Seeking to build a cell phone tower, disguised as a 150-foot flagpole, on an abandoned restaurant site, the company entered into discussions with the municipality. The village indicated that the company could obtain expedited approval to build the tower on village property, but that approval would not be granted for the private site. The company thought that the terms for renting the village property were unreasonable and paid a $2,000 fee to apply for permits on the abandoned restaurant site. The village denied the application, and the company submitted a revised application, again paying the fee. The second application was also denied, this time the village indicated that the plan did not comply with setbacks, included inadequate screening, did not show required parking, and did not address security issues. A newly formed board of adjustment adopted findings that had been prepared before the hearing and denied a variance from setback requirements.
Ruling on a motion to dismiss, a federal trial court dismissed claims that the village violated the Telecommunications Act, 47 U.S.C. §§ 332 (c)(7)(B) and 253(a), by effectively prohibiting provision of wireless services or by discriminating against wireless providers (§332 (c)(7)(B)), but refused to dismiss claims that the denial was not supported by substantial evidence. The company did not prove or even claim that the village’s requirements were impossible to meet or that there were no alternative sites. While the village makes it easier to build a tower on village property, there was no evidence that village policies favored other service providers in violation of the Act.
Because the court did not have a record of proceedings from the denial of a variance, it declined to dismiss a claim that the village misapplied its requirements. Stating that equal protection and due process claims (42 U.S.C. § 1983) are not subject to the same exhaustion of state remedies requirements as takings claims, the court declined to dismiss those claims as unripe. The company alleged that village policies irrationally favored providers willing to locate towers on village property, and it adequately alleged that it had a property interest in permits because it complied with applicable regulations when it submitted its applications and that the hearing on the variance was a sham, depriving it of due process. The court also declined to dismiss substantive due process claims and claims alleging violations of the state administrative procedures act.
USCOC of Greater Mo., LLC v. Village of Marlborough, 2009 WL 1176282 (E.D. Mo. 4/30/2009).
This abstract is based on one appearing in Planning and Environmental Law vol. 61, no. 7 (July 2009)
