Ind. Tower&Wireless v. E. Kingston

Ind. Tower&Wireless v . E . Kingston   CV-07-399-PB   3/26/09

                   UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE


Industrial Tower and Wireless, LLC

                                       Case N o . 07-cv-399-PB
                                       Opinion N o . 

Town of East Kingston, NH



                       MEMORANDUM AND ORDER

     Industrial Tower and Wireless, LLC (“ITW”) alleges that the

East Kingston Zoning Board of Adjustment (“ZBA”) improperly

denied ITW’s application for a variance to construct a wireless

telecommunications tower on property zoned only for residential

uses.   Before the court are cross-motions for summary judgment

with respect to Count I of ITW’s two count complaint. Count I

alleges that the ZBA’s ruling violates the Telecommunications Act

of 1996 (“TCA”) because it was not set forth in a written

decision and was not supported by substantial evidence. See 

(c)(7)(B)(iii). For the reasons given below, I

conclude that the ZBA failed to comply with the TCA’s written

decision requirement. Accordingly, I remand the matter to the

ZBA and direct it to produce a written decision supporting its

decision to deny the requested variance.
                          I.   BACKGROUND1

A.   East Kingston Zoning Requirements and New Hampshire
     Land Use Variance Law

     East Kingston’s Zoning Ordinance prohibits the construction

of wireless towers in residential districts without a variance.

Zoning Ordinance of East Kingston, Art. XV(D)(2).    The Ordinance

specifies that one of its goals is to “[r]educe adverse impacts

such facilities may create, including, but not limited t o :

impacts on aesthetics, environmentally sensitive areas,

historically significant locations, flight corridors, health and

safety by injurious accidents to person and property, and

prosperity through protection of property values.”   Art.

XV(B)(2).   The Ordinance further seeks to “[p]ermit the

construction of new towers only where all other reasonable

opportunities have been exhausted, and to encourage the users of

towers and antennas to configure them in a way that minimizes the

adverse visual impact of the towers and antennas.”   Art.

XV(B)(4).

     A New Hampshire zoning board may authorize a land use

variance if the applicant proves that the following conditions

are met: (1) the variance will not be contrary to the public


     1
       Citations are to the Certified Record “CR” submitted by
the Town of East Kingston.

                                -2-
interest; (2) special conditions exist such that literal

enforcement of the ordinance results in unnecessary hardship; (3)

the variance is consistent with the spirit of the ordinance; (4)

substantial justice is done; and, (5) the variance will not

diminish the value of surrounding properties. See 

, I ( b ) ; Simplex Techs., Inc. v . Town of

Newington, 

 2 7 , 729, 

 (2001).   The New

Hampshire Supreme Court has held that

     applicants for a variance may establish unnecessary
     hardship by proof that: (1) a zoning restriction as
     applied to their 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
     purposes 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.

Simplex, 

, 

.

B.   ITW’s Application and ZBA Hearings

     On April 2 6 , 2006, ITW and its co-applicant Cingular

Wireless submitted an application for a variance to construct a

180 foot wireless telecommunications Monopole tower and equipment

area at 36 Giles Road, a 26-acre parcel of land owned by Jeffrey

and Susan Marston and located in a residential zone in East

Kingston (hereinafter the “Parcel”).     (CR 2-78.) On May 2 5 ,

2006, the ZBA held a public hearing and voted to grant ITW a

variance.   (CR 79.)   Thereafter, Kenridge Farm, an abutter to the

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Parcel and an intervenor in these proceedings, unsuccessfully

sought a rehearing on the ZBA’s decision. (CR 80.)       The parties

then discovered that another abutter had not been properly

notified of the May hearing and stipulated that the matter would

be remanded to the ZBA for a new hearing. (Pl.’s Mot. for Summ.

J., Doc. N o . 9-2, at 7.)

     On December 1 9 , 2006, the ZBA held a de novo hearing and

again voted to grant ITW a variance. (CR 8 1 , 136-48.) In early

2007, Kenridge Farm applied for and was granted a rehearing of

the ZBA’s decision. (CR 8 2 , 85-118.) By this time, ITW had

agreed to reduce the height of the proposed tower from 180 feet

to 160 feet. (CR 85.)     On April 2 6 , 2007, the ZBA began the

rehearing process with a public hearing and scheduled a balloon

test to gauge the likely visual impact of the proposed 160 foot

tower.   (CR 156-163.)   At this meeting, the ZBA also selected

Mark Hutchins, an independent radiofrequency engineer, to be a

consultant to the ZBA.    

