Posted by: Patricia Salkin | January 26, 2020

Eleventh Circuit Court of Appeals Holds County’s Decision to Conditionally Grant Wireless Application was Not Supported by Substantial Evidence

This post was authored by Matthew Loescher, Esq.
In this case, the Cobb County Board of Commissioners, and the members of the Board of Commissioners appealed the grant of summary judgment in favor of Municipal Communications, LLC. This case arose from the Board’s decision to grant Municipal a special land use permit to construct a telecommunications tower, which was granted on the condition that Municipal move the tower 300 feet east of the proposed location. Municipal filed suit arguing that the County’s decision was effectively a denial of the permit because the County’s proposed site was unavailable. The district court granted summary judgment in favor of Municipal.
On appeal, the County contended that it was justified in denying Municipal’s application because Municipal failed to meet its burden of producing sufficient information to show that the alternative site was unavailable. The record reflected that Municipal repeatedly represented throughout the application process that the church would not lease the new location to it and it could not move the tower, and no County representative, Board Commissioner, or Planning Commission member or staff person, ever alleged or suggested, that Municipal had failed to meet its burden of providing sufficient information. Accordingly, the court found that the County could not now rely on Municipal’s alleged failure to produce evidence concerning the unavailability of the new location as a basis for its decision.
The County next claimed that the district court erred in its determination of whether the decision was supported by substantial evidence because the district court considered only the statements of members of the Board, instead of the record as a whole. Commissioner Birrell stated that the tower was necessary to meet a gap in cell coverage and that Municipal met all applicable zoning requirements, but also noted the community’s general aesthetic concerns and concerns about a possible decrease in property values. In light of the Commissioner’s statements, the only reasons clearly expressed by the Board that could support denying Municipal’s application were generalized aesthetic concerns. While the County’s local zoning laws allowed it to consider aesthetic impact of the tower, the courts have held that blanket generalized aesthetic objections, standing alone are not enough to constitute substantial evidence under § 332. Accordingly, the court held that the Board’s decision was not supported by substantial evidence.
Municipal Communications, LLC v. Cobb County, Georgia, 796 Fed.Appx. 663 (1/8/2020)


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