HomeMy WebLinkAboutAppeal of 5005 1044 Route 28 Summons District Court 10.11.2023Case 1:23-cv-12334-PBS Document 3 Filed 10/11/23 Page 1 of 2
UNITED STATES DISTRICT COURT
tG tIe
DISTRICT OT MASSACHUSETTS
BLUE SKY TOWERS III' LLC D/BI/ABSTMAtrI'
I,I .c
Plaintilf
ANTHOI\TY PANEBIANCO' ET AL.
Civil Action No.: 1:23-CV-12334-PBS
4
C.
Delendant
SUMMONS IN A CTVIL ACTION
To. (Defendant's name and oddress) Tofln of Yarmouth. Massachusetts
1 146 Route 28
South Yarmouth' MA 026M
%o,
-1
s,'4
A lawsuit has bean filed against you'
Within 21 days after service of this summons on you (not counting the day you received-it).-lr 60
davs if vou are the United States or a United States agency, or an officer or employee of the United States
;:iHJilr.F;:-*:iir.;l i t"ltzl "r
(3) --- you must serve on_the plaintiff an answer to rh€ auached
;;;i;il;;;..tion under Ruleif oi irti r"ao"r Rules of Civil Procidure The answer or motion must be
.errta on ttre ptaintrff or plaintiffs attorney, whose name and address are:
Danielle Andra^,s Long, Esq
Robinson & Cole LLP
One Boston Place, 25th Floor
Boston, MA 02108
Ifvoufailtorespond,judgmentbydefaultwillbeenteredagainstyouforthereiiefdomandedin
the complainr. You also must file your answer or motion with the cout'
ROBERTM. FARRELL
CIERK OF COURT
/V - Savannah Cook
Signature ol Clerk or Deputy Clerk
ISSUED ON 2023-l(Fll l0:(N:42, Cl6k USDC DMA
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Case 1:23-cv-12334 Document 1 Filed L1fr0l23 Page 1 of 16
UMTED STATES DISTRICT COURT
DISTRICT OF MASSACHUSEMS
BLUE SKY TOWERS III' LLC d/b/a
BSTMA III, LLC
Plaintiff,
TOWN OFYARMOUTH,
MASSACHUSETTS; and STEVEN DEYOUNG,)
SEAN IGOE, JAY tr'RAPRIE, JOHN )
MANTONI,RICHARDMARTIN,DOUG )
CAMPBELL, TIMOTITY KELLEY' )
BARBARA MURPHY, RICHARD IIEITZ' )
ANTIIONY PANEBIANCO, in their capacity )
as Members of The Towu of Yarmouth, )
Massachusetts Board of APPeals, )
)
Defendants. )
)
COMP T
L This is an action for declaratory telief 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 ofprohibiting the
provisionofpersonalwirelessservicesandrequiresthatanydecisiontodenyapplicationsto
deploy penonal wireless services facilities be based on substantial evidence in a written record'
Here,theTownofYarmouth,MassachusettsBoardofAppeals("Board")violatedSection332
by unlawfully denying an application by Blue Sky Towers III, LLC d/b/a BSTMA III' LLC
2't965218-v10
Case 1:23-cv-12334 Document 1 Filed LOlLOlz3 Page 2 of 16
("Plaintiff' or "Blue Sky") for a special permit to construct and operate a wireless
communications facility in Yarmoutlr, Massachusetts ("Application')'
2. The Town ofYarmouth Zoning Bylaw (the "Zoning Bylaw") allows "Personal
Wireless Service Facilities" in any zoning district, subject to a special permit &om the Board'
TheBoardshouldhaveapprovedBlueSky'sApplicationforaspecialpermitbecauseitsatisfies
all applicable standards ofthe Zoning Bylaw. Blue sky's Application and the rest ofthe record
before the Board establishes that the proposed wireless facility witl 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 locatiotr for the Blue Sky wireless facility is the only feasible locatron 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
BlueSky'srequestforaspecialpermit.ThedenialoftheApPlicationhastheeffectof
prohibiting AT&T and T-Mobile (the "caniers") from providing adequate wireless service in
that area. Defendants' unlawfirl acts entitle Blue Sky to an order compelling the Board to act in
accordance with its duties and grant the reqrrested special permit'
Jurisdictio n and Venue
3.ThisCourthassubjectmauerjurisdictionoverthisactionpusua,ttto28U.S.C.
g1331, as Plaintiff s claims arise under the laws of the united states, specifically,4T u.s.c.
$332(cX7), which provides that "anyone adversely affected by any final action or failure to act
bylocalgovernmenlthatisinconsistentwiththelimitations[oftheTCA]mayseekreviewin
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Case 1:23-cv-12334 Document 1 Filed 7Ol7Ol23 Page 3 of 16
any court of competent jurisdiction and the cout shall hear and decide such action on an
expedited basis."
4. Venue is proper in the District of Massachusetts pusuant to 28 U'S'C' 0 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
ofbusiness at 352 Park Street, Suite 106, North Reading' Massachusetts'
6.DefendantTownofYarmouth,MassachusettsisaMassachusettsmunicipal
corporation with a principal address of 1 146 Route 28, South Yarmouth, MA 02664 (the "Town"
or 'Yarmouth').
T.DefendaotStevenDeYoung,anindividualwhoresidesat69lWillowStreet,
South Yarmouth, Massachusetts, was, at all times material to this action, a member, and chair,
ofthe Boad and is being named solely in that capacity.
8. Defendant Sean Igoe, ao 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'DefendantJayFraprie,anindividualwhoresidesat36PheasantCoveCircle,
yarmouth, Massachusetts, was, at all times material to this action, a member of the Board and is
being named solely in that capacity
J
Case 1:23-cv-12334 Document 1 Filed 70110123 Page 4 of 16
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 soiely in that capacity.
11. Defendant fuchard 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,
Yarrnouthport, Massachusetts, was, at all times material to this action, an altemate 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 altemate 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 residss at l1 General Holway Road,
South Yarmouth, Massachusetts, was, at all times material to this action, an altemate member of
the Board, and is being named solely in that capacity.
16.DefendantAnthonyPanebianco,anindividualwhoresidesatTMindenlane'
yarmouthpo4 Massachusetts, was, at all times material to this action, an alternate member of
the Board, and is being named solely in that capacity'
4
Case 1:23-cv-12334 Document 1 Filed LOltOlz3 Page 5 of 16
Factual Backsround
17. Blue Sky is in the business of coustucting and oPerating wteless infrastructure,
including wireless communications towers, throughout the United States, including in the
Commonwealth of Massachusetts. FCC-licensed wteless 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 Comnunications Commission ("FCC") to
provide service using various bands ofthe radio spectrum to an afea that includes Yarmouth,
Masgachusetts.
