Green Mountain Realty Corp. v. Leonard

United States Court of Appeals
For the First Circuit

No. 13-2163

GREEN MOUNTAIN REALTY CORP.,

Plaintiff, Appellant,

v.

JOHN S. LEONARD, Member and Chairman of Town of Milton Board of
Appeals; SARA L. HARNISH, Member of Town of Milton Board of
Appeals; VIRGINIA M. DONAHUE KING, Member of Town of Milton Board
of Appeals; BRIAN M. HURLEY, Member of Town of Milton Board of
Appeals; JEFFREY B. MULLAN, Member of Town of Milton Board of
Appeals; FRANCIS C. O'BRIEN, Member of Town of Milton Board of
Appeals; EMANUEL ALVES, Member of Town of Milton Board of
Appeals; STEVEN M. LUNDBOHM, Member of Town of Milton Board of
Appeals; TOWN OF MILTON, MASSACHUSETTS; MILTON CONSERVATION
COMMISSION; MILTON BOARD OF APPEALS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Thompson, Circuit Judge,
Souter, Associate Justice,*
Stahl, Circuit Judge.

Robert D. Ciandella, with whom Robert M. Derosier and Donahue,
Tucker & Ciandella, PLLC, were on brief, for appellant.
Brandon H. Moss, with whom John P. Flynn and Murphy, Hesse,
Toomey & Lehane, LLP were on brief, for appellees.

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
April 23, 2014
 THOMPSON, Circuit Judge. This dispute over the location

and height of a proposed cellular phone tower has been ongoing

since 2009 and is now before us for the second time. In a

nutshell, appellant Green Mountain Realty Corp. ("GMR") originally

sought to erect a 140-foot cell phone tower between Interstate

Route 93 South ("I-93") and the on-ramp by Exit 3 in Milton,

Massachusetts. The tower's asserted purpose was to fill a

significant gap in the wireless coverage provided by T-Mobile's and

MetroPCS's networks. Milton's Board of Appeals ("BOA") and

Conservation Commission ("MCC")--the two local entities whose

approval GMR needed before it could begin construction--rejected

the 140-foot proposed tower. GMR turned to the federal courts,

asserting the denials were preempted by federal law and naming as

defendants the BOA, the MCC, the individual members of both, and

the Town of Milton itself (collectively, "Milton"). The district

court granted summary judgment to Milton, finding that the BOA's

and MCC's decisions were supported by substantial evidence in the

administrative record, and GMR appealed to us.

Addressing this matter the first time, we upheld the

"substantial evidence" findings but remanded to the district court

with instructions to consider whether the local authorities'

denials resulted in an "effective prohibition" of personal wireless

services in contravention of the federal Telecommunications Act of

1996, 47 U.S.C. § 332(7)(B)(i)(II). The parties filed cross-

-3-
motions for summary judgment upon their return to the district

court. After holding a hearing, the district court learned that T-

Mobile and MetroPCS had merged into a single company--T-Mobile

USA--and ordered the parties to brief whether and how the merger

affected the pending cross-motions.

GMR then submitted evidence indicating that, as a result

of the merger, a shorter tower would suffice to eliminate the

coverage gap in T-Mobile's network. Milton took the position that

GMR must file a brand new application, as the original request was

for a 140-foot tower only. The district court denied GMR's motion

for summary judgment and granted Milton's, thereafter entering

judgment in favor of Milton and triggering GMR's second appeal to

this Court.

Having carefully reviewed the record, we conclude the

district court erred when it granted Milton's motion for summary

judgment. Based on the summary judgment record and the

supplemental materials bearing on the effective prohibition claim,

a reasonable finder of fact could have found that the BOA's and

MCC's denials rejected the only feasible plan for remedying the

coverage gap and, therefore, constituted an unlawful effective

prohibition of T-Mobile's provision of wireless services unless GMR

was allowed to build a cell phone tower that was somewhere between

90 and 120 feet tall. Accordingly, we affirm the district court's

denial of GMR's motion for summary judgment, reverse its grant of

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summary judgment in favor of Milton, vacate the judgment in

Milton's favor, and remand for further proceedings consistent with

this opinion.

