Telecom Act Still Has Teeth in North Andover

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North Andover, MA will be getting a 115-foot monopine erected sometime in the near future at 122 Foster St. following a ruling by a Massachusetts District Court judge siding with the plaintiff, Varsity Wireless, over the town of North Andover Planning Commission. The decision both supported and cited the Telecommunications Act of 1996. The tower will accommodate AT&T and Verizon.

“This is another in the long line of successful cases supporting the Telecommunications Act,” Varsity’s legal representative Brian Grossman of Bowditch, a Framingham, MA law firm, told Inside Towers, “that trend continues. We’re thrilled with the decision”. 

The court action follows the local board’s denial of a cell tower permit for Varsity Wireless Towers LLC (VWI…since acquired by Everest Infrastructure) that the company filed in August of 2017. The permit for a 130-foot structure had initially been approved by the town’s zoning board which then ordered a series of five public sessions to discuss the project.  

During the hearings, VWI submitted a list of 19 sites they had considered and rejected. Among them was multiple C-RAN nodes on small cell sites and publicly-owned properties located farther outside of town. The town hired an “expert”, David Maxon, who agreed that a coverage gap existed and many of the alternative sites were not usable, but several sites on the list and others were still viable alternatives and should be reconsidered. 

Judge Nathaniel Gorton said “While the carrier has the initial burden of conducting a systematic study of alternative sites and demonstrating that no feasible alternatives exist, once it has done so the local board must either show that the plaintiff’s evidence was factually insufficient of come forward with evidence of its own to demonstrate a genuine dispute of fact.” He cited Industrial Tower & Wireless v Haddad (D. Mass, 2015) in this instance.

Varsity President Christopher Davis told Inside Towers they were not surprised by the decision because of their due diligence. “We did our homework,” he said. “It took 18 months from the initial denial, but still that’s pretty quick.” Davis said they proved there were simply no other viable alternatives to the site and that the Board was reacting more to the lamentations of their constituents than to the conditions of the case. “This is New England,” he said, “and not the easiest from a development standpoint.”

Although the Planning Board charged they had “substantial evidence” that VWI did not fully consider all options and prove there was a gap in coverage, the court cited American Tower v Shrewsbury (17-10642-FDS, June 2018) that said “a mere recitation of provisions of state and local zoning law does not constitute “substantial evidence’ under the Telecommunications Act”.

Grossman said the court held his client to the more stringent interpretation of the TCA and ruled they had satisfied those standards. 

In conclusion, the Judge Gorton ruled “defendants have not articulated any good faith confusion by the Planning Board regarding its decision and thus to remand the case would simply extend the litigation, contrary to the TC’s directive to the Court to ‘hear and decide such action(s) on an expedited basis’. The defendants are directed to issue the requested permits and thereby authorize the construction of the plaintiff’s Proposed Facility.”

By Jim Fryer, Inside Towers Managing Editor

September 16, 2019

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