Posted by: Patricia Salkin | September 18, 2015

Fed. Dist. Court in WA Denies Entry of Stipulated Judgment between City and T-Mobile Due to Objection by Intervening City Residents Until “Least Intrusive Analysis” is Conducted

Plaintiff Independent Tower Holdings, LLC, attempted to construct a cell phone tower in Fairweather Park and Nature Preserve in Medina, Washington, for T-Mobile West LLC. Independent Tower applied to the City of Medina for the necessary permits and, after a public hearing, the Hearing Examiner denied the application due to: lack of evidence that an 80 foot structure was necessary to avoid a service gap on SR 520; lack of evidence that the proposed tower was the least intrusive on the residential community; and lack of an alternative site analysis. Plaintiffs unsuccessfully sought reconsideration of this denial. In this case, the moving parties sought a Court order directing the City to grant Independent Towers a special use permit and variance to install, operate, and maintain the tower in Fairweather Park as set forth in Independent Towers’ application. The City of Medina residents (“Intervenors”) opposed the motion, arguing that the moving parties failed to evaluate any alternative sites and facilities other than a 45 foot pole at the Fairweather Park site.

Plaintiffs filed this lawsuit, arguing that the Hearing Examiner’s denial of the permit application effectively prohibited T-Mobile from providing wireless communication services, in violation of the Telecommunications Act of 1996 (47 U.S.C. § 332(c)(7)(A)). A locality violates the “effective prohibition” clause if its decision prevents a wireless provider from closing a “significant gap” in cell phone coverage, and that the manner in which it proposes to fill that gap “is the least intrusive on the values the denial sought to serve.” The Court found that the moving parties failed to show the absence of a genuine issue of fact regarding the “least intrusive” step of the analysis and that the Intervenors had specified reasons why they needed additional time in which to fully investigate the “substantial coverage gap” and the relative intrusiveness of the proposed facility. Because municipalities may not waive or consent to a violation of their zoning laws, which are enacted for the benefit of the public, the court declined to enter the Stipulated Judgment until the “least intrusive analysis” could be properly conducted.

T-Mobile West LLC and Independent Tower Holdings, LLC, v. City Of Medina, Washington and Respect Medina and Medina Residents No. C14-1455RSL (WD WA 8/25/15)

For more information and a copy of the order, see: http://www.respectmedina.us/news/2015/8/5/t-mobiles-one-truth-and-a-lie-t-mobile-tells-consumers-t-mobiles-coverage-in-medina-is-excellent-but-then-tells-the-judge-its-coverage-in-medina-is-horrible


Responses

  1. T-Mobile and Independent Towers (now owned by Vertical Bridge) had ample opportunity to meet their burden of proof at the hearing examiner level, but they failed to do so, even after Medina’s hearing examiner identified the obvious defects in their application. They chose, and then doubled-down, on a “non-comprehensive application” strategy, submitting nothing to demonstrate that they had even evaluated any alternatives, let alone assessed the relative intrusiveness of alternatives, or that there was a legally- significant gap in coverage. (Their strategy of non-comprehensive application seems like an especially risky strategy for a site that T-Mobile now claims is one of its “significant gap” sites.) Having had their non-comprehensive application strategy backfire, plaintiffs T-Mobile and Independent Towers now demand that the federal court and the TCA rescue them. In this situation, plaintiffs are scornful not just of Medina residents (the average, non-expert citizens that Judge Luttig demanded respect for in AT&T Wireless, 155 F3rd 423); they are also scornful of Medina’s local zoning authority, effectively arguing that the federal court interpret the TCA so as to thwart the local zoning and permitting processes. Plaintiffs are arrogantly demanding a permit at the federal level without making even a minimal good faith effort at the local level. Their strategy should cause them to lose their TCA claim. For more details, please go to http://www.respectmedina.us.


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