In a ruling in the case of OMNIPOINT COMMUNICATIONS, INC. V. CITY OF NASHUA and CITY OF NASHUA ZONING BOARD OF ADJUSTMENT (Case No. 1-07-cv-00046PB, before Hon. Paul Barbadoro of the US District Court in the District of New Hampshire), the City has won it’s summary judgment motion.
From the Judge’s decision:
“Omnipoint Communications, Inc. (“Omnipoint”) alleges in this ction that the Nashua Zoning Board of Adjustment (“ZBA”) mproperly denied Omnipoint’s application for a special exception o construct a wireless telecommunications tower on property ocated within a 220-home residential development known as Coburn Woods. Omnipoint’s complaint consists of three counts. Count I s a conventional appeal from a decision of the ZBA brought ursuant to N.H. Rev. Stat. Ann. § 677:4. Omnipoint claims in Count II that the ZBA’s decision violates the Telecommunications Act of 1996 because the decision is not supported by suubstantial evidence. See 47 U.S.C. § 332(c)(7)(B)(iii). It argues in Count III that the decision violates the Telecommunications Act because it effectively prohibits the provision of personal wireless services to the area that would be served by the proposed tower. See 47 U.S.C. § 332(c)(7)(B)(i)(II). The parties have submitted cross motions for summary judgment with respect to Counts I and II. For the reasons that follow, I grant the ZBA’s motion for summary judgment and deny Omnipoint’s cross motion for summary judgment. “
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