The Zoning Board denied Green Mountain’s application for a special use permit to construct a 140 foot wireless communications tower in an area of the Town after the Board determined that service in the area was adequate, based on Green Mountain’s admission that less than 1% of calls were dropped. The Board further based its decision on photographs and petitions from residents showing the cell tower would be “widely visible” from the Blue Hills Reservation, and therefore would negatively impact conservation efforts and aesthetic values of the area. Finally, the Board found that Green Mountain had not proven that no feasible alternative location existed, as their evidence regarding alternative sites offered little support for their conclusion that such locations were unsuitable especially in light of contradictory evidence of four other specific locations that appeared to be possible alternatives. The Town’s Conservation Commission found that GM had failed to show that their project would not frustrate the purposes of the bylaws designed to preserve and protect this area of Milton.
The federal district court in Massachusetts ruled in favor of the Town, holding that the evidence substantially supported the underlying the decisions of the Board of Appeals and the Conservation Commission as required by the Telecommunications Act of 1996 (“TCA) § 332(c)(7)(B)(iii). The court noted that statistics showing that less than 1% of calls were dropped supported the Board’s conclusion that the area had adequate service. The court relied on precedent which said a negative aesthetic impact, supported by evidence and grounded in the specifics of the case can serve as a basis for denying a permit, and here, the photographs and petitions supported the proposition that the cell tower would negatively impact the area. The court found Green Mountain’s evidence on the unsuitability of alternative sites to be merely conclusory, such that Green Mountain did not meet its burden of proving that no alternative site existed. The court also ruled in favor of the Town on the claim the Board’s decision effectively prohibited Green Mountain from providing wireless coverage in the area. Even assuming that Green Mountain could prove that the gap in coverage was “significant,” they could not show that the Town’s bylaws were impossible for any applicant to meet, nor could they show that this application is the only feasible way to remedy the gap to meet their burden under TCA § 332(c)(7)(B)(iii). The court further held that the evidence substantially supported the Conservation Commission’s decision, because Green Mountain failed to meet their burden of proving (1) that the project would have no significant impact on the preservation/protection goals of the Commission and (2) that there was no practicable and economically equivalent alternative with a lesser impact on the area.
Green Mountain Realty Corp. v. Leonard et. al, 2011 WL 1898239 (D. Mass. 5/18/2011)
The opinion can be accessed here
