Cellular South Real Estate v. City of Mobile, Alabama
ORDER, GRANTING in part and DENYING in part Plaintiff's 22 Motion for Summary Judgment; and GRANTING in part and DENYING in part Defendant's 23 Motion for Summary Judgment. Signed by Senior Judge Callie V. S. Granade on 7/8/2016. (mab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CELLULAR SOUTH REAL ESTATE, )
CITY OF MOBILE, ALABAMA,
CIVIL ACTION NO. 15-00387-CG-B
This matter is before the Court on the Motion for Summary Judgment (Doc.
22), filed by Cellular South Real Estate, Inc. (“Plaintiff”), the Motion for Summary
Judgment (Doc. 23), Brief in Support (Doc. 24), and Notice of Filing Exhibits (Doc.
25), filed by the City of Mobile, Alabama (“Defendant”), and the parties’ respective
responses and replies (Docs. 29-32). For the reasons set forth herein, Plaintiff’s
motion for summary judgment is due to be GRANTED in part and DENIED in
part, and Defendant’s motion for summary judgment is due to be GRANTED in
part and DENIED in part.
The facts in this case are not disputed. Only the characterization of those
facts is at issue.
On January 8, 2014, Defendant granted Plaintiff “authorization to submit
various applications necessary for a cell phone tower site in the City owned LaddPeebles Stadium parking lot.” (Doc. 18-17, p. 23). Because construction of the tower
at that location required zoning variances, Plaintiff submitted an application to the
Board of Zoning Adjustment (“Board”) on August 21, 2014. Id. at 37. The application
sought five variances:
o A variance to the setback requirement of the tower height
o A variance to exceed the height limit of 45 feet by 105 feet
o A variance to reduce the separation requirement to residentially
zoned property from the required 225 feet
o A variance to requiring paved parking. The site is located at LaddPebbles [sic] Stadium
o A landscaping variance
Id. The variance requests were in response to city zoning ordinances requiring (1) a
setback distance of the height of the tower from the property line; (2) a maximum
tower height of forty-five feet; (3) a buffer distance between the proposed tower and
residential areas of approximately 225 feet; (4) paved access to the tower site; and
(5) the planting of trees every thirty feet around the perimeter of the site. Mobile,
Ala. Code § 64-4(J)(5)(a)(2); id. § 64-3(E)(3)(d); id. § 64-4(J)(7)(a); id. § 64-4(J)(14); id.
The Staff of the Board of Zoning Adjustment (“Staff”) issued a report on
December 1, 2014, regarding Plaintiff’s variance requests. (Doc. 18-9, p. 18). The
Staff found that the height variance was needed for the new tower because
collocation opportunities on towers of similar height nearby were nonexistent. Id. at
20. The setback and residential buffer variances were needed so that the tower
could be located in an area of the stadium property that would not affect available
parking. Id. The variance for paved access was reasonable because “much of the
stadium parking within this area is a gravel-grass mixture, and the access drive
would be of short length and low-usage.” Id. at 21. Finally, the Staff decided that
the tree planting variance was needed because “stadium staff previously requested
no tree plantings be required due to conserving parking area.” Id. Despite finding
that all of the variance requests were reasonable, the Staff withheld
recommendation, pending review by the City Planning Commission (“Commission”).
After the Commission expressed concerns about the tower’s proximity to
residential areas, Plaintiff shifted the planned tower site “approximately 345’ West
of the previously proposed location” and submitted an amended application on April
2, 2015. (Doc. 18-8, p. 48; Doc. 18-17, p. 21). The change eliminated the need for a
residential buffer variance. The Commission approved the application on June 23,
2015, conditioned upon Plaintiff acquiring the Board’s approval for the variance
requests. (Doc. 18-6, p. 26).
