Introduction
This action concerns a dispute over the proposed construction of a cellular telephone tower in a residential neighborhood in the City of Peabody. The plaintiff, Cello Partnership d/b/a Verizon Wireless ("Verizon"), is a national provider of personal wireless services. Verizon's network currently has a gap in coverage, which Verizon seeks to close by installing a tall-tower wireless communication facility ("WCF") at 161 Lynn Street in one of the City's residential zoning districts.
Under the City's zoning ordinance, WCFs are allowed in all zoning districts by special permit from the City Council. Verizon applied for such a permit for its proposed Lynn Street tower and associated equipment, claiming that that location was the only feasible location for a WCF to eliminate the coverage gap. After public hearing, the Council denied the application.
In this action, Verizon contends that it is entitled to the special permit, and appeals the Council's denial pursuant to G.L. c. 40A, § 17. It also claims that the Council's denial violates the Telecommunications Act of 1996 (the "TCA") because, in Verizon's view, the decision is not supported by substantial evidence and effectively prohibits the provision of personal wireless services. The Council disagrees, contending that Verizon has not satisfied the zoning ordinance's criteria for the special permit, that there is ample support for the denial, and that it has not effectively prohibited the provision of wireless services because the impending installation of a distributed antennae system ("DAS") in the City is a feasible alternative to Verizon's proposed Lynn Street facility.
Verizon has moved for summary judgment, seeking reversal of the Council's decision and injunctive relief directing the Council to issue the special permit and all other necessary approvals for the proposed Lynn Street facility. [Note 1] For the reasons set forth below, I find and rule that there are genuine issues of material fact in dispute that preclude summary judgment. I thus deny Verizon's motion.
Facts
Summary judgment may be entered, and only may be entered, when the facts material to the claims at issue are not in genuine dispute and the moving party is entitled to judgment on those claims as a matter of law. See Mass. R. Civ. P. 56(c); Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638 , 643-644 (2002). That standard has not been met.
The Relevant Provisions of Peabody's Zoning Ordinance
The location of Verizon's proposed tower, 161 Lynn Street, is in Peabody's R1A zoning district. The zoning ordinance expressly prohibits many non-residential uses in the R1A district, including the property's current preexisting, nonconforming use a limousine service. See Zoning Ordinance, §§ 4.1, 4.2. With limited exceptions not relevant here, any changes, alterations, or extensions to a nonconforming use or structure require a special permit. [Note 2] See Zoning Ordinance, § 1.5.
In all zoning districts, a "utility transmission line and tower, exchange or regulatory station with no auxiliary storage of material or equipment" is allowed by special permit from the City Council. See Zoning Ordinance, §§ 4.1, 4.2 & 15.7.1. Verizon's proposed WCF qualifies as such. Under the Zoning Ordinance in a section applicable to all special permits,
No special permit shall be granted unless it is the judgment of the City Council that the use for which the permit is sought will satisfy a desirable local need, that its design and appearance will not be injurious to the established or future character of the vicinity and the neighborhood and that it shall be in harmony with the general purpose and intent of this ordinance.
Zoning Ordinance, § 6.1.2.
Section 7.9 of the Zoning Ordinance [Note 3] regulates the permitting and installation of WCFs. [Note 4] All applications for WCFs must comply with the following:
A. All WCF shall require a building permit in all cases.
B. All applicants must demonstrate that the proposed WCF is necessary in order to provide adequate service to the public.
C. A licensed carrier must be either the applicant or a co- applicant.
D. All WCF shall be located so as to minimize adverse visual effects on the landscape.
E. All applicants shall have the burden of proving that a good faith effort has been made to co-locate, and that it is not feasible to locate on an existing structure. Failure to meet this burden shall be grounds for denial of the application.
F. To the extent lawful and feasible, all service providers shall co- locate on a single tower, provided that if this is an existing structure, the applicant shall demonstrate that the additional equipment and/or installation thereof will not compromise the stability, safety, or structural integrity of said structure. The applicant shall submit documentation of the legal right to install and use the proposed facility mount.
G. New ground-mounted towers, facilities or structures shall be considered only upon a finding by the City Council that existing or approved facilities or structures cannot accommodate additional wireless communications equipment as proposed.
