Omnipoint Comm. v. Town of Amherst CV-97-614-JD 08/21/98 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Omnipoint Communications Enterprises, Inc.

v. Civil No. 97-614-JD

The Town of Amherst, New Hampshire

M E M O R A N D U M O P I N I O N

The plaintiff. Omnipoint Communications Enterprises, Inc.

("Omnipoint"), brought this action against the defendant, the

Town of Amherst, New Hampshire ("Town" or "Amherst"). The

plaintiff alleges that the defendant violated the Telecommuni­

cations Act of 1996 ("TCA"),

Stat. 56

(1996), in connection with the plaintiff's attempt to locate

personal communication service ("PCS") facilities in Amherst.

Before the court are the defendant's Rule 12 motion (document no.

17), the plaintiff's motion for summary judgment (document no.

6), and the defendant's cross-motion for summary judgment

(document no. 20).

Background1

On April 28, 1997, the federal government granted the

1As discussed more fully infra, the facts material to the resolution of this case are undisputed. plaintiff a license to provide PCS services in the New England

region, including southern New Hampshire.2 By the terms of the

license, the plaintiff must provide PCS services to 25% of the

population in the covered region by April 28, 2002, and 50% of

the population in the covered region by April 28, 2007. This

lawsuit stems from the defendant's denial of the plaintiff's

applications for special exceptions and variances for its

proposed PCS system in Amherst.

The Town of Amherst is a predominately rural community with

an historic village that is listed on the National Register of

Historic Places. Route 101 runs through the Town and is one of

the most important travel corridors in New Hampshire. The Town's

unigue topography limits the available design options for a PCS

system that will effectively serve both the residents and

commuters on Route 101. Amherst has attempted to preserve its

rural character and doing so is a stated goal of Amherst's Master

Plan.3

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 Amherst Master Plan is not part of the record before the court, but undisputed evidence in the record supports the conclusion that the goals of the Amherst Master Plan include preserving the Town's rural character, particularly along the

2 The TCA was signed into law on February 8, 1996. See Sprint

Spectrum L.P. v. Town of Easton,

(D. Mass.

1997). Among its other effects, the TCA imposed limits on the

ability of local governments "to make decisions regarding the

placement of wireless communications service facilities within

their borders."

(guoting BellSouth Mobility, Inc. v.

Gwinnett County,

(N.D. G a . 1996)). In an

effort to comply with the TCA's reguirements, in March 1997, the

defendant adopted a warrant article giving the members of the

Amherst Board of Selectmen (the "Selectmen") authority to use

Town property for siting telecommunications facilities. In

addition, Amherst adopted a zoning ordinance governing the

placement of PCS facilities within the Town.

The Amherst zoning ordinance does not allow telecommunica­

tions towers to be placed anywhere in the Town as of right. It

prohibits their siting in four zones, in which towers can only be

placed pursuant to a use variance, and provides for their siting

in four other zones through the grant of a special exception.4

northern entrance to the Town.

4Ihe four zones in which PWS facilities are prohibited without a use variance are as follows: Floodplain, Wetland Conservation District, Watershed Protection District, and Historic District. PWS facilities are allowed only by special exception in the following four zones: Residential/Rural, Northern Rural, Northern Transitional, and Industrial.

3 In order to qualify for a special exception, an applicant must

show that the site satisfies the purpose of the zoning ordinance,

which is as follows: "To prevent the development of a proposed

facility in areas that are unsatisfactory and will interfere with

the view from any public land, natural scenic vista, historic

building or district or major view corridor."

In addition, the zoning ordinance imposes setback require­

ments for telecommunications towers. Towers must be set back at

least five hundred feet from Route 101. They must also be set

back a distance equivalent to twice the height of the tower from

any residential property line and a distance equivalent to the

height of the tower from other kinds of property. In order to

place a 190-foot high PCS tower on a lot contiguous to Route 101

and meet the setback requirements, the parcel would have to be a

minimum of approximately fourteen-and-one-half acres.5 For

smaller towers, smaller lots could comply with the setback

requirements. To be exempted from the setback requirements, a

5The plaintiff has calculated the minimum required lot size to be as large as seventeen acres, but the theoretical minimum lot size is immaterial. Because of additional requirements of lot shape and topography, the actual size required for a suitable site could be substantially larger than the theoretical minimum. In addition, the record is silent as to the existence of available parcels of land that could accommodate a PCS system in a way that provides adequate coverage without the need for setback variances.

4 PCS provider must obtain a setback variance.

To qualify for a variance, an applicant must demonstrate the

following factors: (1) failing to grant the variance would cause

hardship to the applicant; (2) granting the variance would not

violate the spirit and intent of the ordinance; (3) granting the

variance would not diminish surrounding property values; (4)

granting the variance would result in a benefit to the general

public; and (5) granting the variance would result in substantial

justice to the applicant.

Pursuant to the warrant article, the Selectmen placed a

newspaper advertisement soliciting interest from PWS providers

who were considering locating a system in Amherst. On or about

April 1997, the Selectmen entered negotiations with the plaintiff

concerning the construction of PCS towers on Town land. The

digital technology used by the plaintiff provides clearer

reception than cellular service, but requires that towers be

closer together to provide coverage. The plaintiff designed its

system with input from the Selectmen to address issues about

which they expressed concern. In particular, because the

Selectmen sought to avoid a proliferation of towers and to

increase Town revenue, the plaintiff increased the height of its

proposed towers to allow colocation with other PCS providers.

The proposed towers would thus allow up to four other PCS

5 providers to utilize the same towers, and the Town would receive

a portion of the revenue from providers colocating on towers

situated on Town owned land.

