United States Court of Appeals
For the First Circuit
No. 99-2185
BETHIA BREHMER, ET AL.,
Plaintiffs, Appellants,
v.
PLANNING BOARD OF THE TOWN OF WELLFLEET;
OMNIPOINT COMMUNICATIONS, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Circuit Judge,
and Lisi,* District Judge.
Edward J. Collins for appellant.
Patrick J. O’Toole, Jr., with whom Craig M. Tateronis,
Richard W. Holtz, and Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, PC, were on brief, for appellees.
February 6, 2001
____________________
*Of the District of Rhode Island, sitting by designation.
STAHL, Circuit Judge. A group of citizens from
Wellfleet, Massachusetts, seeking to undo their town Planning
Board's award of a special zoning permit authorizing
construction of a wireless telecommunications tower in the
steeple of an historic church, sued the Planning Board and the
permit recipient, Omnipoint Communications, Inc. The citizens'
group claimed that the issuance of the permit, an action that
the Planning Board was obliged to perform under a consent
judgment for its earlier violation of the federal
Telecommunications Act ("TCA" or "Act"), was unlawful because it
failed to follow the procedural strictures of Massachusetts
zoning law. The district court disagreed and granted
defendants' motion for summary judgment, finding that the permit
had been properly issued and that plaintiffs had not
demonstrated standing under Massachusetts law. The plaintiffs
below appeal from that judgment. We affirm.
I. Background
In May 1998, Omnipoint1 submitted a formal application
to the Planning Board of Wellfleet, Massachusetts ("Planning
1
As noted in Part III, infra, several entities of
"Omnipoint" have been involved in the various stages of this
dispute -- a fact whose legal significance is a point of
contention between the parties in this appeal. For the sake of
clarity, we refer to the collective entities as "Omnipoint"
throughout the opinion, and address the ramifications of
Omnipoint's corporate structure in Part III, infra.
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Board" or "Board") for a special permit to install wireless
telecommunications equipment inside the steeple of the First
Congregational Church of Wellfleet. This location was suggested
by the Planning Board during initial consultations as an
alternative to the nearby site that Omnipoint had initially
proposed, and was worked out with the church's trustees in a
site-lease agreement. After the formal request was submitted,
the Planning Board held four hearings on the issue. During the
pendency of the permit application, however, a measure of public
opposition grew to the plan to locate the equipment inside the
church steeple. At the final hearing on October 5, 1998, the
Planning Board put the permit application to a vote. Although
the five members of the Board unanimously concluded that
Omnipoint had satisfied all criteria of the town's zoning
bylaws, three members nonetheless voted against issuance of the
permit. Two of the three Planning Board members voting "no"
explained in written statements that their decisions were
largely based on concerns about the potential health effects of
the telecommunications facility.
On November 4, 1998, Omnipoint sued the Planning Board
in federal district court under 47 U.S.C. § 332(c)(7)(B)(v) as
a party "adversely affected by a[] final action . . . by a State
or local government" acting to regulate personal wireless
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service facilities. It contended that the Board impermissibly
relied on the potential environmental effects of the
telecommunications tower as a reason for rejecting the permit
application under the TCA. See id. § 332(c)(7)(B)(iv)
(prohibiting state and local governments from regulating
wireless telecommunications facilities "on the basis of the
environmental effects of radio frequency emissions" provided
that those facilities comply with pertinent federal
regulations). Omnipoint also sought damages arising from the
permit denial under 42 U.S.C. § 1983. Soon thereafter,
Omnipoint and the Planning Board entered into publicly disclosed
settlement negotiations.2 The parties eventually settled their
differences, with Omnipoint agreeing to abandon its claim for
damages, to perform environmental testing on the
telecommunications equipment, and to place warning signs in the
vicinity of the site, in consideration of the Planning Board's
pledge to issue the previously withheld special permit. This
agreement was memorialized in a consent judgment entered by the
district court on February 5, 1999. On March 24, 1999, the
Planning Board issued the special permit as promised.
