Agenda - Planning Commission - 10/09/2014

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September 10, 2014 I Volume 8 I Issue 17 Zoning Bulletin Telecommunications/ ' reemption— Wireless service provider appeals denial of permit Provider and city dispute whether federal or state law governs appeals period Citation: Bell Atlantic Mobile of Massachusetts Corp., Ltd. v. City of Cambridge, Mass., 2014 WL 2987010 (D. Mass. 2014) MASSACHUSETTS (07/02/14)-This case addressed the issue of whether the time period for appeal under the federal Telecommunications Act preempts the time for appeal under state law. The Background/Facts: To fill a gap in its cellular telephone service coverage, Bell Atlantic Mobile of Massachusetts ("Verizon") sought to site a personal wireless service ("PWS") in an existing building in Cambridge, Massachusetts (the "City"). In furtherance of that plan, Verizon filed an application for issuance of a special permit with the City's Board of Zoning Appeals ("BZA"). The BZA ultimately denied the application. On January 29, 2014, the BZA issued its written decision and filed it with the City Clerk. On February 26, 2014, Verizon filed a com- plaint in federal district court appealing the BZA's determination. Verizon filed that complaint without serving the City Clerk. The City and the ZBA sought dismissal of the complaint. They contended that Verizon failed to file the appeal within 20 days of the zon- ing decision and provide notice to the City Clerk of the action within those 20 days, as required by Mass. Gen. Laws ch. 40A, § 17. Verizon argued that the 30-day time for appeal allowed under the federal Telecom- munications Act ("TCA") preempted the time and notice provisions of Massachusetts statutory law. DECISION: Motion to dismiss denied. The United States District Court, District of Massachusetts, held that the 30-day time for appeal allowed under the federal Telecommunications Act ("TCA") preempted the time and notice provisions of Massachusetts statutory law. In so holding, the court explained that the TCA was enacted to increase competition in the telecommunications industry, and that, accordingly, courts have recognized that the TCA preempts local zoning regulations that conflict with the TCA's provisions. Here the court found that the TCA and Chapter 40A, § 17, were "in- consistent both in scope and intent." Section 17 covered the "entire gamut of adverse zoning decisions," while the TCA "carve[d] out specific excep- tions and expedited procedures for a narrow class of zoning decisions that 6 2014 Thomson Reuters