   As the rehearing process continued,

public hearings were held again on May 3 1 , June 2 9 , July 2 4 , and

August 2 3 , 2007.   (CR 165-69, 170-74, 177-89, 190-216.)    At the

August 2 3 , 2007 hearing, a representative of ITW advised the ZBA

that the applicant had agreed to both relocate the tower from its

original proposed location to a new location on the Parcel and

lower the tower height to 140 feet. (CR 198.)       Over the course

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of these public hearings, the ZBA received evidence both in

support of and in opposition to ITW’s application.

     On September 2 7 , 2007, the ZBA met to deliberate and voted

to deny ITW’s variance application.   (CR 203-16.) The minutes of

the September 2 7 , 2007 ZBA meeting reflect the ZBA’s agreement to

separately review each of the variance requirements and vote on

each requirement at the end of the discussion for that

requirement. (CR 204.)    As each variance requirement was raised,

members were given an opportunity to discuss the evidence and

arguments supporting and opposing a finding that ITW had met the

requirement. At the conclusion of the discussion with respect to

each requirement, the ZBA cast votes as to whether the

requirement had been met. When all of the requirements had been

voted o n , the ZBA unanimously voted to deny the variance because:

(1) the residential use restriction did not interfere with the

applicant’s reasonable use of the property; and (2) the proposed

use would be contrary to the spirit and intent of the zoning

ordinance. (CR 216.)

     On October 3 , 2007, the ZBA issued a written notice of its

decision, which stated:

     The East Kingston Zoning Board of Adjustment met on
     Thursday, September 27th, 2007 at the East Kingston
     Town Hall, 7 Main Street, and rendered the following
     decision: INDUSTRIAL TOWER AND WIRELESS, LLC AND Co-applicant Cingular Wireless 40 Lone Street Marshfield,

                                -5-
       MA 02050 (MBL #16-04-01) ZBA 07-01. The applicant
       filed an application seeking variance from Article XV,
       Section D.2. -- USE DISTRICTS for construction of a
       160' monopole and equipment in a residential zone. By
       vote of at least three members, and based on the
       applicant failing to meet all the criteria, the Board
       voted to DENY the variance from Article XV, Section
       D.2. -- USE DISTRICTS for construction of a 160'
       monopole and equipment area in a residential zone.

(CR 83.)

       On October 2 5 , 2007, ITW, accompanied by co-applicant

Cingular Wireless and Parcel owners Jeffrey and Susan Marston,

moved for a rehearing.    (CR 119-25.) The request for rehearing

asserted that the ZBA ruling was unlawful because the ZBA erred

in finding that ITW had failed to satisfy the first element of

the hardship test, and in finding that the variance would not be

consistent with the spirit of the ordinance. 

      The rehearing

motion did not argue that the ZBA had failed to comply with the

TCA’s written decision requirement. On November 1 3 , 2007, the

ZBA voted to deny ITW’s request for a rehearing, (CR 219-21), and

later issued a written notice memorializing its decision.        (CR

84.)



                       II.   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

                                  -6-
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).   A party seeking summary judgment must first identify the

absence of any genuine issues of material fact. Celotex Corp. v .

Catrett, 

 1 7 , 323 (1986).   The evidence submitted in

support of the motion for summary judgment must be considered in

the light most favorable to the nonmoving party, indulging all

reasonable inferences in its favor. See Navarro v . Pfizer Corp.,

 0 , 93-94 (1st Cir. 2001).   The burden then shifts to

the nonmoving party to “produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for i t ; if that party cannot product such evidence, the

motion must be granted.”    Ayala-Gerena v . Bristol Myers-Squibb

Co., 

 6 , 94 (1st Cir. 1996); see Celotex, 

.   On cross motions for summary judgment, the standard or

review is applied to each motion separately.      See Am. Home Assur.

C o . v . AGM Marine Contractors, Inc., 

 1 0 , 812 (1st Cir.

2006).



