Second Generation v. Pelham

Second Generation v. Pelham                CV-00-90-B     05/21/02

                   UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE



Second Generation Properties, L.P.

     v.                                       Civil No. 00-90-B
                                            Opinion No. 

Town of Pelham



                        MEMORANDUM AND ORDER


     Second Generation Properties, L.P., challenges a decision by

Pelham's Zoning Board of Adjustment       ("ZBA") denying it a variance

to use its property as the site for a 250-foot tall wireless

telecommunications tower.        Second Generation argues that the

ZBA's decision violates the Telecommunications Act of 1996, 

  ("TCA") because:      it has "the effect of prohibiting

the provision of personal wireless services" in an area of town

not served by other providers, 

 (c)(B)(i)(II);

and (2) it is not supported by "substantial evidence," 

(c) (B) (iii) -1


     1 Second Generation has abandoned its additional claims
that the decision unreasonably discriminates among providers of
telecommunication services, see 

(c)(7)(B)(1)(I),
                          STANDARD OF REVIEW

        In a non-jury case such as this, where the parties have

filed cross-motions for summary judgment and the material facts

are undisputed, the case is submitted and the court must

determine the inferences to be drawn from the undisputed facts.

See Garcia-Avala v. Lederle Parenterals,      Inc., 

, 643-

44 (1st Cir. 2000).     The parties therefore agree that I may

resolve the case on their submissions without a trial.



                                 FACTS

        Pelham adopted a Personal Wireless Services Ordinance in

1999.     The ordinance authorizes the Planning Board to issue

conditional use permits for the construction of telecommuni­

cations towers in a new "Telecommunications Overlay Zone."        The

Overlay Zone includes only areas currently zoned for industrial

and commercial uses.    A variance must be obtained from the ZBA to

construct a tower in any other zoning district.

        Second Generation owns a 90-acre wooded lot at the top of

Spaulding Hill in Pelham.     Because its property is located in a


and that the decision is improper because it is not "in writing."

 (C) (7) (B) (iii) .

                                  -   2   -
residential zone. Second Generation cannot construct a tele­

communications tower on the property without a variance.           Rather

than seek such a variance, however. Second Generation initially

filed suit in this court in February 2000, arguing that the

Personal Wireless Services Ordinance violates the TCA.           While the

action was pending. Second Generation changed its strategy and

submitted a proposal to the ZBA to construct a 250-foot tall

telecommunications tower on its property.           In response, the court

stayed the case until the ZBA decided whether to issue the

variance.

     The ZBA refused to approve the variance because Second

Generation failed to establish that it would suffer unnecessary

hardship, one of five requirements for a variance.           See Olszak v.

Town of New Hampton, 

 (1995).           Shortly after the

ZBA issued its decision, however, the New Hampshire Supreme Court

released an opinion making the unnecessary hardship requirement

substantially less restrictive.           See Simplex Techs., Inc. v. Town

of Newington, 

 (2001).          Because the ZBA had

based its ruling on an outdated definition of unnecessary hard­

ship, this court remanded the matter to the ZBA and instructed it



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to re-examine its determination in light of the supreme court's

decision.

     Second Generation argued on remand that the ZBA should grant

it a variance because its proposal would fill a significant gap

in wireless service in Pelham without adversely affecting

surrounding properties. It attempted to prove that a significant

gap in wireless coverage existed by presenting a "propagation

study" that purported to show that existing and potential future

telecommunications towers located in the Telecommunications

Overlay Zone could not effectively serve a section of Route 128

in Pelham that experienced traffic of up to 10,000 cars per day.2

It also produced testimony from an expert witness who claimed

that five of the six carriers licensed to provide wireless

service in New Hampshire experienced gaps in wireless coverage in

the Route 128 area.   Finally, it offered anecdotal evidence from

witnesses who claimed that a gap in wireless coverage existed.

     Second Generation also produced evidence at the hearing to

support its contention that the proposed tower would have only a



     2 Pelham's interim planning director disputed the traffic
count and suggested that as few as half as many cars traveled
through the alleged gap area on a daily basis.

