United States Court of Appeals
For the First Circuit
No. 01-2737
ATC REALTY, LLC; SBA TOWERS, INC.,
Plaintiffs, Appellees,
v.
TOWN OF KINGSTON, NEW HAMPSHIRE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Torruella, Lynch and Lipez,
Circuit Judges.
Robert D. Ciandella, with whom Robert M. Derosier and Donahue,
Tucker & Ciandella were on brief, for appellant.
Steven E. Grill, with whom Devine, Millimet & Branch, P.A.
were on brief, for appellees.
September 5, 2002
TORRUELLA, Circuit Judge. Plaintiffs-appellees ATC
Realty, LLC and SBA Towers, Inc. filed suit in district court
seeking an order directing the Town of Kingston, New Hampshire to
grant them all the permits necessary to construct a wireless
telecommunications tower in the town. The district court granted
summary judgment in plaintiffs' favor on the ground that there was
insufficient evidence to support the Town of Kingston's decision to
deny plaintiffs' application to construct a tower. Defendant-
appellant Town of Kingston ("Town" or "Kingston") appeals the
district court's grant of summary judgment, arguing that the Town's
rejection of the plaintiffs' application is supported by
substantial evidence. Because we conclude that there was
substantial evidence to support the Town's decision in the record,
we reverse entry of summary judgment for plaintiffs and direct that
summary judgment be entered for the Town.
FACTUAL BACKGROUND
Wireless service companies provide consumers with mobile
telephone service. To activate the technology upon which their
service relies, these companies must construct a network of
telecommunication towers that transmits low-power, high-frequency
radio signals. Incapable of building this network alone, they rely
on plaintiffs SBA Towers and ATC Realty (collectively, "SBA/ATC")
to develop such telecommunication towers for them. Plaintiffs, in
turn, lease antenna facilities on these towers to the wireless
service companies.
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In 1999, several wireless service providers noticed a
significant coverage gap along Route 125 in the northern region of
Kingston, New Hampshire. This gap left customers in the area
without wireless telecommunications service and disconnected the
telephone calls of mobile phone users passing through the gap.
Seeking to rectify this problem, SBA/ATC applied to the Kingston
Planning Board ("Planning Board" or "Board") for permission to
construct "an unlighted 180 foot free standing multi-user
telecommunication tower" on Marshall Road in Kingston.1 Two months
after the plaintiffs submitted their application, however, American
Tower, a direct competitor, applied for a permit to construct a
similar tower on Depot Road in Kingston.
After holding several public hearings, conducting on-site
inspections of the proposed tower locations, and consulting a
telecommunications expert, the Planning Board voted on October 17,
2000, to approve the construction of only one of the two proposed
towers. In the same meeting, the Board voted to deny the
plaintiffs' application for a construction permit and, in a
subsequent vote, to grant American Tower's application. Finally,
the Board voted again to deny plaintiffs' application.
Shortly thereafter, the Planning Board issued a written
decision formally adopting the results of the votes taken at the
1
Like many municipalities, Kingston has enacted an ordinance that
regulates the siting of wireless telecommunication towers. See
Kingston, N.H., Zoning & Building Codes art. VII, § 7.80 (1997)
("Telecommunications Facility Ordinance"). Under the ordinance, an
applicant seeking to build such a facility must obtain a
conditional use permit from the Kingston Planning Board. See id.
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October 17 meeting. Using the Town's Telecommunications Facility
Ordinance to define its criteria, the Board rejected the
plaintiffs' application on four grounds:
1) Based upon the purposes section of the
Kingston zoning ordinance letters C and E it
is the responsibility of the Kingston Planning
board to provide for minimal impact siting and
to require cooperation and coordination
between telecommunications service providers
in order to reduce cumulative negative impacts
upon Kingston.
2) The location of [SBA/ATC's] proposed
location is in close proximity to residential
abutters. While there are commercial users
backing into the property, the majority of the
abutting and nearby properties are residential
and of a rural nature. The siting of this
tower does not meet the intent of the
ordinance to reduce adverse impacts on
neighborhood aesthetics.
