Green Mountain Realty Corp. v. Leonard

United States Court of Appeals
For the First Circuit

No. 11-1706

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

Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.

David 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.
August 9, 2012
 LIPEZ, Circuit Judge. This appeal arises from an attempt

by appellant Green Mountain Realty Corp. to secure permits and

regulatory approval to construct a 140-foot cellular phone tower in

Milton, Massachusetts. Green Mountain's applications to the Town

of Milton Zoning Board of Appeals (the "Board" or "BOA") and the

Milton Conservation Commission (the "Commission" or "MCC"), both

necessary steps in the approval process, were denied. Green

Mountain subsequently challenged those decisions in the United

States District Court for the District of Massachusetts, naming the

BOA, the MCC, and the BOA's individual members as defendants. It

argued that the decisions of the BOA and the MCC were not supported

by "substantial evidence," as required by the Telecommunications

Act of 1996 ("TCA"), 47 U.S.C. § 332(c)(7)(B)(iii), and that the

decisions also constituted an "effective prohibition" on the

provision of wireless services in the area, also in violation of

the TCA, id. § 332(c)(7)(B)(i)(II). Green Mountain also claimed

that the BOA's action exceeded its authority and was arbitrary and

capricious, violating Massachusetts state law. The district court

granted summary judgment for the BOA and MCC, finding that the

decisions of those bodies complied with governing law, and this

appeal ensued.

We affirm the district court's decisions with regard to

Green Mountain's substantial evidence claims against the BOA and

MCC. Given the deference due to the decisions of a local

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regulatory body under the substantial evidence rubric, we will not

disturb the district court's decisions on these issues. However,

the district court did not adequately address Green Mountain's

evidence supporting its effective prohibition claim against the BOA

and completely failed to address the effective prohibition claim

against the MCC. These are not claims that we should decide in the

first instance, dependent as they are on factual findings to be

made by the district court. Accordingly, we vacate the district

court's grant of summary judgment in favor of the BOA and MCC on

Green Mountain's effective prohibition claims and remand for

reconsideration of those claims.

I.

A. The Proposed Site

Green Mountain owns and manages personal wireless

communications facilities ("PWCFs"), commonly known as cellular

phone towers, as well as other tower facilities. Green Mountain

leases space on PWCFs to federally licensed providers of wireless

telecommunications services ("carriers"), who mount antennae on the

PWCFs to service their cellular networks.

On October 20, 2008, Green Mountain entered into an

agreement with an agency of the Commonwealth of Massachusetts to

lease land located adjacent to Interstate 93 ("I-93") in Milton,

Massachusetts. The land is an unzoned triangular section, totaling

approximately 2,700 square feet, formed by the intersection of I-93

-4-
and the Exit 3 southbound on-ramp leading to I-93 (the "Site").

The Site is in close proximity to Blue Hills Reservation, a

Massachusetts state park, and the Carisbrooke Road residential

neighborhood. The purpose of the lease was to enable Green

Mountain to construct a PWCF on the site, and Green Mountain

obtained letters of intent from two carriers, T-Mobile and

metroPCS, stating their intention to locate antennae on the

proposed tower. The Site was chosen because it is located within

an area of degraded service for certain carriers, including T-

Mobile and metroPCS. According to Green Mountain, the section of

I-93 near the Site "has consistently suffered from a lack of

adequate telecommunications coverage resulting in dropped calls, a

possibility of being unable to complete emergency calls and an

inconvenience to the traveling public."

Before Green Mountain could begin construction, it had to

obtain regulatory approval from the BOA and MCC.

B. The BOA Proceeding

The Zoning Bylaws of the Town of Milton ("Bylaws")

include a subsection "regulat[ing] the siting, construction and

removal of wireless telecommunications facilities so as to promote

the safety, welfare and aesthetic interests of the Town of Milton."

Bylaws § III(G)(1). Pursuant to the Bylaws, a special permit must

be issued by the Board prior to construction of a PWCF or other

telecommunications facility. Id. § III(G)(3)(c). To obtain a

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special permit, one must submit a detailed application to the

Board, participate in a public hearing on the application, pay any

fees assessed by the Board to fund review by independent

consultants chosen by the Board, as well as cooperate with those

consultants in their review. The Board will issue a special permit

only if three conditions are met: "(1) existing facilities do not

adequately address the need for service, (2) there exists no

feasible alternative to the proposal that would adequately address

the need in a less intrusive manner, and (3) the proposed use is in

harmony with the general purpose and intent" of the Bylaws to

promote the Town's "safety, welfare and aesthetic interests." Id.

§ III(G)(4)(d), (G)(1).

In accordance with these requirements, Green Mountain

submitted an application to the Board on May 21, 2009, seeking a

special permit for construction of a 140-foot monopole tower on the

Site. The application noted:

The proposed facility will consist of a 140'
monopole designed to accommodate up to five
(5) antenna mounts for wireless carriers as
well as Mass Highway Department video
equipment . . . . An eight foot high chain
link fence will be installed around the tower
base for security purposes to comply with Mass
Highway requirements to minimize visual
obstructions for merging traffic.

The plan also included space for ground equipment to service the

monopole and antennae. According to Green Mountain, "radio

frequency analysis provided to us by our prospective tenants has

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indicated that 100' would be the lowest mounting height that

effectively fills the current coverage gap." Because "carriers'

[antennae] must be separated from each other's installation by

approximately 10'," the tower must be at least 140 feet to

accommodate five different carriers.1

Along with its application, Green Mountain submitted

statements from metroPCS and T-Mobile indicating the existence of

a coverage gap and the need for the PWCF. Green Mountain also

filed a statement that it had considered existing structures, as

well as alternate sites, and concluded that a PWCF at the proposed

Site was the only feasible option. It submitted numerous maps

showing the coverage provided by various carriers. In response to

suggestions from neighbors and other interested parties, Green

Mountain considered five alternative sites, but rejected each as

unworkable. It explained that the chosen Site was suitable because

"[t]he subject property is non-residential in nature, has existing

small towers in place, is located away from residential uses, and

has reasonable vehicle access and availability of utilities."

Green Mountain also submitted a National Environmental

Policy Act ("NEPA") Report that evaluated the tower's potential

impact on environmental and historical areas. The NEPA Report,

1
Green Mountain emphasizes that the Bylaws encourage the co-
location of antennae on a single structure. See Bylaws
§ III(G)(1)(c).

-7-
which was prepared by consultants, did not find any significant

impact on the environment or historical sites.

