Industrial Commc’ns v. Town of Alton, et al.
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Opinion
Industrial Commc’ns v. Town of Alton, et al., CV-07-102-JL 9/21/12
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Industrial Communications and Electronics, Inc. et al.
v. Civil N o . 07-cv-082-JL Opinion N o . 2012 DNH 168 Town of Alton, David Slade, and Marilyn Slade
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a challenge to the Town of Alton’s decision, in
December 2006, to deny the plaintiffs the variance necessary to
construct a 120-foot cell tower there. The plaintiffs, who are
Industrial Communications and Electronics, Inc. (“ICE”), RCC
Atlantic, Inc., d/b/a Unicel (“Unicel”) and U.S.C.O.C. of New
Hampshire RSA # 2 , Inc., d/b/a U.S. Cellular (“U.S. Cellular”),
claim that this decision effectively prohibits the provision of
personal wireless services in violation of § 704(a) of the
Telecommunications Act of 1996 (the “TCA”), 47 U.S.C.
§ 332(c)(7)(B)(i)(II). This court has subject-matter
jurisdiction under 28 U.S.C. § 1331 (federal question).
The plaintiffs commenced this action in March 2007. About
four months later, David and Marilyn Slade, who own property
abutting the site of the proposed tower, were granted leave to
intervene in the case. See Fed. R. Civ. P. 2 4 . While the
Slades’ motion to intervene asserted that their “claims/defenses share commonality with the main action,” they never filed a
complaint, answer, or other pleading setting forth any claims or
defenses, even though they were represented by counsel at all
times. In fact, they filed nothing of substance in the case
until late August 2009, when they purported to “oppose the
tentative settlement” between the plaintiffs and the Town which,
at that point, had been recently reported to the court. Nor, so
far as the record indicates, did the Slades engage in discovery,
designate experts, or otherwise participate in the litigation.
Eventually, in March 2010, the plaintiffs and the Town filed
an agreement for judgment embodying a settlement of the
plaintiffs’ claims, under which, inter alia, a variance would be
allowed for a tower 100 feet, as opposed to 120 feet, high. The
Slades objected to the entry of judgment, arguing that, despite
the settlement between the plaintiffs and the Town, the Slades
“retain[ed] the right to press their claims that the proposed
telecommunications tower violates local zoning ordinances and
that the ZBA’s decision does not contravene the” TCA. In
rejecting this argument, the court ruled that, among other
things, the Slades had never previously made any such claims
(again, they had never filed any pleading) and “[t]his
unexplained delay is reason enough to conclude that the Slades
cannot now start pursuing a claim that Alton’s decision to
2 disallow the proposed tower complied with the TCA.” Indus.
Commc’ns & Elecs. v . Town of Alton, 710 F. Supp. 2d 189, 193
(D.N.H. 2010). So the court approved the agreement for judgment,
with one modification, and directed the Clerk to close the case.
The Slades, however, appealed this decision to the court of
appeals, which vacated the judgment and remanded for further
proceedings. Indus. Commc’ns & Elecs., Inc. v . Town of Alton,
646 F.3d 76 (1st Cir. 2011). The court of appeals ruled that
“the Slades are entitled to resist the entry of a decree that
terminates their protectable rights unless a violation of the
[TCA] is proven,” observing that this court “ha[d] not yet so
found” because “it deemed itself no longer entitled to decide
that question because the original defendant,” i.e., the Town,
“no longer chooses to defend the [denial of the] variance.” Id.
at 8 0 . “But the Slades are prepared to do so,” the court of
appeals observed. Id. The court of appeals did not address this
court’s ruling that, because the Slades had not announced that
they were “prepared to do so”--or taken any action in the case at
all--until nearly three years after they had intervened, they had
waived any argument that the Town’s denial of the variance did
not violate the TCA. See Indus. Commc’ns & Elecs., 2010 DNH 081,
4-6 (discussing Local N o . 9 3 , Int’l Ass’n of Firefighters v . City
of Cleveland, 478 U.S. 501, 528-29 (1986)).
3 In any event, following remand, the court conducted a bench
trial on the plaintiffs’ claim over the course of three days in
November 2011. Before trial, the plaintiffs and the Slades each
submitted a trial memorandum and a set of proposed findings and
rulings, see L.R. 16.2(b)(2), and jointly filed a timeline and
statement of agreed-upon facts as directed by the court, see
Order of Sept. 2 8 , 2011. The parties agreed to submit the direct
testimony of their witnesses by affidavit, and to produce the
affiants for cross-examination at trial.1 Id. They further
agreed that the records of the proceedings before Town
authorities on the plaintiffs’ applications for the variance and
related relief, which were on file with the court--and spanned
nearly 2,300 pages--would be part of the record at trial.2 Id.
1 The one exception to this approach was Mark Hutchins, an independent radio frequency engineer the Town had hired to evaluate the plaintiffs’ application, who was unable to appear at trial due to illness. By agreement, the parties took his deposition during a recess in the trial, and submitted the transcript as part of the trial record. 2 The Town did not submit any final pretrial materials, nor did it appear at the trial. As a result, the plaintiffs moved at trial for entry of a default judgment against the Town. See Fed. R. Civ. P. 55(b). That motion is granted. The plaintiffs also moved at trial to default the Slades for failing to file an answer or other responsive pleading. While that would seem to be an inescapable result under the Federal Rules of Civil Procedure, it cannot be squared with the decision by the court of appeals in this case, as just discussed, so the plaintiffs’ motion to default the Slades is denied.
4 Based on these materials, the court makes the following
findings of fact and rulings of law, see Fed. R. Civ. P. 52(a),
which result in the entry of judgment for the plaintiffs on their
claim that the Town’s denial of their application for a variance
amounts to an effective prohibition on the provision of wireless
services in violation of the TCA. The plaintiffs have shown, by
a preponderance of the evidence, that both Unicel and U.S.
Cellular have significant coverage gaps in the area and that,
despite their thorough investigation of viable alternatives, the
proposed tower is the only feasible way to close those gaps. By
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Industrial Commc’ns v. Town of Alton, et al., CV-07-102-JL 9/21/12
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Industrial Communications and Electronics, Inc. et al.
v. Civil N o . 07-cv-082-JL Opinion N o . 2012 DNH 168 Town of Alton, David Slade, and Marilyn Slade
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a challenge to the Town of Alton’s decision, in
December 2006, to deny the plaintiffs the variance necessary to
construct a 120-foot cell tower there. The plaintiffs, who are
Industrial Communications and Electronics, Inc. (“ICE”), RCC
Atlantic, Inc., d/b/a Unicel (“Unicel”) and U.S.C.O.C. of New
Hampshire RSA # 2 , Inc., d/b/a U.S. Cellular (“U.S. Cellular”),
claim that this decision effectively prohibits the provision of
personal wireless services in violation of § 704(a) of the
Telecommunications Act of 1996 (the “TCA”), 47 U.S.C.
§ 332(c)(7)(B)(i)(II). This court has subject-matter
jurisdiction under 28 U.S.C. § 1331 (federal question).
The plaintiffs commenced this action in March 2007. About
four months later, David and Marilyn Slade, who own property
abutting the site of the proposed tower, were granted leave to
intervene in the case. See Fed. R. Civ. P. 2 4 . While the
Slades’ motion to intervene asserted that their “claims/defenses share commonality with the main action,” they never filed a
complaint, answer, or other pleading setting forth any claims or
defenses, even though they were represented by counsel at all
times. In fact, they filed nothing of substance in the case
until late August 2009, when they purported to “oppose the
tentative settlement” between the plaintiffs and the Town which,
at that point, had been recently reported to the court. Nor, so
far as the record indicates, did the Slades engage in discovery,
designate experts, or otherwise participate in the litigation.
Eventually, in March 2010, the plaintiffs and the Town filed
an agreement for judgment embodying a settlement of the
plaintiffs’ claims, under which, inter alia, a variance would be
allowed for a tower 100 feet, as opposed to 120 feet, high. The
Slades objected to the entry of judgment, arguing that, despite
the settlement between the plaintiffs and the Town, the Slades
“retain[ed] the right to press their claims that the proposed
telecommunications tower violates local zoning ordinances and
that the ZBA’s decision does not contravene the” TCA. In
rejecting this argument, the court ruled that, among other
things, the Slades had never previously made any such claims
(again, they had never filed any pleading) and “[t]his
unexplained delay is reason enough to conclude that the Slades
cannot now start pursuing a claim that Alton’s decision to
2 disallow the proposed tower complied with the TCA.” Indus.
Commc’ns & Elecs. v . Town of Alton, 710 F. Supp. 2d 189, 193
(D.N.H. 2010). So the court approved the agreement for judgment,
with one modification, and directed the Clerk to close the case.
The Slades, however, appealed this decision to the court of
appeals, which vacated the judgment and remanded for further
proceedings. Indus. Commc’ns & Elecs., Inc. v . Town of Alton,
646 F.3d 76 (1st Cir. 2011). The court of appeals ruled that
“the Slades are entitled to resist the entry of a decree that
terminates their protectable rights unless a violation of the
[TCA] is proven,” observing that this court “ha[d] not yet so
found” because “it deemed itself no longer entitled to decide
that question because the original defendant,” i.e., the Town,
“no longer chooses to defend the [denial of the] variance.” Id.
at 8 0 . “But the Slades are prepared to do so,” the court of
appeals observed. Id. The court of appeals did not address this
court’s ruling that, because the Slades had not announced that
they were “prepared to do so”--or taken any action in the case at
all--until nearly three years after they had intervened, they had
waived any argument that the Town’s denial of the variance did
not violate the TCA. See Indus. Commc’ns & Elecs., 2010 DNH 081,
4-6 (discussing Local N o . 9 3 , Int’l Ass’n of Firefighters v . City
of Cleveland, 478 U.S. 501, 528-29 (1986)).
3 In any event, following remand, the court conducted a bench
trial on the plaintiffs’ claim over the course of three days in
November 2011. Before trial, the plaintiffs and the Slades each
submitted a trial memorandum and a set of proposed findings and
rulings, see L.R. 16.2(b)(2), and jointly filed a timeline and
statement of agreed-upon facts as directed by the court, see
Order of Sept. 2 8 , 2011. The parties agreed to submit the direct
testimony of their witnesses by affidavit, and to produce the
affiants for cross-examination at trial.1 Id. They further
agreed that the records of the proceedings before Town
authorities on the plaintiffs’ applications for the variance and
related relief, which were on file with the court--and spanned
nearly 2,300 pages--would be part of the record at trial.2 Id.
1 The one exception to this approach was Mark Hutchins, an independent radio frequency engineer the Town had hired to evaluate the plaintiffs’ application, who was unable to appear at trial due to illness. By agreement, the parties took his deposition during a recess in the trial, and submitted the transcript as part of the trial record. 2 The Town did not submit any final pretrial materials, nor did it appear at the trial. As a result, the plaintiffs moved at trial for entry of a default judgment against the Town. See Fed. R. Civ. P. 55(b). That motion is granted. The plaintiffs also moved at trial to default the Slades for failing to file an answer or other responsive pleading. While that would seem to be an inescapable result under the Federal Rules of Civil Procedure, it cannot be squared with the decision by the court of appeals in this case, as just discussed, so the plaintiffs’ motion to default the Slades is denied.
4 Based on these materials, the court makes the following
findings of fact and rulings of law, see Fed. R. Civ. P. 52(a),
which result in the entry of judgment for the plaintiffs on their
claim that the Town’s denial of their application for a variance
amounts to an effective prohibition on the provision of wireless
services in violation of the TCA. The plaintiffs have shown, by
a preponderance of the evidence, that both Unicel and U.S.
Cellular have significant coverage gaps in the area and that,
despite their thorough investigation of viable alternatives, the
proposed tower is the only feasible way to close those gaps. By
and large, the Slades have failed to come forward with any
evidence contesting the existence of the gaps or the feasibility
of any alternative plan, arguing instead that (1) the fact that
an entity controlled by another wireless carrier, Verizon,
acquired Unicel in August 2008 (several months after the
permitting decision at issue here) means that Unicel cannot show
a coverage gap without accounting for Verizon’s coverage in the
area, and (2) the plaintiffs’ failures to investigate
constructing two new towers, as well as a third set of new
antennas on an existing tower, as an alternative to the single
tower they proposed, and to propose a tower lower than 120 feet,
are fatal to their effective prohibition claim.
5 As more fully explained below, the court rejects these
arguments. First, they rely largely on proffered expert opinion
testimony that the Slades did not disclose until the week before
trial and, as a result, is inadmissible. Second, the mere fact
that Verizon acquired control of Unicel, even if Verizon did so
in order to get control of Unicel’s network, does not mean that
the two networks should be treated as one for purposes of the
substantial gap analysis, and the Slades adduced no other
admissible evidence on this point. Third, there is no credible
evidence (properly disclosed or otherwise) that the proposed
three-tower solution would fill the coverage gaps, and the
significantly greater visual impacts and financial costs of such
a solution mean that it was never a feasible alternative in any
event--and readily explain the plaintiffs’ claimed “failure” to
investigate such a plan. Fourth, and finally, the evidence
overwhelmingly shows that lowering the tower height is also not a
feasible alternative such that the plaintiffs’ “failure” to offer
that to the Town during its review of their variance applications
would defeat their effective prohibition claim.
Findings of Fact
Unicel and U.S. Cellular coverage gaps in Alton
1. In 2004, plaintiffs Unicel and U.S. Cellular, holding
federal licenses to provide personal wireless services in areas
6 including the Town, determined that they had gaps in their
wireless networks there. In Belknap County, where Alton is
located, U.S. Cellular holds a federal license to provide
personal wireless services in the 800 megahertz or “cellular”
band, while Unicel holds a federal license to provide those
services in the higher-frequency “PCS” band. Because signals at
the higher frequency do not propagate as well as those at the
lower frequency, PCS networks generally require a greater number
of antenna sites to serve a given area than cellular networks.
2. Unicel engaged plaintiff ICE, a company that deploys
infrastructure for wireless networks, to locate sites in the Town
where Unicel could potentially locate antennas to close those
gaps. ICE assigned this task to Kevin Delaney, its regulatory
and compliance manager. For its part, U.S. Cellular retained
both Kenneth Kozyra and Daniel Goulet, who work as consultants to
wireless companies, to assist it in closing, in particular, one
of the same gaps in the Town.
