This is an appeal by the Town of Amherst, New Hampshire; from an injunction granted by the district court. The injunction, granted on cross-motions for summary judgment, directed the town to grant permits to Omnipoint Communications Enterprises, Inc. (“Omnipoint”), to build facilities to provide wireless telephone services. The case presents difficult issues under the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. The background events are generally undisputed.
Omnipoint is a major provider of wireless telephone service to the public. In March 1997 or thereabouts, Omnipoint began designing a wireless digital system for southern New Hampshire. 1 In that same month, the Town of Amherst adopted at the town meeting an ordinance governing the placement of wireless communications facilities in the town. See Amherst, N.H., Ordinance (Mar. 11, 1997) (“the March 1997 ordinance”). The town meeting also authorized the town Board of Selectmen (“the Selectmen”) to make agreements with carriers to site towers on town properties. Under New Hampshire law, the town meeting legislates for the town and the Selectmen are the principal executive body. See N.H.Rev.Stat. Ann. § 672 et seq.
For zoning purposes, Amherst is divided into 13 districts. The March 1997 ordinance prohibits siting of the towers in four of the districts, although those prohibitions may be overcome if a variance is obtained. In four other districts, towers are allowed only through the grant of a “special exception”; the conditions for such a special
In April 1997, the Amherst Selectmen began negotiating with Omnipoint and also advertised to solicit interest from other carriers who might wish to locate a system in Amherst. Omnipoint then designed a system comprising four 190-foot towers— tall enough to allow co-location of antennas by up to four other providers who might compete with Omnipoint. Towers are very expensive, often costing $500,000 or so each; co-location increases tower height but reduces the number of towers and greatly reduces overall costs because fewer towers are needed and because a tower’s cost does not increase proportionately with height.
In late April 1997, the Federal Communications Commission granted Omnipoint a non-exclusive license to provide wireless digital telephone service in New England, including southern New Hampshire. Under the license, Omnipoint must make service available to 25 percent of the population in the region within five years and 50 percent within ten years. Omnipoint wants to provide service not only within the town of Amherst but also for transients who are using Route 101, an important travel route in southern New Hampshire that traverses Amherst, running roughly from northeast to southwest.
Omnipoint and the Selectmen reached agreement in August 1997 and signed leases for three town-owned sites along Route 101; on each, Omnipoint proposed to construct a 190-foot tower. It was also agreed that the town would receive a portion of revenue from Omnipoint and any other providers co-loeating on the towers constructed on town-owned land. The Selectmen wrote a letter endorsing the proposed towers to the Amherst Zoning Board of Adjustment (“the Board”), a separate local body that regulates zoning matters. See N.H.Rev.Stat. Ann. § 674:33. The leases made clear- that the responsibility to procure Board approval rested on Omnipoint’s shoulders.
Starting in the northeast, the first tower was to be sited near the northern entrance to the town on the so-called Bragdon Farm site owned by the town. Construction of this tower required a special exception under the Amherst ordinance and two variances from the setback restrictions from the Board; no use variance was required. This was also true of the second site on which a town-owned recycling center was located. Under state law, variances require a showing of hardship. See note 6, below.
The third tower site agreed to by the Selectmen — clearly the most controversial — was a town-owned “public safety” complex where a somewhat shorter tower already exists for wireless communication by the police and fire department. Omni-point proposed to construct a 190-foot tower that could also be used by the police and fire department. However, this area is denominated a historic district and siting towers in such a district is prohibited under the town’s March 1997 zoning ordinance absent a use variance. Thus, Omni-point required a use variance, a setback variance, and a separate permit from the Historic District Commission, another local body.
Omnipoint also reached agreement with a church to locate a fourth tower on church
In early September 1997, Omnipoint applied to the Board for the required special exceptions and variances on all four sites. It also applied to the Historic District Commission for approval to construct on the site located at the safety complex. On September 16, 1997, Omnipoint made a presentation before the Board, which received public comment and then deferred matters until October. The Board’s minutes summarize such oral presentations but no transcript exists. Two days later, the Historic District Commission met in public session and denied Omnipoint’s application, apparently in Omnipoint’s absence.
