Posted by: Patricia Salkin | January 5, 2011

Federal District Court Finds Town Failed to Comply with TCA by Failing to Issue Decision in Writing and Failing to Support its Decision Based on Substantial Evidence

Plaintiff’s sought permission to install three wireless telecommunications panel antennas onto an already existing tower.  In a previous action, the court ordered the ZBA to grant plaintiff a special exception for the cell tower because the ZBA failed to support its denial with substantial evidence as is required by the Telecommunications Act.  But now the plaintiffs are seeking a decision from the court that overturns the ZBA’s denial of the application to make changes to the tower. Plaintiff’s moved for summary judgment. 

The federal district court determined that the town failed to carry its burden as is required when responding to factual and legal arguments asserted by plaintiff.  The record was therefore undisputed.  The ZBA also failed to produce a writing stating the reasons for denying plaintiff’s application to modify the tower, which is required by the Telecommunications Act.  The court reasoned that on this basis alone, summary judgment could be granted.  Instead, the court granted summary judgment in favor of the plaintiff because the town failed to support its decision to deny the changes based on substantial evidence.  More specifically, the town led plaintiffs to believe that feasible alternatives were not an issue in this case but later raised this issue as a basis for denying the application.  Further, the town asserted that plaintiffs had purposefully delayed the proceedings but there was no evidence to support this in the record. The Court determined that town violated the Telecommunications Act when it failed to document substantial evidence in support of its decision to deny the application for a special exception. Therefore, the court ordered the town to issue all approvals and permits necessary for the three panel antennas to be installed. 

SBA Towers II, LLC v. Town of Atkinson, Civ. No. 09-cv-447-LM, 2010 WL 5185140 (D.N.H. 12/15/2010)

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