National Tower, LLC v. Plainville Zoning Board of Appeals

United States Court of Appeals
For the First Circuit

____________________

No. 01-2472

NATIONAL TOWER, LLC; OMNIPOINT COMMUNICATIONS, INC.,

Plaintiffs, Appellees,

v.

PLAINVILLE ZONING BOARD OF APPEALS, FRANK A. FREY JR.,
WALTER S. LEWICKI, CLAY CONRAD, PHILIP SIAS, LELAND SULLIVAN,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

____________________

Before

Selya, Lynch, and Howard, Circuit Judges.

____________________
John P. Lee with whom Maureen A. Lee was on brief for
appellants.

Brian C. Levey with whom Marisa L. Pizzi and Bowditch &
Dewey, LLP were on brief for appellees.

____________________

July 18, 2002
____________________
 LYNCH, Circuit Judge. The federal courts now routinely

hear cases brought under the Telecommunications Act of 1996 by

those who wish to construct cellular antenna towers and have been

denied permission to do so by local town officials. Here, the

Zoning Board of Appeals of the Town of Plainville, Massachusetts

denied the needed zoning permits and variances to National Tower

and Omnipoint Communications (collectively "Omnipoint").

Omnipoint sued under 47 U.S.C. § 332(c)(7)(B)(v), which

provides a federal cause of action to a person adversely affected

by a state or local decision that violates the 1996 Act. It also
raised claims under state law and under 42 U.S.C. § 1983. The

district court found that defendants had violated the Act, and
granted Omnipoint partial1 summary judgment. Nat'l Tower, LLC v.

Frey, 164 F. Supp. 2d 185 (D. Mass. 2001). The court concluded

that the actions of the board effectively prohibited the provision
of seamless wireless service in Plainville in violation of 47
U.S.C. § 332(c)(7)(B)(i)(II). As a remedy, the court ordered

issuance of the variances and permit. We affirm.
I.
Because the district court granted summary judgment, we

review the facts taking all inferences in the light most favorable
to the board. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40,

42 (1st Cir. 2002). The material facts as set forth in the

1
Although the district court's order granted only partial
summary judgment, this court determined on December 14, 2001, that
the judgment was effectively final, and therefore permitted this
appeal to proceed.

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district court's opinion are essentially undisputed, and so we

adopt them and add some others from the record. The parties do,

however, dispute the inferences to be drawn from those facts.
In June 2000, Omnipoint applied to the board for

variances from the dimensional by-laws (prohibiting both multiple

uses on one lot and structures over two stories) and from the by-
law prohibiting radio transmission use. Omnipoint needed these

variances in order to erect a 170-foot-tall "lattice" transmission

tower on approximately 5000 square feet of a two-and-one-half-acre

parcel at 75 Washington Street in Plainville. The site abuts

property owned by the New England Power Company, which contains

electric transmission lines and poles and is developed for public

utility use.
Omnipoint’s objective was to close a two-mile (non-

contiguous) gap in its cellular coverage along the heavily traveled

highway Routes 1 and 106. In the vicinity of the coverage gap,
approximately 17,000 vehicles travel daily along Route 1 and 10,000

along Route 106. Because of the gap in coverage, a cellular user

either cannot connect or cannot maintain a connection. The

proposed site lies in a General Commercial District (a "CB

District"), and is partially covered by a Watershed Protection

Overlay District. Under the town by-law, a radio tower is a

prohibited use in a CB District and requires a special permit in a

Watershed Protection District. Plainville, Mass. Zoning By-law ch.

III, § 2.8 (1999). Moreover, a structure in a CB District may not

exceed two stories in height. An engineer working for Omnipoint

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testified, and the board does not dispute, that a two-story tower

in compliance with the by-law would not close the gap. The board

may, however, grant both use and dimensional variances for reasons
consistent with the state zoning law. See Mass. Gen. Laws ch. 40A,

§§ 10, 14 (2000). Similarly, the board may grant a special use

permit in a Watershed Protection District so long as it makes
certain findings, primarily that there will be no adverse impact on

the watershed as a result. By-law ch. III, § 3.12.5.