Omnipoint immediately appealed the Commission’s decision to the Zoning Board of Adjustment, which can override the Historic District Commission. On October 21, 1997, the Zoning Board met again. Omni-point provided additional information and answered more questions from the Board, and public comments were again taken. The hearing was continued until November 1997, when the same process was repeated. The Board then deferred decision until December 1997, saying that there would be no more presentations or public testimony. At all of these meetings, a number of residents questioned or opposed the project, citing primarily concerns about visual blight and impairment of property values.
On December 8, 1997, Omnipoint filed the present lawsuit against the town asserting that Amherst’s delay violated the Telecommunications Act of 1996. Under this statute, the FCC licenses carriers to provide wireless telephone service on a competitive basis. 47 U.S.C. § 332(c). Rate regulation by states is precluded, unless special circumstances are shown. See id. § 332(c)(3). However, the statute preserves state and local authority over the placement and construction of facilities, id. § 332(c)(7)(A), subject to five limitations, id. § 332(c)(7)(B).
The first limitation, contained in subsection (i) and central to this case, includes two substantive constraints:
(i) the regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof1—
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
47 U.S.C. § 332(c)(7)(B)(i) (emphasis added). Amherst does not dispute that Omni-point’s service is a “personal wireless service.” Id. § 332(7)(c).
Three of the four remaining limitations are pertinent here: the local government must act on placement or construction applications “within a reasonable period of time”; the denial of a request “shall be in writing and supported by substantial evidence contained in a written record”; and anyone adversely affected by any final action “or failure to act” by local government that is inconsistent with the limitations may seek i'eview in “any court of competent jurisdiction” and “[t]he court shall hear and decide such action on an expedited basis.” 47 U.S.C. §§ 332(c)(7)(B)(ii), (hi), (v).
On December 16, 1997, eight days after the lawsuit was filed, the Zoning Board of Adjustment met and unanimously denied all of Omnipoint’s applications for special
In response to Omnipoint’s request for reconsideration, the Board held a new hearing in February 1998. Omnipoint offered no new evidence, but the Board heard additional public comment. On March 16,1998, the Board issued a further decision, denying Omnipoint’s request for reconsideration and issuing a more extensive decision. The Board expressed general concerns about tower height and the impact on town character and property values, and then explained one by one— albeit in boilerplate language—why the individual variances or special exceptions sought did not meet specific requirements of state law or the March 1997 ordinance. For example, in rejecting Omnipoint’s request for a setback variance at the Brag-don Farm site, the Board stated in its “findings of fact” simply that “[t]he proposed tower does not meet the spirit and intent of the Amherst Master Plan to maintain the rural character of the northern entrance to the Town.”
Later, after Omnipoint further amended its complaint, Amherst cross-moved for summary judgment. In July 1998, a hearing was held in the district court on the cross-motions. Within six weeks, the district court issued a 47-page memorandum opinion analyzing the issues in detail and concluding that the town had violated the requirement that the local regulation “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” 47 U.S.C. § 332(7)(B)(i)(II); see Omnipoint Communications Enters., Inc. v. Town of Amherst, No. 97-614-JD (D.N.H. filed Aug. 21, 1998). The district court rejected Om-nipoint’s claim that the Board had unreasonably delayed decision, and it did not resolve the question of whether the denial was based on substantial evidence. Id.
In finding an effective prohibition, the district court stressed that the Board’s denial rested on very general standards and did not give any indication as to how the plaintiffs could overcome the “amorphous concerns” expressed or offer any guidance as to where towers could be located to construct a functioning system. The court concluded that a mandatory injunction would issue directing the town to issue the necessary permits within 45 days. We stayed the district court’s injunction pending an expedited appeal. On this appeal, we review the grant of summary judgment in favor of Omnipoint
de novo,
drawing inferences in favor of the town.
