William A. DeVasher Jr. is a partner in Seegel, Lipshutz & Wilchins PC, a general practice firm with offices in Wellesley. He concentrates in corporate and commercial law, including related litigation and land use matters. He represented the three radio stations in Champion Broadcasting System, Inc. v. Gerst.
In Champion Broadcasting System, Inc. v. Gerst, 13 Mass. Land Ct. Rptr. 443, 2005 Mass. LCR LEXIS 103 (Aug. 17, 2005, Trombly, J.), the Land Court held that the Federal Communications Act of 1934, 47 U.S. Code §§ 151 et seq., gives the Federal Communications Commission exclusive jurisdiction over technical matters related to radio broadcasting. Relying mainly on this ruling, the Land Court annulled the denial by the Newton Board of Aldermen, sitting as the special permit-granting authority, of the application of three broadcasters to replace two existing AM radio antennas in Newton's Oak Hill Park neighborhood with five new AM radio antennas. The court explored several issues of potentially broad application in Massachusetts zoning cases, including: federal pre-emption in the broadcasting field; the difference between the judicial review of local zoning decisions affecting broadcasting facilities compared with the judicial review of zoning decisions affecting cell phone facilities; and the responsibility of conservation authorities for deciding environmental issues arising in the context of zoning proceedings.
The Oak Hill Park neighborhood was developed, initially as housing for returning veterans of World War II, around a 19.7 acre site containing two 353-foot AM radio antennas completed in 1947. The antennas have been in continual use since their construction. In August 2002 the broadcasters - the property's owner, Champion Broadcasting System Inc., joined by Beasley Broadcast Group Inc. and Clear Channel Broadcasting Inc. - applied to the board for an amendment to the existing special zoning permits relating to the site. They sought to replace the two existing 353-foot AM radio antennas with five 199-foot AM radio antennas, including related improvements in the support facilities and landscaping of the antennas. Before filing their application, the broadcasters had applied for and received FCC licenses allowing them to broadcast from the Oak Hill Park site using the five proposed antennas.
Apart from requesting the board's permission to amend the existing permits, in April 2003 the broadcasters obtained environmental approval of their plan - an Order of Conditions - from the Newton Conservation Commission, a body independent from the board, after four public meetings. ConComm's approval was necessary because the site contains wetlands subject to the Wetlands Protection Act, G.L. c. 131, § 40. During the pendency of the ConComm proceeding, the broadcasters had discovered on the site and reported to ConComm a population of blue spotted salamanders, a Massachusetts-protected species which previously had not been officially sighted in Newton. In May 2004, the Department of Environmental Protection issued a Superseding Order of Conditions, rejecting the neighbors' appeal of ConComm's order but imposing additional requirements on the broadcasters.
The board's review of the special permit application - pursuant to the two-step procedure embodied in G.L. c. 40A, § 6 - went forward simultaneously with the ConComm review. The first step required the board to decide whether the desired changes would extend the nonconformities permitted by the existing special permits. If so, the board's next task was to judge whether the changes would be "substantially more detrimental" to the neighborhood than the current nonconformities. The board was assisted by several municipal departments and outside consultants in addressing these questions.
In early January 2004, the Newton Planning Department submitted a report to the effect that, conditioned on the fulfillment of certain conditions, the broadcasters' application should be granted. It found that the new 199-foot antennas would have less visual impact than the 353-foot antennas; that the neighborhood would not be adversely affected; that no nuisance to pedestrians or vehicles would ensue; and that street access to the site was appropriate for the vehicles involved in construction and maintenance.
The board's eight-member Land Use Committee began its public hearing a few days after receiving the Planning Department's report and continued it through late June 2004. The committee retained two outside experts on "RFEs" and "RFI." "RFEs" are "radio frequency emissions," waves of electric and magnetic energy emitted by transmitting antennas such as AM radio antennas, which move together through space at the speed of light. "RFI" is "radio frequency interference," the reception of unwanted RFEs on devices not normally expected to receive them, such as telephones, CD players, VCRs, water heaters, dishwashers and other appliances.
One of the committee's RFE/RFI experts determined that the five new antennas would comply with all applicable legal requirements, including the Massachusetts and FCC maximum permissible exposure limits for humans. Its other retained expert concluded that recent research provided no basis for deciding that long-term exposure to RFEs adversely affects human health. The broadcasters' outside consultant reached the same result.
