CELLCO PARTNERSHIP v. TOWN OF GRAFTON

336 F.Supp.2d 71 (2004) | Cited 2 times | D. Massachusetts | September 29, 2004

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Before the court are cross-motions for summary judgment filedby Cellco Partnership d/b/a Verizon Wireless ("Cellco") and theTown of Grafton ("the Town").

Cellco alleges in its complaint that the Grafton Planning Board(the "Board") wrongfully denied its application for a specialpermit to place a wireless telecommunications facility at 27Upton Street, in Grafton, Massachusetts (the "Upton StreetProperty"). The defendants are the Town; the Board; and RobertHassinger, Robert Mitchell, Keith Regan, Martin Temple andStephen Dunne, as they are members of the Board. In counts I andII, Cellco claims that the Board's denial of the special permitamounted to an effective prohibition of personal wirelessservices, in violation of the Telecommunications Act of 1996("TCA"), 47 U.S.C.A. § 332(c)(7)(B)(i)(II), and was not supported by substantialevidence also in violation of the TCA at47 U.S.C.A. § 332(c)(7)(B)(iii).

Cellco also claims, in count III, that the Board's denial ofthe specific permit constituted a deprivation of rights securedby federal law, and that a cause of action for money damagesexists under 42 U.S.C. § 1983. In count IV, Cellco claims thatthe Board's refusal to waive or modify certain zoningrequirements lacked a rational relationship to a legitimategovernment interest and thus violated Cellco's substantive dueprocess rights secured by the Fifth and Fourteenth Amendments tothe U.S. Constitution, and Part I, Article X of the MassachusettsDeclaration Rights. Finally, in count V, Cellco claims that theBoard's denial of the special permit was arbitrary andcapricious, not based upon the evidence, and in excess of theBoard's authority under both Mass. Gen. L. c. 40A and the GraftonZoning By-Law (the "ZBL").

Both sides have moved for summary judgment on all counts. Forthe reasons stated below, I GRANT the Town's motion for summaryjudgment on all counts and DENY Cellco's corresponding motion.

I. FACTS

A. Background

Unless otherwise noted, the following facts are undisputed.

Cellco, a personal wireless service provider, is licensed bythe Federal Communications Commission to provide cellulartelephone services to a geographic area that includes the Town ofGrafton, Massachusetts. Cellular telephones work by transmittinga low power signal between a mobile telephone and a wirelesstelecommunications facility, or "cell site." A cell site consistsof antennae mounted on a tall structure such as a tower orbuilding. As a caller moves out of the coverage range of one cell, the signal is "handed off" from thecell site in one cell to the cell site of an adjacent cell. Forthere to be continuous service, it is critical that thefacilities within each cell be located in accordance with radiofrequency ("RF") principles, taking into account overall networkdesign. RF design must accommodate such features as the height ofthe proposed antennae, topographical concerns, the geographicdistance and direction of the proposed facility to otherfacilities in the network, and customer demands for service.

There is currently a "coverage gap" in certain areas ofGrafton, including the center of the Town ("Grafton Center"). Theexistence of a coverage gap means that there is currently notenough signal strength to allow Cellco customers reliably toinitiate or hold calls when located within or traveling throughthese areas of Grafton. Using the RF principles described above,Cellco's RF engineers determined that a facility located withinGrafton Center would remedy the coverage gap.

The Board of Selectmen of the Town (the "Selectmen") issued a"request for proposal" ("RFP") for the construction of atelecommunications facility on a portion of the Upton StreetProperty. After submitting a bid on the RFP, Cellco was awarded acontract, and, on August 27, 2001, entered into a lease with theTown, acting through the Selectmen, for the construction of awireless telecommunications facility on the Upon Street property.Paragraph ten of the lease states:

It is understood and agreed that LESSEE'S ability to use the Premises as contemplated by this Agreement is contingent upon obtaining all of the certificates, permits and other approvals required by any federal, state and local authorities. Notwithstanding the above, LESSEE must apply for and receive a Special Permit from the Planning Board, and nothing in this lease shall be construed as warranty that LESSEE shal [stet] receive any required Special permit from the Planning Board, or required permit from the Building Inspector. The Upton Street Property is located in a Low DensityResidential (R40) zoning district, and is approximatelyone-quarter mile from the Grafton Common Historic District. It isowned by the Town and is currently used by the Grafton Departmentof Public Works ("DPW") as a highway maintenance facility, wheresalt, sand, and public works equipment are stored. A CumberlandFarms convenience store is across the highway, and a wooded areais at the rear of the property.

Under the ZBL, a telephone service provider must apply for aspecial permit to construct and operate a cell site within an R40zoning district. In November of 2001, Cellco filed an applicationwith the Board for a special permit to erect a 150-foot monopoleand accompanying externally mounted antennae, two dish antennaeand certain ground-based equipment, within a fence enclosure, onthe Upton Street Property. Cellco later modified the proposal,changing the 150-foot monopole with external antennae to a120-foot pole, with internal antennae, designed to resemble aflagpole ("flagpole design"). Cellco also offered to paint thepole a color of the Board's choice.