                               -   4   -
minimal impact on surrounding properties.       It claimed that the

tower would not be visible to adjacent landowners because its

property was heavily wooded and the tower would be 1,000 feet

from the nearest residence.     It asserted that a balloon test

demonstrated that only six residences in the entire town would

have any view of the tower and only the top 150 feet of the tower

would be visible above the tree line.        It produced a study

suggesting that wireless telecommunications towers do not

adversely affect the value of surrounding properties.        Finally,

it claimed that the new tower would generate only a limited

amount of additional traffic.

     The ZBA found this evidence unpersuasive.       On September 27,

2001, it issued a written decision denying Second Generation's

request for a variance.



                              DISCUSSION

     Second Generation claims that the ZBA's decision violates

the TCA because it perpetuates a significant gap in wireless

coverage and is not supported by substantial evidence.        I address

each claim in turn.



                                 -   5   -
    A.    Effective Prohibition

     The TCA provides that "[t]he regulation of the placement,

construction, and modification of personal wireless service

facilities by any State or local government or instrumentality

thereof . . . shall not prohibit or have the effect of

prohibiting the provision of personal wireless services."           

(c)(7)(B)(i)(II).           I review a claim under this

provision de novo, based on the record developed by the local

land use authority and any other evidence submitted by the

parties in support of their motions.          See Town of Amherst, N.H.

v. Omnipoint Communications, 

 (1st Cir. 1999) .

     The Personal Wireless Services Ordinance does not on its

face prohibit the provision of wireless services in Pelham

because it both authorizes the town's Planning Board to grant

conditional use permits to construct telecommunications towers

within the Telecommunications Overlay Zone and allows the ZBA to

grant variances to build towers in other zoning districts.              Nor

has Second Generation offered persuasive evidence demonstrating

either that the ordinance is a sham concealing an intention on

the part of town officials to ban the construction of new towers



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                                      -
or that the ordinance is so difficult to comply with that it

amounts to an effective ban.3    Thus, Second Generation's

effective prohibition claim depends upon its contention that the

ZBA's denial of its request for a variance amounts to an

effective prohibition of wireless service in the area that the

proposed tower is intended to serve.

     A denial of a single request to construct a telecommuni­

cations tower at a particular location can constitute an

effective prohibition of wireless service.    See Amherst, 

.   A claim based   on a single denial has two elements.

First, the applicant must establish that the proposed tower will

fill a significant gap in wireless service.     See Nextel West

Corp. v. Unity Township, 

, 265 (3d Cir. 2001) .

Obviously, mere "dead spots," which Federal Communication



     3 Second Generation does claim that the ZBA recently denied
another applicant's request for a variance to construct a
telecommunications tower at a different site. Evidence that a
local land use body is using its discretionary authority to
reject all feasible means of filling a significant gap in
wireless coverage likely would establish a violation of the TCA's
effective prohibition provision. As I explain in greater detail
below, however. Second Generation has not persuaded me either
that a significant gap in coverage exists or that the ZBA is
misusing its power to prohibit telecommunications service
providers from filling the coverage gap.

                                 -   7   -
Commission regulations define as "small areas within a service

area where the field strength is lower than the minimum level for

reliable service," 

, will not qualify as

significant gaps in service.   See 360° Communications Co. v. Bd.

of Supervisors of Albemarle County, 

 (4th Cir.

2000).   Moreover, a gap in service will be deemed to be

significant only if the area in question is not served by any

other provider.4   See Sprint Spectrum L.P. v. Willoth, 

 (2d Cir. 1999); accord ATP Pittsburg Ltd. P'Ship v.

Penn. Township, Butler County, 

   (3d Cir.

1999).

     Even if an individual permit denial will leave a significant

gap in wireless service, the denial will not amount to an

effective prohibition unless the gap cannot be filled by other

means.   Although courts in other jurisdictions have expressed

this requirement in different ways, compare ATP Pittsburg Ltd.



     4 If an area is being served by one or more carriers but a
local land use authority improperly denies an application by
another carrier to serve the same area, the dissatisfied carrier
may have a claim based on the TCA's prohibition of "unreasonable
discrimination among providers." 

 (c) (7) (B) (1)
 (I). As I mentioned previously, however. Second Generation has
abandoned its discrimination claim.
P'Ship, 

   (denial of permit is an effective

prohibition if site is "the least intrusive means to close a

significant gap in service") and Sprint Spectrum L.P., 

 (same), with 360° Communications Co., 

(rejecting least intrusive means test), the First Circuit has

held that "the burden for the carrier invoking the [effective

prohibition] provision is a heavy one:   to show from language or

activities 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 to even try," Amherst, 

(emphasis in original) ; see also Southwestern Bell Mobile Svs.,

Inc. v. Todd, 

, 63 (1st Cir. 2001)   (applicant must

demonstrate that alternate sites are not available).

