Agenda - Planning Commission - 08/29/2002

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126 Page 2 -- August 10, 2002 Communications Towers -- Wireless provider seeks several options to fill gap in coverage Permit denial challenged as a ciril rights ~iolation /vLASSACHUSETTS (6/17/02) Orrmipoint HoMings Inc. provided Wireless communication services to consumers ha the Wesfford, Mass., area. It became apparent there was a si~cant gap in coverage in the community, and a num- ber of possible remedies were explored. Drive testing and a detailed computer model lead Omnipoint to conclude the best place to construct the new tower would be on a 60,acre lot at 25 Keyes Road. This location was ha a "Residential A" area but was mostly undevel- .oped. The land adjacent to the lot was heavily wooded and designated as a conservation area. OmnipoLnt explored several other possibilities, including attaching anten- nas to town water tanks, wh/ch the Town Water Commission denied. The town planner was contacted also about town-owned land. On Jan. 16, 2000, Orrmipoii~t applied for a variance for the 'constrUction of a 150-foot "stealth tower" that would resemble a tree. The zoning board denied the request. Omnipoi.nt sued, claiming the denial of the vahance constituted "effective prohibition" of the wireless service in violation of the Telecommunications Act '(TCA) of 1996. Further, it was alleged the board's decision was not sup- ported by substantial evidence and the denial amounted to a civil rights viola- .don under 43 U.S.C. Sec. 198.3. ,' The town contended the TCA precluded recovery under Sec. 1983. Both OmnipoLnt and the town asked the court for judgmejat without a ~al. DECISION: Judgment g'ranted to Omnipoint. Omnipoint was entitled to judgment as to the. claim the board's decision amounted to "effective prohibition" under the TCA. A Sec. 1982 remedy was' also available. Both parties a~eed there was a significant gap in coverage. TCA Provided "any decision by a Stare or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shah be in writing and supported by substantial evidence." Omnipoint demonstrated, even kf it were able to finde a suitable sire, attempting to secure a variance from the board would have been a futile exercise. The court also noted the TCA did not implicitly or explicitly foreclose a Sec. 1983 civil fights claim. .': Citation: Omnipoint t-foldings I;~C. v. Town of Wesrford, U.S. District Court for the District of Massachusetts, No. OI-ll2'44-JLT (2002). see also: Nextet Comrnm~icario~s v. Town of RandoIf, 193 F Supp. 2d 311 (2002).