A public hearing was opened by the Board on January 14, 2002,and further hearings were held on February 11, March 11, April 8,and April 29 of that year. At the hearings, Cellco presentedevidence demonstrating a gap in its service coverage andrepresented that the proposed tower would decrease the number oftowers needed in Grafton because another wireless service wouldbe able to co-locate (i.e., share the tower).1 At thefirst hearing, Board member Robert Hassinger suggested that the parties conduct furtherinvestigation regarding possible alternative sites. At theFebruary 11th hearing, Cellco submitted the results of aballoon test,2 in which the company hung blue, yellow,and red balloons at 150, 120, and 100 feet, respectively, toallow the public to view the proposed height of the tower.Hassinger again noted that he was not satisfied that Cellco hadexhausted all possible options and suggested alternative sitesthat Cellco could consider.

At Cellco's expense, the Town retained David Maxson ofBroadcast Signal Lab, a wireless engineering and consultingexpert, to provide technical assistance to the Town in reviewingCellco's application. Maxson drafted a report ("Maxson report")summarizing his conclusions as to the evaluation of alternativesites.3 Maxson testified at the hearing on April 29,2002.

After hearing Maxson's testimony, the Board requested that thehearing be continued until after the annual meeting of the TownWater District Commission on April 30, 2002, in order to givethat body an opportunity to vote on whether to permit wirelesstelecommunications facilities to be placed on facilities orproperty within its jurisdiction (specifically, on the waterstandpipe on Pigeon Hill). Cellco's representatives requestedthat the hearing be closed and stated that Cellco was notinterested in other locations. Prior to the Board's decision denying the special permit, butafter the close of the public hearings on April 29, 2002, Cellcosubmitted a letter from the Massachusetts Historic Commission inwhich that agency concluded that the proposed flagpole designwould have no adverse effect on the historical features ofGrafton Center and Grafton Common. Cellco also applied for threewaivers (and a fourth that later became moot) in conjunction withits application. All of the applications were denied by theBoard.

Throughout the hearing process, a number of abutters to theproposed site and other Grafton residents expressed opposition tothe construction of the facility on the Upton Street Property,based on their concerns about the visibility of the monopole fromthe historic town green.4 Additionally, the GraftonHistoric District Commission ("GHDC") submitted several lettersexpressing opposition and citing the negative visual impact thatthe cell tower would have on Grafton Common.

On July 23, 2002, the Board issued an unanimous decisiondenying Cellco's application for a special permit.

Since 1994, the Board has granted ten applications for specialpermits for cell sites (eight since the adoption of the By-Law).There are, however, no cell sites in Grafton Center. There hasbeen only one other application for a cell site in GraftonCenter, and that application was withdrawn. B. The Zoning By-Law

The relevant portions of the ZBL are as follows: 5.8.3 Site Selection Preferences These regulations are written to indicate that the Town of Grafton preferences for facility locations are as follows, in descending order of preference: 1. On existing structures such as buildings, communications towers, smokestacks, utility structures, etc. 2. In locations where existing topography, vegetation, buildings or other structures provide the greatest amount of screening 3. On new towers in the CB, OLI and I zoning districts 4. On government or educational institution structures in the CB, OLI and I zoning districts 5. On government or educational institution structures in the A or R40 zoning districts 6. On government or educational institution structures in the R20, RMF or NB zoning districts 7. On new towers in the A and R40 zoning districts 8. On new towers in the R20, RMF and NB zoning districts 5.8.4 Additional Submittal Requirements b) Site Justification or Appropriateness Statement, including a description of the narrowing process that eliminated other potential sites. d) Support materials that show: the location of structures of similar or greater elevation within one-half-mile . . . radius of the proposed site/parcel; that the owners of those locations have been contacted and asked for permission to install the facility on those structures, and denied, or that such other locations do not satisfy requirements to provide the service needed. This would include, but not be limited to, smoke stacks, water towers, tall buildings, antenna or towers of other wireless communications companies, other wireless communications facilities (fire, police, etc.) And all other tall structures. Failure to present evidence of a good faith effort on the part of the applicant to utilize existing facilities shall be grounds for denial of the application. 5.8.5 Conditions for Granting [T]he planning Board shall make findings on which to base its determination on the specific issues of: b) if the proposed facility is to be located in a residential zoning district . . ., whether the applicant has provided substantial evidence that the facility cannot, by technical necessity, feasibly be located in a non-residential zone. c) whether the proposal would sufficiently screen the facility from view, both through landscaping, placement and design, in order to minimize the visual appearance of the entire facility from areas within a [1,320'] radius of the proposed facility location. d) whether the proposed facility will be housed within or upon a special structure, which will be architecturally compatible with the surrounding residential area (including, for example, bell tower or church steeple), or whether, by virtue of its design, no such special structure is required in order to minimize the visual impact within a one-quarter-mile (1,320') radius. This provision applies to facilities in a residential (A, R40, R20, or RMF) zoning district . . . 5.8.6 General Requirements 5.8.6.1 Any principal part of the facility . . . shall be setback from the nearest property line by a distance of twice the height of the facility . . . or a distance of three hundred feet (300'), whichever is greater. 5.8.6.4 A tower shall be of monopole or similarly unimposing design. . . . The applicant shall successfully demonstrate to the satisfaction of the Board that the proposed facility will have minimal visual impact. 5.8.6.9 All utilities proposed to serve the facility shall be installed underground. 5.8.6.13 Landscaping shall be provided around the base of the facility. . . . The landscaping shall consist of a planting strip at least 25 feet wide. . . . Applicants may substitute alternative landscape plans that meet the purposes of this subsection to limit the visual impact of the lower portion of the tower and adjoining accessory facilities for the Board's consideration. C. Denial of Cellco's Application

