New Cingular v. Manchester, et al. 11-CV-334-SM 2/28/14 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
New Cingular Wireless PCS, LLC, Plaintiff
v. Case No. ll-cv-334-SM Opinion No. 2014 DNH 044 City of Manchester, NH; and Zoning Board of Adjustment of the City of Manchester, NH, Defendants
O R D E R
Plaintiff, New Cingular Wireless PCS, LLC ("AT&T"), proposes
to construct a cell tower in Manchester, New Hampshire, to fill a
gap in cellular telephone coverage. The Zoning Board of
Adjustment of the City of Manchester ("Board") denied an area
variance twice - once prior to the filing of this suit, and once
on remand by consent of the parties. AT&T sues the City of
Manchester ("City") and the Board under the Telecommunications
Act of 1996, 47 U.S.C. § 151 et. seg. ("TCA") and section 677:4
of the New Hampshire Revised Statutes Annotated.
AT&T argues that the Board' s decisions to deny the variance
are not supported by substantial evidence (Count I ) , result in an
effective prohibition on the extension of personal wireless
services in an identified coverage gap (Count II), and violate
state law (Count V ) . Before the court are the parties' cross-
motions for summary judgment on Count II (document nos. 28 and
31). After the motions were filed, the parties stipulated to all material facts and submitted all counts for trial by the court as
a case stated. The court held a hearing on February 20, 2014.
Having heard the parties' arguments and having carefully
reviewed and considered the evidence presented, the court makes
the following findings of fact and conclusions of law, as
required by Rule 52 of the Federal Rules of Civil Procedure.
Fed. R. Civ. P. 52(a). The court notes that AT&T submitted a
very detailed and extensive set of proposed findings and
conclusions. It is well settled, however, that the court "does
not have to make findings on every proposition put to it by the
parties." Applewood Landscape & Nursery Co. v. Hollingsworth,
884 F.2d 1502, 1503 (1st Cir. 1989) (quoting Morgan v. Kerrigan,
509 F.2d 580, 588 n.14 (1st Cir. 1974)). Rather, the findings
simply need be "sufficient to indicate the factual basis for the
ultimate conclusion." Kelley v. Everglades Drainage District,
319 U.S. 415, 422 (1943) (per curiam). If either party believes
that additional findings of fact and conclusions of law, beyond
those made below, are necessary to support the court's ruling or
clarify the status of a claim or defense, it should submit a
written request for (a limited number of) additional findings and
conclusions within fifteen days of the date of this Order.
Background
1. The City of Manchester's zoning ordinance prohibits the
siting of wireless communication facilities in 80-85% of the
2 City, including all residential zoning districts, except
that variances may be allowed.
On December 21, 2010, AT&T applied for variances from
certain sections of the ordinance to construct a 100' tower
facility at 235 South Mammoth Road in Manchester, which is
located in an R-1B Residential District. AT&T sought to
address coverage problems in and around the R-1A and R-1B
Residential Districts in south central Manchester, where
telecommunications towers and antennas are not permitted.
After public hearings in January and February of 2011,
the Board voted 3-2 to approve AT&T's application, subject
to two conditions.
At the request of individuals opposed to construction
of the tower, however, the Board held a rehearing on April
14, 2011, and reversed itself, voting 4-1 to deny the
variances. AT&T's own subsequent request for a rehearing
was denied in June of 2011 and AT&T appealed.
At the parties' request, the court, by order dated July
25, 2013 (document no. 58), remanded this matter to the
Board "for the limited purpose of allowing the Board to
consider AT&T's additional information."
3 On September 25, 2013, the Board held a public hearing
to consider AT&T's additional information. The Board voted
3-1 to affirm its denial of AT&T's variance application. It
denied AT&T's subsequent request for rehearing.
AT&T's second amended complaint includes an appeal and
challenge to both the Board's original denial of AT&T's
application in April of 2011, and its denial after remand in
September of 2013.
Count I Effective Prohibition Under 47 U.S.C. § 332(c)(7)(B)(i)(II)
The TCA provides, in part, that "[t]he regulation of
the placement, construction, and modification of personal
wireless service facilities by any State or local government
or instrumentality . . . 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) .