19. The Carriers' networks function by exchanging low power signals between the
user's wireless dovice 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 equipmen! and related cabling' Each
ofa carrier's cell sites operates on one or more of the radio spectrum bands licensed to that
Carrier
20. Each ofthe Carriers operates a network ofmany individual cell sites, each serving
a discrete geographic area or "cell." The location ofeach 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. ln addition to
questions ofsite availability and feasibility, there are a number of teohnical factors bearing on
where to construct a cell site. These include feasible autema heights, population and service
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Case 1:23-cv-12334 Document 1 Filed Lol7ol23 Page 6 of 16
demands, topographical feahres, and the distance fiom 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 thern, are a critical means by which Americans engage with each
other, reach 911 emergency sewices, and obtain broadband data access to the lntemet and a
multitude of smartphone applications. In2017, mobile wireless data usage per smartphone rose
to an average of 5.1 GB per subscriber per month, an increase ofover 30% from the prior year.
By 2024,mobile data traffic per smartphone in North America is expected to incre8se to 39 GB
per month. This upward tend is expected to continue and accelerate. Furthermore, households
are increasingly reliant on wireless telephone service. In the fust six mouths of 2019, 59.2% of
adults and 70.5% ofchildren in the United Stales lived in households that did not have a landline
telephone but did have at least one wireless telephone. In 2018, 6l .8% of Massachusetts
households relied either exclusively or mostly on wteless networks for their telephone sewice'
22. Consume$ everywhere increasingly rely on wireless network infrastructue, and
this increased demand for reliable service makss 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 detcrmined that each of the camers
require a cell site in the south part of Yarmout\ known as South Yarmouth, Massachusetts.
Each ofthe Carriers needs this cell site in order to fill a signifrcant existing gap in its network'
These network coverage gaps exist, in par! 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 rezulting in dropped calls and deteriorated service in the aroa of the
significant gap. The proposed cell site would address this inadequate service and enable the
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case 1:23-cv-12334 Document 1 Fited 7ol7ot2g page 7 of 16
carriers to provide service, including 4GLTE wireless voice a',d data transmission, to their
customers who live and work in and travel through South yarmouth. without a facility in this
arca, 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 firnction as part of the AT&T-managed FirstNet
National Public Safety Broadband Network, which provides prioritized, preernptive wireless
services for first responders.
24. Whenever possible, the Camers install their coll sites on an existing tower or
other available structuro that is tall enough and suitably located so that it can provide the service
needed to filI a coverage gap. Blue Sky performed, and provided to the Board, a careful and
exhaustive site analysis demonshating 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 rn wireless coverage that both the Carriers' networks experieme 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
requiremeats of the Zoning Bylaw.
26. The Properly is owued by the Roman Catholic Bishop of Fall River ("Owner")
and part of it is curently occupied by a church and associated parking, while the remainder of
the Propety is vacant. Blue sky and the owner have executed a lease for a 100' x 100'areaof
the Property with acoess and utility rights.
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Case l":23-cv-12334 Document 1 Filed 7Ol7Ol23 Page I of 16
27. The Property is in the Business B2 zoning district ("B2'), the Hotel/Motel
Overlay District 2 C'HMOD2), and the Village Centers Overlay District 3 ("VC3")'
2g. Sestion 408.3 ofthe Zoning Bylaw requires a special permit from the Board to
construct a ..communications tow€i" which is defined as "[a]ny buiiding, structure, pole, mast,
tripod, monopole, or tower, free-standing or supported, or in association with a building or other
pemanent structure or equipment, utilzed for the generating, transmitting, receiving, or
detecting of electromagnetic radiation."
29.Section408'T.2.loftheZoningBylawstatesinpart,..[t]hesitingofPersonal
Wireless Service Facilities shall be allowed in any zoning district" '"
30.BlueSkyproposestoconstluctawirelesscommunicationstowerdesignedasa3.
face clock tower with attached antennas and associated radio and related equipment on and
a jacent to the tower within a 55-foot by 60-foot enclosuro 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 I l0 feet above ground level (a.g.l.)
with the roof extendirg to 1 15 feet a.g.l. The lower part of the tower will be screened by a
nafuralbarrieroftrees,allasshownonthoplansfiledwitht}reBoardaspartoftheApplication
(the "Proposed Facility").
31'TheProposedFacilitywouldbeapersonalwirelessservicesfacilitywithinthe
meaning of the TCA.
32. Blue Sky has ontered into lease agreoments with each ofthe 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
feetceDterlineandT.Mobile,spanelantennaswouldbeinstalledataheightofl05feet
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case 1:23-cv-12334 Document 1 Filed 10/10/23 Page I of l-6
centerline. The proposed Facility wi provide collocation opport,nities for two additional FCC-
licensed carriers at centerline heights of 69 feet and 8l feet'
33. On January 13,2l22'Bfue Sky received Dwelopment of Regional Impact
approval from the Cape Cod Commission for a 1 l0-foot monopole tower design'
34. On March 23, 2O22,BlwSky applied for formal desip rwiew with the Town's
Design Review Committee for a 1lO-foot monopole tower desigd The Town's Design Review
Committee reviewed the proposal at public meetings on April 5' 2022 and !"ne 14'2022'
During this review process, and in order to address visual impact concems associated with a
monopole tower, Blue Sky amended the cell tower design to simulate I clock tower - a more
aosthetically pleasing design' The Town's Design Review Committee approved comments on
the Proposed Facility on June l4'2)z2,allowing the Blue Sky to procoed to site plan review
35. On luly 19,2022, the Town's Site Plan Review Committee reviewed and
commented on the Proposed Facility, after which Blue Sky responded to those comments'
complehrrg the site plan review process'
36. On Decernber 30, 2022, Blue Sky frled the Application seeking a special permit to
constuctacommunicationstoweratthePropertyunderSections103.2and40softheZoning
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 is hearing on the Application on Marchg'2023' continued the
hearingtoJune22,2023andfurthercontinuedthehearingtoJuly13,2023.Thehearingclosed
on July 13, 2023.
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Case 1:23-cv-12334 Document 1 Filed 10i10/23 Page 10 of 16
39. Blue Sky supplemented its Application once' on July lI'2023'with an additional
alternative site analysis that reviewed I 10 potential altemative 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 standalds for approval under
thezoningBylaw.Thereisnoinformationintherecordthatwouldsupportadenialofthe
Application based on a reasonable and la'*frrl 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 dooumenting the denial ("Decision") was filed with the Town
ClerkonSeptemberll,2023.AtrueandcorrectcopyoftheDecisionisattachedtothis
ComplaintasExhibitl'ThegroundsstatetlfordenialintheDecisionarenotbasedonthe
evidenoe in the reoord and are trot corect or sumcient as a matter oflaw 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 modifu personal wireless service
facilities shall be in writing and supp ortdby substantial evidence contained in a written record.
47 U.S.C. $332(c)(7)(B)(iii) (emphasis adtled)' Here, the Board's Decision denying the
Application is not supported by substantial evidence in the writtef, record'
43. The Decision ignores the overwhelming weight ofthe competent and legally
cognizable evidence in the record.
44. For example, the Decision states as a purported basis for denlng the Application
thattheProposedFacility,sdesignwouldhave..anoverbearingvisibleandnegativeimpacton
thesmallbusinessesandresidetrtialpropertiesthatmakeuptheimmediatezoningdistrict,'even
though the Proposed Facility's design was amended from a monopole tower to a more
l0
Section 408.4.1 ofthe Zoning Bylaw to Blue Sky's requested waivers. The Board also failed to
make factual findings in the Decision to justiff its denial of Blue Sky's waiver requests.
