ELR Citation: ELR 20467
No(s). 99-2185 (1st Cir. Feb 6, 2001)

The court upholds the grant of a special zoning permit for the construction of a wireless telecommunications tower in the steeple of a historic church in Wellfleet, Massachusetts. Although the town's planning board concluded that the wireless communication company had satisfied all the criteria of the town's zoning bylaws, the board nevertheless denied the permit. The company brought suit against the board in federal district court and the case was settled with one of the terms being the board's issuance of the permit. Once the permit was issued, a citizen group brought suit against the board claiming that in issuing the special permit pursuant to the consent agreement, the board violated state zoning laws by granting a previously denied permit in the absence of public notice and hearing. The court first holds, however, that the board did not err in issuing the permit without further public notice and hearing. The Telecommunications Act (TCA), which provides a cause of action in this setting, places a premium on the speedy resolution of such proceedings. Additionally, in a situation such as this, when the board knows that its earlier denial of a special permit violated the TCA, it is reasonable for the board to settle with the applicant on the terms most favorable to the town, rather than to engage in litigation doomed from the start. Further, the citizens failed to identify any practical benefit to sending the matter back to the planning board to hold a hearing destined to result in the issuance of the special permit. Moreover, the TCA preempts the state zoning laws that require a new round of public notice and hearing before a previously denied permit can be issued.

Counsel for Plaintiffs
Edward J. Collins
Law Offices of Edward J. Collins
P.O. Box 381330, Cambridge MA 02238
unlisted

Counsel for Defendants
Patrick J. O'Toole Jr.
Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
One Financial Ctr., Boston MA 02111
(617) 542-6000

Before Selya and Lisi,^* JJ.