Fed Dist. Court of SC Orders the City of Charleston to Act on Conditionally Granted Applications of a Telecommunications Provider Within 30 Days and Concludes that the Denied Applications Were Supported by Substantial Evidence

This post was authored by Olena Botshteyn, Esq.

Crown Castle, a telecommunications services provider, filed applications to install and operate its facilities in public rights-of-way in the city of Charleston (“City”), South Carolina. In its operations, Crown Castle uses fiber optic lines and equipment called “Nodes” or “small cells”. When authorizing such projects, the City requires to obtain an engineering permit from the Department of Public Service, which is issued subject to recommendations of the Design Review Committee (“DRC”).

In the previous case before this court Crown Castle argued that the City refused to process Crown Castle’s permit applications. In June 2018, the parties entered into mediation and reached a memorandum of understanding, subject to which the City was to enact a small cell ordinance (“the Ordinance”). In September 2018, the Federal Communications Commission (“FCC”) issued a declaratory ruling with regard to wireless services. In November the City adopted the Ordinance and design guidelines for small cells infrastructure. Crown Castle further notified the City that in its view the Ordinance was contrary to the FCC’s declaratory ruling.

In May 2019, Crown Castle filed an amended complaint, arguing that the City effectively prohibited Crown Castle from providing telecommunications services when it adopted the Ordinance, and that the City failed to act in a timely manner on Crown Castle’s sixteen applications. On March 23, 2020 the court granted summary judgment in favor of Crown Castle and directed the City to act on its applications within 90 days. The City acted on them on June 22, 2020. Crown Castle then sought judicial action with respect to seven of those applications, four of which were denied and three of which were conditionally granted.

The two issues this court considered when providing this summary judgment was whether the City’s denials of Crown Castle’s applications were supported by substantial evidence and whether the City acted on three of the conditionally granted applications in a timely manner.

1. Court refused to grant summary judgement with regard to denied applications

The court followed a two-prong inquiry process and first looked to the applicable zoning ordinance and then determined whether substantial evidence supports the denial.

Crown Castle argued that the way the City reached its decision was not conforming with the local law, as the mayor unilaterally made the decision. The court stated that it is authorized only to determine whether the reasons for making a decision are supported by local law, and may not decide whether it was made by an appropriate authority. Furthermore, in the previous case the court stated that DRC acts as an advisory body to the mayor and it is implied that mayoral approval is ultimately required for such projects.

Crown Castle further argued that when making its decision, the authority relied on broad statements of purposes and goals, set forth in the Ordinance. The City specifically stated that the proposed tower is not consistent with design review guidelines and does not integrate with the surrounding historical area. Petitioner claimed that the authority should rely on substantive provisions instead of those containing the background and purposes, including the impact on the City’s aesthetics, and the court disagreed.

The court concluded that “aesthetic and preservationist concerns lie at the heart of each of the City’s denials. Both the Small Cell Ordinance and the Design Guidelines explicitly authorize the DRC to engage with such considerations in considering an application.” The court further stated that the legislative intent of the Telecommunications Act of 1996 (“TCA”), which regulates this issue was “to ensure the preservation of local authority over the decision to erect and modify wireless facilities”. It thus found that the City was authorized to deny applications on such grounds under local law.

The court further found that the City’s decisions were supported by substantial evidence. The court reviewed the photo simulations and determined that they “provide clear evidence for the aesthetic concerns expressed in each of the City’s denial letters” and stated that there is clear evidence of visual impact of the towers.

• The Court granted summary judgment with regard to conditionally granted applications

The City conditionally granted three of the Crown Castle’s applications, subject to entering into “pole-use agreements” with the City. Crown Castle further provided the City with a copy of a draft pole-use agreement, and the City failed to respond. Crown Castle argues that the City failed to take final action on these applications within reasonable time.

The court agreed that although the City granted applications within the 90 days as prescribed by the court order, it failed to timely negotiate the pole-use agreement. The court thus considered it reasonable to order the City to act on the proposed pole-use agreement within 30 days.

Crown Castle Fiber, LLC v City of Charleston, 2021 WL 538148 (D. SC 2/15/2021)