HomeMy WebLinkAboutAppeal of 5005 1044 Route 28 District Court 10.10.202327965238-v10
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
BLUE SKY TOWERS III, LLC d/b/a )
BSTMA III, LLC )
)
Plaintiff, )
)
v. )
)
TOWN OF YARMOUTH, )
MASSACHUSETTS; and STEVEN DEYOUNG,)
SEAN IGOE, JAY FRAPRIE, JOHN )
MANTONI, RICHARD MARTIN, DOUG )
CAMPBELL, TIMOTHY KELLEY, )
BARBARA MURPHY, RICHARD NEITZ, )
ANTHONY PANEBIANCO, in their capacity )
as Members of The Town of Yarmouth, )
Massachusetts Board of Appeals, )
)
Defendants. )
__________________________________________)
COMPLAINT
1. This is an action for declaratory relief and mandamus brought pursuant to Section
332 of the Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 332. Section 332 precludes
state and local governments from taking action that prohibits or has the effect of prohibiting the
provision of personal wireless services and requires that any decision to deny applications to
deploy personal wireless services facilities be based on substantial evidence in a written record.
Here, the Town of Yarmouth, Massachusetts Board of Appeals (“Board”) violated Section 332
by unlawfully denying an application by Blue Sky Towers III, LLC d/b/a BSTMA III, LLC
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(“Plaintiff” or “Blue Sky”) for a special permit to construct and operate a wireless
communications facility in Yarmouth, Massachusetts (“Application”).
2. The Town of Yarmouth Zoning Bylaw (the “Zoning Bylaw”) allows “Personal
Wireless Service Facilities” in any zoning district, subject to a special permit from the Board.
The Board should have approved Blue Sky’s Application for a special permit because it satisfies
all applicable standards of the Zoning Bylaw. Blue Sky’s Application and the rest of the record
before the Board establishes that the proposed wireless facility will not create undue nuisance,
hazard or congestion and will not create a substantial harm to the established or future character
of the neighborhood or Town of Yarmouth. Blue Sky’s Application and the record also establish
that the proposed location for the Blue Sky wireless facility is the only feasible location that can
accommodate a wireless facility capable of filling the coverage gap that currently exists on the
AT&T and T-Mobile wireless networks in that area of the Town of Yarmouth, while providing
prioritized, preemptive wireless services for first responders. Nevertheless, the Board denied
Blue Sky’s request for a special permit. The denial of the Application has the effect of
prohibiting AT&T and T-Mobile (the “Carriers”) from providing adequate wireless service in
that area. Defendants’ unlawful acts entitle Blue Sky to an order compelling the Board to act in
accordance with its duties and grant the requested special permit.
Jurisdiction and Venue
3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§1331, as Plaintiff’s claims arise under the laws of the United States, specifically, 47 U.S.C.
§332(c)(7), which provides that “anyone adversely affected by any final action or failure to act
by local government that is inconsistent with the limitations [of the TCA] may seek review in
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any court of competent jurisdiction and the court shall hear and decide such action on an
expedited basis.”
4. Venue is proper in the District of Massachusetts pursuant to 28 U.S.C. § 1391(b)
because all Defendants reside in this District and all events or omissions giving rise to this action
occurred within this District.
Parties
5. Plaintiff Blue Sky is a limited liability company organized under Delaware law,
and registered to transact business in Massachusetts as BSTMA III, LLC with a principal place
of business at 352 Park Street, Suite 106, North Reading, Massachusetts.
6. Defendant Town of Yarmouth, Massachusetts is a Massachusetts municipal
corporation with a principal address of 1146 Route 28, South Yarmouth, MA 02664 (the “Town”
or “Yarmouth”).
7. Defendant Steven DeYoung, an individual who resides at 691 Willow Street,
South Yarmouth, Massachusetts, was, at all times material to this action, a member, and Chair,
of the Board and is being named solely in that capacity.
8. Defendant Sean Igoe, an individual who resides in Yarmouth, Massachusetts,
was, at all times material to this action, a member, and Vice Chair, of the Board and is being
named solely in that capacity.
9. Defendant Jay Fraprie, an individual who resides at 36 Pheasant Cove Circle,
Yarmouth, Massachusetts, was, at all times material to this action, a member of the Board and is
being named solely in that capacity.