In the relevant portions of its written decision, the Boardfound:

F9.) That the proposed facility is for the construction of a new tower within a R-40 zoning district, and that a proposal of this type is one of the least preferred with regard to the list of preferred facility locations in Section 5.8.3 of the ZBL. The Board further finds that a number of alternative sites were identified during the public hearing, of which several appear preferable with regard to Section 5.8.3 of the ZBL. F13.) That with regard to Section 5.8.4b, the Applicant submitted the letter identified as EXHIBIT 8 of this Decision in response to the requirements for a Site Justification or Appropriateness Statement, as described in said section. No justification of the proposed site was included in this narrative. The Board further finds that although additional sites were mentioned, the description of the narrowing process is inadequate. F15.) That with regard to Section 5.8.4.d., regarding suitable existing structures, the Applicant submitted material (EXHIBITS 6 and 8 of this Decision) to address this requirement. The Board further finds that this material does not satisfy this requirement. The Board further finds that it provided the Applicant with the opportunity to address these submittal deficiencies during the public hearing process. The Board finds that the Applicant responded to the Board by submitting the letter identified as EXHIBIT 44 of this Decision, which indicated at that time the Grafton Water District Board of Water Commissioners had voted not to allow wireless facilities on the Pigeon Hill Tank or on property of the Water District. The Board further finds, however, that said EXHIBIT indicated that a vote was scheduled to occur on April 30, 2002, which would consider whether to allow wireless facilities on Water District tanks. The Board finds that based on this EXHIBIT, and during the hearing on April 29, 2002, the Board asked the Applicant to consider continuing the public hearing until the next Planning Board meeting in order to learn the outcome of the vote regarding wireless facilities on the Water Commission's tanks, and the possible inclusion of this site as a viable alternative. The Board finds that the Applicant informed the Board at the hearing on April 29, 2002, that they were not interested in further evaluating any alternative sites, referenced in Find #F9 of this Decision, and that the Applicant requested the public hearing be closed. The Board finds that based on the original submittal and the events described above, the Applicant failed to provide a good faith effort to utilize existing facilities. The Board further finds that as noted in Section 5.8.4.d. of the ZBL, such failure constitutes grounds for denial of the Application. F24.) The Board further finds with regard to Section 5.8.6.4, that the structure is visible from the historic district encompassing the Town Common. It is approximately one quarter mile from the locus of the Town Common and is visible above the skyline from several points of view within the Historic District. Both the 120-foot and 100-foot flagpole designs are visible from the visually sensitive Historic District, and this visibility includes projection above the rooflines of historic buildings. This visual impact is different from that caused by other development in the area outside the District, and is not minimal, and is unacceptable. The Board further finds with regard to Section 5.8.6.4, that the Applicant did not satisfy the requirement to successfully demonstrate to the satisfaction of the Board that the proposed facility will have a minimal visual impact, as required by said Section.

In addition, the Board found that the proposed facility did notmeet the minimum setback requirement (F44), was not "generallycompatible" with adjacent properties (F45), and did not protecthistoric, cultural and scenic landscapes (F48). The Board alsofound that Cellco did not "provide substantial evidence that thefacility cannot, by technical necessity, feasibly be located in anon-residential zone" (F50); that the "proposal [did] notsufficiently screen the facility from view" (F51); and that the"structure will not be architecturally compatible with thesurrounding residential area" (F52).

The Board denied each of the four waivers requested by Cellco,and gave its reasons as follows: 1) Respecting the setback requirement: "[T]he setback requirement of [Section 5.8.6.1] serves an important role to minimize impacts to visually sensitive areas, in addition to the buffering and screening requirements of the By-law." 2) Respecting the requirement that accompanying facilities be located underground: "Applicant did not state or explain why the utilities could not be located in accordance with the By-law in a different area on the site, further away from the wetlands." 3) The request for a wavier for external antennae became moot with the revision of the design to resemble a flagpole. 4) Respecting the landscaping requirement: "[T]he Applicant did not satisfy [Section 5.8.6.13] as to substituting alternative landscape plans that meet the purposes of said Section to limit the visual impact of the lower portion of the tower and adjoining accessory facilities." II. DISCUSSION

Cellco claims that the Board's denial of its application for aspecial permit to locate a telecommunications facility on theUpton Street Property was unsupported by substantial evidence andconstituted an effective prohibition of personal wirelessservices in Grafton Center. In response, the Town argues thatCellco's application was denied because Cellco's proposal wasinconsistent with the purpose and intent of the ZBL. Moreover,the Town contends that Cellco has not sustained its burden ofestablishing that the Upton Street Property is the only site fromwhich wireless services may be provided to Grafton Center(i.e., that there are no available, feasible alternatives), andthat further reasonable efforts to obtain a permit are so likelyto be fruitless that it is futile even to try.

