Sprint v. Durham CV-97-305-JD 08/27/98 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Sprint Spectrum P.P., d/b/a Sprint PCS
v. Civil No. 97-305-JD
Town of Durham, NH, et al.
M E M O R A N D U M O P I N I O N
The plaintiff. Sprint Spectrum L.P., d/b/a Sprint PCS
("Sprint"), brought this action against the defendants, the Town
of Durham, New Hampshire ("Town" or "Durham"), and the Planning
Board of Durham, New Hampshire ("Planning Board") . The plaintiff
alleges that the defendants violated the Telecommunications Act
of 1996 ("TCA"), Pub. L. No. 104-104, 110 Stat. 56 (1996), and
breached a contract between the parties in connection with the
plaintiff's attempt to locate personal communication service
("PCS") facilities in Durham. Before the court are the
defendants' motion to dismiss (document no. 10), the plaintiff's
motion for summary judgment (document no. 7), and the defendants'
cross-motion for summary judgment (document no. 15).
Background1
The plaintiff is developing a digital PCS system in New
1The court herein relates only those material facts that are relevant to the resolution of the instant motions and that are not in genuine dispute. Hampshire as part of a national wireless network.2 It first
contacted the Town regarding the placement of a PCS facility that
would serve Durham on Route 4 at a public works facility.3
Durham's Town Administrator suggested that, rather than the
public works site, the plaintiff use a site located on the town
landfill on Durham Point Road. The plaintiff tested the site and
found that it satisfied the plaintiff's technical reguirements.
It planned to place an unlighted 190' tower on the site, which
would accommodate its own antenna and those of up to three other
providers.4 It would also provide the communications facilities
for the municipal police and fire services. This plan would
allow Durham to limit the total number of towers in town and to
gain revenue both from the plaintiff and from any other providers
who used the tower for colocation.
The parties then negotiated an option agreement and PCS site
agreement for the Durham Point Road site. The option commenced
2The record indicates that PCS, the term used by the plaintiff in its submissions to the court, is a subset of personal wireless services ("PWS"), the term used by the TCA. For the purposes of this order, the two terms are functionally eguivalent.
3The Durham Town Council is the legislative and governing body of Durham and acts on the Town's behalf. The court therefore considers the acts of the town council as the acts of the Town.
4Currently, at least one telecommunications carrier provides cellular service, a competing technology, to Durham.
2 on January 23, 1997, and ran until July 23, 1997. Upon exercise
of the option by the plaintiff, the PCS site agreement would
become effective. The PCS site agreement, a land lease for the
Durham Point Road site, has an initial term of five years with
automatic renewals at the plaintiff's option for four additional
five year terms. The option agreement incorporates the terms of
the PCS site agreement and notes that it is subject to compliance
with local laws, rules, and regulations.
On January 21, 1997, the Town Council adopted Resolution No.
97-01(A), authorizing the Town Administrator to sign the
agreements. Durham signed the option agreement on January 23.
Later that month, the plaintiff filed for site plan review with
the Planning Board. The plaintiff applied for, and on February
14, 1997, obtained a variance for the Durham Point Road site from
the Zoning Board of Adjustment ("ZBA"). On March 5, 1997, the
Planning Board formally accepted the plaintiff's application for
site plan review. It appears from the record that Planning Board
approval was the only remaining step necessary for the
plaintiff's plan to proceed.
Prior to the approval of the site plan by the Planning
Board, a ground swell of public sentiment arose against the
proposed tower. Furthermore, the membership of the Town Council
changed. It is not without significance that seven members of
the new Council live on Durham Point Road. For reasons that the
3 record fails to make completely clear but were, at least in part,
related to the public outcry and the change in the Town Council's
composition, the defendants began to guestion the wisdom of the
Town Council's agreement with the plaintiff.
The Town realized that the plaintiff was likely to be the
first of may new PWS providers seeking to establish facilities in
Durham and determined that it would be advantageous to create a
unified plan governing all PWS facilities. It decided to adopt
an ordinance addressing the subject but needed time to create an
appropriate one. Therefore, the Town instituted a moratorium on
PWS applications to allow time to develop an ordinance. At least
one councilor acknowledged that a moratorium would serve as a
"roadblock" to the construction of towers in Durham. Aff. of
Carol Donahue McEleney in Supp. of Pl.'s Mot. for Summ. J.