2
At least three of the appellants in this case lodged a
formal protest against the town's decision to negotiate a
settlement, and subsequently demanded a right to participate in
the negotiations once commenced, but none formally intervened in
the suit brought by Omnipoint.
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Dissatisfied with this course of events, a group of
Wellfleet citizens sued the Planning Board and Omnipoint in
Barnstable Superior Court on April 14, 1999, seeking to have the
federal consent judgment set aside as unlawful. Plaintiffs
contended that the Planning Board, in issuing the special permit
pursuant to the consent agreement, violated state zoning law by
granting a previously denied special permit in the absence of
public notice and hearing. Mass. Gen. Laws ch. 40A, §§ 9, 11.
Plaintiffs also claimed that Omnipoint had violated sundry
provisions of Wellfleet's zoning regulations, and had
disregarded procedures mandated by the National Environmental
Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4335, and Section 106 of
the National Historic Preservation Act ("NHPA"), 16 U.S.C. §
470f. Omnipoint successfully removed the case to federal
district court based on the substantial issues of federal law
implicated by plaintiffs' complaint, i.e., the preemptive effect
of the TCA and the validity of the consent judgment that had
been issued by the district court. See City of Chicago v. Int'l
Coll. of Surgeons, 522 U.S. 156, 164 (1997).
By May 24, 1999, Omnipoint had secured the historic-
preservation and building permits that it needed to begin
construction of the tower. Within hours of commencing work on
the project on June 2, however, an emergency motion for a
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temporary restraining order was filed by the Wellfleet citizens'
group. On June 4, the district court granted the TRO
conditioned on plaintiffs' posting of a $50,000 bond. The TRO
blocked further work on the installation until the hearing on
plaintiffs' motion for a preliminary injunction in the zoning
suit, scheduled to occur one week later. Because plaintiffs
failed to meet the $50,000 bond requirement imposed by the
court, the TRO automatically expired. This left Omnipoint free
to construct the telecommunications facility in the church
steeple, a task it completed within one week.
On June 11, 1999, the district court denied plaintiffs'
motion for a preliminary injunction and invited the parties'
motions for summary judgment. At a subsequent hearing on August
4, 1999, the district court informed the parties that it would
grant Omnipoint's motion for summary judgment. In so ruling,
the court reasoned that plaintiffs had not established their
status as "aggrieved persons" under Massachusetts law, and hence
had no standing to bring suit. Alternately, the district court
held that Massachusetts zoning law did not provide relief to
plaintiffs under these circumstances. The court found that
since the Planning Board had acknowledged that its earlier
denial of the special permit violated the TCA, "it would be
inappropriate and, in fact, a waste of time and energy to order
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a Planning Board to reconvene a process when the appropriate
remedy for a violation of the TCA, in fact, is injunctive relief
by way of a written order such as the relief given by this
Court."
On appeal, the Wellfleet citizens' group renews its
objections to the procedure by which the special permit was
awarded to Omnipoint. Appellants claim that the Planning Board,
subsequent to its acknowledged contravention of the TCA, should
not have simply awarded the permit, but was instead required by
Massachusetts zoning law to convene further public hearings in
order to allow for the presentation of additional evidence and
the opportunity to vote anew on the permit application. Going
one step further, appellants contend that nothing in the TCA
requires that Massachusetts zoning law be disregarded in
instances where a town planning board's decision to deny a
special zoning permit is determined to have violated the TCA.
Appellants also raise a host of other issues, including the
significance of Omnipoint's separate entities in the permit-
award process and the permissibility of the special permit under
federal environmental and historic-preservation laws.
II. Special Permit Issuance Procedure
Appellants' principal contention is that the Wellfleet
Planning Board acted outside the scope of its authority in
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issuing the special permit to Omnipoint pursuant to its
negotiated settlement, rather than according to the procedures
prescribed by state zoning law. Their brief cites extensively
to Massachusetts cases holding that a planning board's decision
to grant an application for a previously denied special permit
is invalid if it was not preceded by a fresh round of public
notice and hearing. We review the district court's grant of
summary judgment de novo, and draw factual inferences in the
light most favorable to appellants. Town of Amherst v.
