Laserfiche WebLink
Case 1:19-cv-12333 Document 1 Filed 11/13/1.9, Page 19 of 21 <br /> 154. Where the denial lacks substantial evidence; the denial violates the TCA under § <br /> 332(c)(7)(B)and must be vacated. <br /> 155. Blue Sky is entitled to judgment ordering the issuance of the special permit necessary for <br /> the development of the Proposed Site. <br /> COUNT II <br /> Violation of 47 U.S.C. §332(c)(7)(B)(i)(II) <br /> Prohibition of Wireless Services <br /> 156. Blue Sky repeats and realleges paragraphs 1 through 155 as if set forth fully herein. <br /> 157. The TCA provides in relevant part,that[t]he regulation of the placement,construction,and <br /> modification of personal wireless service facilities by any State or local government or <br /> instrumentality thereof...shall not prohibit or have the effect of prohibiting the provision of <br /> personal wireless services." <br /> 158. An applicant may prove an effective prohibition based upon a single land use decision and <br /> a blanket ban is not required under the Bylaws. <br /> 159. To prove an effective prohibition,an applicant must prove that there is a significant gap in <br /> wireless services in the area, and that there are no feasible alternatives for providing coverage to <br /> the area of the coverage gap. <br /> 160. In this case,Blue Sky has provided propagation studies,drive test data,which has all been <br /> reviewed and confirmed by an independent wireless expert retained by the Commission to <br /> demonstrate that there is a significant Coverage Gap for two national wireless service providers, <br /> Verizon Wireless and T-Mobile. <br /> 161. It is well-established in this Circuit that propagation studies and drive test data are highly <br /> probative evidence. . <br /> 162. While Blue Sky had the initial burden to prove the absence of feasible alternatives, under <br /> binding First Circuit precedent,there are limits on a municipality's ability to insist that Blue Sky <br /> keep searching. <br /> 19 <br />