Verizon Seeks Summary Judgment vs. Mass. Town for Violating TCA on Tower Denial
Verizon is moving for summary judgment against Southwick, Massachusetts, and six members of its planning board on count I of the carrier's March 2021 complaint, said its motion Friday (docket 3:21-cv-10414) in U.S. District Court for Massachusetts in Springfield. Verizon alleged the town’s denial of its application for a special permit and site plan approval for a wireless communications facility violated the Telecommunications Act.
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Verizon asserts the town’s denial was unlawful under the TCA because the decision wasn’t supported by “substantial evidence in the written record,” said its memorandum of law in support of its motion. Section 332 of the TCA also “precludes state and local governments from taking action that prohibits or has the effect of prohibiting the provision of personal wireless services,” and that’s the basis of count II of the complaint, it said. Verizon telegraphed its intentions to pursue a summary judgment filing against Southwick when it asked the court last month for an order compelling the town to produce a certified copy of the written record of the planning board proceedings that contributed to the denial (see 2305120023).
It’s “undisputed” that the board didn’t support its denial of Verizon’s application with “substantial evidence in the written record as required by the TCA,” said the memorandum. Verizon “is therefore entitled to summary judgment in its favor” on count I of its complaint, it said. That it took “multiple requests” by Verizon counsel before the board was able to produce an accurate and complete copy of the record “calls into question” whether the board “even considered the complete record” before denying the application. If Verizon prevails on count I and the court orders the board to approve the application, count II of the complaint “becomes moot,” it said.
When evaluating whether a local board’s decision is supported by substantial evidence, the court “is confined to the administrative record before the board,” and that record “must be reviewed as a whole,” said the memorandum. “Evidence outside of what was presented during the application process must be excluded,” it said.
The board’s stated reasons for denying the application either aren’t supported by evidence “a reasonable mind might accept as adequate to support its conclusions,” or they have no basis in Southwick’s zoning bylaw, said the memorandum. The board’s “professed reasons” for the denial can be “generally categorized” as pertaining to visual impacts, decrease in property values, health and safety concerns and impact on open space, it said. The record doesn’t contain substantial evidence to support the denial of the application on any of those grounds, it said.
On the property values question, for example, it wasn’t reasonable for the board to rely on the opinions of homeowners that Verizon’s proposed facility would diminish their property values, said the memorandum. Massachusetts case law shows property owners “may give accurate testimony,” but only on the current value of their homes, it said. A “lay witness, such as homeowner, doesn’t possess the 'requisite knowledge and expertise' to project the economic impact of a proposed development on the value of a home,” it said. It also wasn’t reasonable for the board to rely on letters from real estate brokers, it said.