Posted by: Patricia Salkin | August 25, 2016

Fed. Dist. Court in KS Finds City Did Not Violate the Telecommunication Act in Denying Cell Tower Permit

Plaintiff Stout & Company constructs wireless telecommunication facilities and leases them to providers such as T-Mobile and others who provide wireless telecommunication services to the public. Stout’s tenants, including T-Mobile in this case, hold licenses from the FCC to provide wireless telecommunication services in Bel Aire, Kansas. Stout & Company brought this action for declaratory, injunctive, and other relief pursuant to the Federal Telecommunication Act of 1996 (“TCA”) following the City of Bel Aire’s denial of Stout’s application for a special use permit to construct a cell phone tower on a site in Bel Aire. Stout contended the denial violated the TCA for several reasons, including because the decision was not supported by substantial evidence.

Stout’s complaint alleged three violations of the TCA: Bel Aire failed to provide written reasons for the denial essentially contemporaneously with its decision; Bel Aire’s denial was not supported by substantial evidence; and the denial effectively prohibited the provision of personal wireless services. As to the first claim, the court found that because Stout had filed suit within the 30-day statutory window, and Bel Aire provided its reasons shortly thereafter, Stout’s right to judicial review had been adequately preserved and it has suffered no irreparable harm from the violation. Accordingly, the court held that Stout was not entitled to injunctive relief on this claim.

On Stout’s claim that Bel Aire’s denial was not supported by substantial evidence, Council member MacDonald cited several reasons for denying the application, including that the proposed site was a long-established R-4 single family dwelling neighborhood, that construction of a commercial cell tower in that location would significantly change the character of the neighborhood, and that 13 of 14 nearby property owners indicated opposition to the proposed site when surveyed. These factors were proper considerations under Bel Aire’s zoning regulations, as Section 5.01(E) of the city code governing zoning changes directed the council to consider the character of the neighborhood and the zoning and uses of property nearby. Moreover, while Stout was correct that “generalized aesthetic concerns” do not suffice as substantial evidence under the TCA, the evidence of the negative visual impact of a partially unscreened 170-foot tower in the middle of a residential neighborhood in a small community, including public comments critical of the visual impact, a neighborhood survey showing opposition based on visual impact, and a photo simulation showing the visual impact, was specific and substantial enough to be considered as a legitimate factor in the zoning determination.

Stout’s final claim was that the denial of its application effectively prohibited the provision of personal wireless services. However, Stout’s affidavit was entirely conclusory, such as there being no explanation whatsoever for how or why Stout determined that the asserted gap in coverage was “significant.” The city council questioned Stout about the asserted coverage gap and the possible use of the water tower, but received no adequate response. Accordingly, the city council was denied the cell phone tower application.

Stout & Company, LLC v City of Bel Aire, 2016 WL 3759440 (D. KS 7/14/2016)

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