Both Green Mountain and those opposed to the PWCF project

attempted to document how the tower would affect the landscape and

views in the surrounding area, especially within the Blue Hills

Reservation. Green Mountain raised a crane at the Site to the

approximate height of the proposed tower and took pictures from

various locations. It is undisputed that the tower would be

visible from several areas within the Blue Hills Reservation,

including from two of its highest hills. The tower would also be

visible from the Carisbrooke Road neighborhood. Green Mountain

reported that the proposed tower would not carry Federal Aviation

Administration markings or lights, and it suggested methods to

camouflage the tower to the extent possible.

At public hearings held on June 16, July 13, and August

19, 2009, there was almost unanimous public opposition to the

proposed tower. While the BOA received one letter in support of

the project, no interested citizen spoke in favor of the project

and numerous people testified in opposition. Representatives of

the Friends of the Blue Hills, a charitable trust formed to

restore, preserve, and protect the Reservation, argued that the

need for the tower did not outweigh the significant negative

aesthetic effects. Several other concerned citizens spoke at the

hearings, and the BOA received petitions signed by twenty-seven

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Carisbrooke Road neighborhood residents expressing concerns about

the tower's aesthetic impact on the Blue Hills Reservation and

nearby neighborhoods.

On August 19, 2009, the BOA voted to deny Green

Mountain's application for a special permit. In a written denial,

issued on September 24, 2009, it emphasized the public opposition

to the proposed tower and the importance of protecting the

character and aesthetic beauty of the Blue Hills Reservation. The

Board further noted that "[s]uch a monopole would also be visible

to the Carisbrooke Road neighborhood in particular and would

substantially detract from the character of the neighborhood."

Additionally, the Board found that "[t]he existing coverage while

not perfect is reasonable and adequate under all of the

circumstances." In reaching this conclusion, the Board relied on

the percentage of dropped calls mentioned by Green Mountain's

attorney at a public hearing - approximately 0.66% - and not the

figure provided by an engineer for one of the carriers, 2.00% -

3.00%.2

Ultimately, the Board found that Green Mountain "failed

to carry its burden of proof for the issuance of a special permit"

because it failed to show that the proposed tower "promote[s] the

2
Green Mountain now says that the 0.66% figure provided by
its attorney at the hearing was an error.

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safety, welfare or aesthetic interests of the Town of Milton" and

thus was "not in harmony with the [zoning] Bylaw."

C. The MCC Proceeding

The MCC is a local body charged with administering the

Milton Wetlands Bylaws (distinct from the Zoning Bylaws), as well

as the Massachusetts Wetlands Protection Act ("WPA"), Mass. Gen.

Laws c. 131, § 40.3 The WPA provides, inter alia, that no person

shall "alter . . . any riverfront area" without receiving

authorization from the appropriate conservation commission or other

body. Id. Under the terms of the WPA,

[i]n the case of riverfront areas, no order
issued by a conservation commission . . .
shall permit any work unless the applicant, in
addition to meeting the otherwise applicable
requirements of this section, has proved by a
preponderance of the evidence that (1) such
work, including proposed mitigation measures,
will have no significant adverse impact [on
various environmental interests] . . . , and
(2) there is no practicable and substantially
equivalent economic alternative to the
proposed project with less adverse
effects . . . .

Id. Pursuant to Massachusetts regulations, the MCC must presume

that the affected riverfront area is significant to the various

environmental interests identified by the WPA. 310 Mass. Code

3
Appellees refer to both the "Wetlands Protection Act" and
the "Rivers Protection Act" in their briefing. The Rivers
Protection Act was a 1996 amendment to the Wetlands Protection Act
and, accordingly, both are codified at section 40 of chapter 131 of
the Massachusetts General Laws. For the purpose of this appeal,
there is no practical distinction between the two. For ease of
reference, we here refer to section 40 as simply the WPA.

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Regs. 10.58(3). However, "[t]he presumption is rebuttable and may

be overcome by a clear showing that the riverfront area does not

play a role in the protection of one or more of these interests."

Id.

The WPA "establishes minimum Statewide standards leaving

local communities free to adopt more stringent controls." T.D.J.

Dev. Corp. v. Conservation Comm'n of N. Andover, 629 N.E.2d 328,

330 (Mass. App. Ct. 1994). "When a municipality adopts a by-law or

ordinance that is consistent with the [WPA], but that imposes more

stringent controls than the standards set by the Legislature, the

local requirement trumps what is required under [the WPA]." Id.

Milton has adopted wetlands bylaws supplementing the WPA. The

application process laid out in those bylaws largely tracks that

established by the WPA and charges the MCC with approving or

denying applications and issuing permits for work covered by the

bylaws and the WPA. Milton Wetlands Bylaws, ch. 15, § IIA. The

Milton Wetlands Bylaws also create a "non-disturbance zone"

extending 25 feet from the edge of the protected wetland. Id.

§ XI. Any activity altering the zone is prohibited without a vote

of the majority of the MCC and a finding that "granting of such

relief will not have a significant adverse impact upon the

interests protected by [the bylaws]."4 Id.

4
The interests protected by the Milton Wetlands Bylaws
include "[protection of] public or private water supply; aquifer
and groundwater protection; flood, erosion and sedimentation

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 Because of its proximity to the Blue Hills River, the

Site was subject to the WPA and Milton Wetlands Bylaws and the

specific provisions relating to riverfront areas. On February 12,

2009, Green Mountain submitted the requisite notice and request for

approval, emphasizing that the Site was already degraded by the

presence of I-93. It noted that while 4,612 square feet of

riverfront area would be altered by the proposed project, only 92

square feet fell within 100 feet of the Blue Hills River; the

remainder was not only more than 100 feet away from the river, but

also separated from the river by the I-93 on-ramp, which is itself

roughly 100 feet from the river. Green Mountain also pointed out

that only 109 square feet of Bordering Vegetated Wetland ("BVW"),

a category of protected land, would be affected by the project. It

acknowledged that this area "will be unavoidably impacted." It

emphasized, however, that "this BVW is already in a state of

chronic impact due to its location between the highway and its on-

ramp. Sand, salt, trash and untreated stormwater are repeatedly

discharged to this wetland from the concrete surfaces directly

adjacent to the proposed cell tower site." Green Mountain argued

that because of proposed mitigation measures, its project would

actually improve the degraded area.

control; storm damage and water pollution prevention; the
protection of fisheries, shellfish and wildlife; recreation and
aesthetics." Milton Wetlands Bylaws, ch. 15, § I.

