Omnipoint v. Amherst

• Court: Court of Appeals for the First Circuit
• Decided: April 2, 1999
• Docket: 98-2061
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-2061



                 TOWN OF AMHERST, NEW HAMPSHIRE,



                      Defendant, Appellant,



                                v.



           OMNIPOINT COMMUNICATIONS ENTERPRISES, INC.,



                       Plaintiff, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF NEW HAMPSHIRE



       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


Before



                     Boudin, Circuit Judge,

                                

                 Bownes, Senior Circuit Judge,

                                

                   and Lynch, Circuit Judge.


Robert D. Ciandella with whom Philip L. Pettis and Donahue,

Tucker & Ciandella were on brief for appellant.

     Steven E. Grill with whom Daniel E. Will and Devine, Millimet

& Branch, P.C. were on brief for appellee.


March 30, 1999


BOUDIN, Circuit Judge.  This is an appeal by the Town of

Amherst, New Hampshire, from an injunction granted by the district

court.  The injunction, granted on cross-motions for summary

judgment, directed the town to grant permits to Omnipoint

Communications Enterprises, Inc. ("Omnipoint"), to build facilities

to provide wireless telephone services.  The case presents

difficult issues under the Telecommuncations Act of 1996, 47 U.S.C.

 151 et seq.  The background events are generally undisputed.  

  Omnipoint is a major provider of wireless telephone

service to the public.  In March 1997 or thereabouts, Omnipoint

began designing a wireless digital system for southern New

Hampshire.  In that same month, the Town of Amherst adopted at the

town meeting an ordinance governing the placement of wireless

communications facilities in the town.  See Amherst, N.H.,

Ordinance (Mar. 11, 1997) ("the March 1997 ordinance").  The town

meeting also authorized the town Board of Selectmen ("the

Selectmen") to make agreements with carriers to site towers on town

properties.  Under New Hampshire law, the town meeting legislates

for the town and the Selectmen are the principal executive body. 

See N.H. Rev. Stat. Ann.  672 et seq.

     For zoning purposes, Amherst is divided into 13

districts.  The March 1997 ordinance prohibits siting of the towers

in four of the districts, although those prohibitions may be

overcome if a variance is obtained.  In four other districts,

towers are allowed only through the grant of a "special exception";

the conditions for such a special exception are set out in the

ordinance.  The ordinance also imposes setback requirements for

towers in the "allowed" districts, requiring towers to be set back

at least 500 feet from Route 101, set back twice the tower height

from residential property lines, and set back a distance equivalent

to the tower height from all other roads and certain other

prescribed areas.  See id.

     In April 1997, the Amherst Selectmen began negotiating

with Omnipoint and also advertised to solicit interest from other

carriers who might wish to locate a system in Amherst.  Omnipoint

then designed a system comprising four 190-foot towers--tall enough

to allow co-location of antennas by up to four other providers who

might compete with Omnipoint.  Towers are very expensive, often

costing $500,000 or so each; co-location increases tower height but

reduces the number of towers and greatly reduces overall costs

because fewer towers are needed and because a tower's cost does not

increase proportionately with height.

     In late April 1997, the Federal Communications Commission 

granted Omnipoint a non-exclusive license to provide wireless

digital telephone service in New England, including southern New

Hampshire.  Under the license, Omnipoint must make service

available to 25 percent of the population in the region within five

years and 50 percent within ten years.  Omnipoint wants to provide

service not only within the town of Amherst but also for transients

who are using Route 101, an important travel route in southern New

Hampshire that traverses Amherst, running roughly from northeast to

southwest. 

     Omnipoint and the Selectmen reached agreement in August

1997 and signed leases for three town-owned sites along Route 101;

on each, Omnipoint proposed to construct a 190-foot tower.  It was

also agreed that the town would receive a portion of revenue from

Omnipoint and any other providers co-locating on the towers

constructed on town-owned land.  The Selectmen wrote a letter

endorsing the proposed towers to the Amherst Zoning Board of

Adjustment ("the Board"), a separate local body that regulates

zoning matters.  See N.H. Rev. Stat. Ann.  674:33.  The leases

made clear that the responsibility to procure Board approval rested

on Omnipoint's shoulders. 