The court reviews AT&T's effective prohibition claim de
novo. National Tower, LLC v. Plainville Zoning Bd. of
Appeals, 297 F.3d 14, 22 (1st Cir. 2002).
When a carrier claims an individual denial [of a
permit] is an effective prohibition, virtually all circuits
require courts to (1) find a ''significant gap' in coverage
4 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." Green Mountain Realty Corp. v.
Leonard, 688 F.3d 40, 57 (1st Cir. 2012) (quoting Omnipoint
Holdings, Inc. v. City of Cranston, 586 F.3d 38, 48 (1st
Cir. 2009) ) .
11. The City's denials of AT&T's site-specific application
in 2011 and 2013, individually and in combination with the
City's failure to lease AT&T a suitable nearby city-owned
alternative property because of neighborhood opposition,
effectively prohibit AT&T from providing competitive and
reliable personal wireless services in the residentially-
zoned area.
Significant Coverage Gap 12. AT&T has a significant gap in coverage in Manchester
within the meaning of the TCA and AT&T's proposed facility
will address that coverage gap.
13. In finding that a significant coverage gap exists, the
court has considered factors such as the physical size of
the gap, the number of users the gap affects, percentages of
unsuccessful calls or inadequate service during calls in the
gap area, the need for coverage around a heavily traveled
and important route, and the carrier's "standard for
5 reliable service . . . to satisfy customers" based on
"signal levels." Omnipoint, 586 F.3d at 48.
Lack of reliable in-building coverage is also a
relevant consideration. See U.S.C.O.C of NH v. Town of
Dunbarton, 2005 WL 906354, at *5 (D.N.H. April 20, 2005)
(DiClerico, J.). Reliable in-building coverage is essential
to consumers and carriers. T-Mobile v. City of Huntington
Beach, 2012 WL 4867775, at *4-5 (CD. Cal. 2012) . AT&T has
proven the lack of reliable in-building coverage in the
relevant target area.
The evidence establishes that AT&T has a significant
gap in coverage within the meaning of the TCA. The coverage
problems extend nearly three square miles along and
surrounding South Mammoth Road in Manchester (the "target
area"). AT&T's coverage problems in Manchester affect an
area large in size and highly populated, and affect highly
traveled roads and numerous homes.
Expert testimony, AT&T network performance data, and
drive tests all demonstrate that AT&T is unable to provide
competitive, reliable in-building wireless service to
numerous businesses and residences in the target area.
Specifically, within a densely populated, residentially
zoned area measuring about 1.6 miles (north to south) by 1.8
6 miles (east to west) , AT&T has in-building coverage gaps of
marginal or no service affecting some 2600 residents who
live in the area.
In addition, residents in the target area and tens of
thousands of drivers daily along South Mammoth Road and
connector streets experience "pilot pollution" interference
problems.
Moreover, the significant daily traffic volume on South
Mammoth Road and its connector streets, and on 1-93, 1-293,
and NH Route 101 (daily traffic volumes of 47,000 to
102,000) lead to capacity problems in and around the target
area.
In the absence of the proposed facility, consumers in
the target area have experienced and will experience, as a
result of pilot pollution and capacity problems, increased
interference, repeated and ineffective handovers, dropped
calls, network congestion, an increase in the noise floor of
the system, and the forced hand-down of users from high
speed 3G to slower 2G service.
AT&T's coverage problems in the target area are a
reflection of the exponential growth in the use of wireless
technology for voice, text and data applications, social
7 media and internet access, emergency communications, and
other uses.
21. AT&T's proposal advances the TCA's important national
goals of "creating a seamless national wireless
communication system" and of "encouraging competition" among
carriers to provide consumers with "higher-quality wireless
technology."
No Feasible Alternatives 22. There are no feasible alternatives to AT&T's proposed
solution. AT&T's proposal is the only feasible plan to
address its coverage problems in Manchester.
23. Ironically, the City has itself twice refused, because
of neighborhood pressure, to lease the nearby and perfectly
acceptable Manchester Water Works property to AT&T as an
alternative site for the proposed facility, thereby forcing
the location into a less amenable neighborhood and foregoing
an income stream.
24. AT&T has shown that other potential sites are not
feasible for coverage reasons, the unwillingness of property
owners to rent, or both.
