Omnipoint v. Nashua CV-07-46-PB 02/06/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Omnipoint Communications, Inc,

v. Civil No. 07-cv-46-PB Opinion No.

City of Nashua, et a l .

MEMORANDUM AND ORDER

Omnipoint Communications, Inc. ("Omnipoint") alleges in this

action that the Nashua Zoning Board of Adjustment ("ZBA")

improperly denied Omnipoint's application for a special exception

to construct a wireless telecommunications tower on property

located within a 220-home residential development known as Coburn

Woods. Omnipoint's complaint consists of three counts. Count I

is a conventional appeal from a decision of the ZBA brought

pursuant to

. Omnipoint claims in

Count II that the ZBA's decision violates the Telecommunications

Act of 1996 because the decision is not supported by substantial

evidence. See

(c)(7)(B)(iii). It argues in Count

III that the decision violates the Telecommunications Act because

it effectively prohibits the provision of personal wireless services to the area that would be served by the proposed tower.

See

(c )(7)(B)(i )(II). The parties have submitted

cross motions for summary judgment with respect to Counts I and

II. For the reasons that follow, I grant the ZBA's motion for

summary judgment and deny Omnipoint's cross motion for summary

judgment.

I. BACKGROUND1

A. Nashua Zoning Requirements

Telecommunications towers are permitted in the City of

Nashua by special exception. See Use Matrix (Nashua Land Use

Code § 16-26, Table 26-1), reproduced in part at CR 10. In

granting a special exception, the ZBA must find that an applicant

has satisfied five general conditions:

1) the requested use is permitted as a special exception in the Land Use Code; 2) the requested use will not create undue traffic congestion or unduly impair pedestrian safety; 3) the requested use will not overload any municipal system such as public water, drainage, or sewer systems to such an extent that the city will be unduly subjected to health, safety, or general welfare hazards;

1 Citations are to the Certified Record "CR" submitted by the City of Nashua.

- 2 - 4) any special regulations for the use are fulfilled; and 5) the requested use will not "impair the integrity or be out of character with the district or immediate neighborhood where it is located, nor be detrimental to the health, morals, or welfare of the residents of the city."

Land Use Code § 16-433(f).

Telecommunications towers are also subject to special

regulations that include specific requirements regarding where

towers may be situated and how they must be designed. See Nashua

Land Use Code § 16-69, reproduced at CR 10. If all of the above

criteria are satisfied, the ZBA must grant a request for a

special exception. Nashua Land Use Code § 16-433(f). The Land

Use Code also states that the ZBA must provide a written

statement of reasons for any decision approving or denying an

application for a special exception. Id.

B. Omnipoint's Application

Omnipoint, a wholly-owned subsidiary of T-Mobile, is

licensed to provide wireless telecommunications services in and

around the City of Nashua. In August 2006, Omnipoint applied for

a special exception to construct a wireless communications tower

at 311 Coburn Avenue. CR 1. As originally proposed, the tower

was to be 150 feet high with external antennae, set in a 70 foot

- 3 - by 70 foot chain-link fenced area on a 220-lot residential

development known as Coburn Woods.

C. Coburn Woods

Coburn Woods is a cluster-style development in which the

clustered placement of 220 single-family homes is offset by open

spaces designated as "common property." The common property

includes large wooded areas, tennis courts, ponds, and pools

cared for by the homeowner's association and available for use by

all of the development's residents. See CR 13-B. Many of the

homes in Coburn Woods enjoy views of the wooded common areas.

See, e.g.. CR 21 at 30-34.

The developers of Coburn Woods intended to create a unique

community where placement of the houses would minimize changes to

the natural state of the original property. See CR 12 at 5.

Because cluster-style developments were not yet permitted under

the Nashua Land Use Code when Coburn Woods was developed in 1972,

the developers obtained a variance to create the development.

See CR 12. The ZBA granted this variance with the stipulation

that the plans, which included preservation of the common areas

in their natural state, would be strictly followed. See CR 12.

- 4 - The fee owner of the Coburn Woods property leased it to a

homeowners' association for 99 years, beginning on or about 1972.

At some point prior to August 14, 2006, the Association's Board

of Directors entered into a sublease agreement with Omnipoint,

granting Omnipoint a leasehold interest in an area within the

development's wooded common property.

