New Cingular v. Manchester, et al. 11-CV-334-SM 2/28/14 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

New Cingular Wireless PCS, LLC, Plaintiff

v. Case No. ll-cv-334-SM Opinion No.

City of Manchester, NH; and Zoning Board of Adjustment of the City of Manchester, NH, Defendants

O R D E R

Plaintiff, New Cingular Wireless PCS, LLC ("AT&T"), proposes

to construct a cell tower in Manchester, New Hampshire, to fill a

gap in cellular telephone coverage. The Zoning Board of

Adjustment of the City of Manchester ("Board") denied an area

variance twice - once prior to the filing of this suit, and once

on remand by consent of the parties. AT&T sues the City of

Manchester ("City") and the Board under the Telecommunications

Act of 1996,

et. seg. ("TCA") and section 677:4

of the New Hampshire Revised Statutes Annotated.

AT&T argues that the Board' s decisions to deny the variance

are not supported by substantial evidence (Count I ) , result in an

effective prohibition on the extension of personal wireless

services in an identified coverage gap (Count II), and violate

state law (Count V ) . Before the court are the parties' cross-

motions for summary judgment on Count II (document nos. 28 and

31). After the motions were filed, the parties stipulated to all material facts and submitted all counts for trial by the court as

a case stated. The court held a hearing on February 20, 2014.

Having heard the parties' arguments and having carefully

reviewed and considered the evidence presented, the court makes

the following findings of fact and conclusions of law, as

required by Rule 52 of the Federal Rules of Civil Procedure.

Fed. R. Civ. P. 52(a). The court notes that AT&T submitted a

very detailed and extensive set of proposed findings and

conclusions. It is well settled, however, that the court "does

not have to make findings on every proposition put to it by the

parties." Applewood Landscape & Nursery Co. v. Hollingsworth,

(1st Cir. 1989) (quoting Morgan v. Kerrigan,

, 588 n.14 (1st Cir. 1974)). Rather, the findings

simply need be "sufficient to indicate the factual basis for the

ultimate conclusion." Kelley v. Everglades Drainage District,

(1943) (per curiam). If either party believes

that additional findings of fact and conclusions of law, beyond

those made below, are necessary to support the court's ruling or

clarify the status of a claim or defense, it should submit a

written request for (a limited number of) additional findings and

conclusions within fifteen days of the date of this Order.

Background

1. The City of Manchester's zoning ordinance prohibits the

siting of wireless communication facilities in 80-85% of the

2 City, including all residential zoning districts, except

that variances may be allowed.

On December 21, 2010, AT&T applied for variances from

certain sections of the ordinance to construct a 100' tower

facility at 235 South Mammoth Road in Manchester, which is

located in an R-1B Residential District. AT&T sought to

address coverage problems in and around the R-1A and R-1B

Residential Districts in south central Manchester, where

telecommunications towers and antennas are not permitted.

After public hearings in January and February of 2011,

the Board voted 3-2 to approve AT&T's application, subject

to two conditions.

At the request of individuals opposed to construction

of the tower, however, the Board held a rehearing on April

14, 2011, and reversed itself, voting 4-1 to deny the

variances. AT&T's own subsequent request for a rehearing

was denied in June of 2011 and AT&T appealed.

At the parties' request, the court, by order dated July

25, 2013 (document no. 58), remanded this matter to the

Board "for the limited purpose of allowing the Board to

consider AT&T's additional information."

3 On September 25, 2013, the Board held a public hearing

to consider AT&T's additional information. The Board voted

3-1 to affirm its denial of AT&T's variance application. It

denied AT&T's subsequent request for rehearing.

AT&T's second amended complaint includes an appeal and

challenge to both the Board's original denial of AT&T's

application in April of 2011, and its denial after remand in

September of 2013.

Count I Effective Prohibition Under

(c)(7)(B)(i)(II)

The TCA provides, in part, that "[t]he regulation of

the placement, construction, and modification of personal

wireless service facilities by any State or local government

or instrumentality . . . shall not prohibit or have the

effect of prohibiting the provision of personal wireless

services."

(c) (7) (B) (i) (II) .

