Industrial Tower and Wireless, LLC (ITW) applied for a special use permit seeking to build a telecommunications tower. In support, ITW included a site analysis with maps to demonstrate that the tower height limits and setback requirements complied with the applicable Foster ordinances. Following the denial of its permit, ITW filed this action alleging a violation of the Federal Telecommunications Act of 1996 (“TCA”), and sought injunctive and other relief. Before the court was ITW’s Motion for Summary Judgment.
At the onset, the court noted that the TCA protections extended beyond providers of personal wireless services to others involved with telecommunications technologies, such as landowners and tower developers. Thus, ITW had standing to bring a TCA claim, notwithstanding the fact it was a site acquisition company and not a cell phone service provider. Having found standing, the court next addressed whether the Board’s decision denying ITW’s application to build a cell tower was supported by substantial evidence. Here, in the Findings of Fact and Legal Conclusions section where the Board set forth its denial, the Board failed to identify any facts upon which it made its conclusions. Instead, to Board merely provided a conclusory statement that recited its ordinance and Comprehensive Plan and generally referenced the entire record. Moreover, one of the Board’s stated reasons for denial, that the application was inconsistent with the plan, was contradicted by the Master Plan Decision of the Foster Planning Board, which approved the application and determined that the tower plan was “consistent with the Comprehensive Community Plan and had satisfactorily addressed the issues where there were inconsistencies in accordance with” state law. Accordingly, the court ordered the Board to grant ITW’s special use permit on its application for the proposed telecommunications tower.
Industrial Tower and Wireless, LLC v Esposito, 2018 WL 526334 (D. RI 1/22/2018)
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