On July 6, 2015, in light of the Commission’s approval of the amended
application, the Staff issued another report on Plaintiff’s proposed tower. (Doc. 18-8,
p. 44). The Staff reaffirmed its 2014 report and added an addendum addressing the
change of the tower location. Id. at 48. The Staff recommended that the Board
approve the application, stating the following:
RECOMMENDATION: Staff recommends to the Board the following
findings of facts for approval:
1) Based on the fact that the site is within a public stadium parking
lot, the variance will not be contrary to the public interest;
2) These special conditions (the site is of limited space and adjacent to
an existing compound which was given special considerations for
development) exist such that a literal enforcement of the provisions
of the chapter will result in unnecessary hardship; and
3) That the spirit of the chapter shall be observed and substantial
justice done to the applicant and the surrounding neighborhood by
granting the variance in that no other tower sites were available for
Therefore, this application is recommended for approval . . . .
Id. at 49.
The Board conducted a hearing on the application on July 6, 2015. (Doc. 1818, p. 18). By the time of the hearing, Defendant had in its possession
approximately fifty letters (Doc. 18-3, pp. 24-72; Doc. 18-4, pp. 15, 22, 44) and a
petition with almost 200 signatures (Doc. 18-3, pp. 73-90; Doc. 18-4, pp. 2-14; Doc.
18-14, p. 28), all opposed to the tower. At the hearing, two residents spoke in
opposition to the tower, while only Plaintiff’s representative spoke in favor. (Doc.
18-18, pp. 19, 21). After discussion amongst the Board members and the Board’s
attorney, the Board unanimously voted to reject Plaintiff’s application, save for one
member who recused. Id. at 23. The Board’s minutes reflect the reasons for denial:
The Board determined the following findings of fact for Denial:
1) Based on the fact that the site is within close proximity to a large
number of residences, approval of the variance would be contrary to
the public interest;
2) These special conditions exist such that there are more suitable
sites for a telecommunications tower to be located further away
from a residential area so that literal enforcement of the provisions
of the chapter will not result in unnecessary hardship; and
3) That the spirit of the chapter shall not be observed and substantial
justice shall not be done to the surrounding neighborhood by
granting the variance in that other tower sites are available for
Id. On July 8, 2015, the Board issued a “Letter of Decision” to Plaintiff and restated
the grounds for denial above. (Doc. 18-10, p. 12). On August 3, 2015, Plaintiff filed
the current action, alleging violations of the Telecommunications Act of 1996. (Doc.
1). In Count 1, Plaintiff argues that Defendant’s denial was not “supported by
substantial evidence contained in a written record” as required by 47 U.S.C. §
332(c)(7)(B)(iii) (2012). In Count 2, Plaintiff maintains that Defendant “prohibit[ed]
or ha[d] the effect of prohibiting the provision of personal wireless services” in
violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) (2012).
A. The Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) instructs that “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” The trial
court’s mission is to “determine whether there is a genuine issue for trial” and not
to “weigh the evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
The burden is on the moving party to show that there is no genuine dispute
as to any material fact. Id. at 256. In conducting its summary judgment analysis,
the Court must construe all evidence “in the light most favorable to the party
opposing the motion.” United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
After the movant meets its burden, the burden shifts to the nonmoving party
“to make a showing sufficient to establish the existence of an element essential to
that party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the
nonmoving party fails to do so, the “complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. at 323. Further, Rule 56 “requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific facts showing that there is
a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). There is no
genuine issue for trial “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
B. The Telecommunications Act of 1996
The Telecommunications Act (“TCA”) “balance[s the] national interest in
telecommunications growth with the local interest in zoning control.” T-Mobile S.,
LLC v. City of Milton, Ga., 728 F.3d 1274, 1276 (11th Cir. 2013). Although the TCA
largely leaves to the municipality the decision of whether to allow a wireless carrier
to build a tower within its jurisdiction, the Act does place certain limitations and
requirements on the local government. In relevant part, the Act requires any denial
of “a request to place, construct, or modify personal wireless service facilities . . . be
in writing and supported by substantial evidence contained in a written record.” 47
U.S.C. § 332(c)(7)(B)(iii) (2012). The TCA also restrains a municipality from
“prohibit[ing] or hav[ing] the effect of prohibiting the provision of personal wireless
services.” Id. § 332(c)(7)(B)(i)(II).