The court reviews AT&T's effective prohibition claim de

novo. National Tower, LLC v. Plainville Zoning Bd. of

Appeals,

(1st Cir. 2002).

When a carrier claims an individual denial [of a

permit] is an effective prohibition, virtually all circuits

require courts to (1) find a ''significant gap' in coverage

4 exists in an area and (2) consider whether alternatives to

the carrier's proposed solution to that gap mean that there

is no effective prohibition." Green Mountain Realty Corp. v.

Leonard,

(1st Cir. 2012) (quoting Omnipoint

Holdings, Inc. v. City of Cranston,

(1st

Cir. 2009) ) .

11. The City's denials of AT&T's site-specific application

in 2011 and 2013, individually and in combination with the

City's failure to lease AT&T a suitable nearby city-owned

alternative property because of neighborhood opposition,

effectively prohibit AT&T from providing competitive and

reliable personal wireless services in the residentially-

zoned area.

Significant Coverage Gap 12. AT&T has a significant gap in coverage in Manchester

within the meaning of the TCA and AT&T's proposed facility

will address that coverage gap.

13. In finding that a significant coverage gap exists, the

court has considered factors such as the physical size of

the gap, the number of users the gap affects, percentages of

unsuccessful calls or inadequate service during calls in the

gap area, the need for coverage around a heavily traveled

and important route, and the carrier's "standard for

5 reliable service . . . to satisfy customers" based on

"signal levels." Omnipoint,

.

Lack of reliable in-building coverage is also a

relevant consideration. See U.S.C.O.C of NH v. Town of

Dunbarton,

, at *5 (D.N.H. April 20, 2005)

(DiClerico, J.). Reliable in-building coverage is essential

to consumers and carriers. T-Mobile v. City of Huntington

Beach,

, at *4-5 (CD. Cal. 2012) . AT&T has

proven the lack of reliable in-building coverage in the

relevant target area.

The evidence establishes that AT&T has a significant

gap in coverage within the meaning of the TCA. The coverage

problems extend nearly three square miles along and

surrounding South Mammoth Road in Manchester (the "target

area"). AT&T's coverage problems in Manchester affect an

area large in size and highly populated, and affect highly

traveled roads and numerous homes.

Expert testimony, AT&T network performance data, and

drive tests all demonstrate that AT&T is unable to provide

competitive, reliable in-building wireless service to

numerous businesses and residences in the target area.

Specifically, within a densely populated, residentially

zoned area measuring about 1.6 miles (north to south) by 1.8

6 miles (east to west) , AT&T has in-building coverage gaps of

marginal or no service affecting some 2600 residents who

live in the area.

In addition, residents in the target area and tens of

thousands of drivers daily along South Mammoth Road and

connector streets experience "pilot pollution" interference

problems.

Moreover, the significant daily traffic volume on South

Mammoth Road and its connector streets, and on 1-93, 1-293,

and NH Route 101 (daily traffic volumes of 47,000 to

102,000) lead to capacity problems in and around the target

area.

In the absence of the proposed facility, consumers in

the target area have experienced and will experience, as a

result of pilot pollution and capacity problems, increased

interference, repeated and ineffective handovers, dropped

calls, network congestion, an increase in the noise floor of

the system, and the forced hand-down of users from high

speed 3G to slower 2G service.

AT&T's coverage problems in the target area are a

reflection of the exponential growth in the use of wireless

technology for voice, text and data applications, social

7 media and internet access, emergency communications, and

other uses.

21. AT&T's proposal advances the TCA's important national

goals of "creating a seamless national wireless

communication system" and of "encouraging competition" among

carriers to provide consumers with "higher-quality wireless

technology."

No Feasible Alternatives 22. There are no feasible alternatives to AT&T's proposed

solution. AT&T's proposal is the only feasible plan to

address its coverage problems in Manchester.

23. Ironically, the City has itself twice refused, because

of neighborhood pressure, to lease the nearby and perfectly

acceptable Manchester Water Works property to AT&T as an

alternative site for the proposed facility, thereby forcing

the location into a less amenable neighborhood and foregoing

an income stream.