43.Forexample,withlespecttoawaiverfromSection408,T.loftheZoningBylaw
(stating that ..only self-supporting monopole type towers are permissible") the Board did not
applythewaiverstandardinSection408.4.loftheZoningBylaw,andinsteadsimplyfoundthat
Bluo Sky "would need to seek a varianse."
49.TheBoardalsopurportedtoaddressanddenyawaiverfromthe..fallzone,,
requirement of ssction 408.7.8 ofthe 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 3l ft. of the residential property to the Northeast" is located within the "fall
zone,, is factually incorrec! 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 bl,Blue sky's legal counsel, Attomey Ricardo Sousa, in a
disingenuous effort to justiff the denial of the Application in order to appease "Not ln My Back
Yard" nei ghborhood oPPosition.
5l . Blue Sky demonstrated that the Proposed Facility is designed to minirnize visual
impacts through careful planning processes with the Town, is necessary to fill a substantial gap
Case 1:23-cv-12334 Document 1 Filed 70170123 Page 12 of 16
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Case 1:23-cv-12334 Document 1 Filed tOlTOtZ3 page 13 of 16
in service, and satisfies all applicable standards under Sections 103.2 and 40g of the Zoning
Bylaw.
s2- At its September 14, 2023 public me€ting, 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 distict and the trees will grow to further disguise the proposed Facility.
53, The Application for a special permit to constuct the proposed Facility is a request
to construct a PWS facility and is therefore subject to the TCA.
COUNT I
(Violrtion of TCA Because Deriials Not Supported by Substantial Evidence)
54. Plaintif|s allegations contained in paragraphs I through 53 above are
incorporated by reference as if fuIly set forth herein.
55. The TCA requires that decisions to deny a request to ,,place, construct or modifr"
a personal wireless sewices facility, "be supported by substantial evidence contained in a written
record." 47 U.S.C. g 332(c)(7)@)(iii).
56. There is no substantial evidence in a written record to support the Board's denial
of the Application.
57. The Application and supportiag information that Blue Sky presented to the Board
in support of the Application danonstrates conclusively that the Proposed Facility satisfies all of
the desip standards and other objective requirements ofthe Zoning Bylaw.
58. The Board's failure to support its denial of the Application by ..zubstantial
evidence contained in a wntten record" is a violation of47 U.S.C. g332 (c)(7)(B).
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Case 1:23-cv-12334 Document 1 Filed tOlLOl23 page 14 of 16
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.
COUNTII
(Violation of TCA for Prohibition of Wireless Services)
61. Plaintiffs allegations contained in paragraphs I through 60 above are
incorporated by reference as if fully set forth herein.
62. 47 U.S.C. 9332(c)(Z)@)(i)(tr) 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 ofpersonal 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 rhat gap and is
needed for the Carriers to fill that gap.
64. In its writteo materials and through testimony at the hearing, Blue Sky presented
an extensive altemative site analysis to the Board showing that there were no feasible
altematives 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 ofwireless 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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Case 1:23-cv-12334 Document 1 Filed 7ol7ol23 Page 15 oI 16
personal wireless services within the area experiencing a signifrcant gap in wireless service.
Accordingly, the Decision effectively prohibits wireless services in violation of47 u.s.c.
grsz(c)(7)(BXi)(r).
66. In light ofthe 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 $ant the special permit.
WHEREFORE, Plaintilf Btue Sky m, LLC d/b/a BSTMA III, LLC respecttuIly
requests the following relief:
l An expedited review ofthe 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 ofthe Application violated the
Telecommunications Act of 1996,47 U.S.C. 5 332(c)
3. An order annulling the Board's denial ofthe Application.
4. An order ofmandamus 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 deern appropriate and proper'
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Case 1:23-cv-12334 Document 1 Filed IOIIOIZ} page 16 of 16
PLAINTIFF,
BLUE SKY nI, LLC d/b/a BSTMA III,
LLC,
By its attomeys,
/s/ Michael S. Giaimo
Michael S. Giaimo (BBO #552545)
mgiaimo(i2rc.com
/s/ Danielle An&ew Lone
Danielle Andrews Long @BO #646981)
dlong@rc.com
Robinson & Cole LLp
One Boston Place, Ploor 25
Boston, MA 02108-4404
(617) 5s7-5900
Dated: October 10, 2023
l6
Case 1:23-cv-12334 Document 1-1 Filed ]rOlLOlz3 Page 1 ol I
EXHIBIT 1
Case 7:23-cv-L2334 Document 1-1 Filed tOlIOl23 paqe 2 of 9
TOWN OF YARMOUTH
BOARD OF APPEALS
DECISION
FILED WITH TOWN CLERK:
PETITION NO:
HEARING DATES:
PETITIONER:
PROPERTY:1044 Route 28, Yarmouth, MA
Map & Lot #: 50.t89.1
Zoning District: B-2, Hl\lOD-t, VC-3
Title: Book 869; Pege 144
EVI DENCE:
All documents and testimony in this proceeding are rnaintained in the Board record. without
detailing all ofthe documented evidence here, the Board hereby notes that it has reviewed tlre
applicable rnaterials presen(ed in connection with tlre Petition. The Board has tirrlher. reviqved
additional correspondence and rnaterials, including but not limited to:
Altemative Site Analysis Spreadsheet and Map submitted by Applicant via Attonrey
Sousa on July 11,2023.
lsotrope Report on Blue sky l'owers Tos,er Petition 5005 submitted by David Maxson orr
June 30.2023.
MEMBERS PRESENT AND VOTING: Sean lgoc, \/icc Chairman (r,ia Zoonr), Richard
Martin, Je1' Frapric, and John l\{antoni
Notice of the hearing has been given by sending notice rhereolto the petitioner and all those
orvners of property as requiled by larv, and to the public by posting notice of the hearing and
publishing in The Cape Cod rimes. the hearing was opened and held on March 9,2023 rvith Mr.
Igoe, Vicc Chair (via Zoom), Mr, Martin, Mr. Fraprie. and Mr. Mantoni in attend4nce and the
Board contiuued the hearing to June 22.2023. The June 22,2023 hearing was continued on a
nrotion by Mr. Manin to July I 3, 2023 to accornmodate the peer reviewer's schedule. on July 13.
2023. the above named members rvere present and voting.
Scptcmbcr I l, 2023
5005
March 9, 2023; July 13,2023
Blue Sky Torvers lll, LLC dba BSTMA, LLC
Case 1:23-cv-12334 Document 1-1. Filed 7Ol1Ol23 Page 3 of 9
At the March 9, 2023 pubiic hearing, and on behalfofthe petitioner, Attonrey Ricardo Sousa
presented an overyiew ofthe proposed project. Blue Sky Towers is a company that is in the
business ofbuilding infrastructure to accommodate wireless antenna installations for FCC-
licensed wireless companies, such as the t\rio co-applicants: T-Mobile and AT&T.
