The plaintiff, T-Mobile Central, brought this action against the Town, claiming the denial of a land use approval was not supported by substantial evidence and had the effect of prohibiting cellular service in the area in violation of the Telecommunications Act of 1996. Further the Plaintiff claimed that the Town violated the Michigan Zoning Enabling Act. The United States District Court for the District of Eastern Michigan granted T-Mobile’s motion for summary judgment.
The district court first addressed whether the denial was supported by substantial evidence. In accordance with many circuits, the Sixth Circuit defines substantial evidence as that which is relevant and adequate for a reasonable individual to base their determination upon. Once the locality has identified its basis for denial, the court noted, the burden is upon the wireless company to show the supporting evidence did not meet the standard. Here, the Town based their denial on the grounds that the tower would adversely affect neighborhood aesthetics, that T-Mobile did not produce an aesthetically pleasing structure, that a 70 foot tower would be preferable rather than 90 foot, that the Zoning Ordinance states such towers in residential areas would harm the character of the neighborhood, and that T-Mobile has not shown sufficient need. The district court held that the Town’s reasoning was not based on substantial evidence, noting that the Town could not use aesthetic concerns to constitute such. Although substantial evidence was found in another case where 150 people signed a petition and presented a formal opposition paper, the court said here there was no petition and only five community members voiced general and conclusory opposition to the tower. Additionally, the height concern was not supported by substantial evidence as the Town’s ordinance required tower design to accommodate co-location of carriers, and T-Mobile had illustrated other carriers could only co-locate at the 90 foot height, and no shorter. Further, the Court said that the Town provided no evidence illustrating the proposed tower would have the effect of harming the character of the neighborhood. Lastly, the district court found T-Mobile had shown sufficient need, contrary to the finding of the Town, since T-Mobile provided uncontroverted evidence showing the increase in coverage through the use of the location. As such, the district court found that all five of the Town’s grounds were not supported by substantial evidence.
Next, the court considered whether the Town’s denial resulted in a prohibition of wireless service in the area. To make this showing, T-Mobile had to demonstrate that the Town’s denial had prevented the closing of coverage gaps and that further reasonable efforts taken by T-Mobile would be fruitless and a waste of time. The Court determined that T-Mobile had shown that the current site was the only one available given that two other locations would not work, as one would not meet coverage needs, and the second was futile as the owners would not lease the property. Additionally, T-Mobile illustrated that the proposed location was the least intrusive approach given there was already a tower on this site, which would be replaced. The Town did not provide alternative sites, thus they did not met their burden to refute T-Mobile’s claims.
T-Mobile Central, LLC v. Charter Township of West Bloomfield, 2011 WL 1299357 (U.S.D.C. E. Dist. Mich., 3/31/2011)
The opinion can be accessed here