8 Moreover, AT&T "investigated thoroughly the possibility
of other viable alternatives" before concluding that no
other feasible plan exists, Omnipoint, 586 F.3d at 50. The
City's suggested alternatives are not feasible.
For example, the Engine 8 site is not a feasible
alternative. The tower at that site would need to be taller
than 200 feet to provide the necessary coverage. But the
Federal Aviation Administration cannot approve a tower of
that height at the Engine 8 property because of its close
proximity to the Manchester Airport. The Engine 8 site is
also too small, given its configuration, to accommodate
AT&T's equipment.
The Church of God and Green Acres/McLaughlin school
locations are not feasible alternative sites. A tower at
each of those sites would, necessarily, have to be at least
146-159 feet tall. Moreover, the sites are located in the
same residential neighborhood where residents have opposed
both the proposed facility and the alternative Water Works
site. A tower at either location would be even more visible
because the sites have substantially less tree cover than
AT&T's proposed site; and one site is near a school whose
principal objects to a tower.
9 To the extent the City "could prefer other solutions on
aesthetic grounds," Second Generation Properties v. Town of
Pelham, 313 F.3d 620, 631 (1st Cir. 2002), it has failed to
specifically identify any such feasible alternative solution
(and, as noted, will not lease its own Water Works site -
surely an aesthetically more pleasing option). There is no
evidence that such a feasible alternative exists.
Substantial Evidence Claim 47 U.S.C. Sec. 332(c)(7)(B)(iii)
The TCA provides that "[a]ny decision by a State or
local government or instrumentality thereof to deny a
request to place, construct, or modify personal wireless
service facilities shall be in writing and supported by
substantial evidence contained in a written record."
47 U.S.C § 332(c)(7)(B)(iii).
"Substantial evidence does not mean a large or
considerable amount of evidence, but rather such evidence as
a reasonable mind might accept as adequate to support a
conclusion." ATC Realty v. Town of Kingston, 303 F.3d 91,
94 (1st Cir. 2002) .
Nevertheless, judicial review for substantial evidence
is not a "rubber stamp." A town board "is not free to
prescribe what inferences from the evidence it will accept
10 and reject, but must draw all those inferences that the
evidence fairly demands." Southwestern Bell Mobile Sys. v.
Todd, 244 F.3d 51, 59 (1st Cir. 2001).
In New Hampshire, "[t]o obtain a variance, a landowner
bears the burden of showing that (1) the variance will not
be contrary to the public interest; (2) special conditions
exist such that literal enforcement of the ordinance results
in unnecessary hardship; (3) the variance is consistent with
the spirit of the ordinance; (4) substantial justice is
done; and (5) granting the variance will not diminish the
value of surrounding properties." Farrar v. City of Keene,
158 N.H. 684, 688 (2009). See also N.H. Rev. Stat. Ann. §
674:33, I (b) .
In February of 2011 the Board found that AT&T had
satisfied all statutory criteria for the requested
variances. Two months later, on April 14, 2011, the Board
reached the direct opposite conclusion, and denied the
variances.
The Board gave the following reasons for its denial:
(i) the facility was not in the public interest; (ii)
because wireless communications facilities are permitted as
of right in other districts, the facility was not in the
"spirit" of the zoning ordinance; (iii) substantial justice
11 would not be done to the neighborhood due to construction at
the site, ongoing noise from the generator and routine
maintenance; (iv) expert testimony submitted by the abutters
indicated that property values would be diminished; and (v)
no hardship existed because research had not been done with
regard to finding multiple structures, higher structures, or
antennas "hidden" in existing structures, and the facility
could not be considered a reasonable use in the single-
family neighborhood.
The Board's April 2011 denial of AT&T's application,
and the reasons it offered in support, are not supported by
substantial evidence.
irit of the Zoning Ordinance
Substantial evidence does not support the Board's
finding that the requested variances would be contrary to
the spirit of the zoning ordinance. The only reason the
Board gave for that finding is that "[t]elecommunications
towers are permitted in the B-2, IND and RDV zones." But
that is classic circular reasoning. Essentially, the Board
"determined that the variance would violate the spirit of
the ordinance because it violated the ordinance." New
Cingular Wirless v. Town of Greenfield, 2010 WL 3528830, at
*5 (D.N.H. 2010). Accordingly, the Board failed to give "a
12 sufficient explanation" for its finding. Id. The point of
a variance is to permit an otherwise impermissible use.
