UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

T-Mobile Northeast, LLC et al

v. Civil No. 17-cv-339-LM Opinion No.

Town of Bedford, NH et al

O R D E R

To fill a gap in cellular telephone coverage, plaintiffs,

T-Mobile Northeast, LLC (“T-Mobile”) and American Towers, LLC

(“American Towers”), seek to construct a new wireless

telecommunications tower in Bedford, New Hampshire. They

applied for a special exception from the Town of Bedford Zoning

Board of Adjustment (“ZBA”) to allow this construction, which

the ZBA denied. Plaintiffs filed suit against the ZBA and the

Town of Bedford, NH (“Town”), alleging that the ZBA’s denial of

their special exception application effectively prohibited the

provision of personal wireless services in the identified gap in

violation of the Federal Telecommunications Act,

(c)(7)(B)(i)(II). Before the court are the parties’ cross-

motions for summary judgment. For the following reasons,

plaintiffs’ motion is granted and defendants’ motion is denied. STANDARD OF REVIEW

A movant is entitled to summary judgment if it “shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “A fact is material if its resolution might

affect the outcome of the case under the controlling law.”

Cochran v. Quest Software, Inc.,

(1st Cir. 2003).

“A genuine issue exists as to such a fact if there is evidence

from which a reasonable trier could decide the fact either way.”

Id.; see also Ricci v. DeStefano,

(2009)

(“Where the record taken as a whole could not lead a rational

trier of fact to find for the nonmoving party, there is no

genuine issue for trial.” (quotation omitted)).

“To defeat a properly supported motion for summary

judgment, the nonmoving party must establish a trial-worthy

issue by presenting enough competent evidence to enable a

finding favorable to the nonmoving party.” ATC Realty, LLC v.

Town of Kingston, N.H.,

(1st Cir. 2002)

(quotation and brackets omitted). In reviewing the record, the

court construes all facts and reasonable inferences in the light

most favorable to the nonmovant. Kelley v. Corr. Med. Servs.,

Inc.,

(1st Cir. 2013). “Where the parties

file cross-motions for summary judgment, [the court] employ[s]

the same standard of review, but view[s] each motion separately,

2 drawing all inferences in favor of the nonmoving party.” Fadili

v. Deutsche Bank Nat. Tr. Co.,

(1st Cir.

2014).

BACKGROUND

T-Mobile provides wireless communications services,

including voice, data, and wireless broadband internet services,

throughout New England pursuant to licenses issued to it by the

Federal Communications Commission. To ensure seamless provision

of these services, T-Mobile uses a network of wireless

telecommunication facility sites, commonly known as cell towers,

spaced in a grid-like, or “honeycomb-like” pattern. American

Towers constructs, owns, and manages wireless telecommunication

facilities used by T-Mobile and other wireless carriers to

provide services.

This suit arises out of plaintiffs’ desire to construct a

130-foot monopole wireless telecommunications facility at 25

Tirrell Road in Bedford. Plaintiffs allege that this facility

is necessary to fill a coverage gap of approximately 6.7 square

miles in southern Bedford, near the areas of Back River Road,

County Road, and a portion of Wallace Road.

After discovering the lack of adequate wireless services in

the above-described gap area, T-Mobile determined that none of

its existing facilities could be upgraded or modified to remedy

3 the gap in services. It then surveyed the greater Bedford area

for collocation opportunities on pre-existing cell towers, and

for other existing structures that could be adapted for use.

Finding no suitable existing structures, plaintiffs’ radio

frequency engineer identified a “search ring” within which a new

facility would need to be constructed to remedy the gap in

services.1

Plaintiffs’ site analysts surveyed the properties within

the search ring for viable construction sites. The analysts

conducted an initial screening process using an aerial or

satellite survey of the search ring to identify potential

exceptions to the land use pattern that would provide an

opportunity for a wireless telecommunications facility site.

See doc. no. 13-8 at 3. In particular, the analysts searched

for large areas of open land, preferably forested but not wet,

that do not have extreme topography.

After locating

possible sites, the analysts then conducted a four-step

feasibility analysis for each potential site. Doc. no. 13-6 at

10. First, they determined which sites were radio frequency

1Plaintiffs also considered alternatives to a “macro” site plan (i.e. a full-size tower), including a Distributed Antenna System, “small cell” technology, and signal boosters. See doc. nos. 14-8 at 7-8, 14-16 at 12. However, plaintiffs determined those options to be infeasible based, primarily, on those technologies’ limited range in comparison to the scale of the gap in services. See doc. nos. 14-8 at 7-8, 14-21 at 16-18.

4 approved, meaning that a tower at that site could technically

provide coverage in the gap. Second, they determined whether

any radio frequency viable sites were “leaseable;” in other

words, whether the owner of the land was interested in leasing

it.

Third, they considered the likelihood of

“environmental approval” of the sites, including zoning and

wetland concerns.

Finally, they evaluated the

“constructability” of the sites, including access to the site,

and availability of utilities.