3. That coverage gap is located largely within an area
surrounding the southern tip of Alton Bay, which is itself the
southern tip of Lake Winnipesaukee, and located just to the
northwest of the town of Alton proper. This area includes
portions of Routes 11 and 28A, which run from the town proper,
past the tip of Alton Bay, and alongside the eastern and western
7 shores of the bay, respectively. The area also includes a
portion of Route 2 8 , which, beginning just to the southeast of
the town proper, runs to the east o f , and at a higher elevation
than, Route 28A. Route 28 continues on the path for roughly
three miles until it intersects with Route 28A again at a point
about one mile east of Alton Bay, then heads in a northeasterly
direction for several miles before reaching the town line between
Alton and Wolfeboro.
5. U.S. Cellular’s gaps in the vicinity of Alton Bay
included: a small area along the eastern edge of Route 1 1 , just
south of the tip of the bay; several stretches of Route 28A
between its intersections with Route 11 and Route 2 8 ; and nearly
all of Route 28A as it runs parallel to Route 28 along that same
stretch. Unicel also had gaps in its coverage in the vicinity of
Alton Bay, including, inter alia, portions of Routes 1 1 , 2 8 , 28A,
and 140 (which intersects with Route 11 south of Alton B a y ) .
Plaintiffs’ search for wireless antenna locations
6. Much of the terrain within a few miles of Alton Bay
consists of mountains, many with elevations reaching more than
1000 feet, rising up steeply from the bay. Many of these slopes
are heavily forested and inaccessible by existing roads. Such
mountains, hills, ridge lines, and trees can obstruct the path of
the radio signals transmitted through wireless networks.
8 7. When Unicel, through ICE, began looking for potential
wireless antenna sites in the Town, its zoning ordinances limited
the siting of personal wireless facilities to four “overlay
districts.” These districts generally encompassed the areas of
greatest elevation within the Town. The overlay districts
included Prospect Mountain, an area several miles to the
southeast of Alton Bay, and Old Wolfeboro Road, named for a
thoroughfare traversing a ridge line running roughly parallel t o ,
but to the east of and at a higher elevation than, Route 2 8 .
8. Prospect Mountain was home to a wireless tower at this
time, but placing an antenna there would not have, in and of
itself, remedied either Unicel’s or U.S. Cellular’s coverage gap
in the vicinity of Alton Bay. Nevertheless, Unicel planned to
add an antenna to the Prospect Mountain tower as part of its plan
to provide coverage in the Town, and began looking for additional
sites within the overlay districts.
9. Also around this time, the Town’s planning board was
considering an application to build a tower in one of the other
overlay districts, Old Wolfeboro Road. The application was later
approved, and a tower was built, on that site--which has come to
be called the “National Grid” or “GridComm” tower--though neither
Unicel nor U.S. Cellular has since placed an antenna there
(another carrier, Sprint Nextel, h a s ) .
9 10. Unicel eventually determined that placing an antenna
within any of the overlay districts would not be feasible. In
particular, Unicel concluded that siting an antenna in any of the
districts would leave significant gaps, as well as that two of
the districts, Straightback Mountain and Mount Bet, could be
accessed only by building a new road and utilities, which would
require blasting and tree-cutting.3
11. Unicel then began looking at potential antenna sites
outside of the overlay districts, both in the vicinity of Alton
Bay and in another area known as Roberts Knoll, which is in the
northeastern part of the Town, near the Wolfeboro line. As part
of this search, ICE sent letters to the record owners of ten
different properties in the Alton Bay area, inquiring as to their
interest in selling or leasing the parcel to ICE for the
construction of a wireless communications tower. Two of these
properties were located on Lakewood Drive, which runs roughly
parallel to the western shore of Alton Bay for about a mile. The
rest were located on the eastern side of the bay, generally on
and around a prominence known as Miramachie Hill.
3 Furthermore, in response to an initial inquiry from ICE, in December 2005, the owners of the land comprising both Straightback Mountain and Mount Bet indicated that they had no interest in selling or leasing i t .
10 12. Seven of these landowners did not respond to ICE’s
inquiry. One of them did not because, as it turns out, the
parcel in question--53 Miramachie Hill Road--was not owned by
her, but by the Slades who, by December 2005, were publicly
opposing the placement of a wireless tower in the vicinity of
Miramachie Hill.
13. Four of the other landowners solicited by ICE expressed
interest in selling or leasing their property. But ICE
ultimately determined that only one of these properties, which
was located at 486 East Side Drive, was a feasible location for a
wireless tower. As to the three other properties, one was too
small to accommodate the tower and the associated “fall zone”
required by the Town’s zoning by-laws; another did not allow
access to the portion of the site where the tower would be
located; and a tower at the third property would have left
significant gaps in coverage, and also have been “extremely
visible,” according to the trial testimony.
14. Indeed, Delaney testified that ICE decided against
siting on this third property--located on Lakewood Drive, on the
western side of Alton Bay--“based on feedback from the town on
visibility and their reaction to certain locations.” Goulet
further explained that many areas on the western side of the bay
are either “highly visible” or divided into campsites or other
11 parcels that are too small to accommodate a wireless tower. So,
aside from the two Lakewood Drive parcels, ICE did not search for
possible tower locations on the western side of Alton Bay.
15. Thus, ICE did not explore siting the tower on property
on the west side of the bay owned by the Alton Bay Christian
Conference Center (“ABCCC”) and used as a summer youth camp. As
Delaney explained, compared to the East Side Drive site, this
property is “much closer to the bay itself and close to where
people congregate in the town. There’s shops down there as well
as miniature golf, and [a tower there] would be highly visible
from Route[s] 11 and 28A.” The ABCCC is located less than half a
mile uphill from the dock for the M t . Washington Cruise Line,
where, as the chairman of the Alton ZBA later observed at a
public hearing, “a great number of people come to view this lake
[and] the surrounding mountains.”
16. Furthermore, Goulet testified at trial that, during
U.S. Cellular’s search for a wireless site, he never did any
computer modeling of coverage from the ABCCC property because it
is less than 600 feet in elevation, “just a little higher than
the lake”--and lower than tree-lined ridges “in excess of eight,
nine hundred feet” in elevation between that site and U.S.
12 Cellular’s coverage gaps on the eastern side of the bay.4 S o , as
Goulet explained, U.S. Cellular “would not have looked at a site
that was only some 540 odd feet to shoot through trees and over
ridges to cover the gaps that was [sic] in part of U.S.
Cellular’s coverage areas . . . . [T]he Christian Conference
Center doesn’t even cover the west side of the bay. I wouldn’t
have expected it to cover the east side of the bay.”5
4 The Slades presented testimony from a member of the ABCCC board of directors, Muriel Stinson, about part of its property on the western side of the bay, known as “Camp Advenchur.” Stinson stated in her trial affidavit that “Camp Advenchur is at a considerably higher elevation that the [ABCCC’s] lakeside facility (perhaps 120 feet higher).” The Slades, however, did not introduce any topographic map of the area o r , for that matter, even a scale map of the “Camp Advenchur” site, and Stinson disclaimed, in her trial testimony, any specific knowledge of the site’s dimensions. (She testified principally that, in June 2006, she had submitted a form that U.S. Cellular had emailed her to provide information about the camp as a potential tower site, but had never heard back.) The topographic map of the larger Alton Bay area that the Slades did put into evidence shows that the “Camp Advenchur” site reaches an elevation exceeding 700 feet, but there is no way to tell where that point is relative to the many cabins and other existing buildings on the site, which is used as a summer camp for children. 5 Goulet stated in his trial affidavit that “it is easy for [him] to conclude, even without computer modeling, that a site in [the] vicinity [of the ABCCC property] would not duplicate the coverage of the proposed 486 East Side Drive site” because “signals would be blocked by the topography from reaching Route 28 and the northernmost portion of 28A.” At trial, the Slades moved to strike this statement as undisclosed expert opinion, but the court conditionally allowed it subject to ruling on the admissibility of the Slades’ proffered--but untimely disclosed-- expert testimony. Because, as explained infra, the court rules that the Slades’ improperly disclosed expert testimony is
13 17. In May 2005, ICE bought the property at 486 East Side
Drive from its then-owners, who insisted on an outright purchase
(rather than a lease or an option to purchase). Generally,
building a wireless tower in New Hampshire costs about $500,000
in acquiring the land, obtaining the necessary permits, designing
and building the tower, and improving the site. In addition,
each carrier who locates on the tower can expect to pay about
$500,000 for its antenna and related equipment (and then to pay a
monthly rental charge for space on the tower).
18. In late 2005, U.S. Cellular began looking for an
antenna site in Alton so it could fill “major gaps in service”
there, particularly in the town proper and along Routes 1 1 , 2 8 ,
and 28A. See ¶ 5 , supra. Like Unicel, U.S. Cellular had
concluded that this could not be accomplished by siting an
antenna within any of the wireless overlay districts imposed by
the ordinance in effect at that time.
19. U.S. Cellular determined, however, that an antenna site
“of modest height” at the top of Pine Mountain, on the western
side of Alton Bay about one and a half miles from the shoreline,
would potentially close the gaps. So Kozyra, acting on U.S.
inadmissible, it grants the Slades’ motion to strike Goulet’s undisclosed expert testimony as well. The court notes, however, that the Slades did not move to strike the testimony Goulet gave at trial about the ABCCC site, which they elicited themselves.
14 Cellular’s behalf, identified the six parcels “that were the best
in terms of being located at or near the top of [Pine] Mountain
and also having at least potential access” from existing roads.
These parcels were owned by three different people, to whom
Kozyra wrote in February 2006, offering to lease approximately
one quarter acre of their property, for around $10,000 a year, to
host a cell tower. Kozyra followed up on these letters by
attempting to call their recipients. Each of them, however,
either failed to respond or informed him that they were not
interested in his proposal.
20 In May 2006, Kozyra returned to Pine Mountain, with a
U.S. Cellular engineer, to attempt to identify other potential
sites. They concluded that none of the parcels in the area,
including the ones that Kozyra had asked about leasing, “would be
feasible” because “they were either too low in elevation or else
were on the north or west face of the mountain, and these factors
made it obvious that at least without a very tall tower, the top
of the mountain would block the signals and not allow [them] to
reach the targeted coverage area.”
Plaintiffs’ initial applications for zoning relief
21. In September 2005, ICE and Unicel filed an application
with the Town’s Zoning Board of Adjustment (“ZBA”) seeking
variances to construct and operate a 120-foot wireless monopole
15 tower on the parcel at 485 East Side Drive.6 ICE and Unicel
simultaneously filed an application with the ZBA seeking
variances to construct and operate a 120-foot wireless tower at
another site, known as Roberts Knoll Campground, located
approximately three miles to the northeast of the East Side Drive
site, near the Wolfeboro line. These applications were necessary
because, as already discussed, the Town’s zoning by-laws in
effect at the time limited wireless towers to the overlay
districts, and both of the proposed sites were outside of the
overlay districts (and in districts with height limitations less
than the 120 feet proposed for each tower).
22. The application for the tower at the East Side Drive
site indicated that, at 120 feet, it could accommodate wireless
antennas for at least five different service providers, with the
antennas to be spaced at 10 foot intervals along the tower,
beginning at an elevation of 80 feet, as well as two dish
antennas at an elevation of 75 feet. The application also stated
that, at that time, Unicel was the only service provider that
planned to place an antenna on the tower.
23. While a public hearing on the applications was
originally scheduled for October 2005, the ZBA did not hear any
6 A “monopole” tower is a single, self-supporting column, usually made of steel.
16 testimony on them until a session in December 2005. At this
session, representatives of ICE and Unicel gave a presentation in
support of the application for the tower at the East Side Drive
property, while David Slade spoke in opposition to i t . Other
than requesting additional information from the applicants (which
they later provided), the ZBA did not take an action on the
application at this session.
24. Slade, a partner at the Washington, D.C., office of an
international law firm, Allen & Overy, owns a 60-acre parcel on
Miramachie Hill abutting the proposed East Side Drive site.
Slade practices in the area of project finance, assisting clients
in developing infrastructure--including, ironically, electric
transmission and telecommunications networks--in foreign
countries. Slade and his wife bought the Miramachie Hill
property from his grandmother in 2001, and plan to make it their
permanent home at some point. While the Slades would be able to
see the proposed tower from their Miramachie Hill property, it
would not impact their view of the lake from there.
25. In late January 2006, the ZBA retained (at the expense
of ICE and Unicel) an independent radiofrequency engineer, Mark
Hutchins, to evaluate the proposed cell towers. While Hutchins
was working on his evaluation, in February and March 2006, the
ZBA did not take any action on the applications.
17 26. In late March 2006, Hutchins completed a report of his
evaluation. In relevant part, the report stated that “Unicel has
shown inadequate coverage within the Town” and that providing
“adequate PCS coverage, particularly north of Route 28A and the
northern section of Route 28 . . . cannot be accomplished within
the existing overlay districts at the maximum heights allowed in
each.” The report further stated that Unicel “still cannot
provide adequate PCS coverage to [these] areas” even if it placed
antennas on both the existing Prospect Mountain and National Grid
towers, see ¶¶ 8-9, supra, so that “new facilities are
warranted.” He added that “[r]oaming, or the use of services
that might be available from competing providers, is not a viable
coverage alternative for Unicel customers.” Hutchins delivered
this report at an April 2006 public hearing before the ZBA.
The revised personal wireless service facilities ordinance
27. In the meantime, the Town’s planning board was drafting
a new personal wireless service facilities ordinance and, in
fact, had held a public work session for that purpose in December
2005, less than two weeks after the hearing on ICE’s applications
before the ZBA. The planning board also held a public hearing on
the draft ordinance in January 2006. While the Town provided
public notice of this hearing as required by New Hampshire law,
neither ICE nor Unicel was separately notified of the proposed
18 ordinance until January 1 0 , 2006, one week prior to the second
public hearing on i t . The ordinance was ultimately approved by a
majority of the Town’s voters at its annual meeting in mid-March
2006.
