United States Court of Appeals
For the First Circuit
____________________
No. 01-2472
NATIONAL TOWER, LLC; OMNIPOINT COMMUNICATIONS, INC.,
Plaintiffs, Appellees,
v.
PLAINVILLE ZONING BOARD OF APPEALS, FRANK A. FREY JR.,
WALTER S. LEWICKI, CLAY CONRAD, PHILIP SIAS, LELAND SULLIVAN,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
____________________
Before
Selya, Lynch, and Howard, Circuit Judges.
____________________
John P. Lee with whom Maureen A. Lee was on brief for
appellants.
Brian C. Levey with whom Marisa L. Pizzi and Bowditch &
Dewey, LLP were on brief for appellees.
____________________
July 18, 2002
____________________
LYNCH, Circuit Judge. The federal courts now routinely
hear cases brought under the Telecommunications Act of 1996 by
those who wish to construct cellular antenna towers and have been
denied permission to do so by local town officials. Here, the
Zoning Board of Appeals of the Town of Plainville, Massachusetts
denied the needed zoning permits and variances to National Tower
and Omnipoint Communications (collectively "Omnipoint").
Omnipoint sued under 47 U.S.C. § 332(c)(7)(B)(v), which
provides a federal cause of action to a person adversely affected
by a state or local decision that violates the 1996 Act. It also
raised claims under state law and under 42 U.S.C. § 1983. The
district court found that defendants had violated the Act, and
granted Omnipoint partial1 summary judgment. Nat'l Tower, LLC v.
Frey, 164 F. Supp. 2d 185 (D. Mass. 2001). The court concluded
that the actions of the board effectively prohibited the provision
of seamless wireless service in Plainville in violation of 47
U.S.C. § 332(c)(7)(B)(i)(II). As a remedy, the court ordered
issuance of the variances and permit. We affirm.
I.
Because the district court granted summary judgment, we
review the facts taking all inferences in the light most favorable
to the board. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40,
42 (1st Cir. 2002). The material facts as set forth in the
1
Although the district court's order granted only partial
summary judgment, this court determined on December 14, 2001, that
the judgment was effectively final, and therefore permitted this
appeal to proceed.
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district court's opinion are essentially undisputed, and so we
adopt them and add some others from the record. The parties do,
however, dispute the inferences to be drawn from those facts.
In June 2000, Omnipoint applied to the board for
variances from the dimensional by-laws (prohibiting both multiple
uses on one lot and structures over two stories) and from the by-
law prohibiting radio transmission use. Omnipoint needed these
variances in order to erect a 170-foot-tall "lattice" transmission
tower on approximately 5000 square feet of a two-and-one-half-acre
parcel at 75 Washington Street in Plainville. The site abuts
property owned by the New England Power Company, which contains
electric transmission lines and poles and is developed for public
utility use.
Omnipoint’s objective was to close a two-mile (non-
contiguous) gap in its cellular coverage along the heavily traveled
highway Routes 1 and 106. In the vicinity of the coverage gap,
approximately 17,000 vehicles travel daily along Route 1 and 10,000
along Route 106. Because of the gap in coverage, a cellular user
either cannot connect or cannot maintain a connection. The
proposed site lies in a General Commercial District (a "CB
District"), and is partially covered by a Watershed Protection
Overlay District. Under the town by-law, a radio tower is a
prohibited use in a CB District and requires a special permit in a
Watershed Protection District. Plainville, Mass. Zoning By-law ch.
III, § 2.8 (1999). Moreover, a structure in a CB District may not
exceed two stories in height. An engineer working for Omnipoint
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testified, and the board does not dispute, that a two-story tower
in compliance with the by-law would not close the gap. The board
may, however, grant both use and dimensional variances for reasons
consistent with the state zoning law. See Mass. Gen. Laws ch. 40A,
§§ 10, 14 (2000). Similarly, the board may grant a special use
permit in a Watershed Protection District so long as it makes
certain findings, primarily that there will be no adverse impact on
the watershed as a result. By-law ch. III, § 3.12.5.