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10. Defendant John Mantoni, an individual who resides at 55 Scholl Avenue, West
Yarmouth, Massachusetts, was, at all times material to this action, a member of the Board, and is
being named solely in that capacity.
11. Defendant Richard Martin, an individual who resides at 55 Hatch Road, South
Yarmouth, Massachusetts, was, at all times material to this action, a member of the Board, and is
being named solely in that capacity.
12. Defendant Doug Campbell, an individual who resides at 40 Squirrel Run Street,
Yarmouthport, Massachusetts, was, at all times material to this action, an alternate member of
the Board, and is being named solely in that capacity.
13. Defendant Timothy Kelley, an individual who resides at 20 Buckwood Drive,
South Yarmouth, Massachusetts, was, at all times material to this action, an alternate member of
the Board, and is being named solely in that capacity.
14. Defendant Barbara Murphy, an individual who resides in Yarmouth,
Massachusetts, was, at all times material to this action, an alternate member of the Board, and is
being named solely in that capacity.
15. Defendant Richard Neitz, an individual who resides at 11 General Holway Road,
South Yarmouth, Massachusetts, was, at all times material to this action, an alternate member of
the Board, and is being named solely in that capacity.
16. Defendant Anthony Panebianco, an individual who resides at 7 Minden Lane,
Yarmouthport, Massachusetts, was, at all times material to this action, an alternate member of
the Board, and is being named solely in that capacity.
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Factual Background
17. Blue Sky is in the business of constructing and operating wireless infrastructure,
including wireless communications towers, throughout the United States, including in the
Commonwealth of Massachusetts. FCC-licensed wireless carriers, such as the Carriers, utilize
Blue Sky’s wireless facilities to operate their wireless telecommunications networks.
18. The Carriers provide Personal Wireless Services (“PWS”) as that term is defined
in the TCA and they are licensed by the Federal Communications Commission (“FCC”) to
provide service using various bands of the radio spectrum to an area that includes Yarmouth,
Massachusetts.
19. The Carriers’ networks function by exchanging low power signals between the
user’s wireless device and a Carrier communications facility at a fixed location known as a PWS
facility or a “cell site.” A cell site consists of one or more antennas and related radio and power
equipment mounted on a building, tower, or other structure, a climate-controlled room fenced off
area, or other enclosure that houses other radio and power equipment, and related cabling. Each
of a Carrier’s cell sites operates on one or more of the radio spectrum bands licensed to that
Carrier.
20. Each of the Carriers operates a network of many individual cell sites, each serving
a discrete geographic area or “cell.” The location of each cell site is selected with consideration
for radio frequency (“RF”) engineering principles and that Carrier’s overall network design so
that it will most effectively serve the targeted geographic area and also function properly with
respect to the Carrier’s existing and planned cell sites in the surrounding area. In addition to
questions of site availability and feasibility, there are a number of technical factors bearing on
where to construct a cell site. These include feasible antenna heights, population and service
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demands, topographical features, and the distance from and location with respect to other
existing and proposed cell sites in the network.
21. Connections to wireless network infrastructure, and the telecommunications and
ancillary services offered over them, are a critical means by which Americans engage with each
other, reach 911 emergency services, and obtain broadband data access to the Internet and a
multitude of smartphone applications. In 2017, mobile wireless data usage per smartphone rose
to an average of 5.1 GB per subscriber per month, an increase of over 30% from the prior year.
By 2024, mobile data traffic per smartphone in North America is expected to increase to 39 GB
per month. This upward trend is expected to continue and accelerate. Furthermore, households
are increasingly reliant on wireless telephone service. In the first six months of 2019, 59.2% of
adults and 70.5% of children in the United States lived in households that did not have a landline
telephone but did have at least one wireless telephone. In 2018, 61.8% of Massachusetts
households relied either exclusively or mostly on wireless networks for their telephone service.
22. Consumers everywhere increasingly rely on wireless network infrastructure, and
this increased demand for reliable service makes it necessary for providers like the Carriers to
develop new cell sites to increase their network capacity and meet the rising demand.
23. RF engineers using RF engineering principles determined that each of the Carriers
require a cell site in the south part of Yarmouth, known as South Yarmouth, Massachusetts.
Each of the Carriers needs this cell site in order to fill a significant existing gap in its network.
