ATC Realty v . Town of Kingston, NH CV-00-535-JM 11/08/01 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

ATC Realty, LLC and SBA Towers, Inc.

v. Civil N o . 00-535-JM Opinion N o .

Town of Kingston, New Hampshire

O R D E R

Plaintiffs ATC Realty, LLC and SBA Towers, Inc.

(collectively, “SBA/ATC”) seek an order directing the Town of

Kingston, New Hampshire (“Kingston” or “Town”) to issue SBA/ATC

all permits and approvals necessary for the construction of 180-

foot wireless telecommunications tower on property owned by Heidi

J. Heffernan and located at 19 Marshall Road in Kingston (the

“Heffernan Site”). SBA/ATC filed the present action after the

Kingston Planning Board denied their application for a

conditional use permit to construct the tower on the Heffernan

Site, but granted a conditional use permit to American Tower

Corporation (“American Tower”), the plaintiffs’ competitor, to

construct a 180-foot wireless telecommunications tower at an

alternative location. SBA/ATC allege that the Planning Board

decision violated Section 704 of the Telecommunications Act of

1996 (“TCA”),

(c)(7)(B)(iii), because it was not supported by substantial evidence contained in a written record.

SBA/ATC further assert that the Planning Board’s decision to deny

their application had the effect of prohibiting the provision of

wireless services in violation of Section 704 of the TCA,

(c)(7)(B)(i)(II). In addition, SBA/ATC contend that

the Planning Board’s decision violated New Hampshire law.

Before me is the plaintiffs’ motion for summary judgment on

each of their claims (document n o . 1 1 ) . Also before me is

defendant Kingston’s cross-motion for summary judgment as to all

claims (document n o . 9 ) .

Background

The following facts are undisputed. Plaintiffs SBA/ATC

develop wireless telecommunications towers on behalf of a number

of personal wireless service providers, including Nextel

Communications, Sprint Spectrum PCS, Omnipoint Communications,

AT&T Wireless, United States Cellular and Star Cellular

(“providers”). Each of these providers holds a license from the

federal government that allows the provider to offer wireless

services within a certain market, and requires the provider to

furnish those services to customers within that market. In order

to meet their service obligations, the providers must deploy an

2 antenna network throughout the targeted geographic area.

Generally, telecommunications towers like the towers constructed

by SBA/ATC are capable of supporting antennas from several

competing providers of wireless services.1 The extent of the

coverage afforded by each antenna on a tower depends upon a

variety of factors, including the location of the antenna on the

tower, the terrain and the existence of natural or man-made

barriers that may block signals or cause interference.

The Route 125 Service Gap

Each of the providers that SBA/ATC support has a

significant service gap in the northern section of Kingston. The

gap encompasses a portion of Route 125, a major commuter

thoroughfare. A multi-carrier tower known as the Crown tower

provides service to the south of the gap, and a multi-carrier

tower located in the neighboring town of Brentwood, New Hampshire

provides service to the north of the gap. In order to close the

gap, the providers must install antenna facilities at one or more

locations between the Crown tower and the Brentwood tower.

Kingston’s Telecommunications Facility Ordinance

Anyone wishing to construct a telecommunications tower

1 The installation of multiple antennas on one tower is known as “co-location.”

3 within the Town of Kingston must obtain prior approval from the

Kingston Planning Board pursuant to Kingston’s Telecommunications

Facility Ordinance.2 Pursuant to the Ordinance, new tower

construction is permitted only within areas that are zoned “rural

residential” and only after the applicant has obtained a

conditional use permit from the Planning Board. The Ordinance

requires each applicant for a conditional use permit to submit

certain information to the Planning Board. Where the applicant

is proposing to construct a new tower, the information must

include, inter alia, evidence demonstrating that no existing

structure can accommodate the proposed antenna and an agreement

2 The stated purpose and goals of the Telecommunications Facility Ordinance include: (A) to preserve Kingston’s authority to regulate and to provide for reasonable opportunity for the siting of telecommunications facilities by enhancing the service providers’ ability to provide services quickly, effectively and efficiently; (B) to reduce potential adverse impacts from telecommunications facilities, including impacts on aesthetics, environmentally sensitive areas, historically significant locations, flight corridors, health and safety, and prosperity through protection of property values; (C) to provide for co- location and minimal-impact siting options; (D) to permit the construction of new towers only where all other reasonable opportunities have been exhausted; (E) to require cooperation and co-location, to the highest extent possible, between competitors in order to reduce cumulative negative impacts upon Kingston; (F) to provide constant maintenance and safety inspections for facilities; (G) to provide for the removal of abandoned towers; and (H) to provide for the removal or upgrade of technologically outdated facilities.

