Portland Cellular P'ship v. Inhabitants of the Town of Cape Elizabeth

139 F.Supp.3d 479

Portland Cellular Partnership, d/b/a Verizon Wireless, Plaintiff,

v. Inhabitants of the Town of Cape Elizabeth, Defendant,andPriscilla Armstrong, Pavel Darling, and Brad Kauffman, Intervenors.

2:14–cv–00274–JDL

United States District Court, D. Maine.

Signed September 30, 2015

Scott D. Anderson, Rachel M. Wertheimer, Verrill Dana LLP, Portland, ME, for Plaintiff.

John J. Wall, III, Monaghan Leahy, LLP, Portland, ME, for Defendant.

Daniel A. Nuzzi, Nathaniel A. Bessey, Brann & Isaacson, Lewiston, ME, for Intervenors.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

Jon D. Levy, U.S. District Judge

Portland Cellular Partnership, doing business as Verizon Wireless ("Verizon"), has brought suit challenging the denial by the Town of Cape Elizabeth ("Town") of a permit to construct a wireless telecommunications facility. See ECF No. 1 at 1. The parties have cross-motioned for summary judgment on the issue of whether the Spectrum Act, 47 U.S.C.A. § 1455 (2015),¹ preempts the Town's ability to deny Verizon's permit request. ECF No. 29; ECF No. 31; ECF No. 35. The parties have also filed cross-motions for summary judgment on the issue of whether the Town appropriately applied its zoning ordinance. ECF No. 39; ECF No. 42; ECF No. 43. After careful consideration, I conclude that the Town did not err in determining that the Spectrum Act does not apply to Verizon's permit request, but that the Town did err in applying its zoning ordinance and denying the permit.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns Verizon's proposal to build a wireless telecommunications facility ("Proposal") on an existing water tower located at Avon Road in Cape Elizabeth ("Water Tower"). See ECF No. 1 at 1. The 80 foot-tall Water Tower sits on a 22,500 square foot parcel of land owned by the Portland Water District ("District"). R. at 14–15, 19. The Water Tower has a small shed nearby and is surrounded by a chain link fence. R. at 19, 35. The District discontinued storing water in the Water Tower in 2007, but continues to use it to maintain and operate a communications antenna, which was installed sometime in the 1980s. R. at 86. The antenna is part of the District's "supervisory control and data acquisition system" ("SCADA system"), which is licensed by the Federal Communications Commission, and is used to communicate with 27 sewer pump stations and the Cape Elizabeth treatment plant. R. at 37, 86. The antenna rises approximately 18 feet above the top of the Water Tower.² R. at 20. There is no evidence in the record that the placement and maintenance of the SCADA antenna on the Water Tower has been subject to review or approval under any municipal or state zoning, siting, or regulatory review process. ECF No. 31 at 2.

Verizon proposes to install wireless telecommunications antennas on the Water Tower. See R. at 15. Its Proposal entails the installation of three sets of shrouded antennas, which would be mounted on the sides of the Water Tower near its top. R. at 10, 19, 20. The Proposal also includes a proposed 12 foot by 26 foot equipment shelter to be built near the base of the Water Tower to house equipment associated with the antennas, in addition to various underground utility conduits. R. at 10, 15, 19. The antennas will be connected to the equipment shelter by a cable enclosed in a cable tray. R. at 10, 19. Verizon also proposes to remove part of the existing chain link fence to make way for the equipment shelter, and to thus expand the area of the property that is fenced in. R. at 19.

On February 11, 2014, Verizon submitted a permit application for the Proposal to the Town's Code Enforcement Officer ("CEO"). R. at 9–39. CEO Benjamin McDougal issued a Letter of Denial on March 19, 2014. R. at 73–75. The CEO found that the Proposal was not a permitted use in the "RA Zoning District" under the Town's ordinance. R. at 74. He also rejected Verizon's argument that the Spectrum Act required the Town to issue a permit for the Proposal. Id. Verizon appealed to the Town's Zoning Board of Appeals ("ZBA"), R. at 1–8, which voted unanimously at its May 27, 2014, meeting to deny Verizon's appeal of the CEO's decision. R. at 129. On June 24, 2014, the ZBA denied Verizon's request for reconsideration of its decision. R. at 260.

