Mass. Town Wins Summary Judgment Over Rejected Verizon Cell Tower Application
U.S. District Judge Mark Mastroianni for Massachusetts in Springfield denied Verizon’s motion for summary judgment against the town of Southwick, Massachusetts, on count I of its March 2021 complaint that the town’s denial of Verizon’s cell tower application wasn’t supported…
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by substantial evidence in the written record, in violation of the Telecommunications Act (see 2306200040), said the judge’s electronic order Monday (docket 3:21-cv-10414). His order granted the town’s cross-motion for summary judgment against Verizon. The Southwick planning board’s denial was based on four general and “sometimes overlapping” categories -- aesthetic concerns, negative impact on property values, health and safety concerns and negative impact on recreational use of the property, said the order. If substantial evidence supports the board’s findings as to any one of those categories, its decision “must be affirmed under the substantial evidence standard,” it said. The court concludes, in light of the entire administrative record, that substantial evidence supports the board's findings regarding aesthetics, “rendering analysis of the other categories unnecessary,” said the order. The planning board denied Verizon’s application under two different sections of the town zoning bylaws governing aesthetics, “both of which must be satisfied,” it said. The board’s “discretionary judgment calls” about the aesthetics and visual impact of the proposed cell tower in relation to its unique residential location are supported by more than a scintilla of evidence, said the order. In particular, the planning board “considered objective evidence which supported its findings,” it said. The board “also considered the specific input from nearby residential property owners as to the visual impact on their homes and the neighborhood as a whole,” it said. Verizon hasn’t carried its burden of demonstrating that the planning board's decision isn’t supported by substantial evidence, said the order. The court will schedule an April 22 trial on Count II, which asserts an effective prohibition claim under the TCA, it said.