Notwithstanding the Planning Department's report favoring the new antennas, the expert evidence as to no adverse health effects and the ConComm and DEP orders allowing the broadcasters to proceed, the committee recommended that the board deny the broadcasters' application. In July 2004 the full board followed this recommendation, concluding by a vote of 22-to-0 with two abstentions that the five proposed 199-foot antennas would be "substantially more detrimental" to the neighborhood than the two existing 353-foot antennas. The board made 14 findings of fact in support of its decision. Most if not all of the findings referred directly or indirectly to RFEs and RFI; one finding mentioned the project's effect on the environment; one finding noted visual pollution and one finding confirmed the board's inability to locate any similar antenna site in Massachusetts.
Land Court decision
Five days after the board filed its decision, the broadcasters commenced an action in Land Court pursuant to G.L. c. 40A, § 17, asserting that the board had "exceeded its authority" within the meaning of that provision. In February 2005, the broadcasters moved for summary judgment, seeking to reverse the board's decision in its entirety. Citing MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 636 (1970), they argued that the decision was "untenable" as a matter of law, or, in the alternative, that the underlying findings were "unreasonable" or "arbitrary." Following the submission of further pleadings and oral argument, the Land Court granted summary judgment in favor of the broadcasters. Relying on Britton v. Zoning Board of Appeals of Gloucester, 59 Mass. App. Ct. 68, 73 (2003), a case that followed MacGibbon, the Land Court ruled that, inasmuch as all of the board's findings were "legally untenable," it was unnecessary to reach the second aspect of the inquiry: whether the findings were "unreasonable" or "arbitrary."
Before turning to an item-by-item analysis of the board's 14 findings, the Land Court explained the Massachusetts standard for the judicial review of appeals from decisions of special permit granting authorities. Massachusetts judges are not confined to the evidence already introduced, but must conduct de novo hearings and make independent findings of fact. The reviewing court may not, however, substitute its judgment for that of the authority below; it must apply the two-step Britton test in reaching a conclusion. Massachusetts is one of several states that follow this procedure, Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 485 (1999), even in cases involving federal pre-emption. Id. at 486-91.
The court examined at length the crux of the broadcasters' argument: that because all 14 of the board's findings were based, directly or indirectly, on RFEs and RFI, the Communications Act pre-empts the findings, rendering them "legally untenable." In so arguing, the broadcasters had urged the court to take into account decisions in other jurisdictions where courts had determined the primary thrust of oppositions to broadcasting facilities actually derived from RFEs and RFI, despite the opponents' use of other terminology such as "distortion" and "no legitimate business purpose." Blackburn v. Doubleday Broadcasting Co., 353 N.W.2d 550, 553 (Minn. 1984) ("the gravamen of plaintiffs' complaint" was RFI); Fetterman v. Green, 455 Pa. Super. 639, 646, 689 A.2d 289, 293, appeal denied, 548 Pa. 648, 695 A.2d 786 (1997) ("Semantics aside, the core of the appellant's complaint alleges interference with radio signal transmissions.").
The Land Court observed - relying largely on Arthur D. Little, Inc. v. Commissioner of Health and Hospitals of Cambridge, 396 Mass. 535 (1985) - that federal law pre-empts state law only in certain circumstances, including cases where Congress has expressly displaced state law, where there is an actual conflict between federal and state law and where an examination of congressional intent clearly demonstrates its pre-emptive purpose. The court specifically noted that the Communications Act gives the FCC - as distinguished from state and local authorities - authority over radio "frequencies," 47 U.S. Code § 307(b); authorizes the FCC to regulate "the interference potential of devices which in their operation are capable of emitting radio frequency energy," 47 U.S. Code § 302(a)(1); and broadly empowers the FCC with respect to "the power which each station shall use," "the kind of apparatus to be used with respect to its external effect" and "areas or zones to be served." 47 U.S. Code § 303. These provisions make it clear, the court concluded, "that Congress intended the FCC to possess exclusive authority over technical matters related to radio broadcasting," quoting Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311 (2nd Cir.), cert. denied, 531 U.S. 917 (2000).
