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ITW v. Falmouth ZBA: Substantial Evidence Violation Based upon the "Wrong Legal Standard"

As previously posted, on May 18, 2015, P & A won summary judgment, under the Federal Telecommunications Act of 1996 (the "TCA" / "Act"), against the Town of Falmouth Zoning Board of Appeals in Industrial Tower and Wireless, LLC v. Haddad ("ITW v. Haddad"), 2015 WL 2365560, at *17 (D. Mass. 2015). The next two posts will look at two aspects of the District Court's decision that are particularly noteworthy.

The so-called "substantial evidence" clause of the TCA, codified at 47 U.S.C. § 332(c)(7)(B)(iii), requires that "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." ITW v. Haddad holds that this standard may be violated, not just where there is no evidence for a local zoning decision, but where the board invents and applies criteria that do not exist under state and local zoning law. Under such circumstances, the board has not acted with "substantial evidence". See ITW v. Haddad, supra, at *12 ("[b]ecause the ZBA's stated reasons for denying ITW's application were not based on the Bylaw criteria, the Court finds that the Board's decision was not supported by substantial evidence").

This threshold legal determination of whether the local board applied the right criteria, before determining whether there was adequate evidence to sustain the board's decision under those standards, is consistent with the basic purpose of § 332(c)(7)(B)(iii). Section 332(c)(7)(B)(iii) is intended to "provide[] protections from irrational or substanceless decisions by local authorities." Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001). See Town of Amherst, N. H. v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 16 (1st Cir. 1999) (substantial evidence requirement in TCA "ensur[es] that local law is . . . fairly administered"). Thus, "'[t]he TCA's substantial evidence test is a procedural safeguard which is centrally directed at whether the local zoning authority's decision is consistent with the applicable zoning requirements.'" ATC Realty, LLC v. Town of Kingston, NH, 303 F.3d 91, 94 (1st Cir. 2002), quoting Omnipoint Communications MB Operations v. Lincoln, 107 F. Supp.2d 108, 115 (D. Mass. 2000). See Todd, supra, at 58, quoting Town of Amherst N. H. v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 16 (1st Cir. 1999) ("'[s]ubstantial evidence' review under the TCA does not create a substantive federal limitation upon local land use regulatory power, but is instead 'centrally directed to those rulings that the Board is expected to make under state law and local ordinance in deciding on variances, special exceptions and the like'"); Town of Amherst, supra, at 14 ("requirement that individual decisions be based on 'substantial evidence' . . . refers to the need for substantial evidence under the criteria laid down by the zoning law itself (e.g., for setbacks, conditions for variances, special exception requirements)") (emphasis in original).

Based upon these principles, the following conclusion is inescapable: a local decision cannot be consistent with state and local law, if it does not, in the first instance, identify and apply the appropriate criteria under such laws. A handful of Federal courts before ITW v. Haddad had reached this conclusion. The first was the District Court for the Eastern District of Virginia in Virginia Metronet, Inc. v. Board of Sup'rs of James City County, Va., 984 F. Supp. 966 (E. D. Va. 1998). There, the court held that, "[i]n order [to] be supported by substantial evidence, the proffered reasons must comport with the objective criteria in existence (i.e. zoning regulations, permit application policies, etc.). Governing bodies cannot simply arbitrarily invent new criteria in order to reject an application." Id., at 974 n. 14. In subsequent years, two circuit courts of appeal latched onto and applied this principle. See T-Mobile Central, LLC v. Unified Government of Wyandotte County, Kansas City, Kan., 546 F.3d 1299, 1308 (10th Cir. 2008) ("[b]y inventing a criterion for which the applicable local ordinances did not provide, the Board failed to act on the basis of substantial evidence"); New Par v. City of Saginaw, 301 F.3d 390, 398 (6th Cir. 2002) (rejecting basis for denial because it "simply does not go to any of the criteria set out in the Zoning Code regarding when the Board can grant a zoning variance").