                           III.   ANALYSIS

       ITW argues that the ZBA’s denial of ITW’s variance

application violated the TCA in that the denial was not set forth

in a written decision containing a clear explanation of the basis

                                  -7-
for its denial. (Pl.’s Mot. for Summ. J., Doc. N o . 9 ) .   It also

argues that it is entitled to an injunction directing the ZBA to

immediately issue all permits and approvals needed so that

construction of the proposed wireless facilities can begin

without delay.   

     East Kingston and Kenridge Farm respond by contending that

the ZBA satisfied the written decision requirement by adequately

explaining its decision in the minutes that were prepared for its

September 2 7 , 2007 meeting.   Alternatively, defendants argue that

even if the ZBA violated the written decision requirement, the

proper remedy is an order remanding the case to the ZBA rather

than an injunction requiring the ZBA to approve the project.2

A.   The Written Decision Requirement

     The TCA requires that any decision by a local board denying

a request to construct a cell tower be “in writing”. See §

     2
        Defendants also argue that ITW’s written decision claim
is not ripe for review because ITW did not present its claim to
the ZBA in a motion for reconsideration. This argument is based
on the interaction of the TCA, which authorizes ITW to bring its
claim only after a “final action or failure to act” by the ZBA,

(c)(7)(B)(v), and New Hampshire law, which
provides that any challenge to a ZBA ruling that is not presented
in a motion to reconsider is waived, 

. Relying on these provisions, defendants argue that the
ZBA’s decision is not “final” with respect to ITW’s written
decision claim because ITW did not present the claim in its
motion to reconsider. I decline to address defendants’ ripeness
argument because I determine that a remand to the ZBA is
warranted for other reasons.

                                  -8-
332(c)(7)(b)(iii).   In Southwestern Bell Mobile Sys. v . Todd, 

 (1st Cir. 2001), the First Circuit examined the TCA’s

written decision requirement to determine what standard local

authorities must meet. Although the First Circuit determined

that local boards are not required to include formal findings of

fact or conclusions of law in a written decision, they cannot

issue rulings that give no reasons for a decision “even where the

written record may offer some guidance as to the board’s

rationale.”   Todd, 244 F.3d at 6 0 . Accordingly, the court held

that the written denial must “contain a sufficient explanation of

the reasons for the permit denial to allow a reviewing court to

evaluate the evidence in the record supporting those reasons.”

Id.

      In addition, the First Circuit held in Todd that “the TCA

requires local boards to issue a written denial separate from the

written record.”   Id.   The First Circuit opted for this bright

line rule for both policy reasons and because the rule is

required by the statutory language on which the written decision

requirement is based.    The court noted that “[a] written record

can create difficulties in determining the rationale behind a

board’s decision, particularly when that record reflects

arguments put forth by individual members rather than a statement

of the reasons that commanded the support of a majority of the

                                -9-
board.”    Id.   Further, the First Circuit stated that “[e]ven

where the record reflects unmistakably the Board’s reasons for

denying a permit, allowing the written record to serve as the

writing would contradict the language of the [TCA],” which

distinguishes between a written denial and a written record.      Id.

    In the present case, the ZBA’s October 3 , 2007 written

Notice of Decision merely states that the ZBA denied ITW’s

variance application and does not contain any explanation of the

basis for the ZBA’s decision. (CR 83.)     Although the decision is

in writing and separate from the written record, it does not

permit meaningful judicial review because it does not provide the

reasons for the ZBA’s denial. By itself then, the October 3

Notice of Decision is clearly not sufficient to meet the TCA’s

written decision requirement.

    Nor can the minutes of the ZBA’s September 27 meeting serve

as a substitute for a separate written decision as is required by

the TCA.   While the ZBA reviewed each of the variance

requirements separately at the meeting, the minutes reflect the

varying arguments put forth by each individual member in

supporting or opposing ITW’s application rather than a clear

rationale adopted by a majority of the board to support its

ultimate decision on each requirement. For purposes of

fulfilling the TCA’s written decision requirement, it is not

                                 -10-
sufficient to record the varying opinions of individual board

members because such an approach leaves aggrieved parties and

reviewing courts to speculate on the reasons that persuaded the

board’s decision. See Todd, 244 F.3d at 6 0 ; Nat’l Tower, LLC v .

Plainville Zoning Bd. of Appeals, 

 4 , 21-22 (1st Cir.