H. New ground-mounted towers specifically built for communications purposes shall be designed to structurally accommodate the maximum number of foreseeable users (within a ten-year period) technically practicable. The applicant is required to document all co-location tenants and provide a tower design indicating types and locations of all facilities.
Zoning Ordinance, § 7.9.4.
The Zoning Ordinance also requires WCFs to satisfy certain dimensional and other requirements. See Zoning Ordinance, §§ 7.9.5 (height limit); 7.9.6 (setbacks); 7.9.7 (fencing); 7.9.8 (visibility/camouflage); 7.9.9 (strength of structure); 7.9.10 (lighting); 7.9.11 (radio frequency emissions); 7.9.12 (testing); 7.9.13 (noise); 7.9.14 (modifications); 7.9.15 (change in ownership); 7.9.16 (abandonment and disassembly); 7.9.17 (bond); 7.9.18 (exceptions). Of particular relevance here, the height limit for WCFs is fifty feet above the natural grade, see Zoning Ordinance, § 7.9.5(A), and all WCFs and their equipment shelters must comply with the building setback requirements for the zoning district in which the WCF is located. [Note 5] See Zoning Ordinance, § 7.9.6(A). Additionally, the distance between the base of a WCF and a property line or road must equal at least the height of the tower plus fifty feet, including antennae and appurtenances, see Zoning Ordinance, §§ 7.9.6(B)(i), and the base of a WCF must be at least five hundred feet from all residences, wetlands, historic districts, schools, playgrounds or recreation centers, medical facilities, and nursing homes. See Zoning Ordinance, § 7.9.6(B)(ii).
Verizon's Coverage Gap in Peabody
Verizon seeks to provide its customers with fast and seamless wireless service, and is required under FCC regulations to provide "substantial service" "service which is sound, favorable, and substantially above a level of mediocre service" to the general public. 47
C.F.R. § 27.14. Verizon uses a network of antennae to provide its services. Each antenna must be located in an area where the radio frequency signal is unobstructed.
Verizon currently operates several wireless facilities within Peabody and the surrounding communities. The demand for wireless services in the area has increased, and Verizon's existing wireless facilities in and around Peabody are near their capacity limits. Because of this, because of the distances between those facilities, and because of the area's topography and other reasons, Verizon's network in Peabody has gaps in coverage and insufficient network capacity. This case concerns the coverage gap affecting parts of southern Peabody, including Lynn Street, south of Lynnfield and Washington Streets, and the surrounding area. To fill that coverage gap, Verizon seeks to expand its current network by adding a new tower and associated equipment.
The Proposed 161 Lynn Street Facility
To locate potential sites for new wireless facilities to fill gaps in coverage, Verizon generally does the following. Verizon's radio frequency engineers establish coverage and capacity objectives for a particular location. Verizon then uses computer modeling software to define a search area containing sites with a high probability of satisfying those objectives. Verizon's real estate specialists then search within and around the defined search area for existing structures that are high enough to meet the coverage and capacity objectives. If they are unable to locate a satisfactory structure, they search for "raw land" sites instead.
Using that procedure, Verizon identified the property at 161 Lynn Street and two other existing non-residential structures as potential sites to fill the coverage gap in southern Peabody. Verizon ultimately determined that the two alternatives it identified to 161 Lynn Street, a church steeple and an NStar utility pole, would not sufficiently improve coverage (the church would not do so because of its location, and the NStar utility pole would not do so because it was not high enough) and, for those reasons, rejected them. Verizon also eliminated other locations within its search area that were either residential structures or would be unable to provide coverage over a nearby ridge.
Verizon concluded that the 161 Lynn Street property was a feasible site and, it contends, the only feasible site to fill the coverage gap, particularly due to the surrounding terrain and its central location between Verizon's existing facilities. [Note 6] Verizon selected 161 Lynn Street "in consideration of the existing neighboring site designs and the presence of an existing structure on the property" and because, other than the nearby church, 161 Lynn Street is the only building within the area affected by the coverage gap that is not a residential dwelling. As previously noted, 161 Lynn Street is located in a residential neighborhood, zoned residential.
