United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. MCCONNELL, JR., United States District Judge.
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.
FACTS AND BACKGROUND
2016, ITW applied 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.
hearing, the Board denied the application by a three-to-two
vote. 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
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
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
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.
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.
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, ...