Omnipoint conducted computer simulations and drive tests
to identify possible sites for a tower to rectify the break in its
coverage. An investigation of the sites thus identified led to the
selection of the disputed site. All other possible sites were in
the same general area and therefore subject to the same zoning
restrictions.2 This evidence was submitted to the board, primarily
through Omnipoint’s application for the use and dimensional
variances. In its initial application Omnipoint characterized its
tower as a wireless communications facility. It sought the needed
permits and variances, which the by-law permitted the town to
grant. See By-law ch. III, § 1.4.3.
The board published the requisite notice in a local
newspaper, characterizing the application as being for a "radio
tower." It held a hearing to consider the application on July 18.
Midway through the hearing, the board determined that it had been
mistaken in publishing notice of a proposed siting of a "radio
2
The record does not make clear whether the other
potential sites were within the Watershed Protection District.
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tower" on the site. The board voted to suspend the hearing and
readvertise the tower as a "public utility" (a permitted use in a
CB District). The hearing resumed on September 26, with Omnipoint
pressing its case for a dimensional variance. Omnipoint presented
evidence of the coverage gap and evidence that it said showed there
were no other suitable sites. The board at the hearing articulated
no objections to the application, although several owners of
abutting property did object.
Meanwhile, on August 24, 2000, Omnipoint filed an
application for a special watershed permit. The hearing on this
application was held on October 3, 2000. As at the hearing on the
application for the dimensional variance, the board gave no
indication that it might not grant the permit.
On October 17, the board unanimously rejected both
applications. The board sent Omnipoint two letters dated October
27 explaining its decision. As to the request for the variances,
the first letter stated:
In denying the variances, the Board found that in a CB
Zoning District a wireless communications facility is not
a use permitted as a matter of right or a use permitted
by special permit and that a use variance, which would be
required for the construction of such is not permitted
under the Zoning By-Law. In this respect, the Board
notes that Chapter 40A, Section 10 of the General Laws,
provides in relevant part as follows:
"Except where local ordinances or by-laws shall
expressly permit variances for use, no variance
may authorize a use or activity not otherwise
permitted in the district in which the land or
structure is located."
The Zoning By-Law makes no provision for use variances.
As the basis for its denial of the variances is that it
has no legal authority to grant them, the Board made no
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further findings with respect to other objections made to
the construction of such facility, particularly as to
whether there exists any other location in the Town where
such construction is permitted under the Zoning By-Law.
The reasons given in the second letter for the rejection of the
watershed permit were as terse:
On this date, the Board denied the variances requested by
the applicant on the grounds that in the underlying CB
Zoning District a wireless communications facility is not
a use permitted as a matter of right or a use permitted
by special permit and that a use variance, which would be
required for the construction of such facility, is not
permitted under the Zoning By-Law. The construction of
a wireless communications facility is clearly not
permitted in the underlying CB Zoning District.
Accordingly, it is not permitted by special permit in the
overlay Watershed Protection District as the proposed use
must meet the zoning requirements of both the underlying
district and the overlay district.
This lawsuit, and appeal, followed.
II.
The board appeals the order against it, making three
arguments. It says the district court erred in granting
Omnipoint’s motion for partial summary judgment on the facts in
this case because, first, the board’s decisions do not prohibit or
have the effect of prohibiting the provision of wireless services
in the town; second, the board’s decisions are supported by
substantial evidence in a written record; and, third, the board’s
decisions do not unreasonably discriminate among providers of
functionally equivalent services.
We reach only the first two of these arguments.
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A. General Standards
The Telecommunications Act is an exercise in cooperative
federalism and represents a dramatic shift in the nature of
telecommunications regulation. See generally Cablevision of Boston
v. Pub. Improvement Comm'n, 184 F.3d 88, 97-100 (1st Cir. 1999).
The Act attempts, subject to five limitations, to preserve state
and local authority over the placement and construction of
facilities. 47 U.S.C. § 332(c)(7)(A)-(B) (1994 & Supp. II 1996);
Town of Amherst, N.H. v. Omnipoint Communications Enters., 173 F.3d
9, 12 (1st Cir. 1999). Several of those limiting provisions apply
to this case.
