Posted by: Patricia Salkin | June 21, 2017

Fed. Dist. Court in IN Finds Board Considered Sufficient Evidence in Denying Applications for a Permit to Construct a Telecommunications Tower

Plaintiff SBA Towers V, LLC’s (“SBA”) submitted applications for both a Special Exception and a Variance Permit to the Board to construct a new wireless communication facility to improve signal coverage in and around the City of Madison. The proposed tower was a 190-foot wireless telecommunications monopole with a 5- foot lightning rod in a Residential Agriculture area under the City of Madison Zoning Ordinance. Following deliberations on the nine standards under the Zoning Ordinance to obtain a conditional use, the Board voted 3-1 to deny SBA’s Special Exception application.

On appeal, SBA argued that the Board’s findings against SBA on Standard 3 reflected a “generalized objection to towers on aesthetic grounds.” Standard 3 required that Conditional Uses must “be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area.” The court found that SBA’s argument failed to consider the extensive testimony and evidence presented to the Board during the August 17, 2015 hearing: such as photographic evidence of the balloon test and how the tower would visually affect the surrounding area. As such, the Board’s findings were based on sufficient evidence.

SBA next contended that the Board misinterpreted Standard 6, which stated that a Conditional Use “will not create excessive additional requirements at public expense for public facilities and services and will not be detrimental to the economic welfare of the community.” The court found that a plain reading of Standard 6 suggested that both of these factors must be considered prior to issuance of a conditional use. Thus, the fact that the majority of the Board found the economic detriment to the community to be of greater significance did not mean that the Board erred in evaluating Standard 6. Accordingly, the court held SBA failed to demonstrate that the Board clearly erred in denying its applications.

SBA Towers V, LLC v City of Madison Board of Zoning Appeals, 2017 WL 1927735 (SD IN 5/9/2017)

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