24. AT&T has shown that other potential sites are not

feasible for coverage reasons, the unwillingness of property

owners to rent, or both.

8 Moreover, AT&T "investigated thoroughly the possibility

of other viable alternatives" before concluding that no

other feasible plan exists, Omnipoint,

. The

City's suggested alternatives are not feasible.

For example, the Engine 8 site is not a feasible

alternative. The tower at that site would need to be taller

than 200 feet to provide the necessary coverage. But the

Federal Aviation Administration cannot approve a tower of

that height at the Engine 8 property because of its close

proximity to the Manchester Airport. The Engine 8 site is

also too small, given its configuration, to accommodate

AT&T's equipment.

The Church of God and Green Acres/McLaughlin school

locations are not feasible alternative sites. A tower at

each of those sites would, necessarily, have to be at least

146-159 feet tall. Moreover, the sites are located in the

same residential neighborhood where residents have opposed

both the proposed facility and the alternative Water Works

site. A tower at either location would be even more visible

because the sites have substantially less tree cover than

AT&T's proposed site; and one site is near a school whose

principal objects to a tower.

9 To the extent the City "could prefer other solutions on

aesthetic grounds," Second Generation Properties v. Town of

Pelham,

(1st Cir. 2002), it has failed to

specifically identify any such feasible alternative solution

(and, as noted, will not lease its own Water Works site -

surely an aesthetically more pleasing option). There is no

evidence that such a feasible alternative exists.

Substantial Evidence Claim

(c)(7)(B)(iii)

The TCA provides that "[a]ny 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."

47 U.S.C § 332(c)(7)(B)(iii).

"Substantial evidence does not mean a large or

considerable amount of evidence, but rather such evidence as

a reasonable mind might accept as adequate to support a

conclusion." ATC Realty v. Town of Kingston,

(1st Cir. 2002) .

Nevertheless, judicial review for substantial evidence

is not a "rubber stamp." A town board "is not free to

prescribe what inferences from the evidence it will accept

10 and reject, but must draw all those inferences that the

evidence fairly demands." Southwestern Bell Mobile Sys. v.

Todd,

, 59 (1st Cir. 2001).

In New Hampshire, "[t]o obtain a variance, a landowner

bears the burden of showing that (1) the variance will not

be contrary to the public interest; (2) special conditions

exist such that literal enforcement of the ordinance results

in unnecessary hardship; (3) the variance is consistent with

the spirit of the ordinance; (4) substantial justice is

done; and (5) granting the variance will not diminish the

value of surrounding properties." Farrar v. City of Keene,

(2009). See also

, I (b) .

In February of 2011 the Board found that AT&T had

satisfied all statutory criteria for the requested

variances. Two months later, on April 14, 2011, the Board

reached the direct opposite conclusion, and denied the

variances.

The Board gave the following reasons for its denial:

(i) the facility was not in the public interest; (ii)

because wireless communications facilities are permitted as

of right in other districts, the facility was not in the

"spirit" of the zoning ordinance; (iii) substantial justice

11 would not be done to the neighborhood due to construction at

the site, ongoing noise from the generator and routine

maintenance; (iv) expert testimony submitted by the abutters

indicated that property values would be diminished; and (v)

no hardship existed because research had not been done with

regard to finding multiple structures, higher structures, or

antennas "hidden" in existing structures, and the facility

could not be considered a reasonable use in the single-

family neighborhood.

The Board's April 2011 denial of AT&T's application,

and the reasons it offered in support, are not supported by

substantial evidence.

irit of the Zoning Ordinance

Substantial evidence does not support the Board's

finding that the requested variances would be contrary to

the spirit of the zoning ordinance. The only reason the

Board gave for that finding is that "[t]elecommunications

towers are permitted in the B-2, IND and RDV zones." But

that is classic circular reasoning. Essentially, the Board

"determined that the variance would violate the spirit of

the ordinance because it violated the ordinance." New

Cingular Wirless v. Town of Greenfield,

, at

*5 (D.N.H. 2010). Accordingly, the Board failed to give "a

12 sufficient explanation" for its finding.