3) The design of the [SBA/ATC] tower does not
prevent nor reduce the visual intrusive\ness
[sic] along the NH Route 125 corridor.
Minimizing the adverse visual impact is
required by the Town’s ordinances.
4) The Planning Board hired a
telecommunication consultant to assist in
determining the technical viability of the
SBA/ATC site. This consultant provided
evidence that two proposed sites offered the
same ability to cover existing service gaps.
As a result, the SBA/ATC site failed to meet
the standard of section D) of the Town’s
ordinance which indicates that all other
reasonable opportunities have been exhausted.
In addition Section VII,. 3., paragraph h and
j require the Planning Board to consider other
factors in making decisions that include
availability of existing towers and other
structures and the availability of alternative
siting locations. The Planning board has done
this with respect to this denial.
After their application was rejected in writing, SBA/ATC
filed this suit in the United States District Court for the
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District of New Hampshire, claiming that the Board's decision was
not supported by substantial evidence as required by statute. See
47 U.S.C. § 332(c)(7)(B)(iii). The district court granted summary
judgment in plaintiffs' favor, and the Town filed this timely
appeal.
STANDARD OF REVIEW
We review de novo the district court's grant of summary
judgment. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33
(1st Cir. 2001).
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(c). "[T]o
defeat a properly supported motion for summary judgment, the
nonmoving party must establish a trial-worthy issue by presenting
enough competent evidence to enable a finding favorable to the
nonmoving party." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842
(1st Cir. 1993) (internal quotation marks omitted). In exercising
our review, we construe the record evidence "in the light most
favorable to, and drawing all reasonable inferences in favor of,
the nonmoving party." Feliciano de la Cruz v. El Conquistador
Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
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DISCUSSION
I.
The Telecommunications Act ("TCA") works like a scale
that, inter alia, attempts to balance two objects of competing
weight: on one arm sits the need to accelerate the deployment of
telecommunications technology, while on the other arm rests the
desire to preserve state and local control over zoning matters. 47
U.S.C. § 332(c)(7)(A)-(B) (1994 & Supp. II 1996); see generally
Southwestern Bell Mobile Sys. v. Todd, 244 F.3d 51, 61 (1st Cir.
2001). Accordingly, though state and local governments have the
power "to deny . . . request[s] to place, construct, or modify
personal wireless service facilities," their decisions must be "in
writing and supported by substantial evidence contained in a
written record." 47 U.S.C. § 332(c)(7)(B)(iii). This balance
strengthens the decision making authority of local zoning boards,
while protecting wireless service providers from unsupported
decisions that stymie the expansion of telecommunication
technology. See generally Brehmer v. Planning Bd. of Wellfleet,
238 F.3d 117, 122 (1st Cir. 2001).
Plaintiffs SBA/ATC argue that they are entitled to
summary judgment because the Town's rejection of their application
is not supported by substantial evidence. "The TCA's substantial
evidence test is a procedural safeguard which is centrally directed
at whether the local zoning authority's decision is consistent with
the applicable zoning requirements." Omnipoint Communications MB
Operations v. Lincoln, 107 F. Supp. 2d 108, 115 (D. Mass. 2000)
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(citing Amherst v. Omnipoint Communications Enters., Inc., 173 F.3d
9, 16 (1st Cir. 1999)). Substantial evidence "does not mean a
large or considerable amount of evidence, but rather such evidence
as a reasonable mind might accept as adequate to support a
conclusion." Cellular Tel. Co. v. Zoning Bd. of Adjustment of Ho-
Ho-Kus, 197 F.3d 64, 71 (3d Cir. 1999) (internal citations
omitted). The Board's decision will thus withstand our scrutiny if
it is "supported by . . . more than a scintilla of evidence."
Cellular Tel. Co. v. Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999);
accord NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th
Cir. 1997) ("[Substantial evidence] requires more than a scintilla
but less than a preponderance." (internal citations omitted)).
II.