A. Counts I and II: The Telecommunications Act

The TCA strikes a compromise between the federal interest inestablishing a national network of wireless services and thelocal interest in retaining authority to make zoning decisions.See Town of Amherst v. Omnipoint Communications Enters., Inc.,173 F.3d 9, 13 (1st Cir. 1999). The Act preserves local authorityto make decisions regarding the siting of telecommunicationsfacilities, but imposes several limitations. See SecondGeneration Properties v. Town of Pelham, 313 F.3d 620, 627 (1stCir. 2002). Two such limitations are (1) that a decision to denya request to construct a wireless telecommunications facility bein writing and be supported by substantial evidence,47 U.S.C.A. § 332(c)(7)(B)(iii); and (2) that local regulation may not"prohibit or have the effect of prohibiting the provision of personal wirelessservices." 47 U.S.C.A. § 332(c)(7)(B)(i)(II). The standard ofreview under the TCA depends upon the nature of the claim. Inreviewing a claim made under the substantial evidence limitation,a court must be deferential to the local authority; claims underthe anti-prohibition limitation are reviewed de novo. SeeSouthwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 58(1st Cir. 2001).

1. Substantial Evidence

Under the TCA, the denial of a request for a permit to locate atelecommunications facility must be supported by substantialevidence contained in a written record. See Nat'l Tower, LLC v.Plainville Zoning Bd. of Appeals, 297 F.3d 14, 20 (1st Cir.2002). As in judicial review of any administrative action, thecourt is limited to the information contained in theadministrative record, and "[s]ubstantial evidence is `suchrelevant evidence as a reasonable mind might accept as adequateto support a conclusion.'" See id. at 22 (quoting UniversalCamera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). Essentially,"[t]he TCA's substantial evidence test is a procedural safeguardwhich is centrally directed at whether the local zoningauthority's decision is consistent with the applicable localzoning requirements." Omnipoint Communications MB Operations,LLC v. Town of Lincoln, 107 F. Supp.2d 108, 115 (D. Mass. 2000).

Simply put, local governments are required to state clearly andin writing the reasons for a denial of permission to locate atelecommunications facility, and those reasons must be supportedby substantial evidence in the record. See Southwestern Bell,244 F.3d at 60. In this case, the defendants have satisfied thefirst requirement. In its written decision, the Board, followingthe requirements of the ZBL, listed at least three independentreasons for denying Cellco's special permit application: (1) The 120-foot flagpole design proposed by Cellco would be visible above the skyline from several places within the Historic District. The visual impact of the tower would be non-minimal and incompatible with the architecture of the surrounding area;

(2) Construction of a new tower within a R40 zoning district was one of the proposals least preferred by the ZBL, and Cellco did not adequately consider alternative sites; nor did it demonstrate that the facility, by technical necessity, could not be located in a non-residential zone; and (3) Cellco's proposal met neither the setback and landscaping requirements, nor the requirement that accompanying facilities be located underground.See Decision of Grafton Planning Bd., Ex. 8, Aff. of Sarah L.McGinnis, Docket No. 30.

The question now raised is whether the reasons proffered by theBoard are supported by substantial evidence in the record. Inorder to make that determination, I must review the entirerecord, taking into account evidence that is both supportive ofand contradictory to the Board's conclusions. See Penobscot AirServs., Ltd. v. FAA, 164 F.3d 713, 718 (1st Cir. 1999), quotedin Nat'l Tower, 297 F.3d at 22 ("The reviewing court must takeinto account contradictory evidence in the record. But thepossibility of drawing two inconsistent conclusions from theevidence does not prevent an administrative agency's finding frombeing supported by substantial evidence.") (internal quotationomitted). Because I think there is substantial evidence tosupport the Board's conclusion that the tower would have anegative visual impact on Grafton's historic common, I willdiscuss in depth only the first reason given by the Board.

The Board's primary reason for denying Cellco's special permitapplication was its assessment of the aesthetic impact oflocating the facility on the Upton Street Property, within aquarter mile of the Grafton Historic District. Relying onopposition from residents and from the Grafton Historic DistrictCommission, as well as its own independent assessment of thephotographs from the balloon test, the Board concluded that theproposed 120-foot flagpole design would have a negative visual impact on the historic TownCommon. The Board received evidence of opposition to the locationof a facility on the Upton Street Property, in the form ofletters from three residents, oral protest at the April 29thhearing, and a petition signed by 273 Grafton residents. TheBoard also received a letter from the Grafton Historic DistrictCommission, expressing that entity's unanimous opposition to thetower because it would "significantly alter the hilltop characterof the center of Grafton." See Exhibit 38 of the administrativerecord.

The evidence in the record reflects more than "generalizedconcerns" about the aesthetic appeal of wirelesstelecommunications facilities. See Southwestern Bell,244 F.3d at 60. Instead, the tower's opponents were concerned aboutwhether the tower was appropriate for the "particular location"contemplated by Cellco's proposal. See id. at 61. For example,the authors of one letter noted: We think the erection of the proposed phone tower will importantly affect the beauty and historical ambience of the Common. For example, when standing at the south-west quarter of the Common, near its perimeter, the vista framed by the Library to the right, and Grafton Inn to the left was dominated by the test balloons. The sight of a tower would [be] clearly inconsistent with the Common. Another example was the view of the balloons over the McGill building, distracting from the character of that classic Greek Revival structure.See Exhibit 28 of the administrative record.

To its credit, Cellco did modify the original proposal for a150-foot monopole to accommodate the Board's desire for a lessconspicuous facility and proposed a "stealth" flagpole designinstead. However, unless there are indications that visual impactis a pretext for illegitimate biases against facilities, it isexclusively within the purview of the Town to make aestheticjudgments. See Amherst, 173 F.3d at 15; see also SouthwesternBell, 244 F.3d at 60-61 ("[T]he Board was entitled to make an aesthetic judgment aboutwhether that impact was minimal, without justifying that judgmentby reference to an economic or other quantifiable impact."). TheBoard reasonably concluded that the flagpole design was notarchitecturally compatible with the surrounding area and was notsufficiently screened from view. See Southwestern Bell,244 F.3d at 62 (finding there was adequate evidentiary support fordenial when the "tower was of a different magnitude than anythingelse in the vicinity" and was "out of keeping with theresidential uses in close proximity to it").

