Frederick Olson v. Town of Yarmouth

2018 ME 27

• Court: Supreme Judicial Court of Maine
• Decided: February 22, 2018
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 27 Docket: Cum-17-274 Argued: December 13, 2017 Decided: February 22, 2018

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

FREDERICK OLSON et al.

v.

TOWN OF YARMOUTH et al.

HUMPHREY, J.

[¶1] Frederick Olson and Leora Rabin appeal from a judgment of the

Superior Court (Cumberland County, Warren, J.) affirming, pursuant to M.R.

Civ. P. 80B, the Town of Yarmouth Planning Board’s approval of a site plan

application by Portland Cellular Partnership, d/b/a Verizon Wireless (Verizon),

to install wireless communication equipment on a tower and site owned by the

Yarmouth Water District. Olson and Rabin argue that Verizon’s application did

not comply with Yarmouth’s Zoning Ordinance because (1) the Yarmouth

Water District site was subject to a presumption of unsuitability that Verizon

failed to overcome, and (2) Verizon did not present sufficient evidence that it

investigated other technically feasible sites. Because the Board did not err by 2

concluding that Verizon’s application complied with the relevant provisions of

the Zoning Ordinance, we affirm the judgment.

I. BACKGROUND

[¶2] In 2001, Sprint Spectrum L.P. (Sprint) submitted a site plan

application to the Town of Yarmouth in which it applied to install a wireless

communication antenna array on a water tower owned by the Yarmouth Water

District and to install equipment cabinets on the ground near the tower. The

Planning Board denied the application because it did not meet zoning and site

plan ordinance standards. In April 2016, Verizon applied to the Planning Board

for a similar use at the same site.

[¶3] At a public meeting on May 25, 2016, the Planning Board reviewed

Verizon’s plan. The Planning Board and neighboring residents, including Olson

and Rabin, questioned the location of the equipment enclosure and the related

visual, noise, and health effects on the neighborhood. Olson’s property abuts

the Yarmouth Water District site, and Rabin resides within 500 feet of the site.

Verizon represented that it would examine other sites and look at the gaps in 3

coverage that led to the selection of this location. The Planning Board did a site

walk on June 15, 2016.

[¶4] On July 20, 2016, Verizon submitted its final site plan application to

install equipment on the Yarmouth Water District site. Verizon asserted in its

application that, by installing the equipment on the Yarmouth Water District

site, Verizon would “be able to fill the substantial coverage gap that it now

experiences, and provide improved coverage and capacity to residents,

businesses, and traffic corridors within sections of Yarmouth that are currently

located within deficient service areas of Verizon Wireless’[s] network.”

[¶5] The Town of Yarmouth Director of Planning and Development

(Director) submitted a report to the Planning Board on September 23, 2016.

The Director detailed how Verizon’s application complied with individual site

plan and zoning standards and concluded that the project conformed to the

Town’s comprehensive plan and submission requirements. As to the

Ordinance’s requirement that Verizon investigate other technically feasible

sites, he concluded that Verizon had “described [its] site selection process,” and

the Yarmouth Water District site allows “the antenna to be located on an

existing water tower which avoids the need to construct a new tower.” The 4

Director recommended that the Planning Board approve the application if

Verizon accepted the conditions that he proposed in his report.