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 Green Mountain's application was discussed at a series of

MCC meetings. The minutes for a March 10, 2009 meeting state,

"Applicant did not address Commission concerns: Aesthetics

affecting Blue Hills, alternative analysis[] regarding site

location and tower height efficiency ratings and failed to address

the Town by Law [sic] regarding the 'no significant adverse impact'

standard for justifying a waiver of the non-disturbance

regulation." In several subsequent meetings, Green Mountain

attempted to address these concerns. At the request of the MCC,

Green Mountain submitted the NEPA Report it had previously

submitted to the BOA. It also proposed a series of mitigation

measures to limit the impact of the project and improve the area.

The MCC also requested an alternative site analysis prepared by the

Massachusetts Highway Department that Green Mountain referred to at

an MCC meeting. Green Mountain has since acknowledged that this

analysis did not exist in written form.

At the May 12, 2009 meeting of the MCC, Green Mountain

requested that the hearing on its proposal be continued until after

the BOA made a decision. After the BOA denied Green Mountain's

application, the MCC met on September 15, 2009. The minutes of

that meeting reflect the MCC's displeasure with Green Mountain's

failure to respond to its requests for information. In particular,

the Commission was concerned that Green Mountain failed to provide

a meaningful analysis of potential alternative sites that the

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developer had repeatedly referred to and the Commission had

requested.

On September 19, 2009, the MCC voted to deny Green

Mountain's request for relief from the non-disturbance zone

established by the Milton Wetlands Bylaws, as well as its

application under the WPA. In a brief written statement issued on

October 9, 2009, the MCC explained that Green Mountain's failure to

provide a meaningful alternatives analysis prevented it from

approving the proposal. It noted that such an analysis, required

by Massachusetts regulations, had been requested on multiple

occasions. Additionally, the MCC emphasized the importance of the

aesthetic interest it is charged with protecting. It stated that

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

consideration. . . . Once again, the applicant failed to provide

the requested data relating to the efficacy of a lower tower

height, which data was requested on three occasions." Responding

to Green Mountain's argument that the Site was already degraded,

the MCC stated that "it is the opinion of the MCC that if those

wetlands, which the applicant seeks to further alter, are already

degraded, those wetlands are in greater need of protection, rather

than less."

D. The District Court Proceeding

Green Mountain challenged the decisions of the BOA and

MCC in a single action in the United States District Court for the

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District of Massachusetts, arguing that they violated multiple

provisions of the TCA. "[T]he TCA reflects Congress's intent to

expand wireless services and increase competition among . . .

providers." Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57

(1st Cir. 2001). "Under the TCA, local governments retain control

'over decisions regarding the placement, construction, and

modification of personal wireless service facilities.'" Id.

(quoting 47 U.S.C. § 332(c)(7)(A)). However, "this control is now

subject to several substantive and procedural limitations that

'subject [local governments] to an outer limit' upon their ability

to regulate personal wireless services land use issues." Id.

(alterations in original) (quoting Town of Amherst v. Omnipoint

Commc'ns Enters., Inc., 173 F.3d 9, 15 (1st Cir. 1999)).

One of the primary limits on local authority is the

requirement that "[a]ny decision . . . to deny a request to place,

construct, or modify personal wireless service facilities shall be

in writing and supported by substantial evidence contained in the

written record." 47 U.S.C. § 332(c)(7)(B)(iii). Another is the

requirement that local decisions not "prohibit or have the effect

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

§ 332(c)(7)(B)(i)(II). Green Mountain argued both that the

decisions of the BOA and the MCC were not supported by "substantial

evidence," and that they also constituted an impermissible

"effective prohibition" on the provision of wireless services in

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the area. Green Mountain also claimed that the BOA's action

exceeded its authority and was arbitrary and capricious in

violation of state law.

In evaluating an "effective prohibition" claim, "district

courts are free to consider additional evidence" not in the

administrative record. Second Generation Props., L.P. v. Town of

Pelham, 313 F.3d 620, 629 (1st Cir. 2002); see also Nat'l Tower,

LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 24 (1st Cir.

2002) ("On the 'effective prohibition' issue, district courts may

take evidence beyond the record."). Green Mountain offered

additional evidence to the district court on its effective

prohibition claim, beginning with extensive expert testimony to

establish the existence of a coverage gap. It also offered

affidavits and deposition testimony from the president of Green

Mountain, as well as from a consultant, describing why Green

Mountain felt that there were no viable alternatives to the

proposed site. They noted that a suitable site requires

appropriate topography, access for maintenance, utility

connections, size, and availability. Green Mountain also noted

that it explored the possibility of using a network of smaller

antennae, rather than a single large PWCF, but determined that this

option was not feasible.

The district court granted summary judgment for the

defendants on all of Green Mountain's claims. First, the court

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found that the BOA's decision was supported by substantial

evidence. Explaining this conclusion, it stated that Green

Mountain failed to show that existing service was inadequate and

that the BOA had sufficient justification to deny the permit

because of aesthetic concerns. Furthermore, it found that Green

Mountain failed to adequately explore alternative sites. Second,

on the effective prohibition claim, the court found with scant

discussion that Green Mountain failed to show that the standard

applied by the BOA would be impossible for any applicant to meet,

and that Green Mountain had not demonstrated that its proposal was

the only feasible plan. Finally, the court found that Green

Mountain failed to meet its burden of showing that the MCC's

conclusion that the project would have a significant adverse impact

on surrounding wetlands was not supported by substantial evidence.

The district court's written decision did not address Green

Mountain's argument that the MCC's decision was an effective

prohibition or Green Mountain's state law claim challenging the

BOA's decision.

II.

A. The Substantial Evidence Standard

In evaluating whether a decision is supported by

substantial evidence, we review

the written record considered as a whole.
Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion. The reviewing court

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 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.

Sw. Bell, 244 F.3d at 58 (quoting Penobscot Air Servs., Ltd. v.

Fed. Aviation Admin., 164 F.3d 713, 718 (1st Cir. 1999)). Thus,

"[t]he 'substantial evidence' standard of review is the same as

that traditionally applicable to a review of an administrative

agency's findings of fact . . . [, and] [j]udicial review under

this standard, even at the summary judgment stage is narrow." Id.

(citation omitted) (internal quotation marks omitted).

Despite this limited oversight, we have cautioned that

"substantial evidence review is not a rubber stamp." Penobscot

Air, 164 F.3d at 718 n.2. A local regulatory agency or other body

"is not free to prescribe what inferences from the evidence it will

accept and reject, but must draw all those inferences that the

evidence fairly demands." Sw. Bell, 244 F.3d at 59 (internal

quotation marks omitted). Accordingly, decisions "must be set

aside when the record before a Court of Appeals clearly precludes

the agency's decision from being justified by a fair estimate of

the worth of the testimony of witnesses or its informed judgment on

matters within its special competence or both." Penobscot Air, 164

F.3d at 718 (alterations omitted). Ultimately, the burden of

demonstrating that the determination of a local authority is not

supported by substantial evidence is with the party seeking

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approval, Sw. Bell, 244 F.3d at 63, and "courts defer to the

decision of the local authority, provided that the local board

picks between reasonable inferences from the record before it,"

Nat'l Tower, 297 F.3d at 23.