4 with the Town that “allows for the maximum allowance of co-

location upon the new structure.” In evaluating an application

for a conditional use permit, the Kingston Planning Board

considers the following factors:

a. The height of the proposed tower or other structure.

b. The proximity of the tower to residential development or zones.

c. The nature of uses on adjacent and nearby properties.

d. Surrounding topography.

e. Surrounding tree coverage and foliage.

f. The design of the tower, with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness.

g. The proposed ingress and egress to the site.

h. The availability of suitable existing towers and other structures.

i. Visual impacts on viewsheds, ridgelines, and other impacts by means of tower location, tree and foliage clearing and placement of incidental structures.

j. The availability of alternative tower structures and alternative siting locations.

After consideration of these factors, the Planning Board may

approve, approve with conditions or deny the application.

5 Plaintiffs’ Application for a Conditional Use Permit

On May 1 8 , 2000, SBA/ATC submitted an application to the

Kingston Planning Board for the installation of “an unlighted 180

foot free standing multi-user telecommunication tower along with

related ground equipment” at the Heffernan Site. The Heffernan

Site consists of seventeen acres, is surrounded by woods, and is

located in the northern section of Kingston, to the north of the

Crown tower and to the south of the Brentwood tower. Although

all except one of the abutting properties are residential, the

Site includes several commercial operations, including a tack

shop, a stained glass business, and a sawdust resale business.

Because the Heffernan Site lies within a rural residential zoning

district, SBA/ATC required a conditional use permit from the

Planning Board.

American Tower’s Application for a Conditional Use Permit

Two months after SBA/ATC submitted their application to

construct a tower in Kingston, American Tower, a direct

competitor of SBA/ATC, submitted an application to the Planning

Board to construct a “180 foot wireless telecommunications tower

plus equipment compound” on a thirty acre parcel of land owned by

Northland Forest Products and located on Depot Road in Kingston

6 (“Northland Forest Site”). 3 The Site lies to the south of the

Heffernan Site and to the north of the Crown tower facility. It

contains a large lumber operation, is surrounded by trees, and

abuts properties that are used for residential and commercial

purposes. Like the Heffernan Site, the Northland Forest Site is

located within a rural residential zoning district. Accordingly,

American Tower required a conditional use permit from the

Planning Board.

The Planning Board’s Consideration of the Tower Proposals

The Planning Board held public hearings on the plaintiffs’

application on July 1 8 , 2000, September 1 9 , 2000, October 3 ,

3 About five months prior to submitting its application to the Planning Board, American Tower sought input from the Board regarding two sites it was considering for the construction of a tower. On American Tower’s behalf, the Town Planner requested that the Board express its preference for the location of the tower. Although the record indicates that American Tower was never identified to the Board as the company proposing to build the tower, it reveals that the Board expressed a preference for the Northland Forest Site because it already was used for commercial purposes. The record also reveals that when a Board member asked whether the Town “could say no to this altogether,” the Town Planner replied that “the Town could not deny it.” The plaintiffs assert that the Board’s actions demonstrated favoritism toward American Tower, unfairly prejudiced SBA/ATC and were improper under New Hampshire law. Because I find that the plaintiffs’ substantial evidence claim is dispositive of the parties’ motions and I need not reach the state law claims, I decline to evaluate whether the Town acted improperly in considering American Tower’s pre-application request for guidance.