I.

BACKGROUND

We previously set forth many of the background facts in

Green Mountain Realty Corp. v. Leonard, 688 F.3d 40 (1st Cir.

2012). In order to provide context to the instant appeal, we

sketch the outline of what has already transpired, at least insofar

as is relevant here. Curious readers seeking additional details--

and they are myriad--should refer directly to our 2012 opinion.

a. The Initial Proposal

GMR is not a telecommunications provider. Instead, it

owns and manages personal wireless communications facilities

("PWCFs"), known in common parlance as cell phone towers. It makes

money by leasing space on those towers to wireless carriers, who in

turn place antennas on the towers to provide wireless coverage for

their customers. Since 2008, GMR has leased from the Commonwealth

of Massachusetts an unzoned, undeveloped, triangular plot of land

approximately 2,700 square feet in area and located between I-93

South and the on-ramp at Exit 3 ("the Site"). The Site is located

close to the Blue Hills Reservation and the Carisbrooke Road

neighborhood in the town of Milton.

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 GMR leased the Site with the intention of putting up a

cell phone tower to improve wireless coverage in the area around

Exit 3. Wireless carriers T-Mobile and MetroPCS had given

assurances to GMR, in the form of letters of intent, that they

would place antennas on the new tower. Both companies were

desirous of this location because it would allow them to improve

their wireless coverage around Exit 3, an area in which each had

identified a significant coverage gap that resulted in dropped

calls when customers entered the area and an inability to reliably

place calls from within the area of inadequate service. In order

to begin construction, however, GMR needed to win approval from

both the BOA and the MCC.

GMR applied to the BOA in May of 2009 for permission to

build a 140-foot cell phone tower on the Site. According to its

application, the height was necessary to accommodate video

equipment from the Massachusetts Highway Department, along with

five antenna mounts to be used by up to five different wireless

carriers. GMR also submitted evidence tending to show that both T-

Mobile and MetroPCS had significant coverage gaps in the area near

Exit 3 and that the Site was the only feasible location on which a

cell phone tower could be placed to fill in the gaps. There was

some community opposition to the proposal that appears to have been

based primarily on aesthetic concerns: the objectors were upset

that the tower would have been visible from multiple locations in

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the Blue Hills Reservation, as well as from within the Carisbrooke

Road neighborhood.

The BOA held several public hearings through the summer

of 2009, with objectors maintaining that "the need for the tower

did not outweigh the significant negative aesthetic effects."

Green Mountain Realty, 688 F.3d at 46. On August 19, 2009, the BOA

voted to deny the application and issued a written opinion on

September 24, 2009, which "emphasized the public opposition to the

proposed tower and the importance of protecting the character and

aesthetic beauty of the Blue Hills Reservation." Id. In a similar

vein, the BOA found the proposed 140-foot tower could be seen from

the Carisbrooke Road neighborhood and "would substantially detract

from the character of the neighborhood." Id. (internal quotation

marks omitted). The BOA further found that "existing [wireless]

coverage while not perfect is reasonable and adequate under all of

the circumstances." Id. (internal quotation marks omitted).

Finding that GMR failed to demonstrate its desired tower would

"promote[] the safety, welfare, or aesthetic interests of the Town

of Milton," the BOA concluded the proposal was "not in harmony with

the [zoning] Bylaw" and denied GMR's application. Id. (internal

quotation marks omitted).