After several months of negotiations, the plaintiff and the

Selectmen reached an agreement on a system design that utilized

190-foot-high towers on four sites, three of which were on Town-

owned land. On August 27, 1997, the Selectmen and the plaintiff

entered leases on the following three Town-owned sites: the

Bragdon Farm site, the municipal recycling center site, and the

public safety complex site. The plaintiff also planned to

utilize the privately owned Christ's Church site for the fourth

tower.6

The Bragdon Farm site consists of 59.3 acres that the Town

obtained, in part, with Conservation Commission funds. Approval

for a tower on the site under the current zoning ordinance

reguires a special exception because of its location in the

Northern Transition zone. Despite the site's large size, two

setback variances are reguired for the proposed tower site

because the defendant reguested that the plaintiff locate the

6During the course of the negotiation and approval process for its permanent PCS system, the plaintiff also sought and received permission to attach an antenna to the existing Pennechuck water tower at a fifth site to provide temporary service. The antenna is visually unobtrusive and the approval for its erection was prompt and uncontroversial.

6 tower behind a stand of old growth trees in proximity to the

property line to shield the tower from view. The tower could be

constructed on the lot without setback variances if it were

placed in open fields in the middle of the property, but then it

would be more visible.

The municipal recycling center site consists of twenty-seven

acres subject to restrictive covenants prohibiting commercial

development over much of the property and containing a capped

landfill which cannot support the construction of a tower.

Approval for a tower on the site reguires a special exception

because of its location in the Northern Rural zone. Given the

restrictions on the site, options for locating a tower are

limited. The proposed tower location reguires two setback

variances, one from Route 101 and one from an adjacent residence.

The public safety complex site is located within the Town's

Historic District and currently houses the police and fire

departments, which use an eighty-five to ninety-foot-high

communications tower located on the site. The proposed tower

would replace the existing tower and provide an upgrade of the

municipal police and fire communications systems funded by the

plaintiff. Approval for a PCS tower on the site reguires a use

variance because of the site's location within the Historic

District, where towers are not a permitted use. In addition, the

7 proposed tower location requires setback variances from two lot

lines and from Route 101. Finally, the project, like all

projects conducted within the Historic District, requires the

approval of the Amherst Historic District Commission ("HDC").

The Christ's Church site is a twenty-two acre parcel of

irreqular shape. Location of a tower on the site requires a

special exception because it is located in the Rural Residential

zone. The parcel's shape makes it impossible to locate the

proposed tower without a setback variance. The initial proposed

location invaded setbacks to abuttinq residences and, at the

residents' request, the plaintiff moved the proposed site so that

it only requires a setback variance from Route 101.

The license aqreements entered by the plaintiff and the

defendant on the Town-owned sites contain the followinq

disclaimer:

The [defendant] makes no warranties or representations reqardinq the proposed use and its compliance with local zoninq or planninq codes. Its is expressly understood that it shall be the sole responsibility of the licensee to procure any and all applicable approvals or permits that may be necessary to construct the contemplated facility on the licensed premises and abuttinq premises. The licensor shall not be responsible for procurinq or assistinq the licensee in obtaininq the same except to indicate that it has no objection to the qrantinq of the same. However, failure to obtain any permit or approval necessary to construct said tower shall be cause to permit the licensee to declare this aqreement terminated on the qivinq of 30 days written notice. Pl.'s Mem. of Law in Supp. of Mot. for Summ. J., Gawelek Aff.,

Exs. 3-5, Section 24. Despite the fact that they were not

required to do so, the Selectmen sent a letter to the ZBA

expressing their support of the plaintiff's applications for the

system as designed.

On September 3, 1997, the plaintiff submitted an application

for the public safety complex site to the HDC. On September 4,

1997, the plaintiff submitted applications for the required

special exceptions and variances on all four sites to the Amherst

Zoning Board of Adjustment ("ZBA").7 On September 15, 1997, the

HDC conferred in a non-public session. According to the

plaintiff, it determined at this point to oppose the public

safety complex application.

The ZBA met on September 16, 1997. ZBA Member Rowe moved

that the matter be deferred until December, so that more

information could be obtained, but this proposal was defeated.8

The plaintiff made a presentation to explain and support its

7The plaintiff's initial filing was supplemented and modified so that it was not complete until November 3, 1997. In addition, until November 12, 1997, the plaintiff provided conflicting information about the number of tower locations its proposed system would ultimately require.

8Rowe abstained throughout the ZBA's deliberations from consideration of the plaintiff's applications with respect to the public safety complex site because his wife is the Chair of the HDC. applications. It discussed the sites and the permits needed for

each site, answering questions from the ZBA members, who

requested further information. The meeting was then opened for

public comment. Eventually, the hearing was suspended until the

October meeting.

The HDC met in public session on September 18, 1997. The

plaintiff assumed, in keeping with the normal practice of the

HDC, that its HDC application would not be acted upon at that

time because the ZBA had not acted upon the underlying

applications. For that reason, the plaintiff did not attend the

HDC meeting. At the meeting, however, the HDC denied the

plaintiff's request for approval to install a tower at the public

safety complex site without the benefit of a presentation by the

plaintiff. The HDC members authored a letter to the ZBA

indicating their "unanimous opposition to the erection of a

communications tower" at the public safety complex site. Pl.'s

Mem. of Law in Opp'n to Mot. to Dismiss, Ex. A. The HDC denial

was predicated on members' determination that the proposed tower

"would not be visually appropriate," could not be screened from

view, would be "totally out of scale with anything else" in the

Historic District, and would not "preserve the distinctive

character and integrity of the district." Id.; Gawelek Aff., Ex.

12 .

10 The ZBA met again on October 21, 1997. In addition to the

prior applications, the plaintiff sought an appeal from the HDC's

denial relating to the public safety complex site. The plaintiff

provided additional information that had been reguested at the

September meeting and made a further presentation of the benefits

of its plan. ZBA Member Kirkwood raised the possibility that the

plaintiff might better meet the goals of the Amherst Master Plan

by having more, smaller towers. ZBA Member Rowe asked about

whether the applications met the Warrant Article reguirements for

being seen from the "natural scenic vista, historic building or

district or major view corridor" and whether the proposed towers

were compatible with the Master Plan. The meeting was opened for

additional public comment and because the matter was not

concluded, the hearing was continued until the ZBA's November

meeting.