     Starting in the northeast, the first tower was to be

sited near the northern entrance to the town on the so-called

Bragdon Farm site owned by the town.  Construction of this tower

required a special exception under the Amherst ordinance and two

variances from the setback restrictions from the Board; no use

variance was required.  This was also true of the second site on

which a town-owned recycling center was located.  Under state law,

variances require a showing of hardship.  See note 6, below.

     The third tower site agreed to by the Selectmen--clearly

the most controversial--was a town-owned "public safety" complex

where a somewhat shorter tower already exists for wireless

communication by the police and fire department.  Omnipoint

proposed to construct a 190-foot tower that could also be used by

the police and fire department.  However, this area is denominated

a historic district and siting towers in such a district is

prohibited under the town's March 1997 zoning ordinance absent a

use variance.  Thus, Omnipoint required a use variance, a setback

variance, and a separate  permit from the Historic District

Commission, another local body.

     Omnipoint also reached agreement with a church to locate

a fourth tower on church land near Route 101.  The fourth site was

in a district where a tower could be constructed with a special

exception and, in this case, with one setback variance.  This area,

located to the south of the other proposed sites, lay just north of

the main population center in Amherst.  Omnipoint also applied for

and secured a single site in the southern area of the town--where

neither special exception nor variance was required and neither,

therefore, was Board approval.  There is no indication that service

for Amherst can be provided using this single tower.  

     In early September 1997, Omnipoint applied to the Board

for the required special exceptions and variances on all four

sites.  It also applied to the Historic District Commission for

approval to construct on the site located at the safety complex. 

On September 16, 1997, Omnipoint made a presentation before the

Board, which received public comment and then deferred matters

until October.  The Board's minutes summarize such oral

presentations but no transcript exists.  Two days later, the

Historic District Commission met in public session and denied

Omnipoint's application, apparently in Omnipoint's absence.

     Omnipoint immediately appealed the Commission's decision

to the Zoning Board of Adjustment, which can override the Historic

District Commission.  On October 21, 1997, the Zoning Board met

again.  Omnipoint provided additional information and answered more

questions from the Board, and public comments were again taken. 

The hearing was continued until November 1997, when the same

process was repeated.  The Board then deferred decision until

December 1997, saying that there would be no more presentations or

public testimony.  At all of these meetings, a number of residents

questioned or opposed the project, citing primarily concerns about

visual blight and impairment of property values.

     On December 8, 1997, Omnipoint filed the present lawsuit

against the town asserting that Amherst's delay violated the

Telecommunications Act of 1996.  Under this statute, the FCC

licenses carriers to provide wireless telephone service on a

competitive basis.  47 U.S.C.  332(c).  Rate regulation by states

is precluded, unless special circumstances are shown.  See id. 

332(c)(3).  However, the statute preserves state and local

authority over the placement and construction of facilities, id. 

332(c)(7)(A), subject to five limitations, id.  332(c)(7)(B).

     The first limitation, contained in subsection (i) and

central to this case, includes two substantive constraints:

     (i) the regulation of the placement,

     construction, and modification of personal

     wireless service facilities by any State or

     local government or instrumentality thereof--

     

          (I)  shall not unreasonably

     discriminate among providers of functionally

     equivalent services; and



          (II) shall not prohibit or have the

     effect of prohibiting the provision of

     personal wireless services.



47 U.S.C.  332(c)(7)(B)(i) (emphasis added).  Amherst does not

dispute that Omnipoint's service is a "personal wireless service." 

Id.  332(7)(c).

     Three of the four remaining limitations are pertinent

here:  the local government must act on placement or construction

applications "within a reasonable period of time"; the denial of a

request "shall be in writing and supported by substantial evidence

contained in a written record"; and anyone adversely affected by

any final action "or failure to act" by local government that is

inconsistent with the limitations may seek review in "any court of

competent jurisdiction" and "[t]he court shall hear and decide such

action on an expedited basis."  47 U.S.C.  332(c)(7)(B)(ii),

(iii), (v).        