While all this was going on, GMR was also attempting to

win approval from the MCC, another necessary prerequisite to

construction because the Site is considered to be in a riverfront

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area given its proximity to the Blue Hills River. Green Mountain

Realty, 688 F.3d at 47. The MCC ultimately denied GMR's

application on September 19, 2009, finding that it could not

approve the proposal given GMR's failure to provide it with any

information about potential alternative sites. Id. at 48. Like

the BOA, the MCC also cited aesthetic reasons: reiterating that it

has a role in preserving aesthetics, the MCC explicitly stated that

"the height of the tower was, and remains, an important factor for

consideration." Id. (internal quotation marks omitted). The MCC

further called GMR to task for supposedly failing to provide

requested data about whether a shorter tower would solve the

coverage gap. Id. It noted that because the Site was already in

a "degraded" condition as a result of I-93, the wetlands there "are

in greater need of protection, rather than less." Id. (internal

quotation marks omitted). Accordingly, and like the BOA before it,

the MCC denied GMR's application to build a 140-foot cell phone

tower. Id.

b. Federal Litigation Begins

GMR appealed to the district court, arguing that the BOA

and MCC decisions violated various provisions of the

Telecommunications Act. Green Mountain Realty, 688 F.3d at 48.

First, GMR argued that the two denials were not based on

substantial evidence in contravention of the requirement that

"[a]ny decision . . . to deny a request to place, construct, or

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modify personal wireless service facilities shall be . . .

supported by substantial evidence contained in the written record."

Id. at 49 (quoting 47 U.S.C. § 332(c)(7)(B)(iii)) (internal

quotation marks omitted). GMR further argued that the denials ran

afoul of the Act's ban of local decisions that "prohibit or have

the effect of prohibiting the provision of personal wireless

services." Id. (quoting 47 U.S.C. § 332(c)(7)(B)(i)(II)) (internal

quotation marks omitted). Finally, GMR claimed the BOA's denial

exceeded its authority and was arbitrary and capricious, all in

violation of state law. Id.

After the parties conducted discovery, the district court

denied GMR's motion for summary judgment and granted Milton's

motion for summary judgment. Id. The court found that both

denials were supported by substantial evidence in the

administrative record. With respect to the BOA, the district court

found that GMR "failed to show that existing service was

inadequate" and did not "adequately explore alternative sites,"

that the BOA was justified in denying the application due to

aesthetic concerns, and that GMR "had not demonstrated that its

proposal was the only feasible plan." Id. The court upheld the

MCC's decision on the grounds that substantial evidence supported

its conclusion that the proposed construction would adversely

affect the surrounding wetlands. Id. The court did not separately

address GMR's claims that the MCC's decision also constituted an

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effective prohibition of wireless service and that the BOA's

decision should be overturned on state law grounds. Id.

On appeal, we upheld the district court's finding that

substantial evidence supported the BOA and MCC denials. Green

Mountain Realty, 688 F.3d at 44. However, this did not end the

matter. Even though supported by substantial evidence, the denials

could violate the Telecommunications Act if they resulted in the

effective prohibition of the provision of wireless services. See

id. at 57. After reviewing the record, we concluded that the

district court did not adequately consider GMR's federal claims,

and remanded for further proceedings, "leav[ing] it to the

discretion of the district court whether to evaluate the claims on

the current record or allow the parties to submit additional

evidence." Id. at 60-61.

c. Further Action in the District Court

Taking up the matter again, the district court provided

the parties with an opportunity to submit additional evidence with

respect to the effective prohibition claim. The parties developed

additional evidence and cross-moved for summary judgment. The

court heard oral arguments on May 15, 2013, and took the matter

under advisement.1 Before issuing its decision, the district court

1
The hearing consisted of legal arguments from counsel for
both sides based upon the documentary evidence submitted in support
of the pending summary judgment motions. To date, no evidentiary
hearing has ever been held in the district court.

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became aware that T-Mobile and MetroPCS had merged into a single

company, T-Mobile US, Inc. ("T-Mobile US"), in or around May 2013.2

The court ordered the parties to "submit supplemental briefs and,

if necessary, documentary evidence on how this merger should affect

the pending summary judgment motions."

GMR submitted its supplemental brief on August 30, 2013.