Because the focus of our review is the administrative

record, "we . . . apply the same legal standards that pertain in

the district court and afford no special deference to that court's

decision." Sw. Bell, 244 F.3d at 59 (internal quotation marks

omitted). Therefore, we consider the decision of the district

court only to the extent that it is persuasive.

B. The BOA's Decision: Substantial Evidence

As described above, pursuant to the Milton Zoning Bylaws,

the BOA may issue a special permit only if three conditions are

met: "(1) existing facilities do not adequately address the need

for service, (2) there exists no feasible alternative to the

proposal that would adequately address the need in a less intrusive

manner, and (3) the proposed use is in harmony with the general

purpose and intent" of the bylaws. Bylaws § III(G)(4)(d).

Accordingly, a decision to deny issuance of a permit must be

affirmed if there is substantial evidence supporting the Board's

finding that any one of these three factors is not present. In

this case, the Board's written decision addresses only two of the

three factors - the adequacy of existing cellular coverage and the

proposal's consistency with the purpose and intent of the bylaws.

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 1. The Adequacy of Existing Coverage

The BOA justifies its finding that the existing cellular

coverage is adequate by pointing to the statement of Green

Mountain's attorney that approximately 2,000 of 300,000 calls are

dropped in the coverage area. In particular, the BOA states that

[w]hile there is a small dead spot in the area
between Route 24 in Milton and Route 138 in
Canton, the dropping of any 2,000 of 300,000
or [0.66%] of calls is a marginal loss of
service when compared to the dramatic
intrusion of the 140 foot monopole on the
Reservation and near[b]y neighborhood. The
existing coverage while not perfect is
reasonable and adequate under all of the
circumstances.

Green Mountain argues here that the 0.66% figure was simply a

misstatement by its attorney at a Board meeting, and that it was

error for the Board to rely exclusively on this figure when it also

presented testimony from engineers that the actual dropped call

rate was much higher. It points to testimony of a T-Mobile

engineer, estimating that the figure was actually 2-3%, as well as

an affidavit submitted by the same engineer, stating that if the

permit were denied "a significant area of inadequate, unreliable

coverage would remain in T-Mobile's wireless network. This lack of

service area or 'gap' in coverage would adversely impact . . . [T-

Mobile's ability] to provide . . . decent coverage to traffic on I-

93 between SR-138 and SR-24." Similarly, Green Mountain submitted

an affidavit from an engineer employed by metroPCS stating that

"Milton is an area where metroPCS has identified a need to locate

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a [PWCF]. A [PWCF] in this vicinity is necessary to provide

coverage in the area and resolve a significant gap in metroPCS'

wireless network."

In these circumstances, we cannot conclude that the BOA's

finding regarding the adequacy of existing coverage was supported

by substantial evidence. It was clearly erroneous for the BOA to

adopt the dropped call figure mentioned by Green Mountain's

attorney - 0.66% - when Green Mountain presented evidence in the

form of written statements and testimony from engineers employed by

the carriers stating that a more significant coverage gap existed.

See Sw. Bell, 244 F.3d at 59 (stating that a local regulatory

agency "is not free to prescribe what inferences from the evidence

it will accept and reject, but must draw all those inferences that

the evidence fairly demands" (quoting Penobscot Air, 164 F.3d at

718) (internal quotation marks omitted)).

Disregarding the oral testimony of T-Mobile's engineer,

the district court accurately noted that neither of the statements

submitted by the engineers provided quantifiable data identifying

a coverage gap. However, we have never required that the

percentage of calls dropped, or signal strength, cross a certain

threshold before recognizing a significant gap. See Omnipoint

Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49 (1st Cir. 2009)

(stating that "[a]lso relevant could be data about percentages of

unsuccessful calls or inadequate service during calls in the gap

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area," but refusing to adopt a "bright-line" rule with regard to

signal strength (emphasis added)); see also MetroPCS, Inc. v. City

and Cnty. of San Francisco, 400 F.3d 715, 733 (9th Cir. 2005)

("'[S]ignificant gap' determinations are extremely fact-specific

inquiries that defy any bright-line legal rule."). Accordingly,

while certainly valuable, such data is not essential.

Additional evidence identifying a coverage gap,

including data, was presented to the district court in connection

with Green Mountain's "effective prohibition" claim. However, in

evaluating a "substantial evidence" claim, we are limited to the

evidence in the record before the local body. See Sw. Bell, 244

F.3d at 58. Accordingly, we do not consider this additional

evidence in reviewing the BOA's decision under the substantial

evidence standard.

In the absence of any evidence to the contrary,

statements from two different carriers identifying a coverage gap,

as well as oral testimony indicating that 2-3% of calls in the area

are dropped, is substantial evidence that existing facilities do

not adequately address the need for service. Presented with this

evidence, the Board, in its written decision, cherry-picked a

single, non-testimonial statement by Green Mountain's attorney and

ignored the other evidence in the record.5 This the Board may not

5
The context for the attorney's statement is not clear from
the record. However, Green Mountain asserts that the statement was
non-testimonial and appellees do not contest this assertion.

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do. See Sw. Bell, 244 F.3d at 58 ("The reviewing court must take

into account contradictory evidence in the record."). Keeping in

mind that we must review the record as a whole, id., the Board's

decision, relying solely on an attorney's statement, is not based

on substantial evidence. That is, taking into account the evidence

to the contrary, it is not "adequate to support [the Board's]

conclusion." Id.

Thus, we must consider whether the other rationale relied

upon by the Board supports its denial of the permit.

2. The Proposal's Harmony With the Purpose and Intent
of the Bylaws

The subsection of the Milton Zoning Bylaws governing

wireless telecommunications facilities states that its purpose is

to "regulate the siting, construction and removal of wireless

telecommunications facilities so as to promote the safety, welfare

and aesthetic interests of the Town of Milton." Bylaws

§ III(G)(1). To further this purpose, the provision states an

intent to "[d]iscourage the construction or location of free-

standing towers," id. § III(G)(1)(e), and to "[m]aintain and

preserve the residential character of the Town of Milton by

eliminating or minimizing the adverse visual and aesthetic impact

of all wireless telecommunications facilities," id. § III(G)(1)(f).

