Posted by: Patricia Salkin | January 11, 2011

Federal District Court Agrees that City Violated Telecommunication Act Because Denial Lacked Substantial Evidence

T-Mobile alleged that the City unlawfully denied its application for special permits and variances to install a wireless communications facility on the roof of a condominium building in violation of the Telecommunications Act.  T-Mobile, after conducting research, determined that there was a gap in coverage and that the condominium building would be a sufficient location to remedy this gap in service.  The zoning ordinance, however, did not allow wireless facilities in residential zones unless they were located on a municipally owned building or structure.  T-Mobile asked that City to make municipally-owned properties available but the City did not do so. 

In accordance with the ordinance, T-Mobile filed an application for zoning relief to build the wireless communications facility.  After public hearings were held, the Zoning Board denied the application and stated that municipally-owned buildings should be used for the facility.  Despite these statements, T-Mobile contends that the City did not make municipally-owned buildings available through a public bidding process. 

T-Mobile alleged that the City failed to issue the denial in writing supported by substantial evidence and this error violates the Telecommunications Act.  The Court agreed with T-Mobile and determined that the Board’s denial merely stated that it “could not find sufficient facts…to grant the relief sought.”  The denial did not contain specific facts to support its findings and it failed to address any factors that related to the ordinance.  Summary judgment was granted in favor of T-Mobile on this count.  Since summary judgment was granted for the Board’s failure to meet the substantial evidence requirement of the Telecommunications Act, the Court did not address T-Mobile’s effective prohibition ban claim.

T-Mobile N.E. LLC v. City of Lawrence, 2010 WL 5174484 (D.Mass 12/13/2010)

The opinion can be accessed here

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