139 F. Supp. 3d 479
D. Me.2015Background
- Verizon sought a permit to mount three shrouded antennas and a 12×26 equipment shelter on an 80-foot Portland Water District (PWD) water tower in Cape Elizabeth that already hosts a SCADA communications antenna (installed in the 1980s).
- PWD stopped using the tank for water storage in 2007 but continues to use the SCADA antenna to operate sewer pump stations and the treatment plant; there is no record that the SCADA antenna underwent municipal zoning or regulatory permitting.
- The Town’s Code Enforcement Officer (CEO) denied Verizon’s permit (March 19, 2014), finding the use not permitted in the RA zoning district and rejecting Spectrum Act preemption; the Zoning Board of Appeals (ZBA) affirmed the denial on appeal.
- Verizon sued, arguing (1) the Spectrum Act (47 U.S.C. § 1455) preempts the Town’s denial because the tank is a qualifying “base station” and Verizon’s proposal is an “eligible facilities request,” and (2) alternatively, the Town misapplied its zoning ordinance and the proposal is a permitted accessory use.
- The court reviewed the administrative record on cross-motions for summary judgment and considered whether (a) the Spectrum Act preempts the Town’s decision and (b) the Proposal is permitted under the Cape Elizabeth Zoning Ordinance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Spectrum Act (§1455) preempts Town denial by treating the water tower as a qualifying “base station” for an eligible facilities request | Verizon: Town’s 2000 zoning amendments, which list water towers as authorized “alternative tower structures,” constitute affirmative municipal approval of the tower for wireless equipment, satisfying FCC regulation’s “review and approval” requirement | Town: PWD never sought or received any municipal/state permit for the SCADA antenna; the FCC regulation requires prior review/approval of the equipment itself, so the tower is not an existing base station | Held: Spectrum Act does not apply — the Town did not previously review/approve the SCADA equipment; municipal ordinance amendment recognizing water towers as a structure type is not equivalent to review/approval of the equipment. |
| Whether the water tower qualifies as an “alternative tower structure” under the Town ordinance | Verizon: term should be read to refer to categories of structures (e.g., water towers) that are designed primarily for non‑antenna purposes, so the Avon Road tower qualifies despite current antenna use | Town: definition requires the specific structure be used primarily for non‑antenna purposes; because the tank currently supports the SCADA antenna, it is not an alternative tower structure | Held: The court adopts the categorical/design-focused reading — the tank is an “alternative tower structure.” |
| Whether Verizon’s proposal is an accessory use and whether the equipment shelter is an accessory building | Verizon: The parcel’s principal use is PWD’s essential utility/SCADA function, so Verizon’s antennas and equipment shelter are incidental/subordinate accessory uses/structures | Town: Since the tank no longer stores water, there is no principal use to support accessory status; Proposal could supplant principal use or lead to cumulative supplanting by other carriers | Held: The court finds the property’s principal use is essential utility services (SCADA), Verizon’s proposal qualifies as an accessory use, and the equipment shelter is an accessory building; approval should have been granted on these grounds. |
| Whether antenna concealment satisfies the ordinance (and whether Planning Board review is required) | Verizon: Proposed three‑sided fiberglass shrouds and painted cable tray will conceal antennas; concealment can be addressed in further review | Town: The application does not show complete concealment; the CEO properly raised concealment as a Planning Board issue | Held: The record lacks sufficient detail to resolve concealment; summary judgment denied on concealment issue only — further review/referral appropriate. |
Key Cases Cited
- Mills v. Town of Eliot, 955 A.2d 258 (Me. 2008) (appellate review in zoning matters: review the operative municipal decision and determine whether the board acted only in an appellate capacity)
- Adams v. Town of Brunswick, 987 A.2d 502 (Me. 2010) (interpretation of zoning ordinances is a question of law reviewed de novo)
- Davis v. SBA Towers II, LLC, 979 A.2d 86 (Me. 2009) (standard for judicial review of municipal administrative decisions: error of law, abuse of discretion, or findings unsupported by substantial evidence)
- Peregrine Developers, LLC v. Town of Orono, 854 A.2d 216 (Me. 2004) (zoning interpretation principles; plain meaning governs)
- Town of Shapleigh v. Shikles, 427 A.2d 460 (Me. 1981) (definition and factors for accessory use: customary association with primary use, size, neighborhood practice)