Green Mountain Realty Corp. v. Leonard , 688 F.3d 40 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1706
GREEN MOUNTAIN REALTY CORP.,
Plaintiff, Appellant,
v.
JOHN S. LEONARD, Member and Chairman of Town of Milton Board of
Appeals; SARA L. HARNISH, Member of Town of Milton Board of
Appeals; VIRGINIA M. DONAHUE KING, Member of Town of Milton Board
of Appeals; BRIAN M. HURLEY, Member of Town of Milton Board of
Appeals; JEFFREY B. MULLAN, Member of Town of Milton Board of
Appeals; FRANCIS C. O'BRIEN, Member of Town of Milton Board of
Appeals; EMANUEL ALVES, Member of Town of Milton Board of
Appeals; STEVEN M. LUNDBOHM, Member of Town of Milton Board of
Appeals; TOWN OF MILTON, MASSACHUSETTS; MILTON CONSERVATION
COMMISSION; MILTON BOARD OF APPEALS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.
David Ciandella, with whom Robert M. Derosier and
Donahue, Tucker & Ciandella, PLLC were on brief, for appellant.
Brandon H. Moss, with whom John P. Flynn and Murphy,
Hesse, Toomey & Lehane, LLP were on brief, for appellees.
August 9, 2012
LIPEZ, Circuit Judge. This appeal arises from an attempt
by appellant Green Mountain Realty Corp. to secure permits and
regulatory approval to construct a 140-foot cellular phone tower in
Milton, Massachusetts. Green Mountain's applications to the Town
of Milton Zoning Board of Appeals (the "Board" or "BOA") and the
Milton Conservation Commission (the "Commission" or "MCC"), both
necessary steps in the approval process, were denied. Green
Mountain subsequently challenged those decisions in the United
States District Court for the District of Massachusetts, naming the
BOA, the MCC, and the BOA's individual members as defendants. It
argued that the decisions of the BOA and the MCC were not supported
by "substantial evidence," as required by the Telecommunications
Act of 1996 ("TCA"), 47 U.S.C. § 332(c)(7)(B)(iii), and that the
decisions also constituted an "effective prohibition" on the
provision of wireless services in the area, also in violation of
the TCA, id. § 332(c)(7)(B)(i)(II). Green Mountain also claimed
that the BOA's action exceeded its authority and was arbitrary and
capricious, violating Massachusetts state law. The district court
granted summary judgment for the BOA and MCC, finding that the
decisions of those bodies complied with governing law, and this
appeal ensued.
We affirm the district court's decisions with regard to
Green Mountain's substantial evidence claims against the BOA and
MCC. Given the deference due to the decisions of a local
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regulatory body under the substantial evidence rubric, we will not
disturb the district court's decisions on these issues. However,
the district court did not adequately address Green Mountain's
evidence supporting its effective prohibition claim against the BOA
and completely failed to address the effective prohibition claim
against the MCC. These are not claims that we should decide in the
first instance, dependent as they are on factual findings to be
made by the district court. Accordingly, we vacate the district
court's grant of summary judgment in favor of the BOA and MCC on
Green Mountain's effective prohibition claims and remand for
reconsideration of those claims.
I.
A. The Proposed Site
Green Mountain owns and manages personal wireless
communications facilities ("PWCFs"), commonly known as cellular
phone towers, as well as other tower facilities. Green Mountain
leases space on PWCFs to federally licensed providers of wireless
telecommunications services ("carriers"), who mount antennae on the
PWCFs to service their cellular networks.
On October 20, 2008, Green Mountain entered into an
agreement with an agency of the Commonwealth of Massachusetts to
lease land located adjacent to Interstate 93 ("I-93") in Milton,
Massachusetts. The land is an unzoned triangular section, totaling
approximately 2,700 square feet, formed by the intersection of I-93
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and the Exit 3 southbound on-ramp leading to I-93 (the "Site").
The Site is in close proximity to Blue Hills Reservation, a
Massachusetts state park, and the Carisbrooke Road residential
neighborhood. The purpose of the lease was to enable Green
Mountain to construct a PWCF on the site, and Green Mountain
obtained letters of intent from two carriers, T-Mobile and
metroPCS, stating their intention to locate antennae on the
proposed tower. The Site was chosen because it is located within
an area of degraded service for certain carriers, including T-
Mobile and metroPCS. According to Green Mountain, the section of
I-93 near the Site "has consistently suffered from a lack of
adequate telecommunications coverage resulting in dropped calls, a
possibility of being unable to complete emergency calls and an
inconvenience to the traveling public."
Before Green Mountain could begin construction, it had to
obtain regulatory approval from the BOA and MCC.
B. The BOA Proceeding
The Zoning Bylaws of the Town of Milton ("Bylaws")
include a subsection "regulat[ing] the siting, construction and
removal of wireless telecommunications facilities so as to promote
the safety, welfare and aesthetic interests of the Town of Milton."
Bylaws § III(G)(1). Pursuant to the Bylaws, a special permit must
be issued by the Board prior to construction of a PWCF or other
telecommunications facility. Id. § III(G)(3)(c). To obtain a
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special permit, one must submit a detailed application to the
Board, participate in a public hearing on the application, pay any
fees assessed by the Board to fund review by independent
consultants chosen by the Board, as well as cooperate with those
consultants in their review. The Board will issue a special permit
only if three conditions are met: "(1) existing facilities do not
adequately address the need for service, (2) there exists no
feasible alternative to the proposal that would adequately address
the need in a less intrusive manner, and (3) the proposed use is in
harmony with the general purpose and intent" of the Bylaws to
promote the Town's "safety, welfare and aesthetic interests." Id.
§ III(G)(4)(d), (G)(1).
In accordance with these requirements, Green Mountain
submitted an application to the Board on May 21, 2009, seeking a
special permit for construction of a 140-foot monopole tower on the
Site. The application noted:
The proposed facility will consist of a 140'
monopole designed to accommodate up to five
(5) antenna mounts for wireless carriers as
well as Mass Highway Department video
equipment . . . . An eight foot high chain
link fence will be installed around the tower
base for security purposes to comply with Mass
Highway requirements to minimize visual
obstructions for merging traffic.
The plan also included space for ground equipment to service the
monopole and antennae. According to Green Mountain, "radio
frequency analysis provided to us by our prospective tenants has
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indicated that 100' would be the lowest mounting height that
effectively fills the current coverage gap." Because "carriers'
[antennae] must be separated from each other's installation by
approximately 10'," the tower must be at least 140 feet to
accommodate five different carriers.1
Along with its application, Green Mountain submitted
statements from metroPCS and T-Mobile indicating the existence of
a coverage gap and the need for the PWCF. Green Mountain also
filed a statement that it had considered existing structures, as
well as alternate sites, and concluded that a PWCF at the proposed
Site was the only feasible option. It submitted numerous maps
showing the coverage provided by various carriers. In response to
suggestions from neighbors and other interested parties, Green
Mountain considered five alternative sites, but rejected each as
unworkable. It explained that the chosen Site was suitable because
"[t]he subject property is non-residential in nature, has existing
small towers in place, is located away from residential uses, and
has reasonable vehicle access and availability of utilities."