[¶6] The Director’s report included the 2001 letter denying Sprint’s site

plan application and the Planning Board’s findings on Sprint’s application. The

2001 Planning Board report stated that “[t]he size and configuration of the lot

on which the water tower is located and upon which equipment is located is too

small in area and too narrow in width and therefore too constrained for

‘adverse impacts’ of the proposed equipment installation on the ground to be

adequately minimized, per [Yarmouth, Me., Zoning Ordinance, art. II(Z)(1)], in

the residential context and close proximity to adjacent and nearby residences

involved.”1

[¶7] On September 28, 2016, the Planning Board considered Verizon’s

final site plan application at a public meeting. The Planning Board asked about

alternative sites that Verizon had considered, and a Verizon representative

explained that it looked at the gaps in its area of coverage and then looked for

sites that could fill the gaps with a minimal impact on the Town. The Verizon

1 The 2001 Planning Board’s written findings included a section entitled “Presumption of inability

to accommodate similar equipment” that was stricken by hand. Because the record is devoid of evidence concerning the rationale for removing this language and we review the Ordinance’s provision creating a presumption of unsuitability de novo, see Osprey Family Tr. v. Town of Owls Head, 2016 ME 89, ¶ 9, 141 A.3d 1114, we accord no weight to this section of the Planning Board’s findings. 5

representative told the Planning Board that Verizon’s “[g]oal at this site has

been to . . . comply with the primary goal of the Town’s wireless ordinance, and

that is to avoid the need for new towers.” Verizon’s search revealed that the

Yarmouth Water District site was the only appropriate location because other

buildings in the area were not tall enough and a Central Maine Power pole

would not fill the coverage gap and posed administrative hurdles. The Planning

Board unanimously gave conditional approval to Verizon’s application after

finding that the plan conformed to the Site Plan Review Ordinance. The

Planning Board issued a written approval letter on October 7, 2016.

[¶8] On November 8, 2016, Olson and Rabin, who both appeared and

commented at the Planning Board meetings, filed a complaint and petition for

review of final municipal action pursuant to M.R. Civ. P. 80B in the Superior

Court.2 Verizon intervened in the action. The court affirmed the Planning

Board’s decision on June 1, 2017.

[¶9] Olson and Rabin filed a timely appeal. See M.R. Civ. P. 80B(n); M.R.

App. P. 2(b)(3) (Tower 2016).3

2 Pursuant to Yarmouth, Me., Site Plan Review Ordinance, art. I(F)(3) (June 2017), site plan

decisions of the Planning Board are appealed to the Superior Court in Cumberland County. 3 This appeal was commenced before September 1, 2017, and therefore the restyled Maine Rules

of Appellate Procedure do not apply. See M.R. App. P. 1. 6

II. DISCUSSION

[¶10] Olson and Rabin raise two issues on appeal. First, they argue that

the Planning Board erred in its approval of Verizon’s site plan application

because, pursuant to article II(Z)(4)(a)(3) (Sept. 2016) of the Yarmouth Zoning

Ordinance, the Yarmouth Water District site was presumed to be unsuitable

and Verizon failed to overcome that presumption. Second, they contend that

there was not substantial evidence in the record to support the Board’s finding

that Verizon investigated other technically feasible sites, as required by

Yarmouth, Me., Zoning Ordinance, art. II(Z)(9)(c) (Sept. 2016).

[¶11] “We review the Planning Board’s approval of the [site plan

application] directly for error of law, abuse of discretion or findings not

supported by substantial evidence in the record.” Osprey Family Tr. v. Town of

Owls Head, 2016 ME 89, ¶ 9, 141 A.3d 1114 (quotation marks omitted).

“Substantial evidence exists when a reasonable mind would rely on that

evidence as sufficient support for a conclusion.” Id. (quotation marks omitted).

“Although interpretation of an ordinance is a question of law, we accord

substantial deference to the Planning Board’s characterizations and

fact-findings as to what meets ordinance standards.” Bizier v. Town of Turner,

2011 ME 116, ¶ 8, 32 A.3d 1048 (quotation marks omitted). When interpreting 7

an ordinance de novo, “we first evaluate the plain meaning of the Ordinance

and, if the meaning is clear, [we] need not look beyond the words themselves.

