This action was commenced by the predecessor to plaintiff Cellco Partnership d/b/a Verizon Wireless ("VzW"), Bell Atlantic Mobile of Massachusetts Corporation Ltd., A Bermuda Corporation, d/b/a Verizon Wireless, on September 23, 2014, on appeal from a decision of the City Council of Peabody ("the Council") denying VzW's special permit application to construct a wireless communication facility at 161 Lynn Street, Peabody, Massachusetts ("the Decision"). On March 12, 2019, the court heard argument on Plaintiff's Renewed Motion for Summary Judgment. In a decision dated March 27, 2019, the court (Roberts, J.) has determined that judgment shall enter in favor of the plaintiff on Count 3 of the complaint.
In accordance with the court's decision it is
ORDERED, ADJUDGED and DECLARED, on Count 3 of the complaint, that the Decision constitutes an effective prohibition of personal wireless service in violation of 47 U.S.C. ยง 332(c)(7)(B)(i)(II).
It is further
ORDERED and ADJUDGED that the Decision is hereby annulled.
It is further
ORDERED and ADJUDGED that this matter is remanded to the City Council of the City of Peabody, Massachusetts with instructions, on its own authority or through its boards, agents and/or officers, (a) to grant the special permit application to construct a wireless communication facility at 161 Lynn Street, Peabody, Massachusetts, and (b) to take all necessary actions to remove any further impediments to the construction of the wireless communication facility at 161 Lynn Street, Peabody, Massachusetts, including the issuance of variances, other special permits, and a building permit, as required.
It is further
ORDERED and ADJUDGED that Counts 1, 3 and 4 are dismissed without prejudice.
By the Court.
CELLCO PARTNERSHIP, D/B/A VERIZON WIRELESS, v. THE CITY OF PEABODY, MASSACHUSETTS, THE CITY COUNCIL OF PEABODY, MASSACHUSETTS, and BARRY P. OSBORNE, PETER M. MCGINN, JAMES MOUTSOULAS, ROBERT E. DRISCOLL, JOEL D. SASLAW, BARRY C. SINEWITZ, MICHAEL V. GARABEDIAN, THOMAS L. GOULD, DAVID C. GRAVEL, ANNE M. MANNING-MARTIN AND THOMAS P. WALSH, in their capacities as members of the CITY COUNCIL OF THE CITY OF PEABODY, MASSACHUSETTS.