The ZBA met again on November 18, 1997. ZBA Chairman

Buchanan opened the subject of the applications by noting that

the ZBA had received more information on the plaintiff's

proposals than on any other project in town, noting that the ZBA

had received petitions with almost two hundred signatures

reguesting that alternatives be found to towers, and reguesting

that public comment be limited to new issues not discussed in

previous meetings. After extensive additional public comment, at

11 the end of the meeting the ZBA found that the applications

constituted a regional impact pursuant to the New Hampshire

regional impact statute, N.H. Rev. Stat. Ann. ("RSA") § 36:56

(Supp. 1997), and deferred deliberation and decision on the

applications until the December meeting to allow input on the

regional impact issue. The ZBA announced that there would be no

further presentation by the plaintiff and no further public

testimony.

The plaintiff filed its initial complaint in this action on

December 8, 1997. It alleged a violation of the TCA based on the

defendant's delay in deciding on its applications. The ZBA met

again on December 16, 1997. At that time, it briefly discussed

the issue of regional impact and began deliberations on the

applications. ZBA Member Rowe submitted typewritten motions that

had been prepared prior to the meeting that recommended the

denial of all the applications. The applications, including the

appeal from the HDC decision, were all denied unanimously. At

the time, the written record included the minutes of the

meetings, the motions prepared by ZBA Member Rowe, and various

materials submitted both by the plaintiff and by members of the

public.

On January 2, 1998, the plaintiff amended its complaint to

encompass the ZBA's denial of its applications. It also

12 requested that the ZBA reconsider its denial of the applications

and grant a rehearing. On January 8, 1998, the plaintiff moved

for summary judgment. The ZBA held a special hearing on January

12, 1998, at which it decided to let the plaintiff address points

raised in the application for rehearing.

On February 17, 1998, the ZBA held the rehearing of the

plaintiff's applications. The plaintiff elected not to adduce

additional evidence in support of its application, pointing out

that the ZBA had not addressed any additional questions to it and

resting on the record that had been developed. The ZBA expressed

dissatisfaction that the plaintiff had sought a rehearing and

failed to come forward with more information. It then accepted

additional evidence from the public.

Public comment on the applications over the course of the

meetings was, on balance, overwhelmingly negative and expressed

numerous concerns. Among other issues, residents questioned the

appropriateness of the applications, expressed a desire to delay

the applications and slow down the process, expressed concern

about a possible diminution of the value of surrounding property,

questioned whether Amherst residents needed the towers or whether

the plaintiff was merely attempting to serve the transient

commuters on Route 101, and expressed a preference that the

plaintiff employ either a different technology entirely or a

13 means of making the proposed towers less obtrusive. The

plaintiff attempted to respond to these concerns. For example,

in response to a suggestion that the plaintiff use shorter

"artificial tree" type towers which would be less visually

obtrusive, the plaintiff responded that this would defeat the

goal of colocation espoused by the Selectmen and cause a

proliferation of towers, which it believed the Town did not want.

In many instances, the plaintiff indicated that the alternatives

reguested by residents were not technologically feasible for

deployment in Amherst given its topography.9

One serious point of contention concerned the issue of

whether the proposed towers would have a deleterious effect on

surrounding property values. The plaintiff commissioned a study

of property values in other communities by Craft Appraisal

Associates, Ltd. The study indicated that although the limited

data made it difficult to draw reliable conclusions, there was no

evidence of decreased property values because of towers in other

communities, no appraiser had lowered an appraisal because of a

nearby tower, and no resident had asked for an abatement of real

90n November 24, 1997, Amherst held a workshop with a telecommunications consultant whose opinion as to the options for deploying PWS services in Amherst largely confirmed the plaintiff's opinion that the feasible options for design of a PCS system in Amherst were limited.

14 estate taxes because of the installation of a tower in the

vicinity. In response, Amherst real estate brokers submitted

letters criticizing the results of the study and opining, based

on their experience and common sense, that the existence of

towers would have a negative effect on surrounding property

values.

On March 5, 1998, the ZBA deliberated on the motion for

rehearing. On March 16, 1998, it issued its final denial to the

plaintiff with a more extensive written opinion that incorporated

the initial, shorter denial. The ZBA found generally that the

plaintiff had failed adeguately to support its applications, to

research other technologies, or to demonstrate that the proposed

towers were anything more than the most financially expedient

solution for the plaintiff. It also found that the plaintiff's

primary interest was in providing service "for the transient

public along the Route 101 corridor, and in such a way that

minimizes its cost and maximizes its profit without consideration

to spirit and provisions [sic] of the Amherst Zoning Ordinance."

Def.'s Objection to Pl.'s Mot. for Summ. J., Ex. 2D, Attach. 1

("Decision"), at 12. The ZBA also criticized and rejected the

conclusion of Craft Appraisal's report opining that there would

be no diminution of property values connected with the towers.

By "applying the Board's common sense" to the conflicting

15 evidence on this point, the ZBA concluded that the towers would

have a detrimental effect on nearby residential property. Id. at

10 .

The written opinion also made findings with respect to the

specific sites proposed. With respect to the Bragdon Farm site,

the ZBA made the following findings: no evidence in the record

established that this area is not suitable for uses for which it

is currently zoned; no evidence in the record established that a

tower cannot be placed within the setback reguirements of the

site; the proposed tower would be visible from various roads in

Amherst and Bedford, including Route 101; the proposed tower did

not "meet the spirit and intent of the Amherst Master Plan to

maintain the rural character of the northern entrance to the

Town"; and the proposed tower would be contrary to the specific

intent of the zoning ordinance to "prevent the development of a

proposed facility in areas that are unsatisfactory and will

interfere with the view from any public land, natural scenic

vista, historic building or district or major view corridor."