The Petitioner has applied for a Special Permit per 9103.2.2 and 9408 to construct a I l0-foot,3
sided wireless telecornmunications facility clock tower to accommodate 2 wireless antenna
installations in order to fill a gap in coverage in the vicinity ofthe property. The Petitioner is also
seeking certain rvaivers from sections 408 ofthe By-law-
Section 103.2.2 of the By-law states that, a special pennit shall not be granted unless the
applicant demonstrates that no undue uuisance. hazard or congestion will be created and that
there rvill be no substantial hann to the estahlished or future character ofthe neighborhood or
town.
Section 408, addresses Communication Antennas, Buildings and Towers.
408.1 Purpose. The purpose of this By-law is to establish guidelines for the siting ofall
cornmunicatiorr antennas. cornmunication buildings, and communication tou,ers in the Torvn of
Yarmouth.
The waivers sought by the Petitioner fall under section 408 and are as follows:
Sec 408.7.1, 'Only self-supporting morropolc type torvers are pcmissrble.
408.7. I Ceneral. All communications facilities shall be designed and sited as to have the least
adverse visual effect on the environment.
408.7.5.1 Scenic Landscapes and Vistas- Pcrsonal Wireless Sen,ice Facilities shall not bc located
within open areas that are discemable fi'orn public roads. recreational areas, or residential
developrnent.
408.7.6.1 Height, General. Regardless ofthe type ofrnount, Personal Wireless Scrvrce facilities
shall be no higher than ten feet above the average heiglrt ofbuildings within 300 feet of thc
proposed facility.
408.7.6.2 Height. Ground Mounted Facilities. Ground-mounted Personal Wirelcss Facilities shall
not project higher than I 0 feet above the ai,erage building height or, if there are no buildings
within 300 feet, these facilities shall not project lrigher than l0 feet above the average tree
canopy height.
The Petitioner seeks to locate the proposed I l0 ft. 3-sided Personal Wireless Service Facilities
(PWSF) along Rte. 28 in an open area along the nrain commercial corridor which woultl be
highly visible looking frorn every dir-ectiou.
Case 1:23-cv-12334 Document 1-1 Filed 1.]OlIOl23 Page 4 of I
Prior to appearing before the Zoning Board of Appeals (ZBA)' the project was vetted through
Site Plan Revierv.
Cornmunity Development and Planning expressed serious concerns about the height' location
aJ o"stt eii.s of the cell tower in a hig[ly visible location within the town's main commercial
".riO"r. it "y
further opined that "the"applicant's attempt to.address the aesthetic concems of
tf,i, t igt,f, viiiUle site ty designing the er to sinrulate a clock tower is higlrly inadequate The
J".ign";, pr"."nted reads likei lar-ge sign frorn a freeway a.d lacks the appropriate level of
detail and design elements."
photogr.aphs subrnitted by the Petitioner shorvs just how imposing the proposed tower would be
when viewed from both close and afar.
The Cape Cod Cornmission (CCC) reviewed the project and determined it to be a Developrnent
of Regional hnpact (DRl). Tlre Petitioner preserlted to the CCC a proposal for a I 20 ft. rnorropole
cell toq,er to bi located at the proposed site. The CCC approved the project on January I 0, 2022.
The proposed cell tower the Petitioner has presented to the ZBA is for a I l0 ft. 3-sided clock
tower design, not the 120 ft. monopole cell tower as presellted to the CCC.
Attomey Sousa presented renderings ofa sarnple of the RF (radio frequency) trallsparent
material for the I l0 ft., 3 sided clock tower design. He discussed potential occuparlcy ofthe
tolver, the configuration of the site, landscaping and setbacks and the need for the proposed
stl-ucture. specifically to address a gap in coverage.
The Board expressed concem that the cell torver as proposed would be located right along the
Rte. 28 corridor in the heart of the town and that its proposed height, that being 3 titnes the
allowed height in the zoning district, and its tou'ering mass would have an overbearing visible
and ncgative inrpact thaf coulcl be seert ti'otn altnost cvety surrouuding sight littc.
Additionally, the Board expresscd concem that the fhll zone ofthe proposed cell torver
eucompasses approximately 50% ofthe adjaccnt church parking lot, as well as a rcsidential
property lo the Dortheast.
Section 408.7.8 Fall Zoues states, Comlrunication tolvers, whether free-standing or pall of
another structure or building, must be set back frorn all property lines by at least the total height
ofthe tower structurc and its appearances.
Attorney Sousa seemed to dorvnplay the fall zone concenrs and instead responded that thc to\Yel'
is designed to meet the Massachusetts high wind and structural standards.
The Board inquired as to whether there nray be alternative sites that rvould be tnore suitable than
the one proposed.
The Petitionel presented the Board with a rnap showirrg a number ofacceptable altemative sites
that they claimed to have investigated and/or nrade attetnpts to contact the owners in order to
inquire whether they rvould be interested in hosting dre cell tower' The Petitioner represented
Case 1:23-cv-12334 Document 1-L Filed 1Ol1Ol23 Page 5 of I
that they sent certified letters to each ofthe owners ofthe possible altemative sites and
essentially heard back from no one except the owners ofthe proposed site.
One such site that the Petitioner labeled as acceptable was located approxirnately 1500 fect off
Rte. 28. (The Skull Island Property) Skull lsland is an amusement park whose property runs
approxirnately 1500 feet in offRte 28. The Board agreed that this would be a much more suitable
site and that given its distance from Rte. 28 would appear to be shorter than its actual height and
less visible.
Mr. Igoe inquired of the Petitioner whether they had spoken with the orvners of the Skull lsland
site. The Petitioner stated that they had only sent a certified letter and that it was retumed as
unsigned for. Mr. Igoe asked if the Petitioner rvould be willing to attempt to reach out to the
owners again. The Petitioners replied that they would nrake anothcr attempt to reach them.
The Board also inquired as to whether the Petitioner had considered erecting a nunrber ofsnraller
torvers placed in various locations that would achieve the sarne goal and thus negating the nced
for the I I 0 fi. clock tower. The Petitioner stated that they hadn't.
The Board and the Petitioner agreed to continue the hcaring for the purposes of the Board hiring
a peer review consultant and for tlre Petitioner to investigate other locations, including the Skull
lsland property.
At the July I3, 2023 continued hearing. peer review consultant David Maxson fionr lsotrope,
LLC presented the findings fronr his June 30,2023 Report to the Board. Mr. Maxson
sumnrarized the discussion from the prior meeting regarding altemative locations with
potentially less visual impact on the conlnunity.
Mr. Maxson ref'erenced tlre need fol additional facilities in tlre area to provide an appropriatc
Ievel ot'cornpetitive seryice and that it would Iikely require for.u. concealed-antentra-monopoles
to leplace tlre proposed cell tower and tiat the_t, tloukl proyide greater cotentgc thon the
proposed totrer and wouldn't require DRI Ieview but noted it was a matter ofcomntunity
preference whether to favor fervel tall rnulticarrier towers or more, shorter camouflaged poles.
Mr. lgoe asked Attonrey Sousa if the Petitioner rvould consider 4 slrorter concealed rnonopoles
placed at various locations as an altenrative lo tlie proposed 3 sided I l0 ft. torver. Attonrey Sousa
stated that they would not be in favor of this alternativc bccausc it would require 2 polcs per.
can'ier.
