United States District Court, D. Maine
PORTLAND CELLULAR PARTNERSHIP, d/b/a VERIZON WIRELESS, Plaintiff,
INHABITANTS OF THE TOWN OF CAPE ELIZABETH, Defendant, and PRISCILLA ARMSTRONG, PAVEL DARLING, AND BRAD KAUFFMAN, Intervenors
PORTLAND CELLULAR PARTNERSHIP, doing business as VERIZON
WIRELESS, Plaintiff: SCOTT D. ANDERSON, LEAD ATTORNEY, RACHEL
M. WERTHEIMER, VERRILL DANA LLP, PORTLAND, ME.
PRISCILLA ARMSTRONG, PAVEL DARLING, BRAD KAUFFMAN, Intervenor
Plaintiff: DANIEL A. NUZZI, LEAD ATTORNEY, NATHANIEL A.
BESSEY, BRANN & ISAACSON, LEWISTON, ME.
INHABITANTS OF THE TOWN OF CAPE ELIZABETH, Defendant: JOHN J.
WALL, III, LEAD ATTORNEY, MONAGHAN LEAHY, LLP, PORTLAND, ME.
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Levy, United State District Judge.
Cellular Partnership, doing business as Verizon Wireless
(" Verizon" ), has brought suit challenging the
denial by the Town of Cape Elizabeth (" Town" ) of
a permit to construct a wireless telecommunications facility.
See ECF No. 1 at 1. The parties have cross-motioned
for summary judgment on the issue of whether the Spectrum
Act, 47 U.S.C.A. § 1455 (2015), preempts the
Town's ability to deny Verizon's permit request. ECF
No. 29; ECF No. 31; ECF No. 35. The parties have also filed
cross-motions for summary judgment on the issue of whether
the Town appropriately applied its zoning ordinance. ECF No.
39; ECF No. 42; ECF No. 43. After careful consideration, I
conclude that the Town did not err in determining that the
Spectrum Act does not apply to Verizon's permit request,
but that the Town did err in applying its zoning ordinance
and denying the permit.
FACTUAL AND PROCEDURAL BACKGROUND
case concerns Verizon's proposal to build a wireless
telecommunications facility (" Proposal" ) on an
existing water tower located at Avon Road in Cape Elizabeth
(" Water Tower" ). See ECF No. 1 at 1. The
80 foot-tall Water Tower sits on a 22,500 square foot parcel
of land owned by the Portland Water District ("
District" ). R. at 14-15, 19. The Water Tower has a
small shed nearby and is surrounded by a chain link fence. R.
at 19, 35. The District discontinued storing water in the
Water Tower in 2007, but continues to use it to maintain and
operate a communications antenna, which was installed
sometime in the 1980s. R. at 86. The antenna is part of the
District's " supervisory control and data
acquisition system" (" SCADA system" ), which
is licensed by the Federal Communications Commission, and is
used to communicate with 27 sewer pump stations and the Cape
Elizabeth treatment plant. R. at 37, 86. The antenna rises
approximately 18 feet above the top of the Water
Tower. R. at 20. There is no evidence in the
record that the placement and maintenance of the SCADA
antenna on the Water Tower has been subject to review or
approval under any municipal or state zoning, siting, or
regulatory review process. ECF No. 31 at 2.
proposes to install wireless telecommunications antennas on
the Water Tower. See R. at 15. Its Proposal entails
the installation of three sets of shrouded antennas, which
would be mounted on the sides of the Water Tower near its
top. R. at 10, 19, 20. The Proposal also includes a proposed
12 foot by 26 foot equipment shelter to be built near the
base of the Water Tower to house equipment associated with
the antennas, in addition to various underground utility
conduits. R. at 10, 15, 19. The antennas will be connected to
the equipment shelter by a cable enclosed in a cable tray. R.
at 10, 19. Verizon also proposes to remove part of the
existing chain link fence to make way for the equipment
shelter, and to thus expand the area of the property that is
fenced in. R. at 19.