28. The new personal wireless facilities ordinance,
codified as section 603 of the Town’s zoning by-laws, eliminated
the four wireless overlay districts that existed under the prior
by-law and allowed such facilities in all zoning districts in the
Town instead. The new ordinance did, however, impose other
restrictions on wireless facilities. First, the ordinance
required the applicant to show that such a “facility’s effect has
been minimized on the viewshed containing the facility, and that
the facility will not visually dominate any viewshed in the Town
(though “viewshed” is not defined).
29. Second, the ordinance imposed restrictions on ground-
mounted personal wireless facilities relative to the trees
existing on the site. The ordinance stated that such facilities
“shall not project higher than ten feet above the average tree
canopy height of the trees located within an area defined by a 50
foot radius or perimeter of the mount, security barrier, or
designated clear area for access to the equipment, whichever is
greater.” The ordinance further provided that
ground-mounted personal wireless service facilities shall be surrounded by a buffer of dense tree growth
19 that extends continuously for a minimum distance of one hundred fifty feet from the mount, security barrier, or designated clear area for access to equipment, whichever is greatest, and screens views of the facility in all directions. The easement or lease shall provide that the trees within the buffer shall not be removed or topped, unless the trees are dead or dying and present a hazard to persons or property. If removed for this reason, they must be replaced, unless Nature has provided a buffer.
30. Just prior to the April 2006 public hearing on their
applications, see ¶ 2 6 , supra, ICE and Unicel amended them in
response to the Town’s new personal wireless facilities
ordinance. Within the next month or s o , Kozyra learned of
Unicel’s application to construct a wireless tower at the East
Side Drive site. U.S. Cellular’s engineers determined that
“antennas at 110 feet in this location would adequately close its
coverage gap in the area.” In June 2006, then, U.S. Cellular
joined the pending application for the tower at the 486 East Side
Drive site, explaining that it wanted to install an antenna at
the tower at a height of 110 feet.
Hutchins’s conclusions: Evans Hill and tower height
31. The ZBA asked Hutchins to complete an addendum to his
report to reflect the new ordinance. After Hutchins began this
work, he suggested that ICE and Unicel consider using--as an
alternative to either the East Side Drive site, the Roberts Knoll
site, or both--a site known as Evans Hill. Evans Hill is located
20 approximately one mile to the north, and slightly to the east, of
the East Side Drive site, and is approximately 100 feet higher in
elevation. Compared to the East Side Drive site, Evans Hill is
slightly further from the eastern shore of Alton Bay, but closer
to the southern shore of Winnipesaukee proper. In fact, under
the prior version of the Town’s personal wireless facilities
ordinance, Evans Hill was designated as a protected view shed.
32. In response to Hutchins’s suggestion, Unicel analyzed
the coverage it could obtain from a site located on Evans Hill.
Unicel concluded that this coverage, even when combined with
coverage from its existing antenna at Prospect Mountain, would
leave two large gaps along Route 28A north of its intersection
with Route 11 at the tip of Alton Bay, as well as a smaller gap
in coverage along Route 2 8 .
33. In June 2006, Hutchins provided the addendum to his
earlier report, evaluating the proposal for the cell towers in
light of the revised personal wireless service facilities
ordinance--which, again, limited the height of such facilities to
ten feet above the average tree canopy in the vicinity. In the
addendum, Hutchins observed that, while this provision “evidences
the desire of many towns to minimize the visual impact of
antennas,” it “sets up a conflict with the [radiofrequency]
engineering requirement to adequately clear vegetative
21 obstructions--something even more important at higher
frequencies,” such as PCS, see ¶ 1 , supra. In fact, Hutchins
noted, “antenna height clearance, as a rule of thumb, is fifteen
feet above clutter.”
34. Hutchins reported in the addendum that he had received
conflicting information on the average tree canopy height at the
East Side Drive site. A forester hired by the Town had
calculated the average tree canopy height at 61 feet, while
Unicel reported that its engineer had calculated the average tree
canopy height at 84 feet (and noted that the heights of trees at
the site ranged from 72 feet to 95 feet). 7
7 The ordinance defined “average tree canopy height” as
The height of all trees surrounding a [personal wireless services facility] shall be measured from a base line extending outward from the point at which the base of the ground mount contacts the ground . . . . The base line shall extend outward 360 degrees from this contact point parallel to the horizon and is independent from the slope of the surrounding ground. The average tree canopy height shall be determined by inventorying the height of the base line of all trees within an area that extends for a distance of fifty feet outward from and 360 degrees surrounding the contact point along the base line from the base of the mount, security barrier, or designated clear area for access to equipment, whichever is greatest. The height that each tree extends above the base line within this area shall be measured and inventoried and the average height shall be calculated. Trees that will be removed for construction shall NOT be used in this calculation.
In applying this definition, the forester figured that a 100 foot by 100 foot square “compound” enclosing the base of the tower (as
22 35. Hutchins ultimately concluded, as to the proposed East
Side Drive facility, that “antenna height should be no lower than
75 feet above ground level, given the 60 foot average canopy.”
Hutchins did not explain, in either the addendum or his trial
testimony, why he had chosen the forester’s calculation (which
was actually 61 feet), rather than Unicel’s calculation.8 He did
testify, however, that the ordinance’s limitation on tower height
relative to the surrounding tree canopy is “arbitrary . . . from
an engineering standpoint” and does not “bear any relationship to
finding a tree height that might impact those antennas.”
36. Based on computer modeling, Hutchins concluded that,
with an antenna placed at a height of 75 feet at the proposed
East Side Drive site, PCS service along much of Routes 11 and 28
near, and south o f , the tip of Alton Bay would be at a signal
strength of between -85 and -95 dBm, while signal strength would
be less than -95 dBm where those roads intersected in Alton
shown on the plans for the facility) would translate into a circle with a radius of 70 feet measured from the base. Thus, he calculated the average height of a sample (but not all) of the trees beyond that radius but within a larger concentric circle of 120 feet measured from the base (i.e., within 50 feet of the “circle” drawn around the square of the compound). 8 When asked this question at his trial deposition, Hutchins gave an elliptical response, the substance of which seemed to be that he adopted the forester’s calculation because he assumed that the Town would have preferred he do so (rather than because he found the forester’s methodology sound).
23 proper. Hutchins testified in his trial deposition that, while
“your phone will work” at -95 dBm, “even in 2006, that was
becoming unacceptable, and if you had an emergency call, you
didn’t want to have to worry about that.”
37. Hutchins noted in the addendum that, even with a
minimum antenna height of 75 feet, the overall height of the
tower should be taller. Unicel’s proposal for the facility
included a microwave dish antenna so that, as required for the
operation of the network, the tower could “link” to other nearby
towers. Hutchins called this “not an unreasonable goal, since it
is often difficult and expensive to use wired (land-line)
connections to link cells together . . . . Dish-type antennas
are typically utilized and the Ordinance anticipates them.”
Thus, Hutchins explained, “[w]ith microwave dishes centered at 75
feet, U.S. Cellular would be at 85 feet and Unicel at 95 feet
. . . . Given the likelihood of even more providers in the area,
it is not unreasonable to consider another 10 or 20 feet since
collocation on one structure may avoid additional structures in
this portion of the Town.”9 In fact, under the Town’s ordinance,
9 In addition, as Delaney testified, “tower height is generally five feet above the highest installation point or ‘centerline’; otherwise the antennas, which can be as long as eight feet, would protrude above the top of the tower.”
24 “[c]o-location, both vertical and horizontal, is encouraged for
all personal wireless service facilities.”10
38. Hutchins further concluded that “[u]se of Evans Hill,
assuming it is available, could provide coverage similar to what
is likely from the East Side Drive site.” He acknowledged that
siting the tower at Evans Hill, rather than East Side Drive,
would leave “uncovered areas of Route 28A”--as ICE and Unicel had
already determined, see ¶ 3 2 , supra. Hutchins opined that those
gaps “should be addressed” either by (a) placing antennas on the
existing National Grid tower, or (b) erecting another tower, on
the western side of the bay, “up the hill from the Bay in the
vicinity of the [ABCCC]”--a location that had been depicted on a
“search-area map” he had been given by Unicel.11
39. Hutchins did not provide computer modeling of the
coverage this second proposed alternative (building new towers at
both Evans Hill and on the western side of the Bay) would
generate. Nor did he provide computer modeling of the first
10 The ordinance defines “vertical co-location” as “the use of a single mount on the ground by more than one carrier” and “horizontal co-location” as “the use of more than one mount on the same site by more than one carrier.” 11 Hutchins included an excerpt of this map in his June 2006 report, but it does not appear in the record in its original form, so far as the court can tell. Based on the excerpt (which is difficult to read clearly), it does not appear that the location depicted by Hutchins is actually on the ABCCC property.
25 proposed alternative (building a new tower at Evans Hill and
adding an antenna to the existing National Grid tower) with
antenna heights of 75 feet, as he had called “reasonable.” He
did, though, provide computer modeling of his first proposed
alternative with antenna heights of 95 feet at the Evans Hill
site and 145 feet at the National Grid site. This showed PCS
service along the stretches of Routes 11 and 28 south of the tip
of Alton Bay would be at a signal strength between -85 and -95
dBm (and, again, Hutchins said -95 dBm was “becoming
unacceptable” even at the time he prepared the addendum in 2006).
40. In response to Hutchins’s addendum, Goulet, the
radiofrequency engineer hired by U.S. Cellular, looked into
lowering the height of its proposed antenna at East Side Drive
(110 feet). He concluded that “while a height of 100 feet was
not absolutely necessary, a reduction of height to 90 feet would
cause U.S. Cellular’s coverage to be degraded to the point where
the coverage objective could not be met without an additional
site.” Goulet further concluded that “antennas installed at 110
feet on a tower at the top of Evans Hill” would leave
“significant gaps” in cellular service, including nearly all of
Routes 28 and 28A along the eastern side of Alton Bay and a
portion of Route 11 to the south of the bay.
26 41. At trial, Goulet explained that, in reaching this
conclusion, he used -92 dBm (as opposed to -95 dBm) as the
“threshold” for U.S. Cellular’s in-vehicle coverage, because that
was the signal strength that U.S. Cellular had determined was
necessary to provide competitive service to its customers.
Goulet noted that “every three dB you cut your power in half.”
Goulet also recounted that, in his computer modeling, he had used
a “bin size” of 30 meters by 30 meters (about 98 feet by 98
feet), so that “everything within that 30 meters gets averaged
and stamped with a [single] height,” including ground contours
and trees. Hutchins’s modeling, in contrast, had used a bin size
of 500 feet by 500 feet, so that it determined ground heights by
averaging the data in an area more than nine times the size of
what Goulet had used. Goulet explained that this made Hutchins’s
modeling less accurate.
42. Goulet testified that his “analysis shows that Evans
Hill is too far northwest, and the hill that the proposed [East
Side Drive tower] is on is actually what is causing the blocking
on Route 28 and 28A that you are getting from a site on Evans
Hill.” He added that, even if antennas were placed both on a new
tower at Evans Hill and the existing National Grid or “GridCom”
tower, as Hutchins had suggested, “the coverage from the Evans
27 Hill site stops at the proposed location. The GridCom coverage
stops just above the GridCom site because you've got some
relatively high terrain blocking it there. You have a ridge. So
you still are left with a gap on 28 and 28A.”
43. Nevertheless, also in response to Hutchins’s suggestion
of Evans Hill as an alternative site, ICE sent a letter by
certified mail, return receipt requested, to the record owner of
that property, an entity in Boston called “Christian Camps &
Conference.”12 The letter, which expressed interest in buying or
leasing the land atop Evans Hill for the purpose of constructing
a wireless tower, was returned stamped “refused.” ICE sent the
same letter the next month, but received no response. Delaney
explained that the Evans Hill property was unoccupied and,
indeed, unimproved, and that he “most likely” tried to find a
phone number for Christian Camps & Conference to get ahold of i t ,
because that was “typically part of his process” in contacting
the owners of potential sites (though he could not specifically
recall having done so). 1 3
12 This entity is apparently unrelated to Alton Bay Christian Conference Center, or ABCCC. 13 In his trial affidavit, Slade testified that “[a]s a property owner in Alton Bay, [he] know[s] that Christian Camps and Conferences operates separate boys and girls camps in Alton . . . and have their offices at the camp locations.” Slade further stated that he knows the camp’s “mailing and local address” and telephone number “from simply checking the camp’s
28 44. Unicel and U.S. Cellular relayed Goulet’s analysis, and
ICE’s unsuccessful efforts to contact the owner of the Evans Hill
parcel, to the ZBA in late July 2006. They also explained,
through the affidavit of another radiofrequency engineer, that
regardless of the “average tree canopy” height at the East Side
Drive site as defined by the ordinance or calculated by the
forester, the site contained several tall trees (at heights of 70
feet or more) within a 100-foot radius of the tower. The
engineer continued that “[it] is reasonable to assume that
additional tall trees similar to the ones [identified by the
forester] will be present” throughout the entire area that
surrounds the tower, at a radius measuring between 150 and 600
feet, before the elevation (and hence the height of trees
relative to the tower) starts to decrease. The engineer also
pointed out that, as the forester had noted, trees can grow up to
one foot in height per year, so that they would “increasingly
degrade the coverage from this facility over its operating life
website,” and attached screenshots from the website, www.christiancamps.net, to his affidavit (though the Slades never tried to introduce the screenshots as trial exhibits). The plaintiffs objected to Slade’s testimony as to Christian Camps and Conferences, and the accompanying screenshots, as hearsay. They are, see Fed. R. Evid. 801, and the Slades did not claim any exception making this evidence admissible. The objection is sustained, and the court cannot consider this evidence (though, ultimately, the availability of a site on Evans Hill makes no difference to the outcome here regardless, see infra ¶ A A ) .
29 if it is not tall enough to clear the surrounding foliage.” The
upshot of the existing forestation at the site, then, is that “in
effect [the plaintiffs] would have to clear cut” the entire area
surrounding the tower at a radius between 150 and 600 feet “in
order to avoid trees from interfering with the signal at the
lower heights proposed.” Again, the revised ordinance prevented
any cutting of trees within 150 feet of the “mount, security
barrier, or designated clear area for access to equipment,
whichever is greatest,” and, furthermore, required that the
“facility’s effect has been minimized on the viewshed containing
the facility, see ¶¶ 29-30, supra.