Omnipoint Communications Enters., Inc., 173 F.3d 9, 13 (1st Cir.
1999).
We start from the uncontroverted premise that the
Planning Board violated the TCA when it rejected the initial
special-permit request based on the potential health risks posed
by the telecommunications equipment, in spite of its
acknowledgment that Omnipoint had satisfied all criteria of
Wellfleet's zoning bylaws. The Board essentially admitted as
much when it entered into a negotiated settlement with Omnipoint
and agreed to issue, without further process, a permit it had
already denied. Because the TCA does not expressly state the
remedy to be ordered for violations of its substantive
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provisions,3 the district court, in ruling on the Wellfleet
citizens' suit, could have either endorsed the Planning Board's
direct issuance of the permit, or required that the Board hold
further hearings on the matter. In ratifying the settlement
agreement, the district court chose the course followed by the
majority of courts in comparable situations: awarding injunctive
relief in the form of an order requiring that the wrongfully
withheld permit issue.4 See, e.g., Cellular Tel. Co. v. Town of
Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999) (collecting cases).
Several factors counsel the adoption of this approach.
First and foremost, the TCA provision that provides a cause of
action in this setting places a premium on the speedy resolution
of such proceedings, directing district courts to "hear and
3The provision that confers jurisdiction on district courts
in cases where wireless facilities siting decisions violate the
TCA merely directs courts to "hear and decide such action[s] on
an expedited basis." 47 U.S.C. § 332(c)(7)(B)(v).
4There is admittedly much more precedent on the issue of how
a court should deal with a planning board found by the court to
be in violation of the TCA, as opposed to one that has conceded
its own error. But we believe that, for reasons discussed
below, the rationale for permitting courts to endorse consent
judgments such as the one in this case is just as strong as the
rationale for permitting them to order the issuance of a permit
by a planning board adjudged to have violated the TCA. See
Lucas v. Planning Bd. of LaGrange, 7 F. Supp. 2d 310, 322
(S.D.N.Y. 1998) (refusing to vacate consent judgment between
town planning board and telecommunications provider "simply
because it is alleged that the Town was unable to, or did not,
adhere precisely to its own state's procedures").
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decide such action[s] on an expedited basis." 47 U.S.C. §
332(c)(7)(B)(v); see also Town of Amherst, 173 F.3d at 17 n.8
("Congress made clear [in § 332(c)(7)(B)(v)] that it expected
expeditious resolution both by the local [zoning] authorities
and by courts called upon to enforce the federal limitations
[under the TCA]."). An award of injunctive relief, rather than
a remand for further proceedings, best fulfills this statutory
goal. Town of Oyster Bay, 166 F.3d at 497. Second, in cases
such as this one, where a planning board knows to a relatively
high degree of certainty that its earlier denial of a special
permit is violative of the TCA, it is not unreasonable for the
board to settle with the applicant on the terms most favorable
to the town rather than to engage in litigation doomed from the
start. As we have previously noted, such settlements are fully
consistent with the TCA's aims. See Town of Amherst, 173 F.3d
at 17 ("[I]t is in the common interest of [planning boards] and
[telecommunications providers] to find ways to permit the siting
of towers in a way most congenial to local zoning."). Requiring
further hearings for the sole purpose of revisiting the
underlying validity of the permit application would complicate
the settlement process and delay the ultimate resolution of the
zoning dispute. Finally, appellants have identified no
practical benefit to sending the matter back to the Planning
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Board in order to have that body hold a hearing destined to
result in the issuance of the special permit. Because all
relevant evidence was adduced at the initial hearing -- after
all, the Planning Board unanimously found that Omnipoint's
request satisfied the town zoning bylaws in all respects -- a
remand to the Planning Board would serve no useful purpose.