Although GMR took the position that the question should be "decided

on the facts supported by the affidavits as they existed in 2009,"

it conceded the district court had "discretion to take into account

new facts described herein [i.e., GMR's supplemental brief] to

fashion an appropriate remedy." In that regard, GMR maintained

that, even post-merger, T-Mobile US continues to have a coverage

gap in the area around Exit 3, that the Site was the only available

and technically feasible site, and that "to close this significant

gap, [T-Mobile US] needs to mount its antenna no lower than 117

feet."

2
It appears from the district court's decision that it
obtained this information from press releases and filings made by
T-Mobile with the federal government. GMR intimates in its brief
that the district court erred by taking judicial notice of these
materials. However, GMR has not previously and does not now
contest any of the facts derived from these materials and upon
which the district court relied. Indeed, it is clear from its
briefs and counsel's statements at oral argument that GMR concedes
that T-Mobile and MetroPCS have merged and that MetroPCS users will
be migrated to the T-Mobile network. Accordingly, GMR has waived
any argument as to the propriety of the judicial notice taken in
this case.

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 GMR submitted an August 29, 2013, affidavit of its owner

and president, Victor Drouin, to support the claims that T-Mobile

US continues to have a significant coverage gap near Exit 3 and

that "[t]o close this significant gap, [T-Mobile US's] antenna

cannot be any lower than 117 foot centerline on the proposed

tower." GMR further provided an August 27, 2013, letter written on

T-Mobile letterhead confirming that the merger closed on May 1,

2013. The letter went on to state that there was still a

significant gap in T-Mobile's wireless coverage at and around the

Site and that, according to radio frequency testing, its antenna

must be mounted no lower than 117 feet in order to remedy the gap.

GMR also resubmitted earlier affidavits from Drouin

describing the Site and explaining that GMR reviewed possible

alternative solutions and sites, but that there are no feasible

alternatives to constructing a cell phone tower at the Site. The

affidavits also indicated that in order to obtain a lease on the

Site, GMR had to agree to install a camera--which "must" be mounted

at a height of 90 feet--for the Massachusetts Highway Department.

GMR concluded with a request for an injunction requiring Milton "to

issue all permits necessary to construct a PWCF on GMR's Site at

the height necessary to close the existing coverage gaps."

The summary judgment record contained additional evidence

relevant to the tower's required height. GMR had previously

submitted an undated expert report authored by a radio frequency

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engineer, Scott Heffernan, which opined to the existence of a "very

significant gap" in T-Mobile's wireless coverage in the area around

the Site. GMR's expert indicated that a "propagation analysis" had

been performed, and it confirmed that mounting an antenna at a

height of 120 feet would eliminate the significant gap in T-

Mobile's coverage.3 The district court also had available for its

consideration excerpts of Heffernan's deposition, at which he

testified that an antenna mounted at 90 feet would be high enough

to eliminate the coverage gap. Finally, one of Drouin's affidavits

described a "crane test" done to determine the tower's visibility

from nearby locations, which showed that "only the top twenty feet

of the proposed 140-foot tower would be visible around the tree

line from the surrounding areas."

Milton submitted its own supplemental brief as well.

Milton did not specifically contest any of the factual

representations that we just mentioned. Milton took a different

tack instead, arguing that MetroPCS no longer had a significant gap

in its coverage in light of the merger and the anticipated

"migration" of MetroPCS customers to the T-Mobile network. With

respect to T-Mobile US, Milton argued that there was no longer any

need for a 140-foot tower, as the requested height had been

3
A "propagation analysis," according to the expert report,
uses computer software that "calculates frequency strength over
distance taking into account geographical and topographical
features that contribute to signal loss" to determine the expected
area of coverage provided by an antenna at a given height.

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dictated entirely by MetroPCS's requirements. Milton's position

was that the 140-foot tower was no longer necessary to close the

coverage gap, meaning that the BOA's and MCC's denials did not

effectively prohibit T-Mobile US from providing wireless service in

Milton.4

Both parties submitted their supplemental briefs and

attached exhibits on August 30, 2013. The district court issued

its written decision approximately one week later and without

further hearing.