The first relevant limitation, set forth in subsection
(B)(i), provides that in regulating the placement and construction
of facilities, a 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).
It is undisputed that in this case there is a significant coverage
gap. The argument that no tower is needed is unavailable to the
town. Several courts have held that local zoning decisions and
ordinances that prevent the closing of significant gaps in the
availability of wireless services violate the statute. See
Cellular Tel. Co. v. Zoning Bd. of Adjustment, 197 F.3d 64, 68-70
(3d Cir. 1999); Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643
(2d Cir. 1999); Omnipoint Communications MB Operations, LLC v. Town
of Lincoln, 107 F. Supp. 2d 108, 117 (D. Mass. 2000). Finding
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their reasoning persuasive, we now join their number and will
analyze Omnipoint's claim with that standard in mind.
The second limitation requires the local government 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 . . . taking into
account the nature and scope of such request." 47 U.S.C.
§ 332(c)(7)(B)(ii). Similarly, a reviewing court must hear and
decide the action "on an expedited basis." Id. § 332(c)(7)(B)(v).
The third states that the denial of a request must be in writing
and supported by substantial evidence contained in a written
record. Id. § 332(c)(7)(B)(iii). The fourth authorizes judicial
review of either final action or a failure to act by the local
government that is inconsistent with statutory requirements and
limitations. Id. § 332(c)(7)(B)(v).3
There is tension between two objectives of the Act: the
objective "to facilitate nationally the growth of wireless
telephone service," and the objective "to maintain substantial
local control over siting of towers"; this and other courts have
attempted to achieve the proper balance. Amherst, 173 F.3d at 13.
The principles announced in our opinions provide guidance as to
that balance. The first limitation -- that a town may not through
its decisions have "the effect of prohibiting" wireless service --
3
Another provision prohibits unreasonable discrimination
among providers of functionally equivalent services. Id.
§ 332(c)(7)(B)(i)(I). Although Omnipoint alleges such
discrimination, we do not need to reach this issue.
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raises the question whether the statute refers only to a blanket
ban or whether it may, depending on the facts, encompass individual
application decisions. This court has resolved that question and
read the statute to encompass individual decisions:
[o]bviously, an individual denial is not automatically a
forbidden prohibition violating the "effects" provision.
But neither can we rule out the possibility that -- based
on language or circumstances -- some individual decisions
could be shown to reflect, or represent, an effective
prohibition on personal wireless service.
Id. at 14. The effective prohibition clause can be violated even
if substantial evidence exists to support the denial of an
individual permit under the terms of the town's ordinances. The
burden is on the proponent of the tower to show "that further
reasonable efforts are so likely to be fruitless that it is a waste
of time even to try." Id.
Similarly, this court has resolved the tension between
the recognition that local authorities are frequently lay member
boards without many resources and the recognition that the Act
provides for judicial review based on a written decision, supported
by "substantial evidence" in a "written record." The balance
struck is that we do not require formal findings of fact or
conclusions of law in a board's written decision. Nor need a
board's written decision state every fact in the record that
supports its decision. S.W. Bell Mobile Sys. v. Todd, 244 F.3d 51,
59-60 (1st Cir. 2001). By the same token, the board, in its
decision, may not hide the ball. Its written denial must contain
a sufficient explanation of the reasons for the denial "to allow a
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reviewing court to evaluate the evidence in the record supporting
those reasons." Id. at 60.
We now make explicit another aspect of judicial review of
local decisions. A board may not provide the applicant with one
reason for a denial and then, in court, seek to uphold its decision
on different grounds. That result follows not only from the
requirement that the decision provide an adequate explanation to
support judicial review, but also from the background understanding
of the model of judicial review of administrative actions against
which the Act was enacted. See H.R. Conf. Rep. No. 104-458, at 208
(1996), reprinted in 1996 U.S.C.C.A.N. 124, 223 ("The phrase
'substantial evidence contained in a written record' is the
traditional standard used for judicial review of agency actions.").