("McEleney Aff."), Ex. H, at 2-3 (Durham Town Council Meeting
Minutes of May 19, 1997) (comment of Councilor Rous).
From the Town's perspective, its agreement with the
plaintiff posed at least two concerns. First, the plaintiff's
existing application would not be subjected to the new zoning
scheme when adopted. Second, the defendants have asserted that
they were concerned about the accuracy of factual representations
made by the plaintiff during the course of negotiating the
agreement. The defendants determined that it would be
advantageous to terminate the application process begun by the
4 agreement and force the plaintiff to reapply under whatever
ordinance was ultimately adopted. As one councilor stated, he
was "in favor of stopping this mess here and starting over." Id.
at 12 (comment of Councilor Valena).
By public notice posted May 9, 1997, the Planning Board
posted a proposed amendment to the Town's zoning ordinance
regarding wireless telecommunications facilities. On May 19,
1997, in response to a citizen initiative petition, the Town
Council voted to revoke Resolution No. 97-01(A). The Council
took the position that this revocation terminated the option
agreement and PCS site agreement. On May 21, 1997, the Planning
Board voted to declare that the Town Council's revocation of the
resolution and termination of the contract rendered moot the
current site planning application for the plaintiff at the Durham
Point Road site.
At the Town Council's June 2, 1997, meeting, it voted to
send a letter to the Durham Zoning Board of Adjustment ("ZBA")
declaring the Council's position that it was not in the Town's
interest for the ZBA to grant any variances for telecommunica
tions facilities until the lifting of the moratorium and the
enactment of a new zoning ordinance. On June 18, 1997, the
plaintiff brought this action. Despite the defendants' purported
revocation of the agreement, the plaintiff attempted to exercise
the option by letter dated June 24, 1997, and tendered the first
5 month's rent. The Town returned the notice and the rent check.
On June 2 8 , 1 9 9 7 , the Town Council enacted a moratorium on
the acceptance or processing of applications for permits, or the
issuance of permits, for PWS facilities for a period of no longer
than 180 days or upon posting of a zoning amendment permitting
the siting of such facilities, whichever occurred first. The
plaintiff amended its complaint to add allegations that the
moratorium violated the TCA. The moratorium expired on December
19, 1997.
The plaintiff did not submit any additional applications to
the Town Council, Planning Board, Zoning Board of Adjustment, or
any other board or committee of the Town during the pendency of
the moratorium. Because the Planning Board had declared its site
plan application moot, the plaintiff did not have any applica
tions pending for any permits or other zoning licenses on June
28, 1997, the date that the option expired. The plaintiff thus
did not obtain approval from the Planning Board to site its
facility during the term of the option agreement. An amendment
to the Durham Zoning Ordinance, "Article 13 - Personal Wireless
Service Facilities Overlay District," was adopted by the Durham
Town Council on February 2, 1998. The defendants have taken the
position that to place a PCS tower in Durham, the plaintiff must
reapply and gain approval under the new ordinance.
The plaintiff's amended complaint includes the following
6 counts: in counts I and II, the plaintiff claims that the Town
Council and Planning Board, respectively, violated the TCA; in
count V, the plaintiff asserts that the Planning Board violated
N.H. Rev. Stat. Ann. ("RSA") § 676:12; in count VI, the plaintiff
asserts that the Town Council breached its contract with the
plaintiff; and in count VII, the plaintiff asserts that the Town
Council breached the implied covenant of good faith and fair
dealing.5 The court now considers the pending dispositive
motions.6
5The plaintiff has voluntarily withdrawn its claims in counts III and IV for alleged due process violations by the Town Council and Planning Board, respectively.
throughout the pendency of this action, the court urged the parties to attempt to find a mutually agreeable resolution to their dispute. When it appeared that the possibilities for such resolution had been exhausted, the court heard oral argument on the pending motions on March 2, 1998 and gave the parties additional time to file supplemental memoranda. Prior to the court's ruling, the parties informed the court that they had continued to discuss settlement and reguested that the court stay its decision for thirty days. The court gave the parties until June 22, 1998, to file a settlement stipulation, and later extended the deadline until July 23, 1998, at the reguest of the parties. On August 3, 1998, after the expiration of the stay, the plaintiff filed a status report indicating that the parties have been unable to reach a settlement. The pending motions are therefore ready for ruling.