7 2000, and October 1 7 , 2000. 4 During the hearings, SBA/ATC

presented oral and documentary evidence in support of their

proposal. The Planning Board also received comments from several

abutters opposed to the SBA/ATC tower. During the July 18

hearing, four abutters spoke in opposition to the plaintiffs’

application. Two of those individuals, Steven Blaisdell and Tina

Staublin, objected to the tower on aesthetic grounds. The other

two abutters, Andrea and Almus Kenter, expressed concern about

health risks, the presence of wetlands and wildlife on the

Heffernan Site, and the tower’s potential impact on the historic

value of the Heffernan property. The Kenters and the Blaisdells

submitted letters challenging the proposal as well. While the

Blaisdell letter focused on the tower’s aesthetic impact, the

4 The plaintiffs accuse the Board of unfairly delaying hearings on their application while expediting consideration of American Tower’s proposal. Although the Board’s disparate treatment of the two proposals suggests that the plaintiffs’ assertions may have some merit, SBA/ATC voiced no objection to the delays and in fact agreed twice in writing to extend the hearing process. Moreover, SBA/ATC did not elect to seek redress for the delays under the TCA, which requires local governments to act on any request for authorization to construct personal wireless service facilities “within a reasonable period of time after the request is duly filed . . . .”

(c)(7)(B)(ii).

8 Kenter letter expressed a variety of concerns.5 A fifth abutter,

who did not speak at any of the hearings, also submitted a letter

calling the proposed tower an “eyesore,” expressing significant

fear about health risks and suggesting that the Heffernan

property may have historic significance.6 SBA/ATC responded to

these comments, both orally and in writing.

During the course of the public hearings on the plaintiffs’

proposal, SBA/ATC altered its plans to accommodate the Board’s

request for a monopole rather than a lattice style tower.

SBA/ATC also changed the proposed location of the tower in order

to increase the distance between the tower and a neighboring

property and reduce its visibility.

The Planning Board held public hearings on American Tower’s

proposal on September 5 , 2000, September 1 9 , 2000, October 3 ,

5 In their letter, the Kenters objected to the fact that they would have a clear view of the tower from their property. In addition, the Kenters expressed concern that the SBA/ATC plan might increase traffic, include insufficient ingress and egress to handle emergencies, involve the placement of a potentially dangerous fuel source on the property, and threaten health. The Kenters also questioned whether the plaintiffs had submitted all of the materials required by the Kingston Telecommunications Facility Ordinance. 6 A sixth abutter, a real estate business, submitted a letter requesting that the tower be set back at least two hundred feet from its property but expressing no opposition to the proposed plan.

9 2000, and October 1 7 , 2000. American Tower presented oral and

documentary evidence in support of its proposal. American Tower

also obtained an easement from the property owner in order to

satisfy the Board’s desire that a buffer of mature trees be

maintained around the tower.

In contrast to the SBA/ATC proposal, no abutters spoke or

submitted correspondence in opposition to the American Tower

plan. One Board member did note that American Tower’s proposal

was designed to accommodate only five personal wireless service

carriers, while SBA/ATC’s plan was designed to accommodate up to

eight carriers.7 Another Board member expressed concern about

the tower’s potential impact on Kingston’s historic district, but

no further action was taken on this issue.

Prior to voting on the SBA/ATC and American Tower plans, the

Board obtained reports from its own technical consultant. After

reviewing the SBA/ATC application, the Town’s consultant

confirmed that a significant coverage gap exists in the northern

section of Kingston. He also determined that at 170 feet, the

7 The record indicates that the plaintiffs’ final tower proposal would have been capable of supporting six providers plus a municipal antenna facility. The defendant’s assertion that the plaintiffs’ proposed tower could accommodate only two providers finds no support in the record.

10 plaintiffs’ proposed facility would close the gap and provide for

sufficient overlap with the coverage afforded by the Crown and

Brentwood towers to “facilitate adequate ‘handoffs’.”8 The

Town’s consultant also reviewed American Tower’s application. He

determined that at 140 feet, American Tower’s proposed facility

also would close the coverage gap. He noted, however, that at

this height, the overlap with the coverage afforded by the

Brentwood tower would be minimal.