Of significance for this appeal, the district court first

concluded that GMR "has shown as a matter of law that in Fall 2009,

there were significant gaps in MetroPCS and [T-Mobile US] coverage

in the affected area, and no feasible alternative existed for

resolving the MetroPCS coverage gap other than a 140-foot tower at

the Site." The district court reasoned that if its effective

prohibition analysis took into account only those facts in

existence at the time the BOA and MCC denied GMR's application, GMR

"would be entitled to summary judgment against both boards."

The district court did not end its inquiry there, but

instead determined it should also consider subsequent developments

to decide whether Milton had effectively prohibited wireless

services. The court first found that even after the merger, a

4
Milton also intimated that T-Mobile US may no longer even be
interested in the Site following the merger. This argument has
been abandoned on appeal.

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significant gap remained in T-Mobile US's coverage around the Site.

It further found that "there are no feasible alternative locations

for the proposed tower" apart from the Site. The court felt,

though, that GMR no longer needed to rectify MetroPCS's coverage

gap thanks to the merger. It recounted the evidence in the record

indicating that T-Mobile US's gap could be solved with a 117-foot

or 120-foot tower, ultimately concluding that a shorter tower at

the Site is a reasonable alternative to the original 140-foot

proposal. The court then found that the existence of this

alternative necessarily meant that the BOA's and MCC's denials did

not effectively prohibit the provision of wireless services.

Finally, the court noted that there was no evidence showing the BOA

or MCC would be predisposed to refusing a new application for a

shorter tower.

When all was said and done, the court denied GMR's motion

for summary judgment, granted Milton's motion, and entered judgment

in favor of Milton. This timely appeal followed.

II.

DISCUSSION

a. Standard of Review

We are called upon to review the district court's

disposition of the parties' cross-motions for summary judgment.

Cross-motions for summary judgment require the district court to

"consider each motion separately, drawing all inferences in favor

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of each non-moving party in turn." D & H Therapy Assocs., LLC v.

Boston Mut. Life Ins. Co., 640 F.3d 27, 34 (1st Cir. 2013) (citing

Merchants Ins. Co. of N.H., Inc. v. U.S. Fid. & Guar. Co., 143 F.3d

5, 7 (1st Cir. 1998)); but see Puerto Rico Am. Ins. Co. v. Rivera-

Vazquez, 603 F.3d 125, 133 (1st Cir. 2010) (noting that when

"cross-motions for summary judgment are filed simultaneously, or

nearly so, the district court ordinarily should consider the two

motions at the same time," but that should it instead "opt to

consider them at different times, it must at the very least apply

the same standards to each").

Our review of the district court's resolution of the

competing motions is de novo. Sch. Union No. 37 v. United Nat'l

Ins. Co., 617 F.3d 554, 558 (1st Cir. 2010). We will affirm a

grant of summary judgment "only if the record discloses no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law." Tropigas de Puerto Rico, Inc. v.

Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st

Cir. 2011) (citations omitted). Genuine issues of fact are those

that a factfinder could resolve in favor of the nonmovant, while

material facts are those whose "existence or nonexistence has the

potential to change the outcome of the suit." Id. (citations and

internal quotation marks omitted). We also bear in mind that just

because each party has moved for summary judgment, this "do[es] not

necessarily indicate agreement by the parties as to the material

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facts in the record." ATC Realty, LLC v. Town of Kingston, N.H.,

303 F.3d 91, 99 (1st Cir. 2002).

b. The Telecommunications Act of 1996

We begin with an overview of the relevant provisions of

the Telecommunications Act. The Act, we have said, represents "an

exercise in cooperative federalism . . . [that] attempts, subject

to five limitations, to preserve state and local authority over the

placement and construction of [telecommunications] facilities."

Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14,

19 (1st Cir. 2002). The relevant limitation here is the Act's

mandate that, "in regulating the placement and construction of

[wireless] facilities, a state or local government or

instrumentality 'shall not prohibit or have the effect of

prohibiting the provision of personal wireless services.'" Id.

