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Industrial Tower and Wireless, LLC v. Esposito

United States District Court, D. Rhode Island

January 22, 2018

INDUSTRIAL TOWER AND WIRELESS, LLC, Plaintiff,
v.
JOHN ESPOSITO, PAULA MOTTSHAW, DAVID PAOLINO, HEIDI COWELL, THOMAS DIRAIMO, ROBERT DELUCA, and HOLLY REGOLI, and as they are members of the TOWN OF FOSTER ZONING BOARD OF REVIEW, Defendants.

          MEMORANDUM AND ORDER

          JOHN J. MCCONNELL, JR., United States District Judge.

         Plaintiff Industrial Tower and Wireless, LLC (ITW) filed this action seeking injunctive and other relief from Defendant the Town of Foster Zoning Board's ("the Board") decision denying it a special use permit for the construction of a telecommunications tower in the Town of Foster. Before the Court is ITW's Motion for Summary Judgment (ECF No. 16) to which the Board and Intervenor Defendants Robert and Mary-Elena DeLuca have objected and cross-moved for summary judgment. ECF Nos. 19, 20. After reviewing the submitted materials, including affidavits submitted with the motions, and hearing oral argument, the Court GRANTS ITW's motion, and orders the Board to grant the special use permit.

         I. FACTS AND BACKGROUND

         In May 2016, ITW applied[1] for a special use permit seeking to build a telecommunications tower on a piece of property in Foster, Rhode Island. In support of its proposal, ITW included a site analysis with maps to demonstrate that the tower height limits and setback requirements complied with the applicable Foster ordinances. ITW also conducted propagation studies and analysis of alternative sites to determine whether there was a significant gap in cell coverage, that the proposed location would address such a gap, and that there was no other feasible site to fill the gap. The Board conducted a hearing on the application that included expert testimony from, among others, Kevin Delaney, ITW's Engineering and Regulatory Compliance Manager and John Champ, ITW's Site Acquisition Specialist, and Mr. and Mrs. DeLuca and their son, Robert DeLuca, Jr.

         After a hearing, the Board denied the application by a three-to-two vote.[2] The Board issued its written denial on January 12, 2017, the written decision consisting of the minutes of the Board meeting and the Findings of Fact and Legal Conclusions. In the minutes, one of the "no" voters, Ms. Paula Mottshaw opined that ITW failed to do its due diligence in terms of siting the proposed tower and that ITW's application is incompatible with the Comprehensive Plan. In the Findings of Fact and Legal Conclusions section at the end of the decision, the Board cited the state statutes governing special use permits and the Foster Zoning Ordinances and concluded that "[f]rom the detailed testimony of the Professional witnesses, the Board accepts the facts as presented and described as reliable and probative and finds that the Applicant has NOT, through its authorized representatives, satisfied its burden as it relates to the standards reiterated above." ECF No. 1-4 at 11.

         ITW sued the Board and its members in their official capacities, alleging a violation of the Federal Telecommunications Act of 1996 ("TCA") because it effectively prohibited the provision of personal wireless services in denying ITW's application for a special use permit. For relief, ITW requests that the Court order the Board to grant its special use permit.

         II. ANALYSIS

         A. Standing Before it gets to the meat of ITW's motion, the Court considers the DeLaica's argument that ITW does not have standing to bring this suit under the TCA because, as a site acquisition company not a cell phone service provider, it cannot claim that it suffered harm from a significant gap in cell service coverage in Foster. ITW argues that it has standing because to bring a suit under the TCA, it needs only to be a "person adversely affected by any final action or failure to act by a State or local government ...", citing 47 U.S.C. § 332(c)(7)(B)(v). Its adverse treatment was the Board's decision to deny it a special use permit.

         As part of the Court's standing inquiry, it must determine whether ITW's interest here is in the "zone of interests" safeguarded by the TCA. LexmarkInt'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1388 (2014). In enacting that statute, Congress intended "to promote competition and higher quality in American telecommunications services and to encourage rapid deployment of new telecommunications technologies. One of the means by which it sought to accomplish these goals was reduction of the impediments imposed by local governments upon the installation of facilities for wireless communications, such as antenna towers." Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (internal citation omitted). In light of these goals, the Court finds that the TCA protections extend beyond providers of personal wireless services to others involved with telecommunications technologies, including landowners and tower developers. See Green Mountain Realty Corp. v. Leonard, 688 F.3d 40, 44 (1st Cir. 2012) (cell tower manager); ATC Realty, LLC v. Town of Kingston, N.H., 303 F.3d 91, 92 (1st Cir. 2002) (developer). ITW was "adversely affected" within the meaning of the TCA when the Board denied its special use permit application to build the proposed telecommunications tower in Foster and therefore has standing to bring this suit under the TCA.

         B. Substantial Evidence

         While Congress clearly intended to ensure telecommunication's growth, the TCA also sought to preserve state and local control over zoning matters, specifically over the siting of cell phone towers, subject to several limitations. T-Mobile S., LLC v. City of Roswell, Ga., 135 S.Ct. 808, 814 (2015); Natl Tower, LLC v. Plainville Zoning Bel of Appeals, 297 F.3d 14, 21-22 (1st Cir. 2002). The two limitations that ITW invokes in this case are that 1) any decision by a municipality "to deny a request to place, construct, or modify personal wireless service facility shall be in writing and be supported by substantial evidence in the written record;" 47 U.S.C.§ 332(c)(7)(B)(iii); and 2) local zoning authorities "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). ITW argues that the Board's decision fails under these two sections, justifying its reversal.

         In a case invoking the TCA such as this, even though the motion is styled as one for summary judgment, the standard of review is driven by the nature of the TCA claim. The claim in this case is rooted in the question of whether the Board's decision denying ITW's application to build a cell tower was supported by substantial evidence.

The 'substantial evidence' standard of review is the same as that traditionally applicable to a review of an administrative agency's findings of fact.' For motions for summary judgment, under the APA [Administrative Procedure Act], the Court's review 'is limited to the administrative record, ' and the 'entire case' on review is a question of law.' Thus, a district court's role in considering summary judgment in a case such as this one is not to resolve contested fact questions which may exist in the underlying administrative record, but rather to determine the legal question of whether the Board's decision was supported by substantial evidence.

Varsity Wireless, LLC v. Boxford Zoning Bd. of Appeals, C.A. No. CV15-11833-MLW, 2017 WL 4220575, at *10 (D. Mass. Sept. 22, ...


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