7 Discussion
Both parties have moved for summary judgment.7 The role of
summary judgment is "to pierce the boilerplate of the pleadings
and assay the parties' proof in order to determine whether trial
is actually reguired." Snow v. Harnischfeger Corp., 12 F.3d
1154, 1157 (1st Cir. 1993) (guoting Wynne v. Tufts Univ. Sch. of
Med., 976 F.2d 791, 794 (1st Cir. 1992)). The court may only
grant a motion for summary judgment where the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). The parties seeking summary judgment bear the initial
burden of establishing the lack of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Quintero de Quintero v. Aponte-Rogue, 974 F.2d 226, 227-28 (1st
Cir. 1992). The court must view the entire record in the light
7The defendants also filed a motion to dismiss the plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief can be granted. However, before the court ruled on the motion to dismiss, the defendants filed a cross-motion for summary judgment. The defendants' cross-motion reiterates and expands the arguments initially presented in the motion to dismiss. The court deems the motion to dismiss to be superceded by the summary judgment motion and therefore denies the motion, but considers the arguments raised there as a supplement to the cross-motion for summary judgment.
8 most favorable to the non-moving party, "'indulging all
reasonable inferences in that party's favor.'" Mesnick v.
General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (guoting
Griqqs-Rvan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)) .
However, once a moving party has submitted a properly supported
motion for summary judgment, the non-moving party "may not rest
upon mere allegation or denials of [its] pleading, but must set
forth specific facts showing that there is a genuine issue for
trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986) (citing Fed. R. Civ. P. 56(e)). Summary judgment is thus
appropriate where the material facts are not in dispute and the
motions present solely an issue of law. See Reich v. John Alden
Life Ins. C o ., 126 F.3d 1, 6 (1st Cir. 1997) . Here, although the
parties differ as to the characterization and significance of
certain facts, the material facts are undisputed and resolution
of the case on summary judgment is appropriate.
The TCA was signed into law on February 8, 1996. See Sprint
Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 49 (D. Mass.
1997). It was passed
in order to provide a pro-competitive, deregulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommuni cations markets to competition. More specifically, with this Act, Congress had tried to stop local authorities from keeping wireless providers tied up in the hearing process. The legislative history evidences clear Congressional intent to take down the barriers to telecommunications . . . .
Recognizing that such sweeping changes in the industry may be met with resistance, federal lawmakers limited the ability of state and local officials to delay implementation of the TCA. Specifically, Section 704 of the TCA states that actions taken by State or local governments shall not prohibit, or have the effect of prohibiting, the placement, construction or modification of personal wireless services.
I d . at 49-50 (guotations, citations, and alterations omitted).
Subsection 7 of 47 U.S.C. § 332(c) is captioned
"Preservation of local zoning authority." See 47 U.S.C.A.
§ 332(c)(7) (West Supp. 1998). It provides, in relevant part, as
follows:
(A) General Authority
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(B) Limitations
(i) The regulation of the placement, construc tion, 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 eguivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
10 (ii) A State or local government or instru mentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
(iii) Any decision by a State or local govern ment 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.
(iv) No State or local government or in strumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [Federal Communica tions] Commission's regulations concerning such emissions.
47 U.S.C.A. § 332(c)(7)(A)-(B) (West Supp. 19 98). Although
Congress in section A purportedly preserved local governmental
authority over placement, construction, and modification
decisions, that authority is clearly curtailed by the provisions
of section B. The TCA works sweeping changes in local zoning
authority because it "clearly preempts any state regulations
'which conflict with its provisions.'" Lucas v. Planning Bd. of
LaGranqe, No. 98 CIV. 0862 (CLB), 1998 WL 261566, at *9-10
(S.D.N.Y. May 19, 1998) (holding provisions of New York State
Environmental Quality Review Act invalid as preempted by TCA)
(quoting Easton, 982 F. Supp. at 50). The TCA essentially
11 mandates a policy of constructive engagement for towns and
municipalities in permitting PWS providers. Municipalities no
longer have the option of simply refusing to accommodate these
entities, but must instead actively work towards a resolution
that allows the construction of these facilities while
simultaneously addressing the concerns of the municipalities in a
manner consistent with the reguirements of the TCA.