Green Mountain also submitted a National Environmental
Policy Act ("NEPA") Report that evaluated the tower's potential
impact on environmental and historical areas. The NEPA Report,
1
Green Mountain emphasizes that the Bylaws encourage the co-
location of antennae on a single structure. See Bylaws
§ III(G)(1)(c).
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which was prepared by consultants, did not find any significant
impact on the environment or historical sites.
Both Green Mountain and those opposed to the PWCF project
attempted to document how the tower would affect the landscape and
views in the surrounding area, especially within the Blue Hills
Reservation. Green Mountain raised a crane at the Site to the
approximate height of the proposed tower and took pictures from
various locations. It is undisputed that the tower would be
visible from several areas within the Blue Hills Reservation,
including from two of its highest hills. The tower would also be
visible from the Carisbrooke Road neighborhood. Green Mountain
reported that the proposed tower would not carry Federal Aviation
Administration markings or lights, and it suggested methods to
camouflage the tower to the extent possible.
At public hearings held on June 16, July 13, and August
19, 2009, there was almost unanimous public opposition to the
proposed tower. While the BOA received one letter in support of
the project, no interested citizen spoke in favor of the project
and numerous people testified in opposition. Representatives of
the Friends of the Blue Hills, a charitable trust formed to
restore, preserve, and protect the Reservation, argued that the
need for the tower did not outweigh the significant negative
aesthetic effects. Several other concerned citizens spoke at the
hearings, and the BOA received petitions signed by twenty-seven
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Carisbrooke Road neighborhood residents expressing concerns about
the tower's aesthetic impact on the Blue Hills Reservation and
nearby neighborhoods.
On August 19, 2009, the BOA voted to deny Green
Mountain's application for a special permit. In a written denial,
issued on September 24, 2009, it emphasized the public opposition
to the proposed tower and the importance of protecting the
character and aesthetic beauty of the Blue Hills Reservation. The
Board further noted that "[s]uch a monopole would also be visible
to the Carisbrooke Road neighborhood in particular and would
substantially detract from the character of the neighborhood."
Additionally, the Board found that "[t]he existing coverage while
not perfect is reasonable and adequate under all of the
circumstances." In reaching this conclusion, the Board relied on
the percentage of dropped calls mentioned by Green Mountain's
attorney at a public hearing - approximately 0.66% - and not the
figure provided by an engineer for one of the carriers, 2.00% -
3.00%.2
Ultimately, the Board found that Green Mountain "failed
to carry its burden of proof for the issuance of a special permit"
because it failed to show that the proposed tower "promote[s] the
2
Green Mountain now says that the 0.66% figure provided by
its attorney at the hearing was an error.
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safety, welfare or aesthetic interests of the Town of Milton" and
thus was "not in harmony with the [zoning] Bylaw."
C. The MCC Proceeding
The MCC is a local body charged with administering the
Milton Wetlands Bylaws (distinct from the Zoning Bylaws), as well
as the Massachusetts Wetlands Protection Act ("WPA"), Mass. Gen.
Laws c. 131, § 40.3 The WPA provides, inter alia, that no person
shall "alter . . . any riverfront area" without receiving
authorization from the appropriate conservation commission or other
body. Id. Under the terms of the WPA,
[i]n the case of riverfront areas, no order
issued by a conservation commission . . .
shall permit any work unless the applicant, in
addition to meeting the otherwise applicable
requirements of this section, has proved by a
preponderance of the evidence that (1) such
work, including proposed mitigation measures,
will have no significant adverse impact [on
various environmental interests] . . . , and
(2) there is no practicable and substantially
equivalent economic alternative to the
proposed project with less adverse
effects . . . .
Id. Pursuant to Massachusetts regulations, the MCC must presume
that the affected riverfront area is significant to the various
environmental interests identified by the WPA. 310 Mass. Code
3
Appellees refer to both the "Wetlands Protection Act" and
the "Rivers Protection Act" in their briefing. The Rivers
Protection Act was a 1996 amendment to the Wetlands Protection Act
and, accordingly, both are codified at section 40 of chapter 131 of
the Massachusetts General Laws. For the purpose of this appeal,
there is no practical distinction between the two. For ease of
reference, we here refer to section 40 as simply the WPA.
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Regs. 10.58(3). However, "[t]he presumption is rebuttable and may
be overcome by a clear showing that the riverfront area does not
play a role in the protection of one or more of these interests."
Id.
The WPA "establishes minimum Statewide standards leaving
local communities free to adopt more stringent controls." T.D.J.
Dev. Corp. v. Conservation Comm'n of N. Andover, 629 N.E.2d 328,
330 (Mass. App. Ct. 1994). "When a municipality adopts a by-law or
ordinance that is consistent with the [WPA], but that imposes more
stringent controls than the standards set by the Legislature, the
local requirement trumps what is required under [the WPA]." Id.Milton has adopted wetlands bylaws supplementing the WPA. The
application process laid out in those bylaws largely tracks that
established by the WPA and charges the MCC with approving or
denying applications and issuing permits for work covered by the
bylaws and the WPA. Milton Wetlands Bylaws, ch. 15, § IIA. The
Milton Wetlands Bylaws also create a "non-disturbance zone"
extending 25 feet from the edge of the protected wetland. Id.
§ XI. Any activity altering the zone is prohibited without a vote
of the majority of the MCC and a finding that "granting of such
relief will not have a significant adverse impact upon the
interests protected by [the bylaws]."4 Id.
4
The interests protected by the Milton Wetlands Bylaws
include "[protection of] public or private water supply; aquifer
and groundwater protection; flood, erosion and sedimentation
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Because of its proximity to the Blue Hills River, the
Site was subject to the WPA and Milton Wetlands Bylaws and the
specific provisions relating to riverfront areas. On February 12,
2009, Green Mountain submitted the requisite notice and request for
approval, emphasizing that the Site was already degraded by the
presence of I-93. It noted that while 4,612 square feet of
riverfront area would be altered by the proposed project, only 92
square feet fell within 100 feet of the Blue Hills River; the
remainder was not only more than 100 feet away from the river, but
also separated from the river by the I-93 on-ramp, which is itself
roughly 100 feet from the river. Green Mountain also pointed out
that only 109 square feet of Bordering Vegetated Wetland ("BVW"),
a category of protected land, would be affected by the project. It
acknowledged that this area "will be unavoidably impacted." It
emphasized, however, that "this BVW is already in a state of
chronic impact due to its location between the highway and its on-
ramp. Sand, salt, trash and untreated stormwater are repeatedly
discharged to this wetland from the concrete surfaces directly
adjacent to the proposed cell tower site." Green Mountain argued
that because of proposed mitigation measures, its project would
actually improve the degraded area.
control; storm damage and water pollution prevention; the
protection of fisheries, shellfish and wildlife; recreation and
aesthetics." Milton Wetlands Bylaws, ch. 15, § I.