Referring to the above-quoted language of 47 U.S. Code § 302(a)(1), the Land Court disagreed with the board's contention that the FCC's jurisdiction over RFEs/RFI is restricted to "home electronic equipment and systems." Finally, the court supported the broadcasters' distinction between the local control of siting decisions under the Communications Act, which governs broadcasting facilities, and the local control of siting decisions under the Federal Telecommunications Act of 1996, 47 U.S. Code §§ 151 et seq., an amendment to the Communications Act expanding its coverage to "wireless services" such as cell phone towers. The broadcasters had asserted that while the Telecommunications Act grants local authorities a degree of latitude regarding the location of cell phone facilities - for example, the use of a "substantial evidence" standard in the judicial review of their decisions on cell phones, 47 U.S. Code § 332(c)(7)(B)(iii) - the pertinent provisions of the Telecommunications Act are inapplicable to broadcasting facilities. Freeman v. Burlington Broadcasters, Inc., 204 F.2d 323 ("Congress did not intend by [the Telecommunications Act] to repeal the FCC's exclusive jurisdiction over RF interference complaints.").
Upholding the principles it had just explained, the court observed that 11 of the Board's 14 findings contained "direct or indirect references to RFE/RFI." The 11 findings the court placed in this group included references to "an increase in broadcasting power"; "significant interference"; the broadcasters' "interference protection program"; an extension of the "FCC blanketing area"; an "increase in field strengths"; the effects of an "increase in RF emissions"; the diminution in "the value of real estate"; and the inadequacy of the "public benefits" suggested by the broadcasters. The court further found that "life safety devices" are not excluded from the FCC's regulatory power; and that the Newton health commissioner's concern that neighbors' worries about "RF effects" constitute "adverse health effects" is "grounded in RFE/RFI fears."
The court did not explicitly mention FCC pre-emption in ruling on three other findings. It discussed the board's conclusion that ConComm's Order of Conditions and the DEP's Superseding Order of Conditions did not sufficiently protect the site's blue spotted salamanders. Citing the Endangered Species Act, G.L. c. 131A, §§ 4 and 5, and related regulations, the court stated that responsibility for protecting the salamanders "lies solely and completely with the DEP and ConComm." The court also held that the board had identified no zoning standards justifying its denial of the broadcasters' application due to the salamanders.
The Land Court ruled the board's finding that the new antennas would increase "visual pollution" lacks any specific basis in Newton's zoning by-law. Statements of general intent to honor aesthetic values are subject to arbitrary application. Under Massachusetts law, they are insufficient to defeat special permit applications. Similarly, the board's reliance on its inability to identify any example in Massachusetts of co-located AM radio stations, or of an AM radio station sited in a residential neighborhood, was legally untenable, because it was not founded on any zoning by-law or other traditional zoning principle.
In conclusion, the Land Court held that although the board had recited the appropriate portion of G.L. c. 40A, § 6 - that the proposed antennas would be "substantially more detrimental to the neighborhood than the existing structures" - its decision was not "legally tenable." The court decided it was unnecessary, therefore, to reach the second question posed by Britton's two-step analysis: whether the board's findings were "unreasonable" or "arbitrary." The court observed, however, that "it does not appear … after a review of the entire record available … that the new antennas will be substantially more detrimental to the Oak Hill Park neighborhood than the existing antennas," going on to list a number of salient facts.
After the court remanded the case to the board for further proceedings consistent with the decision, the board and the broadcasters resolved their differences and the board dismissed its appeal.
Champion Broadcasting provides guidance regarding three important issues that will arise in future Massachusetts zoning cases:
First, it explores the doctrine of FCC pre-emption as it applies to broadcasting facilities, as opposed to "wireless services" facilities, in greater detail than Massachusetts' other foray into this area, Sangiolo v. Board of Aldermen of Newton, 57 Mass. App. Ct. 911, rev. denied, 439 Mass. 1105 (2003), which touched - but did not expand upon - the question.
Second, it confirms that while the Telecommunications Act affects the scope of judicial review of zoning decisions on cell phone facilities, 47 U.S. Code §332(c)(7)(A), the FCC retains exclusive jurisdiction of RFE/RFI issues concerning broadcasting facilities.
Third, it holds that the Endangered Species Act, G.L. c. 131A, gives local conservation authorities and the DEP - not zoning boards - the responsibility for deciding questions regarding protected species and their habitats arising in the course of zoning cases.