     On December 16, 1997, eight days after the lawsuit was

filed, the Zoning Board of Adjustment met and unanimously denied

all  of Omnipoint's applications for special exceptions and

variances and also denied its appeal from the decision of Historic

District Commission.  In early January 1998, Omnipoint amended its

district court complaint to challenge the denials and also

requested the Board to reconsider its decisions.  Shortly

thereafter, Omnipoint moved for summary judgment in the district

court.

     In response to Omnipoint's request for reconsideration,

the Board held a new hearing in February 1998.  Omnipoint offered

no new evidence, but the Board heard additional public comment.  On

March 16, 1998, the Board issued a further decision, denying

Omnipoint's request for reconsideration and issuing a more

extensive decision.  The Board expressed general concerns about

tower height and the impact on town character and property values,

and then explained one by one--albeit in boilerplate language--why

the individual variances or special exceptions sought did not meet

specific requirements of state law or the March 1997 ordinance. 

For example, in rejecting Omnipoint's request for a setback

variance at the Bragdon Farm site, the Board stated in its

"findings of fact" simply that "[t]he proposed tower does not meet

the spirit and intent of the Amherst Master Plan to maintain the

rural character of the northern entrance to the Town."

     Later, after Omnipoint further amended its complaint,

Amherst cross-moved for summary judgment.  In July 1998, a hearing

was held in the district court on the cross-motions.  Within six

weeks, the district court issued a 47-page memorandum opinion

analyzing the issues in detail and concluding that the town had

violated the requirement that the local regulation "shall not

prohibit or have the effect of prohibiting the provision of

personal wireless services."  47 U.S.C.  332(7)(B)(i)(II); seeOmnipoint Communications Enters., Inc. v. Town of Amherst, No. 97-

614-JD (D.N.H. filed Aug. 21, 1998).  The district court rejected

Omnipoint's claim that the Board had unreasonably delayed decision,

and it did not resolve the question of whether the denial was based

on substantial evidence.  Id.

     In finding an effective prohibition, the district court

stressed that the Board's denial rested on very general standards

and did not give any indication as to how the plaintiffs could

overcome the "amorphous concerns" expressed or offer any guidance

as to where towers could be located to construct a functioning

system.  The court concluded that a mandatory injunction would

issue directing the town to issue the necessary permits within 45

days.  We stayed the district court's injunction pending an

expedited appeal.  On this appeal, we review the grant of summary

judgment in favor of Omnipoint de novo, drawing inferences in favor

of the town.  See Woods v. Friction Materials, Inc., 30 F.3d 255,

259 (1st Cir. 1994).

     The statutory provision before us, 47 U.S.C.  332(c)(7),

is a deliberate compromise between two competing aims--to

facilitate nationally the growth of wireless telephone service and

to maintain substantial local control over siting of towers. 

There are already two circuit decisions and several dozen district

court decisions addressed to one or more of the half-dozen

recurring issues under the statute.  One of those issues, and the

ground for the district court's injunction in this case, is

Congress' mandate that no "regulation" of siting is permitted that

has "the effect of prohibiting" service.  47 U.S.C. 

332(c)(7)(B)(i)(II).

     On appeal, the town argues that this "effect" provision

was never intended to constrain individual town-permitting

decisions but was directed only against "general" bans, whether

explicit or implicit.  There is some nominal conflict in the case

law on this point, but the quarrel is more one of language than

substance.  Obviously, an individual denial is not automatically a

forbidden prohibition violating the "effects" provision.  But

neither can we rule out the possibility that--based on language or

circumstances--some individual decisions could be shown to reflect,

or represent, an effective prohibition on personal wireless

service.

     Suppose, for example, that in denying an individual

permit, the town zoning authority announces that no towers will

ever be allowed or sets out criteria that no one could meet.  The

fact that the ban is embodied in an individual decision does not

immunize it.  It is no answer to point to the requirement that

individual decisions be based on "substantial evidence," for this

surely refers to the need for substantial evidence under the

criteria laid down by the zoning law itself (e.g., for setbacks,

conditions for variances, special exception requirements).  See,

e.g., Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494-97

(2d Cir. 1999).   

     If the criteria or their administration effectively

preclude towers no matter what the carrier does, they may amount to

a ban "in effect" even though substantial evidence will almost

certainly exist for the denial.  See Virginia Metronet, Inc. v.