Still, Cellco argues that, in reaching its decision on visualimpact, the Board did not take into account any of the evidencein the record that supported Cellco's position. Specifically,Cellco claims that the Board ignored both the letter from theMassachusetts Historic Commission, in which the Commissionconcluded that the facility would have no adverse effect onGrafton's historical areas, particularly in view of theapparently unsightly Cumberland Farms sign across the street fromthe Upton Street Property. But, as Cellco conceded at the hearingon the present motions, the fact that these matters were notmentioned in the Board's written decision does not mean that theBoard failed to consider them. The Board is not required to keepan exhaustive account of its decisionmaking process. SeeSouthwestern Bell, 244 F.3d at 59-60 (noting that "it is notrealistic to expect highly detailed findings of fact andconclusions of law," and holding that the written denial needonly contain a sufficient explanation to allow meaningfulreview).

I have considered the record as a whole and find thatsubstantial evidence exists to support the Board's finding thatthe tower would have a negative visual impact on the historicgreen. As Cellco conceded at the hearing before me on the presentmotion, the Board reasonably could have concluded that the tower was simply more unsightly than theCumberland Farms sign, or that allowing the sign in the firstplace was a mistake. Moreover, the letter of the MassachusettsHistoric District Commission was submitted to the Board after theclose of the evidence. Notwithstanding the late submission, theBoard reasonably could have chosen to credit the local historiccommission's opinion about visual impact over that of the statecommission. The Board also found, and it is conceded by Cellco,that the Upton Street Property is located in a R40 zoningdistrict. The Upton Street Property thus is seventh out of eight,in descending priority, on the site preferences listed in Section5.8.3 of the ZBL.

The Board found further that Cellco had not complied withSection 5.8.5(b) of the ZBL, which requires the applicant toprovide "substantial evidence that the facility cannot, bytechnical necessity, be located in a non-residential zone." Thereis ample evidence in the record, including Cellco's failure tocomply with certain submittal requirements outlined in theby-law, to support the Board's finding that Cellco failed to makea good faith effort to evaluate alternatives or to utilizeexisting facilities.5 I need not rehearse that evidencehere, because I think it sufficient to point out that Cellco'sconduct at the hearing on April 29, 2002, adequately supports theBoard's conclusion. As noted above, at that final hearing, theBoard pointed out that the water standpipe located within theGrafton Water District might provide adequate signal coverage tomeet Cellco's objectives and recommended continuing the hearinguntil after the Water District Board voted on whether to allowtelecommunications facilities on its facilities. Instead ofagreeing to the continuance as the Board requested, Cellco's representativestated that Cellco was not interested in further evaluating anyalternative sites and requested the hearing be closed.6It was certainly reasonable for the Board to conclude, fromCellco's reaction to the suggestions of a continuance of thehearing and from the absence of contrary evidence in the record,that Cellco had not made a good faith effort to assess allalternative locations for their potential to serve the targetedcoverage area.

As a concluding note to the foregoing discussion of substantialevidence, I emphasize that the plan proposed by Cellco was atodds with the provisions of the by-law from the very beginning.The proposed site was next to the lowest on the by-law'spreference list, was within a quarter mile of a historicdistrict, and required no fewer than three waivers for thegranting of a special permit. From the perspective of the purposeand intent of the by-law (which the plaintiffs do not challenge)this was perhaps one of the worst places in Grafton to erect atelecommunications facility. The Board suggested a number ofalternatives to Cellco, and only after Cellco refused to considerthem further, did the Board ultimately deny the special permitapplication. Based on the evidence in the administrative record,I GRANT the Town's motion for summary judgment as to count I andDENY the motion of Cellco as to that count.

2. Effective Prohibition of Wireless Services

The TCA also provides that a state or local government "shallnot prohibit or have the effect of prohibiting the provision ofpersonal wireless services." 47 U.S.C.A. § 332(c)(7)(B)(i)(II). This anti-prohibition clause "can beviolated even if substantial evidence exists to support thedenial of an individual permit under the terms of the town'sordinances." Nat'l Tower, 297 F.3d at 20.

Review of a zoning board's decision under the anti-prohibitionclause is de novo. The district court need not accord anydeference to the local board and may review evidence that is notcontained in the administrative record. Nat'l Tower,297 F.3d at 22; see also Amherst, 173 F.3d at 16n. 7. Thus, theeffective prohibition claim is treated the same as any othermotion for summary judgment filed in this court.

Summary judgment is appropriate when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter of law." Fed.R. Civ. P.56(c). The moving party has the burden of establishing "the lackof a genuine, material factual issue." Snow v. HarnischfegerCorp., 12 F.3d 1154, 1157 (1st Cir. 1993), cert. denied,115 S.Ct. 56 (1994) (citing Finn v. Consolidated Rail Corp.,782 F.2d 13, 15 (1st Cir. 1986)). Where there are crossmotions for summary judgment, each cross motion is consideredindependently, and, as always, the facts are viewed in the lightmost favorable to the nonmoving party. See Continental Cas. Co.v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991). In this case, Cellco has the burden to establish that thedenial of its application for a special permit amounts to aneffective prohibition; thus, the defendant need only show thatthere is an absence of evidence in support of at least oneelement of the plaintiff's case in, order to succeed on summaryjudgment. See Omnipoint, 107 F. Supp.2d at 117.