Omnipoint conducted computer simulations and drive tests

to identify possible sites for a tower to rectify the break in its

coverage. An investigation of the sites thus identified led to the

selection of the disputed site. All other possible sites were in

the same general area and therefore subject to the same zoning
restrictions.2 This evidence was submitted to the board, primarily

through Omnipoint’s application for the use and dimensional

variances. In its initial application Omnipoint characterized its
tower as a wireless communications facility. It sought the needed

permits and variances, which the by-law permitted the town to

grant. See By-law ch. III, § 1.4.3.

The board published the requisite notice in a local

newspaper, characterizing the application as being for a "radio

tower." It held a hearing to consider the application on July 18.

Midway through the hearing, the board determined that it had been

mistaken in publishing notice of a proposed siting of a "radio

2
The record does not make clear whether the other
potential sites were within the Watershed Protection District.

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tower" on the site. The board voted to suspend the hearing and

readvertise the tower as a "public utility" (a permitted use in a

CB District). The hearing resumed on September 26, with Omnipoint
pressing its case for a dimensional variance. Omnipoint presented

evidence of the coverage gap and evidence that it said showed there

were no other suitable sites. The board at the hearing articulated
no objections to the application, although several owners of

abutting property did object.

Meanwhile, on August 24, 2000, Omnipoint filed an

application for a special watershed permit. The hearing on this

application was held on October 3, 2000. As at the hearing on the

application for the dimensional variance, the board gave no

indication that it might not grant the permit.
On October 17, the board unanimously rejected both

applications. The board sent Omnipoint two letters dated October

27 explaining its decision. As to the request for the variances,
the first letter stated:

In denying the variances, the Board found that in a CB
Zoning District a wireless communications facility is not
a use permitted as a matter of right or a use permitted
by special permit and that a use variance, which would be
required for the construction of such is not permitted
under the Zoning By-Law. In this respect, the Board
notes that Chapter 40A, Section 10 of the General Laws,
provides in relevant part as follows:

"Except where local ordinances or by-laws shall
expressly permit variances for use, no variance
may authorize a use or activity not otherwise
permitted in the district in which the land or
structure is located."

The Zoning By-Law makes no provision for use variances.
As the basis for its denial of the variances is that it
has no legal authority to grant them, the Board made no

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 further findings with respect to other objections made to
the construction of such facility, particularly as to
whether there exists any other location in the Town where
such construction is permitted under the Zoning By-Law.

The reasons given in the second letter for the rejection of the

watershed permit were as terse:
On this date, the Board denied the variances requested by
the applicant on the grounds that in the underlying CB
Zoning District a wireless communications facility is not
a use permitted as a matter of right or a use permitted
by special permit and that a use variance, which would be
required for the construction of such facility, is not
permitted under the Zoning By-Law. The construction of
a wireless communications facility is clearly not
permitted in the underlying CB Zoning District.
Accordingly, it is not permitted by special permit in the
overlay Watershed Protection District as the proposed use
must meet the zoning requirements of both the underlying
district and the overlay district.
This lawsuit, and appeal, followed.

II.

The board appeals the order against it, making three
arguments. It says the district court erred in granting

Omnipoint’s motion for partial summary judgment on the facts in

this case because, first, the board’s decisions do not prohibit or

have the effect of prohibiting the provision of wireless services

in the town; second, the board’s decisions are supported by

substantial evidence in a written record; and, third, the board’s

decisions do not unreasonably discriminate among providers of

functionally equivalent services.

We reach only the first two of these arguments.

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A. General Standards

The Telecommunications Act is an exercise in cooperative

federalism and represents a dramatic shift in the nature of
telecommunications regulation. See generally Cablevision of Boston

v. Pub. Improvement Comm'n, 184 F.3d 88, 97-100 (1st Cir. 1999).

The Act attempts, subject to five limitations, to preserve state
and local authority over the placement and construction of

facilities. 47 U.S.C. § 332(c)(7)(A)-(B) (1994 & Supp. II 1996);

Town of Amherst, N.H. v. Omnipoint Communications Enters., 173 F.3d

9, 12 (1st Cir. 1999). Several of those limiting provisions apply

to this case.

