USCOC of N.H. v . Town of Hopkinton CV-00-421-JM 04/09/01 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
USCOC of New Hampshire RSA # 2 , a Delaware Corporation doing business as United States Cellular
v. Civil N o . C-00-421-JM Opinion N o . 2001DNH073P Town of Hopkinton, New Hampshire
O R D E R
Plaintiff USCOC of New Hampshire RSA #2 d/b/a United States
Cellular (“U.S. Cellular”) seeks an order compelling the Town of
Hopkinton, New Hampshire (“Hopkinton” or “Town”) to issue U.S.
Cellular all permits and approvals necessary for the construction
of a wireless telecommunications tower on a 114-acre parcel of
land located in the Dimond Hill area of Hopkinton. After
Hopkinton’s Planning Board denied U.S. Cellular’s application for
a waiver and conditional use permit to construct the tower on
Dimond Hill, U.S. Cellular filed the present action. U.S.
Cellular asserts that the Planning Board decision violated
Section 704 of the Telecommunications Act of 1996 (“TCA”), 47
U.S.C. § 332(c)(7)(B)(iii), because it was not supported by
substantial evidence contained in a written record. Plaintiff
further contends that Hopkinton’s zoning ordinance effectively prohibits U.S. Cellular from providing wireless services to its
customers in violation of Section 704 of the TCA, 47 U.S.C. §
332(c)(7)(B)(i)(II). Finally, U.S. Cellular challenges the
legality of the Planning Board’s decision under New Hampshire
law.
Before me is U.S. Cellular’s motion for summary judgment on
its substantial evidence and state law claims (document n o . 1 2 ) .
Also before me is defendant Hopkinton’s cross-motion for summary
judgment as to all claims (document nos. 13 & 1 5 ) .
Background
The following facts are undisputed. U.S. Cellular is a
provider of wireless telephone services. The company holds a
license from the federal government, which authorizes U.S.
Cellular to provide wireless services to certain parts of New
Hampshire and requires that the level of service be adequate to
meet the reasonable needs of its customers. In order to provide
service to a particular region, U.S. Cellular must place antennas
throughout the targeted geographic area. The extent of the
coverage afforded by each antenna depends upon a variety of
factors, including the height of the antenna, the terrain, and
the presence of natural or man-made barriers. Presently, U.S.
2 Cellular has no antennas in Hopkinton.
U.S. Cellular’s Identified Service Gap
U.S. Cellular determined that it has a significant service
gap in and around the Town of Hopkinton. The gap includes
portions of western Concord and southeastern Hopkinton, including
downtown Hopkinton and sections of Interstate 8 9 , Route 202 and
Route 1 3 , which are major commuter thoroughfares. U.S. Cellular
further determined that in order to close this gap and provide
adequate service to its customers, it would need to install an
antenna facility in southeastern Hopkinton.
Hopkinton’s Zoning Ordinance
Anyone wishing to install a wireless telecommunications
facility within the Town of Hopkinton must obtain prior approval
from the Hopkinton Planning Board in accordance with section 3.10
of the Town’s zoning ordinance. Section 3.10.4 establishes a
Wireless Telecommunications Facilities District, which is defined
as “an overlay district consisting of all land above the
elevation of 750 feet mean sea level and all Town-owned lands
within the Town of Hopkinton. Historic sites are specifically
excluded from this District.”1 Pursuant to section 3.10.5,
1 In March 2001, the Town of Hopkinton adopted a new telecommunications ordinance, which significantly altered section
3 wireless telecommunications facilities such as antennas and
towers are permitted within the Wireless Telecommunications
Facilities District, but only after the applicant has obtained a
conditional use permit from the Planning Board.2
There are six hilltops within Hopkinton’s borders that
3.10. For example, the new ordinance eliminates the Wireless Telecommunications Facilities District and permits wireless service facilities in all zoning districts, as long as the applicant obtains a conditional use permit. The new ordinance also imposes a height limit of 90 feet on personal wireless service facilities. The changes to the ordinance do not affect my analysis of the parties’ motions for summary judgment. Accordingly, the factual background contained herein describes the ordinance as it existed prior to March 2001. 2 In order to obtain a conditional use permit, an applicant must submit information to the Planning Board pursuant to section 3.10.7 of the zoning ordinance. The factors to be considered by the Planning Board in determining whether to grant a conditional use permit include (a) whether the height of the proposed facility exceeds that which is essential for its intended use and public safety, (b) proximity of the facility to residential areas, (c) nature of the uses on adjacent and nearby properties, (d) surrounding topography, (e) surrounding tree coverage and foliage, (f) design of the facility and any characteristics that may reduce or eliminate visual obtrusiveness, (g) proposed ingress and egress to the site, (h) availability of existing towers or structures for possible co-location, (i) visual impact on viewsheds, ridgelines, and other impacts by means of tower location, tree and foliage clearing and placement of incidental structures, (j) whether the proposed facility will unreasonably interfere with the view from a public park, natural scenic vista, historic building or major view corridor, (k) whether the proposed facility will be constructed so as not to result in needless height, mass and guy-wire supports, and (l) the availability of alternative tower structures and siting locations.