That model customarily prohibits a court from affirming an agency
on grounds other than those the agency gave in its decision. FEC
v. Akins, 524 U.S. 11, 25 (1998); Motor Vehicle Mfrs. Ass'n of U.S.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983); SEC v.
Chenery Corp., 318 U.S. 80, 88 (1943) ("If an order is valid only
as a determination of policy or judgment which the agency alone is
authorized to make and which it has not made, a judicial judgment
cannot be made to do service for an administrative judgment.").
The analogy of a local zoning board to a federal
administrative agency for judicial review purposes has its limits,
however. When a federal court refuses to uphold a federal agency's
decision based on reasons the agency has advanced only after the
fact, the court will ordinarily remand to the agency for further
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action. If the agency chooses, it may then reach the same result
and defend it with new reasons. See Akins, 524 U.S. at 25 (noting
that a reviewing court unsatisfied with the reasons given for an
agency's decision "will set aside the agency's action and remand
the case -- even though the agency . . . might later, in the
exercise of its lawful discretion, reach the same result for a
different reason"). Courts remand to agencies in such cases
because, among other reasons, Congress has committed to the agency
the task of policymaking where the governing statute is not clear.
See Chenery, 318 U.S. at 88 ("For purposes of affirming no less
than reversing its orders, an appellate court cannot intrude upon
the domain which Congress has exclusively entrusted to an
administrative agency.").
Although Congress in the Telecommunications Act left
intact some of local zoning boards' authority under state law, we
do not think it meant to provide for them as much deference as a
federal agency receives, nor to give them new policymaking
authority under the Act. The statutory requirements that the board
act within "a reasonable period of time," and that the reviewing
court hear and decide the action "on an expedited basis," indicate
that Congress did not intend multiple rounds of decisions and
litigation, in which a court rejects one reason and then gives the
board the opportunity, if it chooses, to proffer another. Instead,
in the majority of cases the proper remedy for a zoning board
decision that violates the Act will be an order, like the one the
district court issued in this case, instructing the board to
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authorize construction. See Brehmer v. Planning Bd., 238 F.3d 117,
120-22 (1st Cir. 2001) (discussing and approving decisions by the
majority of district courts granting injunctive relief in
Telecommunications Act cases); Cellular Tel. Co. v. Town of Oyster
Bay, 166 F.3d 490, 497 (2d Cir. 1999) (same).
In short, a board’s decision may not present a moving
target and a board will not ordinarily receive a second chance. In
addition to preventing undue delay, this approach gives the
applicant a fair chance to respond to the board’s reasons, and
perhaps satisfy the board, without first having, literally, to make
a federal case out of the dispute. Thus, we will not uphold a
board's denial of a permit on grounds that it did not present in
its written decision. As we discuss later, however, the
appropriate remedy in that situation may not always be an
injunction, but may sometimes be a remand, depending on the nature
of the board's decision and the circumstances of the case.
Apart from its instructions to local zoning authorities,
Congress has also specified the terms of judicial review. These
terms themselves amount to an allocation of decisional authority
between the local boards and the federal courts. The standards by
which district courts, and this court, review state and local
decisions under the Act are not unitary. The scope of judicial
review depends on the nature of the issue presented and the
statutory limitation involved.
The anti-prohibition, anti-discrimination, and
unreasonable delay provisions, 47 U.S.C. § 332(c)(7)(B)(i)-(ii),
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present questions that a federal district court determines in the
first instance without any deference to the board. Any or all of
these questions may well require evidence to be presented in court
that is outside of the administrative record compiled by the local
authority. Amherst, 173 F.3d at 16 n.7. If the district court
then grants summary judgment, our review of the grant is de novo as
well. Id. at 15. If the district court makes evidentiary findings
on such claims that go beyond the administrative record, then we
will review its factual findings for clear error and its legal
conclusions de novo.