The point of

a variance is to permit an otherwise impermissible use.

Public Interest 37. The Board's conclusion that the requested variances

would not be in the public interest is likewise not

supported by substantial evidence.

38. The Board found that "[t]he proposed telecommunications

tower at this location would not be in the public interest

given the number of residents in opposition at the hearing"

and the purported fact that these residents were not given

enough information and were not allowed "reasonable access

to the submitted report prior to the meeting."

39. The simple fact, cited by the Board here, that many

neighbors opposed the tower, is not substantial evidence

supporting the Board's denial. Cf. Sprint Spectrum, L.P. v.

Cty. of St. Charles,

, at *6 (E.D. Mo. July

6, 2005) (finding that "[a] ,not in my backyard' generalized

objection does not constitute substantial evidence to

support the denial of a tower permit.").

40. The Board's additional finding that neighbors were not

allowed "reasonable access to the submitted report prior to

the meeting," likewise, is not substantial evidence

13 supporting the Board's public interest rationale. The Board

continued the hearing on AT&T's application, allowing

interested persons more than sufficient time to review the

application.

A variance is contrary to the public interest if it

"unduly, and in a marked degree conflicts with the ordinance

such that it violates the ordinance's basic zoning

objectives." Greenfield,

, at *5 (quoting

Farrar,

).

AT&T's proposal does not unduly and in a marked degree

conflict with the ordinance's basic purposes, and in fact,

promotes them in substantial part. The provision of

wireless communication coverage directly advances the

ordinance's stated purposes of protecting and promoting

public safety, and enhancing convenience, comfort,

prosperity, and general welfare of Manchester's residents.

The evidence demonstrates that the proposed site would

further economic development and public safety.

The proposed facility would not undermine the

ordinance's stated purposes of "conserving property values

by preventing harmful encroachment of incompatible uses" and

"encouraging the most appropriate use of land." The tower

will be located in the middle of a 4.5 acre parcel; buffered

14 by substantial setbacks; disguised, at least somewhat, as a

faux tree; and screened by tall existing trees.

44. Although the top of the tower will be seen from several

vantage points, "in nearly every documented instance, all

that would be visible is a small portion of the top of the

tower extending above the treetops." Greenfield,

, at *7.

Substantial Justice 45. The Board concluded that "[s]ubstantial justice would

not be done to the neighborhood as there will be

construction at the site, on-going noise from the generator

and routine maintenance." That rationale is not supported

by substantial evidence.

46. The Board's determination fails to account for the fact

that the construction noise will be temporary; that the

generator, except in emergencies, will run only briefly

during weekly testing (lasting 30 minutes); and that the

unmanned facility will be visited by a technician on an

infrequent basis for routine maintenance.

47. The Board's determination also "fails to account for

substantial benefits the public will obtain if the tower is

built as proposed."

15 48. The benefits ignored by the Board include: advancing

the significant public purposes of the TCA; improving

advanced, seamless, competitive, state-of-the-art wireless

communication coverage in the target area in Manchester,

which, among other things will enhance public safety and

economic development; and providing opportunities for

collocation, which would diminish the need for other

carriers to build their own towers in the vicinity.

49. In the end, the Board impermissibly failed to weigh

predictable localized concerns against those "gain[s] to the

general public."

Property Values 50. The fourth reason the Board gave for denying AT&T's

request was that the proposed facility would diminish

property values. That determination is not supported by

substantial evidence.

51. The sole expert report upon which the Board relied is

not site-specific, is factually inaccurate, and relies upon

a flawed methodology.

52. The Board ignored the reports of AT&T's experts -

reports that showed that property values would not be

diminished. The reports included a site-specific Market

16 Study; a study of telecommunications towers in Manchester;

and studies of the effect of telecommunications towers

located in several communities near Manchester. See

generally Southwestern Bell, 244 F.3d at 59 (a board "'is

not free to prescribe what inferences from the evidence it

will accept and reject, but must draw all those inferences

that the evidence fairly demands.'") (quoting Allentown Mack

Sales & Serv. v. NLRB,

(1998)).