4 contain land above the elevation of 750 feet mean sea level.
Accordingly, the zoning ordinance permits the construction of new
wireless telecommunications towers on the six hilltops or on
Town-owned property, as long as the proposed location does not
constitute a historic site and the applicant obtains a
conditional use permit. In addition, section 3.10.5 of the
zoning ordinance authorizes the Planning Board to grant waivers
to permit the construction of wireless communications towers
outside the Wireless Telecommunications Facilities District.
Even if a waiver is granted, however, the applicant still must
obtain a conditional use permit.
Section 3.10.8 of the zoning ordinance sets forth the
conditions under which the Planning Board may grant a waiver.
The provision provides in relevant part:
A. General. Where the Board finds that extraordinary hardships, practical difficulties, or unnecessary and unreasonable expense would result from strict compliance with the foregoing regulations or the purposes of these regulations may be served to a greater extent by an alternative proposal, it may approve waivers to these regulations. The purpose of granting waivers under provisions of these regulations shall be to insure that an applicant is not unduly burdened as opposed to merely inconvenienced by said regulations. The Board shall not approve any waiver(s) unless a majority of those present and voting shall find that all of the following apply:
5 1. The granting of the waiver will not be detrimental to the public safety, health or welfare or injurious to other property and will promote the public interest.
2. A particular and identifiable hardship exists or a specific circumstance warrants the granting of a waiver. Factors to be considered in determining the existence of a hardship shall include, but not be limited t o :
a. Topography and other site features;
b. Availability of alternative site locations;
c. Geographic location of property;
d. Size/magnitude of project being evaluated and availability of co-location.
Pursuant to the plain language of the waiver provision, the
Hopkinton Planning Board retains broad discretion in deciding
whether to approve a waiver in a particular instance.
U.S. Cellular’s Application for a Waiver and Conditional Use Permit
After conducting a search to identify potential sites in
Hopkinton where an antenna tower could be placed to close its
service gap, U.S. Cellular concluded that none of the six
hilltops located within the Wireless Telecommunications
Facilities District would suffice.3 Moreover, U.S. Cellular
3 U.S. Cellular retained ATC Realty, LLC (“ATC”)to assist it in evaluating and selecting a location for a proposed antenna
6 determined that there were no existing structures within the Town
where it could install an antenna that would provide adequate
coverage. U.S. Cellular did find, however, that it could close
its coverage gap by erecting a 150-foot telecommunications tower
on a 114-acre parcel in the Dimond Hill section of Hopkinton.
Accordingly, U.S. Cellular obtained permission from the property
owner to construct a tower at the Dimond Hill site.
Thereafter, on February 2 8 , 2000, U.S. Cellular submitted an
application to the Hopkinton Planning Board for the “construction
of a 150-foot self-supporting monopole, with appurtant [sic]
telephony switching gear in sheds, within an approximately 6,000
square foot fence enclosed compound” on Dimond Hill.4 Because
the Dimond Hill site is not located within the Wireless
Telecommunications Facilities District, U.S. Cellular requested
both a waiver and a conditional use permit pursuant to section
3.10 of the Hopkinton zoning ordinance.
