Agenda - Planning Commission - 09/06/2018

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Zoning Bulletin August 10, 2018 I Volume 12 I Issue 15 For example, explained the court, "[t]o demonstrate an effective -prohibition claim based on the denial of a particular proposal, the proponent of the tower has the burden to show 'that further reasonable efforts are so likely to be fruitless that it is a waste of time to even try.' " Moreover, "[w]hile an individual denial by a zoning board might amount to an effective prohibition, the information nec- essary to make that determination is broader than the particular site for which approval is sought ... presumably including] information about the town's regulatory scheme, the feasibility of other possible locations, and so on." In comparison, to demonstrate a "substantial evidence" claim, "a plaintiff need only establish that the particular decision by the zoning board in a given case was not in writing or not supported by substantial evidence." Those different standards of review, said the court, "appear to reflect a judgment that deference is due to the zoning board's specific decision about the appropriateness of a par- ticular project, whereas the question of whether wireless service has been ef- fectively prohibited is a question on which a lay zoning board has no particular expertise." Thus, the court concluded that a zoning board "need not expressly consider the requirements of the TCA." Rather, "[t]he relevant standard the [b]oard must use to determine a variance is that set forth by state and local law." Accordingly, the court concluded that its substantial -evidence review here was limited to the ZBA's decision under the Massachusetts Zoning Act's standards for obtaining a zoning variance. Under that review, the court concluded that the ZBA failed to support its zon- ing variance denials with substantial evidence, as required by the TCA. The court noted that "it is not sufficient under the TCA for a board to simply recite the applicable legal standard." Here, the court found that was all that the ZBA had done in issuing its decision denying American Tower's variances. The ZBA, found the court, failed to address Massachusetts Zoning Act variance standards — such as the hardship of land topography (which might require a tall tower). In fact, the court found that the ZBA failed to address any claimed hardship at all. The court concluded that the ZBA's "bare -bones decision" was not "sufficient explanation of the reasons for the denial 'to allow a reviewing court to evaluate the evidence supporting those reasons.' " In short, the court concluded that the reasons given by the ZBA for variance denials were "plainly inadequate." Having concluded that the ZBA violated the TCA's substantial -evidence requirement, the court next addressed the remedy due American Towers. Ameri- can Towers had argued that the ZBA's violation of the TCA's substantial - evidence requirement warranted an injunction, ordering the Town to issue the variances. While the court acknowledged that an injunction might be warranted for such a violation under "some circumstances" —such as when a "board is hostile to an applicant and using an . . . unsupported decision as cover for unreasonably obstructing a proposal" —here, the court concluded that it was not yet prepared to address a remedy for the substantial -evidence violation. The court said it would not address a remedy until American Tower's effective - prohibition claim under Count 1 of the complaint was resolved (which could be dispositive). See also: Nextel Communications of Mid -Atlantic, Inc. v. Town of Wayland Mass., 231 F. Supp. 2d 396 (D. Mass. 2002). See also: Second Generation Properties, L.P. v. Town of Pelham, 313 E3d 620 (1st Cir: 2002). See also: T-Mobile Central, LLC v. Unified Government of Wyandotte County, Kansas City, Kan., 546 E3d 1299 (loth Cir. 2008). © 2018 Thomson Reuters 11