Plaintiffs contend that, applying these criteria, they

considered and ruled out eleven viable properties within the

search ring: Utility Transmission Stanchions on Camp Allen Road;

25 Strawberry Hill Road; Camp Allen, 56 Camp Allen Road;

Pennichuck Water Works, Sebbins Pond Drive; Girl Scouts of the

Green and White Mountains, 26 Camp Allen Road; Global Premier

Soccer League, Camp Allen Road; Manchester Boys and Girls Club,

36 Camp Allen Road; 22 Tirrell Road; 94 Back River Road; 80

Forest Drive; and 148 Back River Road. Doc. no. 14-1 at 6-9.

As will be discussed in more detail below, plaintiffs ruled out

each of these properties for various reasons. Plaintiffs

contend that they ultimately settled on 25 Tirrell Road (the

“subject property”) because it was the only property in the

search ring that met all of the feasibility criteria, including

a willing landowner.

5 The subject property is located in Bedford’s Residential-

Agricultural district. The Town’s Zoning Ordinance permits

wireless telecommunication facilities in all zoning districts.

However, under the Ordinance, an applicant seeking to construct

a “[n]ew commercial ground mount wireless telecommunications

facilit[y],” must obtain a special exception from the ZBA. Doc.

no. 13-4 at 9. Even with a special exception, such facilities

are limited to 130 feet in height.

The Ordinance further

outlines the applicant’s burden of proof in seeking a special

exception:

The applicant shall have the burden of proving that there are no existing structures that are suitable to locate its wireless telecommunications facility; that the proposed facility will fill an existing significant gap in the ability of remote users to access the national telephone network; that the manner in which the applicant proposes to fill the significant gap in service is the least intrusive manner with respect to visual impact, environmental impact and safety. This will require a showing that a good-faith effort has been made to identify and evaluate less intrusive alternatives, including that the provider has considered less sensitive sites, alternative system designs, alternative tower designs or placement of antennas on existing structures.

Id. at 10. The Ordinance requires an applicant to provide with

its application, among other things, “[a] list of all contacts

made with owners of potential sites regarding the availability

of potential space for” a facility, and an aesthetic mitigation

proposal. Id. at 10-11.

6 In December 2016, after executing an option to lease the

subject property, plaintiffs applied for a special exception and

a dimensional variance for tower height to construct a 150-foot

monopole telecommunications facility on the subject property.

Doc. no. 13-3 at 9, 15. Plaintiffs submitted numerous materials

in support of their application, including a radio frequency

analysis, maps demonstrating current coverage and projected

coverage after construction, and an analysis of alternative

sites. Id. at 43-61. Specifically, the alternative site

analysis identified five potentially viable sites: Camp Allen

Road Utility Stanchions, 80 Forest Drive, 25 Strawberry Hill

Road, 97 Back River Road, and 25 Tirrell Road. Id. at 58. The

alternative site analysis explained why the four other sites

were not feasible, leaving 25 Tirrell Road.

The ZBA held hearings on plaintiffs’ special exception

application on January 17, March 21, and April 18, 2017. At

the March 21 hearing, some ZBA members raised concerns about

plaintiffs’ efforts to identify and evaluate alternative sites.

Specifically, a ZBA member pointed out that the address “97 Back

River Road” did not exist in town records, and that 80 Forest

Drive did not appear to be a large enough lot for construction

of a wireless tower. See doc. no. 13-6 at 9. Plaintiffs’ site

acquisition consultant, Mike Almada, responded that there may

have been a “mismatch” of the address for 97 Back River Road.

7 Id. Almada further explained that he was not familiar with 80

Forest Drive and that the person who did the initial field

survey was “no longer with [plaintiffs].” Id. ZBA members also

pointed out that plaintiffs had mischaracterized the lot sizes

in the search ring as small, one-fourth to one-half acre lots,

when the average lot size is one acre. Id. at 14-15.

Plaintiffs’ counsel conceded that he was unable to provide

a “clear answer” to all of the ZBA’s questions about alternative

sites. Id. at 10. ZBA Chairman John Morin stated that he was

“not comfortable with [plaintiffs’] alternative site

submission.” Id. ZBA member Chris Swiniarski also commented

that the alternative site analysis was “the biggest hurdle in

this application,” and that it would be helpful if plaintiffs

provided specific details of the feasibility analysis it applied

to each potential site. Id. at 11. Plaintiffs’ counsel replied

that he heard the ZBA’s concerns “loud and clear” and asked that

they table the application until the ZBA’s next public hearing.

Id.

Prior to the ZBA’s April 18 hearing, plaintiffs amended

their special exception application to request approval for a

130-foot tower, rather than a 150-foot tower, and, consequently

withdrew their request for a height variance. Plaintiffs also

supplemented their alternative site analysis. The supplemental

8 analysis concerned the same five potential sites addressed in

the initial analysis, but provided greater detail as to why each

of the four alternative sites had been rejected.

At the April 18 hearing, plaintiffs presented their

supplemental alternative site analysis to the ZBA. As to 56

Camp Allen Road, plaintiffs explained that this property was

originally considered based on the prospect of extending the

existing utility stanchions. However, that scenario was

rejected for a number of reasons: insufficient height of

stanchions, construction difficulties, and inability to conduct

maintenance on antennas once installed. Doc. nos. 13-7 at 36,

13-8 at 3. Plaintiffs further explained that they had

discovered that the 56 Camp Allen parcel was larger than

initially believed, so another location in that parcel was

considered for construction of a new tower. However, they

eliminated that site as a possibility because “in addition to

the fact that [the owners] did not respond to inquiry, [the

site] is well beyond the search ring, [and] it is close to an

existing T-Mobile site.” Doc. no. 13-8 at 3-4.