The Hopkinton Planning Board held extensive public hearings
facility. 4 ATC, acting on U.S. Cellular’s behalf, submitted U.S. Cellular’s application to the Hopkinton Planning Board. ATC also represented U.S. Cellular throughout the course of the Planning Board’s public hearings on the application. For the sake of simplicity, I have referred to ATC and U.S. Cellular collectively throughout this Order as “U.S. Cellular.”
7 on U.S. Cellular’s application, which took place on April 2 0 , May
4 , May 1 1 , June 1 , and June 2 0 , 2000.5 During the hearings, U.S.
Cellular presented testimony and documentary evidence in support
of its position that the proposed Dimond Hill site would fulfill
the purposes of Hopkinton’s zoning ordinance, could meet the
ordinance’s requirements for the issuance of a waiver and a
conditional use permit, and was the only site that U.S. Cellular
had identified that would enable the company to close its
coverage gap. The Planning Board also received evidence and
heard argument from a group of abutters opposed to U.S.
Cellular’s application. In addition, the Board heard testimony
from residents who were not part of the abutter group, but also
opposed the application.
5 U.S. Cellular asserts that certain members of the Planning Board were hostile to U.S. Cellular’s proposal from the onset of the application process, but that neither Board member was recused from the proceedings. Having failed to raise this issue at the Planning Board stage, U.S. Cellular cannot seek to benefit from the Board’s alleged hostility now. See Bradley v . City of Manchester, 141 N.H. 329, 333 (1996)(challenges to municipal government proceedings are waived if not raised at a time when the error could have been corrected). See generally Winslow v . Town of Holderness Planning Bd., 125 N.H. 262 (1984)(party that objected to planning board member’s participation in a proceeding preserved the issue for review by state court). Moreover, while the hearing transcripts do indicate an atmosphere of hostility toward U.S. Cellular, the record shows that the Board gave due consideration to U.S. Cellular’s position and weighed U.S. Cellular’s evidence during its deliberations.
8 The Planning Board Decision
On August 3 , 2000, following the submission of written
briefs by U.S. Cellular and the opposing abutter group, the
Planning Board deliberated and voted unanimously to deny U.S.
Cellular’s request for a waiver. Because it refused to grant the
waiver, the Board did not reach U.S. Cellular’s application for a
conditional use permit.
The Planning Board issued a written Notice of Decision on
August 4 , 2000, in which it set forth its findings.
Specifically, the Board stated:
1. Under Section 3.10.8, A , 1 , the Board found, on the basis of the evidence submitted in the record, that the Applicant had not satisfied the requirement that “the granting of the waiver will not be detrimental to the public safety, health or welfare, or injurious to other property and will promote the public interest.” Further, the Board found that even though the proposed facilities would not be detrimental to the public safety, granting a waiver to allow construction of the proposed facilities outside of the telecommunications overlay district as defined by the Ordinance, would be injurious to other properties and would not promote the public interest.
2. Under Section 3.10.8, A , 2 , the Board determined, on the basis of the evidence submitted in the record, that the Applicant had not demonstrated a “particular and identifiable hardship or a specific circumstance” which warranted the granting of the requested waiver. In this regard,
9 the Board further determined that reasonable opportunities exist in other portions of the community for siting of wireless telecommunication facilities to provide service to alleged gaps in coverage along Interstate 8 9 , Route 202/9, and within western portions of the City of Concord. The Board also found that the Applicant did not demonstrate that siting wireless telecommunication facilities on Dimond Hill at the location requested by the Applicant would be the only alternative to provide service to the alleged gaps in coverage. Further, the Board found that Applicant’s evidence demonstrated that siting wireless telecommunications facilities in other parts of the Town within the wireless telecommunications facilities district would provide coverage to a larger geographic area of the Town.
In addition, the Board found that it had not violated the TCA
because it had not unreasonably discriminated against U.S.
Cellular, did not have a bias against or a history of denying
applications from wireless communication service providers, and
had not based its decision upon real or perceived environmental
or health concerns relating to radio frequency signals. Finally,
the Board stated that its written decision constituted a summary
of its findings, and referred to the forty-eight page transcript
of its August 3 , 2000 meeting for an explanation of its full
decision.
Following the Planning Board’s adverse decision, U.S.