Attomey Sousa also stated drat they may have up to 4 carriers iuterested in placing antennas ou
the proposed I l0 fi tower. Their application and prior representation was that it rvould be lbr
AT&T and T-Mobile only.
Mr. Igoe asked Attomey Sousa if they would need a I l0ll tower if they rvere only providing
coverage for AT&T and T-Mobile. Attoney Sousa failed to respond to Mr. lgoe's questioD and
instead stated "We want to be able to rnaximize revenue ou this site." lt appears that the
Petitioner is seeking the construction of the 110 ft tower for not only AT&T and T-Mobile but
.o ,'io ,t
"y
t *" ,h"e ability to solicit additional cariers in the future for this site.
Mr. lgoe asked Attorney Sousa if they had made anyirrther attempts to contact the owners of
ii"i. !"""p"Ur" altemaiive sites, including the Skuli lsland property owners, as they agreed to at
iit"'p.i"ii"".irg. Attomey Sousa stated that they had not and confessed that to agree to an
altemative site other thall the one proposcd wouid require them to start the process all over again,
,fiui,ir"V *"t. unwilling to do thai, and the only site that they would be pursuing is the one
before the Board.
The Board then received comments from the public. No one spoke in favor of the project.
Richard Neitz ofSouth Yannouth expressed disappointment that the Town has not offered
Town-owned property as an alternative site to this location and that the Petitioner did not do
enough to expiori altlmative Iocatio[s. Mr. Neitz questioned whether the lease with the propcrty
oivne; (Our iady ofthe Highway Church) covers the entire site. The Petitioner responded that
tSere is a lcase tbr thc exact location ofthe parcel rvhere the tower is to be located, not the entire
church property.
Case 1:23-cv-12334 Document 1-1 Filed tOlLOl23 Page 6 of I
Attorney Jatnie Veara spoke on behalf of Davenpod Realty Trust ancl stated that the application
does not meet tlre critcria for a special penril and that the tower is bolh an undue hazatd and
nuisance. He reitcrated the Board's concenrs that the ccll tower rvas located within the required
fall zone and that it had tlie potential to fail and fall. He reminded the Petitioner that rvhile they
rrray not have concenls about the cell torver falling, that's the reason the by-law requires a fall
zone.
Hc also cited a May 23, 2021 and August i. 2021 report to the Cape Cod Conrmissio[ (CCC)
where the needs of the carliers were analyzed and lvhich stated that the needs of both AT&T and
T-Mobile could be rnet by the existrng 276 ft. XTK tadio tower in West Yarnlouth and the
Whites Path tou,er in South Yamtouth. and/or altcrnative locations, and tlrat the Consultant's
(Maxson's) reports that were submitted to the Cape Cod Cornmission should be part of tltc
rccord.
Mr, Igoe inquired whether AT&T and T-Mobile could use tlre existing XTK radio tower in West
Yannouth along witlt a combination ofstnaller towers to solve the "Cap Coverage." as opposed
to constructing the proposed I l0 ft torver'.
Attomey Sousa replied, "That would be a ditferent analysis," otherwise he failed to answer the
question.
Mr. Maxson interjected and stated that the Petitioner could solve their "Coverage Gap" by using
the existing XTK radio tolver along rvith a combination of smaller towers.
Attorney Sousa stated the other sites were not suitable and explained that this is the only viable
location to accommodate colocation and addrcss the gap. When asked ifthe proposed tower
would satisfy the entire coverage gap, Attomey Sousa responded that it would fill rnost but not
Case !'.23-cv-12334 Document 1-1 Filed LOtLOl23 Page 7 o{ 9
allofthegapitrcoverage-WherrpressedbytheBoard.AttomeySousacorrcededtlrat..noneof
these networks work perfectly. ti'carnot fiil an entire gap. Ifyou allowed us to build a 150 ft.
iow.. or I 90 ft. to*ei. I believe we could cover that gip south of Rte. 6, but not at I l0 ft."
TheevidenceandtestimonySuggeststhatthecaniersthemselr,eswlroactuallyprovidethe.
"ou"rug"
*oufa have alteniativei to the proposed site to meet their coverage needs and that it's
,rror" u a*" of ttte Petitioner Blue Sky Towers' desire to construct a cell tower' than an
i,r,f".utiu" n"ed for the carriers to have a tower at this location. As the Petitioner stated Blue Sky
Towers owns the tower, the carriers arc mercly their tenants'
Mr. tgoe asked if the proposal meets the criteria of the bylaw without obtaining the requested
waivJrs. Attorney Sousa responded that it did not, but that he believed the Board must grant
theln.
Mr. lgoe closed the hearing to public discussion and asked for Board deliberation'
The Board expressecl dismay that the Petitioner was unrvilling to purcue or consider altenrative
and more suitable sites fol not only the I l0 ft. towel, but also shofter yet more numerous
rnonopole cell towers that would be less noticeable and could be placed in more suitable
locations. Additionally, the Board felt that the Petitioner failed to do their due diligence in
seeking alternative sitcs and to also take into account the TowD's overwhelming opposition to thc
project at its proposed location.
The Board was in agreelnent that the Petitioner had failed to meet the cnteria under Section
103.2.2 ofthe by-law thal states. a special pemrit shall not be granted unless the applicant
demonshates tlrBt no undue nuisance. hazard or congestion will be created and that there will be
no substantial harm to the established or fi.rture character ofthe neighborhood or torvtr.
Thc cell torver as proposed rvould be located right along the Rte. 28 corridor in the heart of (he
town. At I l0 ft. tall, it's 3 tirnes the allorved height in the zoning district, and its 3-sided
towcring mass rvould have an overbearing visiblc and negative impact on the sm.1ll busincsses
and resitlential properties that rnake up the imrnediate zoniug district. lts presence would be
colnpletely out ofcharacter with its suroundirrgs and visible from almost every sight line.
Moreover, ifbuilt. it rvould create a potential dangel to the puhlic due to bolh the adjacent
church parking lot as rvell as a lesidential propcny to the tlortlteast being located lvithin the
proposed cell torver's lall zone.
The Petitioner is not entitled to the }vaivers they seek for the tbllowing leasons:
Section 408.7.8 Fall Zones states, Corntnunication towers, rvhether fiee-standing or part of
another shucture or building, must be set back frorn all property lines by at least the total height
of the tower structure and its appearances.
The cell tower as proposed fails to meet the fali zone rcquirenlents in that 50% ofthe church
parking lot and approximately 3l ft. ofthe residential property to the Northeast are located
Case 1:23-cv-12334 Document 1-1 Filed 7Ol7Ol23 Page I of 9
within the Petitioner's fall zone. This violates the requirements ofsection 408.7.8 and would
create a potential public danger and hazard.
Section 408,7. I , "Only self-supporting tnonopole type towers are pennissible.
The Petitioner is seeking a 3-sided cell tower, not a nronopole type tower. This is not pennissible
under the by-lau,. In order fbr the Board to grant such relief the Petitioner u'ould need to seek a
variance. The Petitioner has not requested variance relief.