45. Hutchins also concluded in his June 2006 addendum that
radiofrequency coverage studies had shown “that existing
structures are unable to adequately close cellular and PCS
coverage gaps along Routes 28 and 28A.” Nevertheless, a
different outside engineer hired by the Town advised the planning
board in August 2006 that Unicel and U.S. Cellular had not
provided information to show that “no existing structures are
suitable.” In response, an engineer working for Unicel submitted
propogation models showing that, even if an antenna was placed at
a height of 120 feet at the Evans Hill location, and separate
antennas at each of five additional locations--the steeples of
30 four different local churches and the Town Hall--coverage gaps
would still remain along Routes 28 and 28A.14
Public hearings on the applications in fall 2006
46. In September 2006, the ZBA and the Planning Board held
a joint public hearing on the application.15 The Slades and
others spoke in opposition, while the applicants presented
testimony and other evidence in support.
47. Hutchins testified at the hearing. First, he opined
that, based on the information on specific trees at the site that
could serve to obstruct signals, see ¶ 4 4 , supra, the proposed
microwave dish “probably needs to be somewhere in the 9 0 - , 95-
foot range at the East Side Drive site as a minimum height,”
putting Unicel’s antenna at 105 feet and U.S. Cellular’s at 115
feet and the overall height of the tower at 120 feet.
48. Second, Hutchins testified that he had studied Evans
Hill as an alternative site and concluded that, even if antennas
were also placed on the National Grid tower, “that really
wouldn’t be a practical solution . . . in theory, that might
14 Furthermore, after the plaintiffs contacted two of these churches about locating wireless facilities on their property, one of them indicated it had no interest in such a plan, and the other failed to respond at all. 15 The Planning Board was considering an application for site plan review approval.
31 work, but I don’t think it would work really well; where the East
Side drive facility really fills the hole.” He explained that
the National Grid tower is “far enough to the east that [placing
antennas there] then starts to open up areas in Alton Bay itself
and along [Routes] 11 and 28A going up the [east] side [of the
b a y ] , which are filled by using the East Side Drive facility.”
Hutchins added that he had “looked at a number of other
possibilities” but that he and the applicants “were pretty much
in agreement that there isn’t anything that’s jumped out at me
that would work as an alternative site.”
49. The boards took no action on the applications at the
September hearing, but they did schedule a “balloon test” for the
end of the month to simulate the visual impact of the proposed
tower. In response to a comment from another member of the
planning board expressing concern about the height of the tower,
the chairman observed that “so far, the applicant hasn’t refused
to do anything . . . . They haven’t said, n o , we’re not going to
do 95 feet or whatever the height may be.”
50. The balloon test showed that a tower at the East Side
Drive site, at a height of 120 feet, would be visible above the
treeline from several spots, including along the bay. Those
spots included the dock for the M t . Washington Cruise Line,
located on the eastern side of the tip of the bay, off of Route
32 11--and, as the chairman of the Alton ZBA later commented, a
place “where a great number of people come to view this lake
[and] the surrounding mountains.” The dock is located less than
half a mile downhill from the ABCCC.
51. The balloon test also showed, however, that even a 75-
foot tower at the East Side Drive location would b e , in the words
of the chairman of the planning board, “plainly visible from many
locations.” There was also trial testimony that lowering the
height of the tower by 1 0 , or even 2 0 , feet from the proposed
height would not have made a significant difference to its visual
impact. No balloon test was done to simulate the visual impact
of a tower of any height at the Evans Hill site, which, again, is
approximately 100 feet higher in elevation than, and just about
one mile away from, the East Side Drive site.
52. After the balloon test was completed, the ZBA and the
Planning Board held another joint public hearing on the
application, in October 2006. After the chairman of the planning
board suggested that a tower of 20 feet above the average tree
canopy should be sufficient, ICE’s director of operations
responded, “I think we have presented enough evidence, and I
think your own experts have presented the evidence, that at that
extreme low height, it simply doesn’t work,” and that the
applicants needed a 120-foot tower “to make it operational.”
33 Nevertheless, he stated that the applicants were “willing to work
with” the boards to make the tower “as least intrusive as we can
. . . as long as it makes some economic sense and operational
sense.” Toward that end, he suggested a 120-foot “monopine”
tower disguised as a tree--an approach that entailed “additional
expense” but that he saw as a “fair compromise.”
53. Before the close of the hearing, the planning board
made a number of findings, reported orally. These included, as
to both the East Side Drive proposal and the Roberts Knoll
proposal, that “a 120-foot tower would dominate the view shed of
Alton Bay, which is in violation of the zoning ordinance.” The
planning board also found that the applicants had “not
investigated a multiple unit network of 4 to 5 wireless
facilities or more as Ordinance 603 envisions and provides
unlimited sites in the town” [sic] and “has not made inquiry of
possible site owners expressing the esthetic limitations of
ordinance 603 and therefore, has limited responses.”16 The
16 It is unclear where the personal wireless services ordinance “envisions” or imposes these requirements. In a section entitled “Existing Structures: Burden of Proof,” the ordinance provides that the applicant seeking to construct a new ground-mounted facility “shall have the burden of proving that there are no existing structures which are suitable to locate its personal wireless service facility and/or transmit or receive radio signals.” The ordinance explains that, “[t]o meet that burden,” the applicant must “to the extent applicable” (a) “submit to the planning board a list of all contacts made with owners of potential sites regarding the availability of potential space for a personal wireless service facility,” (b) “provide
34 planning board voted to report these findings to the ZBA for its
use in considering the applications for variances for both
towers, but did not take any action on the applications for site
plan review for either tower (other than to continue the hearing
on them to November 2 , 2006).
54. At the continued joint hearing, the planning board
approved the following motion: “The board does not feel that we
have enough information to make a decision. We would like to see
a study that would illustrate the effectiveness of a network of
telecommunications facilities in accordance with our new zoning
ordinance with all possible locations to be considered at the
expense of the Town of Alton.” There was no explanation at the
meeting--and it is not clear to the court--how this approach
“accords” with the revised personal wireless facilities
ordinance. See n.16, supra. In any event, so far as the court
can tell from the record, the study was never done.
55. The ZBA held another public hearing on the applications
in late November 2006. At this hearing, the ZBA approved the
copies of all letters of inquiry made to owners of existing structures and letters of rejection,” and (c) have a licensed civil engineer certify any claim “that a structure is not capable of supporting a personal wireless service facility.” While this provision requires the applicant to show that there are no suitable existing structures, it stops short of requiring the applicant to show that there are no alternative sites. The court can find nothing in the ordinance that requires an applicant to “investigate a network of 4 to 5 wireless facilities or more.”
35 requested variances for the proposed 120-foot tower at the
Roberts Knoll site.17 In response to a question from a board
member about lowering the height of the East Side Drive tower to
90 feet, Kozyra explained that this would likely not enable even
three different carriers to place antennas at the site because
the lowest antenna (at 70 feet, given the necessary 10 feet
between antennas) would be too close to the trees. The ZBA
continued the hearing without taking any further action on the
variance application for the East Side Drive facility (and the
planning board voted to table the application for site plan
review until the ZBA decided that application).
56. At the continued public hearing, in December 2006, the
ZBA voted to deny the application for the variance necessary to
build the tower at the East Side Drive site. As reported in a
subsequent “Notice of Decision,” the ZBA found that granting the
variances would be contrary to the public interest and out of
harmony with the spirit of the ordinance, and would fail to
accomplish substantial justice. The board members’ explanation
of their decision at the hearing itself focused on the visual
impact of the tower.
57. At a public hearing in February 2007, the ZBA denied
the plaintiffs’ motion for reconsideration of the denial.
17 The planning board later approved the site plan for the Roberts Knoll site.
36 Procedural history
58. The plaintiffs commenced this action in March 2007,
claiming that the denial of the variances for the proposed tower
at the East Side Drive site violated the TCA, both in that it was
unsupported by substantial evidence in a written record, see 47
U.S.C. § 332(c)(7)(B)(iii), and has the effect of prohibiting the
provision of wireless services, see id. § 332(c)(7)(B)(i)(II).
The plaintiffs asked the court to issue an injunction requiring
the Town to issue the variances, site plan approval, “and any
further approvals required to construct the proposed facility.”
59. In June 2007, the Slades, through counsel, filed a
motion to intervene, claiming an interest in the litigation on
the theory that, if the court granted the relief requested by the
plaintiffs, the resulting tower would interfere with the views
from their property in Alton and diminish its value. They argued
that the Town would not adequately protect this interest for them
in this litigation because “only a landowner who stands to suffer
[such] harm can adequately represent the loss of the panoramic
views and the enjoyment from such.” The plaintiffs did not
oppose the motion, which was granted. Order of Aug. 2 , 2007.
60. At that point, a scheduling order was in place which,
in relevant part, imposed a discovery cutoff of January 1 5 , 2008,
and expert disclosure deadlines of October 1 , 2007, and November
37 1 5 , 2007, for the plaintiffs and the defendant, respectively.
Order of May 2 1 , 2007. The Slades did not engage in any
discovery, designate any expert witnesses, or--as noted at the
outset, file a pleading, or anything else of substance, that
either responded to the plaintiffs’ claims or set forth any
claims on the Slades’ behalf.
61. As contemplated by the scheduling order, the plaintiffs
and the Town cross-moved for summary judgment on the effective
prohibition claim in May 2008.18 In support of its summary
judgment motion, the Town argued that “feasible alternatives
exist to ICE’s proposal of a large, multi-carrier gap to close
[the] alleged gap in coverage,” i.e., “shorter, single carrier
towers.” In support of this argument, the Town relied on the
proffered expert opinion testimony of a consultant on wireless
facilities, David Maxson, that “position[ing] three 70-foot poles
around the targeted area [would] achieve substantially the same
coverage as the proposed tower.” While the locations of these
poles were shown as points on an accompanying map, Maxson did not
otherwise identify the locations (or say whether they are on
property that would be suitable or available for siting wireless
facilities). In any event, the locations, which are clustered
18 The plaintiffs also separately moved for summary judgment on their substantial evidence claim. Following a telephonic hearing, the court denied that motion in a margin order. Order of Apr. 9, 2008.
38 around the proposed East Side Drive location, include neither
Evans Hill nor the ABCCC site.
62. The Slades did not file anything in response to the
plaintiffs’ cross-motion for summary judgment, or in support of
the Town’s. After hearing oral argument on the motions, in March
2009, the court denied them without prejudice in response to
encouraging statements from counsel for the plaintiffs and the
Town about the prospect of settling the case.
63. Settlement negotiations continued throughout the spring
and summer of 2009, with counsel for the plaintiffs and the Town
periodically reporting their progress to the court. In response
to one of these reports, the Slades--who had still not filed
anything of substance since they intervened--submitted a
memorandum expressing their opposition to any settlement and
asking the court to hold a hearing on ICE’s effective prohibition
claim. The Slades stated that the Town had already “presented
appropriate arguments and supporting evidence that should lead
the Court to uphold the local decision” to deny the variance for
the proposed tower at the East Side Drive site.
64. As noted at the outset, the plaintiffs and the Town
filed an agreement for judgment in March 2010, providing, inter
alia, for the amendment of the ZBA’s decision so that it granted
a variance for a tower at East Side Drive at a height of 100
39 feet, as opposed to 120 feet.19 The court entered the agreed-
upon judgment over the Slades’ objection and closed the case. On
their appeal, however, the court of appeals vacated the judgment
and remanded the case to this court, ruling that “the Slades are
entitled to resist the entry” of a judgment on the plaintiffs’
claims “unless a violation of the [TCA] is proven.” Indus.
Commc’ns, 646 F.3d at 8 0 .
65. Following remand, the plaintiffs and the Town filed a
“joint motion for an expedited hearing” on the plaintiffs’ motion
for summary judgment on their effective prohibition claim. In
the motion, the Town expressly admitted that its refusal to
19 Following the entry of judgment, U.S. Cellular (together with Verizon and AT&T Mobility) submitted an elevation drawing to the planning board, showing a 100-foot tower at the East Side Drive site, with an AT&T antenna at 80 feet, a U.S. Cellular antenna at 90 feet, and a Verizon antenna at 100 feet. When the Slades attempted to introduce this drawing at trial, the plaintiffs objected, arguing, among other things, that it amounted to evidence of compromise offers or negotiations. See Fed. R. Evid. 408. The court conditionally admitted the drawing subject to this objection, which is now sustained. The settlement between the plaintiffs and the Town, as embodied in the agreement for judgment, required the plaintiffs to “submit revised plans for site plan review by the Alton Planning Board,” and “under Rule 608, any evidence of the compromise agreement, or of performance, is inadmissible to prove . . . the validity . . . of the original claim.” 2 Jack B . Weinstein & Margaret A . Berger, Weinstein’s Federal Evidence § 408.03[4], at 408-15 (Joseph M. McLaughlin, ed., 2d ed. 1997 & 2012 supp.) (emphasis added). The Slades cannot use evidence that the parties began carrying out the settlement for the 100-foot tower to show that such a tower is a feasible alternative to the 120-foot tower that was rejected by the ZBA and, therefore, that the plaintiffs’ effective prohibition claim is invalid.
40 permit a 100-foot tower at the East Side Drive location would
amount to an effective prohibition on the provision of wireless
services in violation of the TCA. The Slades, through the same
counsel who had been representing them since they intervened,
initially assented to a prompt hearing on the plaintiffs’ summary
judgment motion, but, prior to the agreed-upon hearing date, that
counsel had withdrawn and been replaced by new counsel, who filed
an objection to the motion for an expedited summary judgment
hearing. In the objection, the Slades argued that they “are
entitled to the same discovery, briefing, and presentation of
evidence as any defending party in this type of case.”
66. In ordering a prompt summary judgment hearing over the
Slades’ objection, the court observed that “the Slades did have
an ample opportunity to engage in discovery and to submit
briefing and evidence in connection with summary judgment but, so
far as the court can tell, elected not to avail themselves of
that opportunity.” Indus. Commc’ns & Elecs., Inc. v . Town of
Alton, 2011 WL 2938368, at *2 (D.N.H. Jul. 1 9 , 2011). Thus, the
court rejected the Slades’ request to postpone the summary
judgment hearing so they could “obtain additional evidence and
expert opinion on issues pertaining to the effective prohibition
claim,” noting that, “when asked to identify the basis for that
41 relief during the most recent telephonic hearing, counsel for the
Slades candidly admitted there was none.” Id. at * 3 .