Despite the statute's relatively recent enactment, a number
of district courts have considered its application. See, e.g.,
AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of
Adjustment, No. 1:97CV01246, 1998 WL 337748 (M.D.N.C. June 12,
1998), stay denied by 1998 WL 409382 (M.D.N.C. July 17, 1998);
Omnipoint Communications, Inc. v. Zoning Hr'q Bd. of East
Pennsboro Township, 4 F. Supp. 2d 366 (M.D. Pa. 1998); Gearson &
Co. v. Fulton Countv, No. CIV.A.1:97CV3231WBH, 1998 WL 292095
(N.D. G a . Apr. 23, 1998); Cellco Partnership v. Town Plan and
Zoning Comm'n of Farmington, 3 F. Supp. 2d 178, 1998 WL 220030
(D. Conn. Apr. 13, 1998); Sprint Spectrum L.P. v. Willoth, 996 F.
Supp. 253 (W.D.N.Y. 1998); Smart SMR of N.Y., Inc. v. Zoning
Comm'n of Stratford, 995 F. Supp. 52 (D. Conn. 1998); Virginia
Metronet, Inc. v. Board of Supervisors of James City County, 98 4
F. Supp. 966 (E.D. Va. 1998); AT&T Wireless Servs. of Fla., Inc.
v. Orange County, 994 F. Supp. 1422 (M.D. Fla. 1997) ("Orange
County II"); AT&T Wireless Servs. of Fla, v. Orange County, 982
12 F. Supp. 856 (M.D. Fla. 1997) ("Orange County I") ; Century
Cellunet of S. Mich., Inc. v. City of Ferrvsburg, 993 F.
Supp. 1072 (W.D. Mich. 1997); Sprint Spectrum L.P. v. Zoning Hr'g
Bd. of East Nottingham Township, No. CIV.A.97-1837, 1997 WL
688816 (E.D. Pa. Oct. 15, 1997); Easton, 982 F. Supp. 47; Sprint
Spectrum L.P. v. Town of Farmington, No. 3:97 CV 863 (GLG), 1997
WL 631104 (D. Conn. Oct. 6, 1997); AT&T Wireless PCS, Inc. v.
City Council of Virginia Beach, 979 F. Supp. 416 (E.D. Va. 1997);
OPM-USA-INC. v. Board of County Comm'rs of Brevard County, N o .
97-4 08-CIV-ORL-19, 1997 WL 907911 (M.D. Fla. Aug 26, 1997);
Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457 (N.D.
Ala. 1997); Illinois RSA No. 3 v. County of Peoria, 963 F. Supp.
732 (C.D. 111. 1997); Western PCS II Corp. v. Extraterritorial
Zoning A u t h ., 957 F. Supp. 1230 (D.N.M. 1997); BellSouth Mobility
Inc. v. Gwinnett County, 944 F. Supp. 923 (N.D. G a . 1996); Sprint
Spectrum, L.P. v. City of Medina, 924 F. Supp. 1036 (W.D. Wash.
1996) . To date, the Circuit Courts have not ruled upon this
provision of the TCA, but this court has recently done so. See
Omnipoint Communications Enters, v. Town of Amherst, Civil No.
97-614-JD (D.N.H. Aug. 21, 1998). Against this background, the
court considers the following issues raised by the parties'
cross-motions for summary judgment: (1) whether the TCA is
properly applicable to the acts of the defendants; (2) if the TCA
is applicable to the acts of the defendants, whether the
13 defendants' actions satisfy the requirements of a written denial
supported by substantial evidence in a written record; (3) if the
defendants violated the TCA, what remedy is appropriate; and (4)
what is the appropriate disposition of the supplemental state law
claims. The court discusses these issues seriatim.
A. Applicability of the TCA to the Acts of the Defendants
The TCA applies not only to explicit, formal denials of
requests to place, construct, or modify PWS facilities, but also
to acts that have the effect of a denial. See, e.g., Jefferson
County, 968 F. Supp. at 1468 ("The County's refusal to act durinq
the sway of a series of moratoria emits more than just an 'aroma
of obstruction': it is tantamount to denial of plaintiffs'
applications.") (citations omitted). In this case, the
defendants assert that the TCA does not apply to their acts for a
variety of reasons. They contend that the TCA applies only to
the exercise of zoninq power by local qovernment and does not
apply to a local qovernment actinq in its proprietary capacity,
as they alleqe they did here. They further assert that their
actions do not fall under the TCA because they did not deny any
request by the plaintiff to place a PWS facility. The defendants
contend that their reasons for revokinq the option are not
requlated by the TCA, and even if they were, the reasons were
leqitimate because the defendants did not consider the effect of
14 radio frequency emissions in their decisions. The plaintiff
asserts that the acts of the defendants are cognizable under the
TCA.