Id. at 5. With respect to the municipal recycling center site,

the ZBA found that the applications lacked detail and that the

land is suitable for the use for which it is zoned and currently

used, a municipal landfill. With respect to the public safety

complex site, the ZBA made the following findings: the site can

16 be and is used for purposes other than the requested tower; the

plaintiff failed to present evidence that a denial of the

variance renders the property unsuitable for any permitted use;

the plaintiff failed to present evidence that the spirit and

intent of the Master Plan would be maintained by the grant of the

variance; the tower would be visible from locations within and

outside the Historic District; the plaintiff failed to present

evidence that the proposed tower meets the objective of

maintaining the rural character of the Town by siting facilities

where they will not interfere with the view of public and private

land; the plaintiff failed to demonstrate that the proposed tower

would not cause a diminution in the value of the surrounding

property; "[t]he tower configuration is found not to be in the

public interest" because "the Town has spent significant funds

maintaining the rural and attractive entrance to, and character

of the Town, along Route 101" which would be undermined by the

proposed tower; and " [c]onflicting evidence was offered regarding

whether technology is available to allow telecommunications

facilities to be installed in Amherst in keeping with the Town

ordinances."10 Id. at 8. With respect to the Christ's Church

10In regard to the appeal of the HDC denial, the ZBA found that the plaintiff's objections to the HDC denial were unrelated to the criteria relevant to the HDC decision, which were correctly applied by the HDC.

17 site, the ZBA found that the applications failed to establish

that the proposed site was unsuitable for permitted uses and that

the proposed tower would be visible from Route 101.

The rationale of the ZBA's rejection of the proposed towers

is best exemplified by the following statement:

Siting of these enormous towers in full view of the traveling and local populace would adversely impact the general welfare of the Town and particularly the residents nearby. These behemoths would be a blight upon a pastoral and rural area which has been and hopefully will continue to be a source of comfort and relaxation for its inhabitants who have chosen to live in and maintain this scenic and bucolic atmosphere.

Id., Attach. A, at 4. The ZBA's denial seems to indicate that

the plaintiff must screen any proposed towers entirely from view,

establish that the only viable use for a parcel is as a site for

a PCS tower, and prove that a tower would not cause a diminution

in surrounding property values in order to secure approval of

future PCS tower applications.

On March 27, 1998, the plaintiff filed a second amended

complaint extending its claims of a TCA violation to the ZBA's

denial on rehearing. Since that time, the defendant has filed

both a Rule 12 motion and a cross-motion for summary judgment.

Discussion

The TCA was signed into law on February 8, 1996. See Sprint

18 Spectrum L.P. v. Town of Easton,

(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 telecommunications 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.

(guotations, citations, and alterations omitted).

Subsection 7 of

is captioned "Preservation

of local zoning authority." See

(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

19 (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 eguivalent services; and

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(ii) A State or local government or instrumentality thereof shall act on any reguest for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the reguest is duly filed with such government or instrumentality, taking into account the nature and scope of such reguest.

(iii) Any decision by a State or local government or instrumentality thereof to deny a reguest to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

(7)(A)- (B) (West Supp. 1998). 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 Board of LaGrange, No. 98

CIV. 08 6 2 (CLB),

(S.D.N.Y. May 19, 1998)

20 (holding provisions of New York State Environmental Quality

Review Act invalid as preempted by TCA) (quoting Easton,

). Although the precise dimensions of the TCA's

general statutory prohibitions have not been defined, the TCA

undoubtedly prohibits certain acts such as the adoption of

successive moratoria to effectively deny applications, see Sprint

Spectrum L.P. v. Jefferson County,

(N.D.

Ala. 1997), and the denial of applications based only on

generalized concerns, see, e.g., Easton,

;

BellSouth Mobility Inc. v. Gwinnett County, 944F. Supp. 923, 928

(N.D. Ga. 1996) .

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 Zoninq Bd. of

Adjustment. No. 1:97CV01246,

(M.D.N.C. June 12,

1998), stay denied by

(M.D.N.C. July 17, 1998);

Omnipoint Communications, Inc. v. Zoninq Hr'q Bd. of East

Pennsboro Township,

(M.D. Pa. 1998); Gearson &

Co. v. Fulton Countv, No. CIV.A.1:97CV3231WBH,

(N.D. G a . Apr. 23, 1998); Cellco Partnership v. Town Plan and

Zoninq Comm'n of Farmington,

,

(D. Conn. Apr. 13, 1998); Sprint Spectrum L.P. v. Willoth,

(W.D.N.Y. 1998); Smart SMR of N.Y., Inc. v. Zoninq

21 Comm'n of Stratford,

(D. Conn. 1998); Virginia

Metronet, Inc. v. Board of Supervisors of James City County, 98

(E.D. Va. 1998); AT&T Wireless Servs. of Fla., Inc.

v. Orange County,

(M.D. Fla. 1997) ("Orange

County II"); AT&T Wireless Servs. of Fla, v. Orange County,

(M.D. Fla. 1997) ("Orange County I"); Century

Cellunet of S. Mich., Inc. v. City of Ferrvsburg,

(W.D. Mich. 1997); Sprint Spectrum L.P. v. Zoning Hr'g

Bd. of East Nottingham Township, No. CIV.A.97-1837,

(E.D. Pa. Oct. 15, 1997); Easton,

; Sprint

Spectrum L.P. v. Town of Farmington, No. 3:97 CV 863 (GLG),

(D. Conn. Oct. 6, 1997); AT&T Wireless PCS, Inc. v.

Citv Council of Virginia Beach,

(E.D. Va. 1997);

OPM-USA-INC. v. Board of Countv Comm'rs of Brevard Countv, N o .

97-4 08-CIV-ORL-19,

(M.D. Fla. Aug 26, 1997);

Jefferson County,

; Illinois RSA No. 3 v. County

of Peoria,

(C.D. 111. 1997); Western PCS II

Corp. v. Extraterritorial Zoning Auth.,

(D.N.M.