Omnipoint Corp. v. Zoning Hearing Bd., 181 F.3d 403, 410 (3d
Cir. 1999). For all of these reasons, we find that the
applicable law does not require that the Planning Board hold
further hearings in a TCA case before issuing the special
permit.5
Appellants claim that even if the district court
correctly ordered the issuance of the special permit for the
Planning Board's TCA violation, the court should have
nonetheless followed Massachusetts zoning law by requiring that
the permit only be issued after a new round of public notice and
5
We are aware of at least two district court decisions that
have held that remand for further proceedings before local
zoning officials is the more appropriate course. See PrimeCo
Pers. Communications, L.P. v. Village of Fox Lake, 26 F. Supp.
2d 1052, 1066 (N.D. Ill. 1998); AT & T Wireless Servs. of Fla.,
Inc. v. Orange County, 982 F. Supp. 856, 860-62 (M.D. Fla.
1997). Both cases, however, are distinguishable. In PrimeCo
the plaintiff sought relief via a writ of mandamus, rather than
through 47 U.S.C. § 332(c)(7)(b)(v). 26 F. Supp. 2d at 1066.
And in AT & T Wireless the town planning board had never made a
formal determination that the application complied with local
zoning bylaws. 982 F. Supp. at 861.
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hearing. But we believe that the state law that might
ordinarily control such disputes is preempted in this setting,
for similar reasons as those favoring injunctive relief in the
first place. Having determined that Congress meant to empower
district courts to order that town planning board decisions in
violation of § 332(b)(7)(C) be set aside, it would make little
sense to further conclude that courts exercising that authority
must do so within the confines of state zoning procedure. Under
the TCA, local zoning ordinances, such as those invoked by
appellants, apply only to the extent that they do not interfere
with other provisions of the Act. Sprint Spectrum, L.P. v. Town
of Easton, 982 F. Supp. 47, 50 (D. Mass. 1997). In this case,
a remand for further hearings, which appellants claim
Massachusetts law requires, would accomplish nothing more than
opening up for public debate the issue of whether the Planning
Board should comply with the terms of the settlement agreement
it had entered into (not to mention the consent decree embodying
that settlement).6 Patterson v. Omnipoint Communications, Inc.,
6It is far from clear, moreover, that appellants' argument
regarding the need for further proceedings before the Planning
Board is correct even as a matter of Massachusetts law. The
Supreme Judicial Court has noted that when a zoning board of
appeals is shown to have erroneously interpreted applicable
zoning law, and that error leads to the wrongful denial of a
special permit, "the issuance of a permit is a matter of duty,
not discretion, and relief in the form of an order that a permit
issue is appropriate." Framingham Clinic, Inc. v. Zoning Bd. of
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122 F. Supp. 2d 222, 228 (D. Mass. 2000); cf. Roberts v.
Southwestern Bell Mobile Sys., Inc., 709 N.E.2d 798, 806 (Mass.
1999) ("Congress certainly intended to protect providers of
[personal wireless] services from irrational or substanceless
decisions by local authorities who might bend to community
opposition to these facilities.").7 As such, Massachusetts law
requiring a remand for further proceedings under these
circumstances (if, indeed, such is the law) "stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress," Hines v. Davidowitz, 312
U.S. 52, 67 (1941), and is consequently preempted by the TCA.
Appellants make a final equitable argument that this
method of awarding special permits, which they describe as being
"worked out by the adepts in secret away from the gaze of the
Appeals, 415 N.E.2d 840, 848-49 (Mass. 1981). Moreover,
Massachusetts state courts are authorized to issue permits
wrongfully withheld by local zoning officials "as justice and
equity require." Mass. Gen. Laws ch. 40A, § 17.
7 Appellants rely heavily on Roberts to support their
argument that Massachusetts zoning procedure is not preempted in
the case at bar. Roberts, however, is readily distinguishable,
as it merely decided that in cases where a planning board grants
a special permit in the first instance, the TCA does not preempt
de novo judicial review of the propriety of the permit award
under state or local law. 709 N.E.2d at 806-07. That situation
is demonstrably different from the case at bar, where the
Planning Board's initial consideration of the special-permit
application followed state zoning procedure but the decision
reached was nonetheless improper as a matter of federal law.