We construe the terms of an ordinance reasonably, considering its purposes

and structure and to avoid absurd or illogical results.” Fryeburg Tr. v. Town of

Fryeburg, 2016 ME 174, ¶ 5, 151 A.3d 933 (citation omitted) (quotation marks

omitted). Olson and Rabin bear the burden of persuasion on appeal because

they seek to vacate the Planning Board’s decision. See Bizier, 2011 ME 116, ¶ 8,

32 A.3d 1048.

A. Application of the Presumption of Unsuitability

[¶12] We first consider Olson and Rabin’s argument that, pursuant to

article II(Z)(4)(a)(3) of the Ordinance, the Planning Board’s 2001 denial of

Sprint’s application to install a wireless communication antenna array and

associated equipment cabinets on the Yarmouth Water District site created a

rebuttable presumption that the site was unsuitable to accommodate Verizon’s

proposal.

[¶13] Article II(Z)(4)(a)(3) states:

Once the Planning Board has determined that telecommunications equipment proposed by the applicant cannot be accommodated on an existing or approved tower or Alternative Tower Structure, each tower or Alternative Tower Structure so found is presumed unable to accommodate similar equipment that may be proposed in the future unless the Board determines, after 8

additional information is provided, that new technology or other considerations enables the existing or approved tower or Alternative Tower Structure to accommodate the equipment.

Yarmouth, Me., Zoning Ordinance, art. II(Z)(4)(a)(3).

[¶14] Olson and Rabin argue that Yarmouth, Me., Zoning Ordinance,

art. II(Z)(4) (Sept. 2016)4 broadly addresses co-location requirements and is

4 Article II(Z)(4) provides:

4. Co-location requirements

a. On existing towers:

(1) Applicants for site plan review for a new wireless communication tower must send written notice by pre-paid first class United States mail to all other such tower and Alternative Tower Structure owners and licensed wireless communication providers in the Town utilizing exi[s]ting towers and Alternative Tower Structures and to owners of such towers and Alternative Tower Structures within a 1 mile search radius of the proposed tower, stating their siting needs and/or colocation capabilities. Evidence that this notice requirement has been fulfilled shall be submitted to the Planning Board and shall include a name and address list, copy of the notice which was sent, and a statement, under oath, that the notices were sent as required. An application for a new tower must include evidence that existing or previously approved towers and Alternative Tower Structures within the Town and search area cannot accommodate the communications equipment (antennas, cables, etc.) planned for the proposed tower. Such evidence would be documentation from a qualified and licensed professional engineer that:

(a.) Planned necessary equipment would exceed the structural capacity of existing and approved towers and Alternative Tower Structures, considering the existing and planned use of those towers and Alternative Tower Structures, and the existing and approved towers cannot be reinforced to accommodate planned or equivalent equipment at a reasonable cost;

(b.) Planned equipment will cause electromagnetic frequency interference with other existing or planned equipment for that tower or Alternative Tower Structure, and the interference cannot be prevented at a reasonable cost; 9

not limited to applicants seeking to construct a new tower. They contend that

although article II(Z)(4)(a)(1) applies only to new-tower-construction

applicants, article II(Z)(4)(a)(3) applies both to new-tower-construction

(c.) Existing or approved towers and Alternative Tower Structures do not have space on which planned equipment can be placed so it can function effectively and at least in parity with other similar equipment in place or approved; or

(d.) Other documented reasons that make it technically or financially unfeasible to place the equipment planned by the applicant on existing and approved towers and Alternative Tower Structures.

(2) Shared use shall be conditioned on the applicant’s agreement to pay a reasonable fee and costs of adapting existing facilities to the proposed use.

(3) Once the Planning Board has determined that telecommunications equipment proposed by the applicant cannot be accommodated on an existing or approved tower or Alternative Tower Structure, each tower or Alternative Tower Structure so found is presumed unable to accommodate similar equipment that may be proposed in the future unless the Board determines, after additional information is provided, that new technology or other considerations enables the existing or approved tower or Alternative Tower Structure to accommodate the equipment.

(4) The Planning Department will maintain a list of existing and approved towers and Alternative Tower Structures, including name and address of owner(s), within the Town of Yarmouth.

b. Construction of new towers A proposal to construct a new co-located communication tower taller than the maximum height permitted for a single wireless communication service must include evidence that the tower can structurally support a minimum of three (3) antenna arrays for each anticipated co-locating entity. (See Section II.Z.3.a Tower Height, above.)