1997); BellSouth Mobility,

; Sprint Spectrum,

L.P. v. Citv of Medina,

(W.D. Wash. 1996). To

date, neither the Circuit Courts nor the District Court for the

District of New Hampshire has ruled upon the TCA. Against this

background, the court considers the specific arguments presented

22 by the parties in the defendant's Rule 12 motion and the parties'

cross-motions for summary judgment.

I. Defendant's Rule 12 Motion

On April 17, 1998, the defendant filed a motion for judgment

on the pleadings seeking to dismiss the plaintiff's claims.11

Pursuant to Fed. R. Civ. P. 12(c), such a motion will be granted

if, accepting all of the plaintiff's factual averments contained

in the complaint as true and drawing every reasonable inference

helpful to the plaintiff's cause, "it appears beyond doubt that

the plaintiff can prove no set of facts in support of [its] claim

which would entitle [it] to relief." Rivera-Gomez v. de Castro,

(1st Cir. 1988). The court's inguiry is a

limited one, focusing not on "whether a plaintiff will ultimately

prevail but whether [it] is entitled to offer evidence to support

the claims." Scheuer v. Rhodes,

(1974) (motion

to dismiss under Fed. R. Civ. P. 12(b)(6)). Great specificity is

not reguired to survive a Rule 12 motion. "[I]t is enough for a

11The defendant styled its motion as a "Motion to Dismiss" but did not specify the provision of the Federal Rules of Civil Procedure under which it seeks to have the plaintiff's case dismissed. Because the defendant answered the plaintiff's second amended complaint on April 10, 1998, the pleadings closed under Fed. R. Civ. P. 7(a) as of that date. The court therefore treats the defendant's motion as a motion for judgment on the pleadings. See Fed. R. Civ. P. 12 (c) .

23 plaintiff to sketch an actionable claim by means of 'a

generalized statement of facts.'" Garita Hotel Ltd. Partnership

v. Ponce Fed. Bank,

(1st Cir. 1992) (quoting 5A

Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 1357 (1990)).

In support of its motion, the defendant argues that the

court lacks jurisdiction under the TCA to hear claims against the

Selectmen. It contends that the TCA limits the exercise of the

court's jurisdiction to the review of zoning decisions and the

only body that exercised zoning authority in this case was the

ZBA. The defendant also requests that the court dismiss all

claims arising under

(c)(7)(B)(ii) because the

Town acted on the plaintiff's applications in a reasonable period

of time. The plaintiff responds that there is only one defendant

in this case, the Town of Amherst, and urges the court to reject

the defendant's attempt to limit the court's review to the

actions of the ZBA. The plaintiff also contends that its TCA

claim should not be dismissed, inter alia, because the time

within which the defendant acted is an integral part of its claim

that the defendant's actions, taken together, violated the TCA.

As the plaintiff has noted, the Town of Amherst is the only

defendant named in this action. The court finds no authority for

the defendant's effort to separate the actions of the Selectmen

24 from the actions of the ZBA where the Town is the named defendant

and the acts of both the Selectmen and the ZBA are alleged to be

part of the TCA violation.12 To adopt such an approach would

impermissibly allow local officials acting in concert to impose

conflicting reguirements upon a telecommunications provider that,

while not violating the TCA individually, could have the combined

effect of prohibiting the provision of PWS services. The court

holds that the Town is a proper defendant in this action.

Although it is true that the actions of the ZBA, which

denied the formal applications for the proposed towers and upheld

the HDC's rejection of the public safety complex site, will be of

primary importance to the court's inguiry, the actions of other

Town authorities are relevant to the issue of whether the Town

violated the TCA. As such, the court may properly review all of

the plaintiff's dealings with Town officials pertinent to the

denial of its applications for PCS facilities, whether they be by

the Selectmen, the HDC, or the ZBA. Therefore, the court will

neither "dismiss" the Selectmen, who were never defendants in the

12The plaintiff has also asserted that the actions of the HDC constitute part of the alleged TCA violation. The court notes that the defendant's motion to dismiss makes no attempt to characterize or accommodate the HDC's denial of the public safety complex application within its attempted distinction between the actions of the Selectmen and the ZBA, further highlighting the problematic nature of such a distinction in this case.

25 case, nor limit its review solely to the actions of the ZBA.

The defendant's attempt to separate an alleged TCA violation

based on

(c)(7)(B)(ii) from the rest of the

plaintiff's complaint is also unjustified. The plaintiff's

second amended complaint contains only one count, which details

several ways in which the defendant is alleged to have violated

the TCA. Even assuming arguendo that time taken by the ZBA to

reach its decision does not itself constitute a violation of

(c)(7)(B)(ii), the timing and circumstances

surrounding the ZBA decision are still relevant to the

plaintiff's claim that the defendant violated the TCA by having

the effect of prohibiting PCS services. Thus, the defendant has

not shown its entitlement to judgment on the pleadings on the

plaintiff's claim of unreasonable delay.

For these reasons, the defendant's Rule 12 motion (document

no. 17) is denied.

II. Cross-Motions for Summary Judgment

In addition to the defendant's Rule 12 motion, both parties

have moved for summary judgment. 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.,

(1st

26 Cir. 1993) (quoting Wynne v. Tufts Univ. Sch. of Med.,

(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). 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. Co.,

(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.13

The cross-motions present the following five issues: (1)

the scope of the court's jurisdiction and proper extent of the

court's review; (2) whether the defendant acted on the

plaintiff's applications in a reasonable time; (3) whether the

defendant's denial of the plaintiff's applications constituted a

13Furthermore, because the court is required to apply the "traditional means of reviewing agency actions," which consists of relying on a written decision to analyze the defendant's rationale and determine whether it is supported by substantial evidence, a serious question exists as to whether TCA cases of this kind are ever appropriate for resolution by a trial. See, e.g.. Smart SMR,

.