The plaintiff requested permission to locate a PCS tower at
the Durham Point Road facility and filed applications to do so.
While the approval process was ongoing and in the face of
significant pressure from the public and individual council and
board members, the defendants determined that they did not want
to give approval to any PWS facility until they had enacted a
comprehensive zoning ordinance. They curtailed consideration of
additional applications, but realized that the plaintiff's
existing application posed a problem for their recently
determined goal of having all PWS facilities controlled by a
comprehensive zoning scheme. Therefore, the defendants
determined to, and in fact succeeded in, terminating the
plaintiff's application and the underlying agreement on which
that application was based. The plaintiff did not withdraw its
request voluntarily or otherwise consent to the defendants'
actions. The mechanism used by the defendants to accomplish this
result may not have been a formal denial, but it undoubtedly had
the direct effect of denying the plaintiff's properly initiated
request for permission to locate a PWS facility in Durham.8 The
8The court need not consider, in this context, whether the revocation was authorized by the agreement itself or by state
15 acts of the defendants are cognizable under the TCA.
The defendants' arguments to the contrary are inapposite.
Whether or not the acts of the defendants can be construed as
zoning decisions, and for the purposes of this decision the court
assumes arguendo that they were not, the text of the TCA does not
support the distinction between a local government's zoning and
proprietary functions that the defendants seek to read into it.
It may well be the case that not all exercises of a town's
proprietary functions fall within the scope of the TCA, but the
TCA simply does not allow local governments to shield themselves
from acts which violate the TCA by characterizing those actions
as taken pursuant to a town's proprietary functions. C f . Easton,
982 F. Supp. at 50 (TCA preempts conflicting state law and
regulations). As the court has already noted, the acts of the
defendants unguestionably resulted in a denial of the plaintiff's
reguest to locate a PWS facility. The fact that this result was
achieved without a formal denial of the plaintiff's applications
is of no legal significance. The defendants' final argument that
the reasons for its denial were permissible because they did not
take into account the effect of radio freguency emissions is also
inapposite. Compliance with the TCA's provision against con
sidering radio freguency emissions, see 47 U.S.C.
law. The revocation had the effect of a denial for the purposes of the TCA whether or not it was otherwise lawful.
16 § 332(c)(7)(B)(iv), does not guarantee that the defendants have
not violated another of the TCA's requirements, see 47 U.S.C.
§ 3 3 2 (c) (7) (B) (i)- (iii) . None of the cases cited by the
defendants in support of their arguments dictate a result to the
contrary.
The court concludes that the acts of the defendants fall
within the scope of the TCA, and the court may properly consider
whether the defendants' conduct violated the TCA.
B. Written Decision Supported by Substantial Evidence Contained in a Written Record
The TCA also provides the following:
Any 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.A. § 332(7) (B) (iii) (West Supp. 1998) . The substantial
evidence standard "'requires governing bodies to produce a
written decision, detailing the reasons for the decision and the
evidence that led to the decision.'" Cellco Partnership, 1998 WL
220030, at *5 (finding that denial was not supported by
substantial evidence in written record) (quoting Virginia
Metronet, 984 F. Supp. at 972). Although a telecommunications
provider must come forward with a certain minimal amount of
information in support of its applications in order to prevail.
17 once an application has been supported this provision places the
burden of proof to support any denial on the local government
entity issuing the denial. Compare Smart SMR, 995 F. Supp. at
56, and Easton, 982 F. Supp. at 52 ("[B]ecause the TCA
effectively preempts state law in several respects, including the
burden of proof, . . . it is the [defendant's] burden to produce
substantial evidence supporting its denial of plaintiff's
application.") (internal guotation omitted), with Gearson, 1998
WL 292095, at *3 (court dismissed plaintiff's claim that
defendants' denial of its application to erect a tower violated
TCA based on plaintiff's complete failure to submit necessary
supporting information). If a decision "does not set forth the
zoning authority's rationale, this 'ground alone is sufficient to
guash the [zoning authority's] decision.'" Smart SMR, 995 F.
Supp. at 56 (guoting Orange County I , 982 F. Supp at 859)
(alteration in original).
