Posted by: Patricia Salkin | March 8, 2011

Federal Dist. Court Upholds County’s Denial of Application for Cell Tower

T-Mobile filed action for injunctive relief, alleging that the Cobb County’s Board of Commissioners’ denial of their application for a Special Land Use Permit to construct a 135 foot tall cell phone tower was not supported by substantial evidence and thus violated their rights under the Telecommunications Act of 1996 (TCA).  The tower, which T-Mobile stated was needed to meet its coverage goals in the area, was to be disguised as a pine tree on property owned and occupied by a local Episcopal church in a zone that restricted structures to no more than 35 feet in height.  After hearing evidence submitted and considering the planning and zoning Ordinance and the Commission’s recommendations, the Board issued a written opinion denying the application because the tower was a commercial intrusion incompatible with the residential area and that T-Mobile failed to show a new tower was required or that the existing service was unsatisfactory.  

The federal district court in the Northern District of Georgia ruled in favor of the County holding that the evidence opposing the Application, which included adverse impacts on property values, went well beyond general aesthetic objections.  The report on the economic impact offered by T-Mobile was not credible because it centered around homes constructed around pre-existing cell towers and did not indicate the affect the tower had on home values in the area.  The test for local impact on residents was also flawed as it did not fully evaluate the view of the tower from the backyards of the closest homes.  The Court declined to second guess the Board’s credibility determination that T-Mobile did not meet its burden under the Ordinance of showing why it needed the new tower, because T-Mobile did not establish that the evidence qualified as expert testimony.   Although T-Mobile had asserted that service in the area was “poor” and insufficient in residential buildings, its advertising materials represented the area as having the “best” signal strength.  Testimony of local residents showed that service was adequate in the area, and there was no evidence of received complains of dropped calls.     

T-Mobile South v. Cobb County, Georgia, 2011 WL 336641 (N.D.Ga. 1/31/11).

The opinion can be accessed at:

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