67. The Slades also noted in their objection to the
expedited summary judgment hearing that they had acquired an
additional parcel within the Town during the pendency of their
appeal in this case, so “additional evidence should be permitted
regarding the feasibility of locating a tower on this property.”
As it turns out, this property is located on Evans Hill. Slade
has also acquired another property on Evans Hill.
68. In September 2011, the court heard oral argument on the
plaintiffs’ motion for summary judgment on their effective
prohibition claim, and denied it from the bench. The court then
issued a procedural order directing the parties to make certain
filings in connection with the upcoming trial. Order of Sept.
2 8 , 2011. As noted at the outset, this order required the
parties to file affidavits constituting the direct testimony of
each of their witnesses, and to file exhibit lists by November 9,
2011, five days before the start of the trial, on November 1 4 ,
2011. At trial, each party made its affiants available for
cross-examination.
Proffered Maxson testimony and other challenged evidence
69. The Slades filed a trial affidavit from Maxson, who had
originally proffered an expert report on behalf of the Town in
42 opposing the plaintiffs’ summary judgment motion. Attached to
this report, dated November 2007, were three maps that Maxon had
prepared to model the expected PCS coverage from three different
antenna placements:20 (a) at 120 feet at the East Side Drive
site, (b) at 71 feet at the East Side Drive site, and (c) on
three 71-foot poles placed at unnamed locations around the East
Side Drive site.
70. In Maxson’s trial affidavit, however, he explained that
he had since been engaged to provide expert testimony on behalf
of the Slades and that, in this “current engagement,” he had “re-
created” some of these models using different radiofrequency
propagation software. But the only antenna placement that Maxson
modeled for both his report and his affidavit was at the proposed
East Side Drive site at a height of 120 feet, for PCS coverage.21
71. Based on the allegedly “re-created” models, apparently,
Maxson opines in his affidavit that “[a] facility at the [East
Side Drive] site does not completely address the [plaintiffs’]
20 While the key to each of the maps suggests that Maxson prepared them in color, only black-and-white copies have been submitted to the court. 21 For his trial affidavit, Maxson also modeled cellular coverage from a 120-foot high antenna at the proposed East Side Drive site. Maxson states that he simply “reproduced [his] analysis” of this coverage using the new software, but his expert report contains no reference to any such analysis, whether in the form of a map or otherwise.
43 coverage objectives in Alton.” In particular, Maxson identifies
uncovered “sections of Chestnut Cove Road and Damon Shore Drive”
--residential roads to the west of Route 28 that, even on
Maxson’s maps, are in fact almost entirely covered from the East
Side Drive site, at least by PCS service.22
72. Maxson further explains in his affidavit that, rather
than “re-creating” the three-pole model discussed in his expert
report for the Town since his engagement by the Slades, he had
modeled the combined coverage attainable from three new antennas:
on a new tower at the Evans Hill property owned by the Slades (at
90 feet), on a second new tower on the ABCCC property (also at 90
feet), and on the existing National Grid tower (at 100 feet). He
opines that doing so “would fill in the coverage that is lacking
from the proposed site” at East Side Drive.
73. Unsurprisingly, both before and during the trial, the
plaintiffs objected to these (and other) proffered statements by
Maxson as late-disclosed expert testimony, and to his “re-created
maps” as late-disclosed exhibits. The plaintiffs also renewed
their objection (raised in several pre-trial motions) that
22 Maxson’s affidavit also refers to “the weakness of the proposed site not fully serving along both Route 28 and Route 28A as one heads south from the proposed site,” as purportedly “noted in [his] Expert Report.” The report’s only reference to a gap in coverage from a tower at the East Side Drive site is “a depression in coverage to the south of the site, primarily along Route 28A.”
44 Maxon’s opinions were inadmissible in any event because they were
the product of unreliable methods and he was unqualified to give
them. See Fed. R. Evid. 702.
74. The plaintiffs also objected to Maxson’s proffered
testimony, and any other evidence, that “Unicel was acquired by
Verizon Wireless,” another provider of personal wireless
services, in August 2008--nearly a year after the ZBA, in the
decision giving rise to this action, finally denied Unicel’s
application for the variances necessary to site its proposed
antenna at the East Side Drive site in early 2007. Because
Verizon uses transmission technology that differs from what
Unicel was using at that time, Maxson explains, the Unicel
coverage maps submitted during the application process “do not
depict Verizon Wireless [ ] coverage to New Hampshire subscribers”
and, as a result, say nothing about any Verizon coverage gap.
75. A lengthy FCC order from August 2008, submitted by the
Slades at trial, references a merger between Rural Cellular
(Unicel’s parent company) and another entity, which is itself a
wholly owned subsidiary of a company known as AirTouch. Cellco
P’ship, 23 F.C.C.R. 12463, FCC 08-181 (Aug. 1 , 2008). The order
explains that, “[a]fter consummation of [this] transaction,
[Rural Cellular] will be a wholly owned-subsidiary of AirTouch
45 and a wholly-owned indirect subsidiary of Cellco.”23 Id. at 7-8.
The effect of this merger was that “all licenses, leases, and
authorizations [then] controlled by [Rural Cellular] and its
subsidiaries,” including RCC Atlantic, would henceforth “be
controlled by Verizon Wireless.” Id. at 8 . Nevertheless, Rural
Cellular “would continue to exist after closing as a wholly owned
subsidiary of Airtouch.” Id. at 1-2. The order further states
that, in their applications to the FCC, Rural Cellular and
Verizon “stipulate[d] that Verizon Wireless will integrate [Rural
Cellular’s] . . . networks into Verizon Wireless’s existing
operations over a period of about 18 months.” Id. at 4 6 .
76. Based on the admissible evidence received at trial, as
well as the record of the proceedings before the ZBA and the
planning board on the plaintiffs’ application to construct the
120-foot tower at the East Side Drive site, this court finds that
the ZBA’s decision to deny that application has the effect of
prohibiting the provision of personal wireless services in
violation of the TCA. See infra ¶¶ G-CCC.
Rulings of Law
23 As the order further explains, AirTouch is a subsidiary of Cellco, which is in turn “a general partnership that is a joint venture that is ultimately owned by Verizon Communications Inc. and Vodafone Group Plc., each through a series of intermediate companies.” Cellco P’ship, slip op. at 5-6 (parentheticals omitted).
46 Plaintiffs’ evidentiary objections
A. Before proceeding to the merits of the plaintiffs’
claims, the court must address their objections to much of the
evidence introduced by the Slades at trial. First, the
plaintiffs object to the lion’s share of Maxson’s proffered
expert opinion testimony as untimely disclosed. Again, the
scheduling order in this case set November 1 5 , 2007, as the
deadline for the defendant’s expert disclosures,24 and the Slades
did not make any (even though they had intervened in the case
several months beforehand).
B. The Town, however, properly disclosed Maxson as an
expert witness, providing an expert report as contemplated by
Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. The
plaintiffs did not object (at least on procedural grounds) to the
Slades’ relying at trial on opinions that Maxson had disclosed in
the expert report he prepared on behalf of the town (though they
did object to those opinions under Rule 7 0 2 ) . As discussed
supra, however, this report did not disclose many of the opinions
Maxson offered at trial on behalf of the Slades, including, most
24 The Slades have never argued that this deadline did not apply to them and, in fact, they repeatedly characterize themselves as “intervenor-defendants.” In any event, if the scheduling order did not apply to the Slades, they were still bound by the disclosure requirements of Rule 26(a)(3)(B), which require expert reports to be provided 30 days before trial. As discussed infra, the Slades did not make that deadline either.
47 significantly, that placing antennas on new 90-foot towers on
both Evans Hill and the ABCCC, as well as a third antenna on the
existing National Grid tower, “would fill in the coverage that is
lacking from the proposed site” at East Side Drive. Maxson’s
report also did not disclose any opinion projecting cellular (as
opposed to PCS) coverage from the proposed East Side Drive site,
nor did it include any of the coverage maps the Slades offered at
trial--which, as Maxson acknowledged, he had “re-created” using
different software long after he submitted his expert report.
Neither the opinions nor the documents were disclosed until the
Slades filed Maxson’s trial affidavit on November 9, 2011, which
was just five days before trial.
C. “If a party fails to provide information . . . as
required by Rule 26(a) . . . , the party is not allowed to use
that information or witness to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1). S o , as the
court of appeals has stated, “the baseline rule is that the
required sanction in the ordinary case is mandatory preclusion”
of late-disclosed information. Harriman v . Hancock County, 627
F.3d 2 2 , 29 (1st Cir. 2010) (quotation marks and bracketing
omitted). The Slades have given no reason why this baseline rule
should not apply here; to the contrary, they more or less
48 acknowledged several months before trial that there was no reason
they should be allowed to obtain additional expert opinion
testimony even at that point. See ¶ 6 6 , supra. Accordingly, the
court cannot consider Maxson’s late-disclosed opinions as to
coverage from the plaintiffs’ proposed East Side Drive tower or
his proposed three-antenna alternative.
D. The same analysis applies to Maxson’s proffered
opinions that Unicel no longer exists following its acquisition
by Verizon in August 2008 and, because of differences in
technology between Unicel and Verizon, evidence that Unicel has
coverage gaps in Alton says nothing about any Verizon coverage
gaps there. While the acquisition did not occur until several
months after the applicable expert disclosure deadline and, as a
result, could not have been covered in Maxson’s expert report, he
never supplemented his report to express his opinions about the
effect of the acquisition on the claimed coverage gap in this
case and, indeed, those opinions were not disclosed to the
plaintiffs until five days before trial. Again, the Slades have
not argued that this last-minute disclosure was substantially
justified or harmless, nor have they articulated any other reason
why Maxson’s opinions as to Verizon’s acquisition of Unicel
should be allowed. So the court cannot consider those proffered
opinions either.
49 E. Second, the plaintiffs argue that, because the only
“relevant inquiry is whether the February 2007 final action of
the Alton ZBA amounted to an effective prohibition at that point
in time,” evidence of events that took place after that decision
is inadmissible. See Fed. R. Evid. 401, 402. This would include
any evidence of: (1) Verizon’s acquisition of Unicel in August
2008, see ¶¶ 74-75, (2) the plaintiffs’ settlement of this action
with the Town in early 2010, and the plaintiffs’ subsequent
“efforts to implement the settlement embodied in that decree,”
including their application to the planning board for approval of
the agreed-upon 100-foot tower, see ¶ 64 & n.19, supra, and (3)
Slade’s purchase of property on Evans Hill during the pendency of
this lawsuit, see ¶ 6 7 , supra. The plaintiffs’ objection appears
to have some merit. First, according to this court’s research,
the only court to consider the question has held that “the time
frame that governs application of the [effective prohibition]
standard is the time in which the municipal or local government
in question makes its final determination as to the merits of a
permit application.” Metropcs Inc. v . City & County of San
Francisco, N o . 02-3442, 2006 WL 1699580, at *13 (N.D. Cal. June
1 6 , 2006). Second, as the plaintiffs point out, allowing
evidence of post-denial events could force a plaintiff bringing
an effective prohibition claim “to respond to a never-ending
50 stream” of “developments in technology, regulations, property
availability, and other new circumstances,” with the length of
the stream depending on something as arbitrary as how much time
had passed, and therefore, how much things had changed, between
denial and trial (here, that was some four and a half years).
F. Nevertheless, the court of appeals has generally
eschewed any bright-line rules in deciding effective prohibition
claims, see infra ¶ H , so this court is reluctant to rule that
evidence of events transpiring after a local authority’s final
decision to disallow a wireless facility is categorically
irrelevant to whether that decision amounted to an effective
prohibition. Regardless, the court need not resolve the
plaintiffs’ relevance objection. First, as discussed supra at ¶
D, Maxson’s opinions as to the Unicel-Verizon deal are
inadmissible for other reasons, and, as discussed infra at ¶ AA,
the only other record evidence on that point fails to show any
connection between that deal and Unicel’s claimed coverage gap.
Second, as also already discussed, see n.19, supra, evidence of
the plaintiffs’ actions in carrying out the settlement with the
Town is also inadmissible for an independent reason. Third, as
also discussed infra at ¶ AA, because the court finds that
placing a tower on Evans Hill--either alone or in conjunction
with antennas at the National Grid tower and another new tower at
51 the ABCCC--is not a feasible alternative for reasons independent
of the availability of a site there, evidence that Slade was able
to acquire such a site is essentially irrelevant anyway.
Effective prohibition
G. The court now turns to the merits of the effective
prohibition claim. In relevant part, the TCA provides that
“[t]he regulation of the placement, construction, or modification
of personal wireless facilities by any State or local government
or instrumentality thereof . . . shall not prohibit or have the
effect of prohibiting the provision of personal wireless
services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). As the court of
appeals has observed, “[b]eyond [this] language, the TCA provides
no guidance on what constitutes an effective prohibition, so
courts, including this one, have added judicial gloss.”
Omnipoint Holdings, Inc. v . City of Cranston, 586 F.3d 3 8 , 48
(1st Cir. 2009).
H. Where, as here, “a carrier claims an individual denial
is an effective prohibition, virtually all circuits require
courts to (1) find a ‘significant gap’ in coverage exists in an
area and (2) consider whether alternatives to the carrier’s
proposed solution to that gap mean that there is no effective
prohibition.” Id. (footnote omitted). The court of appeals has
instructed that “both of these determinations are fact-bound”
52 and, as a result, not usually resolved by applying “bright-line
legal standards.” Id. Indeed, “whether, under the
circumstances, an effective prohibition has occurred is a factual
issue” to be resolved by the district court. Id. at 4 7 .
I. “The carrier has the burden to show an effective
prohibition has occurred.” Id. at 4 9 . As explained infra, the
court finds that the plaintiffs have carried that burden here by
a preponderance of the evidence.