408.7.5.1 General. All communications facilities shall be designed and sitcd as to have ths least
adverse visual effect on the environment.
The Petitioner's proposed 3-sided cell tower is ll0 ft in hcight, would be highly visible, and
nearly unobstructed frorn every dilection. [t rvould have an overwhehning presence, tower high
above every building and tree surounding it, and would be impossible to hide or camouflage. [f
constructed, it would no doubt have an adverse effect on the environrnent.
408.7.5,1 Scenic Landscapes and Vislas- Personal Wireless Service Facilities shall not be located
rvithin open areas that are discernable frorn public roads, recreatiorral areas, or residential
development.
The proposed cell tower is located adjacent to a church parking lot and right along Rte. 28 at one
ofthe Town's busiest intersections. lt would have little. ifanything, obstructing its vierv and be
unavoidably visible from all roads and sight lines that surround its location.
408.7.6. I Height, General. Regardless of the type ofmount. Personal Wireless Selvice fhcilities
shall be no highe'tlran ten tbet above rhe average height ofbuilclings within 300 feet of thc
proposed t'acility.
The proposed cell tower would project approxrrnately 70 ft above the average building hcighr
wirhin 300 ft.
408.7 .6.2 Height, Cround Mounted Facilities. Gmund-rrrounted Personal Wileless Facilities shall
not project higher than l0 feet abovc thc average building height or, ifthere are no buildings
within 300 feet. lhese facilities shall not prqect higher than I0 feet above the average tree
canopy height.
The proposed celltower would prqect approximately 70 ft. above the aver.age huilding height
and 80 ft. above the tree canopy at its proposed location.
The Petitioner's proposed cell tower at its proposed location runs contrary to the purpose and
intent ofthe by-law as discussed above. Moreover, to grant the rvaiverc rvould result in an undue
nuisance, hazarcl and cougestion and rvould create substantial hann to the established and/or
futute chalacter ofthe neiglrborhood and town. For these reasons, th€ Petitioner is not entitled to
the waivers that they seek.
Case 1:23-cv-12334 Document 1-1 Filed :I)l7ol23 Page 9 of 9
Mr. Marlin lnade a motion to approve the Petitiori as requested.
Mr. Fraprie seconded.
The Motion to approve the Petition failed as the Board voted 0 irr favor and 4 against'
Therefore, the request for the Special Pennit was denied. The grounds for denial are based upon
the Board's findings as set forth above that the Alternative Site Analysis was not tlrofough and
that there are valid altenratives available for the siting ofthis facility. The Board also found that,
for the reasons set forth above, thete are substantial public health and safety concems regarding
the presently proposed location.
Sean lgoe, Vice Chair:nan
CERTIFICATION OF TOWN CLERK
l, Mary A. Maslorvski, Town Clerk, Town of Yannouth, do hereby certiry that 20 days have
elapsed since the filing with rne ofthe above Boald ofAppeals Decision #5005 that no notice of
appeal of said decision has been tiled rvith me. or, if such appeal has been filed it has been
tlisnrisscd or denicd. All appeals havc been cxhausted.
Mary A. Maslorvski. CMC
;5r
Case 1 :23-cv-123Ltfqg'EnfffifSfrb$'frtLotz3 Pase 1of 1
Is a4 (R4. I (r20)
Thc JS 44 civil covcr shcct 3od lhc information conuincd hcrcin ncithcr rcplacc nor suPPlcmcnt rhc filiDg and scrvicc of Plcadings or olhcr Papcr as rc4uirci b) law, cxccPt as
providcd bY locrl rulcs ofcourl Thi6 fonn. .pFovcd bY thc ,udicial Confctcncc of thc Udrcd Slslcs in Scptcmbcr 1974, is rEquircd for lhc usc of thc Clcrk of Coun for thc
pufPosc of rhc civil dockci shcct (JE INSTRUCTIONS ON NEXI P,|GE OFTHIS FoR)'t )
DEFEND ANTS
r. ()a Town of Yarmouth
Board of APPeals
countv of Rcsidcncc of Flrsl Listed Dcfcndanl
ttN It \ PLAlllTlFF C'.SFS** H,tffi3fl5P',IN3HR)3[ffi8:'"'
, MA; Members of Town of Yarmouth
Blue Sky Towers lll, LLC d/b/a BSTMA lll' LLC
(b) countv of Rcsidcttc4 of F|'3r LilEd PlaiDtif
IEXCEPT N U,S PUNNFT
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THE LOCATION OF
CIPAL PARTIES /P/oc. on.x in oa' Eorlot
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II. BASIS OF JIJRISDI CTION tn,"e. "x" ^o^' BqontY)
!t u.s. covcmmcnt El rcdcat Qucnion
(U.S GNM| )ht a PddY)
I-'l z u.s. c-'tnrm-r E 4 Divc ity
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IV. NATI'RE OF SUIT
Ba rn
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(c) ltomcys lrria lvoo ., Addt tt' @d T'hPton' ttuaba)
Michael S. Giaimo and Danielle Andrews Long
Robinson & Cole LLP, One Boston Place, Fl 25' Boston'
CITIZENSEIP OF PRIN
(Fu Di@iry Cda Onlt)
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VI. CAUSE OF ACTION dcscription ofcsusci
V . REQUESTED IN
COMPLAINT:
VIIT. RELATED CASE(S)
IF ANY
Boad's doikll nf a special P€fiit
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UNDER RULE 23. F,RCV P
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CIIECK YES only if dcmandcd in complaint
JURY DEMAND:
DOCKET NUMBER
OTHf,RSTATUT'SBANKRUrTCYFORFEIT(JnfJPENALIYToRCONTRACT
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l 422 Appal 2E USC I Jt
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DATE
october 10. 2023
Case 1:23-cv-12334 Document 1-3 Filed lOlLOl23 Page 1 of 1
UNITED STATES OISTRICT COURT
DISTRICT OF ITTASSACHU SETTS
1. TlUg of casc (n.rE ot t,st p€rty on each sido
Town of Yarmouth, MA et al.
Blue Sky Towers lll, LLC d/b/a BSTMA lll, LLC v
2. Catego.y ln whlch the cr6a bolmgs br*d upo.r th. numbored nlturt ot 3ult cod. listgd on th. civil cowr 3hocl. (566 local
rule 'o.l(.Xr)).
./
t.
[.
It.
l60, ,OO,4lO, ,141, 535, &!O', E35', E50, 880, Egl, Eg3, R23, REGARDLESS OF NATURE OF SUIT.
tlo,l3,,l9o,t96,370'3t5,37a'4o,42.11l.45,46,48,17o,751'E20.,8,.l,.,695'E96,899.
't20, 1,1O, l5O, 151, 152,153, 195,210,221r,230,2lo,2,l!',290,310,315,320,330,3to,3'45,350,355,360,362,
365, 367, 358, 371, 3&),385, a22, a7,3,110, a50, i180, ,a52, 4{iil, 455, 480, il8s, i190, 510, 530, 540, 550, 555, 560,
625, 600, 7r0, 720, 740,
'90,
791, 861.865, 870, 871, 890,950.