Although the nature of the inguiry into whether a denial is
supported by substantial evidence is highly fact-specific,
certain general principles have been established. To withstand
judicial scrutiny a denial must be specific and detailed, for
courts have found denials based on generalized aesthetic and
safety concerns to be insufficient to meet the substantial
evidence standard. See Easton, 982 F. Supp. at 52; BellSouth
Mobility, 944 F. Supp. at 928. As one court has stated:
18 [L]ocal governments may not mask hostility to wireless communications facilities with unreasoned denials that make only vague references to applicable legal standards. The procedural reguirement of a written decision with articulated reasons based on record evidence forces local governments to rely on supportable neutral principles if they wish to deny a particular wireless installation.
Orange County I , 982 F. Supp. at 862. In addition, where a party
has done everything possible to support an application and "it
appears from the record that there is nothing [the applicant]
could have done which would have met with the approval of the
[local authority,]" a denial under those circumstances is not
based on substantial evidence in a written record. OPM-USA, 1997
WL 907911, at *11.
In this case, the defendants contend that the TCA
reguirement that they produce a written decision supported by
substantial evidence in a written record does not apply to this
case because their acts did not constitute a "denial" for
purposes of the TCA. As discussed in the preceding section,
however, the defendants' argument fails because their acts
unguestionably had the direct effect of a denial. See Jefferson
County, 968 F. Supp. at 1468. As such, the denial had to be in
writing and supported by substantial evidence based in a written
record. See 47 U.S.C.A. § 332(c)(7)(B)(iii).
The defendants' actions fail to comply with even the most
basic elements of this reguirement. The denial was not "in
19 writing" within the meaning of the TCA because it did not
indicate the reason for the denial. Furthermore, to the extent
that the reasons for the denial can be gleaned from the record in
this case, the denial lacks the support of any substantial
evidence. Indeed, the record indicates that the denial was the
product of open and vocal hostility both to towers in general and
specifically to the plaintiff's tower proposal. Such hostility
is not a permissible grounds for denying an application, even if
the denial otherwise satisfied the formal reguirements of 47
U.S.C. § 332(c)(7)(B)(iii), which it does not. Therefore, the
court concludes that the defendants' actions violated the TCA.9
C. Appropriate Remedy
Given the court's conclusion that the defendants violated
the TCA by failing to issue the denial in writing with the
support of substantial evidence in a written record, the court
must consider the issue of an appropriate remedy to correct the
violation. Congress when it enacted the TCA did not specify what
the remedy for a violation of its provisions would be. See
BellSouth Mobility, 944 F. Supp. at 929. The two basic choices
9Because the court has concluded that the defendants' rejection of the plaintiff's application violated 47 U.S.C. § 332(c)(7)(B)(iii), it need not consider the plaintiff's argument that the defendants violated the TCA in several additional respects.
20 of remedy employed by courts after finding a TCA violation are:
(1) remand to the local authority for additional consideration or
reconsideration; or (2) mandatory injunctive relief, usually in
the form of an order granting the improperly denied applications.
See, e.g., Virginia Beach, 979 F. Supp. at 430; BellSouth
Mobility, 944 F. Supp. at 929.10
In choosing between a remand and injunctive relief, several
courts have determined that
simply remanding the matter to [the relevant local authority] for their determination would frustrate the TCA's intent to provide aggrieved parties full relief on an expedited basis.
Id.; accord Easton, 982 F. Supp. at 52; Western PCS, 957 F. Supp.
at 1237. In addition to the statutory reguirement that local
governments act on applications within a reasonable time, see 47
U.S.C.A. § 332(c)(7)(B)(ii), the TCA also directs the court to
resolve TCA claims on an expedited basis, see 47 U.S.C.A.
§ 332(c)(7)(B)(v). Remand is particularly inappropriate where
the case would go back before a local government that has already
10Despite the fact that several courts have purported to issue writs of mandamus, the court notes that the writ of mandamus has been abolished in United States district court. See Fed. R. Civ. P. 81(b); see also Virginia Beach, 979 F. Supp. at 430 & n.25 (granting mandatory injunction); c f ., e.g.. Western PCS, 957 F. Supp. at 1239 (granting mandamus); Jefferson County, 968 F. Supp. at 1469 (same); BellSouth Mobility, 944 F. Supp. at 929 (same). The effect of mandatory injunctive relief, however, is the same as the effect of a writ of mandamus. See Virginia Beach, 979 F. Supp. at 430-31.