Verizon plans to locate its proposed Lynn Street facility behind the existing structure on the property. [Note 7] Under its proposal, the existing 50' timber pole on the property will be removed and a 45' x 20' fenced-in compound with a 10'-tall wooden stockade fence lined with a one- inch-thick sound curtain along the interior will be constructed. Inside the stockade wall will be a 12' x 10' equipment shelter and a 60' monopole tower [Note 8] on which three panel antennas will be flush mounted at 57' above ground level. Remote radio heads, accessory junction boxes, and surge suppressors will also be installed on the 60' tower. In addition, the stockade-fenced compound will contain a separate utility pole and a 50kW diesel generator mounted on a concrete pad.
The Council's Denial of Verizon's Special Permit Application
On June 18, 2014, Verizon applied to the City Council for a special permit to install, operate, and maintain a WCF at the 161 Lynn Street property. [Note 9] After an August 28, 2014 public hearing on the matter [Note 10], the City Council denied Verizon's application in a decision filed with the city clerk on September 4, 2014, stating:
1. The owner of the property at 161 Lynn Street, Peabody, MA, is not in a position to lease this lot under our Zoning Ordinance because he is a preexisting nonconforming use, and [the Council] believe[s] that the intensity of the proposed use would add to the intensity of the current use, detract from the character of the neighborhood and have an adverse effect on adjacent properties, all which is in violation of our Zoning Ordinance for nonconforming uses;
2. That the use does not satisfy a desirable local need;
3. That the appearance would be injurious to the established or future character of the vicinity and the neighborhood;
4. The petitioner has not presented evidence to the City Council indicating that they have exhausted their alternatives beyond their preferred location for the cell tower at 161 Lynn Street, Peabody, MA.
(23; Exs. B & O).
This action, filed on September 23, 2014, is Verizon's G.L. c. 40A, § 17 appeal from the City Council's decision.
Verizon's Other Special Permit Application and the DAS Proposal
After this action commenced, the parties attempted to identify a mutually agreeable alternative location for Verizon's facility. In March 2016, Verizon submitted an application for a special permit to construct a WCF at one of the proposed alternatives, the City-owned property at 38 Coolidge Avenue. [Note 11] In July 2016, after two public hearings, the City Council denied that application, reasoning in its decision that the Peabody Municipal Light Plant ("PMLP") [Note 12] was pursuing the construction of a distributed antennae system ("DAS"), which, in the Council's view, will eliminate Verizon's (as well as any other carrier's) need for a monopole cell tower in Peabody. [Note 13] The City Council's decision also reflects that Verizon's counsel "unequivocally stated that his client would be 'the first customer' to a DAS if made available in Peabody."
The Council describes a DAS as follows. Small antennae are installed throughout the community. A single entity operates these antennae and sublets capacity on the system to wireless communication providers. The Council contends that a DAS eliminates the need for monopole cell towers to address gaps in service and, because numerous wireless communication providers can use a DAS, it eliminates the need for individualized antennae for each particular wireless communication provider. The Council claims that other communities in the area have used DASes to resolve gaps in service.
According to the Council, PMLP is actively working towards constructing a DAS in Peabody. PMLP issued a RFP for a DAS on September 9, 2016 and received four bids for the DAS on October 25, 2016. In November 2016, PMLP engaged counsel experienced in DAS construction and leasing to assist with the process. On January 26, 2017, PMLP's Commissioners voted to authorize its manager to enter into a contract with American Tower for a DAS in Peabody.
Further relevant facts are set forth in the Analysis section below.
Analysis
As previously noted, this matter is before the court on Verizon's motion for summary judgment. As previously noted, "[s]ummary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Regis College v. Town of Weston, 462 Mass. 280 , 284 (2012) (internal quotations omitted). A fact is genuinely in dispute only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those that might affect the outcome of the case under the governing law. See id. See also Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003); Hogan v. Riemer, 35 Mass. App. Ct. 360 , 364 (1993).
Verizon contends that there are no material facts in dispute and that it is entitled to a special permit to install and maintain its proposed facility at 161 Lynn Street as a matter of law. Verizon claims, in essence, that the City Council unlawfully denied its special permit application because, in its view, (1) it has satisfied the zoning ordinance's criteria for a WCF special permit, the denial of which was legally untenable and arbitrary and capricious, and (2), the denial violates the federal Telecommunications Act because the Council's decision was not supported by substantial evidence and is an effective prohibition of personal wireless services. [Note 14] The Council disagrees, contending that Verizon has not satisfied the zoning ordinance's requirements, the denial was within the Council's allowable discretion and has ample evidentiary support in the administrative record, and that the denial is not an effective prohibition of personal wireless services because a DAS is a feasible alternative to Verizon's proposed facility. At the least, the Council contends that there are genuine issues of material fact regarding these issues.