Plaintiffs also addressed the other alternative sites.

They explained that 80 Forest Drive had been rejected due to

zoning concerns, including setback requirements, and that 94

9 Back River Road2 had been rejected due to its proximity to

conservation land. Plaintiffs represented that the owner of 25

Strawberry Hill Road did not respond to plaintiffs’ written

proposals to lease the property. Additionally, plaintiffs

admitted that their description of the typical lot size in the

search ring as one-fourth to one-half acre was inaccurate.

However, they explained that the fact that the average lot size

is, in fact, one acre did not affect their alternative site

analysis. Id. at 7.

Following plaintiffs’ presentation and input by the public,

the ZBA moved into deliberations on the application and reviewed

each of the special exception criteria. Several ZBA members

raised concerns regarding the Camp Allen property, noting that

the information presented was contradictory and confusing. See

id. at 26. Specifically, ZBA members appeared confused about

how the property could both be outside of the search ring and

have been eliminated as a possibility because the property owner

did not respond to inquiries. Id. ZBA members observed that

they were not “satisfied that that alternative was explored” and

that they did not think that they had “gotten enough information

to really say yes Camp Allen was evaluated.” Id. at 26, 28.

2 Plaintiffs’ supplemental analysis clarified that the property previously referred to as “97 Back River Road” is properly known as 94 Back River Road. Doc. no. 13-7 at 38.

10 The ZBA also questioned whether plaintiffs made sufficient

efforts to contact the owner of 25 Strawberry Hill Road.

Given these reservations, the ZBA unanimously voted to deny

plaintiffs’ request for a special exception. The ZBA

subsequently issued a written decision explaining that its

denial was based on two primary findings: (1) plaintiffs offered

insufficient evidence “that a good faith effort ha[d] been made

to evaluate alternative sites that would present a lesser

impact”; and (2) plaintiffs did not provide for adequate

aesthetic mitigation of the tower.3 Doc. no. 13-10 at 1-2.

Plaintiffs moved for a rehearing. In support, they offered

additional evidence of their efforts to evaluate alternative

sites, including the affidavit of Amber Debole, who conducted

the initial evaluation and contact of the Camp Allen property.

They also offered evidence of their post-decision efforts “to

solicit interest from Camp Allen and several other property

owners in the vicinity.” Doc. no. 13-11 at 8. More

specifically, the motion for rehearing listed seven alternative

sites plaintiffs contacted after the ZBA’s decision and noted

3 During the April 18 hearing, the ZBA questioned plaintiffs about how the design of the wireless tower was the least intrusive with respect to visual impact and why they were not using a “stealth” design. Plaintiffs explained that a stealth design was not feasible because modern antennas require air flow and “putting it in an enclosed structure would [cause] limitation of” the antenna’s function. Doc. no. 13-8 at 8.

11 that five of the seven—including Camp Allen—expressed interest

in “explor[ing] the possibility of [locating] a wireless

facility” at those sites. Id. at 8-9. Plaintiffs represented

that they “intend[ed] to actively explore these properties with

the owners between now and the ZBA’s next schedule[d] meeting on

June 20, as a measure of good faith and commitment to exhausting

potential sites identified by the ZBA.” Id. at 9.

Plaintiffs subsequently filed an amended motion for

rehearing updating their post-decision efforts to evaluate

alternative sites. Doc. no. 13-12 at 6-14. In this amended

motion, plaintiffs represented that, as to the five interested

property owners, they had met with the owners, walked their

properties, and conducted initial feasibility analyses for tower

location. Id. at 12. However, all five property owners

ultimately concluded that they were not interested in having a

facility located on their respective properties and each

executed a written response to that effect.

At its June 20 hearing, the ZBA denied plaintiffs’ request

for rehearing, reasoning that no “new facts had been presented

in the rehearing request that could not have been reasonably

discovered during the initial proceedings and prior to” the

ZBA’s original decision on the application. Doc. nos. 13-14 at

6, 13-15 at 1. During the hearing, some ZBA members expressed

concerns that allowing plaintiffs to submit information that was

12 previously available to them, and which could have been

submitted with the original application, could allow hearings to

“go on forever and ever.” Doc. no. 13-14 at 2.

The following month, plaintiffs filed this suit alleging

that the ZBA’s denial of their special exception application

effectively prohibits them from providing personal wireless

services to the gap area in violation of the Federal

Telecommunications Act. Doc. no. 1 at ¶¶ 53-54.

DISCUSSION

The parties move separately for summary judgment on

plaintiffs’ only claim of effective prohibition. Both parties

assert in their respective motions that there are no genuine

issues of material fact and that plaintiffs’ claim should be

resolved on summary judgment. Doc. nos. 13-1 at 10, 14-1 at 12.

The Federal Telecommunications Act (“TCA”) “reflects

Congress’s intent to expand wireless services and increase

competition among providers.” Green Mountain Realty Corp. v.

Leonard,

(1st Cir. 2012) (hereinafter “Green

Mountain I”) (quotation and ellipsis omitted). It also

represents “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, N.H. v. Omnipoint Commc’ns Enters.,

13 Inc.,

(1st Cir. 1999). To that end, under the

TCA, local governments retain control over “decisions regarding

the placement, construction, and modification of personal

wireless service facilities.”

