Posted by: Patricia Salkin | November 24, 2008

Special Use Permit Denial Not Based on Substantial Evidence in Violation of the Telecommunications Act

T-Mobile filed an application for a special use permit to construct a 120-foot tall telecommunications tower to provide residential and vehicular cell phone coverage in the vicinity of the proposed site. The application discussed alternative sites, ruling them out for various reasons. The applicable zoning code sets forth five factors to be considered when reviewing special use permit applications, and with respect to the siting of telecommunications facilities, the code specifically provides that “commercial districts are generally preferred over those in residential districts as are sites in less restrictive residential or commercial districts generally preferred over those in more restrictive districts.”  The planning staff recommended denial of the permit finding, among other things, it would be tallest structure in the neighborhood, it might be considered “unsightly” and staff expressed doubt as to whether there was sufficient deficiency in cellular service.  The Planning Commission recommended that the application be rejected, and subsequently the Unified Government Board of Commissioners denied the application citing the following three reasons: 1) T-Mobile failed to show that denial of the application would prohibit the provision of personal wireless services; 2) the proposed 120-foot tower was not the “least intrusive means of fulfilling a gap, if any exists,” in T-Mobile’s services; and 3) based upon consideration of factors for considering special use permits articulated by the state courts that must be applied.

 

The 10th Circuit Court of Appeals held that the unified city/county government’s denial of the special use permit violated the Telecommunications Act as it was not supported by substantial evidence as a zoning decision “in the context of applicable state and local law.”  The Circuit Court did not reach the issue of whether the decision had the effect of prohibiting wireless service.  Among other things, the Court said that the Board went beyond the considerations set forth in the zoning code to require the applicant to show that denial would prohibit personal wireless service and that the tower is the least intrusive means of fulfilling a coverage gap.  The Court explained that “by inventing a criterion for which the applicable local ordinance did not provide, the Board failed to act on the basis of substantial evidence.”  Further, the Court determined that Board’s application of the required factors under state common-law was not supported by substantial evidence.  As a result, the Circuit Court upheld the holding of the trial court with respect to the Board’s failure to satisfy the substantial evidence requirement of the Telecommunications Act.

 

T-Mobile Central, LLC v. Unified Government of Wyandotte County, 2008 WL 4900180 (C.A. 10th Cir. 11/17/2008)


The opinion can be accessed at:
http://www.ca10.uscourts.gov/opinions/07/07-3332.pdf 


Responses

  1. Local municipalities can oppose cell tower construction based upon the safety of those towers. Too often, concerned citizens fear for their health when learning about a cell tower that is going up nearby. The FCC, EPA, and OSHA recognize that Radio Frequency Radiation (RFR) as a hazard. However the risk to the general public is almost nonexistent. The risk to roofers, electricians, HVAC repairmen etc is very high due to the proximity of the transmitting antennas to their work areas. Local governments need to be aware that if a third-party worker (someone not employed by the cell phone service provider) is over exposed to RFR, the local government may be held partially liable for allowing that antenna to be built.

  2. We have an issue before our planning board that requests an 85′ “flagpole” type tower be erected in a parking area of a gas station, less than 60 feet from the gas pumps. Could the planning board considder this as a potential serious hazard and have a decision upheld by the courts? Has anybody had to deal with a similar application?


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