Public Interest 37. The Board's conclusion that the requested variances
would not be in the public interest is likewise not
supported by substantial evidence.
38. The Board found that "[t]he proposed telecommunications
tower at this location would not be in the public interest
given the number of residents in opposition at the hearing"
and the purported fact that these residents were not given
enough information and were not allowed "reasonable access
to the submitted report prior to the meeting."
39. The simple fact, cited by the Board here, that many
neighbors opposed the tower, is not substantial evidence
supporting the Board's denial. Cf. Sprint Spectrum, L.P. v.
Cty. of St. Charles, 2005 WL 1661496, at *6 (E.D. Mo. July
6, 2005) (finding that "[a] ,not in my backyard' generalized
objection does not constitute substantial evidence to
support the denial of a tower permit.").
40. The Board's additional finding that neighbors were not
allowed "reasonable access to the submitted report prior to
the meeting," likewise, is not substantial evidence
13 supporting the Board's public interest rationale. The Board
continued the hearing on AT&T's application, allowing
interested persons more than sufficient time to review the
application.
A variance is contrary to the public interest if it
"unduly, and in a marked degree conflicts with the ordinance
such that it violates the ordinance's basic zoning
objectives." Greenfield, 2010 WL 3528830, at *5 (quoting
Farrar, 158 N.H. at 688).
AT&T's proposal does not unduly and in a marked degree
conflict with the ordinance's basic purposes, and in fact,
promotes them in substantial part. The provision of
wireless communication coverage directly advances the
ordinance's stated purposes of protecting and promoting
public safety, and enhancing convenience, comfort,
prosperity, and general welfare of Manchester's residents.
The evidence demonstrates that the proposed site would
further economic development and public safety.
The proposed facility would not undermine the
ordinance's stated purposes of "conserving property values
by preventing harmful encroachment of incompatible uses" and
"encouraging the most appropriate use of land." The tower
will be located in the middle of a 4.5 acre parcel; buffered
14 by substantial setbacks; disguised, at least somewhat, as a
faux tree; and screened by tall existing trees.
44. Although the top of the tower will be seen from several
vantage points, "in nearly every documented instance, all
that would be visible is a small portion of the top of the
tower extending above the treetops." Greenfield, 2010 WL
3528830, at *7.
Substantial Justice 45. The Board concluded that "[s]ubstantial justice would
not be done to the neighborhood as there will be
construction at the site, on-going noise from the generator
and routine maintenance." That rationale is not supported
by substantial evidence.
46. The Board's determination fails to account for the fact
that the construction noise will be temporary; that the
generator, except in emergencies, will run only briefly
during weekly testing (lasting 30 minutes); and that the
unmanned facility will be visited by a technician on an
infrequent basis for routine maintenance.
47. The Board's determination also "fails to account for
substantial benefits the public will obtain if the tower is
built as proposed." Id.
15 48. The benefits ignored by the Board include: advancing
the significant public purposes of the TCA; improving
advanced, seamless, competitive, state-of-the-art wireless
communication coverage in the target area in Manchester,
which, among other things will enhance public safety and
economic development; and providing opportunities for
collocation, which would diminish the need for other
carriers to build their own towers in the vicinity.
49. In the end, the Board impermissibly failed to weigh
predictable localized concerns against those "gain[s] to the
general public." Id.
Property Values 50. The fourth reason the Board gave for denying AT&T's
request was that the proposed facility would diminish
property values. That determination is not supported by
51. The sole expert report upon which the Board relied is
not site-specific, is factually inaccurate, and relies upon
a flawed methodology.
52. The Board ignored the reports of AT&T's experts -
reports that showed that property values would not be
diminished. The reports included a site-specific Market
16 Study; a study of telecommunications towers in Manchester;
and studies of the effect of telecommunications towers
located in several communities near Manchester. See
generally Southwestern Bell, 244 F.3d at 59 (a board "'is
not free to prescribe what inferences from the evidence it
will accept and reject, but must draw all those inferences
that the evidence fairly demands.'") (quoting Allentown Mack
Sales & Serv. v. NLRB, 522 U.S. 359, 378 (1998)).