53 Significant gap
J. First, the evidence is overwhelming that both Unicel
and U.S. Cellular have significant gaps in their wireless
coverage in the areas they seek to serve through the proposed
East Side Drive facility. “Through the significant-gap analysis
courts determine whether a coverage problem exists at all” by
“consider[ing] whether a significant gap in coverage exists
within the individual carrier’s network”--as opposed to “whether
any carrier provides service to an area.” Id. at 49-50. “When
relevant, courts assessing whether a coverage gap is significant
should address, inter alia, the physical size of the gap, the
area in which there is a gap, the number of users the gap
affects, and whether all of the carrier’s users in that area are
similarly affected by the gaps.” Id.
K. Unicel and U.S. Cellular both have numerous gaps in
coverage in the area of the proposed tower, including portions of
several state roads beginning in Alton proper and continuing
northward along the eastern side of Alton Bay. See ¶¶ 4-5,
supra. U.S. Cellular’s gap, in fact, includes nearly all of
Route 28A as it traverses the eastern edge of the bay between
Routes 11 and 2 8 . See ¶ 5 , supra. These gaps could therefore
affect the cellphone service of all Unicel or U.S. Cellular
subscribers as they traverse these roads, or visit the center of
54 Alton proper. Moreover, Hutchins, the independent expert hired
by the Town, confirmed that both Unicel and U.S. Cellular had
inadequate coverage in the area of the proposed tower,
particularly along Routes 28 and 28A. See id. ¶¶ 2 6 , 4 5 .
L. These facts suffice to establish, by a preponderance of
the evidence, that both Unicel and U.S. Cellular have significant
gaps in their wireless coverage in the area of the proposed
tower. The Slades did not present any evidence to the contrary.
Instead, they argued that, because “Unicel no longer
independently exists and is now part of the Verizon Wireless
network,” any analysis of Unicel’s coverage in the area would
have to include Verizon’s coverage--and, because there is no
record evidence of any Verizon coverage gap, it follows that the
plaintiffs have failed to show any Unicel coverage gap.
M. One problem with this argument is that there is no
admissible evidence for its premise.25 Again, the only
admissible evidence shows that, after Unicel’s parent, Rural
Cellular, merged with an entity “ultimately owned” by Verizon,
Rural Cellular maintained its corporate existence--though it and
its FCC licenses were to be “controlled by Verizon Wireless,”
which planned to integrate Rural Cellular’s networks into
25 Another problem is that it relies on events that occurred after the ZBA decision giving rise to the effective prohibition claim. See ¶ E , supra.
55 Verizon’s existing networks over the 18-month period following
the August 2008 merger. Id. ¶ 75 & n.23, supra. There is no
admissible evidence as to when that integration was completed (if
it even had been at the time of trial) so that, as the Slades
assert, Unicel “is now part of the Verizon Wireless network.”26
N. As just noted, the court of appeals has squarely held
that, in deciding an effective prohibition claim, a court must
“consider whether a significant gap exists within the individual
carrier’s network.” Omnipoint, 586 F.3d at 49 (emphasis added).
Because, based on the admissible evidence of record, Unicel’s
network remains separate from Verizon’s network despite the Rural
Cellular-Verizon merger, the fact that Verizon might happen to
provide coverage in the area of the proposed East Side Drive
facility does not serve to negate Unicel’s demonstrated coverage
gap or its effective prohibition claim. “The fact that some
carrier provides some coverage to some consumers does not in
26 The Slades attempted to elicit evidence to this effect by cross-examining Delaney, but he stated that his knowledge of the merger came from reading about it in a trade publication and that, while he understood “that former Unicel subscribers are now Verizon subscribers,” he did not “know the particulars.” Importantly, he said he did not know whether “former RCC Unicel customers have been converted over to the Verizon Wireless networks.” Again, Maxson’s proffered opinion testimony as to the effect of the merger is not admissible. Hutchins, for his part, testified that, at the time of his trial deposition in November 2011, Verizon and other carriers generally “ha[d]n’t quite decided” how to utilize licenses they acquired by merging with other carriers.
56 itself mean that the town has not effectively prohibited services
to other consumers.” Second Generation Props., L.P. v . Town of
Pelham. 313 F.3d 620, 634 (1st Cir. 2002).
O. Furthermore, as the Slades have repeatedly pointed out,
there is no evidence as to Verizon’s coverage in the vicinity of
the proposed East Side Drive facility o r , for that matter,
anywhere. It follows that, even if Unicel subscribers have in
fact been transferred to the Verizon network post-merger, there
is no reason to conclude that they now have adequate service in
that area.27
P. The Slades argue that this absence of evidence actually
works in their favor, since Unicel bears the burden of
demonstrating a significant gap in coverage in order to prevail
on its effective prohibition claim. But it hardly seems
appropriate to rule that Unicel has failed to carry this burden
based on what amounts to speculation about the effect of the
Rural Cellular-Verizon merger on those carriers’ coverage in the
area--particularly when the existence of a Unicel coverage gap
went uncontested by the Town land use authorities throughout the
proceedings before them and, so far as the court is aware, in
27 To the contrary, Unicel’s continued pursuit of this very litigation strongly suggests that Verizon (which, of course, has controlled Unicel since the merger was consummated in 2008, more than three years before trial) does not have adequate service in that area.
57 this litigation, up until the week before trial when the Slades
raised this issue for the first time. Had they raised this issue
in the ordinary course (for example, by filing an answer--as a
defendant is normally obligated to do but the Slades, as has been
discussed, did not--that denied the plaintiffs’ allegation in
their complaint of “significant gaps in wireless coverage for
both [Unicel] and U.S. Cellular in central and northern Alton”),
then the plaintiffs may well have been prepared to prove the
existence of a Unicel coverage gap notwithstanding the merger.
To accept the Slades’ argument, then, would be to reward them for
sandbagging the plaintiffs on this point.
Q. In any event, the fact remains that the only admissible
evidence of the effect of the merger on the Unicel coverage gap
is that, at the time they sought approval of the merger, Verizon
and Rural Cellular planned to integrate their networks. The
court declines to infer from that fact alone that the integration
had already happened before trial such that the relevant network
for purposes of the “significant gap” analysis is a joint
Verizon-Rural Cellular Network, rather than the Unicel network
that existed at the time the ZBA denied the plaintiffs’
application to build the East Side Drive tower--a network which,
it is undisputed, has significant coverage gaps in that area (as
does the U.S. Cellular network).
58 Alternative solutions
R. “Once a court has found a coverage gap exists, it must
determine whether local authorities have prevented a carrier from
closing that gap so as to amount to an effective prohibition.”
Omnipoint, 586 F.3d at 5 0 .
S. In Omnipoint, the court of appeals surveyed the case
law’s “different articulations” of the test “for the second prong
of effective-prohibition claims,” including its own statement
that the solution rejected by the town amount to the “‘only
feasible plan,’” id. (quoting Town of Amherst v . Omnipoint
Commcn’s Enters., Inc., 173 F.3d 9, 14 (1st Cir. 1999)), and
other courts’ holdings that “the proposed solution [be] the
least-intrusive means,” id. (citing T-Mobile USA, Inc. v . City of
Anacortes, 572 F.3d 987, 995 (9th Cir. 2009) and Nextel W . Corp.
v . Unity Twp., 282 F.3d 257, 266 (3d Cir. 2002)). Observing that
“[i]t is unclear how much these different articulations of the
tests truly differ,” the court went on to explain that “[t]he
underlying question is whether, under the facts of a case, a
zoning decision effectively prohibited providing wireless
service,” disclaiming any “general rule” or single “analytic
approach.” Id. at 50-51 (quotation marks omitted).
T. Omnipoint further teaches that “[w]hether the carrier
proves an effective prohibition has occurred is a factual
59 question for the trial court to resolve. As with most such
questions, the district court may consider a number of facts
relevant to the conclusion . . . . What facts are relevant may
vary with the case.” Id. at 52 (citation omitted). Noting that
“the technical feasibility of the proposed solution or
alternative solutions is important,” the court cautioned that
this factor “is not the only criterion,” and proceeded to list a
number of others: “the overall cost to the carrier, whether the
solution was technically efficient, whether other technically
adequate solutions were in evidence, whether the town could
prefer other solutions on aesthetic grounds, and whether local
authorities were willing to cooperate with carriers.” Id. at 52
(citing Town of Amherst, 173 F.3d at 14-17). “Ultimately the
question is a practical inquiry into feasible, available
alternatives.” Id. at 52-53.
U. Despite the flexibility of this approach, the Omnipoint
court did identify one essential element of an effective
prohibition claim, like the one here, based on the theory that
local authorities have disallowed “the only feasible plan” for
closing a significant coverage gap: “[t]he burden is on the
carrier to prove it investigated thoroughly the possibility of
other viable alternatives before concluding no other feasible
plan was available.” Id. at 52 (quotation marks omitted). The
60 plaintiffs acknowledge that they bear this burden here, but argue
that they have met i t , based on the evidence that they “evaluated
dozens of options before ruling them out” as alternatives to the
proposed East Side Drive site. The Slades dispute the adequacy
of the plaintiffs’ investigation, which was one of the key
factual issues at trial. A preponderance of the evidence
supports the plaintiffs’ position on this issue.
V. For both Unicel and U.S. Cellular, the investigation of
potential antenna locations in Alton began in the four “overlay
districts” where the Town permitted wireless facilities at the
time. See ¶¶ 1 0 , 1 8 , supra. Both determined that none of these
districts was a feasible location to close its significant
coverage gap in Alton (though Unicel did decide to place an
antenna in one of those districts, on the existing Prospect
Mountain tower). See id. Both then began investigating other
potential locations--a challenging task in the mountainous and
heavily forested terrain surrounding Alton Bay. See ¶ 6, supra.
W. Unicel identified ten different properties as potential
sites (some on the eastern side of the bay and some on the
western side of the bay) and made inquiry of their owners. See ¶
1 1 , supra. Of the four owners who expressed interest in
response, only one owned property that Unicel ultimately found to
be feasible. See ¶ 1 2 , supra. U.S. Cellular, for its part,
61 focused its search on Pine Mountain, about one and one half miles
from the bay’s western shoreline, identifying six different
parcels there. See ¶ 1 9 , supra. But the owners of each of those
parcels either rejected or did not respond to U.S. Cellular’s
offers to use part of it as a tower site--and U.S. Cellular
ultimately determined that none of these parcels was a feasible
location anyway. See ¶¶ 19-20, supra.
X. The plaintiffs also investigated the two potential
alternative sites suggested by Hutchins as part of his evaluation
of the plaintiffs’ proposal: Evans Hill and the ABCCC
property.28 In fact, in response to Hutchins’s suggestions,
Unicel and U.S. Cellular both independently evaluated placing a
tower on Evans Hill rather than at the East Side Drive site, and
concluded that doing so would leave significant gaps in coverage
along Routes 1 1 , 2 8 , and 28A. See ¶¶ 3 2 , 4 0 . Even before
Hutchins had mentioned the ABCCC site in his June 2006 addendum,
Unicel had investigated two other nearby properties, but
determined that placing a tower there would have left significant
gaps in coverage. See ¶¶ 13-14, supra. Goulet, whom U.S.
Cellular had retained to find an antenna location in Alton,
28 The plaintiffs also responded to a different outside engineer’s suggestion that they had failed to investigate placing their antennas on existing structures by showing that, even if they placed one on the steeples of each of four different local churches and the Town Hall, coverage gaps would remain--even if a new tower were placed on Evans Hill as well. See ¶ 4 5 , supra.
62 explained that he did not even consider looking at the ABCCC site
during his efforts because its elevation is hundreds of feet
lower than tree-lined ridges between the site and the coverage
gaps on the other side of the bay and, as a result, would not
reach them. See ¶ 1 6 , supra.
Y. Furthermore, as Delaney said he recognized while
carrying out Unicel’s investigation of potential sites for a
wireless tower in Alton, the ABCCC site is infeasible for
another, independent reason--its high visibility. See ¶ 1 4 ,
supra. The site is less than a half a mile uphill from the M t .
Washington Ferry dock, which the chairman of the ZBA himself
described during a hearing on the plaintiffs’ applications as a
spot where “a great number of people come to view this lake and
surrounding mountains.” See ¶ 1 5 , supra. Of course, the ZBA
denied the application for a tower at the East Side Drive site
based on its stated concerns over visual impact of that tower
from the bay (and the East Side Drive site is located several
miles further away from the ferry dock and the bay itself than
the ABCCC site i s ) . See ¶ 5 6 , supra.
Z. As the court of appeals explained in Omnipoint, it has
held that a carrier failed to meet its burden of proving a
thorough investigation of viable alternatives where “the evidence
has essentially been undisputed that the carrier had other
63 alternatives.” 586 F.3d at 5 2 . That would be a wildly inapt
description of the record in this case. So far as the court can
tell, the carriers’ conclusions that various alternatives to the
proposed East Side Drive site were infeasible have never been
seriously challenged, either during the proceedings before the
Town boards, or at trial here. Indeed, Hutchins testified before
the joint session of the ZBA and Planning Board in November 2006
that he had “looked at a number of other possibilities” but that
he and the plaintiffs “were pretty much in agreement that there
isn’t anything that’s jumped out at me that would work as an
alternative site.” See ¶ 4 8 , supra. The Slades did not proffer
any evidence at trial disputing the plaintiffs’ conclusions as to
the infeasibility of a single alternative site (and that includes
even Maxson’s inadmissible opinion testimony).29
AA. Instead, the Slades devoted a substantial portion of
their trial presentation to trying to show that the plaintiffs
could have done more to follow up with the owners of potential
29 The Slades rely on a comment in Hutchins’s June 2006 addendum that, because U.S. Cellular operates its network at a lower frequency (with better propagation) than Unicel, see ¶ 1 , supra, “U.S. Cellular may have more leeway in moving its location, and may have preferred Evans Hill had it been chosen by [Unicel] originally.” This comment is self-evidently speculative. In any event, Goulet later explained--both to the ZBA in response to Hutchins’s addendum, and in his trial testimony--that even a cellular signal from a tower on Evans Hill would not reach significant gaps along Routes 28 and 28A, so it is clear that U.S. Cellular would not have “preferred” putting its antenna there.
