Posted by: Patricia Salkin | January 17, 2012

Fed. Dist. Court in MA Upholds Denial of Permit for Wireless Antennae and also Rules that TCA Substantial Evidence Requirement Does Not Violate 10th Amendment

New Cingular Wireless ( “AT&T”) sued the City of Cambridge for two violations of the Federal Telecommunications Act of 1996 (“TCA”), claiming that the city prohibited the provision of personal wireless services and failed to support it’s decision with substantial evidence.  The City of Cambridge claimed that the substantial evidence requirement was a violation of the tenth amendment. 

The City denied AT&T’s application for a special permit to install 12 antennae on six “stealth Chimneys” on the roof of an apartment building to close a gap in coverage. These were fake chimneys, and were being placed on the roof with the goal of matching the already existing chimneys.   The apartment complex was not the only place considered for the antennae as AT&T considered other sites, all of which it determined where either infeasible or unresponsive. 

AT&T alleged that the denial was not based evidence in the record as board members based the denial on aesthetics.  The board claimed that the faux chimneys would have a negative impact on a “highly visible and architecturally significant building” in Cambridge.  The board claimed that the “stealth chimneys” were protruding, artificial, cheaply made, and did not blend in.  One member of the community opposed the application as a representative from the neighboring 41-unit condominium apartment complex.  

The District Court upheld the Board’s determination, finding that the board did base its decision on sufficient evidence in the record and that the board’s decision should be upheld. 

The District Court further held that that the substantial evidence rule did not violate the tenth amendment because there was no power taken away from the states, rather, the evidentiary rule was simply a procedural requirement that local zoning boards must abide by.  The rule still gave the power to the zoning commission to deny an application, but in order to do so they must document the reasoning as to why they choose to deny the application. 

 New Cingular Wireless v. City of Cambridge 2011 WL 6755835 (D. Mass. 12/22/2011).


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