Southwestern Bell Mobile Systems, Inc. v. Todd

No. 00-1164 (244 F.3d 51) (1st Cir. March 30, 2001)

ELR Digest

The court affirms a local zoning board's denial of a telecommunications company's application for a special permit to construct a 150-foot lattice telecommunications tower. A local zoning bylaw sets forth the regulations applicable to proposed wireless telecommunications facilities. The company submitted a special permit application as required by the bylaw, but after holding hearings, the board concluded that the tower would not satisfy the bylaw's requirements of minimum visual impact. The company appealed, claiming that the board's denial was not supported by substantial evidence contained in a written record as required by the Telecommunications Act (TCA).

The court first holds that the TCA requirement that the board's decision be in writing does not require written findings of fact and conclusions of law. Under the TCA, the board's written denial must be separate from the written record and contain a sufficient explanation of the reasons for denial. Further, the review is not limited to the facts specifically offered in the written denial. Here, the board voted to deny the permit and issued a short written decision with little explanation and few facts, but it did state its reasons for denial with sufficient clarity to permit review. The court next holds that the TCA does not prevent the board from exercising their traditional prerogative to control development based on aesthetic considerations, so long as those considerations do not mask a de facto prohibition of wireless service. The board need not justify its judgment by reference to an economic or other quantifiable impact. Here, the evidence in the record supports the board's decision because the tower was of a different magnitude and out of keeping with the residential uses surrounding it. In addition, the court holds that the board did not have to provide substantial evidence showing the availability of alternative sites for the tower. The TCA does not impose such a burden, and the bylaw requires the company, not the board, to evaluate the feasibility of other sites.

The full text of this decision is available from ELR (12 pp., ELR Order No. L-359).

Counsel for Plaintiff
F. Alex Parra
D'Agostine, Levine, Parra & Netburn
268 Main St., Acton MA 01720
(978) 263-7777

Counsel for Defendants
Joseph C. Cove
Law Offices of Joseph C. Cove
One N. Main St., Uxbridge MA 01569
(508) 278-6711

[31 ELR 20578]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]