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Green Mountain's application was discussed at a series of
MCC meetings. The minutes for a March 10, 2009 meeting state,
"Applicant did not address Commission concerns: Aesthetics
affecting Blue Hills, alternative analysis[] regarding site
location and tower height efficiency ratings and failed to address
the Town by Law [sic] regarding the 'no significant adverse impact'
standard for justifying a waiver of the non-disturbance
regulation." In several subsequent meetings, Green Mountain
attempted to address these concerns. At the request of the MCC,
Green Mountain submitted the NEPA Report it had previously
submitted to the BOA. It also proposed a series of mitigation
measures to limit the impact of the project and improve the area.
The MCC also requested an alternative site analysis prepared by the
Massachusetts Highway Department that Green Mountain referred to at
an MCC meeting. Green Mountain has since acknowledged that this
analysis did not exist in written form.
At the May 12, 2009 meeting of the MCC, Green Mountain
requested that the hearing on its proposal be continued until after
the BOA made a decision. After the BOA denied Green Mountain's
application, the MCC met on September 15, 2009. The minutes of
that meeting reflect the MCC's displeasure with Green Mountain's
failure to respond to its requests for information. In particular,
the Commission was concerned that Green Mountain failed to provide
a meaningful analysis of potential alternative sites that the
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developer had repeatedly referred to and the Commission had
requested.
On September 19, 2009, the MCC voted to deny Green
Mountain's request for relief from the non-disturbance zone
established by the Milton Wetlands Bylaws, as well as its
application under the WPA. In a brief written statement issued on
October 9, 2009, the MCC explained that Green Mountain's failure to
provide a meaningful alternatives analysis prevented it from
approving the proposal. It noted that such an analysis, required
by Massachusetts regulations, had been requested on multiple
occasions. Additionally, the MCC emphasized the importance of the
aesthetic interest it is charged with protecting. It stated that
"the height of the tower was, and remains, an important factor for
consideration. . . . Once again, the applicant failed to provide
the requested data relating to the efficacy of a lower tower
height, which data was requested on three occasions." Responding
to Green Mountain's argument that the Site was already degraded,
the MCC stated that "it is the opinion of the MCC that if those
wetlands, which the applicant seeks to further alter, are already
degraded, those wetlands are in greater need of protection, rather
than less."
D. The District Court Proceeding
Green Mountain challenged the decisions of the BOA and
MCC in a single action in the United States District Court for the
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District of Massachusetts, arguing that they violated multiple
provisions of the TCA. "[T]he TCA reflects Congress's intent to
expand wireless services and increase competition among . . .
providers." Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57
(1st Cir. 2001). "Under the TCA, local governments retain control
'over decisions regarding the placement, construction, and
modification of personal wireless service facilities.'" Id.(quoting 47 U.S.C. § 332(c)(7)(A)). However, "this control is now
subject to several substantive and procedural limitations that
'subject [local governments] to an outer limit' upon their ability
to regulate personal wireless services land use issues." Id.(alterations in original) (quoting Town of Amherst v. Omnipoint
Commc'ns Enters., Inc., 173 F.3d 9, 15 (1st Cir. 1999)).
One of the primary limits on local authority is the
requirement that "[a]ny decision . . . to deny a request to place,
construct, or modify personal wireless service facilities shall be
in writing and supported by substantial evidence contained in the
written record." 47 U.S.C. § 332(c)(7)(B)(iii). Another is the
requirement that local decisions not "prohibit or have the effect
of prohibiting the provision of personal wireless services." Id.§ 332(c)(7)(B)(i)(II). Green Mountain argued both that the
decisions of the BOA and the MCC were not supported by "substantial
evidence," and that they also constituted an impermissible
"effective prohibition" on the provision of wireless services in
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the area. Green Mountain also claimed that the BOA's action
exceeded its authority and was arbitrary and capricious in
violation of state law.
In evaluating an "effective prohibition" claim, "district
courts are free to consider additional evidence" not in the
administrative record. Second Generation Props., L.P. v. Town of
Pelham, 313 F.3d 620, 629 (1st Cir. 2002); see also Nat'l Tower,
LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 24 (1st Cir.
2002) ("On the 'effective prohibition' issue, district courts may
take evidence beyond the record."). Green Mountain offered
additional evidence to the district court on its effective
prohibition claim, beginning with extensive expert testimony to
establish the existence of a coverage gap. It also offered
affidavits and deposition testimony from the president of Green
Mountain, as well as from a consultant, describing why Green
Mountain felt that there were no viable alternatives to the
proposed site. They noted that a suitable site requires
appropriate topography, access for maintenance, utility
connections, size, and availability. Green Mountain also noted
that it explored the possibility of using a network of smaller
antennae, rather than a single large PWCF, but determined that this
option was not feasible.
The district court granted summary judgment for the
defendants on all of Green Mountain's claims. First, the court
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found that the BOA's decision was supported by substantial
evidence. Explaining this conclusion, it stated that Green
Mountain failed to show that existing service was inadequate and
that the BOA had sufficient justification to deny the permit
because of aesthetic concerns. Furthermore, it found that Green
Mountain failed to adequately explore alternative sites. Second,
on the effective prohibition claim, the court found with scant
discussion that Green Mountain failed to show that the standard
applied by the BOA would be impossible for any applicant to meet,
and that Green Mountain had not demonstrated that its proposal was
the only feasible plan. Finally, the court found that Green
Mountain failed to meet its burden of showing that the MCC's
conclusion that the project would have a significant adverse impact
on surrounding wetlands was not supported by substantial evidence.
The district court's written decision did not address Green
Mountain's argument that the MCC's decision was an effective
prohibition or Green Mountain's state law claim challenging the
BOA's decision.
II.
A. The Substantial Evidence Standard
In evaluating whether a decision is supported by
substantial evidence, we review
the written record considered as a whole.
Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion. The reviewing court
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must take into account contradictory evidence
in the record. But the possibility of drawing
two inconsistent conclusions from the evidence
does not prevent an administrative agency's
finding from being supported by substantial
evidence.
Sw. Bell, 244 F.3d at 58 (quoting Penobscot Air Servs., Ltd. v.