(c)(7)(A).

However, that control is subject to five statutory limitations

that set an “outer limit” on local authority. Town of Amherst,

; see also Nat’l Tower, LLC v. Plainville Zoning

Bd. of Appeals,

(1st Cir. 2002).

The relevant statutory limit here is the requirement that

local regulation of wireless service facilities “shall not

prohibit or have the effect of prohibiting the provision of

personal wireless services.”

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

If a regulatory decision of a local authority effectively

prohibits the provision of wireless services in violation of

(c)(7)(b)(i)(II), the local law or decision is

preempted in order to effectuate the TCA’s national policy

goals. See Second Generation Props., L.P. v. Town of Pelham,

(1st Cir. 2002).

To prove an “effective prohibition” claim, the provider

must demonstrate that: (1) a significant gap in coverage exists;

and (2) the proposed plan, which the local authority has

rejected, is the “only feasible plan.” Omnipoint Holdings, Inc.

v. City of Cranston,

(1st Cir. 2009). Both

of these determinations are “fact-bound.”

.

14 Consequently, each effective prohibition claim turns on the

facts in the record, not on “bright-line legal standards.”

This court, not the local authority, must decide whether

the local authority’s decision constitutes an effective

prohibition. Green Mountain Realty Corp. v. Leonard,

(1st Cir. 2014) (hereinafter “Green Mountain II”).

Indeed, nothing in the TCA expressly authorizes local

authorities to determine whether their decisions amount to an

“effective prohibition.” Second Generation,

.

Consequently, when a local authority “purports to pass upon the

issue, the federal courts afford it ‘no special deference.’”

Green Mountain II,

(quotation and brackets

omitted). Additionally, this court is not limited to the

evidence provided to the local authority, but, rather, is “free

to consider additional evidence.” Second Generation,

.

I. Plaintiffs’ Motion for Summary Judgment

Plaintiffs argue that the ZBA’s denial of their special

exception application effectively prohibited provision of

wireless services in the gap area in violation of the TCA

because the record demonstrates that there is a significant gap

in services and that they thoroughly investigated other viable

options before concluding that there was no other feasible plan.

15 Doc. no. 14-1 at 12-13. Defendants counter that plaintiffs are

not entitled to summary judgment on this claim because they did

not present sufficient evidence to the ZBA demonstrating that

they had fully evaluated alternatives. Doc. no. 15-1 at 3-4.

In evaluating plaintiffs’ motion for summary judgment, the court

construes the evidence in the light most favorable to

defendants, drawing all reasonable inferences in their favor.

See ATC Realty,

.

A. Significant Gap in Services

Plaintiffs first argue that they have established the

existence of a significant gap in services based upon the

evidence submitted to the ZBA and the expert report of Richard

Conroy submitted with their pending motion. Doc. no. 14-1 at

13-14. Defendants do not appear to contest that plaintiffs have

established that a significant gap in services exists in the

identified gap area of Bedford. See generally doc. nos. 13-1 at

10-14, 15-1, 17-1. However, because it is plaintiffs’ burden,

as the provider, to demonstrate both elements of an effective

prohibition claim, the court will address the evidence regarding

the existence of a significant gap in services. See City of

Cranston,

(“The carrier has the burden to show an

effective prohibition has occurred.”).

16 The “significant gap” analysis focuses on whether a

significant gap in coverage exists within an individual

provider’s network, not whether any provider offers services to

the specified geographical area.

. In assessing

whether a gap in coverage is “significant,” the court may

consider, among other things, the physical size of the gap, the

characteristics of the area in which there is a gap, the number

of users the gap affects, and data about inadequate service in

the gap area.

Here, plaintiffs have provided sufficient undisputed

evidence to establish the existence of a significant gap in

southern Bedford. Plaintiffs submitted a Radio Frequency

Analysis with their application before the ZBA, prepared by

Radio Frequency Engineer, Ryan Monte de Ramos. Doc. no. 14-13

at 20-26. This analysis identified a significant gap in T-

Mobile’s services in the areas along Back River Road, County

Road, and part of Wallace Road in Bedford. The analysis

included a map depicting some areas in Bedford that are

currently without any T-Mobile services, as well as larger areas

where no reliable in-building services exist.

After reviewing plaintiffs’ analysis, the ZBA commissioned

its own independent consultant to assess the purported gap in

services. The ZBA’s consultant also reached the conclusion that

“there exist gaps in coverage in [the identified] areas of [the]

17 Town for in-building coverage.” Doc. no. 14-16 at 2, 3. This

evidence cumulatively demonstrates a lack of in-building

coverage in the gap area. See PI Telecom Infrastructure, LLC v.

City of Jacksonville, FL,

(M.D. Fla.

2015) (collecting federal authority in support of proposition

“that a lack of in-building coverage can constitute a gap in

service, particularly in a primarily residential area where

calls may most likely be made indoors”); see also Indus. Tower

and Wireless, LLC v. Haddad,

(D. Mass.

2015) (finding no genuine dispute of material fact that a

“significant gap” in services existed where provider relied upon

studies showing lack of service and administrative board’s

independent consultant agreed that gap existed).