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citizens of Wellfleet to protect the mystery," is fundamentally
unfair in that it effectively shuts them out of the permitting
process. We cannot agree with this characterization of the
process followed, as appellants had the opportunity to
intervene, and fully assert their rights, in the suit brought by
Omnipoint against the Planning Board that ultimately led to the
settlement agreement. Appellants failed, however, to avail
themselves of that opportunity. We find that their belated
attempt now to use Massachusetts zoning procedure to undo the
settlement agreement is precluded by the TCA.8
III. Other Issues
In addition to their challenge under Massachusetts
zoning law, appellants raise a number of other issues related to
the issuance of the special permit. First, appellants argue
that the fact that the district court awarded the permit to an
entity (Omnipoint Communications) distinct from both the one
that initially brought the TCA suit against the Planning Board
(Omnipoint Communications, Inc.) and the one that initially
8The district court also granted summary judgment based on
a finding that plaintiffs lack standing under Massachusetts
zoning law. While there may be some question about appellants'
status as "aggrieved persons" within the meaning of state law,
their allegations on this point are not frivolous or wholly
insubstantial and appear to be sufficient to plead Article III
standing. Cablevision of Boston, Inc. v. Pub. Improvement
Comm'n of Boston, 184 F.3d 88, 100 n.9 (1st Cir. 1999).
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applied for the permit (Omnipoint Communications Enterprises)
compromised the integrity of the permitting process. The
district court, relying on an affidavit submitted by yet another
Omnipoint entity (Omnipoint Communications MB Operations, LLC),
accepted the factual assertion that the Omnipoint parties "are
one and the same, united as subsidiaries" of Omnipoint
Communications Inc. Appellants have not rebutted this finding
of fact, and we find no reason to disturb it.
Second, appellants claim that Omnipoint failed to
comply with the National Environmental Policy Act ("NEPA") and
Section 106 of the National Historic Preservation Act ("NHPA")
in obtaining the permits needed to begin work on the wireless
telecommunications tower. The record, however, belies these
assertions. With respect to appellants' NHPA claim, the
evidence shows that Omnipoint applied to the Massachusetts State
Historic Preservation Office ("SHPO") for a construction permit
on a site listed on federal and state Registers of Historic
Places; that the SHPO, after considering the concerns of local
citizens opposed to the siting of the wireless facility in the
church steeple, concluded that the proposed installation plan
would have "no adverse effect" on the site, provided certain
enumerated conditions were met by Omnipoint; and that the SHPO
sent a written copy of this determination to the Federal
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Communications Commission ("FCC"), to be forwarded to the
federal Advisory Council on Historic Preservation. Despite
appellants' protestations to the contrary, these were all the
steps required to be taken under NHPA and the relevant
regulations, see 36 C.F.R. § 800.5, and the absence of
additional evidence in the record regarding further action by
the FCC is not germane to the validity of Omnipoint's
application.
Appellants' NEPA claim is equally unavailing. Under
NEPA, wireless providers need only conduct environmental
assessments of telecommunications-tower projects if the
construction would have a "significant environmental effect," as
that term is defined under the regulations. See 47 C.F.R. §
1.1306. In this case, the SHPO's "no-adverse-effects"
determination led Omnipoint to conclude that the church steeple
construction did not fall within any of the "significant
environmental effect" categories under the regulations, and that
an environmental assessment was therefore unnecessary.9 In
9
Only one of the "significant environmental effect"
categories was even arguably implicated by the Omnipoint
construction: facilities "that may affect . . . sites . . .
that are listed, or . . . are eligible for listing, in the
National Register of Historic Places." 47 C.F.R. §
1.1307(a)(4).
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making this determination, Omnipoint fulfilled its rather modest
obligations under NEPA.
Finally, appellants obliquely raise several other
issues at the end of their brief, including the propriety of
Omnipoint's removal of this case to federal court, the size of
the bond requirement imposed by the district court in
conjunction with the TRO, and the treatment of the church under
the Wellfleet zoning bylaws. These arguments are neither well-
developed nor supported in the brief by case-law citations, and
consequently they have been waived. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.").
Affirmed. Costs to appellees.
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