The plaintiff must establish two elements in an effectiveprohibition claim: (1) that the Town's zoning decisions and ordinances prevent the closing ofsignificant gaps in the availability of wireless services, Nat'lTower, 297 F.3d at 20; see also Cellular Tel. Co. v. Zoning Bd.of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 68-70(3d Cir. 1999); Sprint Spectrum L.P. v. Willoth, 176 F.3d 630,643 (2d Cir. 1999); and (2) that "from language or circumstancesnot just that [its] application has been rejected but thatfurther reasonable efforts are so likely to be fruitless that itis a waste of time even to try." Amherst, 173 F.3d at 14.

Thus, the starting point of the effective prohibition analysisis always to determine whether there is a substantial gap inservice that could be addressed by the proposed facility. "A`gap' in wireless services exists `when a remote user of thoseservices is unable to either connect with the land-based nationaltelephone network, or to maintain a connection capable ofsupporting a reasonably uninterrupted communication.'"Omnipoint, 107 F. Supp.2d at 118-19 (quoting Ho-Ho-Kus,197 F.3d at 70). It is undisputed that a coverage gap exists inGrafton Center, and that Cellco customers cannot reliablyinitiate or maintain calls when they are in that area. Althoughthere are at least ten wireless telecommunications facilitiessited within Grafton, all are located outside Grafton Center, andnone enables Cellco to provide service to its customers inGrafton Center. Accordingly, I conclude that the coverage gap inGrafton Center qualifies as significant under the TCA.

Regarding the second element (the futility of further effortsto reach an accommodation with the Town), Cellco argues that thecircumstances surrounding the denial of its application for aspecial permit indicate that applying for another permit would befruitless. Obviously, the imposition of a blanket ban on celltowers or facilities would violate the TCA's anti-prohibitionclause, but so too can an individual zoning decision. Amherst,173 F.3d at 14. The First Circuit has identified two circumstances in which an individual decisionmay have the "effect" of prohibiting personal wireless services:(1) when a local authority "sets or administers criteria whichare impossible for any applicant to meet;" and (2) when the"plaintiff's existing application is the only feasible plan."Second Generation, 313 F.3d at 630 (citing Nat'l Tower,297 F.3d at 23-25, for the first proposition and Amherst,173 F.3d at 14, for the second). In either case, "the burden for thecarrier . . . is a heavy one." Amherst, 173 F.3d at 14. Cellcodoes not argue that the Town has set criteria that are impossiblefor any applicant to meet.7 Instead, Cellco argues thatthe location of facilities on the Upton Street Property is theonly feasible and available plan for remedying the coverage gap.

"For a telecommunications provider to argue that a permitdenial is impermissible because there are no alternative sites,it must develop a record demonstrating that it has made a fulleffort to evaluate the other available alternatives and that thealternatives are not feasible to serve its customers."Southwestern Bell, 244 F.3d at 63 (1st Cir. 2001) (emphasisadded). The feasibility of alternatives is a fact-intensivedetermination, and the plaintiff bears a heavy burden to make theappropriate showing. See Amherst, 173 F.3d at 14. Cellco hasnot sustained that burden, because it has not shown thatconstruction of a single facility on the proposed site is theonly "technically feasible" option. See id. at 15.

The parties appear to agree that there is no "directreplacement," from an RF perspective, for the Upton StreetProperty; however, Cellco has not eliminated the possibility thatthere may be other single or multiple site solutions that willprovide adequate coverage to the gap. Other sites suggested by the Town include the steeple of the UnitedChurch of Christ located in Grafton Center. Even Jared Robinson,Cellco's RF expert, has acknowledged that the church steeple canaccommodate antenna arrays, and that a facility located therewould cover the Grafton Center and some of the surroundingneighborhoods. See Aff. of Jared Robinson, Ex. 1 at ¶ 11,McGinnis Aff. Although Robinson has stated that the steeple isnot tall enough fully to address Cellco's coverage objectives,see id., Cellco seems not to have considered how coverage ofareas not addressed by a facility at the church or at other sitesproposed by the Town (e.g., the smokestack near the Town Halloffice building) might be provided by increasing the signalstrength at other Cellco facilities or by seeking permits formore facilities. See, e.g., Dep. of David Maxson at 102-104(describing how Cellco might be able to reallocate the siting offacilities to cover the gap in Grafton without building a towerat the Upton Street Property).

At the hearing on April 29, 2002, the Town also suggestedconsideration by Cellco of the State Police tower at 40 WorcesterStreet. Although Robinson has stated that the State Police towerdoes not "appear to have sufficient structural strength" tosupport the necessary equipment, see Robinson Aff. at ¶ 8,there is no evidence that Cellco ever tested the structuralstrength of the tower or sought the opinion of a structuralengineer to confirm Robinson's observation. Moreover, there is noevidence that Cellco ever considered the possibility ofconstructing a replacement tower that would accommodatetelecommunications and emergency facilities. See Dep. of RobertHassinger at 85 (stating that the State Police tower wasdiscussed at the hearing, but that it would need to be rebuilt inorder to accommodate a cell site). As a final point with respectto the State Police tower, Cellco contends that the State Policeare unlikely to agree to sharing a tower with a wireless serviceprovider. There is no evidence, however, that Cellco ever approached the State Police with an offer.

