Posted by: Patricia Salkin | March 25, 2016

10th Cir. Court of Appeals Holds Village’s Denial of Special Permit Amounted to an Effective Prohibition of Personal Wireless Services in Violation of the Telecommunications Act

AT & T applied for a special use permit, a height variance, and a site development plan to install a 65–foot monopole cell phone tower and a small equipment shelter in a 30′ x 30′ compound on a commercial parcel in the Village. The Village’s Planning and Zoning Commission denied the special use permit and, accordingly, did not act on the variance request or the proposed site development plan. AT & T appealed to the Village Council, which also denied the special use permit. The Council concluded that AT & T failed to show that the proposed facility would fill a significant gap in coverage or that the desired improvements could not be achieved by placing the facility on higher terrain or using a shorter tower on the selected site. The Council also determined that the proposed facility would be visually intrusive, negatively affect the value of nearby residential properties, and impair the Village’s rural residential, agricultural, and open-space qualities. AT & T then filed this suit, claiming that the Village’s denial of the special use permit effectively prohibited the provision of personal wireless services and that substantial evidence did not support the Village Council’s decision, both in violation of the TCA.

The Village first argued that there will always be “gradations in service,” and opines that the district court’s standard means any unreliability in coverage will be deemed a significant gap, which will inevitably lead to a virtual “forest of cell towers all across the land.” Here, however, the undisputed evidence in this case established that the coverage gap was significant; in-vehicle coverage was unreliable for approximately two miles along the Village’s main road and in-building coverage was unreliable around the proposed site in a ring that is more than a mile across. Moreover, as the Village admitted in its answer to the complaint, the selected site “is located in a populated and well-traveled area.” Therefore, the district court did not err in considering the level of reliable in-building and in-vehicle coverage.

The court also held that the district court err by failing to take account of the lack of data regarding the number of AT & T customers potentially affected or the number of dropped calls. The court found it sufficient that the court considered the lack of reliable in-building coverage in a residential zone, unreliable in-vehicle coverage along the Village’s main road, and the absence of a dominant server in the area, to be of prime importance. Additionally, while the differences between the RF coverage maps for the 80–and 65–foot options appeared minimal, the undisputed facts set forth in AT&T’s report was that a lower tower would be inadequate to sufficiently remedy the gap and to establish a dominant server. Accordingly, the judgment of the district court in favor of AT&T was affirmed.

AT&T Mobility Services, LLC v Village of Corrales, 2016 WL 873398 (10th Cir. CA 3/8/2016)

 


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