The Planning Board Decision

On October 1 7 , 2000, the Planning Board voted to approve

only one of the two telecommunications tower applications on the

grounds that the Telecommunications Facility Ordinance requires

cooperation and co-location. The Planning Board then voted to

deny the plaintiffs’ application for a conditional use permit and

to grant American Tower’s application for a conditional use

permit.9

8 A “handoff” refers to the ability to make the transition from coverage provided by an antenna on one tower to coverage provided by an antenna on another tower without losing communication. 9 Following a tie vote on the motion to approve the plaintiffs’ proposed tower, the Chairman of the Planning Board broke the tie by voting to deny the plaintiffs a conditional use permit.

11 Subsequently, the Planning Board issued a written Notice of

Planning Board Decision in which it set forth its reasons for

denying the plaintiffs’ application. Specifically, the Board

stated:

1) Based upon the purposes section of the Kingston zoning ordinance letters C and E it is the responsibility of the Kingston Planning board to provide for minimal impact siting and to require cooperation and coordination between telecommunications service providers in order to reduce cumulative negative impacts upon Kingston.

2) The location of this proposed location is in close proximity to residential abutters. While there are commercial uses backing into the property, the majority of the abutting and nearby properties are residential and of a rural nature. The siting of this tower does not meet the intent of the ordinance to reduce adverse impacts on neighborhood aesthetics.

3) The design of the tower does not prevent nor reduce visual intrusive\ness (sic) along the NH Route 125 corridor. Minimizing the adverse visual impact is required by the Town’s ordinances. 4) The Planning Board hired a telecommunication consultant to assist in determining the technical viability of the SBA/ATC site. This consultant provided evidence that two proposed sites offered the same ability to cover existing service gaps. As a result, the SBA/ATC site failed to meet the standard of section D ) of the Town’s ordinance which indicates that all other reasonable opportunities have been exhausted. In addition Section VII., 3., paragraphs h and j require the Planning Board to consider other factors in making decisions that include the availability of existing

12 towers and other structures and the availability of alternative siting locations. The Planning board has done this with respect to this denial.

Following the Planning Board’s adverse decision, SBA/ATC

initiated this lawsuit asserting claims under the TCA and state

law.

Analysis

A. The Telecommunications Act of 1996

The provision of the TCA at issue in this case,

(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.,

(1st Cir. 1999). “Under the TCA, local

governments retain control ‘over decisions regarding the

placement, construction, and modification of personal wireless

service facilities’.” Southwestern Bell Mobile Sys., Inc. v .

Todd,

1 , 57 (1st Cir. 2001)(quoting

(c)(7)(A)). Nonetheless, 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,

13 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)(B)(iv) . . . In 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,

, 407 (3d Cir. 1999)(quoting

(c)(7)(B)(iii)). See also Todd,

.

“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,

(D. Mass. 2000).

B. The Substantial Evidence Claim

SBA/ATC seek summary judgment on the grounds that Kingston’s

decision denying its application for a conditional use permit

violated the TCA,

(c)(7)(B)(iii), because it was

not supported by substantial evidence contained in a written

record. While the plaintiffs concede that Kingston met the

14 requirement that its denial be “in writing,” see Todd,

(the first requirement of section 332(c)(7)(B)(iii) is that

denials of permits be in writing), they assert that the Board’s

decision lacked substantial support in the record. Kingston

cross-moves for summary judgment on this issue.

“In considering whether 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,

n.7. Accordingly, it is appropriate

to resolve the substantial evidence question based upon the

Planning Board record before this court. See

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,

(citing Town of Amherst,

6 ) . See also Cellular Tel.

Co. v . Zoning Bd. of Adjustment of Ho-Ho-Kus,

4 , 72 (3d

Cir. 1999)(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

15 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 Servs. Ltd. v .

Federal Aviation Admin.,

(1st Cir.

1999)(quoting Allentown Mack Sales & Serv., Inc. v . N.L.R.B.,

(1998)). While the review is highly deferential

to the Planning Board, however, it “‘is not a rubber stamp’.”

Todd,

-9 (quoting Penobscot Air Servs.,

n . 2 ) . Thus, the court is not free to substitute its own

judgment for that of the local zoning authority, but it 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’.” Penobscot Air Servs.,

(quoting Universal Camera Corp. v . N.L.R.B.,

(1951)).