2001).   Furthermore, as noted above, the requirement that a

written decision be separate from the written record is based on

the language of the relevant statute. It is not a mere

formality.   See Todd, 244 F.3d at 59-60.   Accordingly, the

minutes cannot serve as a substitute for a separate written

decision. See id.   For these reasons, I conclude that the ZBA’s

denial of ITW’s application violates the TCA’s written decision
requirement.3




     3
       Because I find that the ZBA’s denial of ITW’s application
violated the TCA’s written decision requirement, I deny East
Kingston and Kenridge Farm’s cross motions for summary judgment
and do not reach the substantial evidence issue raised in these
motions. See Todd, 244 F.3d at 59 (“Before examining the
evidentiary support for the Board’s decision, we must first
determine whether the scope of our review is limited by the first
requirement in section 332(c)(7)(B)(iii) that denials of permits
be in writing.”); ATC Realty, LLC v . Town of Sutton, 

, at *5 (D.N.H. Mar. 7 , 2002) (“satisfaction of these two
requirements should be considered sequentially”).

                               -11-
B.   Remedy

     ITW’s request for an injunction directing East Kingston to

immediately issue all permits and approvals needed for

construction of the proposed tower is an inappropriate remedy.

ITW has cited no authority that mandates the issuance of an

injunction granting the requested variance when a local land use

board fails to comply with the written decision requirement.4

Moreover, granting ITW the relief it seeks even though it did not

raise its written decision claim in its motion for rehearing

would grant ITW a windfall of sorts and create perverse

incentives for future applicants to avoid asking local boards to

issue written decisions where the requirement has not been met.

See Nat’l Tower, 297 F.3d at 24-25 (noting that in the majority

of cases the proper remedy for decisions that violate the TCA



     4
       ITW has cited to several district court and Sixth Circuit
cases to support its assertion that an injunction is the proper
remedy for a failure to provide a legally sufficient written
decision. However, the cases cited by ITW are all distinct from
the present case in that they grant injunctive relief after
finding that the local board’s decision met neither the TCA’s
written decision nor substantial evidence requirements. See
Tennessee ex rel. Wireless Income Props., LLC v . City of
Chattanooga, 

 (6th Cir. 2005); New Par v . City of
Saginaw, 

 (6th Cir. 2002); T-Mobile Cent., LLC v .
City of Grand Rapids, 

 (W.D. Mich. May 2 , 2007).

                              -12-
will be an order instructing authorization to construct the

proposed wireless facility, but there are circumstances in which

the TCA has been violated and remand is the appropriate remedy).

     Remanding also serves the purpose of affording deference to

local authorities “over decisions regarding the placement,

construction, and modification of personal wireless service

facilities.”   

(c)(7)(A).      Finally, while a remand

might seem to undercut the TCA’s goal to have such matters be

decided expeditiously, some of the responsibility for the

prolonged application process rests with ITW, which contributed

to the protracted history of this case by neglecting to address

the written decision issue in its request for rehearing.         Had ITW

raised the written decision issue in its request for rehearing,

the ZBA would have been given the first opportunity to correct

its mistake as contemplated by New Hampshire law, see Dziama v .

City of Portsmouth, 

 4 2 , 5 4 4 , 

 1 7 , 218 (1995),

and the need for judicial review may have been obviated.

     For all of these reasons, I conclude that an injunction is

not a warranted remedy at this juncture. Instead, I remand the

case to the ZBA to issue a written decision that meets the

requirements of the TCA.

                                  -13-
                          IV. CONCLUSION

      For the foregoing reasons, I deny East Kingston and Kenridge

Farm’s cross motions for summary judgment (Doc. Nos. 14 and 1 7 ) .

ITW’s motion for summary judgment (Doc. N o . 9 ) is granted in part

and denied in part. I remand the case to the ZBA and instruct it

to issue a written decision in accordance with the requirements

of the TCA within 30 days.     If the ZBA fails to issue a

sufficient written decision within 30 days, this court will grant

an injunction directing the Town to authorize the construction of

ITW’s proposed wireless facilities. The clerk is directed to

enter judgment accordingly.

      SO ORDERED.


                                        /s/Paul Barbadoro
                                        Paul Barbadoro
                                        United States District Judge

March 2 5 , 2009

cc:   Steven E . Grill, Esq.
      Russell Hilliard, Esq.
      Jeffrey Spear, Esq.




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