Board of Supervisors, 984 F. Supp. 966, 970 (E.D. Va. 1998).  In

that event, the regulation is unlawful under the statute's "effect"

provision.  But the burden for the carrier invoking this provision

is a heavy one:  to show from language or circumstances not just

that this application has been rejected but that further reasonable

efforts are so likely to be fruitless that it is a waste of time

even to try.

     In this case, Amherst has not formally banned towers,

compare Sprint Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036,

1038-39 (W.D. Wash. 1996), but rather required prior permission

case by case.  And on this record, there is no showing of such

fixed hostility by the Board that one can conclude that further

applications would be useless.  While some of the Amherst citizens

who testified evidently oppose any system in the town, several

board members stressed that their concern was primarily with the

190-foot size and that negotiations with Omnipoint would be

welcome.  If these statements were mere camouflage, this has yet to

be shown.

     Were Omnipoint's existing proposal the only feasible

plan, then prohibiting its plan might amount to prohibiting

personal wireless service.  However, what the record shows on this

point, and we have read it end to end, can be summarized as

follows.  It appears that Omnipoint has proposed a traditional

efficient system that uses standard height towers at optimal

locations, minimizing both the total number of towers needed for

service and the overall cost for itself and for other carriers that

may wish to co-locate.  Three of the sites have the added advantage

of generating revenue for the town and upgrading fire and police

communications.

     But it also appears that lower towers could be used (and

possibly resited) if co-location were sacrificed and more (perhaps

many more) towers were added.  At this point, certainty dissolves. 

At the town meeting, opponents offered some "evidence" that a

feasible system could be constructed of very short towers, possibly

disguised as trees.  Omnipoint strongly disputed such claims--which

may well be fantasy--but it practically admitted that somewhatlower towers were technically feasible.  Nor is it clear that

locating a tower within the historic district is technically

essential.

     Ultimately, we are in the realm of trade-offs: on one

side are the opportunity for the carrier to save costs, pay more to

the town, and reduce the number of towers; on the other are more

costs, more towers, but possibly less offensive sites and somewhat

shorter towers.  Omnipoint may think that even from an aesthetic

standpoint, its solution is best.  But subject to an outer limit,

such choices are just what Congress has reserved to the town.  SeeAT&T Wireless PCS, Inc., 155 F.3d at 428-29.  We need not decide

now whether and to what extent legitimate zoning requirements could

require a carrier to accept a wireless system that is functional

but offers less than perfect performance.

     Omnipoint did not present serious alternatives to the

town.  As it explained to the Board, it bowed to the Selectmen's

wishes to use town sites and to maximize the opportunities for co-

location.  Further, detailed site planning is quite expensive,

leases or options take time to procure, and even one set of

variance and special exception requests is costly and time

consuming.  This one-proposal strategy may have been a sound

business gamble, but it does not prove that the town has in effect

banned personal wireless communication.        

     Omnipoint's stronger claim under the "effect" provision

is that even if it might propose other solutions, none has any real

prospect of success before the Board because no applicant can

satisfy local requirements.  In a nutshell, the Amherst ordinance

seemingly requires some form of permission (special exception,

variance or otherwise) for any system; the requirements for a

variance under state law can be made very severe by insisting that

no alternative reasonable use for the land exist; and special

exceptions under the Amherst ordinance have conditions so broad and

general that a hostile Board might be able to find substantial

evidence for every negative ruling.  See note 2, above.

     The concern should not be overstated, since special

exceptions are a matter of right where the conditions are met, and

the state courts are available to review the denial of any special

exception or variance.  Still, Omnipoint's claim is not frivolous. 

Possibly it would have a difficult time showing conclusively that

there is no other use for the sites (allegedly the requirement for

a use variance) or that the towers are completely compatible with

the rural image that the town seeks to foster (allegedly an element

in the special exception regime).  The rather mechanical

application of these concepts by the Board in its March 1998

decision lends support to this concern, and the district court's

own decision rested largely on the view that the Board could and

likely would reject alternative proposals.