Prior to the issuance of any Building permits for a co-located tower in excess of the height of a single user tower, the applicant will submit to the Code Enforcement Officer executed agreements documenting commitments to co-locate from the number of co-locators approved by the Planning Board.

Yarmouth, Me., Zoning Ordinance, art. II(Z)(4) (Sept. 2016). 10

applicants and to co-location applicants seeking to install similar equipment on

an existing structure. Based on this reading of the Ordinance, Olson and Rabin

assert that the presumption of unsuitability attaches to a site whenever the

Planning Board has determined that the site is unsuitable for co-location. Olson

and Rabin contend that the Planning Board’s 2001 determination that the

Yarmouth Water District site was “too small in area and too narrow in width”

to accommodate Sprint’s proposal made the site presumptively unsuitable for

any later application to install similar equipment at that site, and that Verizon

needed to rebut that presumption before its application could be approved.

[¶15] The question to be answered is whether the presumption of

unsuitability attaches to a co-location site only when an applicant initially

proposes to construct a new tower, or whether it also attaches when the

applicant’s initial proposal is to co-locate by installing equipment on that site.

If the latter, a rebuttable presumption of unsuitability attached to the Yarmouth

Water District site after the Planning Board denied Sprint’s application in 2001.

[¶16] As is the case with statutes, our single goal in interpreting an

ordinance is to give effect to the Town’s intent in enacting the ordinance. See

Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d 621. We first determine

if the language of the ordinance is plain and unambiguous. See id. Our 11

interpretation of the plain language is guided by “taking into account the

subject matter and purposes of the statute, and the consequences of a particular

interpretation.” Id. ¶ 21. We must construe the terms of article II(Z)(4)

reasonably, by considering the purposes and structure of the Ordinance to

avoid absurd or illogical results. See Fryeburg Tr., 2016 ME 174, ¶ 5, 151 A.3d

933. After examining the entirety of the Ordinance, we conclude that the plain

and unambiguous language of the Ordinance makes clear that article II(Z)(4)

applies only to new-tower-construction applicants.

[¶17] At the outset, article II(Z) announces that one of the purposes of

the Ordinance is to encourage co-location and “[p]ermit the construction of new

towers only where all other reasonable opportunities have been exhausted.”

See Yarmouth, Me., Zoning Ordinance, art. II(Z)(1). Accordingly, article II(Z)(4)

describes the process that new-tower-construction applicants must use to

exhaust their opportunities for co-location before they can obtain Planning

Board approval of their new-tower-construction application.

[¶18] No language in article II(Z)(4) states that the provisions apply to

co-location applicants. Instead, article II(Z)(4)(a)(1) expressly requires

new-tower-construction applicants to undertake a search for existing and

previously approved co-location sites that can accommodate the applicant’s 12

proposed communications equipment; article II(Z)(4)(a)(2) requires payment

of fees if a co-location site is found in that search; and article II(Z)(4)(a)(3)

creates a presumption of unsuitability if the Planning Board agrees with the

new-tower-construction applicant that a co-location site is unsuitable, and the

effect of the presumption is that, unless additional information is provided to

the Planning Board, and the Board determines “that new technology or other

considerations enables the existing or approved tower or Alternative Tower

Structure to accommodate the equipment,” later new-tower-construction

applicants proposing to install “similar [communications] equipment” do not

have to submit any evidence to the Planning Board about the unsuitability of

that particular co-location site when attempting to comply with article

II(Z)(4)(a)(1). Finally, article II(Z)(4)(a)(4) requires the Town to maintain a

list of existing and approved co-location sites. We reject Olson and Rabin’s

interpretation of the Ordinance because it would increase the burden for co-

location applicants, produce the illogical result of decreasing the number of

sites available to co-location applicants, and ultimately result in the

construction of more new towers.5 See Desfosses v. City of Saco, 2015 ME 151,

5 The Superior Court affirmed the Planning Board’s decision by concluding that

article II(Z)(4)(a)(3) applies only “when there has been a Planning Board determination that ‘telecommunications equipment . . . cannot be accommodated on an existing or approved tower or Alternative Tower Structure’” and because the 2001 denial of Sprint’s application expressly found 13