The first relevant limitation, set forth in subsection

(B)(i), provides that in regulating the placement and construction
of facilities, a state or local government or instrumentality

"shall not prohibit or have the effect of prohibiting the provision

of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II).
It is undisputed that in this case there is a significant coverage

gap. The argument that no tower is needed is unavailable to the

town. Several courts have held that local zoning decisions and

ordinances that prevent the closing of significant gaps in the

availability of wireless services violate the statute. See

Cellular Tel. Co. v. Zoning Bd. of Adjustment, 197 F.3d 64, 68-70

(3d Cir. 1999); Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643

(2d Cir. 1999); Omnipoint Communications MB Operations, LLC v. Town

of Lincoln, 107 F. Supp. 2d 108, 117 (D. Mass. 2000). Finding

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their reasoning persuasive, we now join their number and will

analyze Omnipoint's claim with that standard in mind.

The second limitation requires the local government to
"act on any request for authorization to place, construct, or

modify personal wireless service facilities within a reasonable

period of time after the request is duly filed . . . taking into
account the nature and scope of such request." 47 U.S.C.

§ 332(c)(7)(B)(ii). Similarly, a reviewing court must hear and

decide the action "on an expedited basis." Id. § 332(c)(7)(B)(v).

The third states that the denial of a request must be in writing

and supported by substantial evidence contained in a written

record. Id. § 332(c)(7)(B)(iii). The fourth authorizes judicial

review of either final action or a failure to act by the local
government that is inconsistent with statutory requirements and

limitations. Id. § 332(c)(7)(B)(v).3

There is tension between two objectives of the Act: the
objective "to facilitate nationally the growth of wireless

telephone service," and the objective "to maintain substantial
local control over siting of towers"; this and other courts have

attempted to achieve the proper balance. Amherst, 173 F.3d at 13.

The principles announced in our opinions provide guidance as to

that balance. The first limitation -- that a town may not through

its decisions have "the effect of prohibiting" wireless service --

3
Another provision prohibits unreasonable discrimination
among providers of functionally equivalent services. Id.
§ 332(c)(7)(B)(i)(I). Although Omnipoint alleges such
discrimination, we do not need to reach this issue.

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raises the question whether the statute refers only to a blanket

ban or whether it may, depending on the facts, encompass individual

application decisions. This court has resolved that question and
read the statute to encompass individual decisions:

[o]bviously, an individual denial is not automatically a
forbidden prohibition violating the "effects" provision.
But neither can we rule out the possibility that -- based
on language or circumstances -- some individual decisions
could be shown to reflect, or represent, an effective
prohibition on personal wireless service.

Id. at 14. The effective prohibition clause can be violated even

if substantial evidence exists to support the denial of an

individual permit under the terms of the town's ordinances. The

burden is on the proponent of the tower to show "that further
reasonable efforts are so likely to be fruitless that it is a waste

of time even to try." Id.

Similarly, this court has resolved the tension between
the recognition that local authorities are frequently lay member

boards without many resources and the recognition that the Act

provides for judicial review based on a written decision, supported

by "substantial evidence" in a "written record." The balance
struck is that we do not require formal findings of fact or

conclusions of law in a board's written decision. Nor need a

board's written decision state every fact in the record that

supports its decision. S.W. Bell Mobile Sys. v. Todd, 244 F.3d 51,

59-60 (1st Cir. 2001). By the same token, the board, in its

decision, may not hide the ball. Its written denial must contain

a sufficient explanation of the reasons for the denial "to allow a

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reviewing court to evaluate the evidence in the record supporting

those reasons." Id. at 60.

