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Case Review: Green Mountain Realty Corp. v. Leonard
Green Mt. Realty Corp. v. Leonard, 750 F.3d 30 (1st Cir. 2014)
The federal Telecommunications Act of 1996 (“TCA”) was enacted to promote competition and reduce regulation in the development of telecommunications services. Under the law, State and local governments have authority “over decisions regarding the placement, construction, and modification of personal wireless service facilities.” 47 USC § 332, but this authority is subject to several important limitations. Specifically, State and local governments (1) may not unreasonably discriminate among providers of functionally equivalent services, (2) may not effectively prohibit the provision of wireless services, (3) must make decisions within a reasonable period of time, (4) must provide decisions in writing that are supported by substantial evidence, and (5) may not regulate on the basis of the environmental effects of radio frequency emissions if such facilities comply with applicable regulations. Id.
In a recent decision, the First Circuit Court of Appeals (“First Circuit”) provided guidance as to how the federal courts in this circuit should balance the interests of cell tower applicants with those of host municipalities under these TCA provisions. Green Mt. Realty Corp. v. Leonard, 750 F.3d 30 (1st Cir. 2014). Green Mountain Realty (“GMR”) owns and operates cellular phone towers, which it leases to wireless telecommunication service providers (“carriers”). To close a service coverage gap, GMR sought to erect a 140-foot tower on a parcel of land located between Interstate 93 and the on-ramp by Exit 3 in Milton, Massachusetts. Before GMR could construct the tower, it needed the approval of the Milton Board of Appeals (“BOA”) and Conservation Commission (“MCC”).
After reviewing GMR’s application, both bodies rejected the proposed tower because of public opposition, the need to protect a nearby state park’s character, and a finding of a very low dropped call percentage. Id. at 34. GMR then appealed the decisions, claiming that they effectively prohibited the construction of the tower in violation of the TCA. Id. The First Circuit agreed.
In this circuit, local zoning decisions that prevent the closing of significant gaps in wireless services violate the effective prohibition provision of the TCA. Id. at 38. The First Circuit reviewed the record and concluded as a matter of law that “the only feasible solution to [the] coverage gap is the construction of a cell phone tower on the Site.” Id. at 41. Thus, the BOA and MCC denials of GMR’s permit constituted an effective prohibition in violation of the TCA.
In addition, when a zoning board decision violates the TCA, the proper remedy is “[a court] order . . . instructing the board to authorize construction . . . .” Id. at 41. In this case, the First Circuit concluded that the only remaining question of fact was the tower’s height. Id. at 42. Therefore, because the TCA requires local boards to act “within a reasonable period of time” and courts to review decisions on an “expedited basis,” the court instructed the district court–not the BOA or MCC– to make a determination as to what was a proper height for the tower. Id.
The takeaway from this case is that effective prohibition claims must be taken seriously in the First Circuit. Even if a proposed cell tower would violate the terms of local land use regulations, the applicant may prevail if it can convince a court that the refusal to allow construction of the tower violates the TCA. Applicants who wish to install cell towers should consider this type of challenge if their applications are denied by local authorities, and host municipalities should assure that their land use regulations comply with federal law.