Fed. Aviation Admin., 164 F.3d 713, 718 (1st Cir. 1999)). Thus,
"[t]he 'substantial evidence' standard of review is the same as
that traditionally applicable to a review of an administrative
agency's findings of fact . . . [, and] [j]udicial review under
this standard, even at the summary judgment stage is narrow." Id.(citation omitted) (internal quotation marks omitted).
Despite this limited oversight, we have cautioned that
"substantial evidence review is not a rubber stamp." Penobscot
Air, 164 F.3d at 718 n.2. A local regulatory agency or other body
"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." Sw. Bell, 244 F.3d at 59 (internal
quotation marks omitted). Accordingly, decisions "must be set
aside when the record before a Court of Appeals clearly precludes
the agency's decision from being justified by a fair estimate of
the worth of the testimony of witnesses or its informed judgment on
matters within its special competence or both." Penobscot Air, 164
F.3d at 718 (alterations omitted). Ultimately, the burden of
demonstrating that the determination of a local authority is not
supported by substantial evidence is with the party seeking
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approval, Sw. Bell, 244 F.3d at 63, and "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, 297 F.3d at 23.
Because the focus of our review is the administrative
record, "we . . . apply the same legal standards that pertain in
the district court and afford no special deference to that court's
decision." Sw. Bell, 244 F.3d at 59 (internal quotation marks
omitted). Therefore, we consider the decision of the district
court only to the extent that it is persuasive.
B. The BOA's Decision: Substantial Evidence
As described above, pursuant to the Milton Zoning Bylaws,
the BOA may issue a special permit only if three conditions are
met: "(1) existing facilities do not adequately address the need
for service, (2) there exists no feasible alternative to the
proposal that would adequately address the need in a less intrusive
manner, and (3) the proposed use is in harmony with the general
purpose and intent" of the bylaws. Bylaws § III(G)(4)(d).
Accordingly, a decision to deny issuance of a permit must be
affirmed if there is substantial evidence supporting the Board's
finding that any one of these three factors is not present. In
this case, the Board's written decision addresses only two of the
three factors - the adequacy of existing cellular coverage and the
proposal's consistency with the purpose and intent of the bylaws.
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1. The Adequacy of Existing Coverage
The BOA justifies its finding that the existing cellular
coverage is adequate by pointing to the statement of Green
Mountain's attorney that approximately 2,000 of 300,000 calls are
dropped in the coverage area. In particular, the BOA states that
[w]hile there is a small dead spot in the area
between Route 24 in Milton and Route 138 in
Canton, the dropping of any 2,000 of 300,000
or [0.66%] of calls is a marginal loss of
service when compared to the dramatic
intrusion of the 140 foot monopole on the
Reservation and near[b]y neighborhood. The
existing coverage while not perfect is
reasonable and adequate under all of the
circumstances.
Green Mountain argues here that the 0.66% figure was simply a
misstatement by its attorney at a Board meeting, and that it was
error for the Board to rely exclusively on this figure when it also
presented testimony from engineers that the actual dropped call
rate was much higher. It points to testimony of a T-Mobile
engineer, estimating that the figure was actually 2-3%, as well as
an affidavit submitted by the same engineer, stating that if the
permit were denied "a significant area of inadequate, unreliable
coverage would remain in T-Mobile's wireless network. This lack of
service area or 'gap' in coverage would adversely impact . . . [T-
Mobile's ability] to provide . . . decent coverage to traffic on I-
93 between SR-138 and SR-24." Similarly, Green Mountain submitted
an affidavit from an engineer employed by metroPCS stating that
"Milton is an area where metroPCS has identified a need to locate
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a [PWCF]. A [PWCF] in this vicinity is necessary to provide
coverage in the area and resolve a significant gap in metroPCS'
wireless network."
In these circumstances, we cannot conclude that the BOA's
finding regarding the adequacy of existing coverage was supported
by substantial evidence. It was clearly erroneous for the BOA to
adopt the dropped call figure mentioned by Green Mountain's
attorney - 0.66% - when Green Mountain presented evidence in the
form of written statements and testimony from engineers employed by
the carriers stating that a more significant coverage gap existed.
See Sw. Bell, 244 F.3d at 59 (stating that a local regulatory
agency "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 Penobscot Air, 164 F.3d at
718) (internal quotation marks omitted)).
Disregarding the oral testimony of T-Mobile's engineer,
the district court accurately noted that neither of the statements
submitted by the engineers provided quantifiable data identifying
a coverage gap. However, we have never required that the
percentage of calls dropped, or signal strength, cross a certain
threshold before recognizing a significant gap. See Omnipoint
Holdings, Inc. v. City of Cranston, 586 F.3d 38, 49 (1st Cir. 2009)
(stating that "[a]lso relevant could be data about percentages of
unsuccessful calls or inadequate service during calls in the gap
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area," but refusing to adopt a "bright-line" rule with regard to
signal strength (emphasis added)); see also MetroPCS, Inc. v. City
and Cnty. of San Francisco, 400 F.3d 715, 733 (9th Cir. 2005)
("'[S]ignificant gap' determinations are extremely fact-specific
inquiries that defy any bright-line legal rule."). Accordingly,
while certainly valuable, such data is not essential.
Additional evidence identifying a coverage gap,
including data, was presented to the district court in connection
with Green Mountain's "effective prohibition" claim. However, in
evaluating a "substantial evidence" claim, we are limited to the
evidence in the record before the local body. See Sw. Bell, 244
F.3d at 58. Accordingly, we do not consider this additional
evidence in reviewing the BOA's decision under the substantial
evidence standard.
In the absence of any evidence to the contrary,
statements from two different carriers identifying a coverage gap,
as well as oral testimony indicating that 2-3% of calls in the area
are dropped, is substantial evidence that existing facilities do
not adequately address the need for service. Presented with this
evidence, the Board, in its written decision, cherry-picked a
single, non-testimonial statement by Green Mountain's attorney and
ignored the other evidence in the record.5 This the Board may not
5
The context for the attorney's statement is not clear from
the record. However, Green Mountain asserts that the statement was
non-testimonial and appellees do not contest this assertion.
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do. See Sw. Bell, 244 F.3d at 58 ("The reviewing court must take
into account contradictory evidence in the record."). Keeping in
mind that we must review the record as a whole, id., the Board's
decision, relying solely on an attorney's statement, is not based
on substantial evidence. That is, taking into account the evidence
to the contrary, it is not "adequate to support [the Board's]
conclusion." Id.Thus, we must consider whether the other rationale relied
upon by the Board supports its denial of the permit.