February 11, 2014, Verizon submitted a permit application for
the Proposal to the Town's Code Enforcement Officer
(" CEO" ). R. at 9-39. CEO Benjamin McDougal issued
a Letter of Denial on March 19, 2014. R. at 73-75. The CEO
found that the Proposal was not a permitted use in the "
RA Zoning District" under the Town's ordinance. R.
at 74. He also rejected Verizon's argument that the
Spectrum Act required the Town to issue a permit for the
Proposal. Id. Verizon appealed to the Town's
Zoning Board of Appeals (" ZBA" ), R. at 1-8, which
voted unanimously at its May 27, 2014, meeting to deny
Verizon's appeal of the CEO's decision. R. at 129. On
June 24, 2014, the ZBA denied Verizon's request for
reconsideration of its decision. R. at 260.
filed its complaint on July 9, 2014, asserting that the
Spectrum Act, Section 1455, requires the Town to approve the
Proposal. ECF No. 1 at 8-9. Verizon also contends that even
if the Spectrum Act does not apply, the Town erred in
applying its zoning ordinance and should have approved the
Proposal as a permitted use. Id. at 9-10. In
February, I granted the motion to intervene brought by three
abutters who joined the case in opposition to
Verizon. ECF No. 34. These abutters ("
Intervenors" ) join the Town's motion for summary
judgment on both issues. ECF No. 35; ECF No. 43.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56
judgment is appropriate only if " the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see Ahmed v. Johnson,
752 F.3d 490, 495 (1st Cir. 2014). In making that
determination, a court must view the evidence in the light
most favorable to the non-moving party. Johnson v. Univ.
of P.R., 714 F.3d 48, 52 (1st Cir. 2013). " [A]
judge's function at summary judgment is not to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial."
Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d
895 (2014) (citations and quotations omitted).
Local Rule 56
Rule 56 defines the evidence that this court may consider in
deciding whether genuine issues of material fact exist for
purposes of summary judgment. See Loc. R. 56. In
this case, which involves the review of an administrative
hearing record, Local Rule 56's requirement for a
Statement of Undisputed Material Facts does not apply, and I
have reviewed the case on the Administrative
Record/Stipulated Documents submitted by Verizon and
supplemented by the Town (ECF No. 23; ECF No. 25).
See ECF No. 17 at 2.
The Spectrum Act
Spectrum Act preempts State and municipal authority to block
the placement of certain wireless equipment on existing
structures which already house wireless transmission
Notwithstanding section 704 of the Telecommunications Act of
1996 (Public Law 104-104) or any other provision of law, a
State or local government may not deny, and shall approve,
any eligible facilities request for a modification of an
existing wireless tower or base station that does not
substantially change the physical dimensions of such tower or
47 U.S.C.A. § 1455(a)(1).
defines an " eligible facilities request," in
relevant part, as " any request for modification of an
existing . . . base station that involves . . . collocation
of new transmission equipment." 47 U.S.C.A. §
1455(a)(2)(A). Here, the parties dispute whether the Water
Tower is an " eligible facility," and, if it is,
whether Verizon's requested modification under the
Proposal would substantially change the Water Tower in
violation of Section 1455(a)(1), which provides that an
eligible facilities request may be denied if it will "
substantially change the physical dimensions" of the
Whether the Water Tower Is a " Base
there is no dispute that Verizon's Proposal involves
collocation of new transmission equipment, the Proposal's
qualification as an " eligible facilities request"
turns on whether the Water Tower is a " base
station" within the meaning of the Spectrum Act. While
the Act itself does not define " base station,"
see 47 U.S.C.A. § 1455, the term is defined in
the Federal Communications Commission's ("
FCC's" ) implementing regulations as:
A structure or equipment at a fixed location that enables
Commission-licensed or authorized wireless communications
between user equipment and a communications network. The term
does not encompass a tower as defined in this subpart or any
equipment associated with a tower.
47 C.F.R. § 1.40001(b)(1) (2015). The regulations
provide additional criteria associated with the definition of
a " base station" which are the focal point of this
The term includes any structure other than a tower that, at
the time the relevant application is filed with the State or
local government under this section, supports or houses
equipment described in paragraphs (b)(1)(i) through (ii) of
this section that has been reviewed and approved under
the applicable zoning or siting process, or under
another State or local regulatory review process, even
if the structure was not built for the sole or primary
purpose of providing such support.
47 C.F.R. § 1.40001(b)(1)(iii) (emphasis
added). There is no dispute that the SCADA equipment
constitutes equipment as described in subsection (b)(1)(i)
and, specifically, radio transceivers and antennas under
subsection (b)(1)(ii). See 47 C.F.R. ...