This case does not involve a claim that the Board has
effectively prohibited the provision of telecommunication services
needed to close a service gap. See 47 U.S.C. § 332(c)(7)(B)
(i)(II). Rather, the Board has granted permission to plaintiffs'
competitors to build a tower which will close the service gap along
Route 125.
The only question before us is whether the Board's
decision to deny the plaintiff's application is supported by
substantial evidence. In determining that question, in the absence
of any claim of procedural irregularity by the Board, we restrict
our review to the record before the Board. See Nat'l Tower, LLC v.
Plainville Zoning Bd. of Appeals, No. 01-2472, 2002 U.S. App. LEXIS
14465 at *17-*18 (1st Cir. July 18, 2002); Todd, 244 F.3d at 58
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(quoting Penobscot Air Servs., Ltd. v. Fed. Aviation Admin., 164
F.3d 713, 718 (1st Cir. 1999)). We do not review the question de
novo; we must uphold the Board's decision unless it is not
supported by substantial evidence.
Before scrutinizing the factors cited by the Board in
defense of its decision to reject plaintiffs' application, we pause
to consider what mode of analysis to apply. The Town argues that,
in determining whether the Board's decision is supported by
substantial evidence, we should not compare the relative merits of
the two applications. Instead, we should simply focus on whether
there is sufficient evidence in the record to reject the
plaintiffs' application. Conversely, the plaintiffs claim that the
Board's votes to deny their application and to grant American
Tower's application should essentially be treated as one decision.
This approach, then, would require the Board to provide substantial
evidence for its decision to choose American Tower's application
over the plaintiffs'.
For the purposes of this appeal, we assume, without
deciding, that the comparative model proposed by plaintiffs is the
proper analytical framework. Even after employing this more
exacting model, however, we find that the plaintiffs have failed to
demonstrate that the Board's selection of American Tower's bid
instead of the plaintiffs' is not supported by substantial
evidence.
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III.
In its written decision, the Board offered four reasons
for rejecting the plaintiffs' application to construct a
telecommunication tower. We address each justification in turn.
A. Cooperation Among Service Providers
The first reason set forth in the Board's written
decision for denying plaintiffs' application concerns the Town's
responsibility to provide for minimal impact siting and to promote
cooperation between competitors. Under the Telecommunications
Facility Ordinance, the Town is required to limit the construction
of telecommunication towers by encouraging cooperation between
competitors and having as many wireless service providers on a
single tower as possible. Art. VII, § 7.80(II)(C). The Board felt
that the plaintiffs' application did not adequately meet these
objectives.
In defense of the Board's reliance on this factor, the
Town cites persuasive evidence in the record to support the
conclusion that only one tower was necessary to rectify the
coverage gap. For instance, Tony Wells, a radio frequency engineer
for American Tower, stated that "the coverage for either [tower]
proposal would be equivalent." In addition, Ivan Pagacik, an
independent telecommunications consultant, informed the Board that
"[t]he proposed American Tower site at 140 feet does fill in th[e]
[coverage] gap."2
2
Pagacik noted, however, that American Tower's proposal to
construct a 140-foot tower would provide minimal overlap with the
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Though this evidence may justify the Board's decision to
construct only one tower, however, it provides no basis for
choosing American Tower's application over the plaintiffs'. The
crucial question, then, is whether the plaintiffs have shown that
the Board's reliance on this factor to select American Tower's
proposal over the plaintiffs' is not supported by substantial
evidence.3 Both SBA/ATC and American Tower assured the Planning
Board that they would allow competing wireless service providers to
use the antenna facilities on their towers. The only difference
between the proposals is that whereas the plaintiffs' proposed
tower could accommodate six wireless service providers, American
Tower could only hold five providers on its tower. Thus, in terms
of willingness to cooperate and ability to serve wireless
coverage provided by nearby towers. This decreased overlap would
likely affect the ability of mobile telephone users to make a
successful transition from coverage provided by an antenna on one
tower to coverage provided by an antenna on another tower.