27 written decision supported by substantial evidence contained in a

written record; (4) whether the defendant's denial of the

plaintiff's applications prohibited or had the effect of

prohibiting the provision of PCS services in Amherst; and (5) if

the defendant's acts violated the TCA, what the appropriate

remedy would be. The court considers these issues seriatim.

1. The Court's Jurisdiction and Proper Scope of Review Under the TCA

The defendant has reiterated its argument that the court

lacks jurisdiction to consider the acts of the Amherst Selectmen

in the summary judgment context. However, the argument fails on

summary judgment for the same reasons. See Section I, supra.

Even assuming arguendo that the acts of the Selectmen were not

themselves zoning decisions, they were part of the course of

conduct engaged in by various Town entities that culminated in

the denial of the plaintiff's applications, which the defendant

concedes is a zoning decision that may properly be reviewed under

the TCA. Nothing in the plain language of the TCA or the cases

cited by the defendant suggests that the court is precluded from

considering the entire course of conduct leading up to the denial

of the applications. Towns act through their various officials,

boards, and commissions. The court may properly consider all of

28 the acts of the defendant in determining whether the denial of

the plaintiff's applications violated the TCA.

2. Action Within Reasonable Time

The TCA provides, in part, the following:

A State or local government or instrumentality thereof shall act on any reguest for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the reguest is duly filed with such government or instrumentality, taking into account the nature and scope of such reguest.

(7)(B)(ii) (West Supp. 1998). This provision

prevents both unreasonable delay in deciding the merits of

individual applications and unreasonable delay in processing

applications in general through such technigues as the

institution of moratoria. See Farmington,

, at *6

(moratorium); Jefferson County,

(series of

moratoria). The prohibition against delay is not absolute and no

specific time period within which to pass on applications is

prescribed; the limit is one of reasonableness under the

circumstances. Compare, e.g.,

(series of moratoria invalid)

with Medina,

(six-month moratorium on

granting permits adopted five days after enactment of TCA to

allow defendant to gather information and process applications

does not violate TCA).

29 In this case, the plaintiff began negotiations with the

Selectmen in approximately April, 1997. The negotiations were

concluded on August 27, 1997, when leases were entered into on

the proposed tower locations. On September 4, 1997, the

plaintiff submitted applications to the ZBA that were

subseguently expanded and revised. The ZBA denied the

applications on December 16, 1997. The plaintiff reguested a

rehearing on January 2, 1998. The ZBA allowed the plaintiff's

reguest for a rehearing on January 12, 1998. It held the

rehearing on February 17, 1998, deliberated on March 5, 1998, and

issued its final denial on March 16, 1998.

The defendant urges that it acted on the plaintiff's

applications within a reasonable period of time. In support of

this claim, it points to the fact that approximately three and

one-half months elapsed from the time the plaintiff filed its

applications with the ZBA until those applications were denied.

The plaintiff responds that the additional time which the

plaintiff spent engaged in negotiation with the Selectmen should

be considered as part of the total time to reach a decision. In

addition, the plaintiff urges that three and one-half months is

unreasonable because it exceeds the amount of time normally

reguired for ZBA action. It asserts that the ZBA erred by

allowing extensive public comment and, at a late stage in the

30 proceedings, opening the process for a consideration of regional

impact.

The plaintiff's argument that time spent negotiating with

the Selectmen should be considered as part of the total when

determining whether the defendant took an unreasonable time to

act on the plaintiff's applications overlooks the fact that it

would have been reguired to spend time negotiating with any

private landowners who it might have approached to seek the

siting of PCS facilities in Amherst. Evidence in the record

suggests that the plaintiff usually spends six months engaged in

such an initial negotiation and system design process; here it

concluded negotiations with the Selectmen in approximately five

months. Although at some point a municipality might make

preliminary negotiations so protracted that they constitute a

clear effort to delay or derail the application process, nothing

in the facts of this case suggests that this was the intent or

effect of the timing of negotiations between the plaintiff and

the Selectmen.

In support of its claim, the plaintiff introduced evidence

suggesting that the ZBA normally attempts to resolve applications

within ninety days of their submission. The plaintiff's argument

that the three and one-half months the defendant took to deny its

applications itself constitutes an unreasonable amount of time

31 because it exceeded the normal ninety-day period, however, is

inapposite. The reasonable time requirement does not present an

absolute deadline in which to pass on PWS applications, for what

constitutes a reasonable time in a given case is measured "taking

into account the nature and scope of such request."

(7)(B)(ii). The ZBA chairman noted that the ZBA had

received more information relating to the plaintiff's

applications than any previous applications. In addition, the

volume of public response to the applications was extremely high.

The court must consider both of these factors in determining

whether the ZBA unreasonably delayed making its decision.

Certain actions and decisions of the ZBA undoubtedly

extended the decision-making process, but the record does not

indicate that these actions were improper in intent or effect.14

If the ZBA had decided sooner to hear input on the possible

regional impact of the applications or had further curtailed the

opportunity for public comment on the applications, a decision

could have been reached more quickly. At some point, acts such

as raising additional procedural hurdles well after the process

has begun and providing expansive opportunity for repetitious

14Indeed, some delay in the final resolution of the applications appears to have been occasioned by the plaintiff itself, such as its supplementation of its apparently incomplete initial applications and its request for a rehearing.

32 public comment can create an unreasonable delay. However, there

is no indication that such a point was reached in this case.

Given the complexity of the applications, neither the time added

to the process by the challenged ZBA actions nor the total time

required by the ZBA to make its decision violated the requirement

of

(7) (B) (ii) .

The conclusion that the ZBA acted on the plaintiff's

applications in a reasonable time given the nature and the scope

of the requests, however, does not end the relevance of the

duration of the decision-making process to the question of

whether the defendant violated the TCA. As discussed more fully

in subsection 4 infra, the chronology of the plaintiff's dealings

with the defendant is relevant to the question of whether the

defendant prohibited or had the effect of prohibiting the

provision of PCS services.