     Second Generation has not met its burden of proof with

respect to either element of its effective prohibition claim.

Although Second Generation's propagation study proves that none

of the existing telecommunications towers in Pelham is able to

provide reliable wireless service to a significant section of

Route 128, the study does not consider whether the area in

question is being adequately served by towers in nearby towns.

This deficiency is significant because Second Generation's own

                                -   9
                                    -
expert concedes that:   (1) he was able to obtain service in the

alleged gap area on his U.S. Cellular phone by accessing a tower

operated by another carrier in Massachusetts5; and (2) he does

not know whether Nextel, a licensed New Hampshire wireless

carrier, is able to provide service in the alleged gap area.

Because Second Generation concedes that at least one carrier is

able to provide service to the alleged gap area and has produced

no evidence as to whether another licensed carrier is providing

similar service, it has not proved that a significant gap in

wireless coverage exists in the Route 128 area.

     Second Generation also has failed to prove that other

reasonable efforts to fill any gap in wireless coverage are

likely to be fruitless.     Second Generation attempted in its

propagation study to demonstrate that the alleged coverage gap

could not be filled by building new towers in the Telecommuni­

cations Overlay Zone.     The study, however, does not consider the

possibility that a carrier might be able to serve the area by



     5 The tower in question is part of the Cingular Network.
Although Cingular is not licensed to provide wireless service in
New Hampshire, Second Generation has not explained why this fact
is relevant to the issue of whether a significant gap in wireless
coverage exists in the Route 128 area.

                                 -   10   -
obtaining a waiver of the ordinance's 199-feet tower height

limitation and building a taller tower in the overlay zone.                    Nor

has Second Generation attempted to determine whether towers at

other feasible sites outside the overlay zone could provide the

necessary service.    Because Second Generation has failed to

demonstrate either that other feasible sites are unavailable or

that, if such sites are available, the ZBA is unlikely to grant a

variance to allow towers to be built on one or more of these

sites, it has failed to prove its effective prohibition claim.

     B.     Substantial Evidence

     Second Generation also argues that Pelham violated the TCA's

substantial evidence requirement.               Section 332(c) (7) (B) (iii)

states:    "Any decision by a State or local government or

instrumentality thereof to deny a request to place, construct, or

modify personal wireless services facilities shall be in writing

and supported by substantial evidence contained in a written

record."    The record, for purposes of making a substantial

evidence determination, consists of the record that was presented

to the local authority.    See Amherst, 

 n.7.




                                   -   11   -
     Substantial evidence review is narrow, focusing on whether

the record includes "'such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.'"          Southwestern

Bell 244 F.3d at 58 (quoting Penobscot Air Servs., Ltd. v.

F.A.A., 

   (1st Cir. 1999)).       Contradictory

evidence in the record does not preclude a finding that substan­

tial evidence supports a zoning decision.         See 

   A decision is

not supported by substantial evidence, however, if "the record

clearly precludes the 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."          Id.

at 59 (internal quotations omitted).         The burden of demonstrating

that a decision is not supported by substantial evidence remains

with the applicant.   See Southwestern Bell, 244 F.3d at 63.

     At issue is the ZBA's denial of Second Generation's request

for a variance.   To obtain a variance, an applicant must prove:

          (1)   a denial of the variance would result in
          unnecessary hardship to the applicant; (2)
          the surrounding properties would suffer no
          diminution in value; (3) the proposed use
          could not be contrary to the spirit of the
          ordinance; (4) granting the variance would
          benefit the public interest; and (5) granting
          the variance would do substantial justice.