As explained more fully below, I find that genuine issues of material fact preclude summary judgment and thus deny Verizon's motion.
The Validity of the City Council's Decision under the Zoning Act
In this G. L. c. 40A, § 17 appeal, as in all such proceedings, the court finds the facts de novo, with no evidentiary weight given to the City Council's findings and then, based on those facts, evaluates the City Council's decision, which "'cannot be disturbed unless it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary.'" Roberts v. Southwest Bell Mobile Sys., Inc., 429 Mass. 478 , 486 (1999) (quoting MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635 , 639 (1970)). See Shirley Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461 Mass. 469 , 474-475 (2012); Wendy's Old Fashioned Hamburgers of N.Y., Inc. v. Board of Appeal of Billerica, 454 Mass. 374 , 381382 (2009). In determining whether the Council's decision was "based on a legally untenable ground," the court must determine whether it was decided "on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws." Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68 , 73 (2003) (internal quotations omitted). In determining whether the decision was "unreasonable, whimsical, capricious, or arbitrary," "the question for the court is whether, on the facts the judge has found, any rational board" could come to the same conclusion. See id. at 74.
Verizon's proposed facility at 161 Lynn Street requires a special permit from the City Council. See Zoning Ordinance, §§ 4.1, 4.2 & 15.7.1. Verizon asserts that it has satisfied the zoning ordinance's requirements for a special permit for that facility. Viewing the evidence in the light most favorable to the Council, however, there are material facts in dispute, including, but not necessarily limited to, the proposed facility's effect on the character of the neighborhood and whether alternatives to the proposed facility exist. In addition, because of the proposed facility's dimensional nonconformities, Verizon is not entitled to judgment as a matter of law.
Effect on the Character of the Neighborhood
Under the Zoning Ordinance,
No special permit shall be granted unless it is the judgment of the City Council that the use for which the permit is sought will satisfy a desirable local need, that its design and appearance will not be injurious to the established or future character of the vicinity and the neighborhood and that it shall be in harmony with the general purpose and intent of this ordinance.
Zoning Ordinance, § 6.1.2. The stated purposes of the zoning ordinance's provisions regarding WCFs include minimizing the "adverse visual effects" of such facilities "through careful design and siting standards," Zoning Ordinance, § 7.9.1(B), and preserving the City's "aesthetic character." Zoning Ordinance, § 7.9.1(E). In addition, § 7.9.4 of the zoning ordinance requires WCFs to "be located so as to minimize adverse visual effects on the landscape." Zoning Ordinance, § 7.9.4(D).
Verizon's proposed facility does not, for summary judgment purposes, indisputably satisfy these requirements. The proposed facility will be located in the middle of a residential neighborhood near several homes. The proposed facility will include a 60'-high monopole tower with three panel antennas, an equipment shelter, a generator, remote radio heads, accessory junction boxes, and surge suppressors. There is no question that the use and appearance of the facility will be much different from the surrounding residential neighborhood. Whether, as the City Council found and now maintains, the appearance of the proposed facility will be injurious to the character of the vicinity and the neighborhood is a genuine issue of material fact.
The Existence of Alternatives
Under the zoning ordinance, the proponent of a new WCF (1) "must demonstrate that the proposed WCF is necessary in order to provide adequate service to the public," Zoning Ordinance, § 7.9.4(B) (emphasis added), (2) prove "that a good faith effort has been made to co- locate, and that it is not feasible to locate on an existing structure," Zoning Ordinance, § 7.9.4(E), and (3) establish "that existing or approved facilities or structures cannot accommodate additional wireless communications equipment as proposed." Zoning Ordinance, § 7.9.4(G).
Verizon claims that 161 Lynn Street is the only feasible site to fill the coverage gap in southern Peabody. The City Council, however, ruled that Verizon failed to establish that it "exhausted [its] alternatives beyond [its] preferred location." Verizon has investigated alternatives to the proposed Lynn Street facility and ruled out other potential locations, but the adequacy of its investigation is disputed. Moreover, Verizon has acknowledged that a DAS is a conceivable alterative to the proposed Lynn Street facility. Thus, whether Verizon has alternatives to its preferred location for the facility is a genuine issue of material fact.