Verizon filed its complaint on July 9, 2014, asserting that the Spectrum Act, Section 1455, requires the Town to approve the Proposal. ECF No. 1 at 8–9. Verizon also contends that even if the Spectrum Act does not apply, the Town erred in applying its zoning ordinance and should have approved the Proposal as a permitted use. Id. at 9–10. In February, I granted the motion to intervene brought by three abutters who joined the case in opposition to Verizon.³ ECF No. 34. These abutters ("Intervenors") join the Town's motion for summary judgment on both issues. ECF No. 35; ECF No. 43.

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 56

Summary judgment is appropriate only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) ; see Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir.2014). In making that determination, a court must view the evidence in the light most favorable to the non-moving party. Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir.2013). "[A] judge's function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Tolan v. Cotton, ––– U.S. ––––, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (citations and quotations omitted).

B. Local Rule 56

Local Rule 56 defines the evidence that this court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment. See Loc. R. 56. In this case, which involves the review of an administrative hearing record, Local Rule 56's requirement for a Statement of Undisputed Material Facts does not apply, and I have reviewed the case on the Administrative Record/Stipulated Documents submitted by Verizon and supplemented by the Town (ECF No. 23; ECF No. 25). See ECF No. 17 at 2.

III. DISCUSSION

A. The Spectrum Act

The Spectrum Act preempts State and municipal authority to block the placement of certain wireless equipment on existing structures which already house wireless transmission equipment:

Notwithstanding section 704 of the Telecommunications Act of 1996 (Public Law 104–104) or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.

47 U.S.C.A. § 1455(a)(1).

The Act defines an "eligible facilities request," in relevant part, as "any request for modification of an existing ... base station that involves ... collocation of new transmission equipment." 47 U.S.C.A. § 1455(a)(2)(A). Here, the parties dispute whether the Water Tower is an "eligible facility," and, if it is, whether Verizon's requested modification under the Proposal would substantially change the Water Tower in violation of Section 1455(a)(1), which provides that an eligible facilities request may be denied if it will "substantially change the physical dimensions" of the structure.

1. Whether the Water Tower Is a "Base Station"

Because there is no dispute that Verizon's Proposal involves collocation of new transmission equipment, the Proposal's qualification as an "eligible facilities request" turns on whether the Water Tower is a "base station" within the meaning of the Spectrum Act. While the Act itself does not define "base station," see 47 U.S.C.A. § 1455, the term is defined in the Federal Communications Commission's ("FCC's") implementing regulations as:

A structure or equipment at a fixed location that enables Commission-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in this subpart or any equipment associated with a tower.

47 C.F.R. § 1.40001(b)(1) (2015). The regulations provide additional criteria associated with the definition of a "base station" which are the focal point of this case:

The term includes any structure other than a tower that, at the time the relevant application is filed with the State or local government under this section, supports or houses equipment described in paragraphs (b)(1)(i) through (ii) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.

47 C.F.R. § 1.40001(b)(1)(iii) (emphasis added). There is no dispute that the SCADA equipment constitutes equipment as described in subsection (b)(1)(i) and, specifically, radio transceivers and antennas under subsection (b)(1)(ii). See 47 C.F.R. § 1.40001(b)(1)(i)-(ii) ; ECF No. 29 at 6; ECF No. 31 at 7.

Thus, framed in terms of the governing regulation, the decisive question here is whether the placement of wireless telecommunications equipment on the Water Tower has been "reviewed and approved under [an] applicable zoning or siting process." The parties offer opposing answers.

The Town and Intervenors contend that because the Portland Water District never applied for a permit under the Town's zoning ordinance, or under any other State or local regulatory review process, prior to installing the SCADA antenna, no review or approval ever occurred and the Water Tower cannot be a "base station." ECF No. 31 at 8–9. Thus, the Town asserts that the "mere existence of an antenna or other transmission equipment on a structure other than a tower will not render that structure an existing base station, available for collocation under the Spectrum Act, unless the transmission equipment was subject to affirmative...