(quoting 47 U.S.C. § 332(c)(7)(B)(i)(II)). It is well-established

in this Circuit that "local zoning decisions . . . that prevent the

closing of significant gaps in the availability of wireless

services violate the statute." Id. at 20. This is true even where

a local authority's denial of an individual application pursuant to

its own local ordinances is supported by substantial evidence. Id.

The question of whether or not a local denial constitutes

an effective prohibition violative of the Act is definitively

answered by the district court, not the local zoning authority.

Id. at 22. Indeed, nothing in the Telecommunications Act

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"expressly authorize[s] local zoning boards to consider whether

individual decisions amount to an 'effective prohibition.'" Second

Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 630 (1st

Cir. 2002) (citing 47 U.S.C. § 332(c)(7)). Accordingly, where a

local authority purports to pass upon the issue, the federal courts

afford it "[n]o special deference." Id. Because the issue is

decided by the district court in the first instance, we review the

district court's decision rather than that of the local authority.

Green Mountain Realty, 688 F.3d at 58.

When conducting the "effective prohibition" inquiry,

district courts "may well require evidence to be presented in court

that is outside of the administrative record compiled by the local

authority." Nat'l Tower, 297 F.3d at 22 (citing Town of Amherst,

N.H. v. Omnipoint Commc'ns Enters., Inc., 173 F.3d 9, 16 n.7 (1st

Cir. 1999)). To that end, they are "free to consider additional

evidence" beyond that which was introduced at the local level.

Second Generation Props., 313 F.3d at 629. Indeed, when we

remanded this case to the district court to decide the effective

prohibition issue, we explicitly left it within "the discretion of

the district court whether to evaluate the claims on the [then-

current] record or allow the parties to submit additional

evidence." Green Mountain Realty, 688 F.3d at 60.

Upon remand, the district court ordered two rounds of

supplemental briefing before making additional findings of fact,

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denying GMR's motion for summary judgment, and granting Milton's

motion for summary judgment. When the district court grants

summary judgment on an effective prohibition claim, our review of

that decision is de novo. Nat'l Tower, 297 F.3d at 22. Where,

however, the district court takes new evidence and makes its own

evidentiary findings as part of the process, we review "its factual

findings for clear error and its legal conclusions de novo." Id.

c. Analysis

Our previous opinion in 2012 remanded this matter for the

district court to consider GMR's effective prohibition claims. In

that regard, when it considered the parties' cross-motions for

summary judgment, the district court focused exclusively on the

merger's elimination of MetroPCS's coverage gap. Specifically, the

court found that MetroPCS no longer has a significant gap in its

coverage because all of its customers are slated to be taken off

its network and folded into T-Mobile's by the end of 2015. The

district court then reasoned that, in light of this new development

which had not been in the cards back in 2009, the BOA's and MCC's

denial of the tower application did not effectively prohibit

MetroPCS from providing wireless services in Milton.

Although the district court addressed the effective

prohibition claim with respect to MetroPCS, it did not consider the

changed circumstances from the perspective of T-Mobile US. From

the record, it appears that the district court felt that once it

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determined MetroPCS's significant gap was no longer in play, it had

no need to inquire further. By not looking deeper, however, the

district court failed to determine whether the 2009 denials

violated the Telecommunications Act by "prevent[ing] the closing of

significant gaps in the availability of wireless services" provided

by T-Mobile US. Nat'l Tower, 297 F.3d at 20. Failure to

adjudicate this aspect of the claim constituted an error of law.

See Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49

(1st Cir. 2010) (recognizing that effective prohibition claims must

be evaluated from the standpoint of "the individual carrier's

network"); Second Generation Props., 313 F.3d at 634 ("The fact

that some carrier provides some service to some consumers does not

in itself mean that the town has not effectively prohibited

services to other consumers.").

Because we may affirm the district court's grant of

summary judgment on any basis apparent in the record, Rodriguez v.

Municipality of San Juan, 659 F.3d 168, 179 (1st Cir. 2011), the

district court's error does not, by itself, require reversal. We

must now consider whether the uncontested facts in the summary

judgment record entitled Milton to judgment as a matter of law.

