Fed. Dist. Court in NM Finds Decision to Deny Cell Tower was Not Supported by Substantial Evidence as Required Under the TCA

This post was authored by Matthew Loescher, Esq.

Plaintiff Cellco Partnership d/b/a Verizon Wireless applied for a special use permit to build a 65-foot “mono pine” cell phone tower in Mesilla, New Mexico. The Town’s Planning, Zoning, and Historical Appropriateness Commission (“PZHAC”) voted unanimously against a motion to recommend approval of Plaintiff’s application. Following the denial, Plaintiff brought suit asserting three causes of action: two were brought under 47 U.S.C. § 332(c)(7) of the Telecommunications Act (“TCA”), and the third appealed Defendants’ zoning decision under N.M. Stat. Ann. § 39-3-1.1.

Plaintiff’s federal claims were based on the restrictions set forth in 47 U.S.C. § 332(c)(7)(B)(iii) and 47 U.S.C. § 332(c)(7)(B)(i) (II). Section 332(c)(7)(B)(iii) sets forth that “any decision by a local government to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” Here, the Board provided Plaintiff with a written decision setting forth reasons for denying Plaintiff’s application; however, by citing Plaintiff’s failure to comply with Sections 18.20.040(B) and 18.20.050(D) to justify its denial of Plaintiff’s application, the court found the Board relied on criteria for which the Mesilla Town Code (“MTC”) did not provide and therefore failed to act on the basis of substantial evidence. Since the three reasons the Board provided in its written decision denying Plaintiff’s application were not supported by substantial evidence as a matter of law, Plaintiff was granted summary judgment on its claim that the decision failed to comply with 47 U.S.C. § 332(c)(7)(B)(iii). As such, the Court did not consider whether the Board’s denial of Plaintiff’s special use permit application violated Section 332(c)(7)(B)(i)(II), because it reversed the Board’s decision based on its determination that the decision was not supported by substantial evidence.

The Court further held that due to certain defects and procedural irregularities, the record below failed to affirmatively demonstrate Plaintiff’s entitlement to a special use permit under the MTC. Specifically, Plaintiff failed to submit certain required documentation to the Board before its hearing on Plaintiff’s application, and the maps alone did not appear to demonstrate that the proposed tower was needed to fill a “coverage gap.” Lastly, the record included neighbors’ aesthetic objections that, though unsworn, was grounded in the specifics of the case. For the aforementioned reasons, the Court denied Plaintiff’s request for declaratory and injunctive relief and remanded this matter to Defendants for reconsideration.

Cellco Partnership b/d/a Verizon Wireless v Town of Mesilla, 2021 WL 5578871 (D NM 11/29/2021)