D. ZBA Hearings

The ZBA met on September 26, 2006, to consider Omnipoint's

application. CR 21. At the meeting. Omnipoint amended its

application to reduce the tower's proposed height to 112 feet so

that it would not need to be lighted under Federal Aviation

Administration regulations. Omnipoint's attorney answered

questions from board members regarding the location,

construction, and maintenance of the tower. Seventeen abutters

and neighborhood property owners and two attorneys representing

abutters testified in opposition to Omnipoint's application.

Abutters discussed concerns about the visual impact of the tower

on the neighborhood, possible health effects from the tower's

radio frequency emissions, concerns that the tower would

collapse, and concerns about the noise level of the tower's

- 5 - operating machinery. See CR 21. The ZBA tabled the application

in order to review the information submitted by various parties.

The ZBA met again on November 21, 2006 to consider

Omnipoint's application. Omnipoint's attorney reported that, in

response to concerns from neighborhood property owners. Omnipoint

had agreed to modify its proposal by reducing the tower's

proposed height from 1121 to 105', moving the tower's proposed

location farther into the woods and away from the residences, and

modifying the tower's structure from a monopole with external

arrays to a "slick stick" model, where all of the antennae would

be inside the tower.

Eight neighborhood property owners and one attorney

representing abutters testified in opposition at the November

2006 ZBA meeting, again raising concerns about the tower's impact

on the residential character of the neighborhood, the original

intent of the developers to keep the common property as open

space, and safety concerns. Omnipoint's attorney and an engineer

representing T-Mobile responded to the residents' concerns and

answered questions.

In addition to the testimony offered at the two ZBA

meetings. Omnipoint also submitted an affidavit from a radio

- 6 - frequency expert (CR 4), a map illustrating the wireless coverage

gap (CR 5), the results of balloon tests held on August 9, 2006

and October 7, 2006 (CR 7, 26), an affidavit from a professional

engineer regarding the tower's structural design (CR 24), and

five appraisal reports regarding the impact of wireless

telecommunications facilities on property values in a variety of

New Hampshire communities (CR 27). Omnipoint also submitted

original site and erosion control plans (CR 3, 8) and revised

site plans (CR 23, 25).

Objectors submitted additional information, including the

opinion of a real estate broker on property values (CR 11),

background information on the Coburn Woods development (CR 13 A-

C), information regarding cell phone tower collapses in other

communities (CR 13 F-H, 28), information about an alternative

distributed antenna system (CR 13 J-L), an appraisal of property

values in North Hampton, New Hampshire, related to a proposed

wireless telecommunications installation in that community (CR 13

M ) , an operation sound level study from a Hudson, New Hampshire,

cell phone tower (CR 13 N ) , letters from attorneys representing

abutters (CR 12, 13, 30), and letters, e-mails, and petitions in

opposition to Omnipoint's application (CR 16-19).

- 7 - The ZBA voted unanimously to deny Omnipoint's application

for a special exception on December 12, 2006. CR 36. It then

provided a written explanation for its decision in a December 14,

2006 letter. CR 37. The letter outlined the five required

conditions for a special exception and addressed each in turn.

Although the ZBA agreed with Omnipoint that it had satisfied four

of the five requirements for a special exception, it denied

Omnipoint's application because Omnipoint could not demonstrate

that the proposed tower would not damage the character of the

surrounding neighborhood. The ZBA offered three reasons for its

decision.

First, the ZBA noted that the city had accepted the original

1972 plan for the Coburn Woods development with the stipulation

that the plan would be strictly followed, and one component of

the plan was that the common areas would be left in their natural

state for the aesthetic and recreational enjoyment of the

residents. The ZBA concluded that permitting the

telecommunications tower on this common area would violate the

spirit and intent of the common land and would adversely impact

both the Coburn Woods homeowners and the abutters in the adjacent

Chapel Hill neighborhood. Second, the ZBA concluded that the tower would be out of character with the "overwhelmingly

residential area" because, while the tower would be difficult to

see from a public way, it would be visible to the direct abutters

and nearby property owners. Finally, the ZBA stated that it was

persuaded that property values would be negatively impacted by

the tower. The ZBA recognized that Omnipoint had presented

expert testimony refuting this conclusion, but the ZBA found that

none of Omnipoint's property value assessments adequately

captured the effect of the proposed tower on surrounding property

values.