The Board's written decision focuses on this aesthetic

interest in denying Green Mountain's application for a special

permit. It states:

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 [T]he construction of a 140'
telecommunications monopole at the proposed
location will be widely visible from the
Reservation and will substantially detract
from the view, vistas and natural setting of
the Reservation. Such a monopole would also
be visible to the Carisbrooke Road
neighborhood in particular and would
substantially detract from the character of
the neighborhood. . . . [It] will effectively
deprive [Carisbrooke Road] residents of one of
the primary reasons they moved to this area.

In addition, the Board noted the public opposition to the project

and observed that the objections were not merely "a small number of

generalized comments of concern or 'not in my backyard' complaints

but rather constitute[] virtual unanimous concern of a thoughtful

community to the unsightly intrusion of a 140' monopole upon their

existing views and vistas of the Reservation from their residences

and from the neighborhood generally."6 The Board took special note

of the objections raised by the Friends of the Blue Hills, noting

that "[t]he informed opposition of the Friends to the proposed

monopole is interposed, in good faith, based upon over 44 years of

experience in protecting and preserving this historic Reservation."

Ultimately, the Board found that "[t]he proposed monopole does not

promote the safety, welfare or aesthetic interests of the Town of

Milton as required by the Wireless Telecommunications Facilities

6
Several of the residents' complaints also referred to
purported health concerns from negative environmental effects.
However, these concerns are an impermissible ground on which to
deny Green Mountain's application. See 47 U.S.C.
§ 332(c)(7)(B)(iv); Cellular Tel. Co. v. Town of Oyster Bay, 166
F.3d 490, 494-95 (2d Cir. 1999).

-24-
Bylaw," and thus that Green Mountain's application "is not in

harmony with the general purpose and intent of the Bylaw."

The question of whether there is sufficient evidence in

the record to support the Board's "aesthetic interests"

justification is close. A number of courts, including this one,

have recognized that cell towers are inherently aesthetically

displeasing. See Sw. Bell, 244 F.3d at 61; VoiceStream

Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 831 (7th Cir.

2003) ("[B]ecause 'few people would argue that telecommunications

towers are aesthetically pleasing,' a local zoning board's

'aesthetic judgment must be grounded in the specifics of the

case.'" (quoting Sw. Bell, 244 F.3d at 61)). As said in Helcher v.

Dearborn County, 595 F.3d 710, 723 (7th Cir. 2010), "[a]lthough

local governments are entitled to weigh the aesthetic effect of a

wireless tower in deciding whether to permit its construction,

generalized aesthetic concerns are not alone sufficient to justify

the denial of a permit." Rather, an "aesthetic judgment must be

grounded in the specifics of the case."7 Id.

7
Other circuits have taken a similar approach in reviewing
the decisions of regulatory boards that were required to consider
the aesthetic impact of PWCFs. See, e.g., Sprint Spectrum, L.P. v.
Platte Co., 578 F.3d 727, 733 (8th Cir. 2009) ("[A]esthetic
concerns can be a valid basis on which to deny [a provider's]
permit, so long as the aesthetic judgment is grounded in the
specifics of the case and not based on generalized aesthetic
concerns that are applicable to any tower, regardless of location."
(internal quotation marks omitted)); Cellular Tel., 166 F.3d at
495-96 (stating that while aesthetics could be a valid ground for
denial of a permit under the TCA, a "few generalized expressions of

-25-
 In Southwestern Bell, we explained that, under the TCA,

local boards retain their "traditional prerogative to restrict and

control development based upon aesthetic considerations, so long as

those judgments do not mask, for example, a de facto prohibition of

personal wireless services." Id. at 61. Furthermore, we noted

that, "[i]n assessing the visual impact of the proposed tower, the

Board was entitled to make an aesthetic judgment about whether that

impact was minimal, without justifying that judgment by reference

to an economic or other quantifiable impact." Id. However, in

order to ensure that aesthetic considerations were not used as a

pretext to prohibit all tower-like structures, we cautioned that

"generalized aesthetic concerns . . . applicable to any tower,

regardless of location" would not suffice. Id. (citing Cellular

Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir. 1999)).

Similarly, we noted that objections from local residents or zoning

boards that reflect a misunderstanding as to the tower or the site,

or that are contrary to the objective evidence, cannot be the basis

for a denial. Id. (listing cases).

Here, the Board cited in support of its denial on

aesthetic grounds a petition signed by 27 neighborhood residents.

If the decision rested on those stated complaints alone we would be

given pause. Such reliance presents a risk that the accomplishment

of the Congressional goals in the TCA could, contrary to Congress's

concern with 'aesthetics' cannot serve as substantial evidence").

-26-
intent, be defeated by the "generalized aesthetic concerns" of

local constituents. Members of local boards are likely "to find

the opinions of angry constituents compelling." Primeco Personal

Commc'ns, L.P. v. Village of Fox Lake, 26 F. Supp. 2d 1052, 1063

(N.D. Ill. 1998) (cited in Oyster Bay, 166 F.3d at 496).

Local decisions on aesthetic grounds are more often

affirmed when there is objective evidence to support the

conclusions, such as photographs, site plans, surveys, and the

like. The Board's decision here rests on such objective evidence.

The Board saw plans indicating that, although there are some

existing utility poles on the site, the proposed tower, at 140

feet, would be more visible than everything already in place. In

making its decision, the Board also relied on photographs of the

crane tests conducted by Green Mountain and residents' testimony

about those tests to measure the visual impact of the proposed

tower.8 Additionally, the Board received statements from the

Friends of the Blue Hills describing the effect of the tower on

8
Green Mountain conducted two crane tests at the Site
approximately four months apart. Although the record is not clear,
it appears that during the latter test, the crane was raised to a
height of 160 feet because one of the camouflaging options
considered by Green Mountain would require a tower at this height.
This option would have involved mounting antennae inside the
monopole rather than on its exterior. However, in its application
to the BOA, Green Mountain stated that the first test was at a
height of 140 feet and it submitted photos of this test along with
its application. The photos from the 140-foot test show that the
crane could be seen above the tree line from multiple vantage
points.

