Second General Prop. v . Pelham CV-00-090-JD 06/27/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Second Generation Properties L.P.
v. Civil N o . 00-090-JD
Opinion No. 2001 DNH 120
Town of Pelham
O R D E R
The plaintiff, Second Generation Properties L.P., seeks
approval from the Town of Pelham, New Hampshire, to build a
telecommunications tower for personal wireless services on land
it owns in Pelham. Second Generation brings an action under the
Telecommunications Act of 1996 (“TCA”), alleging that Pelham’s
ordinance governing such towers and its decision not to grant
Second Generation a variance to build a tower violated three
subsections of 47 U.S.C.A. § 332(c)(7)(B). Second Generation and
Pelham have each moved for summary judgment and objected to the
other’s motion.
Standard of Review
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). The party seeking summary judgment must first demonstrate
the absence of a genuine issue of material fact in the record.
See Celotex Corp. v . Catrett, 477 U.S. 317, 323 (1986). All
reasonable inferences and all credibility issues are resolved in
favor of the nonmoving party. See Barreto-Rivera v . MedinaVargas,
168 F.3d 4 2 , 45 (1st Cir. 1999). In considering crossmotions for summary judgment, “the court must consider each
motion separately, drawing inferences against each movant in
turn.” Reich v . John Alden Life Ins. Co.,
126 F.3d 1 , 6 (1st
Cir. 1997).
Background
Second Generation owns a heavily wooded, ninety-acre lot on
a hill in an area zoned for residential use in Pelham, New
Hampshire, where it wants to build a 250-foot tower for personal
wireless services. The lot is above the southern portion of
Route 128. The area is zoned for residential use.
Pelham has a personal wireless services ordinance that
permits such towers to be located in a telecommunications overlay
zone in certain industrial and business zones. Second
Generation’s lot is not located within the telecommunications
overlay zone. After several unsuccessful efforts to obtain
approval from Pelham to build a tower on its lot, Second
Generation filed suit here alleging violations of the TCA and a
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civil rights claim under 42 U.S.C.A. § 1983.
The suit was stayed while Second Generation applied to the
Pelham Zoning Board of Adjustment for a variance to build the
tower. At a hearing on October 1 2 , 2000, the Board unanimously
denied Second Generation’s application on the grounds that the
unnecessary hardship requirement had not been met. On December
1 1 , 2000, the Board denied Second Generation’s request for a
rehearing.
Second Generation filed an amended complaint in this case
alleging four causes of action based on violations of
§ 332(c)(7)(B). Second Generation alleges that Pelham’s denial
of the requested variance effectively prohibits the provision of
wireless services in violation of § 332(c)(7)(B)(ii),
unreasonably discriminates among the providers of equivalent
services in violation of § 332(c)(7)(B)(i), was not supported by
adequate written findings as required by § 332(c)(7)(B)(iii), and
was not supported by substantial evidence as required by §
332(c)(7)(B)(iii). Second Generation seeks a judgment that
Pelham’s personal wireless services ordinance, as applied to
Second Generation’s request to build a tower, violates §
332(c)(7)(B) and seeks a permanent injunction requiring Pelham to
permit Second Generation to build the tower.
Discussion
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Second Generation moves for summary judgment on all four
claims. Pelham opposes Second Generation’s motion and moves for
summary judgment in its favor. In support of its position,
Pelham contends that Second Generation cannot show that the
Board’s decision or the ordinance constitutes an effective
prohibition of services in part because the hardship standard has
changed, that Second Generation lacks standing to maintain its
discrimination claim, that the Board properly applied the thenexisting hardship standard, that the substantial evidence
requirement violates the Tenth Amendment, and that the Board
complied with all procedural requirements under the TCA.
“47 U.S.C. § 332(c)(7) is 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.” Amherst, N.H. v . Omnipoint
Communications Enters., Inc., 173 F.3d 9, 13 (1st Cir. 1999).
The First Circuit has recently reviewed the operations of
telecommunications systems and the conflicting needs of providers
and towns in the context of claims of TCA violations. See, e.g.,
id.; see also Southwestern Bell Mobile Sys. v . Todd,
244 F.3d 5 1 ,
56-57 (1st Cir. 2001); Brehmer v . Planning Bd. of Town of
Wellfleet,
238 F.3d 117, 119-22 (1st Cir. 2001). Evaluation of a
town’s decision in the context of the TCA requires careful
consideration of the particular circumstances of each case. See
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Amherst, 173 F.3d at 1 7 .
In this case, since the Pelham Board denied Second
Generation’s application for a variance due to a lack of an
unnecessary hardship, the New Hampshire Supreme Court has
modified the applicable legal standard. See Simplex Techs. v .
Town of Newington, 766 A.2d 713, 715 (N.H. 2001). The new
definition of unnecessary hardship is less restrictive than the
standard applied by the Board. See Town of Plaistow Bd. of
Selectmen v . Town of Plaistow Zoning Bd. of Adjustment,
769 A.2d
397, 400 (N.H. 2001). Both sides here argue that the change in
the law affects the outcome of this case.
Whatever Second Generation’s prospects for success may be in
light of Simplex, the Board should have an opportunity to apply
the current law in the first instance. In this case, further
proceedings before the Board would serve a useful purpose by
clarifying the extent to which the change in the legal standard
may alter the application of the ordinance to requests for
variances to build personal wireless services towers. C f .
Brehmer, 238 F.3d at 212 (holding that further proceedings would
serve no useful purpose where underlying violation was admitted
and settlement reached). Therefore, the case is remanded to the
Pelham Zoning Board of Adjustment for further proceedings in
light of the new definition of “unnecessary hardship” articulated
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in Simplex and applied in subsequent cases.1
Conclusion
For the foregoing reasons, both the plaintiff’s motion for
summary judgment (document n o . 18) and the defendant’s motion for
summary judgment (document n o . 17) are denied without prejudice.
The case is stayed pending further proceedings in the Pelham
Zoning Board of Adjustment with respect to Second Generation’s
application for a variance.
Second Generation shall file status reports in this court
every thirty days on the first day of the month beginning on
August 1 , 2001, until a final decision is issued by the Zoning
Board of Adjustment or the matter is resolved by agreement of the
parties.
SO ORDERED.
Joseph A . DiClerico, Jr
District Judge
June 2 7 , 2001
cc: Andrew R. Schulman, Esquire
Charles P. Bauer, Esquire
William R. Kirschner, Esquire
1
To the extent the parties may dispute the Board’s
application of state law in its decision-making process, the
appropriate forum for resolution of that dispute is the state and
not the federal court.
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