Omnipoint filed a motion for a rehearing with the ZBA on

January 10, 2007, arguing that the ZBA's decision was based on

mistaken facts. CR 38, 39. Omnipoint argued that the land noted

as "common property" in the original Coburn Woods Association

documents was subject to the authority of the Association's board

of directors, which has the power to purchase, sell, lease, or

otherwise use the common property. Omnipoint also argued that

cable boxes and other utilities had been placed on the common

land since 1972 despite the fact that these utilities were not

part of the original plan. Omnipoint disputed the

characterization of the facility as a commercial venture, arguing

- 9 - that the facility is like any other utility infrastructure.

Finally, Omnipoint argued that "the ZBA improperly focused on

concerns relating to wireless telecommunications in general and

their impact and appropriateness in various settings rather than

the specific characteristics and design of the WCF [wireless

communications facility] at issue in this instance."

The ZBA considered Omnipoint's motion at its January 23,

2007 meeting and unanimously denied the request for rehearing,

stating that Omnipoint's motion did not contain new information

and that the ZBA's original decision was the product of due

diligence and good faith discussions.

E. Federal Telecommunications Law

The Telecommunications Act ("TCA") of 1996 attempts to

balance the need for telecommunications technology with the need

to preserve state and local control over zoning. See

(c)(7); ATC Realty. LLC v. Town of Kingston.

(1st

Cir. 2002); Sw. Bell Mobile Sv s . v. Todd.

, 57 (1st

Cir. 2001). The TCA requires that any decision by a local zoning

authority denying a request to place a personal wireless service

facility must be: 1) in writing and 2) supported by substantial

- 10 - evidence contained in a written record.

3 2 (c) (7)

(B) (iii) .

Although the decision must be in writing, the local board is

not required to make formal findings of fact or conclusions of

law. See, e.g.. Todd. 244 F.3d at 59; see also Second Generation

Props.. L.P. v. Town of Pelham.

(1st Cir.

2 0 02); Nat'l Tower. LLC v. Plainville Zoning Bd. of Appeals.

(1st Cir. 2002). The written denial must, however,

"contain a sufficient explanation of the reasons for the permit

denial to allow a reviewing court to evaluate the evidence in the

record supporting those reasons." Todd. 244 F.3d at 60.

Substantial evidence is "such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion." Nat'l Tower.

(quoting Penobscot Air

Servs. v. Fed. Aviation Admin..

(1st Cir.

1999)). The substantial evidence test requires "more than a

scintilla" of evidence. ATC Realty.

. When

reviewing whether a local board's decision is supported by

substantial evidence, the reviewing court will ordinarily

consider only the administrative record. Second Generation

Props..

; Nat'l Tower.

.

- 11 - The substantial evidence test is deferential to the local

board, and "the courts defer to the decision of the local

authority, provided that the local board picks between reasonable

inferences from the record before it." Nat'l Tower.

; see also Second Generation Props..

.

Finally, the TCA states that no local board may regulate the

placement of a personal wireless service facility on the basis of

the environmental effects of radio frequency emissions, provided

that the facility complies with emissions regulations.

3 2 (c) (7) (B) (iv) .

F. State Law Review

A person aggrieved by the decision of a local ZBA may appeal

the decision in court, and the decision will be set aside only if

the party demonstrates that the ZBA's decision was illegal or

unreasonable.

; Feins v. Town of

Wilmot,

(2007). The New Hampshire Supreme

Court has explained that this standard focuses the inquiry on

whether there is evidence upon which the ZBA's findings could

have been reasonably based. See Lone Pine Hunters' Club. Inc. v.

Town of Hollis.

(2003); Hussey v. Town of

Barrington.

(1992).

- 12 - II. STANDARD OF REVIEW

Summary judgment is appropriate when "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). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v.

Catrett,

(1986). The burden then shifts to the

nonmoving party to "produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for it; if that party cannot produce such evidence, the motion

must be granted." Avala-Gerena v. Bristol Mvers-Sauibb Co..

(1st Cir. 1996); see Celotex.

.

Ill. ANALYSIS

A. Telecommunications Act

The ZBA's main reason for concluding that Omnipoint's

proposed wireless facility would impair the integrity of the

surrounding neighborhood was that the tower would be visible to

- 13 - residential abutters in a cluster-style development where the

natural wooded areas are essential to the character of the

community.

The First Circuit has held that visual impact and aesthetics

are valid considerations, provided that the aesthetic judgment is

"grounded in the specifics of the case" and is not a pretext for

a prohibition of wireless services. See Todd.244 F.3d at61.

Generalized negative comments submitted by residents that could

be applicable to any wireless tower are not an appropriate basis

for rejection based on aesthetic grounds. See ATC Realty.