3. Written Decision Supported by Substantial Evidence Contained in 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.

(7) (B) (iii) (West Supp. 1998) . The substantial

33 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,

(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,

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,

, and Easton, 982 F. Supp. at 52 ("[BJecause 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 quotation omitted), with Gearspn,

(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).

Although the nature of the inquiry into whether a denial is

supported by substantial evidence is highly fact-specific,

certain general principles have been established. To withstand

34 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,

; BellSouth

Mobility,

. As one court has stated:

[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,

.

In this case, the plaintiff contends that the defendant

violated the TCA because the ZBA's decision to deny its

applications was not supported by substantial evidence contained

in a written record. The defendant urges that its decisions were

supported by substantial evidence. The rationale for the initial

ZBA denial was limited to the text of the motions proposed by ZBA

35 Member Rowe. After rehearing and while this case was pending,

the ZBA supplemented its denial with additional written findings.

Because the plaintiff itself reguested rehearing, the court

concludes that the entire written record created through the

final denial issued on March 16, 1998, may be properly considered

as part of the denial. But cf. Winston-Salem,

(rejecting written decision produced after appeal had been

taken of one-word, rubber-stamped denial as pretextual). The

court holds that the ZBA denial satisfies the reguirements of a

written decision based on a written record.

The court is therefore presented with the guestion of

whether the ZBA denial was based on substantial evidence. The

issue is complicated by the fact that the ZBA clearly relied on a

number of impermissible factors in denying the applications. For

example, the denials rely in part on the ZBA's determination that

the plaintiff failed to adeguately support the applications and

to demonstrate entitlement to a variance by showing that the

proposed tower sites could not be used for anything other than a

telecommunications tower. Not only does such reasoning represent

an impermissible attempt to shift the burden of proof back onto

the applicant, see Easton,

(noting that local

laws placing burden of proof on PWS provider to support

application are preempted by TCA), it also presents an

36 insurmountable burden for any applicant. The court takes notice

of the fact that no applicant will ever be able to demonstrate

that the only viable use for a given property is to site a PWS

tower. In light of the ZBA Chairman's recognition that the

plaintiff had submitted more information in support of its

applications than had been previously submitted for any other

project, the ZBA's determination that the applications were

inadeguately supported appears to be a pretext masking hostility

toward PWS towers. See OPM-USA,

(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); see also

Orange Countv I, 982 F. Supp. at 862.15

Despite the ZBA's consideration of and reliance on

impermissible factors in denying the applications, its denial

also relies on reasons that it could permissibly consider, such

as the effect of the proposed towers on neighboring property

15Additional examples of the ZBA's reliance on improper considerations include its finding that the plaintiff was more concerned about providing PCS service to the commuters on Route 101 than the residents of Amherst and its determination that the plaintiff had failed to research adeguately other technologies.

37 values. The court need not determine, however, whether any of

the reasons advanced by the defendant for the denial of the

plaintiff's applications constitute substantial evidence

sufficient to justify the denial. Whether or not the denial was

supported by substantial evidence, it has the effect of

prohibiting the provision of PCS services, as discussed in

subsection 4 infra.

4. Effective Prohibition of PWS Services

The TCA provides, in part, the following:

(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—

(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.

(7)(B)(i)(II) (West Supp. 1998). The TCA does

not define the term "have the effect of prohibiting," but some

courts have considered the meaning of the provision. A local

government may, in some cases, deny an application without having

the effect of prohibiting the provision of PWS services, see

Virginia Beach,

, but the circumstances

surrounding a single denial may provide sufficient evidence from

38 which to conclude that the local government has a policy with the

effect of prohibiting the provision of PWS services, see Smart

SMR,

. In addition, a town can, through delay,

violate this provision without ever having denied a single

application. See Farmington,

, at *6; Jefferson

County,

. Denials that "mask hostility to

wireless communications facilities," Orange County I, 982 F.

Supp. at 8 62, and denials where "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,]" OPM-USA,

, violate the TCA because they amount to a policy

the effect of which is to prohibit the provision of PWS services.

On the other hand, denial of a single application or set of

applications may be proper where PWS service is already

established and the applications seek only to enhance the

existing service. See, e.g.. Century Cellunet,

.16 Denial may also be proper where the record itself or the

governmental authority making the denial makes clear how the

failure of the system to meet approval can be remedied in future

16Such denials may, on the other hand, unreasonably discriminate between providers of functionally eguivalent services in violation of

(7)(B)(i)(I). In this case, the plaintiff has not claimed that the defendant has violated this provision of the TCA.

39 applications. See, e.g., Willoth,

(denial of

applications for system of three towers upheld where defendant

demonstrated by substantial evidence that one centrally located

tower could provide same level of service). In both cases, the

rationale for the denial demonstrates that the local government

entity is not opposed to towers in general, but instead holds

legitimate objections to the specific proposal before it.

Here, the defendant's zoning ordinance does not allow the

placement of PWS towers anywhere in the Town as of right even

though it does not expressly prohibit all PWS facilities. It is

evident, however, that the zoning ordinance, as written and

applied, creates serious obstacles to gaining approval for such

facilities. The plaintiff alleges that the defendant's denial of

its applications and the rationale underlying the denial violate

the TCA because they have the effect of prohibiting the provision

of PCS services in Amherst. The defendant asserts that its

actions have not had such an effect and were limited to a proper

rejection of the applications before it. It has invited the

plaintiff to seek approval for new applications if it so desires.

The invitation comes too late and without any indication that the

plaintiff would fare any better.

