Agenda - Planning Commission - 09/06/2018

Home

Zoning Bulletin August 10, 2018 I Volume 12 I Issue 15 Telecommunications Act —After zoning board denies variance for telecommunications tower, variance applicant alleges board violated the federal Telecommunications Act Applicant contends board's decision failed to provide substantial evidence related to express consideration of the Act's requirements Citation: American Towers LLC v. Town of Shrewsbury, 2018 WL 3104105 (D. Mass. 2018) MASSACHUSETTS (06/22/18)—This case addressed the issue of whether a zoning board's decision in denying a variance for a telecommunications tower was supported by "substantial evidence," as required by the federal Telecom- munications Act. It also addressed the issue of whether the federal Telecom- munications Act requires municipal zoning boards, when denying a particular application, to expressly consider the requirements of the Telecommunications Act —including coverage gap or whether a denial is an effective prohibition of wireless services. The Background/Facts: American Towers LLC and T-Mobile Northeast LLC (collectively, "American Towers") entered into a lease agreement to lease a certain part of a property in the Town of Shrewsbury (the "Town"). American Towers planned to construct a wireless communications facility on the property, including a 149-foot multicarrier monopole -style tower. The property was lo- cated in a Rural A Zoning district which did not allow wireless communication towers or structures taller than 35 feet. Accordingly, American Towers applied to the Town's Zoning Board of Appeals ("ZBA") for a use variance and a dimensional variance. Eventually, the ZBA voted to deny the variances. The ZBA issued a three - page decision denying the application. The decision explained that the Board found that the proposed tower "would create a nuisance by virtue of noise, odor, smoke, vibration, traffic generated, unsightliness and other conditions detrimen- tal to the public good." The ZBA also found "no unique conditions of the lot's size, topography, orientation, and shape, where strict compliance with the requirements of the Zoning Bylaw would be an undue hardship upon [American Towers]." American Towers later brought a lawsuit against the Town and the ZBA. American Towers contended that the ZBA's denial of the variances violated the federal Telecommunications Act of 1996 ("TCA"). Among other things, the TCA provides that the state and local regulation of "the placement, construction, and modification of personal wireless service fa- cilities" shall not "unreasonably discriminate among providers of functionally equivalent services" or "prohibit or have the effect of prohibiting the provision © 2018 Thomson Reuters 9