By contrast, where judicial review is on the issue of
whether the board’s written decision is supported by substantial
evidence in the record, then judicial review is confined to the
administrative record, absent a claim of procedural irregularity.
The board, then, not the court, is the focus of the decisionmaking
process. In this inquiry, the substantial evidence standard of
review for the district court is the same that the courts have
applied in certain reviews of administrative action. S.W. Bell,
244 F.3d at 58-59. "Substantial evidence" review is that standard
articulated in Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951),
and applied in Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713 (1st
Cir. 1999):
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." The reviewing court must take into account
contradictory evidence in the record. But "the
possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency's
finding from being supported by substantial evidence."
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Id. at 718 (quoting Universal Camera, 340 U.S. at 477, and Am.
Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 523 (1983))
(citations omitted).
Thus, if the issue is simply one of whether the board's
decision is supported by substantial evidence, the courts defer to
the decision of the local authority, provided that the local board
picks between reasonable inferences from the record before it.
Because the reasonableness of inferences is a legal and not a
factual question, this court gives no special weight to the
district court’s decision on a substantial evidence issue and
applies the same standard of deference to the board as does the
district court. S.W. Bell, 244 F.3d at 59.
B. Application of the Standards
We start with the board’s reasons for its denial, quoted
verbatim earlier. It is difficult to know precisely what the board
meant by its legal jargon and its apparently purposeful obscurity.
The board says that it did not grant the dimensional variances
because it lacked the legal authority to do so, and that it denied
the watershed permit because it denied the variances. The board
specifically refused to make findings as to any other objections,
or to make a finding on whether there exists any other location
where such construction would be permitted under the by-law. The
board did not say anything about the tower’s status as a public
utility or as a radio tower. Instead, as we understand the order,
the board ruled that its by-laws did not allow for wireless
communications facilities in CB districts either as a matter of
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right or a use permitted by a special permit. Citing Mass. Gen.
Laws ch. 40A, § 10, therefore, the board said it lacked the power
to authorize the use because the by-law did not expressly permit
variances for wireless communications facilities.
Consulting the by-law, however, we find that it does
state that a radio tower is not permitted in a CB district, even by
special permit, but that a public utility is permitted in such a
district with a special permit. By-law ch. III, § 2.8. Viewing
the board's actions in the best light possible, then, it is
possible that when it said "wireless communications facility" in
the October 27 letters, it meant "radio tower." Perhaps the board
meant to revisit its July 18 decision (which had recharacterized
the application as for a public utility rather than as for a radio
tower) and to re-recharacterize the application as for a radio
tower rather than as for a public utility. That is the explanation
presented by counsel for the board, who suggests that the district
court must resolve whether Omnipoint's tower would be a radio tower
or a public utility, and that this is a genuinely disputed issue of
material fact that precludes summary judgment for Omnipoint at
this time.
There are two obvious problems with this position: one
factual and one legal. The factual problem is that the board did
not say this (perhaps it was too embarrassing a position to take)
and it was the board that told Omnipoint it would republish the
application as a public utility application rather than as a radio
tower application. As Omnipoint says, the board’s position means
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it would be left without any alternative. Omnipoint has tried its
application both ways -- as a radio tower and as a public utility
-- and it was blocked each time. The legal problem is that this is
exactly the sort of behavior by a board that demonstrates that it
would effectively prohibit the provision of gap-covering wireless
services. Setting out criteria under the zoning law that no one
could ever meet is an example of an effective prohibition.
Amherst, 173 F.3d at 14. The Telecommunications Act preempts such
by-law strictures. Accordingly, it no longer matters to our
inquiry under the Telecommunications Act whether Omnipoint's
proposed tower is a radio tower or a public utility under the by-
law. Neither classification will save the board's decision.