This conclusion, however, is largely irrelevant because the
Planning Board granted American Tower permission to construct a
tower 40 feet higher than the height at which Pagacik conducted his
tests. As plaintiffs' counsel conceded at oral argument, the
higher a tower is, the stronger coverage it provides. Thus, it is
reasonable to infer, especially at the summary judgment level, that
the 40-foot increase in the tower's height went a long way in
fixing any overlap deficiency. General support for drawing this
inference can be found in SBA/ATC's own experimental tests, which
show that the "coverage gap could not be filled at 140 [feet]," but
it could be filled at 180 feet.
Moreover, Pagacik allegedly told several Board members,
without ambiguity, that only one tower was necessary since either
of the proposed towers would suffice to cover the service gap.
3
Because the Board specifically dealt with minimal impact siting
in its other reasons for rejecting plaintiffs' application, we
reserve our discussion on that issue until it is more pertinent.
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companies, the proposals are virtually identical, with the
plaintiffs' application being marginally better.4
B. Impact on Residential Properties and Neighborhood Aesthetics
The Board's second reason for denying plaintiffs'
application for a conditional use permit was that their proposed
tower was too close to residential abutters and had an adverse
impact on neighborhood aesthetics. Under the Telecommunications
Facility Ordinance, the Town is authorized to consider the
proximity of proposed towers to residential development and their
impact on the surrounding aesthetics. Art. VII, § 7.80(II)(B).
The two proposed sites are largely indistinguishable with
respect to their proximity to residential areas. Both sites have
residential abutters and commercial businesses within close
proximity. They are also essentially equidistant from the areas
zoned for commercial use. Thus, the proposals are quite similar,
if not identical, with respect to this factor.
In regard to the aesthetic impact of the towers, the
Board considered comments from residential abutters to the proposed
4
Plaintiffs also argue that the inferiority of the American Tower
proposal is evidenced by the fact that American Tower still has not
been able to lease the antenna facilities on its tower to any
wireless service provider, despite the fact that its application
was approved by the Board.
However, it is too speculative to attribute American Tower's
inability to contract with any wireless service providers to its
tower's inferiority. The dearth of clientele may be a product of
the fact that wireless service companies are waiting to see the
outcome of this litigation before committing to one tower or
waiting to see if two towers are constructed in the Town, thereby
maximizing competition and reducing lease rates. We thus give no
weight to plaintiffs' speculative argument.
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sites. See, e.g., Todd, 244 F.3d at 61 (finding substantial
evidence of adverse visual impact where residents specifically
complained that the proposed tower was of a different magnitude
than anything else in the vicinity and was inconsistent with the
residential uses around it). Several residential neighbors to the
plaintiffs' site criticized SBA/ATC's tower for its adverse
aesthetic impact. Resident abutters Elisha and Steven Blaisdell
objected to the proposed tower, arguing that it would destroy the
"picturesque" quality of the surrounding area. Mariah Champagne
submitted a letter characterizing plaintiffs' tower as an "eyesore"
that should be situated in a more rural location. She also took
issue with the fact that the tower would be located on property
that was once listed by the state as being historically
significant. Tina Staublin echoed concerns over the adverse
aesthetic impact the tower would have on the neighborhood.
Finally, Andrea and Almus Kenter expressed their displeasure over
having a "clear view" of the proposed tower from their home. They
also emphasized the fact that the tower's construction would be
inconsistent with the surrounding bucolic area.
Thus, nearly forty percent of the residential abutters to
the plaintiffs' proposed site opposed the application on aesthetic
grounds. Conversely, the Board did not receive a single aesthetic
objection to the American Tower proposal. Moreover, at least one
Board member attended a crane test on American Tower's proposed
site, which involved elevating a crane to 180 feet to determine the
visibility of the proposed tower from the surrounding neighborhood.
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The results of the test demonstrated that "the crane was very
difficult to see," which may explain why no aesthetic objections
were made to the American Tower proposal.
