Brehmer v. Planning Board of the Town of Wellfleet

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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