Agenda - Planning Commission - 09/06/2018

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August 10, 2018 I Volume 12 I Issue 15 Zoning Bulletin of personal wireless services." (47 U.S.C.A. § 332(c)(7)(B)(i) and (iii).) Also, when a local zoning authority denies an application to construct a wireless facil- ity, the TCA requires the local authority's decision be (1) "in writing" and (2) "supported by substantial evidence contained in a written record." (47 U.S.C.A. § 332(c)(7)(B)(iii).) Here, under Count 1 of its complaint, American Towers alleged that the Town had effectively prohibited cell -phone service in violation of the TCA. Under Count 2, American Towers alleged that the ZBA's opinion was not based on substantial evidence contained in a written record, in violation of the TCA. American Towers asked the court to find there were no material issues of fact and to issue summary judgment in their favor on Count 2. American Towers sought this summary judgment on the theory that if the ZBA's denial of the vari- ances was found not to be supported by substantial evidence —in violation of the TCA—American Towers would be entitled to an injunction requiring the Town to approve the variances (and Count 1 would then be moot). American Towers argued that the ZBA did not comply with the TCA's requirement that its decision be "supported by substantial evidence contained in a written record." Specifi- cally, American Towers contended that the "hardship" warranting their requested variance was a significant gap in wireless service coverage. They further contended that the TCA required local zoning boards to treat such a gap in cover- age as an additional category of hardship under the Massachusetts variance standard. (Under the Massachusetts Zoning Act, zoning variances are permitted for hardships related to soil conditions, shape, or topography of the land. (Mass. Gen. Laws Ch. 40A, § 10.)) Thus, they contended that the ZBA had a duty to consider, under the TCA's substantial -evidence requirement, whether a variance denial effectively prohibited wireless service. They argued that: "(1) they dem- onstrated, without contradiction, a significant gap in coverage —indeed, the Board so found; (2) the Board's refusal to permit the closing of such a gap con- stitutes an `effective prohibition of wireless service' within the meaning of the TCA; and (3) the Board did not give any reason as to why its refusal to permit the variance did not constitute `effective prohibition'; [and] therefore (4) the Board's decision [was] not supported by substantial evidence contained in a written record." In a cross -motion, the Town asked the court to issue summary judgment on Count 2 in its favor. DECISION: American Tower's motion for partial summary judgment on Count 2 and the affirmative defenses granted in part as to liability for Count 2, and denied in part without prejudice as to the affirmative defenses and the remedy for Count 2. Town's cross -motion for partial summary judg- ment on Count 2 denied. The United States District Court, D. Massachusetts, held that the ZBA's deci- sion did violate the substantial -evidence standard of the TCA. In so holding, the court rejected American Tower's argument that a zoning board must expressly consider the requirements of the TCA—including cover- age gap or whether a denial is an effective prohibition of wireless services. The court found the TCA did require a variance if a town's denial would be an effec- tive prohibition of wireless services. And, the court found that the TCA requires zoning decisions be supported by substantial evidence. However, in reviewing the statutory language, First Circuit (Court of Appeals) guidance, and explicit holdings in other circuits, the court found those two requirements were separate. 10 © 2018 Thomson Reuters