We now make explicit another aspect of judicial review of
local decisions. A board may not provide the applicant with one

reason for a denial and then, in court, seek to uphold its decision

on different grounds. That result follows not only from the
requirement that the decision provide an adequate explanation to

support judicial review, but also from the background understanding

of the model of judicial review of administrative actions against

which the Act was enacted. See H.R. Conf. Rep. No. 104-458, at 208

(1996), reprinted in 1996 U.S.C.C.A.N. 124, 223 ("The phrase

'substantial evidence contained in a written record' is the

traditional standard used for judicial review of agency actions.").
That model customarily prohibits a court from affirming an agency

on grounds other than those the agency gave in its decision. FEC

v. Akins, 524 U.S. 11, 25 (1998); Motor Vehicle Mfrs. Ass'n of U.S.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983); SEC v.

Chenery Corp., 318 U.S. 80, 88 (1943) ("If an order is valid only

as a determination of policy or judgment which the agency alone is

authorized to make and which it has not made, a judicial judgment

cannot be made to do service for an administrative judgment.").

The analogy of a local zoning board to a federal

administrative agency for judicial review purposes has its limits,

however. When a federal court refuses to uphold a federal agency's

decision based on reasons the agency has advanced only after the

fact, the court will ordinarily remand to the agency for further

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action. If the agency chooses, it may then reach the same result

and defend it with new reasons. See Akins, 524 U.S. at 25 (noting

that a reviewing court unsatisfied with the reasons given for an
agency's decision "will set aside the agency's action and remand

the case -- even though the agency . . . might later, in the

exercise of its lawful discretion, reach the same result for a
different reason"). Courts remand to agencies in such cases

because, among other reasons, Congress has committed to the agency

the task of policymaking where the governing statute is not clear.

See Chenery, 318 U.S. at 88 ("For purposes of affirming no less

than reversing its orders, an appellate court cannot intrude upon

the domain which Congress has exclusively entrusted to an

administrative agency.").
Although Congress in the Telecommunications Act left

intact some of local zoning boards' authority under state law, we

do not think it meant to provide for them as much deference as a
federal agency receives, nor to give them new policymaking

authority under the Act. The statutory requirements that the board

act within "a reasonable period of time," and that the reviewing

court hear and decide the action "on an expedited basis," indicate

that Congress did not intend multiple rounds of decisions and

litigation, in which a court rejects one reason and then gives the

board the opportunity, if it chooses, to proffer another. Instead,

in the majority of cases the proper remedy for a zoning board

decision that violates the Act will be an order, like the one the

district court issued in this case, instructing the board to

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authorize construction. See Brehmer v. Planning Bd., 238 F.3d 117,

120-22 (1st Cir. 2001) (discussing and approving decisions by the

majority of district courts granting injunctive relief in

Telecommunications Act cases); Cellular Tel. Co. v. Town of Oyster

Bay, 166 F.3d 490, 497 (2d Cir. 1999) (same).

In short, a board’s decision may not present a moving

target and a board will not ordinarily receive a second chance. In

addition to preventing undue delay, this approach gives the

applicant a fair chance to respond to the board’s reasons, and

perhaps satisfy the board, without first having, literally, to make
a federal case out of the dispute. Thus, we will not uphold a

board's denial of a permit on grounds that it did not present in
its written decision. As we discuss later, however, the
appropriate remedy in that situation may not always be an

injunction, but may sometimes be a remand, depending on the nature
of the board's decision and the circumstances of the case.
Apart from its instructions to local zoning authorities,

Congress has also specified the terms of judicial review. These
terms themselves amount to an allocation of decisional authority
between the local boards and the federal courts. The standards by

which district courts, and this court, review state and local
decisions under the Act are not unitary. The scope of judicial
review depends on the nature of the issue presented and the

statutory limitation involved.
The anti-prohibition, anti-discrimination, and

unreasonable delay provisions, 47 U.S.C. § 332(c)(7)(B)(i)-(ii),

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present questions that a federal district court determines in the

first instance without any deference to the board. Any or all of

these questions may well require evidence to be presented in court
that is outside of the administrative record compiled by the local

authority. Amherst, 173 F.3d at 16 n.7. If the district court

then grants summary judgment, our review of the grant is de novo as
well. Id. at 15. If the district court makes evidentiary findings

on such claims that go beyond the administrative record, then we

will review its factual findings for clear error and its legal

conclusions de novo.

