• On September 29, 2010, the Massachusetts Land Court annulled a Special Permit granting Omnipoint Communications authority to build a cellular tower on cemetery property owned by the town of Littleton, Massachusetts. The court denied Omnipoint’s motion to dismiss the complaint lodged by nearby residents in which it argued that the residents lacked standing. Having denied that threshold motion, the court then ruled that Omnipoint did not prove that it could not have moved the tower site 30 feet away, such that the tower would have been at least 300 feet from the plaintiffs’ property, and thus was not entitled to the requested setback variance. In light of that finding, the court concluded that “as this court has annulled the Zoning Board’s issuance of the Setback Variance, this court now finds and rules that the grant of the Special Permit was in excess of the Planning Board’s authority and must be annulled.” Hoole v. Farnsworth, Nos. 08 Misc 389726 et al.
  • On September 28, 2010, the US District Court for the Eastern District of Pennsylvania denied a motion to dismiss a suit by Liberty Towers, LLC suit against the Zoning Hearing Board of Bucks County, Pennsylvania’s Lower Makefield Township. The complaint arose from the Hearing Board’s denial of an application for authority to build a cellular tower in the township on which Sprint and T-Mobile would place their cellular facilities. As the court explained, “Defendants request that this Court strike both of Plaintiff’s claims under the TCA [federal Telecommunications Act]. The Township raises three arguments in support of its motion to dismiss: first, that Plaintiff lacks standing to bring this action under the TCA; second, that this action is not ripe for federal judicial review; and, third, that Plaintiff has not properly plead that there is a significant gap in service within the meaning of Section 332(c)(7)(B)(ii)(II).” The court found that the Act was sufficiently broad to include the plaintiff within the class of people potentially injured by violations of the Act, and that the Zoning Board’s denial of the application was final for purposes of judicial review. The court also agreed that the FCC’s 2009 declaratory ruling that a carrier could prove a “significant gap” in coverage by reference only to its own coverage, without regard to whether other carriers provide service in the area, took precedence over an earlier, contrary ruling from the Third Circuit Court of Appeals. Liberty Towers, LLC v. Zoning Hearing Bd. of Tp. Lower Makefield, Bucks County, Pa., No. 10-1666.