Counsel for the board then offers a different rationale:
that Omnipoint failed to satisfy the board that there were no
better alternative locations. A single denial of an application
based on a supportable finding that another location was available
would almost certainly fall short of an effective prohibition of
wireless services. If the board had in fact made such a finding,
it might also be difficult for us to say that the board’s decision
to deny was unsupported by substantial evidence.4 But the board
4
Engineer Elijah Luutu, Omnipoint’s expert, said that he
was unaware of any other feasible location, but used very qualified
language:
I am informed and believe that for reasons such as the
inability to obtain a lease or zoning compliance, among
others, there are no other feasible sites within or
without the Town of Plainville which would allow
Voicestream to provide complete service along Routes 1
and 106.
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did not take that position in its decision. Instead, it chose as
its ground that it had no legal power to authorize a wireless
communication tower anywhere in the CB district, regardless of the
existence of any alternative site. We judge its decision on those
terms.
The district court appears to have considered the lack of
evidence from the board5 about other alternative sites as evidence
that further application to the board was futile. On the "effective
prohibition" issue, district courts may take evidence beyond the
record. Still, even in that context, it is problematic whether
courts should rely on the board’s failure to come forward with such
evidence in court. We doubt that Congress intended local zoning
boards to pay for experts to prove that there are alternative sites
for a proposed tower, simply to defend themselves from an easily
made accusation in court that an individual denial of a permit
amounts to an effective prohibition. See S.W. Bell, 244 F.3d at 63
("For a telecommunications provider to argue that a permit denial
is impermissible because there are no alternative sites, it must
develop a record demonstrating that it has made a full effort to
The board might well have been justified in finding insufficient an
assertion based on information and belief. Such a qualification
would make Luutu's statement inadmissible, for example, to support
summary judgment in federal court. Fed. R. Civ. P. 56(e).
5
Where the question is one of substantial evidence,
judicial review is based on the written record before the board and
there would be no basis to require evidence from the board. The
Telecommunications Act firmly keeps initial responsibility for the
decision with the board and limits judicial review. It does not
provide for a new trial before the district court of issues
initially committed to boards, such as whether there are
alternative feasible sites.
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evaluate the other available alternatives and that the alternatives
are not feasible to serve its customers."). The board gets no
comfort from this, however. It expressly refused to decide the
adequacy of Omnipoint’s evidence about the lack of alternative
sites. As we have discussed earlier, we will not uphold a board’s
decision on grounds that were not stated to the applicant.
Since the board's order cannot be upheld on the grounds
it stated, the question becomes one of what should be the
appropriate remedy: remand to the board, or affirmance of the
injunction. While we can conceive of circumstances in which a
remand may be in order -- for example, an instance of good faith
confusion by a board that has acted quite promptly -- this case is
not a candidate for remand to the board.
Like the district court, we think the only fair inference
from the board’s words and actions in this case is that whether or
not there is a coverage gap, and whether or not there are
alternative sites that could fill that coverage gap, the board is
not prepared to permit construction on Omnipoint's chosen site. As
a result, any further reasonable efforts by Omnipoint are so likely
to be fruitless that it is a waste of time even to try. Thus, the
record compels the conclusion that the board has effectively
prohibited the provision of wireless services in violation of the
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Act.6 That justifies the remedial order entered by the
district court.7
III.
For the reasons given, the judgment of the district court
is affirmed. Costs are awarded against the defendants.
6
As the district court noted, there is no question in this
case of a potential inconsistency between the need to protect
sensitive historical or environmental sites and the "no alternative
site" theory of effective prohibition. Nat'l Tower, 164 F. Supp.
2d at 188 n.2. Although the site is technically within a Watershed
Protection District, at no stage of the proceedings has the board
invoked any substantive environmental concerns. We reserve the
question of the proper analysis were such a conflict present.
7
The district court ordered the board "to issue within
thirty (30) days of this Order the dimensional and use variances
and special permit necessary for the construction of plaintiffs'
170 foot lattice tower and maintenance facility on the locus at 75
Washington Street in Plainville." Nat'l Tower, 164 F. Supp. 2d at
190. It added that "[t]he Board may condition the issuance of the
variances and permit on plaintiffs' compliance with such reasonable
environmental conditions as are necessary to insure the protection
of the Town's watershed during the construction and operation of
the tower." Id.
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