For land use practitioners, this reasoning will appear familiar, though the nomenclature is confusing. In this way, "substantial evidence" review under the TCA, in essence, imports within its scope what is referred to as the "arbitrary and capricious" or "legally tenable" standard in other municipal land use contexts. See, e.g., Fafard v. Conservation Comm'n. of Reading, 41 Mass. App. Ct. 565, 568 (1996) ("[i]f the commission has acted for reasons that are extraneous to the prescriptions of the regulatory scheme, but are related, rather, to an ad hoc agenda, then that commission has acted arbitrarily because the basis for action is not uniform, and, it follows, is not predictable"). See also Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003) ("[a]s for the first inquiry, an essentially legal analysis is required to decide whether the board's decision was based on 'a legally untenable ground,' or, stated in a less conclusory form, on a standard, criterion, or consideration not permitted by the applicable statutes or by-laws"). Thus, to comply with the substantial evidence clause of the TCA, a local board not only must have a sufficient factual record to deny relief, but must also base its denial decision on the applicable bylaw criteria.

With ITW v. Haddad, there are now two decisions in the District of Massachusetts that have relied upon this principle to conclude that a local zoning board violated § 332(c)(7)(B)(iii). Before ITW v. Haddad, there was the unpublished decision in T-Mobile Northeast, LLC v. City of Lowell, Mass, 2012 WL 6681890 (D. Mass. 2012). See id, at *9, quoting Wyandotte County, supra, at 1308 ("[b]y relying on 'a criterion for which the applicable local ordinance[ ] did not provide, the Board failed to act on the basis of substantial evidence'"). Unlike the decision in City of Lowell, supra, at *9-10, however, Judge Burroughs in ITW v. Haddad did not think it even necessary to consider whether there was substantial evidence to support denial on "the wrong legal standard", ITW v. Haddad, at * 11, (although her ruling on ITW's effective prohibition claim under the Act provides an idea of what she thought on that score as well). See id., at 13-16.

In addition, Judge Burroughs, like the Eleventh Circuit in Wyandotte County, supra, acknowledged that "many local boards 'wisely do consider the point'[ of whether a denial would constitute an effective prohibition of wireless service], because their decisions could be invalidated by the federal court if they violate the effective prohibition provisions of the TCA." Id., at 12, quoting Second Generation Properties, L.P. v. Town of Pelham, 313 F.3d 620, 630 (1st Cir. 2002). As Judge Burroughs opined, "[h]ere, however, the ZBA's analysis of the effective prohibition question was not a mere secondary consideration. Indeed, the ZBA's Decision reveals that the Board's no-voting members focused exclusively on the federal issue, such that they ignored the primary question before the ZBA, which was whether ITW had met the criteria for the issuance of a Special Permit under Section 240-216 of the local Bylaw." Id. Accord Wyandotte County, supra, at 1308, quoting Cellular Telephone Co. v. Zoning Bd. of Adj. of the Borough of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir. 1999) ("[a]lthough the TCA 'does not divest local officials of any authority they may have to consider the quality of existing services, neither does it create such authority. Efforts to assess existing quality . . . must be authorized by and performed within the parameters of governing state and local law'").

The take away on this score is that, while local boards may themselves wisely consider whether their decisions might be effective prohibitions of wireless service under the Act, absent specific bylaw provisions to the contrary, they have no independent right to impose a burden upon applicants to prove that denial decisions would be effective prohibitions under the TCA. Indeed, there is a meaningful difference between what a board is prohibited from doing under Federal law, and what an applicant must prove to be entitled to zoning relief under state and local law. Section 332(c)(7)(B)(iii) merely asks that local boards do what they are charged with doing under state and local law, fairly and with evidence. Failure to abide by this simple and just mandate will amount to a violation of Federal law.

Written Nicholas P. Shapiro, Esq. on behalf of Jeffrey T. Angley, P.C

Copyright (c) 2011-2015 by Jeffrey T. Angley, P.C. All rights reserved.

Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.

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