Global Tower Assets, LLC v. Town of Mount Vernon

22 F. Supp. 3d 47, 60 Communications Reg. (P&F) 465, 2014 U.S. Dist. LEXIS 71684, 2014 WL 2195052
CourtDistrict Court, D. Maine
DecidedMay 27, 2014
DocketNo. 1:13-cv-00351-GZS
StatusPublished
Cited by1 cases

This text of 22 F. Supp. 3d 47 (Global Tower Assets, LLC v. Town of Mount Vernon) is published on Counsel Stack Legal Research, covering District Court, D. Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Global Tower Assets, LLC v. Town of Mount Vernon, 22 F. Supp. 3d 47, 60 Communications Reg. (P&F) 465, 2014 U.S. Dist. LEXIS 71684, 2014 WL 2195052 (D. Me. 2014).

Opinion

ORDER ON MOTION TO DISMISS

GEORGE Z. SINGAD, District Judge.

Before the Court is Defendant Town of Mount Vernon’s (“Mount Vernon”) Motion to Dismiss (ECF No. 11). For reasons explained herein, the Court GRANTS IN PART and DENIES IN PART Mount Vernon’s Motion to Dismiss (ECF No. H).1

I. STANDARD OF REVIEW

The Federal Rules of Civil Procedure require only that a complaint contain “a short and plain statement of the grounds for the court’s jurisdiction ... a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought[.]” Fed. R.Civ.P. 8(a)(1) — (3). The Court assumes the truth of the complaint’s well-pleaded facts and draws all reasonable inferences in plaintiffs’ favor. Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir.2012). Under Rule 12(b)(6), the Court “may consider only facts and documents that are'part of or incorporated into the complaint.” United Auto., Aero., Agric. Impl. Workers of Am. Int’l Union v. Fortuno, 633 F.3d 37, 39 (1st Cir.2011) (internal citations omitted).

A viable complaint need not proffer “heightened fact pleading of specifics,” but in order to survive a motion to dismiss it must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 [50]*50(2007). In considering a motion to dismiss, the Court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plaintiffs must include enough facts supporting a claim for relief that “nudge[ ] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir.2011) (quoting SEC v. Tambone, 597 F.3d 436, 442 (1st Cir.2010)); see also Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (stating that the Court need not accept “[tjhreadbare recitals of the elements of a cause of action, supported by mere conclusory statements”). At this point in the litigation, “the determination of whether an issue is trialworthy simply is not the same as the determination of whether a plaintiff states a claim upon which relief can be granted.” Bodman v. Maine, Dept. of Health & Human Servs., 720 F.Supp.2d 115, 121 (D.Me.2010) (denying motion to dismiss a hostile work environment claim).

II. BACKGROUND

A. The Parties

Mount Vernon is a municipality in Ken-nebec County, Maine that regulates land use within its boundaries by means of an ordinance known as the “Land Use Ordinance of the Town of Mount Vernon, Maine” (“the'Ordinance”). (Compl. (ECF No. 1) ¶ 3.) Plaintiff Global Tower Assets, LLC (“Global Tower”) works with federally-licensed providers of personal wireless communication services, such as Plaintiff Northeast Wireless Networks, LLC (“Northeast”), by identifying and acquiring appropriate sites for the development of personal wireless communication facilities. (Id. ¶ 11.) Global Tower further works with federally licensed providers in constructing facilities for use by personal wireless communication services providers. (Id.) Global Tower has an agreement with Northeast to provide those services, including within the Town of Mount Vernon. (Id.) The Federal Communications Commission (“FCC”) has issued a license to Northeast to provide wireless service in the Town of Mount Vernon pursuant to 47 U.S.C. § 151. (Id. ¶ 12.)

B. Wireless Coverage In Mount Vernon

In the Complaint, Global Tower and Northeast state that they “have identified a specific geographical area in the Town of Mount Vernon where there is a significant gap in service coverage for personal wireless communications due to lack of a cell site in this area.” (Id. ¶ 14.) Global Tower and Northeast have deemed this service problem significant and in need of a remedy. (Id. ¶ 15.) Global Tower and Northeast have conducted testing and analysis and have determined that the gap in coverage can be remedied by locating a new communications tower at 218 Blake Hill Road in Mount Vernon (the “Property”). (Id. ¶ 16.) Global Tower and Northeast have proposed a 190-foot communication tower that is designed to accommodate up to five wireless communication service providers. (Id. ¶ 18.) The Property is located in Mount Vernon’s Rural District, which allows essential services as a land use, with approval by the Mount Vernon Planning Board (the “Planning Board”) and the issuance of a permit by the Mount Vernon Code Enforcement Officer. (Id. ¶ 19.)

[51]*51C. Proceedings Before The Planning Board In Mount Vernon

On January 11, 2013, Global Tower and Northeast submitted an application to the Planning Board seeking approval to construct a personal wireless services facility on the Property (the “Application”). (Id. ¶ 23.) The Application requested permission to construct and operate a 190-foot communication tower. (Id.)

On January 15, 2013, the Mount Vernon Planning Board held a public meeting and substantively reviewed the Application. (Id. ¶ 24.) Specifically, the Planning Board discussed whether the proposed communication tower complied with the standards of the Ordinance, including the use classification of the proposed communication tower, and indicated that it did not believe the Application complied with the Ordinance’s height requirement. (Id.)

D. The Moratorium

On January 17, 2013, Mount Vernon’s Board of Selectmen executed a Warrant for a Special Town Meeting of the Town of Mount Vernon to establish a moratorium on any new construction or use requiring approval under the terms of Ordinance until July 17, 2013. (Id. ¶ 25.) No notice was provided to Global Tower or Northeast regarding the development and execution of the Warrant regarding the moratorium. (Id.) On January 19, 2013, the Planning Board held a public meeting concerning the Application- and visited the Property with Global Tower representatives. (Id. ¶ 26.) During the meeting, the Planning Board discussed the “fall zone of the communication tower” and whether the Property and leased area’s specifications satisfied the Ordinance’s requirements.

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22 F. Supp. 3d 47, 60 Communications Reg. (P&F) 465, 2014 U.S. Dist. LEXIS 71684, 2014 WL 2195052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/global-tower-assets-llc-v-town-of-mount-vernon-med-2014.