Cellular initiated this lawsuit asserting claims under the TCA
10 and state law. Before me are the parties’ motions for summary
judgment, both of which have been skillfully argued and cogently
presented.
Analysis
A. The Telecommunications Act of 1996
The provision of the TCA at issue in this case, 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.” Town of Amherst v . Omnipoint Communications Enter.,
Inc., 173 F.3d 9, 13 (1st Cir. 1999). The statute “expressly
preserves local zoning authority over the placement, construction
and modification of personal wireless service facilities.”
Cellular Telephone Co. v . Zoning Bd. of Adjustment of Ho-Ho-Kus,
197 F.3d 6 4 , 68 (3d Cir. 1999). See also 47 U.S.C. §
332(c)(7)(A). Nevertheless, the TCA places certain limitations
upon the exercise of local zoning authority:
Local zoning authorities may not discriminate among providers of wireless telephone service, see § 332(c)(7)(B)(i)(I), act in a manner that effectively prohibits the provision of wireless telephone services, see § 332(c)(7)(B)(i)(II), or make zoning decisions based on concerns over the environmental or health effects of the radio emissions associated with wireless telephone service, see § 332(c)(7)(B)(iv) . . . In
11 addition, a zoning board’s decision to deny permission to build a wireless service facility must be ‘in writing and supported by substantial evidence contained in a written record’.
Omnipoint Corp. v . Zoning Hearing Bd. of Pine Grove Township, 181
F. 3d 403, 407 (3d Cir. 1999)(quoting 42 U.S.C. §
332(c)(7)(B)(iii)). See also Southwestern Bell Mobile Sys., Inc.
v . Todd, 2001 WL 293163 *4 (1st Cir. Mar. 3 0 , 2001). “Basically,
the TCA gives local authorities the first say in determining
where and how to construct [wireless communications facilities];
i f , however, a local authority’s actions violate the provisions
of the TCA, a court has the authority to order the locality to
take such steps as are necessary to grant the relief which the
wireless provider had originally requested from the locality.”
Omnipoint Communications MB Operations, LLC v . Town of Lincoln,
107 F. Supp.2d 108, 114 (D. Mass. 2000).
B. The Substantial Evidence Claim
U.S. Cellular seeks summary judgment on the grounds that
Hopkinton’s decision denying its application for a waiver and
conditional use permit violated the TCA, 47 U.S.C. §
332(c)(7)(B)(iii), because it was not supported by substantial
evidence contained in a written record. Hopkinton cross-moves
for summary judgment on this issue. “In considering whether
12 substantial evidence supports the agency decision, the court is
acting primarily in a familiar ‘review’ capacity ordinarily based
on the existing record.” Town of Amherst, 173 F.3d at 16 n.7.
Accordingly, it is appropriate to resolve the substantial
evidence question based on the Planning Board record before this
court. See id. at 1 6 .
1. Substantial Evidence Standard of Review
“The TCA’s substantial evidence test is a procedural
safeguard which is centrally directed at whether the local zoning
authority’s decision is consistent with the applicable local
zoning requirements.” Town of Lincoln, 107 F. Supp.2d at 115
(citing Town of Amherst, 173 F.3d at 1 6 ) . See also Ho-Ho-Kus,
197 F.3d at 72 (the court’s task is to determine “whether the
decision, as guided by local law, is supported by substantial
evidence”). The test is highly deferential to the Planning
Board, giving the Board “‘the benefit of the doubt, since it
requires not the degree of evidence which satisfies the court
that the requisite fact exists, but merely the degree that could
satisfy a reasonable factfinder’.” Penobscot Air Services Ltd.
v . Federal Aviation Admin., 164 F.3d 713, 718 (1st Cir.
1999)(quoting Allentown Mack Sales & Serv., Inc. v . N.L.R.B., 118
13 S.Ct. 818, 828 (1998)). Accordingly, the court is not free to
substitute its own judgment for that of the local zoning
authority, but must determine whether the local authority’s
decision is based on “‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion’.” Id.
(quoting Universal Camera Corp. v . N.L.R.B., 340 U.S. 474, 477
(1951)). See also Todd, 2001 WL 293163 *5 (substantial evidence
review is highly deferential to the local zoning authority, but
is not a rubber stamp).