     Our own appraisal, which is de novo on summary judgment,

is more agnostic. The very breadth and vagueness of the criteria

that permit the Board to deny requests also give the Board some

flexibility in deciding whether to grant them.  Equally important,

the strictures of New Hampshire and Amherst law are preempted,

under the Supremacy Clause of the Constitution, if they are read

and applied so as effectively to preclude personal wireless

service.  See H.R. Conf. Rep. No. 104-458, supra, at 207-08

(affirming "preemption" in the "limited circumstances" described in

the provision).  The minutes reflect that the Board more or less

understands this, and so would the New Hampshire state courts. 

Wenners v. Great State Beverages, Inc., 663 A.2d 623, 625-26 (N.H.

1995), cert. denied, 576 U.S. 1119 (1996).

     In all events, at least on the summary judgment record,

it has not been shown that the Board will inevitably reject an

alternative Omnipoint proposal with lower towers.  Indeed,

conceivably Omnipoint could offer such an alternative with lower

towers and yet persuade the Board that, given the consequences

(more towers) and perhaps modest height reduction, the Board is

best off approving Omnipoint's original proposal or some close

variant (e.g., shifting one tower outside the historic district). 

It is too early to give up on the Board.

     Below, Omnipoint pressed an alternative ground that the

district court did not reach, namely, a claim that the Board's

actions were unsupported by substantial evidence.  47 U.S.C. 

332(c)(7)(B)(iii).  Something should be said about this claim in

the interests of expedition since Omnipoint remains free on remand

to renew its request for summary judgment on this issue.  The

substantial evidence question would ordinarily be resolved (one way

or the other) on the record before the district court and require

no trial.

     As already noted, the substantial evidence requirement is

centrally directed to those rulings that the Board is expected to

make under state law and local ordinance in deciding on variances,

special exceptions and the like.  In a number of cases, courts have

overturned denials of permits, finding (for example) that safety

concerns and aesthetic objections rested upon hollow generalities

and empty records.  See, e.g., Iowa Wireless Servs., L.P. v. City

of Moline, 29 F. Supp. 2d 915, 921-23 (C.D. Ill. 1998); AT&T

Wireless PCS Inc. v. City of Chamblee, 10 F. Supp. 2d 1326, 1331-33

(N.D. Ga. 1997).  The substantial evidence test, which we have

recently described in some detail, involves some deference but also

has some bite.  See Penobscot Air Servs., Ltd. v. FAA, 164 F.3d

713, 718 (1st Cir. 1999).

     Still, in this case Omnipoint's prospects of success on

this ground may be limited.  The substantial evidence test applies

to the locality's own zoning requirements, and Amherst has framed

those requirements so they may be hard to fulfill unless the Board

exercises its judgment favorably to the applicant.  But this in

turn makes Amherst more vulnerable to a claim, based on experience,

that its regime is an effective ban.  Thus, the two federal

limitations--one dealing with bans and the other with substantial

evidence--complement one another by ensuring that local law is both

fair and is fairly administered.

     Before any further litigation, Omnipoint might find it

prudent to discuss with the Board an amicable resolution or an

agreed upon procedure to achieve one.  The Board must also face

reality.  If the Board's position is that it can just sit back and

deny all applications, that position in the end could, if

maintained, prove fatal to the Board rather than Omnipoint.  Under

federal law, the town can  control the siting of facilities but--as

several Board members admitted--it cannot preclude wireless service

altogether.  Nor, in the face of a vigilant district court, can the

town exhaust applicants by requiring successive applications

without giving any clue of what will do the trick.  Thus, it is in

the common interest of the Board and Omnipoint to find ways to

permit the siting of towers in a way most congenial to local

zoning.

     The statute's balance of local autonomy subject to

federal limitations does not offer a single "cookie cutter"

solution for diverse local situations, and it imposes an unusual

burden on the courts.  But Congress conceived that this course

would produce (albeit at some cost and delay for the carriers)

individual solutions best adapted to the needs and desires of

particular communities.  If this refreshing experiment in

federalism does not work, Congress can always alter the law.

     The district court's judgment is vacated and the matter

remanded for further proceedings consistent with this opinion. 

Each side shall bear its own costs on this appeal.

     It is so ordered.