These network coverage gaps exist, in part, because as demand for wireless services has grown,
the existing surrounding facilities in the Carriers’ networks are increasingly unable to meet the
demand for wireless service resulting in dropped calls and deteriorated service in the area of the
significant gap. The proposed cell site would address this inadequate service and enable the
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Carriers to provide service, including 4GLTE wireless voice and data transmission, to their
customers who live and work in and travel through South Yarmouth. Without a facility in this
area, these customers are unable to reliably and consistently initiate, receive, or hold calls and
data transmissions when located within or traveling through this area of Yarmouth. In the case
of AT&T, the proposed cell site would also function as part of the AT&T-managed FirstNet
National Public Safety Broadband Network, which provides prioritized, preemptive wireless
services for first responders.
24. Whenever possible, the Carriers install their cell sites on an existing tower or
other available structure that is tall enough and suitably located so that it can provide the service
needed to fill a coverage gap. Blue Sky performed, and provided to the Board, a careful and
exhaustive site analysis demonstrating that there are no existing structures that the Carriers can
use for the installation of a cell site to address its service needs in the targeted area of Yarmouth.
25. The parcel at 1044 Route 28, Yarmouth, Massachusetts, Map # 50, Parcel # 189.1
(the “Property”) is the only feasible location identified by Blue Sky that can close the significant
gap in wireless coverage that both the Carriers’ networks experience in this area of Yarmouth.
This parcel is the only one that is used for commercial or institutional purposes and possesses the
necessary attributes for siting a new wireless telecommunications tower that can comply with the
requirements of the Zoning Bylaw.
26. The Property is owned by the Roman Catholic Bishop of Fall River (“Owner”)
and part of it is currently occupied by a church and associated parking, while the remainder of
the Property is vacant. Blue Sky and the Owner have executed a lease for a 100’ x 100’ area of
the Property with access and utility rights.
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27. The Property is in the Business B2 zoning district (“B2”), the Hotel/Motel
Overlay District 2 (“HMOD2”), and the Village Centers Overlay District 3 (“VC3”).
28. Section 408.3 of the Zoning Bylaw requires a special permit from the Board to
construct a “communications tower”, which is defined as “[a]ny building, structure, pole, mast,
tripod, monopole, or tower, free-standing or supported, or in association with a building or other
permanent structure or equipment, utilized for the generating, transmitting, receiving, or
detecting of electromagnetic radiation.”
29. Section 408.7.2.1 of the Zoning Bylaw states in part, “[t]he siting of Personal
Wireless Service Facilities shall be allowed in any zoning district…”
30. Blue Sky proposes to construct a wireless communications tower designed as a 3-
face clock tower with attached antennas and associated radio and related equipment on and
adjacent to the tower within a 55-foot by 60-foot enclosure surrounded by a 6-foot tall stockade
fence. The clock tower design is intended for aesthetic purposes and will entirely conceal the
wireless antennas and equipment. The clock tower will be 110 feet above ground level (a.g.l.)
with the roof extending to 115 feet a.g.l. The lower part of the tower will be screened by a
natural barrier of trees, all as shown on the plans filed with the Board as part of the Application
(the “Proposed Facility”).
31. The Proposed Facility would be a personal wireless services facility within the
meaning of the TCA.
32. Blue Sky has entered into lease agreements with each of the Carriers. The
agreements allow the Carriers to install their wireless equipment on and appurtenant to the clock
tower within the fenced compound. AT&T’s panel antennas would be installed at a height of 93
feet centerline and T-Mobile’s panel antennas would be installed at a height of 105 feet
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centerline. The Proposed Facility will provide collocation opportunities for two additional FCC-
licensed carriers at centerline heights of 69 feet and 81 feet.
33. On January 13, 2022, Blue Sky received Development of Regional Impact
approval from the Cape Cod Commission for a 110-foot monopole tower design.
34. On March 23, 2022, Blue Sky applied for formal design review with the Town’s
Design Review Committee for a 110-foot monopole tower design. The Town’s Design Review
Committee reviewed the proposal at public meetings on April 5, 2022 and June 14, 2022.
During this review process, and in order to address visual impact concerns associated with a
monopole tower, Blue Sky amended the cell tower design to simulate a clock tower - a more
aesthetically pleasing design. The Town’s Design Review Committee approved comments on
the Proposed Facility on June 14, 2022, allowing the Blue Sky to proceed to site plan review.
35. On July 19, 2022, the Town’s Site Plan Review Committee reviewed and
commented on the Proposed Facility, after which Blue Sky responded to those comments,
completing the site plan review process.