Plaintiffs largely ignore the results of this empirical
test and concentrate their attack on what they perceive to be the
easier target: the residential abutters' comments. SBA/ATC argue
that local residents cannot defeat a tower proposal merely by
trumpeting "negative comments that are applicable to any tower,
regardless of location." Todd, 244 F.3d at 61. Because they
characterize the residential abutters' comments as generalized
aesthetic objections, plaintiffs conclude that the Board
incorrectly relied upon this evidence to distinguish between the
two proposals.
Though several of the abutters' objections to the visual
impact of the plaintiffs' tower specifically addressed why the
proposed facility was inappropriate for the chosen site, we will
assume, for the sake of argument, that the abutters' comments were
so general that they could apply to any tower. Even assuming as
much, however, the Board correctly relied on this evidence in light
of the facts of this unusual case. As noted, courts have
consistently held that a "few generalized expressions of concern
with 'aesthetics' cannot serve as substantial evidence on which [a
town] could base [a] denial." Oyster Bay, 166 F.3d at 496.
However, these rulings have not been made in the context of a town
deciding between two proposed towers. Rather, they have been made
in cases in which towns have rejected the only proposed tower
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application before them. See, e.g., Todd, 244 F.3d at 52;
Preferred Sites v. Troup County, No. 01-14182, 2002 WL 1473139, at
*2 (11th Cir. July 10, 2002); Telespectrum, Inc. v. Pub. Serv.
Comm'n of Ky., 227 F.3d 414, 418 (6th Cir. 2000); Omnipoint Corp.
v. Zoning Hearing Bd. of Pine Grove, 181 F.3d 403, 407 (3d Cir.
1999). In the latter context, courts fear that local governments
may be relying on abutters' general aesthetic objections to mask a
de facto prohibition of wireless service. See generally Todd, 244
F.3d at 61.
In contrast, the instant case, given the mode of analysis
we have employed, involves the Board's comparison between two
competing proposals and its selection of American Tower's
application over the plaintiffs'. The fact that the Board
ultimately granted a permit to the plaintiffs' competitor
demonstrates that the Board is not generally hostile to the
construction of telecommunication towers. In this context, when a
planning board has decided to construct a tower and must decide
which of several proposed towers to construct, it is perfectly
reasonable for the Board to consider, and be swayed by, the general
aesthetic concerns of residential abutters, especially where, as
here, the proposed towers are otherwise virtually identical.
In sum, whereas both applications are identical with
respect to proximity to residential abutters, there is undisputed
evidence that the plaintiffs' application would have a stronger
adverse aesthetic impact on the surrounding neighborhood.
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C. Visual Intrusiveness Along Route 125
The Board based its third reason for rejecting
plaintiffs' application on the fact that "the design of the
[SBA/ATC] tower does not reduce visual intrusiveness along the
Route 125 corridor." Though the record supports the Board's
conclusion, it also indicates that both proposed towers would be
visible from Route 125. However, the best evidence of minimal
visual intrusiveness came after a Board member conducted a visual
inspection of the American Tower site from Route 125. She
concluded that she "could hardly see [the tower] with the exception
of one small spot . . . . She thought that if she were not looking
for [the tower], it would not be seen."5 Plaintiffs have presented
no evidence to challenge this observation.6
5
Presumably, this visual test was conducted when the crane,
substituting for the tower, was in place.
6
Plaintiffs also fault the Board for failing to consider the
visual impact that the American Tower proposal would have on
property with historical significance. See Telecommunications
Facility Ordinance art. VII, § 7.80(B) (stating that the Board may
consider the impact that a proposed tower may have on "historically
significant locations"). In this regard, several Board members
observed that the plaintiffs' proposal would have no visual impact
on the historic district; however, no such finding was made with
respect to the American Tower proposal.
Though no specific finding was made regarding the visual
impact that the American Tower proposal would have on the historic
district of Kingston, the Board conducted several photographic
simulations illustrating the view of the proposed tower from
several locations. The Board also conducted an on-site inspection
and took several aerial photos of the proposed tower. Neither the
simulations nor the photographs indicates any visual intrusion on
the historic district of Kingston.