In evaluating the Kingston 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,

9 ; Penobscot Air Servs., 164

16 F.3d at 718. The court will uphold the Planning Board’s decision

if 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 Kingston Planning Board’s Decision

In its written decision, the Board provided four reasons for

denying the plaintiffs’ application.10 I find that none of the

Board’s reasons is supported by substantial evidence in the

record.

a. The Board’s Responsibility to Provide for Minimal Impact Siting and to Require Cooperation

The first reason for denying the plaintiffs’ application,

based upon two provisions of the Telecommunications Facility

Ordinance’s purpose and goals section, concerns Kingston’s

responsibility to provide for minimal impact siting and to

require cooperation and coordination between telecommunications

10 The reasons for denying the plaintiffs’ application that are set forth in the Board’s written decision are consistent with the reasons listed in the record of the October 1 7 , 2000 public hearing at which the Board voted to deny the plaintiffs’ request for a conditional use permit.

17 service providers.11 The provisions of the Ordinance upon which

the Board’s decision relies encourage both cooperation between

competitors and co-location to the highest extent possible.

There is no substantial basis in the record to support the

Board’s denial based upon the Ordinance’s goal of requiring

cooperation between competitors. SBA/ATC filed an application

for a conditional use permit two months prior to American Tower.

At the time, there were no other competitors with whom to

cooperate in order to close the defined coverage gap in Kingston.

Moreover, the fact that SBA/ATC and American Tower failed to

cooperate to develop a single tower plan provides no

justification for selecting American Tower’s proposal over the

plaintiffs’ proposal. Both entities are equally responsible for

any lack of coordination.

Moreover, the record indicates that the plaintiffs’ proposal

would have best fulfilled the Ordinance’s goal of requiring co-

location to the highest extent possible. Although both SBA/ATC

and American Tower provided assurances to the Board that they

11 Although the Board’s decision refers to the goal of requiring cooperation and coordination between “telecommunications service providers,” the Ordinance states that its aim is to “[r]equire cooperation and co-location, to the highest extent possible, between competitors . . . .”

18 would allow service providers to co-locate on their towers, the

record reveals that the SBA/ATC tower would have been capable of

supporting more antenna facilities than the American Tower

structure, thereby maximizing the potential for co-location. In

addition, the record shows that SBA/ATC had secured commitments

from three service providers willing to locate antennas on their

tower, while American Tower presented evidence of just one

service provider willing to locate an antenna on its tower.12

This is further evidence that the Board’s first reason for

denying the plaintiffs’ application lacked substantial support in

the record.

b. The Proposed Tower’s Proximity to Residences and Impact on Aesthetics

The Board’s second reason for denying the plaintiffs’

proposal concerned the close proximity of the Heffernan Site to

12 The plaintiffs argue that in fact no service providers made commitments to locate antennas on American Tower’s facility. Instead, the plaintiffs assert, one service provider, Cellular One, wrote a letter expressing an “interest” in using the American Tower structure. The plaintiffs further suggest that the interest was not genuine because the letter, while written on Cellular One letterhead, was signed by an American Tower employee. The Board was entitled to rely on American Tower’s representation that Cellular One was willing to use its tower. Moreover, there is nothing in the record that would have alerted the Board to any possibility that the Cellular One letter was not genuine or did not accurately reflect Cellular One’s position.

19 residential abutters and the failure of the proposed plan to

reduce adverse impacts on neighborhood aesthetics. While the

record supports the Board’s conclusion that the Heffernan Site

lies in close proximity to residential abutters, the record also

demonstrates that the Northland Forest Site abuts several

residential properties. There is no indication, however, that

the Board evaluated or discussed the impact, if any, that the

American Tower proposal would have on neighboring residences.13

Nor is there any indication that the Board compared the impact

that the SBA/ATC tower would have on surrounding residences with

the impact that the American Tower structure would have on

neighboring residences. Accordingly, the residential character

of the community surrounding the Heffernan Site, without more,

provides inadequate justification for the Board’s decision to

select American Tower’s proposal over the plaintiffs’ proposal.