'Aso cofi pleta AO 1 20 o. AO l 2t. fo. p.ter, A.demlrk or copyright cases.
1.ln thlg
NO
5. Do€ the complalnt in lhis c.so quostion tho constltutlonallty ot an Ect of congrslr attocllng the publlc interest? (Sec 28 USC
t24031
YES
lf to, ir the U.S.A or !n .rtrlcor, .gd or amployee ot the U.S. a larty?
YES
6, ls this case ,rqulrad to bo horrd rnd dqtermined by . . .trlcl coun ol three ludgsr
YES
r'
7. Do d! ol lho pr,tles ln Orit NG0on, orcludlng golrrnmantrl rgsncies of lh. Unlted Statgs tnd the CommonwGrlth of
uassachus.lB ('goysmmcntal rgEncica"), r6siding ln U.stachusetb reside ln
YES
Loc.l Rule {0.1(d)},
It ye3, in whlch ol the non.qovommontal roslde?
E'rtern Oivision C€ntlal Oivisioo W.storn Division
lf no, in whlch dlvlrlon do the risrori9 of fhe plaintifi. or tfte only psrde3, ercluding gorommental agencies,
rotiding in Gsachusotls 6sld.?
Eartern Dlvision Wcslern Olvision
E, ltfillng! Notss ot Rcmo!.a|. are tft€r€ rny modons pondlng ln tie st9te court requlrlng lhe attenton ofthls Court? (lt yes,
subrdt a separ.to sh.et ldcntl$ng the motions)
YES NO
(PLEASE TYPE OR PRINT)
ATToRNEy.s NAt E Oanielle Andrews Long
H8s a prl{ acdon bctwean the same partle3 and balad on [re $m€ clalm awr bc
*, flr
NO
NO
to title 28 USC 5228.?
t{o
dM3lm? .
NO
lpsREsg Robinson & Cole LLP, One Boston Place, Floor 25, Boston, MA 02108
TELEPHONE NO 617-448-4598
(Cat.go.yFoml 1-2020.wpd )
3, Tit e .nd number, lt any, of.Blatod caals. (Sae locll ru|. ,O,l(g)). f mors lhlrl oo. pdor rllat d caso hlr been tllcd in this
dllHcl pleara lndiclte tha tlua lnd numbor ot tho fir3t lllsd care ln lhis cou.t,
None
tr
tr
B.
T Csntrat Otvtslon E tr
tr tr
rs14 (Rev.ro,r20) Case l:23-cv-123Qffrg"UtffiIi3sEt[|.l0/10/23 Page l of l
providcd by locel rulcs ofcoort Tlis fo!m, approvcd by thc rudicisl CoDlocrcc of thc Unitcd Starcs in Scptcmbcr l9?4, ir rquircd for thc usc oftbc Clcrt ofcourt for thc
purposc of iniriatiD8 rhc civil docld.hccr. (sEE INSTRUCTiOL5 oN NExf PAoE oF THIS FORM.)
I. (a) PLAINTIFFS
Blue Sky Towers lll, LLC d/b/a BSTMA lll, LLC
(b) County ofRcsjdcocc ofFirst Listci Plairtjff Middlesex
(EXCEPT N U.S. PI2IINTIFF CASB)
(c) A[omeys /rrrd Na'e ddEB, aDd T.t.pton N'tnbo)
Michael S. Giaimo and Dsnielle Andrews Long
Robinson & Cole LLP, One Boston Place, Fl. 25, Boston,
II. BASIS OF JURISDICTION rPioeo "x' in o e Bar ontr)
!t u.s. covc"',narr
Phiolill
E]r r.aaat Q*.r;o.
{U.S Aowat lbt. Paiy)
!2 flr oimity
(Iddl@te Ctuiu8hip ofPrtti.s i,It.n 0
Citiz.n ofAmth.r Sl,l.
IV. NATURE OF SUIT
DEF'INDANTS
Town of Yarmouth. MA; Members of Town of Yarmouth
Board ofAppeals
Cou y ofResidcnc. ofFi6t Liltcd Dcfcbdant Barnstable
(N U-5. PL NT|FF C4SES ONLY)
NoTE: IN LAND CONDEMNATIoN CASes. USE TIIE LOCAnON Ot
THE TRACT OF IAND INVOLVED.
Anorncys (tf K,o@)
In. CITIZENSHIP OF PRINCIPAL PARTIES pao o, "x" io o"" to,1o, ct.i,ri1J
(Fot Dwtity cdra a,ty) end o,. Doxlq D.kdddlt)
DET DET
E I E t Incoryor.rc.l o, P'i.ciprt Pl..G
ofBurirE-s Ir Tlft Stntc
Ei
!5
!5
Ir
DJ
E5
O2 E 2 IEorpor,rld ad Primaprl Pla..
ofBulinds In Amlhcr Shtc
Cl E: ForEisD N.tim
Click herc for:
E 152 R.covcry of Dcfaull.d
(Excludar vcl6!r,
E I5l Rc.oEry of ov!'rynEnr
lm Mui|l.
l30Mill!!Acl
I40 Nlgori.blc lrlEuEcnt
150 ReoEry ol Ov.rFymlr
ofVncr&" B.rctia
160 Sroc$oldes' Suic
190 Oth.r Coniat
I95 Cdlnd Prcducr Li.bility
l?5 F.lsc Chimt Acr
3?6 Qui TM (31 USC
312e1.))
400 SI.t. R@pponiomor
430 BtrL! rnd Bantiry
460 Depodltion
470 Ral.l..r Intlu.Rd rld
conuDt Org!,li,rtioDt
4t0 Conrs.r Crdit
(l5USC 168l or 1692)
4E5 T.bpnm. CorsullEr
490 C.ble/Srt Tv
850 S.curiti6/co modidc,
t90 Olha Sr.tulory adios
E93 EnviroDrD.nral M.ft r
895 ir.ldom of Infomqi@
t99 Administrrtiv. Pr@edul!
AtuR.view or App..l of
950 CoBxturic8lity of
2t
230 R6t L..s. & EjcdrEnt
240 Torr to brd
24S Ton Preduct Lirbility
290 All Olh.r R.al Prcp.rty
V. ORIGJN fsaca - r in o,c a6 onb)
filt Origin l Tl2 Rcmovcd fiom T-l I RcrhaDdcd from T-l4 R€iostarcd or Tl 5 Transfcrrcd from Tl 6 Multidi6Eicl fl8 Multidisrricr
" Procccding " Slarc Coun Appcllrrc Coun - Rcopcncd - Aoothcr DisEict - Lrhgalion - - LitiSauo! .
6p"cilg Transfcr DircctFile
Cilc thc U.S. Civil Slatule under which you arc filing (Do rot clh ),.dsdi.n6d statuE Mt6' ctqrsitr)
47 U.S.C. Sec. 332 ederal T€l€€ommunicalions Act of 1996!,I. CAUSE OF ACTION
vII. REQUESTED IN E cHF-cK IF rHIs IsA cl^ss AcrIoN DEMAND s
COMPLAINT: T NDER RULE 23, F.R.cv.P.