; Todd. 244 F.3d at 61. Comments regarding aesthetic

and visual impact that focus on the tower in the context of its

proposed location, however, are appropriate for the ZBA to

consider.

There is substantial evidence in the record to support the

ZBA's conclusion that the visual and aesthetic impact of this

proposed tower would be out of character with the surrounding

neighborhood. Residents provided extensive testimony at two ZBA

public meetings regarding the proposed location of the tower and

its context within the community. See CR 21, 32. For example,

resident David Toub, whose property abuts the area targeted by

- 14 - Omnipoint in its proposal, testified that he sited his house on

the back of his property and added a screened-in porch and a deck

to his home because of assurances he received that the common

area near his home would remain in its natural undeveloped state.

CR 21 at 22. Other residents also testified that they would be

able to see the base of the tower from the windows facing their

backyard. See CR 21 at 30 (testimony of Gay Rosenfeld), 33

(testimony of Joseph Guiliano), 34 (testimony of Ann Phillips);

CR 32 at 19 (testimony of Sue Pothier), 32 (testimony of Joseph

Zidek). Many residents testified that they considered the wooded

area to be an important part of the Coburn Woods community and

that the visual impact of the proposed tower would be out of

character with the development. See, e.g.. CR 21 at 25

(testimony of David Kosofsky), 33 (testimony of Steve Hattamer),

35 (testimony of Monica Dove).

In addition, residents testified that the wooded common area

is used for recreation and contains walkways used by pedestrian

schoolchildren to walk to nearby Birch Hill Elementary School.

See, e.g.. CR 21 at 22 (testimony of Tim Bawmann), 27 (testimony

of Kelly Bawmann), 36 (testimony of Ann Phillips). For example,

resident Steve Hattamer testified that there is significant

- 15 - pedestrian traffic in the wooded common area including hikers and

children; Mr. Hattamer also testified that nearby elementary

school teachers have led school field trips into the woods to

look at the animals. See CR 21 at 32. Sue Pothier testified

that her daughter and friends have used the wooded area for

recreation and play. See CR 32 at 17.

To rebut these comments. Omnipoint presented evidence that

the land is currently being used as a holding place for

construction equipment, not as a place of recreation. See CR 32

at 5, 12. Omnipoint noted that the ultimate location of the

tower would not interfere with any pedestrian paths, and it

emphasized that the tower would be minimally visible, landscaped

at its based to camouflage the fenced-in area and rising only 26

feet above the tree canopy. CR 32 at 5.

Under substantial evidence review, "the courts defer to the

decision of the local authority, provided that the local board

picks between reasonable inferences from the record before it."

Nat'l Tower.

. While there are multiple inferences

that could be drawn from the record in this case, it was

reasonable for the ZBA to infer from the testimony provided by

residents, together with material submitted by attorneys for the

- 16 - residents, that the proposed tower would be visually,

aesthetically, and functionally out of character with the

surrounding neighborhood. See Todd. 244 F.3d at 62 (noting that

the fact that two inconsistent conclusions could reasonably be

drawn from the evidence does not preclude a finding that the

decision was supported by substantial evidence).2

B. State Law Analysis

Omnipoint has also failed to meet its burden of

demonstrating that the ZBA's decision was illegal or

unreasonable. See

. Omnipoint makes

no suggestion that the ZBA acted illegally, it argues only that

the ZBA acted unreasonably. The ZBA is authorized under New

Hampshire state law to make decisions on special exceptions in

accordance with the City of Nashua's Land Use Code. See

IV. I have already explained that the

ZBA's decision was supported by substantial evidence. For the

same reasons, its decision was reasonable and in compliance with

2 Because I find that there is substantial evidence in the record to support the ZBA's conclusion that Omnipoint's proposed tower would be out of character with the surrounding neighborhood visually, aesthetically, and functionally, I need not address the ZBA's other rationales for its decision.

- 17 - New Hampshire law.

IV. CONCLUSION

For the reasons stated above, defendant's motion for partial

summary judgment (Doc. No. 10) is granted, and plaintiff's

partial motion for summary judgment (Doc. No. 12) is denied. The

clerk is directed to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro_____ Paul Barbadoro United States District Judge

February 6, 2008

cc: Jennifer Parent, Esq. Kristin M. Yasenka, Esq. David R. Connell, Esq. James M. McNamara, Esq.

- 18 -