Finally, Cellco does not appear to have adequately consideredthe possibility of reconfiguring its network, or using cell sitesfrom outside Grafton Center to provide service within GraftonCenter. See Second Generation, 313 F.3d at 635 (holding thatthe provider failed to show that other potential solutions, suchas a taller tower or a site in another jurisdiction, could notcover the gap in services). Despite the fact that the Boardindicated numerous times at the hearings that Cellco shouldconsider whether service could be provided to Grafton Centerwithout building a tower visible from its historic green, onlyafter Cellco's permit application was rejected and this lawsuitfiled did Cellco appear to address the Board's suggestion. Still,Cellco does not take that option seriously. Robinson, in hisaffidavit in the present proceeding, dismisses alternativenetwork designs summarily, stating that "[i]t would not bepossible to provide alternative coverage to address the GraftonCenter coverage gap without duplicating coverage provided byexisting sites and [future] proposed sites" on existing towersowned by other providers. Moreover, Robinson does not directlycontradict the Board's expert, David Maxson, who opines that"judicious restructuring of the network appears to still bepossible while there is still no facility on Route 140 towardUpton and the coverage to the north and west is likely to demandadditional development anyway. Some existing structures may offermeaningful substitution for portions of the proposed facilitycoverage." See Maxson Report at 5.

The First Circuit's analysis in Amherst suggests that a Townmight require a provider to rethink its network design. SeeAmherst, 173 F.3d at 14-15. In Amherst, the court pointed outthat although a provider may desire the most efficient andcost-effective system, using "standard height towers at optimal locations," the provider must be willingto consider and present to localities other feasible alternativesavailable to them, even those that entail using lower towers andmultiple site solutions. See id.; see also Second Generation,313 F.3d at 635 (listing the range of possible solutions that theprovider failed to demonstrate were not technically feasible).Additionally, in Ho-Ho-Kus, the Third Circuit noted thatbecause the TCA bars local regulation that has the effect ofprohibiting services, not facilities, it is important toconsider whether preexisting facilities located outside the Towncould provide adequate coverage inside the Town. 197 F.3d at 71.

Far from foreclosing all of Cellco's options in providingcoverage to Grafton Center, the record indicates that the Boardtried to work with Cellco by repeatedly suggesting alternativesites Cellco might explore. In offering alternatives, the Board'sactions were supererogatory. See Nat'l Tower, 297 F.3d at 24("We doubt that Congress intended local zoning boards to pay forexperts to prove that there are alternative sites for a proposedtower, simply to defend themselves from an easily made accusationin court that an individual denial of a permit amounts to aneffective prohibition."). Thus, the record simply does notsupport any contention that the Board is hostile to wirelesstelecommunications facilities in general. Rather, the recordshows the Board's efforts to avoid constructing a tower thatwould mar the visual appeal and authenticity of Grafton'shistoric landmarks, unless Cellco had determined all otheralternative to be infeasible.8 Cellco has made no showing of "such fixed hostility by the Board"as to indicate that the Board's concerns about the historiccommon are "mere camouflage." See Amherst, 173 F.3d at 14. "Asingle denial of an application based on a supportable findingthat another location was available would almost certainly fallshort of an effective prohibition of wireless services." Nat'lTower, 297 F.3d at 24. The options that remain available toCellco may be more difficult and expensive than the proposedsingle site solution. But the TCA does not offer providers thebest or cheapest option.9 See generally Amherst,173 F.3d at 15. Such a rule would effectively abrogate the localgovernment's authority to control the siting of wirelesstelecommunications facilities.

In summary, Cellco's proposed site was one of the mostobjectionable locations in Grafton for a 120-foot tower, and theBoard gave Cellco numerous suggestions that would receivefavorable consideration by the Board. Thus, it is simply far "tooearly to give up on the Board." Id. at 16. Cellco's"one-proposal strategy may have been a sound business gamble, butit does not prove the Town has in effect banned personal wirelesscommunication." Id. at 15 (noting that site planning andprocuring leases are both expensive and time-consuming forproviders).

Thus, the Town's motion for summary judgment is GRANTED as tocount II. The motion of Cellco for summary judgment as to this count is DENIED.

B. Count III: 42 U.S.C. § 1983

Because I have sustained the Board's decision to deny thespecial permit and have concluded that the rejection of Cellco'sapplication for that special permit does not constitute aneffective prohibition, there is no TCA violation. Accordingly,there can be no § 1983 claim, because no federal right has beeninfringed.

Moreover, there is disagreement among the courts as to whether§ 1983 is preempted by the enforcement scheme of the TCA itself.Compare Nat'l Telecomm. Advisors, Inc. v. City of Chicopee,16 F. Supp.2d 117 (D. Mass. 1998) (holding that a TCA claim may notbe asserted under § 1983); with Sprint Spectrum v. Town ofEaston, 982 F. Supp. 47 (D. Mass. 1997) (holding that a TCAclaim may be asserted under § 1983). The Third Circuit has heldthat a TCA claim may not be asserted under § 1983. See NextelPartners, Inc. v. Kingston Township, 286 F.3d 687 (3d Cir.2002). Among the circuits, only the Ninth and Eleventh Circuitshave held otherwise, but the Eleventh Circuit opinion was latervacated on other grounds. See Abrams v. City of Rancho PalosVerdes, 354 F.3d 1094 (9th Cir. 2004); AT&T Wireless PCS,Inc. v. City of Atlanta, 210 F.3d 1322 (11th Cir. 2000),vacated on other grounds, 223 F.3d 1324 (11th Cir. 2000).Given my conclusion that no federal right of Cellco has beenviolated, I need not weigh in here on the question of whether a §1983 claim lies under circumstances in which a local governmentimproperly denied a wireless carrier permission to erect atelecommunications facility.