Dimensions
Section 7.9 of the zoning ordinance sets forth a number of regulations regarding WCF structures and their dimensions. See, e.g., Zoning Ordinance, §§ 7.9.4 (use requirements for WCF approval); 7.9.5 (height limit); 7.9.6 (setbacks); 7.9.7 (fencing); 7.9.8 (visibility/camouflage); 7.9.9 (strength of structure); 7.9.10 (lighting); 7.9.11 (radio frequency emissions). A building permit is required for all WCFs. See Zoning Ordinance, § 7.9.4(A).
It is undisputed that the height and setbacks of Verizon's proposed facility do not comply with the zoning ordinance's requirements. Verizon applied for variances from those requirements. However, none have been granted. According to the Council, Verizon never completed the variance approval process. In the absence of a building permit or variance for its proposed facility, Verizon has not, for purposes of summary judgment, established that it is entitled to a special permit for its proposed Lynn Street facility under the zoning ordinance.
The Validity of the City Council's Decision under the Telecommunications Act
I have dismissed Verizon's claims under the TCA because they are beyond the subject matter jurisdiction of this court. See supra note 14. However, Verizon's arguments regarding the TCA are relevant in the context of its G. L. c. 40A, § 17 appeal for this reason. If the City Council's denial of the special permit violates the TCA, its decision is unlawful even if it is otherwise permissible under G. L. c. 40A, § 17. I thus consider the validity of the denial under the TCA in the context of the § 17 appeal, but not as independent claims as plead in Verizon's complaint. For the reasons described below, I find that Verizon is not entitled to summary judgment under the TCA.
The Relevant Provisions of the TCA
"The [Telecommunications] Act generally preserves the traditional authority of state and local governments to regulate the location, construction, and modification of wireless communications facilities like cell phone towers, but imposes specific limitations on that authority." T-Mobile S., LLC v. City of Roswell, Ga., U.S. , 135 S. Ct. 808, 814 (2015) (internal citations and quotations omitted). See 47 U.S.C. § 332(c)(7). See also City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115116 (2005); Nat'l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 19 (1st Cir. 2002) ("The Telecommunications Act is an exercise in cooperative federalism and . . . attempts, subject to five limitations, to preserve state and local authority over the placement and construction of facilities."); Roberts, 429 Mass. at 480482. Two of those limitations are relevant here.
First, a municipality's decision denying "a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). As further discussed, the Council's decision denying Verizon's application for a special permit for its proposed Lynn Street facility satisfies this requirement.
Second, municipal "regulation of the placement, construction, and modification of personal wireless service facilities" "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). As discussed herein, whether the Council's decision effectively prohibits the provision of personal wireless services is a genuine issue of material fact.
The Substantial Evidence Limitation
"The statutory phrase 'substantial evidence' is a term of art in administrative law that describes how an administrative record is to be judged by a reviewing court." T-Mobile S., LLC, 135 S. Ct. at 815 (internal quotations omitted) (discussing § 332(c)(7)(B)(iii)). Section 332(c)(7)(B)(iii) of the TCA, "[r]equiring a denial to be supported by substantial evidence[,] is a procedural safeguard which is centrally directed at whether the local zoning authority's decision is consistent with the applicable zoning requirements." Indus. Tower & Wireless, LLC v. Haddad, 109 F. Supp. 3d 284, 296 (D. Mass. 2015) (internal quotations omitted).
In evaluating whether a decision is supported by substantial evidence, [the court] review[s] the written record considered as a whole. 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.
Green Mountain Realty Corp. v. Leonard (Green Mountain I), 688 F.3d 40, 49-50 (1st Cir. 2012) (quotations omitted). The court's "review is confined to the administrative record, absent a claim of procedural irregularity," Nat'l Tower, LLC, 297 F.3d at 22, and the court is to "defer to the decision of the local authority, provided that the local board picks between reasonable inferences from the record before it." Id. at 23.
As previously discussed, the zoning ordinance provides:
No special permit shall be granted unless it is the judgment of the City Council that the use for which the permit is sought will satisfy a desirable local need, that its design and appearance will not be injurious to the established or future character of the vicinity and the neighborhood and that it shall be in harmony with the general purpose and intent of this ordinance.