Unnecessary Hardship
53. The Board also determined that AT&T had not met its
burden of showing that a denial of its request would be an
"unnecessary hardship" because "[r]esearch had not been done
at other locations with regards to finding multiple
structures, higher structures or antennas hidden in existing
structures." The Board also found that "[t]he
telecommunication tower could not be considered a reasonable
use in this single-family neighborhood." The Board's
finding regarding hardship is not supported by substantial
evidence.
54. The Board's rationale is factually flawed. As the
court has already found, AT&T has, in fact, conducted
research at other locations, and has demonstrated that there
are no feasible alternatives to address the coverage and
17 capacity needs (except, of course, the City's own Water
Works site).
In addition, as already found, AT&T has demonstrated
that it has an immediate and compelling need to locate a
tower in the target area of Manchester to address
significant coverage issues.
"When an application to build a wireless
telecommunications tower is designed to fill a significant
gap in coverage, the suitability of a specific parcel of
land for that purpose should be considered for purposes of
determining hardship. The fact that a proposed location is
centrally located within the gap, has the correct
topography, or is of an adequate size to effectively
eliminate the gap in coverage, are factors that may make it
unique under the umbrella of the TCA." Daniels v. Town of
Londonderry, 157 N.H. 519, 527 (2008) .
The proposed site, here, is "unique under the umbrella
of the TCA" because of its large size, favorable topography,
proximate location to the area requiring service,
significant setbacks, extensive masking tree coverage and
vegetation, and its proximity to several heavily traveled
state and interstate highways.
18 58. The Board's additional finding that a tower would not
be a "reasonable use" within the single-family neighborhood
skirts the hardship question, since the hardship standard
applies to "both the use and area variances." Id.
59. On September 25, 2013, after remand, the Board again
denied AT&T's variance application. The Board stated that
AT&T "failed to show that they did their due diligence in
acquiring an alternative location" and "failed to prove that
alternative sites were unacceptable."
60. The Board's findings are not supported by substantial
evidence. As already noted, AT&T diligently evaluated and
ruled out numerous alternatives, and the feasible
alternative of the Water Works site was made unavailable by
the City itself.
State Law Claim
Because the City's decision violates the TCA, it is
unenforceable. It is unnecessary (even if appropriate - which
may be doubtful) therefore, to resolve AT&T's state law claim,
which is deemed moot. See Nextel v. Town of Wayland, 231 F.
Supp. 2d 396, 410 (D. Mass. 2002).
19 Conclusion
The Board's 2011 and 2013 denials of AT&T's variance
applications, violated the TCA's effective prohibition ban. In
addition, the Board's decisions are not supported by substantial
evidence. Accordingly, those decisions are reversed.
In this case, "like in the majority of cases, the proper
remedy for a zoning board decision that violates the" TCA is an
order "instructing the board to authorize construction." National
Tower, 297 F.3d at 21-22. An injunction is warranted here in
order to avoid "multiple rounds of decisions and litigation" and
because a second remand to the Board would "serve no useful
purpose." Id; Brehmer v. Planning Board, 238 F.3d 117, 120 (1st
Cir. 2001). Accordingly, the Board shall promptly authorize
construction of the tower as proposed and subject to the
conditions imposed by the Board in its February 10, 2011, initial
approval of AT&T's application.
Plaintiff's motion for partial summary judgment (document
no. 2_8) is granted. Defendants' cross-motion for partial summary
judgment (document no. 3JJ is denied.
Plaintiff s "Assented to Motion to Amend Complaint"
(document no. 6_6) is granted. Defendants' "Motion to Strike the
Supplemental Affidavit of Daniel L. Goulet" (document no. 3_7) is
denied. Plaintiff's "Motion in Limine to Preclude Defendants
20 from Relying on Inadmissible and Irrelevant Information in the
Board Record" (document no. 4_6) is denied. Plaintiff's
"Supplemental Motion in Limine to Preclude Defendants from
Relying on Inadmissible and Irrelevant Information in the Board
Record" (document no. 7_0) is denied.
The clerk of the court shall enter judgment in accordance
with this order and close the case.
SO ORDERED.
February 28, 2014
cc: Stephen D. Anderson, Esq. Peter R. Chiesa, Esq. Adam T. Kurth, Esq. Anne Robbins, Esq.