By contrast, where judicial review is on the issue of

whether the board’s written decision is supported by substantial

evidence in the record, then judicial review is confined to the
administrative record, absent a claim of procedural irregularity.

The board, then, not the court, is the focus of the decisionmaking

process. In this inquiry, the substantial evidence standard of
review for the district court is the same that the courts have

applied in certain reviews of administrative action. S.W. Bell,

244 F.3d at 58-59. "Substantial evidence" review is that standard

articulated in Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951),

and applied in Penobscot Air Servs., Ltd. v. FAA, 164 F.3d 713 (1st

Cir. 1999):

Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion." The reviewing court must take into account
contradictory evidence in the record. But "the
possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency's
finding from being supported by substantial evidence."

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Id. at 718 (quoting Universal Camera, 340 U.S. at 477, and Am.

Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 523 (1983))

(citations omitted).
Thus, if the issue is simply one of whether the board's

decision is supported by substantial evidence, the courts defer to

the decision of the local authority, provided that the local board
picks between reasonable inferences from the record before it.

Because the reasonableness of inferences is a legal and not a

factual question, this court gives no special weight to the

district court’s decision on a substantial evidence issue and

applies the same standard of deference to the board as does the

district court. S.W. Bell, 244 F.3d at 59.

B. Application of the Standards

We start with the board’s reasons for its denial, quoted

verbatim earlier. It is difficult to know precisely what the board

meant by its legal jargon and its apparently purposeful obscurity.
The board says that it did not grant the dimensional variances

because it lacked the legal authority to do so, and that it denied
the watershed permit because it denied the variances. The board

specifically refused to make findings as to any other objections,

or to make a finding on whether there exists any other location

where such construction would be permitted under the by-law. The

board did not say anything about the tower’s status as a public

utility or as a radio tower. Instead, as we understand the order,

the board ruled that its by-laws did not allow for wireless

communications facilities in CB districts either as a matter of

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right or a use permitted by a special permit. Citing Mass. Gen.

Laws ch. 40A, § 10, therefore, the board said it lacked the power

to authorize the use because the by-law did not expressly permit
variances for wireless communications facilities.

Consulting the by-law, however, we find that it does

state that a radio tower is not permitted in a CB district, even by
special permit, but that a public utility is permitted in such a

district with a special permit. By-law ch. III, § 2.8. Viewing

the board's actions in the best light possible, then, it is

possible that when it said "wireless communications facility" in

the October 27 letters, it meant "radio tower." Perhaps the board

meant to revisit its July 18 decision (which had recharacterized

the application as for a public utility rather than as for a radio
tower) and to re-recharacterize the application as for a radio

tower rather than as for a public utility. That is the explanation

presented by counsel for the board, who suggests that the district
court must resolve whether Omnipoint's tower would be a radio tower

or a public utility, and that this is a genuinely disputed issue of

material fact that precludes summary judgment for Omnipoint at

this time.

There are two obvious problems with this position: one

factual and one legal. The factual problem is that the board did

not say this (perhaps it was too embarrassing a position to take)

and it was the board that told Omnipoint it would republish the

application as a public utility application rather than as a radio

tower application. As Omnipoint says, the board’s position means

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it would be left without any alternative. Omnipoint has tried its

application both ways -- as a radio tower and as a public utility

-- and it was blocked each time. The legal problem is that this is
exactly the sort of behavior by a board that demonstrates that it

would effectively prohibit the provision of gap-covering wireless

services. Setting out criteria under the zoning law that no one
could ever meet is an example of an effective prohibition.

Amherst, 173 F.3d at 14. The Telecommunications Act preempts such

by-law strictures. Accordingly, it no longer matters to our

inquiry under the Telecommunications Act whether Omnipoint's

proposed tower is a radio tower or a public utility under the by-

law. Neither classification will save the board's decision.