In addition to the impermissible reasons relied on by the

ZBA for its denial already discussed in subsection 3, supra, the

40 ZBA rejected the plaintiff's applications by relying on a

standard that could be used to deny any subsequent applications

that the plaintiff might bring. Among other things, the ZBA

relied on general aesthetic concerns by finding that the proposed

towers would "interfere with the view from any public land,

natural scenic vista, historic building or district or major view

corridor," and that "[t]hese behemoths would be a blight upon a

pastoral and rural area which has been and hopefully will

continue to be a source of comfort and relaxation for its

inhabitants who have chosen to live in and maintain this scenic

and bucolic atmosphere." Decision at 5; id., Attach. A, at 4.

The denial provides neither an indication as to how the plaintiff

could overcome such amorphous concerns on future applications nor

any guidance as to where it might permissibly locate towers to

construct a functioning PCS system.

The court notes that aesthetic concerns about the appearance

of towers will always be an issue, for "it would be a rare event

to be able to buffer a communications tower so that it is not

visible at all." OPM-USA,

. Although

aesthetic considerations may be properly taken into account by

local governments in some circumstances, they cannot be used to

exclude PWS towers entirely. The practical and legal effect of

what Congress has done by enacting the TCA is to ensure that

41 telecommunications towers will become part of the American

landscape. The nature and character of the ZBA's denial here

provides no guidance as to how the plaintiff might reasonable

satisfy the ZBA's concerns, no indication that the next set of

applications would fare any better, and ample reason to believe

that it probably would not. The court finds that the ZBA has

evinced a hostility toward the erection of PWS towers in Amherst,

that such hostility amounts to a policy that has the effect of

prohibiting PWS service in Amherst, and that the defendant's

denial of the plaintiff's applications therefore violates the

TCA.17

5. Remedy

Given the court's conclusion that the defendant violated the

TCA in its denial of the plaintiff's applications, the court must

consider the issue of an appropriate remedy to correct the

violation. For whatever reason. Congress when it enacted the TCA

did not specify what the remedy for a violation of its provisions

would be. See BellSouth Mobility,

9. The two

basic choices of remedy employed by courts after finding a TCA

17Because the court has concluded that the defendant's denial violated

(7) (B) (i) (II) for the reasons stated, it need not consider the plaintiff's argument that the defendant violated the TCA in several additional respects.

42 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,

; BellSouth Mobility,

.18

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,

; Western PCS,

. In addition to the statutory reguirement that local

governments act on applications within a reasonable time, see

(7)(B)(ii), the TCA also directs the court to

resolve TCA claims on an expedited basis, see

(c)(7)(B)(v). Remand is particularly inappropriate where

the case would go back before a local government that has already

18Despite 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,

& n.25 (granting mandatory injunction); cf., e.g.. Western PCS,

(granting mandamus); Jefferson County,

(same); BellSouth Mobility,

(same). The effect of mandatory injunctive relief, however, is the same as the effect of a writ of mandamus. See Virginia Beach,

.

43 demonstrated hostility toward the location of PWS facilities

within its borders. See Virginia Beach,

.

Here, the defendant has urged that mandatory injunctive

relief would be inappropriate because the plaintiff's site review

application has not been denied and because the plaintiff has not

applied for any other permit from the town. It suggests that, to

the extent that it has violated the TCA, a remand would be

appropriate. The plaintiff argues that, given the ZBA's

hostility to its applications, mandatory injunctive relief is

appropriate.

The court concludes that remanding the case to the defendant

would be inconsistent with the purposes of the TCA. The ZBA has

already denied the plaintiff's applications after extensive

consideration. The denial was based, at least in part, on

impermissible considerations that evince a hostility toward the

construction of PCS towers in Amherst. The Town has had its

opportunity to address the plaintiff's applications 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 applications. The TCA reguires an expeditious

determination of these matters and allows municipalities an

initial opportunity to work with telecommunications providers at

finding a mutually acceptable location for PWS facilities, but

44 discourages giving municipalities that violate its terms a second

chance. See Virginia Beach,

. Therefore,

the court holds that mandatory injunctive relief ordering the

defendant to approve the applications and remove any barriers to

the construction of the proposed towers is the appropriate

remedy.

The court notes that the license agreements entered by the

plaintiff and the defendant, through the Selectmen, for the

proposed tower sites on Town-owned land have, by their terms,

terminated. The agreements provided for an initial 120 day

period from their execution within which the plaintiff had to

procure necessary approvals or permits. It also allowed the

plaintiff to extend this period for an additional 120 days but

provided that the failure of the plaintiff to obtain approval

within the extended period would terminate the agreement. The

plaintiff never obtained the ZBA's approval. The 240-day period

did not expire, however, until this case was pending and the ZBA,

an instrumentality of the defendant, had already denied the

plaintiff's applications initially and on rehearing. The court

has determined that the ZBA's denial was unlawful and was not the

fault of the plaintiff. Because the ZBA's denial was null and

void, the relief herein granted relates back to December 16,

1997, the date of the initial unlawful denial. As of that date

45 the licensing agreements were in effect and therefore shall

remain effective as if the ZBA had approved the plaintiff's

applications on that date.

Conclusion

The plaintiff is entitled to summary judgment because the

defendant's denial of its applications had the effect of

prohibiting the provision of PWS services in the Town of Amherst

contrary to

(7)(B)(i)(II). A fortiori, the

defendant is not entitled to summary judgment. The defendant's

Rule 12 motion (document no. 17) and summary judgment motion

(document no. 20) are denied and the plaintiff's summary judgment

motion (document no. 6) is granted.

O R D E R

The decisions of the defendant denying the plaintiff's

applications for variances on the Bragdon Farm site, the

municipal recycling center site, the public safety complex site,

and the Christ's Church site are null and void. The court orders

the defendant, its officers, boards, commissions, departments,

and instrumentalities to approve the plaintiff's applications and

remove any further impediments to the plaintiff's construction of

the proposed towers, including the issuance of any reguired

46 permits, within forty-five days of the date of this order, The

clerk is ordered to close the case.

SO ORDERED.

Joseph A. DiClerico, Jr, District Judge

August 21, 1998

cc: Steven E. Grill, Esguire Robert D. Ciandella, Esguire

47