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D. Failure to Exhaust Alternative Opportunities
The final reason for denying SBA/ATC's application for a
conditional use permit was that plaintiffs had failed to exhaust
all other reasonable opportunities. Pursuant to the
Telecommunications Facility Ordinance, the Board is directed to
"[p]ermit the construction of new towers only where all other
reasonable opportunities have been exhausted." Art. VII, § 7.80
(II)(D).
The only other reasonable opportunity available here was
the competing proposal. However, the plaintiffs submitted their
application to the Planning Board two months prior to American
Tower's application. Thus, at the time SBA/ATC applied, American
Tower's non-existent application could not have provided a
reasonable opportunity that the plaintiffs were required to
exhaust.
The Board also rejected the plaintiffs' application
because it found that plaintiffs had failed to consider the
availability of existing sites. More specifically, because the
Board granted American Tower's application before its final vote to
reject the plaintiffs' application, the Board decided not to
approve the plaintiffs' application because a reasonable
alternative opportunity existed -- that is, American Tower's
recently approved site.
However, given the comparative framework we have
employed, this factor does not provide a basis for choosing
American Tower's proposal over the plaintiffs'. It assumes that
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American Tower has been selected and faults the plaintiffs for not
exploring that existing option. Thus, this justification assumes
precisely what we are trying to determine: whether there is
substantial evidence in the record to support the Board's selection
of American Tower's proposal over the plaintiffs'.
E. The Results
After reviewing the record, we find that the plaintiffs
have failed to demonstrate that the Board's selection was not
supported by substantial evidence. The Planning Board was
presented with two proposed towers that were virtually identical:
the towers were of the same height; covered the same area;
accommodated almost the same number of wireless providers; could be
seen, in comparable fashion, from Route 125; had residential
abutters; and were roughly equidistant from commercial zones.
There is only one substantive difference between the proposed
towers: unlike American Tower's application, plaintiffs' proposal
engendered much opposition due to its adverse impact on the
surrounding neighborhood aesthetic.
We must reiterate that our review is not focused on
whether the Planning Board made the best or the correct decision.
See AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of
Adjustment, 172 F.3d 307, 314 (4th Cir. 1999) ("The reviewing court
cannot replace the agency's judgment, even if the court could have
reached a justifiably different conclusion between two conflicting
views had it reviewed the matter de novo."). Rather, we must
simply determine whether the plaintiffs have demonstrated that the
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Board's decision to choose American Tower's application over their
application is supported by substantial evidence. Given the
extreme similarity between the two proposals, and the Board's
justifiable reliance on abutter comments to distinguish between
them, we find that more than a scintilla of evidence exists to
support the Board's decision and direct the district court to enter
summary judgment in favor of the Town.
IV.
This case comes to us after a decision based on cross
motions for summary judgment. Cross motions do not necessarily
indicate agreement by the parties as to the material facts in the
record. See Boston Five Cents Sav. Bank v. Sec'y of the Dep't of
Hous. and Urban Dev., 768 F.2d 5, 11-12 (1st Cir. 1985); Wiley v.
Am. Greetings Corp., 762 F.2d 139, 140-41 (1st Cir. 1985). But
here, as we have stressed, the basis for decision is limited to the
factual record that was before the Board. In this situation, it is
appropriate for an appellate court to not only reverse a grant of
summary judgment for one party, but direct its entry to the other
party. See Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228
(1st Cir. 1996) ("Cross motions simply require us to determine
whether either of the parties deserves judgment as a matter of law
on facts that are not disputed." (emphasis added)). Because there
is substantial evidence in the undisputed facts before the Board to
support its decision, we direct entry of summary judgment for the
Board and dismissal of this case. Our decision is further
supported by the clear aim of the TCA, echoed in our precedents, of
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expediting resolution of litigation over placement of wireless
telecommunication facilities. See 47 U.S.C. § 332(c)(7)(B)(v)
(establishing expedited process for such challenges); Nat'l Tower,
2002 U.S. App. LEXIS 14465 at *24-*25.
CONCLUSION
For the foregoing reasons, we reverse the district
court's grant of summary judgment and enter summary judgment in
favor of the Town.
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