Brief dqoiption of carse:
TCA A6tbn clEll€rEhg tho Boad's d€oal of a gpeclal p€Irnil icr construclron end operalion of a wlrEl63s communicstion lacflily.
CHECK YES only ifdcmandcd in complaint:
JURYDEMAND: !v"s Euo
I!Tr
CONTXACT TOXTS TORFETTUN.f,/?ENALTY E NKRUI'TCY OTHER STATUTES
422 App.ll 28 USC 158
E
28 USC 157
f ozs o-g n.bt d s.i*
of Eop.fy 2l USC EEI
J690orh.r
I-ABOR
820 Coryi8htr
t30 P.Lnr
Els Prl. - Abbrcviatd
Ncw Dro8 Applicrtion
E40 T6&rM*
880 Dcf6d Tr.dc Secrea
Acr ofz0l6
Il()C.Ir.L SEC ,BITY
PERIiONAJ- INJITRY
E 165 PGr'oBl Itrjury -
PD&ctLirbiliw
fl rei xotrt' c.er
Pbamcrraicrl
Pr3erl Inj'ry
Pmducl Lisbility
Tl l{d A!h.'rc PcrMl
lnjury P,sdu.t
Li.bility
PERSONAL PROPERTY
Ulbility
310 Mnin
145 M.rift PrDdEr
Lirbility
350 Molor Vchicle
355 Moror Vchicl,.
P'odlcl Ulbility
tII
E
ll
Pf,RSONAL INJI]RY
310 Anpbr.
Li.biliry
J 320 As5.ulr, Lib.l&
J 3lo F.d.6l Fiploy.r''
] 360 OttE Pcnon l
tnjury-l !52 P.ltdl lnju'y -
- Mcdidl MrlDrIricc
fl 385 PoFrty DM.sc
Prcduct Li.tiliry
370ofi.rFr|ud
l7l Tlurh iE L.nding
REAL PROPERTY CryIL RIGITTS PRISONER PETITIONS
E5r HrA(1395tr)
E62 Bler Lug (923)
E6! DIVC/DIWW (405(g))
854 SSID Titl. X\/I
t55 RsI (405(&r)
FfItEP I-? t
I ? l0 F.n L,bor Sb.d6rd!
] rzo uurna"o.6--r
?40 tuilw.y L.hor A.l
7t I feily ed Mcdidl
?90 Olla t:bor Lirigltim
?91 Esploycc R.ti. dl
lnco@ SeriIy Acl
=
l
I ]1IM IGI'A'I'ION
53OGh@l
535 D.r!h P6.lly
540 M.rdrms & O(ha
5S0CivilRiEllts
560 Civil D.6in . -
E
E
l {62 N.trrrliz.rid AppliQtior
465 Orhd lBmiSnli
fl t70 r.'6(u.s. PLiDdfr
or D.fddr.o
n s7r lRs-Third Piry
26 USC 7509
,l4O Oth.. Civil Rigbrr
1"41Hcia8/
J aa5 AreL u/Dir.bilirict -
I +rc eri,. -"rw"titrrio
-
olnc'
] *t rauotm
-ll
VIII. RELATED CASE(S)
IF ANY ruDGE DOCKET NUMBER
rOR O}T,ICE USE ONLY
RECEIPT 'AMOUNT APPLY'ING IFP ,L'DCE MAC. JLDGt
DATE
Octob€r 10. m23
SICNATURT OF ATTORNEY OT REC]OR.D
/s/ D8nislls Andr6ws Long
J
l
Case 1:23-cv-12334 Document 1-3 Filed 701L0123 Page 1 of 1
UNITED SIATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
1. Tltla of crse (name ot flrst patty or e.ch sldg
Town of Yarmouth, MA et al.
Blue Sky Towers lll, LLC d/b/a BSTMA lll, LLC v
2. Catego.y an whtct the crle bclongs blsed upon the numborod naturc ot sult cod6 listed on the civll cover shect. (See local
rulo ,O.r(ax'))
r'
t. 180, {lO, ,110,,L1,535, t30" 6:15" Es{r, EEo, Egl, 83, R.23, REGARDLESS OF NATURE OF SUIT.
[. 'tt0, l3t , 190, 106, 370, 375, 376, 440,U2,11:t,1{5,146,14,41O,751, A20',W,895, 896, 699.
t.
3, f e and rumbor, if .ny, ol lElabd crro3, (Soe loc.l rulc il(,.t(g)). It more lhln onc prio elrted c.s9 haa been tlled ln this
dlrt lct phrs€ lndrc.t thc Sdo .nd nun6o. ot th. llrll tiled clso in thit court.
None
4. Ha! a prlor aqdm botween th! aanE parfe. and ba!6d on tho sattre clalm er,w ln thl!
YES NO
5. Doot th€ comphlnt in this case que.tlon th6 cmrtitudorallty of an lct of congro$ .fiecllng the publlc lnterest? (See 28 USC
52403)
YES
lf so, ls lho U.S.A" or.n o,fllc.r, .g.nt or employlc of the U.S. e p.7tta
YES
6. 18 tilr ccc raqulnd to ba h!.rd md dlt€rmin€d by a dlshict court ot thre€ iudges
Yts
7. Do d! of the Prrtigs in thl. lcuon, excludlng govlmmGntal rgen€ieg ot the United State3 and the Cornmonwealth of
't20, 1!o. f50, 151. 152,15i.195.21o.2m,23o,2A,245,290,310, 31s, 320, 330, 340, 34.5, 35q, 355,,350,.362,
l
365, 35"r, 368, 371 , 39, , 3t5, 12j2, 123, 130, 1$. a60, ,a62, a6ll, 465, 480. 485, ilglr. 5l 0, 5:lO, 5,40, 59,, 555, 560,
425,690,710, f2o,710, 790, 791, 861.865, E70, 071, 890, 9s0.
'Aso conplcte AO 120 or AO 121. for patont, t .denErk or copyright c.ses.
NO
to tltle 28 USC g22u?
NO
NO
MaE lcfiurottr ('govrrnm.otrl sgenclGs"), I.sidlng in Ursrlchu5ott3 resldo tn thof,o dtvtaton? -Local Ruls 40,'l{d)).
A" ll Fs, ln whi.rr
Eastern Oivisaon
B.
of tho non-got emrtreot l
Ccntr.l Olvision ri"""'*'Western Dlvision
lf no, in whlci dlvldm do tho mEjgrity ot the plsin0trt or th€ ooly parts, sxcluding gowmmental agencies,
rcslding in irllsachu3otts reslde?
E.6!em Oivi3lon Contr.lDlvision Wcsterr Division
L lf tlllno r Nodco of R.mov.l - arc lltero Eny motions pending ln the state court requlrlng the altontion oI thls Court? (lt ycs,
subn l a sop.r.t sheot identifydng the motlorE)
YES NO
(P|.-EASE TYPE OR PRTNT)
ATToRNE\.S IAHE Danielle Andrews Long
lpspss5 Robinson & Cole LLP, One Boston Place, Floor 25, Boston, MA 02108
TELEPHONE NO. 61 7-448-4598
(C.t.so.yFom'l l -2o20.wpd I
tr
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