36. On December 30, 2022, Blue Sky filed the Application seeking a special permit to
construct a communications tower at the Property under Sections 103.2 and 408 of the Zoning
Bylaw.
37. The Application is a request to construct a PWS Facility and the Board’s review
therefore is subject to the TCA.
38. The Board opened its hearing on the Application on March 9, 2023, continued the
hearing to June 22, 2023 and further continued the hearing to July 13, 2023. The hearing closed
on July 13, 2023.
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39. Blue Sky supplemented its Application once, on July 11, 2023, with an additional
alternative site analysis that reviewed 110 potential alternative sites in the area.
40. The information Blue Sky submitted to the Board, as supported by the testimony
at the hearing, establishes that the Proposed Facility meets all of the standards for approval under
the Zoning Bylaw. There is no information in the record that would support a denial of the
Application based on a reasonable and lawful evaluation of the evidence.
41. On July 13, 2023, the Board voted to deny the Application for a special permit.
The Board’s written decision documenting the denial (“Decision”) was filed with the Town
Clerk on September 11, 2023. A true and correct copy of the Decision is attached to this
Complaint as Exhibit 1. The grounds stated for denial in the Decision are not based on the
evidence in the record and are not correct or sufficient as a matter of law to support the decision
to deny the Application.
42. The TCA requires that any decision by a state or local government or
instrumentality to deny a request to place, construct, or modify personal wireless service
facilities shall be in writing and supported by substantial evidence contained in a written record.
47 U.S.C. §332(c)(7)(B)(iii) (emphasis added). Here, the Board’s Decision denying the
Application is not supported by substantial evidence in the written record.
43. The Decision ignores the overwhelming weight of the competent and legally
cognizable evidence in the record.
44. For example, the Decision states as a purported basis for denying the Application
that the Proposed Facility’s design would have “an overbearing visible and negative impact on
the small businesses and residential properties that make up the immediate zoning district” even
though the Proposed Facility’s design was amended from a monopole tower to a more
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aesthetically pleasing clock tower design to minimize visual impacts to the surrounding area,
during the local design review process and in response to comments from the Cape Cod
Commission.
45. For example, the Decision states as a purported basis for denying the Application
that “there are substantial public health and safety concerns regarding the presently proposed
location” even though the Proposed Facility is more than 115 feet from all property lines in
compliance with the fall zone standard under Section 408.7.8 of the Zoning Bylaw and the
Proposed Facility will enhance wireless services for the Town’s first responders through
FirstNet’s National Public Safety Broadband Network.
46. For example, the Decision states as a purported basis for denying the Application
that the “Petitioner failed to do their due diligence in seeking alternative sites” even though the
Applicant submitted two alternative site analyses to the Board, reviewing over 110 potential
alternative sites to locate the Proposed Facility and explaining its reasons for rejecting each of
those sites. The evidence Blue Sky presented also explains that the Property is the only feasible
and suitable location where the Proposed Facility can be sited in order to successfully close the
significant gap in wireless coverage each of the Carriers experiences in South Yarmouth and that
there are no existing structures within this area of the Town that are feasible for co-location.
Nothing in the record before the Board demonstrates that there is a feasible alternative location.
47. The Board also ignored the evidence and the applicable law in denying waivers
from the requirements of the Zoning Bylaw. Section 408.4.1 of the Zoning Bylaw allows the
Board to “alter or waive one or more of the requirements of section 408 if it finds that the
alteration or waiver of the requirement(s) will not derogate from the intent of the bylaw.” In its
review of the requested waivers, the Board failed to apply the standard of review articulated in
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Section 408.4.1 of the Zoning Bylaw to Blue Sky’s requested waivers. The Board also failed to
make factual findings in the Decision to justify its denial of Blue Sky’s waiver requests.
48. For example, with respect to a waiver from Section 408.7.1 of the Zoning Bylaw
(stating that “only self-supporting monopole type towers are permissible”) the Board did not
apply the waiver standard in Section 408.4.1 of the Zoning Bylaw, and instead simply found that
Blue Sky “would need to seek a variance.”
