Crown v . Fitzwilliam, NH CV-01-210-M 05/30/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Crown Atlantic Company LLC, Plaintiff

v. Civil N o . 01-210-M Opinion N o .

Town of Fitzwilliam, New Hampshire and Fitzwilliam Planning Board Defendants

O R D E R

Crown Atlantic Company L L C (“Crown Atlantic”) has sued the

Town of Fitzwilliam, New Hampshire (“the Town”) and the

Fitzwilliam Planning Board (“the Board”) in three counts,

asserting violations of 47 U . S . C . §§ 332(c)(7)(B)(i)(II) and

(iii) (Count I ) and N . H . R E V . STAT. A N N . ( “ R S A ” ) § 677:15 (Count

III). Crown Atlantic also seeks money damages (Count I I ) . All

three claims arise from the Board’s denial of Crown Atlantic’s

request for a waiver of two provisions of the Town’s Wireless

Communications Facility Ordinance (“WCFO”). 1 Before the court

1 Crown Atlantic sought permission to construct a telecommunications tower on Upper Troy Road, outside the WCFO’s Wireless Communications Overlay District (“the overlay district”), and to exceed the WCFO’s forty-five-foot height limitation by sixty feet. are cross-motions for summary judgment. For the reasons given

below: (1) both motions are denied, without prejudice, as to

Counts I and III; and (2) Crown Atlantic’s motion is denied, and

defendants’ motion is granted, as to Count I I .

Turning first to Count I I , neither

(c)(7) nor

RSA 677:15 provides for an award of money damages against a local

land-use board. Section 332(c)(7) is intended to preserve the

authority of local land-use boards, consistent with the

limitations set out in subsection ( B ) . Under subsection

(B)(i)(I), the Town is barred from “prohibiting the provision of

personal wireless services,” either expressly or effectively.

See Town of Amherst, N.H. v . Omnipoint Communications Enters.,

Inc.,

(1st Cir. 1999). But there is nothing in

the statute suggesting that parties in Crown Atlantic’s position

are entitled to monetary compensation when the approval they seek

takes longer than expected. See

(“Congress conceived

that [balancing local autonomy with federal limitations] would

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

individual solutions best adapted to the needs and desires of

particular communities.”) Because neither legal theory under

2 which Crown Atlantic has sued provides for an award of money

damages, defendants’ motion for summary judgment, as to Count I I ,

is granted.

As for Counts I and III, both motions for summary judgment

are denied, without prejudice. The court notes the First

Circuit’s preference for individualized local solutions rather

than “‘cookie cutter’ solutions” imposed by courts in cases such

as this.

By denying summary judgment, the court does not

mean to encourage further litigation, but anticipates that Crown

Atlantic and the Town will take the last few steps necessary to

develop an acceptable local solution, rather than forcing the

court to impose one by default.

In this case, Crown Atlantic has not displayed the kind of

inflexibility at issue in Town of Amherst, and cannot fairly be

charged with following a “one-proposal strategy.”

at 1 5 .

Rather, Crown Atlantic approached the Board with a proposal that

respected the WCFO’s non-waivable requirement that towers be

placed no less than 3.5 miles apart (R. at 406-07), and,

throughout the application process, Crown Atlantic appears to

3 have been responsive to suggestions made by the Board. The court

notes, in particular, Crown Atlantic’s willingness t o : (1) move

the proposed tower to the west side of Upper Troy Road (to

protect views of M t . Monadnock); (2) reduce the height of the

tower to 105 feet; (3) to the extent feasible, disguise the tower

as a tree; (4) conduct propagation studies for the Bard site and

the steeple of the Town Hall; and (5) perform a balloon test at

the VFW site.

For its part, the Town has also demonstrated a responsible

and flexible approach to what are often trying issues. The Town:

(1) granted Crown Atlantic a height waiver, and approval, for a

tower on Route 1 2 , south of the town center (“the southern

tower”); and (2) recognized both the necessity of approving a

second tower to serve the area north of the Pinnacle, as well as

the likelihood that such a tower will require at least one, if

not two waivers (height, and location outside the overlay

district). In addition, the Board has reasonably expressed a

legitimate interest in locating Crown Atlantic’s second tower

outside residential districts, if possible.

4 In short, both the Board and Crown Atlantic have attempted

to find an acceptable, if not ideal, resolution of the siting

issue. Whether federal intervention is required at this point,

however, is uncertain. Perhaps such intervention is inevitable,

but the parties ought to exhaust every avenue of amicable

resolution before this court undertakes to declare the outcome.

Several matters deserve further consideration by the parties

as they attempt to resolve the siting issue. For example, it

appears beyond dispute that: (1) with only the southern tower in

service, there is a significant gap in wireless telephone

coverage north of the Pinnacle (Administrative Record

(hereinafter “R.”) at 1 6 2 ) ; and (2) Crown Atlantic has the right

to build one or more towers to fill that service gap, see

Omnipoint Communications MB Ops., LLC v . Town of Lincoln,

0 8 , 117 (D. Mass. 2000) (quoting Cellular Tel. C o . v .

Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus,

4 , 70 (3d Cir. 1999)) (“local zoning policies and decisions have

the effect of prohibiting wireless communication services if they

result in ‘significant gaps’ in the availability of wireless

services [within the jurisdiction’]). One way or another, Crown

5 Atlantic has a right to put up at least one more tower in

Fitzwilliam. The only real questions are height, location, and

the degree of input the Planning Board will have.

The WCFO, though no doubt well intentioned, seems to

restrict the Board’s ability to guide the siting process. Given

the relative ineffectiveness of forty-five-foot towers in places

with the kind of topography and tree cover that Fitzwilliam has

(R. at 1 6 2 ) , and the non-waivable requirement of a 3.5-mile

separation between towers, it seems highly unlikely that any set

of towers fully compliant with the WCFO could provide wireless

service without significant gaps. Moreover, while the Board is

empowered to waive the WCFO’s height limitation, and may permit

towers outside the overlay district, it cannot waive the

requirement of a 3.5-mile separation between towers.

This court, of course, is not bound to honor the local

separation requirement if adherence to it would result in a

significant gap in coverage. Thus, the Town has some incentive

to resolve this matter with Crown Atlantic on its own terms,

rather than leaving it to the court to resolve. Perhaps the

6 parties can find achievable gap-filling solutions that are

preferable to one imposed under the federal statute.

In passing, the court notes that, as the record stands, the

“substantial evidence” proffered by the Board to support its

decision to deny Crown Atlantic’s request for a waiver seems to

fall short of the mark. The small handful of subjective

objections included in this administrative record pale in

comparison to the objective evidence of aesthetic harm presented

in Southwestern Bell Mobile Systems v . Todd,

1 , 61 (1st

Cir. 2001). If not for the perhaps unexplored option of locating

a tower on Route 119, Crown Atlantic’s motion for summary

judgment as to Count I may have proved meritorious, and could

have led to an order permitting construction of the proposed

tower at the Upper Troy Road site. However, in light of the

possibility (not adequately addressed in the record) that a tower

requiring only one waiver, for height, could be constructed

within the overlay district on Route 119 and fill the identified

service gap north of the Pinnacle, it would be premature for the

court to remove local obstacles to construction of the proposed

tower on Upper Troy Road.

7 Plainly, the various topographic and legal realities of this

case significantly limit the options available to the parties.

Under federal law, the Town must permit telecommunication towers

sufficient to allow Crown Atlantic to fill the significant gap in

coverage north of the Pinnacle, and there seem to be relatively

few locations in which a suitable tower or towers can be placed.

But the record lacks two key pieces of information.

First, the record does not include a map depicting the

location of the southern tower. Without that location, and with

no way to locate the 3.5-mile exclusionary zone around the

southern tower, the court cannot discern where the next tower

could be located, in compliance with the separation provision of

the WCFO. While the court is not strictly bound by that

requirement, Fitzwilliam is probably better served by a tower

location that meets the separation requirement than by a location

that does not.

Second, the record appears to contain no serious discussion

or substantive evidence related to the possibility of locating a

tower on the western portion of Route 119, within the overlay

8 district.2 As the court has noted, a location on Route 119 could

have the advantage of requiring one waiver rather than two.

Because the parties themselves are close to resolving the

siting issue, the Planning Board is far better suited than the

court to make the best siting decision for Fitzwilliam, and, in

any event, the administrative record is insufficient to allow the

court to decide whether Crown Atlantic’s request for a waiver

should have been granted. Accordingly, both motions for summary

judgment are denied, without prejudice.

Before additional dispositive motions are filed, Crown

Atlantic and the Town should explore the possibility of locating

a tower along Route 119. After giving due consideration to that

possibility, if it proves unworkable, the Town ought to give

2 While the minutes of the May 1 , 2001, Board meeting indicate that the lack of discussion of that option by Crown Atlantic contributed to the Board’s decision to deny a waiver to construct a tower on Upper Troy Road, when the Route 119 option was first raised by a member of the public, on April 1 7 , the the Board did not ask Crown Atlantic to conduct balloon tests or propagation studies, as it had with regard to several other alternative locations. Given Crown Atlantic’s willingness to study other alternative sites at the Board’s request, it seems a bit unfair for the Board to have based its denial on Crown Atlantic’s failure to investigate a site in which the Board expressed no interest.

9 serious thought to granting whatever waivers may be necessary to

permit Crown Atlantic to fill in the service gap north of the

Pinnacle. Given the substantial good faith exhibited by Crown

Atlantic, as disclosed in the record, and in light of the

statutory mandate for “expeditious resolution,” Town of Amherst,

n.8 (citing

(c)(7)(B)(ii) & ( v ) ) ,

it is likely that judicial relief will shortly follow the Town’s

failure to resolve the service gap problem.

To conclude, plaintiff’s motion for summary judgment

(document n o . 12) and defendant’s motion for summary judgment

(document n o . 11) are both denied without prejudice, as to Counts

I and I I I , while the defendants’ motion for summary judgment, as

to Count I I , is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 3 0 , 2002

cc: Ralph F. Holmes, Esq. James P. Bassett, Esq.

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