Beveridge & Diamond

Cellular Tower

Arguing the Relevant Provisions of the Telecommunications Act of 1996

Our clients, a tower developer and a licensed telecommunications carrier, sought to construct and maintain a 170-foot tall lattice transmission tower in a southeastern Massachusetts town.  The tower was needed to close a cellular telephone coverage gap along a busy highway.  The local permitting regime was not hospitable.  The proposed tower site was located in a zoning district that arguably precluded telecommunications towers and an environmental protection overlay district requiring a special permit.  Moreover, structures in excess of two stories in height were prohibited.  Notwithstanding these regulatory hurdles, we pursued the matter through the local board of appeals and federal court, and secured all necessary approvals.

When the local board of appeals denied requests for variances from the zoning bylaws and a special permit for work in the overlay zone, an appeal was filed in United States District Court. We worked with multiple experts to prepare detailed affidavits and technical maps in support of our summary judgment papers arguing the relevant provisions of the Telecommunications Act of 1996. The court entered judgment ordering the local board to issue dimensional and use variances and the special permit necessary for construction of the 170-foot tower. The court found that the tower developer and carrier had successfully met their heavy burden of demonstrating that no suitable alternative site existed to remedy this coverage gap. The thorough gathering of data and preparation of expert affidavits provided a firm foundation for the trial court to reverse the local board's decision.

Determined to protect its regulatory turf, the local board appealed to the United States Court of Appeals. This court not only affirmed the judgment of the trial court, but, in so doing, announced an additional test related to the judicial review of local decisions under the Telecommunications Act. Specifically, it ruled that no board may provide an applicant with one reason for a denial in its written decision and then, in court, seek to uphold this decision on a different ground. In written decisions, the local board had claimed that it lacked authority to grant the requested zoning relief. In court, it sought to argue that there were other alternative locations available for the telecommunications tower. However, since the tower developer and carrier had developed a substantial record on the absence of alternative sites and the board had failed to do so, the Court of Appeals held that the board could not rely on a decision that functioned as a moving target that the applicant must keep attempting to hit. In addition to the these favorable rulings, the Court of Appeals awarded costs against the local board.

This case study exemplifies the all-encompassing nature of our land use practice. Strategies are thoroughly and completely evaluated and implemented at the initial stages of the case, with the input of clients and assistance of experts. Objectives are pursued before the local boards supported by substantial evidence. In the event that a local board fails to grant the requested approval, we pursue these approvals with vigor in court.