Plaintiffs have also submitted, in support of their motion

for summary judgment, Richard Conroy’s expert report.4 See doc.

no. 14-21. The report and attached propagation maps demonstrate

that there is a 6.7 square mile gap in T-Mobile’s reliable in-

building services in Bedford near Back River Road and County

Road. Further, the report establishes that the gap area is home

4 Although defendants do not specifically contest the court’s consideration of this expert report, they argue generally that the court should consider only the evidence that was before the ZBA and not consider additional evidence produced after the ZBA’s denial. Doc. no. 15-1 at 5-6. As explained below in the discussion of the only feasible plan element, the court disagrees that its view of the evidence is so limited.

18 to approximately 4,000 residents and three schools. This

evidence supports a finding that the identified gap is

“significant.” See Branch Towers, LLC v. City of Knoxville, No.

3:15-CV-00487,

, at *6 (E.D. Tenn. July 11, 2016)

(holding provider met burden on summary judgment of

demonstrating “significant gap” in services where the gap

consisted of 1.5 square mile area that encompassed residential

streets, churches, a school, and several heavily traveled

roads); AT & T Mobility Servs., LLC v. Vill. of Corrales,

(D.N.M. 2015)(finding sufficient evidence of

“significant gap” on summary judgment where the gap was

approximately two miles across and much of it included a

residential zone without reliable in-home coverage) aff’d,

(10th Cir. 2016). Based on the evidence plaintiffs

submitted to the ZBA and to this court, and the lack of any

contradictory evidence provided by defendants, the court

concludes that plaintiffs have met their burden of proof to show

that it cannot genuinely be disputed that a “significant gap” in

services exists in Bedford.

B. Only Feasible Plan

Plaintiffs next argue that they have thoroughly

investigated all other viable alternative technologies and sites

and that constructing a new monopole wireless telecommunications

19 facility at the subject property is, by process of elimination,

the only feasible plan. Doc. 14-1 at 14-15. In support of this

argument, plaintiffs rely upon not only the evidence they

presented to the ZBA prior to its denial, but also “post-

decision” evidence, including evidence submitted with their

amended motion for rehearing. Id. at 5-9, 14-17. Plaintiffs

assert that First Circuit precedent supports this court’s

consideration of this additional, post-decision evidence.

Defendants respond that, based upon the evidence presented

to the ZBA prior to its denial of the special exception,

plaintiffs cannot meet their burden of showing that the proposed

plan is the only feasible option. Doc. no. 15-1 at 2-4. They

argue that, although it is within this court’s discretion to

consider additional, post-decision evidence on an effective

prohibition claim, the court should not do so where plaintiffs’

“application was materially deficient and where the ZBA notified

the [p]laintiffs of these deficiencies and allowed the

[p]laintiffs to supplement their application to no avail.” Doc.

no. 17-1 at 2. Thus, as an initial matter, this court must

determine whether it should consider additional, post-decision

evidence in analyzing whether plaintiffs have satisfied the

“only feasible plan” element of their effective prohibition

claim.

20 As noted above, whether the ZBA has “effectively prohibited

the provision of wireless services is determined de novo by the

district court.” Second Generation,

; see also

Nat’l Tower,

(observing that effective

prohibition claim “present[s] questions that a federal district

court determines in the first instance without any deference to

the board”). In making that determination, the court is “free

to consider additional evidence.” Second Generation,

(affirming district court’s grant of summary judgment to

town, where court considered both the record developed before

the local board as well as “other evidence submitted by the

parties in support of their motions”).5

The court is not without sympathy for defendants’ position.

From the ZBA’s perspective, plaintiffs’ presentation of their

application to the ZBA fell short of the mark. After the ZBA

notified plaintiffs of the material deficiencies in their

application, plaintiffs failed to supplement their application

in a timely and effective manner. The ZBA’s refusal to consider

plaintiffs’ supplementary, post-decision evidence on rehearing

5 This standard of review stands in contrast to a district court’s review of a “substantial evidence” claim under the TCA. When a plaintiff claims that the board’s decision is not supported by substantial evidence in violation of

(c)(7)(B)(iii), judicial review is “confined to the administrative record” and the court must give deference to the board’s decision. Nat’l Tower,

.

21 was based upon application of the ZBA’s procedural rules. It

does not appear unreasonable for the ZBA to deny applications

for rehearing for what it deems noncompliance with those rules.

The role of this court, however, is not to decide whether

the actions of the ZBA were reasonable. Rather, this court’s

role is limited to determining whether the ZBA’s denial has “the

effect of prohibiting the provision of personal wireless

services.”

(c)(7)(B)(i)(II); see also Green

Mountain I,

n.14 (explaining that focus of

effective prohibition inquiry is whether the local decision,

even if supported by the evidence, “has an impermissible

effect”).

In so determining, the court must evaluate whether the

plaintiffs’ proposal is the “only feasible plan.” City of

Cranston,

. Plaintiffs bear the burden of proving

that they “‘investigated thoroughly the possibility of other

viable alternatives’ before concluding no other feasible plan

was available.”

(quotation omitted); see also Town of

Amherst,

(describing provider’s burden as showing

“from language or circumstances not just that this application

has been rejected but that further reasonable efforts are so

likely to be fruitless that it is a waste of time even to try”).