Zoning Ordinance, § 6.1.2.
To the extent there is substantial evidence supporting a finding by the City Council that any one of the above factors is not satisfied, the Council's denial of Verizon's special permit application is not unlawful under § 332(c)(7)(B)(iii). See Green Mountain I, 688 F.3d at 50 ("[A] decision to deny issuance of a permit must be affirmed if there is substantial evidence supporting the Board's finding that any one of these three factors [the conditions for a special permit under the municipality's zoning bylaw] is not present.").
One of the reasons for denying Verizon's application set forth in the Council's decision is that the proposed facility's "appearance would be injurious to the established or future character of the vicinity and the neighborhood." It was proper for the Council to consider this under § 6.1.2 of the zoning ordinance, and there is ample evidence in the administrative record that supports the Council's finding.
As set forth in the project narrative, plans, and reports submitted with Verizon's special permit application, the proposed Lynn Street facility will consist of a 45' x 20' fenced compound with an equipment shelter, 50kW diesel generator, and a 60' monopole tower with three panel antennas, remote radio heads, accessory junction boxes, and surge suppressors. This will be in a residential neighborhood and surrounded by homes.
Verizon's application materials also include photographic simulations from a balloon test depicting the property's existing and proposed conditions. The photographs of the existing conditions depict a yard with a wooden pole. The photographs of the proposed conditions depict a fenced compound with a monopole higher and wider than the existing wooden pole and with antennae and equipment at the top.
At the public hearing regarding Verizon's application, several residents of the neighborhood expressed their views that the proposed facility is aesthetically displeasing and out of character with the surrounding residences. [Note 15]
Based on the foregoing, a reasonable mind could conclude, as the Council did, that, objectively, the appearance of the proposed facility would be injurious to the character of the vicinity and neighborhood. The Council's denial is thus, as required under § 332(c)(7)(B)(iii) of the TCA, "in writing and supported by substantial evidence contained in a written record."
The Effective Prohibition Limitation
Under the TCA, a municipality may not take actions that "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). "'[L]ocal zoning decisions . . . that prevent the closing of significant gaps in the availability of wireless services violate the statute.'" Green Mountain Realty Corp. v. Leonard (Green Mountain II), 750 F.3d 30, 38 (1st Cir. 2014) (quoting Nat'l Tower, LLC, 297 F.3d at 20). "Where the plaintiff's existing application is the only feasible plan [to eliminate a significant coverage gap] denial of the plaintiff's application might amount to prohibiting personal wireless service." Green Mountain II, 750 F.3d at 40 (quotations omitted).
"When a carrier claims an individual denial is an effective prohibition, virtually all circuits require courts to (1) find a 'significant gap' in coverage exists in an area and (2) consider whether alternatives to the carrier's proposed solution to that gap mean that there is no effective prohibition." Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48 (1st Cir. 2009) (internal citations removed). When conducting this inquiry, "courts may well require evidence to be presented in court that is outside of the administrative record compiled by the local authority [and] are free to consider additional evidence beyond that which was introduced at the local level." Green Mountain II, 750 F.3d at 39 (internal citations and quotations omitted).
Here, it is undisputed that there is a gap in coverage in Peabody. Verizon contends that its proposed Lynn Street facility is the only feasible plan to eliminate that coverage gap. However, to show that the City Council rejected the only feasible plan, Verizon "bears the heavy burden to show from the language and circumstances not just that this application has been rejected but that further reasonable efforts [to find another solution] are so likely to be fruitless that it is a waste of time even to try." Id. at 40 (internal quotations omitted). Verizon must "prove it investigated thoroughly the possibility of other viable alternatives before concluding no other feasible plan was available." Omnipoint Holdings, Inc., 586 F.3d at 52 (internal quotations omitted). "[O]nce confronted with evidence that no alternative site exists, the [permit granting authority]'s obligation was either to show that [the applicant's] evidence was factually insufficient, or to come forward with evidence of its own demonstrating a trialworthy dispute." Indus. Tower & Wireless, LLC, 109 F. Supp. 3d at 303-304 (internal quotations omitted).