64 alternative sites (particularly the sites on the top of Evans
Hill and at the ABCCC, see nn. 4 , 13 and accompanying text,
supra). As just discussed, however, there has never been any
evidence to suggest that either of those sites is a viable
alternative to the East Side Drive location, including Evans Hill
and the ABCCC property (indeed, the evidence is undisputed that
both of those sites are not viable alternatives). This is hardly
a case, then, where the plaintiff’s “own experts acknowledge[]
that its land [is] not the only location where a tower could
provide coverage in the alleged gap,” Second Generation, 313 F.3d
at 635 (upholding finding of no effective prohibition), or
“presented no evidence it investigated alternative solutions
other than conclusory statements,” VoiceStream Minneapolis, Inc.
v . S t . Croix County, 342 F.3d 818, 835-36 (7th Cir. 2003) (same).
BB. The Slades also argue that, even if neither Evans Hill
nor the ABCCC property could itself serve as a viable alternative
to the East Side Drive location, erecting towers at both of those
locations, as well as placing a third antenna on the existing
National Grid tower, could. The plaintiffs’ “fail[ure] to
demonstrate that it made a full effort to evaluate” such a
“multi-facility network,” the Slades argue, dooms the effective
prohibition claim here. The court disagrees.
65 CC. As already noted, the court of appeals has placed the
burden on a carrier who brings an effective prohibition claim
arising out of a single denial to show that the carrier
“investigated thoroughly the possibility of other viable
alternatives,” not all other conceivable alternatives.
Omnipoint, 586 F.3d at 52 (emphasis added). The plaintiffs have
shown by a preponderance of the evidence that a multi-tower
solution incorporating Evans Hill is not viable. While Hutchins
tried to demonstrate in his June 2006 addendum that combining
coverage from an antenna at 95 feet at Evans Hill and 145 feet on
the existing National Grid tower would be an acceptable
alternative, see ¶ 3 9 , supra, he admitted in his testimony at the
September 2006 hearing, that this “really wouldn’t be a practical
solution . . . in theory that might work, but I don’t think that
it would work really well,” see ¶ 4 8 , supra (emphases added). An
alternative that is impractical and “in theory . . . might work,”
especially in the learned estimation of the permitting
authority’s own radiofrequency engineer, is the conceptual
opposite of a “viable alternative.” After all, the effective
prohibition analysis is a “practical inquiry,” not a theoretical
exercise. Omnipoint, 586 F.3d at at 52-53.
DD. Furthermore, Goulet testified at trial that, under the
solution proposed by Hutchins, gaps remain on Route 28 and 28A
66 because Miramatchie Hill--the location of the proposed East Side
Drive tower--blocks the signals coming from the Evans Hill site
to the north and the National Grid site to the south. See
¶ 4 2 , supra. He had told the ZBA as much in response to
Hutchins’s June 2006 addendum. See ¶ 4 0 , supra. Goulet
explained that Hutchins, in arriving at a contrary conclusion in
the addendum (which he later appeared to retract at the September
2006 hearing, in any event), had used less accurate modeling and
too low a threshhold for coverage.30 See ¶ 4 3 , supra. The court
credits this testimony by Goulet at trial, and the testimony by
Hutchins at the September 2006 hearing, and finds that installing
antennas on both a new tower at the Evans Hill location and on
the existing National Grid tower was not a viable alternative, so
the plaintiffs were not required to investigate it during the
application process (particularly when, as just discussed,
Hutchins did and ultimately found it not to be viable). The
Slades have proffered no evidence to the contrary--including any
testimony by Maxson, who did not offer even an improperly
disclosed opinion as to combined coverage from Evans Hill and the
National Grid tower.
30 The court of appeals has held that it is not improper, in evaluating an effective prohibition claim, to accept a provider’s standard of reliable service as a measure of coverage. Omnipoint, 586 F.3d at 4 9 . In any event, Hutchins acknowledged that the standard he had used as the minimum level of coverage in preparing his addendum was “becoming unacceptable” at the time.
67 EE. The court also finds that a solution combining coverage
from two new towers--one at Evans Hill and one at the ABCCC site
--is not a viable alternative either. There is no admissible
evidence to suggest that it would address the significant
coverage gap in the area. Hutchins, who had hinted in his
addendum at another new tower at the ABCCC site as a way to
address the gaps left by moving the tower from East Side Drive to
Evans Hill, did not bother to model that solution, and later told
the boards, of course, that “there isn’t anything that’s jumped
out at me that would work as an alternative site.”31 See ¶ 4 8 ,
supra. It is also significant that, in the report Maxson
prepared for the Town in this litigation, he did not discuss an
alternative solution incorporating the ABCCC site o r , indeed,
anything on the western side of the bay. See ¶ 6 1 , supra. The
court can hardly fault the plaintiffs for “failing to
investigate” a solution that two different experts working for
the Town did not themselves see fit to investigate.32
31 The court acknowledges that, at his trial deposition, Hutchins said (in apparent reference to the ABCCC property), “I know that I could show the viability of a site there.” Hutchins admitted, though, that he was unfamiliar with the topography in that area, so that he would “want to do some modeling” before expressing an opinion as to whether an additional tower at that location would close some of the gaps left by siting the other new tower at Evans Hill rather than East Side Drive. 32 Maxson, of course, did investigate the proposed three- tower solution once the Slades retained him for purposes of this litigation, but his resulting opinion was not properly disclosed
68 FF. Accordingly, the court finds, by a preponderance of the
evidence, that the plaintiffs thoroughly investigated the
possibility of viable alternatives before concluding that no
other feasible plan was available. Omnipoint, 586 F.3d at 5 2 .
Weighing the other facts that bear on the second prong of the
effective prohibition analysis, see ¶ T , supra, the court finds
that the ZBA’s denial of the plaintiffs’ applications to
construct the proposed tower at the East Side Drive location
amounted to an effective prohibition.
GG. First, “the technical feasibility of the proposed
solution or solutions is important,” see Omnipoint, 586 F.3d at
5 2 , and, here, for largely the reasons just discussed at length,
the admissible evidence of record shows that the proposed
solution is the only technically feasible one to close the
identified coverage gaps.
HH. In a properly disclosed opinion, Maxson stated that
“position[ing] three 70-foot poles around the targeted area
[would] achieve substantially the same coverage as the proposed
tower,” but, aside from showing them as points on a map, Maxson
did not identify the location of those poles. See ¶ 6 1 , supra.
and is inadmissible. Even if it could be admitted, the court does not find the opinion reliable, essentially for the reasons stated in the plaintiffs’ objection to Maxson’s trial affidavit and certain other of the Slades’ proffered trial evidence (document n o . 120) and developed further during his cross- examination at trial.
69 It is impossible to tell, then, whether those locations are
suitable or available for siting wireless facilities or the
height of the trees there--which is significant because, as
Hutchins advised the Town in his June 2006 addendum, antennas
need to be placed at least fifteen feet above the treetops, as a
rule. See ¶ 3 3 , supra. Moreover, while Maxson’s report included
a map projecting the coverage from the three poles, it was never
submitted to the court in its original color version, so it is
impossible to tell the extent to which the three-pole solution,
even in Maxson’s opinion, would fill the significant coverage
gaps in the area.33 The court does not find Maxson’s proposed
three-pole solution to be technically feasible. Cf. Omnipoint,
586 F.3d at 44-45 (upholding district court’s rejection of
Maxson’s proposed alternative to carrier’s plan where, among
other things, “he did not investigate whether other sites he
suggested were available or could even support the infrastructure
he was envisioning,” “identified only general locations to build
facilities,” and “performed no testing to show whether these
alternative designs actually would cover the gap”).
33 The map explains that yellow shows areas of “optimal vehicular” coverage, while green shows areas of “outdoor and some vehicular” coverage. It is worth noting that Maxson’s stated signal strength for “outdoor and some vehicular” coverage, -91 dBm, is less than U.S. Cellular’s coverage threshhold of -85 dBm.
70 II. Second, the plaintiffs’ proposed solution is
technically efficient. It is essentially undisputed that a
single 120 foot tower at the Evans Hill location would remedy
both Unicel’s and U.S. Cellular’s coverage gaps in that area; as
Hutchins told the joint session of the ZBA and Planning Board,
“the East Side Drive facility really fills the hole.”34 See
¶ 4 8 , supra. As already discussed, it is also undisputed that
this would not be accomplished by any other single-tower
solution, see ¶ DD, supra, nor by placing antennas on existing
structures, see ¶ 4 5 , supra.
JJ. Third, there are no other technically adequate
solutions in evidence, as also already discussed. To the
contrary, the evidence is that placing one antenna on a new tower
on Evans Hill and another on the existing National Grid tower is
not an adequate solution, but a “theoretical” one, see ¶¶ CC-DD,
supra, while there is simply no admissible proof that this
34 Maxson’s opinion that “[a] facility at the East Side Drive site does not completely address the [plaintiffs’] coverage objectives in Alton,” see ¶ 7 1 , supra, was not timely disclosed and is therefore inadmissible, see ¶ C , supra. While Maxson’s report included a map modeling PCS coverage from the proposed site, that map--like the others included in his report--was prepared in color but submitted in black-and-white and is essentially useless. Regardless, even in Maxson’s improperly disclosed opinion, the only areas left uncovered by the plaintiffs’ proposal would be “sections” of two residential streets (which he shows as almost entirely covered by PCS service on the map submitted with his trial affidavit). See ¶ 7 1 , supra.
71 inadequacy would be cured by adding a third antenna, on another
new tower to be built on the ABCCC site, see ¶¶ E E , supra.
KK. Fourth, even if one of these multi-antenna solutions
were technically feasible, it would impose significant additional
costs on Unicel and U.S. Cellular. The evidence was unchallenged
that each antenna (and related equipment) costs each carrier
approximately $500,000 and that, in addition, each carrier must
pay a separate monthly rental fee for space on each tower. See
¶ 1 7 , supra. Furthermore, each tower costs approximately
$500,000 to build. See id. S o , combining the costs to Unicel
and U.S. Cellular, the total additional expense (exclusive of
rental payments) of putting antennas at Evans Hill and on the
National Grid tower would be about $1 million, while building
another new tower at the ABCCC site and putting antennas there
would add $1.5 million more to the total cost. In other words,
the Evans Hill-National Grid-ABCCC solution would cost $2.5
million more than the East Side Drive solution (and, of course,
there is no evidence that it would work to fill the significant
coverage gaps at issue).
LL. Fifth, even leaving technical feasibility and cost
aside, it seems highly unlikely that the Town of Alton would have
preferred either of the proffered multi-tower solutions on
aesthetic grounds. It is worth re-emphasizing here that Evans
72 Hill is higher in elevation, and only slightly further from the
eastern shore of Alton Bay, than the East Side Drive site, and
that Evans Hill had been designated as a “protected view shed”
when the plaintiffs began looking for tower sites in the Town.
See ¶ 3 1 , supra. So there is no reason to believe, and the
Slades have not pointed to or adduced any evidence to suggest,
that the visual impact of a tower at Evans Hill would be
appreciably less than the visual impact of a tower at East Side
Drive--at least from the bay. See ¶ 5 1 , supra. The claimed
visual impact of the proposed East Side Drive tower from the bay,
of course, was the principal reason the ZBA gave for denying the
plaintiffs’ applications. See ¶ 5 6 , supra.
MM. It is inescapably clear that the visual impact of new
towers at both Evans Hill and the ABCCC site would far exceed the
visual impact of a single new tower at the East Side Drive
location. The ABCCC site is “highly visible” and, as the
chairman of the planning board himself observed, just thousands
of feet from an area where “a great number of people come to view
this lake [and] the surrounding mountains.” See ¶ 1 5 , supra.
Moreover, so far as the court can tell, while Hutchins’s June
2006 addendum alluded to placing a tower “up the hill from the
Bay in the vicinity of [the ABCCC],” that suggestion was never
even mentioned--let alone seriously discussed--at any of the
73 public hearings on the plaintiffs’ applications. There is simply
no basis, then, to conclude that the ZBA would have preferred any
of the proposed multi-tower alternatives on aesthetic grounds.35
NN. Of course, the Slades would prefer the multi-tower
alternatives to having a tower built on the East Side Drive site,
which abuts the rear of their vacation property. While, as a
result of the ruling by the court of appeals in this case, the
Slades are empowered to defend the ZBA’s denial of permission for
a tower on the site even though the Town has abandoned that
defense (again, the Town did not even appear for trial), it does
not follow that the Slades can successfully do so by pointing to
“alternatives” that were never even considered by the ZBA.
Again, these “alternatives” are completely at odds with the
principal reason the ZBA gave for rejecting the single tower
proposed by the plaintiffs, i.e., its visual impact.
OO. It is undisputed that this impact would be greatly
exacerbated by replacing one tower at East Side Drive with two
35 The Slades rely heavily on the fact that, at the November 2006 joint hearing, the planning board approved a motion that “[w]e would like to see a study that would illustrate the effectiveness of a network of telecommunications facilities in accordance with our new zoning ordinance with all possible locations to be considered at the expense of the Town of Alton.” See ¶ 5 4 , supra. Whatever else can be said of this action, it does not support the inference that the ZBA--which is the board that made the decision at issue here--would have preferred a solution with towers at both Evans Hill and the ABCCC site, particularly in light of the evidence to the contrary.
74 towers: one at Evans Hill, less than a mile from East Side Drive
and at a higher elevation, and the second at the ABCCC, more or
less smack dab in the middle of the Town’s main tourist
destination--and, of course, it is nothing more than a matter of
conjecture on the present record that this much costlier solution
(again, it would also include installing third new antenna for
each carrier on the National Grid tower) would even fill the
carriers’ significant coverage gaps in the Town.36 Despite these
circumstances, the Slades invoke the passage from the decision by
the court of appeals in Town of Amherst that TCA preserves local
authority to resolve “trade-offs” between “the opportunity for
the carrier to save costs, pay more to the town, and reduce the
number of towers” and “more costs, more towers, but possibly less
offensive sites and somewhat shorter towers.” 173 F.3d at 1 5 .
Here, the ABCCC site is more offensive than the East Side Drive
site, so that, even if the Evans Hill site is “possibly less
offensive,” substituting it and the ABCCC site (plus additional
antennas on the National Grid Tower) would represent a “trade” in
which the Town would impose greater costs on both itself,
36 It is worth noting that, even in Maxson’s inadmissible opinion, each of the new towers would have to be 90 feet high in order to fill the coverage gaps. The notion that the ZBA would allow a 90-foot tower on a 700-foot hill just thousands of feet from the Mount Washington ferry dock--and another 90-foot tower on a prominent hill overlooking the bay which had itself been designated a “protected view shed”--is highly implausible.