49. The Board also purported to address and deny a waiver from the “fall zone”
requirement of Section 408.7.8 of the Zoning Bylaw requiring the tower to be setback a distance
equal to its height from “all property lines,” even though the applicant neither requested nor
needed a waiver from that requirement. The Board’s conclusion that this requirement was not
satisfied because “50% of the church parking lot” is located within the “fall zone” is legally
erroneous in that the parking lot is on the same property as the tower. The Board’s conclusion
that “approximately 31 ft. of the residential property to the Northeast” is located within the “fall
zone” is factually incorrect, as demonstrated by the plans and other application materials in the
record.
50. In the Decision, the Board relies on speculation, specious reasoning, and
mischaracterization of the evidence, including misrepresenting and selectively summarizing
statements made at the public hearings by Blue Sky’s legal counsel, Attorney Ricardo Sousa, in a
disingenuous effort to justify the denial of the Application in order to appease “Not In My Back
Yard” neighborhood opposition.
51. Blue Sky demonstrated that the Proposed Facility is designed to minimize visual
impacts through careful planning processes with the Town, is necessary to fill a substantial gap
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in service, and satisfies all applicable standards under Sections 103.2 and 408 of the Zoning
Bylaw.
52. At its September 14, 2023 public meeting, the Yarmouth Historical Commission
discussed the Proposed Facility, and concluded that it had no objection to the Proposed Facility
because the Proposed Facility would be difficult to see from the South Yarmouth/Bass River
historic district and the trees will grow to further disguise the Proposed Facility.
53. The Application for a special permit to construct the Proposed Facility is a request
to construct a PWS facility and is therefore subject to the TCA.
COUNT I
(Violation of TCA Because Denials Not Supported by Substantial Evidence)
54. Plaintiff’s allegations contained in paragraphs 1 through 53 above are
incorporated by reference as if fully set forth herein.
55. The TCA requires that decisions to deny a request to “place, construct or modify”
a personal wireless services facility, “be supported by substantial evidence contained in a written
record.” 47 U.S.C. § 332(c)(7)(B)(iii).
56. There is no substantial evidence in a written record to support the Board’s denial
of the Application.
57. The Application and supporting information that Blue Sky presented to the Board
in support of the Application demonstrates conclusively that the Proposed Facility satisfies all of
the design standards and other objective requirements of the Zoning Bylaw.
58. The Board’s failure to support its denial of the Application by “substantial
evidence contained in a written record” is a violation of 47 U.S.C. §332 (c)(7)(B).
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59. The TCA vests this Court with authority to grant mandamus relief if such relief
would be warranted under the circumstances.
60. Blue Sky is entitled to a declaration that the Board’s failure to base its denial of
the Application on substantial evidence in a written record violates the TCA. Blue Sky is also
entitled to an order directing the Board to approve the Application.
COUNT II
(Violation of TCA for Prohibition of Wireless Services)
61. Plaintiff’s allegations contained in paragraphs 1 through 60 above are
incorporated by reference as if fully set forth herein.
62. 47 U.S.C. §332(c)(7)(B)(i)(II) states that the regulation of personal wireless
service facilities by states or their instrumentalities “shall not prohibit or have the effect of
prohibiting the provision of personal wireless services.”
63. The Carriers currently experience a substantial gap in their wireless service in the
area of the Proposed Facility and nearby parts of Yarmouth. The Proposed Facility at the
Property would allow each of the Carriers to provide reliable service within that gap and is
needed for the Carriers to fill that gap.
64. In its written materials and through testimony at the hearing, Blue Sky presented
an extensive alternative site analysis to the Board showing that there were no feasible
alternatives to the Proposed Facility that would allow the Carriers to provide service to the area
that now experiences inadequate and unreliable service.
65. Through its Zoning Bylaw, the Town requires a special permit from the Board for
the construction of wireless communications towers. The Decision by the Board denying the
Application prevents Blue Sky from constructing the Proposed Facility at the only available and
feasible location, and therefore has the effect of prohibiting the Carriers from providing their
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personal wireless services within the area experiencing a significant gap in wireless service.
Accordingly, the Decision effectively prohibits wireless services in violation of 47 U.S.C.
§332(c)(7)(B)(i)(II).
66. In light of the foregoing, Blue Sky is entitled to a declaration that the Defendants’
denial of the Application violates the TCA and is further entitled to an order directing the Board
to grant the special permit.
WHEREFORE, Plaintiff Blue Sky III, LLC d/b/a BSTMA III, LLC respectfully
requests the following relief:
1. An expedited review of the matters set forth in this Complaint, as provided by the
Telecommunications Act of 1996, Pub. L. 104-104, § 704, 110 Stat. 56, codified at 47 U.S.C.