In evaluating the Hopkinton Planning Board’s decision under
the substantial evidence standard, this court must consider the
evidence on the record as a whole, taking into account any
evidence that is unfavorable or contradictory to the Board’s
decision. See Todd, 2001 WL 293163 * 5 ; Penobscot Air, 164 F.3d
at 718; Pine Grove, 181 F.3d at 408. The court will uphold the
Planning Board’s decision as long as it is reasonably based upon
the evidence before it and not merely upon unsubstantiated
conclusions. See Town of Lincoln, 107 F. Supp. at 115.
2. Application of the Substantial Evidence Standard to the Hopkinton Planning Board’s Decision
Under the waiver provision of Hopkinton’s zoning
ordinance, the Planning Board may grant a waiver if a majority of
14 the Board members find both (1) the granting of the waiver will
not be detrimental to the public safety, health or welfare or
injurious to other property and will promote the public interest,
and (2) a particular and identifiable hardship exists or a
specific circumstance warrants the granting of a waiver, taking
into account the topography of the proposed site, the
availability of alternative sites, the location of the proposed
site, and the size of the project under consideration. The
Hopkinton Planning Board unanimously concluded that U.S.
Cellular’s application did not satisfy either prong of this
analysis, and denied the application on that basis. Thus, the
Board’s decision withstands scrutiny under the TCA if there was
substantial evidence in the record to support either the Board’s
conclusion that the granting of a waiver to construct a tower
outside the overlay district would be injurious to other
properties and would not promote the public interest or the
Board’s conclusion that U.S. Cellular had not demonstrated a
particular and identifiable hardship or specific circumstance
that would justify a waiver.
The Hopkinton Planning Board’s denial of U.S. Cellular’s
application for a waiver was supported by substantial evidence in
15 the record. Specifically, I find that the record contains
substantial evidence supporting Hopkinton’s findings that
granting a waiver would not promote the public interest and that
U.S. Cellular failed to identify a particular and identifiable
hardship or specific circumstance justifying the granting of a
waiver.6
U.S. Cellular is correct that the Planning Board’s August 4 ,
2000 Notice of Decision did not articulate a specific basis for
6 The Planning Board’s conclusion that a telecommunications tower on Dimond Hill would be injurious to neighboring property is not supported by substantial evidence. U.S. Cellular presented evidence in the form of a market analysis showing that cellular telephone towers have had no adverse impact on property values in New Hampshire. U.S. Cellular also introduced the testimony of a licensed real estate appraiser who stated that he could find no data connecting cellular telephone towers to the devaluation of real estate, and opined that U.S. Cellular’s proposed tower on Dimond Hill would have no impact on the value of homes in that area. In contrast, several Town residents expressed concern about the potential impact of the proposed tower on property values. In addition, the Board heard testimony from Mary Skobie Cowen, a local real estate broker, who presented anecdotal evidence of properties that had been adversely affected by their proximity to power lines and main roads, but could say nothing regarding the impact of cellular telephone towers on property values. M s . Cowen’s testimony was both unsupported and irrelevant. Moreover, the Hopkinton residents’ generalized and speculative concerns about a potential decrease in property values were inadequate to support the Board’s conclusion, especially in light of U.S. Cellular’s contradictory evidence. See e.g., Pine Grove, 181 F.3d at 409; Town of Oyster Bay, 166 F.3d at 496.
16 the Board’s finding that the granting of a waiver would not
promote the public interest. Nevertheless, the written decision
is sufficiently clear to guide the court to those portions of the
record that support the Board’s conclusion and to enable the
court to review the factual basis for the Board’s decision. See
Todd, 2001 WL 293163 *7 (a local zoning board’s written decision
satisfies the TCA’s requirement that permit denials be “in
writing” where the stated reasons for the denial are sufficiently
clear to permit an assessment of the evidence in the record
supporting those reasons). The Notice of Decision states,
“granting a waiver to allow construction of the proposed
facilities outside of the telecommunications overlay
district . . . would not promote the public interest.” The
Notice of Decision further refers to the transcript of the
Board’s August 3 , 2000 meeting for a description of the Board’s
full decision. The transcript shows that in evaluating whether
the granting of a waiver to U.S. Cellular would promote the
public interest, the Board members’ overwhelming concern was that
U.S. Cellular’s proposed site would provide limited coverage
within Hopkinton’s borders. In contrast, certain Board members
emphasized, propagation studies illustrating the extent of
17 coverage that U.S. Cellular could achieve using sites within the
Wireless Telecommunications Facilities District demonstrated that
alternative sites within the overlay district would provide
substantially more coverage to Hopkinton while closing most of
U.S. Cellular’s defined coverage gap.