75 aesthetically, and the carriers, financially (and operationally
as well, so far as the admissible evidence shows).
PP. The notion that this is a “feasible alternative,” and
that the plaintiffs should lose their effective prohibition claim
for failing to “investigate” i t , borders on fanciful. The
Slades’ contrary suggestion exposes their defense of this case--a
defense they showed not the slightest interest in conducting
until nearly three years after the litigation had been commenced,
and after it had been settled between the plaintiffs and the
Town--as a troubling manifestation of precisely the “not in my
backyard” mentality that, according to the court of appeals, the
TCA exists in part to overcome. See Omnipoint, 586 F.3d at 51
n.6. There is simply no basis whatsoever to conclude that
placing new 90-foot towers at both Evans Hill and the ABCCC site,
plus new antennas at the National Grid site, would have been
preferable to anybody but the Slades.
QQ. There is evidence that the ZBA would have preferred a
shorter tower at the East Side Drive location than the 120-foot
structure proposed by the plaintiffs. But it is at best unclear
from the record how much lowering the tower would have mitigated
its effect on views, from the bay or otherwise: after observing
the balloon test, the chairman of the planning board reported
that even a 75-foot tower at the East Side Drive site would be
76 “plainly visible from many locations,” and there was testimony at
trial that shortening the tower by 20 feet would have made no
real difference to its visual impact. See ¶ 5 1 , supra.
RR. But a preponderance of the evidence shows that
shortening the tower would have made it infeasible from a
technical standpoint. While Hutchins had originally relied
solely on information as to the “average tree canopy” at the East
Side Drive site to arrive at a minimum antenna height of 75 feet,
as stated in the June 2006 addendum, see ¶ 3 4 , supra, he later
testified at the hearing that, based on information he had since
received as to a number of tall trees at the site that could
serve to interfere with signals from the antennas, the minimum
antenna height “probably needs to be somewhere in the 90-95-foot
range,” see ¶ 4 7 , supra. This was consistent with what both
Goulet and Kozyra told the ZBA, i.e., that the lowest workable
antenna height at the East Side Drive location was between 90 and
100 feet. See ¶¶ 4 0 , 5 5 , supra.
SS. It follows from this conclusion, as Hutchins further
explained at the hearing, that the tower would have to be
approximately 120 feet tall--as the plaintiffs had proposed--in
order to accommodate (1) the microwave dish linking the tower to
others nearby to allow the network to function, (2) an antenna
for each of Unicel and U.S. Cellular, (3) the required 10 feet of
77 spacing between each of these devices, and (4) an additional five
feet at the top of the tower to prevent an unsightly protrusion
of the upper antenna. See ¶ 4 7 , supra.
TT. The Slades have not come forward with any admissible
evidence to contradict Hutchins’s opinion as to the necessity for
a 120-foot tower,37 nor any reasoned argument as to why the court
should instead credit his earlier statement, in the June 2006
addendum, that a minimum acceptable antenna height at the East
Side Drive site was 75 feet. Rather, the Slades argue that a
shorter tower was feasible on the theory that the plaintiffs
could simply cut the portions of the tall trees at the site that
would interfere with signals from the tower.
UU. As an initial matter, there is no admissible evidence
that a tower of any less than 100 feet would be feasible, even if
the plaintiffs were to remove the offending trees. As Hutchins
37 In his report on behalf of the Town, Maxson stated that his “analysis of the 71-foot height and the 120-foot height at the site reveal [sic] little difference in local coverage.” Again, though, this conclusion is based on coverage maps that were prepared in color but submitted only in black-and-white. Furthermore, this court finds Hutchins’s opinion more credible, based on (a) his superior training and experience, (b) the fact that he rendered it while working as an independent engineer for the ZBA in analyzing the applications, rather than solely in the context of litigation, and (c) its consistency with the opinions that both Goulet and Kozyra gave to the ZBA. Insofar as Hutchins retreated from his conclusion in his trial deposition--which is difficult to tell in light of the non-responsive and meandering nature of his answers to many of the questions--the court nevertheless credits his testimony at the ZBA hearing.
78 recognized in the June 2006 addendum, the antennas would still
need to clear the rest of the surrounding canopy by at least 15
feet, resulting in a minimum antenna height of 75 feet.38
See ¶ 3 4 , supra. This, in turn, would have resulted in a tower
of 100 feet: the microwave dish antenna would have been placed
at the minimum height and each of the two carriers’ antennas
would have been placed above it at ten foot intervals (and five
feet would have been added to the top, as is customary for
aesthetic reasons). See ¶ 4 7 , supra.
VV. In response, the Slades argue that, because the
plaintiffs have no “right” under the TCA to install the microwave
dish, it should be disregarded in figuring the minimum feasible
height of the tower. Hutchins, however, did not think s o . As he
recognized in his June 2006 addendum, different towers in the
same network have to link to each other, and, to accomplish this,
microwave “dish-type antennas are typically utilized” as opposed
to “difficult and expensive” land-line connections, see ¶ 3 7 ,
supra, which, as he elaborated at his trial deposition, are also
susceptible to failure in storms. The Slades have adduced no
admissible evidence to call this analysis into serious
38 This assumes, of course, that the forester’s calculation of the average tree canopy height at the site as 61 feet was correct. But see nn. 7-8 and accompanying text, supra. Unicel’s engineer had calculated the average tree canopy height at the site as 84 feet, see ¶ 3 4 , supra, which would make the minimum antenna height nearly 100 feet.
79 question.39 Like Hutchins, then, the court will not disregard
the microwave dish antenna in determining the minimum feasible
height of the tower.
WW. In any event, the record suggests that cutting the tall
trees near the tower that would have interfered with its signals
was not a feasible option, because the Town’s wireless facilities
ordinance expressly prohibits the removal or “topping” of trees
within a 150-foot radius of such a facility. See ¶ 2 9 , supra.
It is true, as the Slades point out, that the plaintiffs could
have attempted to get a variance from this requirement (in
addition to the variance from the height limitation they needed
for a tower exceeding 81 feet), and the fact that town by-laws
“require[] prior permission case by case” to construct a wireless
facility does not itself equal an effective prohibition. Town of
Amherst, 173 F.3d at 1 4 . To prevent the trees at the site from
interfering with the signal from a lower antenna, however, the
plaintiffs would have to chop down every tree within 150 feet
(and, in some cases, as much as 600 feet) of the tower, see ¶ 4 4 ,
supra, and it is reasonable to conclude that a ZBA preoccupied
39 The Slades also point out that U.S. Cellular did not plan to install a microwave dish on tower--but, of course, Unicel did. While the 100-foot tower proposed by the plaintiffs as part of the settlement of their claims against the Town would not have included a microwave dish, that evidence is not admissible as to the merits of the effective prohibition claim, as already noted. See n.19, supra.
80 with the visual impact of the tower would not agree to such
measures--particularly when the ordinance also requires that the
“facility’s effect has been minimized on the viewshed containing
the facility.” Indeed, while cutting the trees that would
interfere with signals from the tower seems like an obvious
solution (as one member of the public who spoke at one of the
hearings pointed out, “there’s a thing called a chainsaw”), there
is no evidence that anyone from either the ZBA or the planning
board embraced i t .
XX. The Slades’ response, predictably, is to fault the
plaintiffs for not proposing such a solution--and the shorter
tower that it would facilitate--in order to accommodate the
board’s stated concern over the visual impact of the 120-foot
height. Leaving aside the fact that, as just discussed, clear-
cutting the area around the tower would have increased its visual
impact (at least from areas closer to i t ) , the effective
prohibition standard envisions the permitting process as a two-
way street, and accounts for “whether local authorities were
willing to cooperate with carriers” as well as the level of the
carriers’ cooperation with the Town. Omnipoint, 586 F.3d at 5 2 .
YY. Here, contrary to the Slades’ suggestion, the
plaintiffs stated at the October 2006 hearing that they were
“willing to work with” the boards to make the tower “at least as
81 intrusive as we can . . . as long as it makes some economic sense
and operational sense.” See ¶ 5 2 , supra. Indeed, the chairman
of the planning board observed--at the hearing just before that
board made its unanimous findings adverse to the plaintiffs’
applications--that, at that point, “the applicant hasn’t refused
to do anything . . . They haven’t said, n o , we’re not going to
do 95 feet or whatever the height may be.” See ¶ 4 9 , supra.
Nevertheless, aside from a last-minute inquiry from one member of
the ZBA about lowering the tower to 90 feet (i.e., just 6 feet
above what U.S. Cellular calculated as the average tree canopy
height), see ¶ 5 5 , supra, neither of the boards expressed any
willingness to consider a tower exceeding the “average tree
canopy” by more than 20 feet. At that height, it is undisputed,
at least one of the antennas would not have adequately cleared
the trees (not even accounting for the microwave dish).
ZZ. Furthermore, as Hutchins explained, the provision of
the ordinance limiting the height of a wireless tower to 10 feet
above the average tree canopy is an arbitrary standard, see ¶ 3 5 ,
supra, and, indeed, violates the “rule of thumb” that an antenna
should be at least 15 feet above clutter, see ¶ 3 3 , supra. The
Town adopted this standard in its revised ordinance, moreover,
without meaningfully engaging Unicel, even though its original
application for the East Side Drive tower had been pending for
82 more than six months at the time of the first public hearing on
the revision. See ¶ 2 7 , supra. As a result of this change to
the rules in the middle of the game, of course, action on
Unicel’s application was delayed a s , among other things, Hutchins
had to amend his report to reflect the change.
AAA. These circumstances (as well as several other largely
unexplained delays in action on the plaintiffs’ application)
reflect, on the whole, the boards’ lack of cooperation with the
plaintiffs. In light of their thorough investigation of
alternative sites, and their acknowledged willingness to mitigate
the visual impact of the tower, the fact that the plaintiffs did
not engage in the sort of unilateral negotiation envisioned by
the Slades--proposing a series of lower and lower heights until
the boards finally agreed to one--is not fatal to their effective
prohibition claim.
BBB. Again, where the court of appeals has rejected
effective prohibition claims, “the evidence has been essentially
undisputed that the carrier had other alternatives,” Omnipoint,
586 F.3d at 5 2 , and that is simply not the case here. To the
contrary, there is no evidence of a feasible alternative
location, or even a series of locations, and the evidence of a
feasible alternative height piles contingency upon contingency:
if the average tree canopy height at the East Side Drive site is
83 61 feet rather than 84 feet, and if the ZBA were to grant the
plaintiffs a variance to cut the tall trees at the site that
would interfere with the signal rather than enforcing the
wireless ordinance as written, and if the tower can reasonably be
linked to others in the network using a land line rather than a
microwave dish, then a tower of less than 120 feet would be a
feasible alternative. The exceedingly slim possibility that all
of these conditions are true does not prevent the plaintiffs from
proving their effective prohibition claim by a preponderance of
the evidence. This conclusion is particularly apt where, again,
the tower would have remained “plainly visible from many
locations” even had it been lowered all the way to 75 feet--so
that there would be little to gain aesthetically by imposing the
operational costs of a shorter tower.
CCC. For the foregoing reasons, the court finds, by a
preponderance of the evidence, that the ZBA’s decision to deny
the plaintiffs the variance necessary to build the proposed 120-
foot wireless tower at the East Side Drive site had the effect of
prohibiting the provision of wireless services in violation of
the TCA. See 47 U.S.C. § 332(c)(7)(B)(i)(II).
84 Remedy
DDD. A finding that a local permitting authority has
rejected a wireless facility in violation of the TCA’s effective
prohibition provision justifies the issuance of an injunction
ordering the authority to grant the zoning relief necessary to
construct the facility. Nat’l Tower, LLC v . Plainville Zoning
Bd. of Appeals, 297 F.3d 1 4 , 25 (1st Cir. 2002). In the joint
motion for an expedited hearing on the plaintiffs’ summary
judgment motion, the plaintiffs and the Town agreed that an
appropriate remedy would be an order directing the Town to
“permit construction of a 100-foot telecommunications tower” (the
height they agreed t o , of course, in their settlement of this
action) and the Slades agreed at the subsequent telephonic
hearing on that motion that “should [the plaintiffs] prevail on
[their] effective prohibition claim . . . this court would have
the discretion to find that a 100-foot tower is an appropriate
remedy.” Indus. Commc’ns, 2011 WL 2938368, at * 2 .
EEE. Exercising that acknowledged discretion, the court will
issue a permanent injunction (to be entered as a separate order)
requiring the Town to issue all variances, permits, and other
approvals necessary to construct the proposed 100-foot wireless
tower at 486 East Side Drive, Alton, New Hampshire, as set forth
85 in the plans referenced in paragraph 14(b) of the joint motion
for expedited hearing (document n o . 90). 4 0
ORDER FOR JUDGMENT
In accordance with the foregoing findings of fact and
rulings of law, the court enters judgment for the plaintiffs on
their effective prohibition claim (count 2 of their complaint).
The plaintiffs’ substantial evidence claim (count 1 of their
complaint) is dismissed as moot. The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
Joseph N. Laplante T /nited States District Judge
Dated: September 2 1 , 2012
cc: Steven E . Grill, Esq. Katherine Blackall Miller, Esq. Robert D. Ciancella, Esq. Robert M. Derosier, Esq. Christopher Cole, Esq.
40 The plaintiffs also request that the court enjoin the Slades from “taking any action, including without limitation any further legal challenges in this court or in any other forum, which would hinder, delay, or interfere with the ability of [the plaintiffs] to proceed with the construction of the proposed facilities.” The court declines to pre-emptively issue such an order, which could potentially run afoul of the Anti-Injunction Act. See Indus. Tower & Wireless, Inc. v . Burley, 2010 DNH 180, 6-9. This request is therefore denied without prejudice to reinstatement by the plaintiffs as a motion to enforce the injunction, if necessary.
86 Karyl Roberts Martin, Esq.
Related
Cite This Page — Counsel Stack
2012 DNH 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-commcns-v-town-of-alton-et-al-nhd-2012.