¶ 16, 128 A.3d 648 (“[W]e must interpret [the Ordinance] to avoid absurd,

illogical, unreasonable, inconsistent, or anomalous results if an alternative

interpretation avoids such results.” (quotation marks omitted)).

[¶19] The Planning Board did not err in declining to require Verizon to

rebut a presumption of unsuitability.

B. Investigation of Other Technically Feasible Sites

[¶20] Olson and Rabin next assert that we should vacate the Planning

Board’s decision or remand for further fact-finding because the Board did not

receive substantial evidence that Verizon investigated other “technically

feasible sites,” as required by article II(Z)(9)(c) of the zoning ordinance.

[¶21] The Board did not make specific findings on Verizon’s compliance

with particular aspects of the zoning and site plan ordinances and made only

the following finding: “On the basis of the application, plans, reports and other

information submitted by the applicant, information from the public hearing,

information and the findings and recommendations contained in [the] Planning

that the water tower itself was an appropriate structure and the denial was because of the equipment on the ground, the rebuttable presumption did not apply. We agree with Olson and Rabin that this interpretation was incorrect because the term “telecommunications equipment” encompasses not only the antennae on the water tower, but also the equipment on the ground. However, it is the decision of the Planning Board that we review, not the decision of the Superior Court. See Osprey Family Tr., 2016 ME 89, ¶ 9, 141 A.3d 1114. 14

Board Report dated September 23, 2016 . . . the Planning Board finds that the

plan is in conformance with Chapter 702, Site Plan Review Ordinance . . . .”

[¶22] Planning Board findings must be supported by substantial

evidence in the record. See Osprey Family Tr., 2016 ME 89, ¶ 9, 141 A.3d 1114.

The Planning Board had substantial evidence that Verizon had investigated

other technically feasible sites and concluded that none was available.

Although Verizon’s written submissions to the Planning Board did not contain

information about alternative sites that it had considered, Verizon’s application

included detailed information about its site selection process, and, during the

May and September meetings, the Planning Board asked the Verizon

representative about alternative sites that Verizon had considered. At the

September 28 Planning Board meeting, a Verizon representative explained that

its site selection process consisted of looking for gaps in coverage and

identifying sites that would fill those gaps and have a minimal effect on the

Town. Verizon’s representative reported that the only feasible site for

co-location was the Yarmouth Water District site because other sites were not

tall enough or would not fill the coverage gap. The Director’s report to the

Planning Board referred to the requirement of article II(Z)(9)(c) and Verizon’s

description of its site selection process, and noted that “[t]his site allow[s] the 15

antenna to be located on an existing water tower[,] which avoids the need to

construct a new tower.”

[¶23] Because the Planning Board’s finding was supported by substantial

evidence, we will not disturb the Board’s conclusion that the application met

ordinance standards. See Bizier, 2011 ME 116, ¶¶ 8, 12, 32 A.3d 1048 (“[W]e

accord substantial deference to the Planning Board’s characterizations and

fact-findings as to what meets ordinance standards.”) (quotation marks

omitted)).

The entry is:

Judgment affirmed.

Nathaniel A. Bessey, Esq. (orally), Brann & Isaacson, Lewiston, for appellants Frederick Olson and Leora Rabin

Philip R. Saucier, Esq. (orally), Bernstein Shur, Portland, for appellee Town of Yarmouth

Scott D. Anderson, Esq. (orally), Verrill Dana, LLP, Portland, for appellee Verizon Wireless

Cumberland County Superior Court docket number AP-2016-48 FOR CLERK REFERENCE ONLY