rendered.’ 1990 Mass. Acts ch. 716, Sect. 12(h). There is no such tolling provision expressed in the portion of the Act that authorizes discretionary referrals. …

“The plaintiffs argue that the drafters of the statute plainly provided for tolling in one circumstance and just as plainly omitted to provide for it in a separate, but closely related, circumstance. The omission should not be held accidental or unintentional, the plaintiffs say, and it should be respected. It might be a wiser policy to toll the time periods for all referrals, but the drafters ofthe statute evidently chose otherwise, and the statute cannot be redrafted in court to make it ‘better.’

“The argument is a respectable one, and if the matter were to be decided in accordance with prevailing principles for interpreting federal statutes, it might be accepted. … The task, however, is to decide the matter as the Massachusetts courts would, and it is this Court’s judgment that the Massachusetts courts would interpret the statute to require tolling for discretionary referrals as well as mandatory. …

“[T]his Court concludes that the premise of the plaintiffs’ summary judgment motion is faulty. The defendants have not failed to act on the pending applications within the time limits set by Massachusetts law, because those limits have been tolled pending the Commission’s consideration of the discretionary referral of the DRI [development of regional impact]. Consequently, it cannot be said as a matter of law that the defendants failed to act ‘within a reasonable time’ as required by Sect. 332(c)(7)(B)(ii), and the plaintiffs’ motion for summary judgment under Count I of the Amended Complaint must be denied.

“It does not follow, however, that since the defendants’ consideration was not unreasonable as a matter of law, it must necessarily have been reasonable. Circumstances might readily be imagined in which a local authority might delay consideration of an application for a permit unreasonably even though the outside time limits under state or local law had not yet expired. The matter is a factual one, not to be resolved on the defendants’ present motion for summary judgment that comes so early in the case. Their motion, likewise, is denied.”

Emergency Repairs

“In the second action, the plaintiffs claim that the defendants’ refusal to issue an emergency permit to allow repair of the tower violates both the Telecommunications Act of 1996, 47 U.S.C. Sect. 332(c), and the Civil Rights Commission Act of 1983, 42 U.S.C. Sect. 1983. They have moved for a preliminary injunction requiring the Town to grant them authorization to proceed with emergency repairs to the tower. …

“The plaintiffs argue that the Town’s delay and ultimate refusal to issue an emergency permit to repair the tower in the spring of 1998 violated the Telecommunications Act in three ways. First, they claim it amounted to a prohibition of personal wireless services in violation of 47 U.S.C. Sect. 332(c)(7)(B)(i)(II). Their claim in this respect rests on the proposition that denying a particular provider’s request is equivalent to ‘prohibiting’ that provider’s services. However, the portion of the Act invoked does not pertain to individual decisions on particular applications, but rather to a town’s ‘general ban or policy’ prohibiting all personal wireless services. … There is no allegation (or evidence) of a general ban.

“Next, the plaintiffs say that the Town delayed unreasonably in acting on the application for the emergency permit, in violation of Sect. 332(c)(7)(B)(ii). The plaintiffs submitted the application on April 17, 1998. … Some negotiations and correspondence followed concerning conditions that the Town wanted the plaintiffs to acknowledge. When the negotiations failed, [building commissioner Ralph] Crossen wrote to the plaintiffs on June 18, 1998, denying the application. … In all the circumstances, a ‘delay’ of two months from application to denial does not seem unreasonable.

“The plaintiffs also claim that the Town’s attempt to coerce the plaintiffs into agreeing to improper conditions as a price for the permit violated Sect. 332(c)(7)(B)(iii), which requires municipal decisions denying requests such as theirs to be ‘in writing and supported by substantial evidence contained in a written record.’ Crossen’s letter conveying the decision to the plaintiffs satisfied the requirement that the decision be in writing. In it he identified the reasons the Town would not issue the permit: ‘The reason for this denial is your insistence that you intend to add new uses to the tower after repairs; something that, in your case, is not lawful due to the nature of your special permit. In order to be eligible for a building permit an application must be in conformance with zoning and the building code. To be in conformance with zoning, the intended uses (based on your correspondence and calls from companies seeking space that have talked to you) must be considered.’ … In other words, the basis for the denial was the plaintiffs’ unwillingness to commit not to add new users to the tower. That unwillingness was a matter of written record. It does not appear likely that the plaintiffs can establish a violation of Sect. 332(c)(7)(B)(iii).

“It seems that the true ground of the plaintiffs’ grievance is that the Town was conditioning the grant of the emergency permit on concessions it was not entitled to extract. That may or may not provide a basis for relief under state law, but it does not run afoul of the limited federal regulation of this area.

“In sum, the plaintiffs have fallen far short in their effort to demonstrate a likelihood of success on the merits of their claims. Their failure in that respect similarly condemns their request for an injunction to unsuccess.”

Flynn, et al. v. Burman, et al. (Lawyers Weekly No. 02-248-98) (15 pages) (O’Toole, J.) (USDC) (Civil Action No. 97-12531-GAO).