2. The Proposal's Harmony With the Purpose and Intent
of the Bylaws
The subsection of the Milton Zoning Bylaws governing
wireless telecommunications facilities states that its purpose is
to "regulate the siting, construction and removal of wireless
telecommunications facilities so as to promote the safety, welfare
and aesthetic interests of the Town of Milton." Bylaws
§ III(G)(1). To further this purpose, the provision states an
intent to "[d]iscourage the construction or location of free-
standing towers," id. § III(G)(1)(e), and to "[m]aintain and
preserve the residential character of the Town of Milton by
eliminating or minimizing the adverse visual and aesthetic impact
of all wireless telecommunications facilities," id. § III(G)(1)(f).
The Board's written decision focuses on this aesthetic
interest in denying Green Mountain's application for a special
permit. It states:
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[T]he construction of a 140'
telecommunications monopole at the proposed
location will be widely visible from the
Reservation and will substantially detract
from the view, vistas and natural setting of
the Reservation. Such a monopole would also
be visible to the Carisbrooke Road
neighborhood in particular and would
substantially detract from the character of
the neighborhood. . . . [It] will effectively
deprive [Carisbrooke Road] residents of one of
the primary reasons they moved to this area.
In addition, the Board noted the public opposition to the project
and observed that the objections were not merely "a small number of
generalized comments of concern or 'not in my backyard' complaints
but rather constitute[] virtual unanimous concern of a thoughtful
community to the unsightly intrusion of a 140' monopole upon their
existing views and vistas of the Reservation from their residences
and from the neighborhood generally."6 The Board took special note
of the objections raised by the Friends of the Blue Hills, noting
that "[t]he informed opposition of the Friends to the proposed
monopole is interposed, in good faith, based upon over 44 years of
experience in protecting and preserving this historic Reservation."
Ultimately, the Board found that "[t]he proposed monopole does not
promote the safety, welfare or aesthetic interests of the Town of
Milton as required by the Wireless Telecommunications Facilities
6
Several of the residents' complaints also referred to
purported health concerns from negative environmental effects.
However, these concerns are an impermissible ground on which to
deny Green Mountain's application. See 47 U.S.C.
§ 332(c)(7)(B)(iv); Cellular Tel. Co. v. Town of Oyster Bay, 166
F.3d 490, 494-95 (2d Cir. 1999).
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Bylaw," and thus that Green Mountain's application "is not in
harmony with the general purpose and intent of the Bylaw."
The question of whether there is sufficient evidence in
the record to support the Board's "aesthetic interests"
justification is close. A number of courts, including this one,
have recognized that cell towers are inherently aesthetically
displeasing. See Sw. Bell, 244 F.3d at 61; VoiceStream
Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 831 (7th Cir.
2003) ("[B]ecause 'few people would argue that telecommunications
towers are aesthetically pleasing,' a local zoning board's
'aesthetic judgment must be grounded in the specifics of the
case.'" (quoting Sw. Bell, 244 F.3d at 61)). As said in Helcher v.
Dearborn County, 595 F.3d 710, 723 (7th Cir. 2010), "[a]lthough
local governments are entitled to weigh the aesthetic effect of a
wireless tower in deciding whether to permit its construction,
generalized aesthetic concerns are not alone sufficient to justify
the denial of a permit." Rather, an "aesthetic judgment must be
grounded in the specifics of the case."7 Id.7
Other circuits have taken a similar approach in reviewing
the decisions of regulatory boards that were required to consider
the aesthetic impact of PWCFs. See, e.g., Sprint Spectrum, L.P. v.
Platte Co., 578 F.3d 727, 733 (8th Cir. 2009) ("[A]esthetic
concerns can be a valid basis on which to deny [a provider's]
permit, so long as the aesthetic judgment is grounded in the
specifics of the case and not based on generalized aesthetic
concerns that are applicable to any tower, regardless of location."
(internal quotation marks omitted)); Cellular Tel., 166 F.3d at
495-96 (stating that while aesthetics could be a valid ground for
denial of a permit under the TCA, a "few generalized expressions of
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In Southwestern Bell, we explained that, under the TCA,
local boards retain their "traditional prerogative to restrict and
control development based upon aesthetic considerations, so long as
those judgments do not mask, for example, a de facto prohibition of
personal wireless services." Id. at 61. Furthermore, we noted
that, "[i]n assessing the visual impact of the proposed tower, the
Board was entitled to make an aesthetic judgment about whether that
impact was minimal, without justifying that judgment by reference
to an economic or other quantifiable impact." Id. However, in
order to ensure that aesthetic considerations were not used as a
pretext to prohibit all tower-like structures, we cautioned that
"generalized aesthetic concerns . . . applicable to any tower,
regardless of location" would not suffice. Id. (citing Cellular
Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir. 1999)).
Similarly, we noted that objections from local residents or zoning
boards that reflect a misunderstanding as to the tower or the site,
or that are contrary to the objective evidence, cannot be the basis
for a denial. Id. (listing cases).
Here, the Board cited in support of its denial on
aesthetic grounds a petition signed by 27 neighborhood residents.
If the decision rested on those stated complaints alone we would be
given pause. Such reliance presents a risk that the accomplishment
of the Congressional goals in the TCA could, contrary to Congress's
concern with 'aesthetics' cannot serve as substantial evidence").
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intent, be defeated by the "generalized aesthetic concerns" of
local constituents. Members of local boards are likely "to find
the opinions of angry constituents compelling." Primeco Personal
Commc'ns, L.P. v. Village of Fox Lake, 26 F. Supp. 2d 1052, 1063
(N.D. Ill. 1998) (cited in Oyster Bay, 166 F.3d at 496).
Local decisions on aesthetic grounds are more often
affirmed when there is objective evidence to support the
conclusions, such as photographs, site plans, surveys, and the
like. The Board's decision here rests on such objective evidence.
The Board saw plans indicating that, although there are some
existing utility poles on the site, the proposed tower, at 140
feet, would be more visible than everything already in place. In
making its decision, the Board also relied on photographs of the
crane tests conducted by Green Mountain and residents' testimony
about those tests to measure the visual impact of the proposed
tower.8 Additionally, the Board received statements from the
Friends of the Blue Hills describing the effect of the tower on
8
Green Mountain conducted two crane tests at the Site
approximately four months apart. Although the record is not clear,
it appears that during the latter test, the crane was raised to a
height of 160 feet because one of the camouflaging options
considered by Green Mountain would require a tower at this height.
This option would have involved mounting antennae inside the
monopole rather than on its exterior. However, in its application
to the BOA, Green Mountain stated that the first test was at a
height of 140 feet and it submitted photos of this test along with
its application. The photos from the 140-foot test show that the
crane could be seen above the tree line from multiple vantage
points.