The record supports Hopkinton’s conclusion that the Dimond
Hill site would not promote the public interest. U.S. Cellular’s
propagation maps show that the proposed Dimond Hill site would
provide more coverage to the neighboring City of Concord than to
Hopkinton.7 The propagation maps further demonstrate that the
construction of a tower on Irish Hill, a site within the Wireless
Telecommunications Facilities District, would provide coverage to
much of Hopkinton and would close or almost entirely close the
portion of U.S. Cellular’s coverage gap that currently exists
within Hopkinton’s borders.8 In addition, the propagation maps
7 Colored versions of U.S. Cellular’s propagation maps are marked as Exhibit 18 to its Motion for Summary Judgment. 8 During the public hearing that was held on June 2 0 , 2000, U.S. Cellular admitted that the proposed Dimond Hill site would provide more coverage to Concord than to Hopkinton. It further conceded that U.S. Cellular hoped to serve Hopkinton in the future using a tower that it was proposing to build in a neighboring community. See Hearing Transcript dated June 2 0 , 2000 at 41-42. Hopkinton Planning Board members referred to this testimony in expressing their concerns that U.S. Cellular’s proposal would not promote the public interest.
18 illustrate that the construction of a facility on Gould Hill,
which is located within the Wireless Telecommunications
Facilities District, would provide far greater service within
Hopkinton than the proposed Dimond Hill site. This evidence
contradicts U.S. Cellular’s assertion that the Dimond Hill site
would promote the public interest by providing better service
coverage to the area than any other alternative.9 Accordingly, I
find that the Board’s decision was reasonable and supported by
substantial evidence in the record.
In addition, I reject U.S. Cellular’s contention that there
was no substantial evidence in the record to support the Planning
Board’s decision that U.S. Cellular failed to demonstrate a
“particular and identifiable hardship or a specific circumstance”
that justified the issuance of a waiver. As stated in the Notice
of Decision, the Board found that there were reasonable
opportunities elsewhere in the community to construct a tower
that would provide service to the areas targeted by U.S.
Cellular, including Interstate 89 and Route 202. This conclusion
9 U.S. Cellular’s propagation maps showed that Putney Hill, a site located within the overlay district, would provide substantially more service within Hopkinton than the Dimond Hill site. U.S. Cellular provided uncontroverted testimony, however, that Putney Hill likely would not be a feasible alternative because it contains too many historic markers and properties.
19 finds substantial support in the record. Significantly, U.S.
Cellular’s own propagation maps indicate that the presence of a
tower on Irish Hill would close the service gap identified by
U.S. Cellular within the Town of Hopkinton. Indeed, at a hearing
before the Board, U.S. Cellular agreed that Irish Hill would
provide “pretty good coverage” and that it would be possible to
lease a site at that location. See Hearing Transcript dated June
2 0 , 2000 at 2 0 , 4 6 .