Unnecessary Hardship

53. The Board also determined that AT&T had not met its

burden of showing that a denial of its request would be an

"unnecessary hardship" because "[r]esearch had not been done

at other locations with regards to finding multiple

structures, higher structures or antennas hidden in existing

structures." The Board also found that "[t]he

telecommunication tower could not be considered a reasonable

use in this single-family neighborhood." The Board's

finding regarding hardship is not supported by substantial

evidence.

54. The Board's rationale is factually flawed. As the

court has already found, AT&T has, in fact, conducted

research at other locations, and has demonstrated that there

are no feasible alternatives to address the coverage and

17 capacity needs (except, of course, the City's own Water

Works site).

In addition, as already found, AT&T has demonstrated

that it has an immediate and compelling need to locate a

tower in the target area of Manchester to address

significant coverage issues.

"When an application to build a wireless

telecommunications tower is designed to fill a significant

gap in coverage, the suitability of a specific parcel of

land for that purpose should be considered for purposes of

determining hardship. The fact that a proposed location is

centrally located within the gap, has the correct

topography, or is of an adequate size to effectively

eliminate the gap in coverage, are factors that may make it

unique under the umbrella of the TCA." Daniels v. Town of

Londonderry,

(2008) .

The proposed site, here, is "unique under the umbrella

of the TCA" because of its large size, favorable topography,

proximate location to the area requiring service,

significant setbacks, extensive masking tree coverage and

vegetation, and its proximity to several heavily traveled

state and interstate highways.

18 58. The Board's additional finding that a tower would not

be a "reasonable use" within the single-family neighborhood

skirts the hardship question, since the hardship standard

applies to "both the use and area variances." Id.

59. On September 25, 2013, after remand, the Board again

denied AT&T's variance application. The Board stated that

AT&T "failed to show that they did their due diligence in

acquiring an alternative location" and "failed to prove that

alternative sites were unacceptable."

60. The Board's findings are not supported by substantial

evidence. As already noted, AT&T diligently evaluated and

ruled out numerous alternatives, and the feasible

alternative of the Water Works site was made unavailable by

the City itself.

State Law Claim

Because the City's decision violates the TCA, it is

unenforceable. It is unnecessary (even if appropriate - which

may be doubtful) therefore, to resolve AT&T's state law claim,

which is deemed moot. See Nextel v. Town of Wayland,

(D. Mass. 2002).

19 Conclusion

The Board's 2011 and 2013 denials of AT&T's variance

applications, violated the TCA's effective prohibition ban. In

addition, the Board's decisions are not supported by substantial

evidence. Accordingly, those decisions are reversed.

In this case, "like in the majority of cases, the proper

remedy for a zoning board decision that violates the" TCA is an

order "instructing the board to authorize construction." National

Tower,

. An injunction is warranted here in

order to avoid "multiple rounds of decisions and litigation" and

because a second remand to the Board would "serve no useful

purpose." Id; Brehmer v. Planning Board,

(1st

Cir. 2001). Accordingly, the Board shall promptly authorize

construction of the tower as proposed and subject to the

conditions imposed by the Board in its February 10, 2011, initial

approval of AT&T's application.

Plaintiff's motion for partial summary judgment (document

no. 2_8) is granted. Defendants' cross-motion for partial summary

judgment (document no. 3JJ is denied.

Plaintiff s "Assented to Motion to Amend Complaint"

(document no. 6_6) is granted. Defendants' "Motion to Strike the

Supplemental Affidavit of Daniel L. Goulet" (document no. 3_7) is

denied. Plaintiff's "Motion in Limine to Preclude Defendants

20 from Relying on Inadmissible and Irrelevant Information in the

Board Record" (document no. 4_6) is denied. Plaintiff's

"Supplemental Motion in Limine to Preclude Defendants from

Relying on Inadmissible and Irrelevant Information in the Board

Record" (document no. 7_0) is denied.

The clerk of the court shall enter judgment in accordance

with this order and close the case.

SO ORDERED.

February 28, 2014

cc: Stephen D. Anderson, Esq. Peter R. Chiesa, Esq. Adam T. Kurth, Esq. Anne Robbins, Esq.

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