§ 332(c).
2. A declaration that the Board’s denial of the Application violated the
Telecommunications Act of 1996, 47 U.S.C. § 332(c)
3. An order annulling the Board’s denial of the Application.
4. An order of mandamus directing the Board to issue the necessary approval to
allow Blue Sky to install, operate, and maintain the Proposed Facility.
5. Such further relief as the Court may deem appropriate and proper.
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PLAINTIFF,
BLUE SKY III, LLC d/b/a BSTMA III,
LLC,
By its attorneys,
/s/ Michael S. Giaimo
Michael S. Giaimo (BBO #552545)
mgiaimo@rc.com
/s/ Danielle Andrew Long
Danielle Andrews Long (BBO #646981)
dlong@rc.com
Robinson & Cole LLP
One Boston Place, Floor 25
Boston, MA 02108-4404
(617) 557-5900
Dated: October 10, 2023
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Direct File
VI. CAUSE OF ACTION
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Brief description of cause:
VII. REQUESTED IN
COMPLAINT:
CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.
DEMAND $CHECK YES only if demanded in complaint:
JURY DEMAND:Yes No
VIII. RELATED CASE(S)
IF ANY (See instructions):JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
FOR OFFICE USE ONLY
RECEIPT #AMOUNT APPLYING IFP JUDGE MAG. JUDGE
26 USC 7609
Case 1:23-cv-12334 Document 1-2 Filed 10/10/23 Page 1 of 1
Middlesex Barnstable
Blue Sky Towers III, LLC d/b/a BSTMA III, LLC
Michael S.Giaimo and Danielle Andrews Long
Robinson &Cole LLP,One Boston Place,Fl.25,Boston,
MA 02108;617-557-5900
Town of Yarmouth, MA; Members of Town of Yarmouth
Board of Appeals
6
6
47 U.S.C. Sec. 332 (Federal Telecommunications Act of 1996)
TCA Action challenging the Board's denial of a special permit for construction and operation of a wireless communication facility.
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6
October 10, 2023 /s/ Danielle Andrews Long
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
1. Title of case (name of first party on each side only)
2.Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local
rule 40.1(a)(1)).
I.
II.
III.
160, 400, 410, 441, 535, 830*, 835*, 850, 880, 891, 893, R.23, REGARDLESS OF NATURE OF SUIT.
110, 130, 190, 196, 370, 375, 376, 440, 442, 443, 445, 446, 448, 470, 751, 820*, 840*, 895, 896, 899.
120, 140, 150, 151, 152, 153, 195, 210, 220, 230, 240, 245, 290, 310, 315, 320, 330, 340, 345, 350, 355, 360, 362,
365, 367, 368, 371, 380, 385, 422, 423, 430, 450, 460, 462, 463, 465, 480, 485, 490, 510, 530, 540, 550, 555, 560,
625, 690, 710, 720, 740, 790, 791, 861-865, 870, 871, 890, 950.
*Also complete AO 120 or AO 121. for patent, trademark or copyright cases.
3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this
district please indicate the title and number of the first filed case in this court.
4. Has a prior action between the same parties and based on the same claim ever been filed in this court?
YES 9 NO 9
5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC
§2403)
YES 9 NO 9
If so, is the U.S.A. or an officer, agent or employee of the U.S. a party?
YES 9 NO 9
6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284?
YES 9 NO 9
7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of
Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)).
YES 9 NO 9
A. If yes, in which division do all of the non-governmental parties reside?
Eastern Division 9 Central Division 9 Western Division 9
B. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies,
residing in Massachusetts reside?
Eastern Division 9 Central Division 9 Western Division 9
8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes,
submit a separate sheet identifying the motions)
YES 9 NO 9
(PLEASE TYPE OR PRINT)
ATTORNEY'S NAME
ADDRESS
TELEPHONE NO.
(CategoryForm11-2020.wpd )
Case 1:23-cv-12334 Document 1-3 Filed 10/10/23 Page 1 of 1
Blue Sky Towers III, LLC d/b/a BSTMA III, LLC v.
Town of Yarmouth, MA et al.
4
None
4
4
4
4
Danielle Andrews Long
Robinson & Cole LLP, One Boston Place, Floor 25, Boston, MA 02108
617-448-4598