-27-
views from that historic state park, providing some limited

support. The parties dispute how widely visible the proposed tower

would be from within the Reservation. However, the evidence before

the Board indicated that the tower would be visible from at least

four different locations within the 8,000-acre Reservation.9

In aggregate, this evidence is sufficiently grounded in

the specifics of the case to satisfy the substantial evidence

standard. See Helcher, 595 F.3d at 724 ("The photographic

representations of the tower as viewed from the property of . . .

neighbors, accompanied by the objections of many residents who

purchased land and built homes in this area specifically because of

the natural views, provided the Zoning Board with substantial

evidence to reject the permit."); Sprint PCS Assets, L.L.C. v. City

of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009) (finding

substantial evidence supporting denial of permit where the city

council reviewed "mock-ups of the proposed [P]WCFs and a report

that detailed the aesthetic values at stake," as well as public

comments, and concluded that the tower would "detract from the

residential character of the neighborhood"); VoiceStream

9
The Board's decision also states that the Blue Hills
Reservation is designated a Massachusetts historic district and is
listed in the National Registry of Historic Districts. As an
alternate ground for denial of Green Mountain's application, it
notes that the Bylaws forbid freestanding PWCFs within such
districts. However, the proposed site is not within the Blue Hills
Reservation, but adjacent to it. This conclusion was therefore in
error.

-28-
Minneapolis, 342 F.3d 818, 832 (finding substantial evidence where

decision was based on "an on site investigation, and a map . . .

document[ing] that the 185-foot tower would be visible for several

miles along [a scenic] [r]iverway," as well as testimony from "Park

Service representatives, local residents and various state and

local entities" documenting how the tower would interfere with the

unique scenery on the riverway).

Put another way, the evidence before the Board was "such

relevant evidence as a reasonable mind might accept as adequate to

support [the] conclusion" that the proposed tower was not

consistent with the purpose and intent of the bylaws. Sw. Bell,

244 F.3d at 58. Green Mountain has not carried its burden of

demonstrating that the Board's decision is not supported by

substantial evidence.10 See id. at 62.

10
Green Mountain linked its Massachusetts state law claim to
its substantial evidence claim against the BOA. In its entirety,
its argument to the district court on its state law claim states
that "[f]or all the reasons stated above in regards to the absence
of substantial evidence supporting the Board's denial, the Board's
denial was not based upon evidence and was therefore unreasonable,
arbitrary and capricious in violation of M.G.L. Chapter 40a,
Section 17." Green Mountain's argument in its briefing to us is a
similarly conclusory assertion of the same point. Although the
district court did not address the state law claim directly, we
assume that in finding the Board's decision to be supported by
substantial evidence the court also found that it was not arbitrary
or capricious in violation of Massachusetts law. We do likewise.

-29-
C. The MCC's Decision: Substantial Evidence

As noted, pursuant to the WPA, Green Mountain must show

that its proposal would "have no significant adverse impact on the

riverfront area" with regard to the various environmental interests

protected by the act. Mass. Gen. Laws ch. 131, § 40.

Additionally, Green Mountain must show that "there is no

practicable and substantially equivalent economic alternative to

the proposed project with less adverse effects." Id.

Massachusetts regulations create a presumption that a riverfront

area, such as that at issue here, is significant to the interests

protected by the WPA. 310 Mass. Code Regs. § 10.58(3). This

presumption may be overcome only by "a clear showing that the

riverfront area does not play a role in the protection of one or

more of these interests." Id.

In this case, the MCC's written decision explained that:

1) the fact that the site was already degraded by the presence of

I-93 did not by itself mean that Green Mountain's project would

have no adverse effect; 2) Green Mountain had not provided a

requisite alternatives analysis demonstrating that there were no

less harmful alternatives to its proposal; and 3) the proposed

tower would negatively affect the aesthetics of the area.

On appeal, Green Mountain argues that the MCC's decision

is not supported by substantial evidence. It relies on a letter

submitted to the MCC by its environmental consultant, Alec MacLeod,

-30-
on March 19, 2009, asserting that its proposal will not adversely

affect the interests protected by the Bylaws and the WPA. This

letter states:

C The proposed project is located toward
the narrow end of a triangle created by
an on-ramp and the south-bound lanes of
Route 93.

C In this highly energetic and
chronically disturbed location, it can
be reasonably assumed that wildlife and
fisheries habitat will not be a
concern.

C Given the site's disconnection from the
surrounding natural hydrology, it is
also reasonable to conclude that the
project will have no significant effect
on public or private water supply.

C Given the overwhelming stormwater
effects created by the adjacent
highway, and given that the only new
impervious surfaces are the actual
mechanicals supporting the tower and
the 8 x 8 foot tower foundation, there
should be no significant effect on
storm damage or water pollution.

C Sediment and erosion control will be
accomplished by installation of a
sediment and erosion control barrier
and by virtue of the fact that the
access surfaces will be gravel, not
pavement.

C No recreation can take place within or
near the proposed area.

This letter, and specifically this bullet-point list, is the sum of

the evidence on which Green Mountain relies in its briefing.

-31-
 These statements, however, do not undermine the MCC's

conclusion. As the Commission points out in its brief, MacLeod

also reported that "any flows entering the site from the

surrounding highway surfaces slowly percolate[] outward through the

sandy substrate, contributing to the Blue Hill River via

groundwater flow." Thus, the Commission found, any further

construction on the site, however slight, will adversely affect the

wetlands area. Furthermore, it notes that Green Mountain's

application acknowledges that "[d]ue to the necessary location of

the cell tower compound and . . . minimization of resource area

impacts, 109 square feet of [bordering vegetated wetland] will be

unavoidably impacted." The application concedes that there is no

cost-effective way to replicate this lost area.

Although the degraded condition of the site sets the

baseline against which the adverse impact of Green Mountain's

proposal is measured, it is not dispositive. Even if the site is

already degraded, the WPA and Milton Wetlands Bylaws require that

the project have no further adverse impact.11 See Mass. Gen. Laws

ch. 131, § 40. The sum of Green Mountain's evidence as to this

impact was MacLeod's conclusory statements in his letter. Given

that Green Mountain had the burden of establishing no adverse

11
Of course, the MCC was not entitled to insist that Green
Mountain improve the condition of the Site. Although Green
Mountain argued that its proposal may improve the Site, there is no
indication that the MCC imposed this requirement.

-32-
impact, and given that the Commission found that it had not

sustained that burden, we may only find for Green Mountain if we

conclude that their evidence compelled a contrary conclusion. See

Nat'l Tower, 297 F.3d at 23 ("[C]ourts defer to the decision of the

local authority, provided that the local board picks between

reasonable inferences from the record before it."). For the

reasons identified by the MCC, Green Mountain's evidence is not so

compelling.

