Fed. Dist. Court of NE Finds Denial of Conditional Use Permit was not Supported by Substantial Evidence and Violated the Telecommunications Act

Viaero was licensed by the Federal Communications Commission to provide personal wireless services, otherwise known as Commercial Mobile Radio Service (CMRS) in parts of Colorado and Nebraska, including the City of North Platte and the area surrounding the City. In 2014, Viaero filed an application for a conditional use permit for the purpose of constructing a 100–foot telecommunications tower, as well as an adjacent small equipment building for electrical equipment and a buried propane tank, in order to improve its network coverage in the area. The City Council found that Viaero’s proposed use failed to comply with N.P.Code § 156.322(A)(5), in that the proposed use was not “in harmony with the character of the area” and was not “the most appropriate use of the land.” Viaero brought an action under the Telecommunications Act of 1996 (“TCA”), which requires that any decision by a local government denying permission to construct a telecommunications tower must be “supported by substantial evidence contained in a written record.”

The record as a whole indicated that despite the presence of a handful of residences around the site, the area was predominantly commercial and industrial: the site itself was used as overflow parking for the bar and tobacco shop; to the north, west, and south were commercial and industrial uses; and to the east was a house that appeared to be used primarily as a storage yard for decrepit automobiles. Thus, photographs of the area showed that it was predominantly commercial and industrial in character. Accordingly, the photographs and zoning maps in the record served undercut any aesthetic concerns, and thus went against a finding of substantial evidence in support of the City Council’s decision. The court therefore directed the City to issue the conditional use permit without further delay or obstacle, and within 10 days of the issuance of order.

NE Colorado Cellular, Inc. v City of North Platte, 2015 WL 3513963 (D. NE 6/4/2015)

The order can be accessed at: http://law.justia.com/cases/federal/district-courts/nebraska/nedce/4:2014cv03088/66023/40/