Although the evidence does demonstrate that neither Irish
Hill nor any other site within the Wireless Telecommunications
Facilities District would enable U.S. Cellular to close the
portion of its service gap that lies beyond Hopkinton’s borders,
nothing in the Hopkinton zoning ordinance or in the TCA requires
the local zoning authority to permit the construction of a
facility within its community in order to service neighboring
jurisdictions. See e.g., Ho-Ho-Kus, 197 F.3d at 70 (local zoning
decisions have the effect of prohibiting wireless communication
services if they result in significant gaps in service within the
jurisdiction); Sprint Spectrum L.P. v . Willoth, 176 F.3d 630,
643-44 (2d Cir. 1999)(same); Town of Lincoln, 107 F. Supp.2d at
117 (an effective prohibition can occur when a town’s zoning
20 policies result in incomplete wireless services “within the
town”). 10 As one of Hopkinton’s Planning Board members remarked
during deliberations on U.S. Cellular’s application, the specific
circumstance identified by U.S. Cellular during the public
hearings was the company’s need to provide coverage to a
substantial section of western Concord, including portions of
Routes 202 and 8 9 , as well as parts of Route 13 extending into
the neighboring Town of Bow. See Hearing Transcript dated August
3 , 2000 at 28-9. The Board’s refusal to accept this evidence as
demonstrating a “specific circumstance” warranting a waiver under
Hopkinton’s zoning ordinance was reasonably based on substantial
evidence in the record.11
10 U.S. Cellular challenges the defendant’s contention that U.S. Cellular should have considered sites in Concord, arguing that the TCA should begin and end within the Town’s borders. U.S. Cellular’s position is inconsistent with the relief it is seeking in this case, namely, an injunction that would allow it to construct a tower in Hopkinton in order to close a service gap that exists primarily within the City of Concord, beyond Hopkinton’s borders. 11 I reject Hopkinton’s argument that the Board’s decision was justified on the grounds that the Dimond Hill site was “vertically challenged” and would discourage co-location by other service providers. First, nothing in the Board’s decision suggests that this was a basis for its conclusion that U.S. Cellular had failed to demonstrate a particular hardship or specific circumstance. Second, nothing in the record other than speculative argument from the attorney for the opposing abutters supports this contention, which was contradicted by U.S.
21 C. The Effective Prohibition Claim
Hopkinton has moved for summary judgment with respect to
U.S. Cellular’s claim that the Town has violated the TCA by
effectively prohibiting U.S. Cellular from providing wireless
services to its customers. Hopkinton’s motion, as U.S. Cellular
argues, is premature.
Unlike the substantial evidence claim, which is decided by
the court on the basis of the record before i t , the court reviews
an effective prohibition claim de novo. See Town of Amherst, 173
F.3d at 16 n.7. Accordingly, the parties agreed that this court
would resolve U.S. Cellular’s substantial evidence claim on
summary judgment, but that U.S. Cellular would have an
opportunity to present new evidence regarding its effective
prohibition claim at a one-day trial that is scheduled for May
2001. This agreement is reflected in the Report of Parties’
Planning Meeting pursuant to Fed. R. Civ. P. 26(f) and Local Rule
26.1, which was approved as an order of the court on November 3,
2000. It is clear from the Order that the parties did not intend
to have the court resolve the effective prohibition claim until
after U.S. Cellular has been afforded the opportunity to present
Cellular’s presentation of substantial evidence regarding the Dimond Hill site’s attractiveness for co-location.
22 new evidence. Hopkinton’s motion, therefore, is denied.
D. The State Law Claim
Finally, U.S. Cellular moves for summary judgment on the
grounds that the Hopkinton Planning Board’s decision to deny its
application for a waiver was arbitrary and capricious and thus
violated New Hampshire law. Defendant Hopkinton cross-moves for
summary judgment on U.S. Cellular’s state law claim.
Under New Hampshire law, a reviewing court may reverse the
decision of a local planning board to deny an application “when
there is an error of law or when the court is persuaded by the
balance of probabilities, on the evidence before i t , that said
decision is unreasonable.” N.H. Rev. Stat. Ann. 677:15,V. See
also Condos East Corp. v . Town of Conway, 132 N.H. 431, 434
(1989); Durant v . Town of Dunbarton, 121 N.H. 352, 357 (1981).
U.S. Cellular asserts that the Planning Board record is wholly
insufficient to support the Town’s ruling on its application. As
described above, however, the Board’s decision was reasonably
based on the evidence before i t . Accordingly, Hopkinton is
entitled to summary judgment with respect to this claim.
Conclusion
For the reasons set forth above, U.S. Cellular’s motion for
23 summary judgment (document n o . 12) is denied, both with respect
to the substantial evidence claim and the state law claim.
Hopkinton’s cross-motion for summary judgment (document nos. 13 &
15) is granted with respect to the substantial evidence claim and
the state law claim, but denied with respect to the effective
prohibition claim.
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: April 9, 2001
cc: Steven E . Grill, Esq. Russell F. Hilliard, Esq.