The Town's motion for summary judgment is GRANTED as to countIII; the corresponding motion of Cellco for summary judgment onthis count is DENIED.

C. Count IV: Substantive Due Process Cellco claims that the Board's refusal to waive the setback,landscaping, and burying requirements of the ZBL constitutes aviolation of substantive due process. As the plaintiffs havecited no cases to support the notion that denial of a waiverrequest is cognizable as a substantive due process claim, I donot address this claim substantively. See United States v.Figueroa-Encarnacion, 343 F.3d 23 (1st Cir. 2003) ("Judges arenot expected to be mindreaders. Consequently, a litigant has anobligation to spell out its arguments squarely and distinctly, orelse forever hold its peace."). Thus, the Town's motion forsummary judgment is GRANTED as to count IV; Cellco's motion forsummary judgment as to count IV is DENIED.

D. Count V: Violation of Mass. Gen. L. 40A and the By-Law

Finally, Cellco claims that the Board's denial was arbitraryand capricious, not based upon evidence, and in excess of theBoard's authority under Mass. Gen. L. 40A and the ZBL. A decisionof the Planning Board can only be disturbed under chapter 40A §17 if it is based on a legally untenable ground or isunreasonable, whimsical, capricious or arbitrary. See Subaru ofNew England, Inc. v. Board of Appeals of Canton,8 Mass. App. Ct. 483 (1979). Because I find that the Board's decision wasbased on substantial evidence, I rule that the decision was notarbitrary and capricious.

Thus, the Town's motion for summary judgment is GRANTED as tocount V, and Cellco's motion for summary judgment as to thiscount is DENIED.

III. CONCLUSION

The motion for summary judgment of the plaintiff Cellco isDENIED. The motion for summary judgement of the defendant Town ofGrafton is GRANTED. IT IS SO ORDERED.

1. The parties appear to dispute the number of additionalfacilities that could be accommodated by the flagpole. Cellcosuggests it might be able to accommodate two additionalfacilities; the Town suggests it is only one. It is undisputedthat the modification in the design from a monopole to a flagpolereduced the extent to which other providers could co-locate.

2. The balloon test is required by the ZBL. Town of Grafton,Massachusetts Zoning By-Law 5.8.4(e).

3. I will refer to the Maxson report in the discussion belowwhere necessary, but feel no need to belabor the presentstatement of facts by reciting his conclusions now. I note thatthe Maxson Report is dated June 4, 2002, after the close ofpublic hearings before the Planning Board on April 29, 2002. Thereport is not listed as a numbered exhibit in the administrativerecord, and I will not consider it part of the record when Idiscuss Cellco's substantial evidence claim.

4. Cellco points out that these residents may not have knownat this time that the proposal had been changed to a flagpole.

5. These submittal requirements include: 1) Section 5.8.4(b),which requires submission of a Site Justification andAppropriateness Statement, including a description of thenarrowing process that eliminated other potential sites; and 2)Section 5.8.4(d), which requires extensive documentation ofefforts to evaluate all sites of similar height or elevationwithin a half-mile radius of the proposed site for feasibilityand availability.

6. It is irrelevant to the substantial evidence claim that theWater District Board later voted not to allow the siting oftelecommunications facilities within the water district. First,the hearing before the Planning Board was closed on April 29,2002, at Cellco's request, and no evidence of the Water DistrictBoard's decision is contained in the administrative record.Second, the Board was entitled to consider Cellco's refusal towait until after the meeting of the Water District Board asevidence of Cellco's failure to make good faith efforts toexplore alternative sites.

7. Indeed, Cellco admits that other carriers have successfullysought permits to site facilities in the non-residential zones.

8. Cellco's accusations that the Board forced another providerto withdraw its application to locate a facility in GraftonCenter is entirely unsupported by any admissible evidence in therecord. The only basis for this contention in the record is theaffidavit of Kenneth Kelly, president of VitalSite Services, areal estate consulting firm employed by Cellco. Without revealingany basis of personal knowledge, Kelly states only that he is"aware that Nextel withdrew its application after several hearingsessions because the Board had made clear that the applicationwould be denied if it were not withdrawn." Even if true andadmissible, there is no indication from this statement that theBoard was hostile to Nextel's applications for illegitimatereasons or that any interactions between the Board and Nextelwere improper.

9. Tellingly, in rejecting the standpipe, Stephen Russell, aproperty consultant hired by Cellco, vaguely states in hisaffidavit that the water district property "does not represent animprovement over the DPW property . . ." Affidavit of StephenRussell, Exhibit 5 to Affidavit of Sarah McGinnis (emphasisadded). Language like this indicates that Cellco may bedismissing alternatives as infeasible because they are notCellco's first choice. In an effective prohibition claim, theprovider must demonstrate that no alternatives are "technicallyfeasible," not just that they are less desirable. See Amherst,173 F.3d at 15.

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