Furthermore, there was substantial evidence supporting

the Commission's conclusion that Green Mountain failed to carry its

burden of proving by a preponderance of the evidence that "there is

no practicable and substantially equivalent economic alternative to

the proposed project with less adverse effects." Mass. Gen. Laws

ch. 131, § 40. Although Green Mountain provided a document that it

styled an "alternative siting analysis," the MCC explained its

inadequacy. The minutes of the MCC's September 15, 2009 meeting

state: "[Green Mountain] submitted a map, which purports to be an

'alternative site analysis' proposed by the applicant . . . . The

site analysis is limited to the entrance ramp and exit ramp at the

same locale, rather than an area wide assessment. The applicant

did not provide a tower height efficiency analysis." It was

reasonable for the Commission to conclude that this single-page

document, which failed to evaluate any locations outside of the

immediate vicinity of the proposed Site or any alternative tower

-33-
designs and/or heights, did not carry the applicant's burden of

showing that there were no alternatives to its proposal.

The MCC also noted that Green Mountain failed to provide

an alternatives analysis conducted by the Mass. Highway Dept. The

written explanation of the MCC's decision states that despite its

repeated requests for this alternatives analysis, which was

purported to evaluate both alternative locations and different

tower heights, "[t]o date, the applicant has failed, neglected or

refused to provide the data which was requested." The MCC goes on

to note, "At a scheduled hearing date, on September 15, 2009, the

representative of the applicant acknowledged that Mass Highway

indicated that the analysis had been done, but he did not think it

actually existed [in written form]."

This sequence of events supports the MCC's conclusion as

to the inadequacy of Green Mountain's attempts to show a lack of

alternatives. Over the course of five months and three Commission

meetings, Green Mountain referred to the Mass. Highway Dept. study

as proof of a lack of alternatives and agreed to provide it to the

MCC. It was not until after the BOA had rejected Green Mountain's

application that Green Mountain acknowledged that the study did not

exist in written form, offering no other documentation of the

study. Accordingly, the only evidence before the Commission on the

issue of alternatives was Green Mountain's map of the I-93 exit 3

location, which evaluated only a fraction of the relevant area and

-34-
provided no information regarding alternative heights or designs.12

Given Green Mountain's lack of evidence as to less impactful

alternatives -- an important burden imposed on the developer by the

governing law -- the MCC was entitled to conclude that the

developer had failed to carry its burden. See Mass. Gen. Laws ch.

131, § 40.

III.

A. The Effective Prohibition Standard

We have explained that the effective prohibition standard

"can be violated even if substantial evidence exists to support the

denial of an individual permit under the terms of the town's

ordinances." Nat'l Tower, 297 F.3d at 20. "When a carrier claims

an individual denial is an effective prohibition, virtually all

circuits require courts to (1) find a 'significant gap' in coverage

exists in an area and (2) consider whether alternatives to the

carrier's proposed solution to that gap mean that there is no

effective prohibition."13 Omnipoint Holdings, 586 F.3d at 48.

12
Green Mountain provided slightly more evidence on the issue
of alternatives to the BOA, in the form of coverage maps showing
the effect of a tower at the alternate locations proposed by local
residents. However, the record does not reflect that this evidence
was ever presented to the MCC.
13
Of course, Green Mountain is not a carrier, but a developer
leasing the land on which it hopes to build a PWCF. However, "[a]
landowner tower developer is in no better position than a carrier
and has an equally heavy burden." Second Generation, 313 F.3d at
629. In fact, "[t]he landowner who wishes to build a tower on its
site is a unique plaintiff. A landowner does not have an incentive
to identify possible sites on land it does not own." Id. at 629

-35-
Therefore, while "an individual denial is not automatically a

forbidden prohibition . . . [,] we [cannot] 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." Town of

Amherst, 173 F.3d at 14.

With regard to the first prong of this test, a

significant gap must be "large enough in terms of physical size and

number of users affected" to distinguish it from "a mere, and

statutorily permissible, dead spot." Second Generation, 313 F.3d

at 631. Indeed, "[f]ederal regulations contemplate that areas

enjoying adequate coverage will still include spots without

reliable service." Id. (citing 360° Commc'ns Co. v. Bd. of

Supervisors of Albemarle Cnty., 211 F.3d 79, 87 (4th Cir. 2000)).

Dead spots are defined as "[s]mall areas within a service area

where the field strength is lower than the minimum level for

reliable service," 47 C.F.R. § 22.99, and the presence of dead

spots does not mean that service is per se inadequate, see id.

§ 22.911(b).

Additionally, we have held that the provision of coverage

by one carrier in a certain area does not insulate a regulatory

decision denying other carriers the ability to provide service in

the same area from a claim of effective prohibition. Second

n.7. The same is true of a lessee.

-36-
Generation, 313 F.3d at 633-34. Alternatively stated, "[t]he 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." Id. at 634.

Evaluating the second prong of the effective prohibition

test, we have "identified two sets of circumstances where there is

a prohibition 'in effect.'" Id. at 630. "The first is where the

town sets or administers criteria which are impossible for any

applicant to meet. . . . The second involves the situation where

the plaintiff's existing application is the only feasible plan; in

that case, denial of the plaintiff's application 'might amount to

prohibiting personal wireless service.'" Id. (quoting Town of

Amherst, 173 F.3d at 14). These two examples do not, however,

represent the only ways to demonstrate an impermissible prohibition

on wireless services. "[T]here can be no general rule classifying

what is an effective prohibition. It is a case-by-case

determination." Id. In order to demonstrate an effective

prohibition, the plaintiff must "show from language or

circumstances not just that this application has been rejected but

that further reasonable efforts are so likely to be fruitless that

it is a waste of time even to try." Town of Amherst, 173 F.3d at

14.

An effective prohibition claim "present[s] questions that

a federal district court determines in the first instance without

-37-
any deference to the [local regulatory authority]." Nat'l Tower,

297 F.3d at 22. Thus, in evaluating an effective prohibition

claim, unlike in our review of a substantial evidence challenge, we

review the district court's opinion, not that of the Board, see

Omnipoint Holdings, 586 F.3d at 47, and in determining whether an

effective prohibition exists, a district court may rely on

"evidence . . . presented in court that is outside of the

administrative record compiled by the local authority," Nat'l

Tower, 297 F.3d at 22. Therefore, "[i]f the district court makes

evidentiary findings . . . that go beyond the administrative

record, . . . we will review its factual findings for clear error

and its legal conclusions de novo." Id.

B. The District Court's Effective Prohibition Analysis

As described, the effective prohibition analysis is a

two-part test, asking first whether there is a gap in coverage and,

second, whether the absence of feasible alternatives to the

proposed tower means that denial of an application effectively

prohibits all wireless service in the area. Omnipoint Holdings,

586 F.3d at 48. The parties disagree as to whether a coverage gap

exists. In evaluating the effective prohibition claim against the

Board, the district court assumed that such a gap existed, focusing

its analysis on the second prong of the test. It held that,

regardless of the outcome of the coverage issue, Green Mountain had

not met its burden of demonstrating that there are no feasible

-38-
alternatives or that the town's Bylaws are impossible for any

applicant to meet.14 Green Mountain Realty Corp. v. Leonard, No.