See Woods v. Friction Materials, Inc.,
The statutory provision before us, 47 U.S.C. § 332(c)(7), is a deliberate compromise between two competing aims—to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers. 3 There are already two circuit decisions and several dozen district court decisions addressed to one or more of the half-dozen recurring issues under the statute. One of those issues, and the ground for the district court’s injunction in this case, is Congress’ mandate that no “regulation” of siting is permitted that has “the effect of prohibiting” service. 47 U.S.C. § 332(c)(7)(B)(i)(II).
Suppose, for example, that in denying an individual permit, the town zoning authority announces that no towers will ever be allowed or sets out criteria that no one could meet. The fact that the ban is embodied in an individual decision does not immunize it. It is no answer to point to the requirement that individual decisions be based on “substantial evidence,” for this surely 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).
See, e.g., Cellular Tel. Co. v. Town of Oyster Bay,
If the criteria or their administration effectively preclude towers no matter what the carrier does, they may amount to a ban “in effect” even though substantial evidence will almost certainly exist for the denial.
See Virginia Metronet, Inc. v. Board of Supervisors,
In this case, Amherst has not formally banned towers,
compare Sprint Spectrum, L.P. v. City of Medina,
Were Omnipoint’s existing proposal the only feasible plan, then prohibiting its plan might amount to prohibiting personal wireless service. However, what the record shows on this point, and we have read it end to end, can be summarized as follows. It appears that Omnipoint has proposed a traditional efficient system that uses standard height towers at optimal locations, minimizing both the total number of towers needed for service and the overall cost for itself and for other carriers that may wish to co-locate. Three of the sites have the added advantage of generating revenue for the town and upgrading fire and police communications.
But it also appears that lower towers could be used (and possibly resited) if co-location were sacrificed and more (perhaps many more) towers were added.
5
At this
Ultimately, we are in the realm of tradeoffs: on one side are the opportunity for the carrier to save costs, pay more to the town, and reduce the number of towers; on the other are more costs, more towers, but possibly less offensive sites and somewhat shorter towers. Omnipoint may think that even from an aesthetic standpoint, its solution is best. But-subject to an outer limit, such choices are just what Congress has reserved to the town.
See AT & T Wireless PCS, Inc.,
Omnipoint did not present serious alternatives to the town. As it explained to the Board, it bowed to the Selectmen’s wishes to use town sites and to maximize the opportunities for co-location. Further, detailed site planning is quite expensive, leases or options take time to procure, and even one set of variance and special exception requests is costly and time consuming. This one-proposal strategy may have been a sound business gamble, but it does not prove that the town has in effect banned personal wireless communication.
Omnipoint’s stronger claim under the “effect” provision is that even if it might propose other solutions, none has any real prospect of success before the Board because no applicant can satisfy local requirements. In a nutshell, the Amherst ordinance seemingly requires some form of permission (special exception, variance or otherwise) for any system; the requirements for a variance under state law can be made very severe by insisting that no alternative reasonable use for the land exist; 6 and special exceptions under the Amherst ordinance have conditions so broad and general that a hostile Board might be able to find substantial evidence for every negative ruling. See note 2, above.
The concern should not be overstated, since special exceptions are a matter of right where the conditions are met, and the state courts are available to review the denial of any special exception or variance. Still, Omnipoint’s claim is not frivolous. Possibly it would have a difficult time showing conclusively that there is no other use for the sites (allegedly the requirement for a use variance) or that the towers are completely compatible with the rural image that the town seeks to foster (allegedly an element in the special exception regime). The rather mechanical application of these concepts by the Board in its March 1998 decision lends support to this concern, and the district court’s own decision rested largely on the view that the Board could and likely would reject alternative proposals.
Our own appraisal, which is
de novo
on summary judgment, is more ag
In all events, at least on the summary judgment record, it has not been shown that the Board will inevitably reject an alternative Omnipoint proposal with lower towers. Indeed, conceivably Omnipoint could offer such an alternative with lower towers and yet persuade the Board that, given the consequences (more towers) and perhaps modest height reduction, the Board is best off approving Omnipoint’s original proposal or some close variant (&<?., shifting one tower outside the historic district). It is too early to give up on the Board.
