Posted by: Patricia Salkin | February 9, 2014

Fed. District Court in TN Finds Zoning Board’s Denial of Cell Tower Application Violated Several Provisions of the TCA

AT&T sought to build a telecommunications tower in Wilson County, Tennessee, in order to improve gaps in its coverage. Initially, AT&T looked into using existing towers in the area, but there were none that met their needs. AT&T hired American Towers, Inc. (“ATI”), to develop the new tower and ATI hired Excell Communications to identify an appropriately zoned area for this type of project. ATI and Excell eventually decided on a lot located in Lebanon, Tennessee. The Wilson County regulation governing the construction of telecommunications towers requires the applicant to meet four requirements:(1) the applicant must provide the County with “evidence that it investigated the possibility of collocating on an existing tower within one mile of the proposed site,” (2) the tower must meet FAA requirements, (3) the plan must allow for enough space such that maintenance vehicles could maneuver on the site, and (4) the applicant must show that any on site storage would be solely for storage.

In ATI’s first set of applications, the Use Application met all four requirements set forth in the regulation. The Site Application sought to divide the lot into two because the lot was originally zoned for residential use, and dividing the lots “would correct the site’s nonconforming use,” by designating the lot the tower was on as a utility lot. At its first hearing, ATI submitted additional evidence of the coverage gap, which included customer complaints, and a survey performed by a radio-frequency engineer. At the hearing, several residents opposed the tower arguing that it would decrease property values, change their view, and the impact it would have on the students attending the private school located approximately 2,500 feet from the tower site. Aside from the complaints of the local residents, the Zoning Board largely focused on the issue of the Site Application, which was originally scheduled for the Planning Commission to hear after the Use Application. Wilson County’s zoning ordinance did not require the Planning Commission to determine the status of the Site Application, the nonconforming use of the lot, prior to determining the use application. Because of this, the Board denied ATI’s Use Application because the lot was a nonconforming use. The Planning Commission deferred ATI’s initial application approximately one month. Although there were conflicting statements as to whether the policy was that the Zoning Board had to approve the use prior to the Commission approving the site, the Commission denied ATI’s Site Application on that very basis. The Commission denied ATI’s application, even though it met all of the requirements, because the Board denied the utility use for the tower.

ATI submitted a second set of applications to the appropriate bodies several months later. The Commission, by way of silence, approved ATI’s second Site Application on October 21, 2011. However, the Commission still needed to vote on dividing the lot into two lots, and designating the one lot as a utility lot. The issue of the utility lot remained unresolved. On February 17, 2012 the Zoning Board voted to deny ATI’s second Use Application because ATI was currently in discussions with another landowner and the Board had a policy of abstaining from making decisions when there were pending matters of litigation. In April, the Board deferred ATI’s application again, and eventually decided at the third hearing on May 18, 2012, to defer a decision until ATI’s litigation was finished. ATI and Excell filed suit against the County on the same day the County held a hearing on ATI’s original application. In its complaint, ATI alleged that the County violated the Telecommunications Act of 1996 (“TCA”), and asked the court to order the Board and Commission to grant all the necessary approvals for the construction of the tower. Essentially, ATI alleged that the Board’s denials did “had the effect of improperly prohibiting the provision of wireless services,” that the County failed to timely resolve its applications, and that both the Board and the Commission acted outside the scope of legal authority.

The TCA regulates the way local governments make decisions about the construction of telecommunications towers, but “does not intrude on the general authority of local governments to regulate zoning.” ATI argued that the County failed to comply with TCA’s writing requirement, which states, in relevant part, that the municipalities denial must be in writing, describe the reasons for the denial with explanation, and the document describing the denial must be separate from the written record. ATI argued that the County did not comply with these requirements because it did not provide sufficient reasoning for the denial, in certain cases merely circling “Relief Denied,” and the denial was not in a separate writing from the record. The court found that the County did not meet the TCA writing requirement because it failed to provide a “separate, reasoned, and written explanation of its decisions,” despite the fact that the denials were in a part of the record (meeting minutes from the hearings and notations made on ATI’s applications).

Next, the court addressed whether the denials violated the “substantial evidence” requirement of the TCA. This requires the municipality to base its decisions off of substantial evidence, and a reviewing court may not overturn the decision if it is based on a reasonable amount of evidence. The substantial evidence standard is defined as “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” ATI argued that there was no substantial evidence to support the County’s decisions, which the County rebutted and argued that there were three grounds establishing substantial evidence for its denials. The County argued that the “denials were based on substantial evidence that ATI’s proposed tower could detrimentally impact student enrollment” at the private school, the lots nonconforming status, and its policy of not considering matters if there is pending litigation. The court found that the County lacked substantial evidence because the complaints were not founded on actual evidence but mere “conjecture and unsupported opinion.” Moreover, ATI presented data which refuted the lay opinions of the individuals who spoke about the tower’s detrimental impact on school enrollment, and showed that “none of the 41 private schools in the County on which ATI’s towers are located have reported tower-related enrollment losses.” Thus, the court found that the Board did not have substantial evidence to deny ATI’s application. The court then addressed the County’s denial based on the lots nonconforming use status. Because the County’s zoning ordinance did not require the Board to approve the Use Application prior to the Commission approving the Site Application the Board did not have substantial evidence to deny the Use Application based on the lots nonconforming use status. The court also found that the County lacked substantial evidence to deny ATI’s application based on its pending litigation. Although the County stated it had a “practice” of denying applications based on pending litigation, the court found that this was insufficient to establish substantial evidence because it was unwritten, and the County Planner could only recall one other instance where an application was denied based on pending litigation.

As to ATI’s claims that the County’s denials effectively violated the TCA because it prohibited wireless services, the court applied a two-part test to determine “whether the denial of an applications amounts to an effective prohibition.” The first prong is whether there is a “significant gap in service coverage” and the second is whether an inquiry has been made into “the feasibility of alternative facilities or site locations.” The court stated that a significant gap is defined as a significant gap in that providers own coverage, regardless if other providers are able to provide service in that area. The court found that the maps demonstrating signal strength, customer complaints, the engineer’s survey, and the information ATI presented to the board sufficiently established that AT & T had significant gaps in its coverage. The second prong of the test required ATI to show that its method of filling the coverage gap was the “least intrusive,” which essentially required ATI to show it considered other site locations and designs. The court found that ATI clearly met this prong because it made a “good-faith effort to identify and evaluate less intrusive alternatives” on the same road as the proposed site, as well as multiple other properties to enter into a lease agreement. The County argued that ATI did not meet this good faith standard because it did not consider design alternatives even though it considered site alternatives. The court disagreed and found that ATI’s due diligence in locating an alternative location for the construction of the tower was sufficient to satisfy the good faith prong. The court also found that because the County did not render a decision on ATI’s applications for more than 150 days, the County presumptively violated the TCA.

The court ordered the County to immediately grant ATI’s applications and any other approvals necessary for the construction of the tower. The court also prohibited the County from preventing ATI to subdivide the property, and granted ATI summary judgment.

American Towers Inc. v Wilson County, 2014 WL 28953 (MD TN 1/2/2014)

This opinion can be located at: http://law.justia.com/cases/federal/district-courts/tennessee/tnmdce/3:2010cv01196/49421/75


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