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views from that historic state park, providing some limited
support. The parties dispute how widely visible the proposed tower
would be from within the Reservation. However, the evidence before
the Board indicated that the tower would be visible from at least
four different locations within the 8,000-acre Reservation.9
In aggregate, this evidence is sufficiently grounded in
the specifics of the case to satisfy the substantial evidence
standard. See Helcher, 595 F.3d at 724 ("The photographic
representations of the tower as viewed from the property of . . .
neighbors, accompanied by the objections of many residents who
purchased land and built homes in this area specifically because of
the natural views, provided the Zoning Board with substantial
evidence to reject the permit."); Sprint PCS Assets, L.L.C. v. City
of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009) (finding
substantial evidence supporting denial of permit where the city
council reviewed "mock-ups of the proposed [P]WCFs and a report
that detailed the aesthetic values at stake," as well as public
comments, and concluded that the tower would "detract from the
residential character of the neighborhood"); VoiceStream
9
The Board's decision also states that the Blue Hills
Reservation is designated a Massachusetts historic district and is
listed in the National Registry of Historic Districts. As an
alternate ground for denial of Green Mountain's application, it
notes that the Bylaws forbid freestanding PWCFs within such
districts. However, the proposed site is not within the Blue Hills
Reservation, but adjacent to it. This conclusion was therefore in
error.
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Minneapolis, 342 F.3d 818, 832 (finding substantial evidence where
decision was based on "an on site investigation, and a map . . .
document[ing] that the 185-foot tower would be visible for several
miles along [a scenic] [r]iverway," as well as testimony from "Park
Service representatives, local residents and various state and
local entities" documenting how the tower would interfere with the
unique scenery on the riverway).
Put another way, the evidence before the Board was "such
relevant evidence as a reasonable mind might accept as adequate to
support [the] conclusion" that the proposed tower was not
consistent with the purpose and intent of the bylaws. Sw. Bell,
244 F.3d at 58. Green Mountain has not carried its burden of
demonstrating that the Board's decision is not supported by
substantial evidence.10 See id. at 62.
10
Green Mountain linked its Massachusetts state law claim to
its substantial evidence claim against the BOA. In its entirety,
its argument to the district court on its state law claim states
that "[f]or all the reasons stated above in regards to the absence
of substantial evidence supporting the Board's denial, the Board's
denial was not based upon evidence and was therefore unreasonable,
arbitrary and capricious in violation of M.G.L. Chapter 40a,
Section 17." Green Mountain's argument in its briefing to us is a
similarly conclusory assertion of the same point. Although the
district court did not address the state law claim directly, we
assume that in finding the Board's decision to be supported by
substantial evidence the court also found that it was not arbitrary
or capricious in violation of Massachusetts law. We do likewise.
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C. The MCC's Decision: Substantial Evidence
As noted, pursuant to the WPA, Green Mountain must show
that its proposal would "have no significant adverse impact on the
riverfront area" with regard to the various environmental interests
protected by the act. Mass. Gen. Laws ch. 131, § 40.
Additionally, Green Mountain must show that "there is no
practicable and substantially equivalent economic alternative to
the proposed project with less adverse effects." Id.Massachusetts regulations create a presumption that a riverfront
area, such as that at issue here, is significant to the interests
protected by the WPA. 310 Mass. Code Regs. § 10.58(3). This
presumption may be overcome only by "a clear showing that the
riverfront area does not play a role in the protection of one or
more of these interests." Id.
In this case, the MCC's written decision explained that:
1) the fact that the site was already degraded by the presence of
I-93 did not by itself mean that Green Mountain's project would
have no adverse effect; 2) Green Mountain had not provided a
requisite alternatives analysis demonstrating that there were no
less harmful alternatives to its proposal; and 3) the proposed
tower would negatively affect the aesthetics of the area.
On appeal, Green Mountain argues that the MCC's decision
is not supported by substantial evidence. It relies on a letter
submitted to the MCC by its environmental consultant, Alec MacLeod,
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on March 19, 2009, asserting that its proposal will not adversely
affect the interests protected by the Bylaws and the WPA. This
letter states:
C The proposed project is located toward
the narrow end of a triangle created by
an on-ramp and the south-bound lanes of
Route 93.
C In this highly energetic and
chronically disturbed location, it can
be reasonably assumed that wildlife and
fisheries habitat will not be a
concern.
C Given the site's disconnection from the
surrounding natural hydrology, it is
also reasonable to conclude that the
project will have no significant effect
on public or private water supply.
C Given the overwhelming stormwater
effects created by the adjacent
highway, and given that the only new
impervious surfaces are the actual
mechanicals supporting the tower and
the 8 x 8 foot tower foundation, there
should be no significant effect on
storm damage or water pollution.
C Sediment and erosion control will be
accomplished by installation of a
sediment and erosion control barrier
and by virtue of the fact that the
access surfaces will be gravel, not
pavement.
C No recreation can take place within or
near the proposed area.
This letter, and specifically this bullet-point list, is the sum of
the evidence on which Green Mountain relies in its briefing.
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These statements, however, do not undermine the MCC's
conclusion. As the Commission points out in its brief, MacLeod
also reported that "any flows entering the site from the
surrounding highway surfaces slowly percolate[] outward through the
sandy substrate, contributing to the Blue Hill River via
groundwater flow." Thus, the Commission found, any further
construction on the site, however slight, will adversely affect the
wetlands area. Furthermore, it notes that Green Mountain's
application acknowledges that "[d]ue to the necessary location of
the cell tower compound and . . . minimization of resource area
impacts, 109 square feet of [bordering vegetated wetland] will be
unavoidably impacted." The application concedes that there is no
cost-effective way to replicate this lost area.
Although the degraded condition of the site sets the
baseline against which the adverse impact of Green Mountain's
proposal is measured, it is not dispositive. Even if the site is
already degraded, the WPA and Milton Wetlands Bylaws require that
the project have no further adverse impact.11 See Mass. Gen. Laws
ch. 131, § 40. The sum of Green Mountain's evidence as to this
impact was MacLeod's conclusory statements in his letter. Given
that Green Mountain had the burden of establishing no adverse
11
Of course, the MCC was not entitled to insist that Green
Mountain improve the condition of the Site. Although Green
Mountain argued that its proposal may improve the Site, there is no
indication that the MCC imposed this requirement.
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impact, and given that the Commission found that it had not
sustained that burden, we may only find for Green Mountain if we
conclude that their evidence compelled a contrary conclusion. See
Nat'l Tower, 297 F.3d at 23 ("[C]ourts defer to the decision of the
local authority, provided that the local board picks between
reasonable inferences from the record before it."). For the
reasons identified by the MCC, Green Mountain's evidence is not so
compelling.