Counsel for the board then offers a different rationale:
that Omnipoint failed to satisfy the board that there were no

better alternative locations. A single denial of an application

based on a supportable finding that another location was available
would almost certainly fall short of an effective prohibition of

wireless services. If the board had in fact made such a finding,

it might also be difficult for us to say that the board’s decision

to deny was unsupported by substantial evidence.4 But the board

4
Engineer Elijah Luutu, Omnipoint’s expert, said that he
was unaware of any other feasible location, but used very qualified
language:

I am informed and believe that for reasons such as the
inability to obtain a lease or zoning compliance, among
others, there are no other feasible sites within or
without the Town of Plainville which would allow
Voicestream to provide complete service along Routes 1
and 106.

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did not take that position in its decision. Instead, it chose as

its ground that it had no legal power to authorize a wireless

communication tower anywhere in the CB district, regardless of the
existence of any alternative site. We judge its decision on those

terms.

The district court appears to have considered the lack of
evidence from the board5 about other alternative sites as evidence

that further application to the board was futile. On the "effective

prohibition" issue, district courts may take evidence beyond the

record. Still, even in that context, it is problematic whether

courts should rely on the board’s failure to come forward with such

evidence in court. We doubt that Congress intended local zoning

boards to pay for experts to prove that there are alternative sites
for a proposed tower, simply to defend themselves from an easily

made accusation in court that an individual denial of a permit

amounts to an effective prohibition. See S.W. Bell, 244 F.3d at 63

("For a telecommunications provider to argue that a permit denial

is impermissible because there are no alternative sites, it must
develop a record demonstrating that it has made a full effort to

The board might well have been justified in finding insufficient an
assertion based on information and belief. Such a qualification
would make Luutu's statement inadmissible, for example, to support
summary judgment in federal court. Fed. R. Civ. P. 56(e).
5
Where the question is one of substantial evidence,
judicial review is based on the written record before the board and
there would be no basis to require evidence from the board. The
Telecommunications Act firmly keeps initial responsibility for the
decision with the board and limits judicial review. It does not
provide for a new trial before the district court of issues
initially committed to boards, such as whether there are
alternative feasible sites.

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evaluate the other available alternatives and that the alternatives

are not feasible to serve its customers."). The board gets no

comfort from this, however. It expressly refused to decide the
adequacy of Omnipoint’s evidence about the lack of alternative

sites. As we have discussed earlier, we will not uphold a board’s

decision on grounds that were not stated to the applicant.
Since the board's order cannot be upheld on the grounds

it stated, the question becomes one of what should be the

appropriate remedy: remand to the board, or affirmance of the

injunction. While we can conceive of circumstances in which a

remand may be in order -- for example, an instance of good faith

confusion by a board that has acted quite promptly -- this case is

not a candidate for remand to the board.
Like the district court, we think the only fair inference

from the board’s words and actions in this case is that whether or

not there is a coverage gap, and whether or not there are
alternative sites that could fill that coverage gap, the board is

not prepared to permit construction on Omnipoint's chosen site. As

a result, any further reasonable efforts by Omnipoint are so likely

to be fruitless that it is a waste of time even to try. Thus, the

record compels the conclusion that the board has effectively

prohibited the provision of wireless services in violation of the

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Act.6 That justifies the remedial order entered by the

district court.7

III.
For the reasons given, the judgment of the district court

is affirmed. Costs are awarded against the defendants.

6
As the district court noted, there is no question in this
case of a potential inconsistency between the need to protect
sensitive historical or environmental sites and the "no alternative
site" theory of effective prohibition. Nat'l Tower, 164 F. Supp.
2d at 188 n.2. Although the site is technically within a Watershed
Protection District, at no stage of the proceedings has the board
invoked any substantive environmental concerns. We reserve the
question of the proper analysis were such a conflict present.
7
The district court ordered the board "to issue within
thirty (30) days of this Order the dimensional and use variances
and special permit necessary for the construction of plaintiffs'
170 foot lattice tower and maintenance facility on the locus at 75
Washington Street in Plainville." Nat'l Tower, 164 F. Supp. 2d at
190. It added that "[t]he Board may condition the issuance of the
variances and permit on plaintiffs' compliance with such reasonable
environmental conditions as are necessary to insure the protection
of the Town's watershed during the construction and operation of
the tower." Id.

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