They did not.

In order to withstand Milton's motion, GMR needed to come

forward with evidence that would allow a finder of fact to conclude

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that the 2009 denials had the effect of prohibiting T-Mobile US

from providing wireless service around Exit 3.

Whether or not an effective prohibition has occurred

depends on each case's unique facts and circumstances, and "there

can be no general rule classifying what is an effective

prohibition." Second Generation Props., 313 F.3d at 630. We have,

however, discussed certain "circumstances where there is a

prohibition 'in effect.'" Id. "[W]here the plaintiff's existing

application is the only feasible plan . . . denial of the

plaintiff's application might amount to prohibiting personal

wireless service." Id. (citations and internal quotation marks

omitted). In attempting to show that local authorities have

rejected the only feasible plan, a carrier bears "the 'heavy'

burden 'to show from the language and circumstances not just that

this application has been rejected but that further reasonable

efforts [to find another solution] are so likely to be fruitless

that it is a waste of time even to try.'" City of Cranston, 586

F.3d at 50 (emphasis and alteration in original) (quoting Town of

Amherst, 173 F.3d at 14).5

5
We also recognized in Second Generation Properties that an
effective prohibition occurs where a "town sets or administers
criteria which are impossible for any applicant to meet." 313 F.3d
at 630. GMR does not argue that this is what happened here.

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 Turning to the summary judgment record here, it is

apparent that the vast majority of facts are undisputed.6 The

district court found--and the parties do not contest--that there

remains a significant gap in T-Mobile US's service in the area

around Exit 3 in spite of the merger. Further, Milton does not

challenge the district court's finding that the Site is the only

feasible location on which to construct a cell phone tower to fill

in T-Mobile US's significant coverage gap. Indeed, counsel

conceded as much at oral argument. Thus, we hold that the evidence

established that, as a matter of law, the only feasible solution to

T-Mobile US's coverage gap is the construction of a cell phone

tower on the Site.

The only remaining question of fact is the precise tower

height required to eliminate the significant coverage gap. On that

front, there was evidence in the record--none of which Milton

6
The parties spend considerable time and energy arguing about
whether the district court was bound to decide the effective
prohibition claim based on the facts as they existed at the time
GMR first applied to construct a 140-foot tower, or whether it was
permissible for the court to consider changed, post-merger
circumstances bearing on the continued existence of a significant
coverage gap. This turns out to be much ado about nothing,
however, as GMR conceded in its supplemental brief to the district
court in August 2013 that the court had discretion to consider the
current lay of the land in light of the merger. Moreover, the
relief GMR requests on appeal--an injunction requiring Milton to
permit construction of a 120-foot tower--is itself predicated on
the changed circumstances resulting from the merger. Accordingly,
GMR has waived any argument that the district court was limited to
considering the facts as they existed at the time its application
was denied. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

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contests--that an antenna must be mounted at some height between 90

and 120 feet to eliminate T-Mobile US's coverage gap. We further

note the existence of evidence that the Massachusetts Highway

Department's camera "must" be mounted at a height of 90 feet, and

it appears from Milton's appellate brief that it has conceded a

wireless antenna would have to be mounted at a height of at least

100 feet. See Defs.-Appellee's Br. at 10 ("The lowest antenna

mounting height for a wireless carrier would be at 100-feet.").

The evidence in the record was sufficient to allow a reasonable

finder of fact to conclude that Milton's denials effectively

prevented T-Mobile US from closing its coverage gap in the area

near Exit 3, in contravention of the Telecommunications Act.

Accordingly, Milton was not entitled to summary judgment, and the

district court erred in so finding.7

We have considered Milton's arguments to the contrary and

we are not convinced. Milton first asserts that the district court

properly granted its motion for summary judgment because GMR failed

to show that the originally-proposed 140-foot tower is the "only

feasible plan" in light of the merger between T-Mobile and

MetroPCS, as MetroPCS no longer has a significant gap in coverage.