Furthermore, there was substantial evidence supporting
the Commission's conclusion that Green Mountain failed to carry its
burden of proving by a preponderance of the evidence that "there is
no practicable and substantially equivalent economic alternative to
the proposed project with less adverse effects." Mass. Gen. Laws
ch. 131, § 40. Although Green Mountain provided a document that it
styled an "alternative siting analysis," the MCC explained its
inadequacy. The minutes of the MCC's September 15, 2009 meeting
state: "[Green Mountain] submitted a map, which purports to be an
'alternative site analysis' proposed by the applicant . . . . The
site analysis is limited to the entrance ramp and exit ramp at the
same locale, rather than an area wide assessment. The applicant
did not provide a tower height efficiency analysis." It was
reasonable for the Commission to conclude that this single-page
document, which failed to evaluate any locations outside of the
immediate vicinity of the proposed Site or any alternative tower
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designs and/or heights, did not carry the applicant's burden of
showing that there were no alternatives to its proposal.
The MCC also noted that Green Mountain failed to provide
an alternatives analysis conducted by the Mass. Highway Dept. The
written explanation of the MCC's decision states that despite its
repeated requests for this alternatives analysis, which was
purported to evaluate both alternative locations and different
tower heights, "[t]o date, the applicant has failed, neglected or
refused to provide the data which was requested." The MCC goes on
to note, "At a scheduled hearing date, on September 15, 2009, the
representative of the applicant acknowledged that Mass Highway
indicated that the analysis had been done, but he did not think it
actually existed [in written form]."
This sequence of events supports the MCC's conclusion as
to the inadequacy of Green Mountain's attempts to show a lack of
alternatives. Over the course of five months and three Commission
meetings, Green Mountain referred to the Mass. Highway Dept. study
as proof of a lack of alternatives and agreed to provide it to the
MCC. It was not until after the BOA had rejected Green Mountain's
application that Green Mountain acknowledged that the study did not
exist in written form, offering no other documentation of the
study. Accordingly, the only evidence before the Commission on the
issue of alternatives was Green Mountain's map of the I-93 exit 3
location, which evaluated only a fraction of the relevant area and
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provided no information regarding alternative heights or designs.12
Given Green Mountain's lack of evidence as to less impactful
alternatives -- an important burden imposed on the developer by the
governing law -- the MCC was entitled to conclude that the
developer had failed to carry its burden. See Mass. Gen. Laws ch.
131, § 40.
III.
A. The Effective Prohibition Standard
We have explained that the effective prohibition standard
"can be violated even if substantial evidence exists to support the
denial of an individual permit under the terms of the town's
ordinances." Nat'l Tower, 297 F.3d at 20. "When a carrier claims
an individual denial is an effective prohibition, virtually all
circuits require courts to (1) find a 'significant gap' in coverage
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."13 Omnipoint Holdings, 586 F.3d at 48.
12
Green Mountain provided slightly more evidence on the issue
of alternatives to the BOA, in the form of coverage maps showing
the effect of a tower at the alternate locations proposed by local
residents. However, the record does not reflect that this evidence
was ever presented to the MCC.
13
Of course, Green Mountain is not a carrier, but a developer
leasing the land on which it hopes to build a PWCF. However, "[a]
landowner tower developer is in no better position than a carrier
and has an equally heavy burden." Second Generation, 313 F.3d at
629. In fact, "[t]he landowner who wishes to build a tower on its
site is a unique plaintiff. A landowner does not have an incentive
to identify possible sites on land it does not own." Id. at 629
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Therefore, while "an individual denial is not automatically a
forbidden prohibition . . . [,] we [cannot] rule out the
possibility that - based on language or circumstances - some
individual decisions could be shown to reflect, or represent, an
effective prohibition on personal wireless service." Town of
Amherst, 173 F.3d at 14.
With regard to the first prong of this test, a
significant gap must be "large enough in terms of physical size and
number of users affected" to distinguish it from "a mere, and
statutorily permissible, dead spot." Second Generation, 313 F.3d
at 631. Indeed, "[f]ederal regulations contemplate that areas
enjoying adequate coverage will still include spots without
reliable service." Id. (citing 360° Commc'ns Co. v. Bd. of
Supervisors of Albemarle Cnty., 211 F.3d 79, 87 (4th Cir. 2000)).
Dead spots are defined as "[s]mall areas within a service area
where the field strength is lower than the minimum level for
reliable service," 47 C.F.R. § 22.99, and the presence of dead
spots does not mean that service is per se inadequate, see id.§ 22.911(b).
Additionally, we have held that the provision of coverage
by one carrier in a certain area does not insulate a regulatory
decision denying other carriers the ability to provide service in
the same area from a claim of effective prohibition. Second
n.7. The same is true of a lessee.
-36-
Generation, 313 F.3d at 633-34. Alternatively stated, "[t]he fact
that some carrier provides some service to some consumers does not
in itself mean that the town has not effectively prohibited
services to other consumers." Id. at 634.
Evaluating the second prong of the effective prohibition
test, we have "identified two sets of circumstances where there is
a prohibition 'in effect.'" Id. at 630. "The first is where the
town sets or administers criteria which are impossible for any
applicant to meet. . . . The second involves the situation where
the plaintiff's existing application is the only feasible plan; in
that case, denial of the plaintiff's application 'might amount to
prohibiting personal wireless service.'" Id. (quoting Town of
Amherst, 173 F.3d at 14). These two examples do not, however,
represent the only ways to demonstrate an impermissible prohibition
on wireless services. "[T]here can be no general rule classifying
what is an effective prohibition. It is a case-by-case
determination." Id. In order to demonstrate an effective
prohibition, the plaintiff must "show 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." Town of Amherst, 173 F.3d at
14.
An effective prohibition claim "present[s] questions that
a federal district court determines in the first instance without
-37-
any deference to the [local regulatory authority]." Nat'l Tower,
297 F.3d at 22. Thus, in evaluating an effective prohibition
claim, unlike in our review of a substantial evidence challenge, we
review the district court's opinion, not that of the Board, see
Omnipoint Holdings, 586 F.3d at 47, and in determining whether an
effective prohibition exists, a district court may rely on
"evidence . . . presented in court that is outside of the
administrative record compiled by the local authority," Nat'l
Tower, 297 F.3d at 22. Therefore, "[i]f the district court makes
evidentiary findings . . . that go beyond the administrative
record, . . . we will review its factual findings for clear error
and its legal conclusions de novo." Id.B. The District Court's Effective Prohibition Analysis
As described, the effective prohibition analysis is a
two-part test, asking first whether there is a gap in coverage and,
second, whether the absence of feasible alternatives to the
proposed tower means that denial of an application effectively
prohibits all wireless service in the area. Omnipoint Holdings,
586 F.3d at 48. The parties disagree as to whether a coverage gap
exists. In evaluating the effective prohibition claim against the
Board, the district court assumed that such a gap existed, focusing
its analysis on the second prong of the test. It held that,
regardless of the outcome of the coverage issue, Green Mountain had
not met its burden of demonstrating that there are no feasible
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alternatives or that the town's Bylaws are impossible for any
applicant to meet.14 Green Mountain Realty Corp. v. Leonard, No.