Relevant facts a court may consider in assessing whether a

provider has carried this burden include the technical

22 feasibility of the proposed and alternative plans, the overall

cost of alternatives to the provider, the technological

efficiency of alternatives, and “whether the town could prefer

other solutions on aesthetic grounds.” City of Cranston,

. Also relevant is the availability of alternative

sites, i.e. whether owners are willing to sell or lease the

land. See Indus. Commc’ns & Elecs., Inc. v. O’Rourke,

(D. Mass. 2008). “Ultimately, the question is

a practical inquiry into feasible, available alternatives.”

City of Cranston,

.

Plaintiffs’ post-decision evidence goes to the heart of the

“only feasible plan” inquiry—it pertains to whether there are

alternative feasible sites for the tower. The existence of

other feasible sites would support a finding that there is no

effective prohibition; on the other hand, the fact that no other

feasible sites exist would support the opposite conclusion.

Because plaintiffs’ post-decision evidence is relevant to the

court’s de novo determination of whether there has been an

effective prohibition of the provision of wireless services, the

court finds it appropriate to consider that evidence.

Turning to the merits of the “only feasible plan” inquiry,

plaintiffs argue that the evidence demonstrates that they

thoroughly investigated alternative sites, as well as

alternative technologies and designs. Defendants counter that

23 plaintiffs cannot carry their burden of showing that their

proposal is the only feasible plan for two primary reasons:

first, their investigation of alternative sites was inadequate

in several respects, and, second, they have not shown that the

ZBA’s proposal of a “stealth design” is infeasible. Although

the court agrees that plaintiffs’ application may well have been

deficient in these respects prior to the ZBA’s initial denial,

plaintiffs’ post-decision evidence demonstrates that

constructing a new monopole tower at the subject property is the

only feasible plan. The court addresses each of defendants’

arguments below.

1. Adequacy of plaintiffs’ investigation of alternative sites

Defendants first argue that plaintiffs’ investigation of

alternative sites was inadequate in three primary respects: (1)

failing to detail efforts to contact property owners at the 25

Strawberry Hill Road and 56 Camp Allen Road properties; (2)

failing to consider “all potentially less sensitive sites in an

area with large open fields, as compared to the 1.3 acre subject

property” located in a more densely populated residential area;

and (3) failing to make Amber Debole, who conducted the initial

site evaluations, available at any ZBA hearing. Doc. no. 17-1

at 3; see also doc. nos. 15-1 at 3, 13-1 at 12.

24 i. Efforts to contact owners of 25 Strawberry Hill Road and 56 Camp Allen Road

Plaintiffs have submitted sufficient evidence that they

exhausted efforts to contact property owners at 25 Strawberry

Hill Road and 56 Camp Allen Road. As to 25 Strawberry Hill

Road, plaintiffs’ initial alternative site analysis explained

that, although this location was radio frequency approved, the

property owner did not respond to written proposals. Doc. no.

13-3 at 58. In their supplemental alternative site analysis

submitted prior to the April hearing, plaintiffs again

represented that this property, along with several other parcels

along either side of Strawberry Hill Road owned by the same

person, was ruled out because the property owner did not respond

to written proposals. Doc. no. 14-16 at 21. Finally, after the

ZBA’s denial, plaintiffs sent a letter of inquiry via certified

mail to the owners of 25 Strawberry Hill Road explaining their

interest in executing an option to lease a portion of their 37-

acre property for location of a wireless telecommunications

tower. The land owners completed the enclosed “response form,”

indicating that they had no interest in the proposal. Doc. no.

14-20 at 9-12. This written response confirmed plaintiffs’

prior representations that this site is not feasible due to

unavailability.

25 As to 56 Camp Allen Road, the record also demonstrates that

plaintiffs exhausted efforts to contact the property owner. In

plaintiffs’ original application, the Camp Allen Road property

was considered based only on the possibility of adding to

existing utility stanchions. Plaintiffs rejected that

alternative at that time because the stanchions were not a

sufficient height, and because collocating antennas on the

stanchions would cause access and maintenance issues. Doc. no.

13-3 at 58. In plaintiffs’ supplemental analysis provided prior

to the April hearing, they clarified that they explored two

alternative options at the 56 Camp Allen Road property: adding

to the stanchions and building a new tower on other land in the

same parcel. Doc. no. 14-16 at 20. The supplemental analysis

reiterated the reasons for disqualifying the stanchions and

explained that building a new tower at this site was also not

feasible both because of its proximity to existing T-Mobile

facilities and its owner’s failure to respond to their

inquiries.

Regarding the possibility of siting a new

tower, plaintiffs’ original site acquisition specialist, Amber

Debole, physically visited the Camp Allen property seven or

eight times between February and April 2016 but saw only

maintenance personnel. Doc. no. 14-17 at 30-31. She eventually

contacted a receptionist who said she would inform the Camp’s

board of directors about the inquiry. Debole never heard back

26 from the Camp; she followed up again by telephone, again with no

response. Id. at 31.