Milton further argues that GMR should be required to return to the

BOA and MCC with a brand new application for a shorter cell phone

7
Because there was evidence that the coverage gap could have
been rectified by more than one tower height, it follows that GMR
was not entitled to summary judgment on its own cross-motion.

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tower. These arguments, however, are based on the mistaken premise

that the district court correctly granted Milton's summary judgment

motion, and completely ignore the effective prohibition claim with

respect to T-Mobile US. We, therefore, reject them. Simply put,

Milton has done nothing to undermine our conclusion that a

reasonable finder of fact could have found from the evidence in the

record that Milton's denials effectively prohibited T-Mobile US

from providing wireless service in the area around Exit 3.

d. Some Final Thoughts

So that neither the parties nor the district court will

be led astray, we address Milton's intimation that the BOA and/or

MCC should have an additional opportunity to weigh in on the

tower's ultimate height. Such an outcome would not be in

accordance with the text or spirit of the Telecommunications Act.

What we said about the Act in National Tower over a decade ago

bears repeating here:

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 . . .
instructing the board to authorize
construction. . . . In short, a board's
decision may not present a moving target and a
board will not ordinarily receive a second
chance.

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Nat'l Tower, 297 F.3d at 21-22.

Our concern in National Tower about "multiple rounds of

decisions" is even stronger here, as the record evidence

demonstrates that the local boards would be compelled to permit

construction of a cell phone tower on the Site. There is no

genuine dispute that T-Mobile US continues to have a significant

coverage gap in that area, that the Site is the only feasible

location to construct a new tower, and that the tower must be

somewhere between 90 and 120 feet high in order to fill in that

gap. And the resolution of the only remaining question--the

tower's height--is for the district court, not the BOA or the MCC,

to answer. Id. at 22; City of Cranston, 586 F.3d at 52.

Furthermore, there is no justification for further hearings on the

local level given that the only issue to be resolved is a limited

one to be resolved by the district judge. See Brehmer v. Planning

Bd. of Town of Wellfleet, 238 F.3d 117, 121 (1st Cir. 2001)

("Finally, appellants have identified no practical benefit to

sending the matter back to the Planning Board in order to have that

body hold a hearing destined to result in the issuance of the

special permit."); see also City of Cranston, 586 F.3d at 52-53

("Ultimately the question is a practical inquiry into feasible,

available alternatives.").

Here, the BOA and the MCC have already had their say. In

fact, we determined their reasons for denial were supported by

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substantial evidence. Nevertheless, these denials must give way in

light of the evidence that they effectively prohibited T-Mobile US

from providing wireless services in derogation of federal law.

Accordingly, there is nothing else for Milton to decide in this

matter, and the district court should resolve the effective

prohibition claim within the contours set forth in this opinion.

See Nat'l Tower, 297 F.3d at 22; City of Cranston, 586 F.3d at 52

("Whether the carrier proves an effective prohibition has occurred

is a factual question for the trial court to resolve."). It is

also incumbent upon the district court to craft an appropriate

remedy in light of the specific facts and circumstances appearing

in the record.

III.

CONCLUSION

Given the existence of the one remaining issue of

material fact, i.e., the necessary height of the tower, we must

remand this matter to the district court for further proceedings

with respect to GMR's effective prohibition claim. To resolve the

claim, the district court--not the BOA, MCC, or any other organ of

Milton's town government--is to determine whether the tower's

height need be 90 feet, 117 feet, 120 feet, or something in

between, in order to remedy the effective prohibition of wireless

services caused by the BOA's and MCC's denial of GMR's application

to build a cell phone tower. See Nat'l Tower, 297 F.3d at 22. In

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accordance with 47 U.S.C. § 332(7)(B)(v), the district court is

directed to hear and decide this matter on an expedited basis.

To sum up: we affirm the district court's denial of

GMR's motion for summary judgment, reverse its grant of summary

judgment in favor of Milton, vacate the judgment entered in favor

of Milton, and remand this matter for further proceedings

consistent with this opinion.

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