13 The record contains photographic simulations illustrating the view of the tower from several locations, but none of the photographic simulations appears to depict the view from abutting residential properties. The record also contains photographs depicting the results of a crane test, but there is no description of the photographer’s location. Moreover, the record of the September 1 9 , 2000 hearing before the Board suggests that the crane was difficult to see and that a balloon test, the results of which are not included in the record, afforded greater visibility.

20 Similarly, the Board’s conclusion that the plaintiffs’

proposed tower would not meet the intent of the Ordinance to

reduce adverse impacts on neighborhood aesthetics lacks

substantial support in the record. Nothing in the TCA prevents

municipalities from restricting and controlling development based

upon aesthetic considerations. Todd,

1 .

“Nonetheless, that aesthetic judgment must be grounded in the

specifics of the case.”

Consequently, a “few generalized

expressions of concern with ‘aesthetics’ cannot serve as

substantial evidence on which the Town could base the denial[].”

Cellular Tel. C o . v . Town of Oyster Bay,

(2d

Cir. 1999). See also Pine Grove, 181 F.3d at 409; Nextel

Communications of the Mid-Atlantic, Inc. v. Manchester-By-The-

Sea,

5 , 72 (D. Mass. 2000); Telecorp Realty, LLC

v . Town of Edgartown,

(D. Mass. 2000).

The Kingston Planning Board received only a small number of

complaints from neighbors objecting to the SBA/ATC tower on

aesthetic grounds,14 and only the Kenters and the Blaisdells

provided any specific reasons for their opposition to the tower’s

14 The abutters opposing the plaintiffs’ tower proposal on aesthetic grounds included the Kenters, the Blaisdells, Tina Staublin and Mariah Champagne.

21 visual impact. Moreover, several abutter comments had nothing to

do with aesthetics. For instance, several comments raised

concern about potential health risks, a factor that the Board

could not consider under the TCA. Other comments, notably those

contained in a detailed letter from the Kenters, raised concern

about the potential for increased traffic, the sufficiency of the

access road, the possibility that a fuel source could be placed

at the property, and the plaintiffs’ compliance with certain

portions of the Ordinance.15 Neither the volume nor the

specificity of the opponents’ comments provided enough evidence

that the plaintiffs’ proposed tower would have an adverse

aesthetic impact on the neighboring community to support the

Board’s denial. See Pine Grove, 181 F.3d at 409 (no substantial

evidence supporting denial of permission to build a tower on

aesthetic grounds where only eleven residents expressed general

complaints through one spokesman); Town of Oyster Bay,

(no substantial evidence to support permit denials

where very few residents expressed non-specific aesthetic

15 The plaintiffs addressed the comments raised by the abutters. Neither the record nor the Board’s ultimate decision indicate that there was any substantial evidence to support a denial of the plaintiffs’ application based upon any of the issues raised by abutters opposing the application.

22 concerns). But see Todd,

(substantial evidence of

adverse visual impact available where record demonstrated that

proposed tower was of a different magnitude than anything else in

the vicinity and would be seen year round by 25% of the Town’s

population); 360 Degrees Communications C o . of Charlottesville

v . Bd. of Supervisors of Albemarle County,

9 , 84 (4th

Cir. 2000)(substantial evidence supported denial of permission to

construct a tower where the proposal triggered virtually

unanimous citizen opposition and tower would be inconsistent with

the county zoning scheme).

The provision of the Ordinance declaring an intent to reduce

adverse impacts from telecommunications facilities on aesthetics

seeks to reduce adverse impacts from telecommunications

facilities on historically significant locations as well.