After the ZBA’s denial of plaintiffs’ application,

plaintiffs submitted, by certified mail, written inquiries about

the 56 Camp Allen Road property to Camp Allen Inc. Initially,

the property owner expressed interest in siting the facility on

its property. Doc. no. 14-18 at 3. Plaintiffs then visited the

property and discussed the feasibility of the site with the

owner. Following these discussions, the property owner

responded in writing that it was no longer interested in leasing

the land to plaintiffs. Id. at 4, 19. This evidence shows

plaintiffs’ thorough efforts to contact and lease land from the

property owners of 25 Strawberry Hill Road and 56 Camp Allen

Road.

ii. Consideration of “less sensitive” sites

Defendants next argue that plaintiffs cannot carry their

burden because they did not investigate larger, more open

properties in the search ring. In so arguing, defendants rely

upon plaintiffs’ efforts prior to the ZBA’s denial and do not

address plaintiffs’ post-decision evidence. Taking that post-

decision evidence into account, defendants have not identified

any specific “less sensitive” properties that plaintiffs

overlooked. As explained below, viewing all of the evidence

27 properly before the court, plaintiffs have demonstrated that

they investigated and ruled out other larger, more open

properties in the search ring.

In addition to the three alternatives discussed above (25

Strawberry Hill Road, new tower at 56 Camp Allen Road, and

adding to existing stanchions at 56 Camp Allen Road), plaintiffs

evaluated and ruled out eight other properties in the search

ring, including several larger, less residential properties.

Three of those properties—owned by Girl Scouts of the Green and

White Mountains, Global Premier Soccer League, and Manchester

Boys and Girls Club respectively—are located on Camp Allen Road

near 56 Camp Allen Road, and are of a similar character to that

property, containing large open fields and/or campgrounds. All

three properties are zoned Recreational-Agricultural, rather

than Residential-Agricultural. Further, these three properties

are all much larger than the subject property’s 1.3 acres,

ranging in size from 7 to 19 acres.

Plaintiffs submitted written inquiries via certified mail

to these three properties following the ZBA’s denial of its

application.6 All three property owners initially responded with

interest. However, after further investigation and discussion,

6 It is not clear from the record why plaintiffs did not include these properties in their initial alternative site analysis.

28 all three property owners documented in writing that they did

not wish to go forward. Doc. nos. 14-19 at 6, 25, 14-20 at 6.

Plaintiffs’ efforts to lease these properties demonstrate that

they attempted to find a larger parcel in a less residential

area, but found no interested property owners. See O’Rourke,

(determining alternative site unavailable

because owners were not interested in selling the land).

Plaintiffs also investigated and attempted to contact five

other property owners in the search ring. Two properties—148

Back River Road and Pennichuck Water Works—were sent written

inquiries by certified mail and either failed to respond or

indicated in writing that they were not interested in leasing

their land to plaintiffs.7 Doc. no. 14-17 at 35-36, 41. 22

Tirrell Road was also eliminated due to property owner

disinterest following an in-person inquiry. Id. at 31. The

final two properties were disqualified due to zoning and

environmental concerns: 94 Back River Road is located too close

to conservation parcels and 80 Forest Drive does not have

sufficient space in the lot to construct a tower due to setback

requirements. Doc. no. 14-16 at 21-22; see O’Rourke,

(describing alternative sites as infeasible

7 Again, the court notes that it is unclear from the record why plaintiffs did not investigate or contact these properties until after the ZBA’s denial.

29 where they contained wetlands, lacked roadway access, and/or had

insufficient space in which to construct tower). The record

demonstrates that plaintiffs identified and thoroughly

investigated the viable properties in the search ring, leaving

the subject property as the only feasible location. Compare New

Cingular Wireless PCS, LLC v. City of Manchester, NH, No. 11-cv-

334-SM,

, at *4 (D.N.H. Feb. 28, 2014) (finding

provider demonstrated alternative sites were not feasible due,

in part, to unwillingness of property owners to rent), and

Sprint Spectrum, L.P. v. Town of Ogunquit,

(D. Me. 2001) (finding plaintiffs carried burden of

showing effective prohibition where they had investigated ten

alternative sites that were determined infeasible by their

experts and town’s proposed alternatives were not technically

feasible), with Town of Amherst,

(finding

evidence was inadequate to prove that proposed siting plan was

only feasible option where record demonstrated that a system of

lower towers could be used).

iii. Absence of Amber Debole at ZBA hearings

Defendants next argue that plaintiffs cannot carry their

burden because they did not make Debole, the original site

acquisition specialist, available at the ZBA hearings. Doc. 17-

1 at 3. The court is not persuaded. Although it may have been

30 preferable for plaintiffs to make Debole available for

questioning at the hearings, defendants have cited no authority

demonstrating that her absence establishes that plaintiffs did

not engage in a thorough investigation. As a practical matter,

Debole was no longer employed by plaintiffs at the time of the

hearings, and plaintiffs ultimately submitted an affidavit from

her detailing her work on the project. See doc. no. 14-17 at 5-

6. Additionally, plaintiffs’ subsequent site acquisition

specialist, Michael Almada, was present and available to answer

questions at the March and April hearings.

2. Feasibility of ZBA’s proposed “stealth design”

Defendants rely on more than just plaintiffs’ alleged

deficient investigation of alternative sites to argue that

plaintiffs’ have not shown that their proposal is the only

feasible plan. Defendants also argue that plaintiffs have not

established that the ZBA’s proposed “stealth design” is

infeasible. Defendants assert that—at most—plaintiffs have

established that the ZBA’s proposed design is undesirable. Doc.

nos. 13-1 at 14, 15-1 at 4.

