Posted by: Patricia Salkin | May 20, 2017

Fed. Dist. Court in IL Denies Motion to Dismiss Amended Complaint in Case Arising Out of the Denial of a Proposed Wireless Communications Facility

In this case, the Plaintiff, Cellco Partnership d/b/a Verizon Wireless (“Verizon”), appealed the Peoria Site Plan Review Board’s (“SPRB”) denial of the BPA to the City of Peoria Zoning Board of Appeals (“ZBA”).  The ZBA, by voice vote, unanimously voted to deny Verizon’s appeal 6-0. Verizon alleges that ZBA failed to provide Verizon with its decision in writing, and failed to provide Verizon with a copy of the final version of the minutes from the hearing. Verizon further alleged that, “the SPRB’s election to ‘defer’ to a prior denial by the City of a different application constituted an abandonment of the SPRB’s duty to administratively review Verizon’s Linn St. Building Permit Application submitted on May 24, 2016.”

In reviewing the City’s Motion to Dismiss the entire complaint, the court found that Rule 12(b)(6) dealt with dismissal of claims, and the City admitted that Verizon’s first claim was a challenge to the ZBA’s order, which it timely appealed; thus, Verizon adequately stated a claim upon which relief may be granted. Second, the court found that the City’s argument regarding the proper scope of the administrative record had already been considered and denied, as the Court granted Verizon’s motion to file the administrative record before the City moved to dismiss. Furthermore, because the ZBA’s denial was predicated on deference to the City Council’s earlier denial of Verizon’s SUA, the court held that the reasons underlying the prior denial were relevant to and properly part of the administrative record. Therefore, the City’s Motion to Dismiss was denied.

Lastly, the court declined to take judicial notice of the City of Peoria’s City Council District Map, the City of Peoria Zoning Map, the City of Peoria Neighborhood Map, and the City of Peoria Historic Districts Map and Landmarks, as there was a reasonable dispute existing as to the accuracy of these documents. The court did, however, take judicial notice of a Google Aerial Map of the Linn Street Property because it was an overlay showing the distance between the Linn Street property and another building, which was a fact that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

Cellco Partnership d/b/a Verizon Wireless v City of Peoria, 2017 WL 2125669 (CD IL 5/16/2017)


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