The Council contends that the forthcoming DAS within the City will resolve Verizon's coverage issues. Verizon has indicated that it would use a DAS if available in Peabody. Verizon claims, however, that it speculative whether the DAS will go forward or provide sufficient coverage, and thus it is not a feasible alternative. The Council disagrees. According to the Council, PMLP requested and received bids for a DAS, hired experienced counsel to assist with the process, and authorized the manager to enter into a contract with American Tower for a DAS.
Viewing the evidence in light most favorable to the Council, for purposes of summary judgment, I find that Verizon has not met its "heavy burden" of showing that further reasonable efforts to find an alternative to the proposed Lynn Street facility will be fruitless. I also find that the Council's evidence regarding the DAS warrants a trial. Verizon is thus not entitled to summary judgment based on its assertion that the City Council's decision effectively prohibits the provision of personal wireless services.
Conclusion
For the foregoing reasons, Verizon's motion for summary judgment is DENIED and Counts I and II of Verizon's Complaint are DISMISSED without prejudice.
SO ORDERED.
A. Facilitate the provision of wireless telecommunications services to the residents and businesses of the City;
B. Minimize "adverse visual effects" of towers and antennae through careful design and siting standards;
C. Avoid potential damage to adjacent properties from tower or other structure failure through structural standards and setback requirements;
D. Maximize the use of existing and approved towers and buildings to accommodate new wireless telecommunications antennae in order to reduce the number of towers needed to serve the community; and
E. Preserve property values and the aesthetic character of Peabody. Zoning Ordinance, § 7.9.1.
[a]ny WCF installed on or in or attached on or to an existing building or existing WCF tower, or mast, or pole or utility transmission tower, overhead cable, smokestack, steeple, water tank or billboard together with any guy wires and/or accessory structures used in the provision of wireless communication services composed solely of antennae and ancillary telecommunications equipment which do not extend higher than ten (10) feet above the highest point of the building or structure on which the WCF is installed OR composed solely of antennae and ancillary telecommunication equipment totally enclosed within an existing building or structure and installation of antennae and ancillary telecommunications equipment requires no major alteration to the structure,
Zoning Ordinance, § 7.9.2(A)(i), and as "[r]eplacement of any tower or pole that was previously authorized with a tower or pole which is substantially similar in design and is not greater than the same height or with a one-time increase in height of not more than ten (10) feet." Zoning Ordinance, § 7.9.2(A)(ii). The Building Commissioner is the permit granting authority for existing Minor WCFs. See Zoning Ordinance, § 7.9.3.
A Major WCF is defined as "[a] new, ground-based WCF tower, or mast, or pole or utility transmission tower, or other similar structure together with any guy wires and/or accessory structures used in the provision of wireless telecommunication services," Zoning Ordinance, § 7.9.2(B)(i), and as "[a]ny other WCF that is not a minor WCF." Zoning Ordinance, § 7.9.2(B)(ii). The City Council is the special permit granting authority for Major WCFs. See Zoning Ordinance, § 7.9.3. The WCF at issue in this case is a Major WCF.
Under the TCA, "[a]ny person adversely affected by any final action or failure to act by a State or local government or any instrumentality thereof that is inconsistent with [47 U.S.C. § 332(c)(7)(B)] may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction." 47 U.S.C. § 332(c)(7)(B)(v). This court, however, lacks subject matter jurisdiction over Verizon's TCA claims to the extent they have been plead as independent claims because they do not involve "any right, title or interest in land" or any other basis for Land Court jurisdiction under G.L. c. 185, §§ 1 or 3A. Verizon's TCA claims are thus DISMISSED without prejudice as beyond this court's subject matter jurisdiction.
However, with respect to Verizon's G.L. c. 40A claims, the TCA is relevant as to whether the City Council's denial of the special permit application was lawful. I thus consider Verizon's arguments regarding the TCA, but only in the context of the G.L. c. 40A, § 17 appeal.
CELLO PARTNERSHIP d/b/a VERIZON WIRELESS v. CITY OF PEABODY, CITY COUNCIL of the CITY OF PEABODY, and BARRY OSBORNE, PETER McGINN, JAMES MOUTSOULAS, ROBERT DRISCOLL, JOEL SASLAW, BARRY SINEWITZ, MICHAEL GARABEDIAN, THOMAS GOULD, DAVID GRAVEL, ANN MANNING-MARTIN, and THOMAS WALSH as members of the City Council of the City of Peabody.