09-11559, 2011 WL 1898239, at *4 (D. Mass. May 18, 2011). With

regard to the effective prohibition claim against the MCC, the

court's written decision makes no findings and states no

conclusion.

In explaining its decision on the effective prohibition

claim against the Board, the court noted that the Board had

approved other permit applications in the past and referred to the

Board's conclusory statement that the alternative sites identified

14
Green Mountain asserts that, because the Board did not
address the issue of alternatives in its written decision, it was
not entitled to raise the issue in defending the effective
prohibition claim before the district court, and that the district
court erred in considering the issue. This argument fails because
"[t]he TCA does not itself expressly authorize local zoning boards
to consider whether individual decisions amount to an 'effective
prohibition.'" Second Generation, 313 F.3d at 630. Thus, a local
entity's defense of an effective prohibition claim cannot be
limited to the reasons given in its written decision. It makes
sense to restrict a local entity's defense of a substantial
evidence claim to the rationale provided in its written decision,
for such a claim challenges the reasoning of that decision. See
Nat'l Tower, 297 F.3d at 20-21. In contrast, an effective
prohibition claim asserts that the decision, even if supported by
the evidence, has an impermissible effect, and thus the district
court considers the question de novo, taking, if it chooses,
additional evidence not in the administrative record. See Second
Generation, 313 F.3d at 629. Green Mountain points to our National
Tower decision as an example of a case in which a local zoning
board was barred from arguing that feasible alternatives existed.
However, in that case, the local zoning board did not deny the
permit on the grounds that feasible alternatives were available.
The record showed that a remand for consideration of this issue
would be inappropriate given the board's unwillingness to grant a
permit under any circumstances. 297 F.3d at 23-24.

-39-
by local residents to the Board may have been feasible

alternatives. However, the court did not address the additional

evidence provided by Green Mountain demonstrating its attempts to

identify and evaluate alternative sites.

The burden here is on Green Mountain. As we have

explained, "[f]or 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 evaluate the other available alternatives and that

the alternatives are not feasible to serve its customers." Sw.

Bell, 244 F.3d at 63; see also Omnipoint Holdings, 586 F.3d at 52

("The burden is on the carrier to prove it investigated thoroughly

the possibility of other viable alternatives before concluding no

other feasible plan was available." (internal quotation marks

omitted)). In this case, however, the district court did not

acknowledge Green Mountain's attempt to carry its burden or the

additional evidence it submitted.

In particular, Green Mountain submitted affidavits before

the district court from its own president, as well as from the

owner and manager of an independent consulting company hired to aid

Green Mountain in the permitting process. These affidavits

described efforts to identify alternative sites and explained why

the sites suggested by local residents were unacceptable. The

latter affidavit explained:

-40-
 [The consulting company] evaluated other
potential alternatives and alternative sites
within the coverage gap. The other potential
alternatives were either unavailable, were not
technically feasible or required greater
zoning relief than the proposed Site and were
deemed inferior to the chosen site. Nearly
all of the land in Milton in the coverage gap
is unsuitable to construct a PWCF due to the
presence of zoning or conservation
restrictions, wetlands, steep slopes, and/or
no-curb cut areas.

Similarly, the affidavit from Green Mountain's president stated

that he explored the possibility of locating a tower or antennae on

an existing structure or constructing a network of dispersed

antennae, but ultimately decided that neither option was viable.

His affidavit also described efforts to locate alternative sites

and the evaluation of the local residents' proposed sites.

Supplementing these affidavits, Green Mountain also submitted

deposition testimony from both its president and the consultant

describing efforts to locate and evaluate alternative sites.

In addition, Green Mountain submitted a newly prepared

report from an independent engineering firm, hired to evaluate

alternative locations "in the vicinity of the interchange for the

proposed cell tower." While this report did not evaluate sites

outside of the immediate area around Exit 3 in Milton, it did

conclude that Green Mountain's preferred site is "best suited for

the tower installation, and likely the only location that [the

Massachusetts Department of Transportation] will approve."

Finally, Green Mountain submitted statements, deposition testimony,

-41-
and coverage maps from engineers working for T-Mobile and metroPCS.

This evidence tended to show that a coverage gap existed within

the networks of each of these carriers.

We express no opinion as to whether this evidence is

sufficient to carry Green Mountain's burden of establishing that

there were no feasible alternatives to its proposal and that the

Board's decision thus constituted an effective prohibition. Not

surprisingly, the appellees argue, as they did before the district

court, that the reasons given by Green Mountain for rejecting the

alternate sites identified by local residents were inadequate.

Green Mountain is correct that the district court should have made

written findings resolving these factual disputes and evaluating

the evidence offered by the BOA. Likewise, the court should have

addressed the effective prohibition claim against the MCC in a

similar fashion.15

Unlike the substantial evidence analysis, an effective

prohibition claim "present[s] questions that a federal district

court determines in the first instance without any deference to the

15
Green Mountain was subject to the permitting requirements
of both the BOA and MCC, and either agency's decision could have
independently been an effective prohibition. The existence of an
effective prohibition may turn on the rationale for the denial of
an application or the specific criteria relied upon by the
administrative body. To say that there is a feasible alternative
under one set of regulatory standards does not mean that there are
also alternatives under differing standards. The effective
prohibition analyses with respect to the BOA and MCC may be
largely, or even entirely, overlapping, but if that was the case
the court should have explained why that was so.

-42-
[local regulatory authority]," Nat'l Tower, 297 F.3d at 22, and a

district court may rely on "evidence . . . presented in court that

is outside of the administrative record compiled by the local

authority," id. Here, the court failed to consider the evidence

submitted by Green Mountain documenting its attempts to locate and

evaluate alternative sites. Additionally, the court did not

address Green Mountain's effective prohibition challenge to the

MCC's decision. Accordingly, we must remand to the district court

for reconsideration of the effective prohibition claims against the

BOA and MCC. We leave 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.

IV.

For the foregoing reasons, we affirm the district court's

decisions with regard to Green Mountain's substantial evidence

claims against the BOA and MCC. However, we vacate the district

court's grant of summary judgment in favor of the BOA and MCC on

Green Mountain's effective prohibition claims, and remand the case

to the district court for consideration of these claims. Each

party shall bear their own costs.

So ordered.

-43-