Nevertheless, the Board failed to consider the impact of the

American Tower proposal on nearby historic properties and to

compare that impact, if any, to the SBA/ATC proposal. The record

reveals that the Northland Forest Site lies within one-half mile

of four historic properties and that one Board member expressed

concern about the tower’s potential impact on Kingston’s historic

district. The Board, however, neglected to further consider the

23 matter. Having failed to evaluate the full impact of each

proposal on nearby properties, the Board cannot justify its

decision to deny the plaintiffs’ application on aesthetic

grounds.

c. Visual Intrusiveness Along Route 125

The third reason that the Board gave for denying the

plaintiffs’ application for a conditional use permit concerned

the proposed tower’s failure to prevent or reduce visual

intrusiveness along Route 125. This reason too lacks substantial

justification. Although photographic simulations of the SBA/ATC

tower indicate that the tower would be visible from Route 125,

photographic simulations of the American Tower structure indicate

that it too would be visible from Route 125. In fact, the

American Tower simulations appear to confirm what an American

Tower representative stated at the September 5 , 2000 Planning

Board Hearing – that the clearest view of the tower would be from

Route 125. Accordingly, visual intrusiveness along Route 125

provides no support for the Board’s decision to select the

American Tower plan over the SBA/ATC plan.

d. Failure to Exhaust Alternative Opportunities

The Board’s final reason for denying the plaintiffs’

24 application was that in light of the Town consultant’s conclusion

that the SBA/ATC proposal and the American Tower proposal offered

the same ability to cover the existing service gap, SBA/ATC had

failed to exhaust all other reasonable opportunities. To justify

this conclusion, the Board referred to provisions of the

Ordinance that require the Board to consider the availability of

existing towers and alternative siting locations.

The Board’s reasoning falters for several reasons. First,

although the Town’s consultant determined that both tower

proposals would close the identified service gap, the

consultant’s report raised a question as to whether the coverage

provided by the American Tower proposal would overlap enough with

the coverage afforded by the Brentwood tower to facilitate

adequate handoffs. Second, even assuming both towers could

provide the same level of service, the plaintiffs submitted their

application a full two months ahead of American Tower.

Consequently, the suggestion that American Tower’s plan provided

a reasonable alternative to the SBA/ATC plan lacks any support in

the record. Given the fact that the plaintiffs’ proposal was

before the Board by the time American Tower submitted its

application, it was American Tower, not SBA/ATC, that failed to

25 exhaust all other reasonable opportunities and consider

alternative towers or structures. Third, the provisions of the

Ordinance that require the Board to consider the availability of

existing towers and the availability of alternative tower

structures and siting locations presume that other structures or

siting locations are available. The record demonstrates that at

the time the plaintiffs submitted their application, no other

suitable towers or structures were available within the Town of

Kingston that would have provided coverage for the existing

service gap. Furthermore, during the course of the public

hearings, no questions or issues were raised regarding the

plaintiffs’ failure to consider alternative siting locations.

Again, the Board’s conclusions find no adequate support in the

record.

C. Appropriate Remedy

The plaintiffs request injunctive relief in the form of an

order directing the defendant to issue all permits and approvals

necessary to enable the plaintiffs to construct a wireless

telecommunications tower at the Heffernan Site. Although the TCA

does not specify a remedy for violations of the statute, most

courts that have decided these cases have held that the

26 appropriate remedy is injunctive relief in the form of an order

to issue the necessary permits. See Town of Oyster Bay,

(citing cases). Consistent with the weight of authority,

I find that the plaintiffs are entitled to the requested

injunctive relief.

Having determined that the plaintiffs are entitled to an

injunction that will afford them full relief, I decline to

address the plaintiffs’ effective prohibition and state law

claims. Accordingly, the parties’ cross-motions for summary

judgment as to those claims will be denied as moot.

Conclusion

The plaintiffs’ motion for summary judgment (document n o .

11) is granted with respect to the substantial evidence claim,

and is otherwise denied as moot. The defendant’s cross-motion

for summary judgment (document n o . 9 ) is denied.

Order

The court orders that the Kingston Planning Board’s decision

denying the plaintiffs’ application to construct a wireless

telecommunications tower on the Heffernan Site is null and void.

The court further orders the Town of Kingston, its officers,

boards, commissions, departments and instrumentalities, including

27 its Planning Board, to approve the plaintiffs’ application, issue

all necessary permits and remove any further impediments to the

plaintiffs’ construction of the proposed tower within forty-five

days of the date of this Order. The Clerk is instructed to close

the case.

SO ORDERED.

James R. Muirhead United States Magistrate Judge

Date: November 8 , 2001

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

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