09-11559, 2011 WL 1898239, at *4 (D. Mass. May 18, 2011). With
regard to the effective prohibition claim against the MCC, the
court's written decision makes no findings and states no
conclusion.
In explaining its decision on the effective prohibition
claim against the Board, the court noted that the Board had
approved other permit applications in the past and referred to the
Board's conclusory statement that the alternative sites identified
14
Green Mountain asserts that, because the Board did not
address the issue of alternatives in its written decision, it was
not entitled to raise the issue in defending the effective
prohibition claim before the district court, and that the district
court erred in considering the issue. This argument fails because
"[t]he TCA does not itself expressly authorize local zoning boards
to consider whether individual decisions amount to an 'effective
prohibition.'" Second Generation, 313 F.3d at 630. Thus, a local
entity's defense of an effective prohibition claim cannot be
limited to the reasons given in its written decision. It makes
sense to restrict a local entity's defense of a substantial
evidence claim to the rationale provided in its written decision,
for such a claim challenges the reasoning of that decision. See
Nat'l Tower, 297 F.3d at 20-21. In contrast, an effective
prohibition claim asserts that the decision, even if supported by
the evidence, has an impermissible effect, and thus the district
court considers the question de novo, taking, if it chooses,
additional evidence not in the administrative record. See Second
Generation, 313 F.3d at 629. Green Mountain points to our National
Tower decision as an example of a case in which a local zoning
board was barred from arguing that feasible alternatives existed.
However, in that case, the local zoning board did not deny the
permit on the grounds that feasible alternatives were available.
The record showed that a remand for consideration of this issue
would be inappropriate given the board's unwillingness to grant a
permit under any circumstances. 297 F.3d at 23-24.
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by local residents to the Board may have been feasible
alternatives. However, the court did not address the additional
evidence provided by Green Mountain demonstrating its attempts to
identify and evaluate alternative sites.
The burden here is on Green Mountain. As we have
explained, "[f]or a telecommunications provider to argue that a
permit denial is impermissible because there are no alternative
sites, it must develop a record demonstrating that it has made a
full effort to evaluate the other available alternatives and that
the alternatives are not feasible to serve its customers." Sw.
Bell, 244 F.3d at 63; see also Omnipoint Holdings, 586 F.3d at 52("The burden is on the carrier to prove it investigated thoroughly
the possibility of other viable alternatives before concluding no
other feasible plan was available." (internal quotation marks
omitted)). In this case, however, the district court did not
acknowledge Green Mountain's attempt to carry its burden or the
additional evidence it submitted.
In particular, Green Mountain submitted affidavits before
the district court from its own president, as well as from the
owner and manager of an independent consulting company hired to aid
Green Mountain in the permitting process. These affidavits
described efforts to identify alternative sites and explained why
the sites suggested by local residents were unacceptable. The
latter affidavit explained:
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[The consulting company] evaluated other
potential alternatives and alternative sites
within the coverage gap. The other potential
alternatives were either unavailable, were not
technically feasible or required greater
zoning relief than the proposed Site and were
deemed inferior to the chosen site. Nearly
all of the land in Milton in the coverage gap
is unsuitable to construct a PWCF due to the
presence of zoning or conservation
restrictions, wetlands, steep slopes, and/or
no-curb cut areas.
Similarly, the affidavit from Green Mountain's president stated
that he explored the possibility of locating a tower or antennae on
an existing structure or constructing a network of dispersed
antennae, but ultimately decided that neither option was viable.
His affidavit also described efforts to locate alternative sites
and the evaluation of the local residents' proposed sites.
Supplementing these affidavits, Green Mountain also submitted
deposition testimony from both its president and the consultant
describing efforts to locate and evaluate alternative sites.
In addition, Green Mountain submitted a newly prepared
report from an independent engineering firm, hired to evaluate
alternative locations "in the vicinity of the interchange for the
proposed cell tower." While this report did not evaluate sites
outside of the immediate area around Exit 3 in Milton, it did
conclude that Green Mountain's preferred site is "best suited for
the tower installation, and likely the only location that [the
Massachusetts Department of Transportation] will approve."
Finally, Green Mountain submitted statements, deposition testimony,
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and coverage maps from engineers working for T-Mobile and metroPCS.
This evidence tended to show that a coverage gap existed within
the networks of each of these carriers.
We express no opinion as to whether this evidence is
sufficient to carry Green Mountain's burden of establishing that
there were no feasible alternatives to its proposal and that the
Board's decision thus constituted an effective prohibition. Not
surprisingly, the appellees argue, as they did before the district
court, that the reasons given by Green Mountain for rejecting the
alternate sites identified by local residents were inadequate.
Green Mountain is correct that the district court should have made
written findings resolving these factual disputes and evaluating
the evidence offered by the BOA. Likewise, the court should have
addressed the effective prohibition claim against the MCC in a
similar fashion.15
Unlike the substantial evidence analysis, an effective
prohibition claim "present[s] questions that a federal district
court determines in the first instance without any deference to the
15
Green Mountain was subject to the permitting requirements
of both the BOA and MCC, and either agency's decision could have
independently been an effective prohibition. The existence of an
effective prohibition may turn on the rationale for the denial of
an application or the specific criteria relied upon by the
administrative body. To say that there is a feasible alternative
under one set of regulatory standards does not mean that there are
also alternatives under differing standards. The effective
prohibition analyses with respect to the BOA and MCC may be
largely, or even entirely, overlapping, but if that was the case
the court should have explained why that was so.
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[local regulatory authority]," Nat'l Tower, 297 F.3d at 22, and a
district court may rely on "evidence . . . presented in court that
is outside of the administrative record compiled by the local
authority," id. Here, the court failed to consider the evidence
submitted by Green Mountain documenting its attempts to locate and
evaluate alternative sites. Additionally, the court did not
address Green Mountain's effective prohibition challenge to the
MCC's decision. Accordingly, we must remand to the district court
for reconsideration of the effective prohibition claims against the
BOA and MCC. We leave it to the discretion of the district court
whether to evaluate the claims on the current record or allow the
parties to submit additional evidence.
IV.
For the foregoing reasons, we affirm the district court's
decisions with regard to Green Mountain's substantial evidence
claims against the BOA and MCC. However, we vacate the district
court's grant of summary judgment in favor of the BOA and MCC on
Green Mountain's effective prohibition claims, and remand the case
to the district court for consideration of these claims. Each
party shall bear their own costs.
So ordered.
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