21 demonstrated hostility toward the application. See Virginia
Beach, 979 F. Supp. at 431.
The court concludes that remanding this case to the
defendants would be inconsistent with the purposes of the TCA.
The defendants have expressed hostility toward the plaintiff's
application and have sought to impose on the application the
reguirements of an ordinance adopted since the commencement of
this action. Durham has had ample opportunity to address the
plaintiff's application on its merits and has failed to comply
with the TCA. A remand would allow further delay and in all
probability would result in another denial of the plaintiff's
application. Therefore, the court holds that mandatory
injunctive relief ordering the defendants to approve the
plaintiff's application and remove any barriers to the
construction of the proposed tower is the appropriate remedy.
The option agreement and PCS site agreement, which initially
were to be the documents that controlled the terms of the
relationship between the parties, were purportedly revoked by the
Town Council. The revocation, however, was part of a course of
conduct that violated the TCA. To the extent that the defendants
violated the TCA, the revocation is null and void. The relief
herein granted relates back to June 24, 1997, the date that the
plaintiff attempted to exercise the option. The PCS site
agreement shall remain effective as if the plaintiffs had
22 successfully exercised the option as of that date.
D. Supplemental State Law Claims
The plaintiffs have also brought state law claims alleging
violation of RSA § 676:12 (Count V), breach of contract (Count
VI), and breach of the implied covenant of good faith and fair
dealing (Count V I I ) . As an initial matter, the defendants assert
that the court should decline to exercise supplemental juris
diction over the state law claims. The defendants contend that
the gravamen of the plaintiff's complaint is a contract dispute
and assert that the issue should properly be adjudicated in state
court. They have unsuccessfully contended that the court lacks
jurisdiction over the plaintiff's TCA claims, and on that basis
have reguested that the court decline to resolve the plaintiff's
state law claims. However, the plaintiff's state law claims
clearly arise from the same nucleus of operative facts and form
part of the same case or controversy as the TCA claims, thus
making exercise of the court's supplemental jurisdiction
appropriate. See Nottingham Township, No. CIV.A.97-1837, 1997 WL
688816, at *1 (E.D. Pa. Oct. 15, 1997). Therefore, the court
properly has jurisdiction over the plaintiff's supplemental state
law claims.
With the exception of the award of attorney's fees under the
option agreement, the substance of the relief sought by the
23 plaintiff in the supplemental state law claims has been granted
by the court in its ruling on the TCA claims. Therefore, the
supplemental state law claims are dismissed as moot. The court
expects the parties to make a good faith effort to resolve any
disagreement over attorney's fees. Right is reserved to the
plaintiff to renew its reguest for attorney's fees within 30 days
if the matter cannot be resolved.
Conclusion
The plaintiff is entitled to summary judgment on its TCA
claim because the defendants denied its application for a PCS
tower without a written decision supported by substantial
evidence in a written record. A fortiori, the defendants are not
entitled to summary judgment. The defendants' Rule 12 motion
(document no. 10) and summary judgment motion (document no. 15)
are denied. The plaintiff's summary judgment motion (document
no. 7) is granted with respect to its TCA claims in counts I and
II. The plaintiff's supplemental state law claims in counts V,
VI, and VII are dismissed as moot with right reserved to the
plaintiff to reopen its claim for attorney's fees under the
option agreement if the matter cannot be resolved between the
parties within 30 days of this order.
24 O R D E R
The decisions of the defendants denying the plaintiff's
application to install a PCS tower on the Durham Point Road site
are null and void. The revocation of the option agreement is
null and void and the PCS site agreement shall be considered
operative between the parties to it as of June 24, 1997. The
court orders the Town of Durham, its officers, boards,
commissions, departments, town council, and other instru
mentalities whose approval may be necessary, to approve the
plaintiff's application and remove any further impediments to the
plaintiff's construction of the proposed tower at the town
landfill on Durham Point Road, including the issuance of any
reguired permits, within forty-five days of the date of this
order. The clerk is ordered to close the case, subject to its
being reopened within thirty days of the date of this order at
the reguest of the plaintiff if the parties are not able to
resolve the plaintiff's claim for attorney's fees under the
option agreement.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
August 27, 1998 cc: Jonathan S. Springer, Esguire Robert D. Ciandella, Esguire