Below, Omnipoint pressed an alternative ground that the district court did not reach, namely, a claim that the Board’s actions were unsupported by substantial evidence. 47 U.S.C. § 332(c)(7)(B)(in). Something should be said about this claim in the interests of expedition since Omnipoint remains free on remand to renew its request for summary judgment on this issue. The substantial evidence question would ordinarily be resolved (one way or the other) on the record before the district court and require no trial. 7
As already noted, the substantial evidence requirement is 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. In a number of cases, courts have overturned denials of permits, finding (for example) that safety concerns and aesthetic objections rested upon hollow generalities and empty records.
See, e.g., Iowa Wireless Servs., L.P. v. City of Moline,
Still, in this case Omnipoint’s prospects of success on this ground may be limited. The substantial evidence test applies to the locality’s own zoning requirements, and Amherst has framed those requirements so they may be hard to fulfill unless the Board exercises its judgment favorably to the applicant. But this in turn makes Amherst more vulnerable to a claim, based on experience, that its regime is an effective ban. Thus, the two federal limitations — one dealing with bans and the other with substantial evidence — complement one another by ensuring that local law is both fair and is fairly administered.
Before any further litigation, Omnipoint might find it prudent to discuss with the Board an amicable resolution or an agreed upon procedure to achieve one. The Board must also face reality. If the Board’s position is that it can just sit back and deny all applications, that position in
The statute’s balance of local autonomy subject to federal limitations does not offer a single “cookie cutter” solution for diverse local situations, and it imposes an unusual burden on the courts. But Congress conceived that this course would produce (albeit at some cost and delay for the carriers) individual solutions best adapted to the needs and desires of particular communities. If this refreshing experiment in federalism does not work, Congress can always alter the law.
The district court’s judgment is vacated and the matter remanded for further proceedings consistent with this opinion. Each side shall bear its own costs on this appeal.
It is so ordered.
Notes
. Although often called "cellular” telephone service, several different technologies compete. Omnipoint uses a high frequency, digital system called personal communication service, or "PCS.” Almost all systems employ hand-held telephone sets communicating by radio with antennas strategically located on lowers or buildings; each antenna is connected eventually to the land-line telephone network.
. Under state law, the terms of the ordinance and its self-described purposes establish the test for special exceptions. See N.H.Rev.Stat. Ann. § 674:33. The specific purpose of the Amherst ordinance is "[t]o prevent the development of a proposed facility in areas that are unsatisfactory and will interfere with the view from any public land, natural scenic vista, historic building or district or major view corridor.” March 1997 ordinance.
. An initial House version of this provision required the formation of an FCC rulemaking committee charged with developing a uniform national policy for the deployment of wireless communication towers. The bill as it emerged from conference committee rejected such a blanket preemption of local land use authority, but retained specific limitations on local authority now reflected in the statute itself. See H.R. Conf. Rep. No, 104-458, at 207-09 (1996).
.
Compare AT & T Wireless PCS, Inc. v. City Council of Virginia Beach,
. If lower towers were used, quite possibly more towers could be needed for Omnipoint alone but unquestionably shorter towers would lessen or eliminate the possibility of co-location for other carriers who, absent co-
. Under New Hampshire law, a variance may be denied absent a showing of "unnecessary hardship,” N.H.Rev.Stat. Ann. § 674:33, and hardship is sometimes equated with a showing that applying the zoning ordinance would prevent the applicant from making "any reasonable use” of the property as zoned.
Olszak
v.
Town of New Hampton,
. In considering whether substantial evidence supports the agency decision, the court is acting primarily in a familiar “review” capacity ordinarily based on the existing record.
See
H.R. Conf. Rep. No. 104-458,
supra,
at 208. By contrast, whether the town has discriminated among carriers or created a general ban involves federal limitations on state authority, presenting issues that the district court would resolve
de novo
and for which outside evidence may be essential.
See AT & T Wireless PCS,
. While prepared to tolerate some delay, Congress made clear in two different provisions that it expected expeditious resolution both by the local authorities and by courts called upon to enforce the federal limitations. See 47 U.S.C. §§ 332(c)(7)(B)(ii), 332(c)(7)(B)(V); see also H.R. Conf. Rep. No. 104-458, supra, al 209.