By Lynn Whitcher, Md7
Citing the zoning board’s reliance on the wrong legal standard, as well as the extensive evidence in support of the need for the facility, in a rare move, the U.S. District Court in Massachusetts decided Tuesday to bypass trial and instead ordered the Zoning Board of Appeals of the Town of Falmouth to issue an approval for a 150-foot monopole facility. See Industrial Tower and Wireless, LLC v. Haddad.
On October 21, 2013, Industrial Tower and Wireless, LLC (“ITW”), a company that owns and operates tower sites and provides telecommunication services in the New England, South Florida, Colorado, Kansas and Nebraska areas, filed for a special permit to construct a 150-foot tower along a heavily traveled commuter road in Falmouth, Massachusetts, upon which Verizon Wireless, AT&T, and MetroPCS would co-locate. After nine months of review, the Zoning Board voted to deny the application.
The Court found no proper basis for this denial. ITW submitted detailed evidence supporting the existence of a coverage gap, including propagation studies conducted by ITW, AT&T and Metro PCS; drive studies conducted by both ITW and the carrier collocators, and Verizon Wireless’ blocked and dropped call data maps. ITW’s studies were peer reviewed by an independent consultant, as required under local processes. No evidence was presented to controvert the claimed existence of a coverage gap in the area, other than anecdotal reports of a few local residents who indicated that they had no trouble with cell phone coverage in the area. This unscientific evidence was rejected by the Court. The Court also noted the extensive, good-faith efforts made by ITW to identify and eliminate 1,339 alternate candidates, resulting in the subject property being the only established feasible location on which to locate the proposed facility. Indeed, the Court stated, “it is not clear what more ITW could have done” and that the Zoning Board selectively ignored ITW’s cogent explanations and analysis.
Interestingly, the Court also found that the Zoning Board’s denial of the special permit was based on an examination under the incorrect legal standard. The Zoning Board considered factors under federal law, instead of the local zoning law. While zoning boards often consider federal law as a secondary consideration after first considering factors under local law, the Falmouth board focused exclusively on the federal issues under the Telecommunications Act of 1996 while completely ignoring the primary question of local zoning law requirements under the Town of Falmouth Zoning Bylaws. Because the Falmouth Zoning Bylaws do not incorporate the Telecommunications Act provisions considered by the Zoning Board, the Zoning Board’s reliance on criteria extraneous to the applicable law could not be supported by the Court.
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