                                -   12   -
Olsak, 

.     The burden of proof as to all five

requirements rests with the applicant.        See 

     I focus my analysis on the ZBA's unnecessary hardship

determination.     Until recently, the New Hampshire Supreme Court

consistently construed the unnecessary hardship requirement to

call for proof that "the deprivation resulting from the

application of the ordinance must be so great as to effectively

prevent the owner from making any reasonable use of the land,"

Grey Rocks Land Trust v. Hebron, 

 (1992)

(quoting Governor's Island Club v. Town of Gilford, 

 (1983)).     Last year, however, the New Hampshire Supreme Court

altered its interpretation, holding in Simplex Techs., Inc., 

, that:

          [h]enceforth, applicants for a variance may
          establish unnecessary hardship by proof that:
          (1) a zoning restriction as applied to the
          property interferes with their reasonable use
          of the property, considering the unique
          setting of the property in its environment;
           (2) no fair and substantial relationship
          exists between the general purpose of the
          zoning ordinance and the specific restriction
          on the property; and (3) the variance would
          not injure the public or private rights of
          others.

.


                                 -   13   -
      Second Generation argues that it satisfied all three

components of the new test by demonstrating that the proposed

tower would allow it to fill a significant gap in wireless

coverage in Pelham in a manner that would not materially alter

the residential character of surrounding properties or compromise

other public or private interests.           I reject this contention

because the record before the ZBA contains substantial evidence

to support its contrary determination.

      First, as I have previously noted. Second Generation has not

developed a persuasive case for its claim that the proposed tower

is the only feasible way to fill an existing gap in wireless

coverage.   Thus, it is in no position to claim that the ZBA must

issue the variance in order to comply with the TCA.

      Second Generation's argument also does not sufficiently

account for the important role that aesthetic judgment plays in

the exercise of zoning power.       The New Hampshire Supreme Court

has recognized this point in Asselin v. Town of Conway, 

   (1993), where it held that "municipalities may validly

exercise zoning power solely to advance aesthetic values because

the preservation or enhancement of the visual element may promote

the general welfare," 

.          The First Circuit has

                                -   14   -
similarly held that site specific aesthetic concerns alone may be

sufficient to support a local land use authority's decision to

deny an application for a telecommunications tower.      Southwestern

Bell. 244 F .3d at 60-61.

     Second Generation proposes to construct its telecommuni­

cations tower in an area of Pelham that has retained its

residential character.      The area has no towers or other non-

conforming commercial uses.      Roads in the area are not lit by

street lamps.    Moreover, the property is located in a section of

town that is prized for its spectacular views of the surrounding

countryside.     Several of the residences that would be affected by

the proposed tower have deed restrictions protecting their views.

Further, while only a limited number of existing residences would

have a view of the tower, it is unclear whether it also would

impair the views of any of the homes that are likely to be built

in several proposed subdivisions in the area.      Given these unique

circumstances,    I cannot say that the ZBA lacked substantial

evidence to reject Second Generation's proposal given the unique

setting of the property and its environment.      The same evidence

also adequately supports the ZBA's determinations that Second

Generation's proposal would injure public and private rights by

                                  -   15   -
impairing views in the area and that the zoning ordinance's

general prohibition on the construction of telecommunications

towers in the residential district bears a fair and substantial

relationship to the general purposes of the ordinance.     Thus, I

reject Second Generation's contention that the record does not

contain substantial evidence to support the ZBA's unnecessary

hardship finding.

     The TCA exemplifies Congress's continuing commitment to the

principle of federalism.    While Congress has identified the

provision of wireless telecommunications services as a national

priority, it has largely left to local land use authorities the

power to control the means by which that national priority will

be achieved.    By placing the burden on an applicant raising an

effective prohibition claim to demonstrate that alternative sites

are not feasible and by adopting a definition of "substantial

evidence" that leaves a permit denial in place unless it is

clearly insupportable, the federal courts have preserved local

control over the means by which the TCA will be implemented.

Control over means, however, should not be confused with control

over ends.     If a future applicant is able to demonstrate that its

proposal is the only feasible means to address a significant gap

                                 -   16   -
in wireless coverage in the Route 128 area, local aesthetic

concerns must give way to the national policy embodied in the

TCA.

       Because Second Generation has failed to prove its effective

prohibition claim and the ZBA's decision is supported by

substantial evidence, its motion for summary judgment          (document

no. 37) is denied.    Pelham's motion for summary judgment

(document no. 39) is granted.        The clerk shall enter judgment for

Pelham consistent with this Memorandum and Order.

       SO ORDERED.




                                              Paul Barbadoro
                                              Chief Judge


May 21, 2002

cc:    Andrew Shulman, Esq.
       Diane Gorrow, Esq.
       William Kirschner, Esq.




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