Verizon Asks Court to Compel Town’s Written Record in Its Denial of Tower Application
Verizon seeks an order compelling the town of Southwick, Massachusetts, to produce a certified copy of the written record of the proceedings before its planning board that contributed to the board’s denial of Verizon’s application for a wireless communications facility in the municipality, said its motion Thursday (docket 3:21-cv-10414) in U.S. District Court for Massachusetts in Springfield.
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Verizon said it needs the written record to include in a summary judgment filing against Southwick, and in Thursday’s motion, it asked the court to extend its summary judgment deadline by 30 days to June 19. Southwick agreed to the 30-day deadline extension request but opposes Verizon moving to compel production of the written record, said the motion.
Verizon filed suit against Southwick in March 2021, alleging the planning board’s denial violated Section 332 of the Telecommunications Act. The statute requires any state or local government decision to deny applications to deploy personal wireless services facilities to be based on substantial evidence in a written record, said Verizon’s motion. Southwick failed during discovery to produce a certified copy of the written record that was before the planning board when it denied Verizon’s special permit that’s at issue in the litigation, it said.
When Verizon’s attorneys, on Southwick’s instructions, filed a public records request with the town clerk for a copy of the certified record, the materials they received in response on Feb. 21 were missing key components, said the motion. The responsive documents were missing a “significant amount of materials submitted by Verizon during the public hearing process to support its application,” it said. Also missing were the public hearing meeting minutes, “and there was no certification of the record” by the town planner, it said.
It wasn’t until Thursday that Southwick’s counsel told Verizon attorneys “that he would now provide what he believes constitutes the public record” no later than close of business on May 15, four days before Verizon’s summary judgment filing deadline, said the motion. It was Southwick’s “responsibility and obligation” to keep a complete and accurate record of the subject proceedings before the planning board, but it failed to do so, it said.
Verizon has been “substantially prejudiced” as the result of Southwick’s “disorganization and improper record keeping,” and is unable to prepare and submit its summary judgment filing by the May 19 deadline, said the motion. Verizon is moving for summary judgment “on the grounds that there was no substantial evidence in the written record” to support the planning board’s denial of its application for a special permit, it said. Yet the town can’t, or won’t, “produce its own written record,” it said.