It is true that “[a] carrier cannot win an effective-

prohibition claim merely because local authorities have rejected

the carrier’s preferred solution.” City of Cranston,

. Further, a local zoning authority may favor other

31 alternatives on “aesthetic grounds.”

However, those

alternatives must still be feasible. See O’Rourke,

(“In order for a site to be an alternative sufficient

to forestall a claim of effective prohibition, it needs to be

available and technically feasible.”).

Here, the evidence demonstrates that the stealth design is

not technically feasible. In response to the ZBA’s questioning

about using a stealth design, plaintiffs’ radio frequency

engineer explained that modern antennas require air flow. He

further explained that putting the antennae in an enclosed

structure for a stealth design would limit their functionality.

Specifically, he testified that, when air flow is restricted,

“the antenna will not function . . . it will not provide the

service, it will cause maintenance issues more often, and the

antenna might break down.” Doc. no. 13-8 at 8. Additionally,

plaintiffs’ expert report supports the same conclusion. See

doc. no. 14-21 at 15 (explaining that current antenna technology

requires ventilation and precludes the use of enclosed tower

designs). This undisputed evidence demonstrates that, though a

stealth design may be preferred by the ZBA, it is not a

technically feasible alternative. Cf. USCOC of NH RSA No. 2,

Inc. v. Town of Bow,

(D.N.H. 2007)

(concluding provider had not met its burden of demonstrating

that proposed site was only feasible option where decisions to

32 reject alternatives were not based on technical infeasibility,

but “a host of factors relevant to the business judgment about

where best to locate a facility”).

Plaintiffs’ investigations into alternative sites,

technologies, and designs demonstrate that it eliminated all

other feasible plans, leaving only construction of a new 130-

foot monopole tower at 25 Tirrell Road. Although a local zoning

board does not bear the burden of proving that another suitable

alternative plan in fact exists, this principle does not

“suspend the usual rules governing summary judgment.” Nat’l

Tower v. Frey,

(D. Mass. 2001).

Once the provider makes a showing that no alternative plan

exists, the board must either demonstrate that the evidence

offered is factually insufficient, or “come forward with

evidence of its own demonstrating a trialworthy dispute.” Id.;

see also City of Cranston,

(concluding district

court did not err in finding proposed plan was only feasible

option where City’s proposed alternative sites were not feasible

and City’s expert was not credible).

As explained above, the court is convinced that the record

is sufficient to show that plaintiffs thoroughly investigated

all viable alternative plans. Defendants have not come forward

with evidence to the contrary that would raise a trialworthy

issue. Most notably, defendants have not identified any

33 specific alternative locations for the tower that plaintiffs did

not explore either before or after the ZBA’s denial. Rather,

defendants hold fast to the argument that—based on the record

before the ZBA—plaintiffs cannot meet their burden. Defendants

do not advance an argument in the alternative urging the court

to reject plaintiffs’ claim based on the post-decision evidence.

Accordingly, the court concludes that plaintiffs have met their

burden of showing that their proposal is the only feasible plan

that would remedy the significant gap in coverage in Bedford and

that further reasonable efforts to identify alternatives are

likely to be fruitless such that it would be a waste of time to

try. See Town of Amherst,

.

In sum, in light of the undisputed evidence in the record,

the court concludes that plaintiffs have satisfied both prongs

of their effective prohibition claim by providing evidence of a

“significant gap” in services and demonstrating that they

evaluated the other available alternatives and those

alternatives are “not feasible to serve [their] customers.” Sw.

Bell Mobile Sys., Inc. v. Todd,

, 63 (1st Cir. 2001),

abrogated on other grounds by T-Mobile S., LLC v. City of

Roswell, Ga.,

(2015). They are therefore

entitled to summary judgment on that claim.

34 II. Defendants’ Motion for Summary Judgment

Defendants argue that they are entitled to summary judgment

on plaintiffs’ effective prohibition claim because plaintiffs

cannot prove that the subject property is the only feasible site

and that the ZBA’s proposed “stealth design” is infeasible. See

doc. no. 13-1 at 10-14. Defendants raise essentially the same

arguments in support of their motion for summary judgment as

they do in objection to plaintiffs’ cross-motion. Because the

court has already substantially addressed and rejected those

arguments, it will not do so separately here. In short, because

the plaintiffs are entitled to summary judgment, defendants are

not entitled to summary judgment. See Town of Amherst, 74 F.

Supp. 2d at 127.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for summary

judgment (doc. no. 14) is granted, and defendants’ motion for

summary judgment (doc. no. 13) is denied. While the TCA does

not specify a remedy for a violation, where the requisite

showing has been made, “injunctive relief is the preferred

remedy, given the Act’s stated objective of expediting judicial

review.” Frey,

; see also

(c)(7)(B)(v). This injunctive relief typically takes the

form of an order requiring the local board to issue the

35 wrongfully withheld permit. Nat’l Tower,

;

Brehmer v. Planning Bd. of Town of Wellfleet,

(1st Cir. 2001). Therefore, the court orders the ZBA to issue,

within forty-five (45) days of the date of this order, the

requested special exception necessary for plaintiffs to

construct the proposed 130-foot “monopole” wireless

telecommunications facility at the subject property.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

November 28, 2018

cc: Counsel of Record

36