1. Substantial Evidence
The TCA’s substantial evidence standard “is the traditional substantial
evidence standard used by courts to review agency decisions.” Am. Tower LP v. City
of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002). The standard is defined as
“‘such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1218 (11th Cir.
2002) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). “Substantial”
means “‘more than a mere scintilla but less than a preponderance.’” Am. Tower, 295
F.3d at 1207 (quoting 360° Commc’ns Co. v. Bd. of Supervisors, 211 F.3d 79, 83 (4th
Cir. 2000)). The substantial evidence standard “requires courts to take a harder
look than when reviewing under the arbitrary and capricious standard.” Preferred
Sites, 296 F.3d at 1218. A reviewing court must peruse “the record in its entirety,
including evidence unfavorable to the state or local government’s decision.” Id. A
court “cannot displace the [municipality’s] fair estimate of conflicting evidence and
cannot freely re-weigh the evidence.” Am. Tower, 295 F.3d at 1209 n.8. While a
court is forbidden from “substitut[ing] its own judgment for that of the local board, .
. . it must overturn the board’s decision if the decision is not supported by
substantial evidence.” Preferred Sites, 296 F.3d at 1218-19.
Defendant’s municipal code speaks to the power of the Board to determine
whether to grant or deny a variance:
Variances. To authorize, upon appeal in specific cases, such variance
from the terms of this chapter as will not be contrary to the public
interest where, owing to exceptional circumstances, literal enforcement
of the provisions of this chapter will result in unnecessary hardship.
Variances shall be subject to such conditions and terms as may be
fixed by the board. No variance shall be authorized:
(a) Where the area of the property, the variance for which is
sought, is sufficient to authorize the creation of a new district
under the amendment procedures of this chapter for the
(b) In order to relieve an owner of a lot of restrictive covenants
applicable to said lot which are recorded in the probate court;
(c) Where economic loss is the sole basis for the application for
(d) Unless the board is presented with sufficient evidence for the
board to find that:
1. The variance will not be contrary to the public interest;
2. Special conditions exist that a literal enforcement of the
provisions of the chapter will result in unnecessary
3. That the spirit of the chapter shall be observed and
substantial justice done to the applicant and the
surrounding neighborhood by granting the variance.
Mobile, Ala. Code § 64-8(B)(6)(f)(3). It is apparent from the language used in
the minutes and denial letter that the Board declined to permit the requested
variances due to (d). The Board’s three grounds for denying Plaintiff’s
application will each be discussed in turn.
The Board found that “approval of the variance would be contrary to the
public interest” because “the site is within close proximity to a large number of
residences.” (Doc. 18-18, p. 23). Plaintiff argues that this ground for denial, along
with the other grounds, “was [not] supported by even a scintilla of relevant
evidence, much less substantial evidence, contained in the written record.”1 (Doc.
22, p. 11). For the proximity ground in particular, Plaintiff likens the letters and
petition to a “not in my back yard” sort of objection, merely “generalized opposition.”
Id. Defendant counters by focusing on Alabama law treating the zoning variance as
the exception, not the rule. (Doc. 24, p. 12). Defendant argues that the letters and
petition expressing concerns “rang[ing] from negative impacts on property values, to
visual impacts on residential and historical areas nearby, to concerns over impacts
on the stadium campus used by residents for recreation” were sufficient to support
the Board’s denial.2 Id. at 17.
The tower site is located in a district zoned as “B-3,” which is defined in
Defendant’s municipal code as:
B-3 districts: Community business districts. These districts are
composed of land and structures used to furnish, in addition to the
retail goods and services found in neighborhood business districts, such
less frequently needed goods as clothing and automobiles—the wider
range of retail goods and services to satisfy all the household and
personal needs of the residents of a group or community of
neighborhoods. Light or heavy distribution uses may be allowed as
defined in the chart of permitted uses. Usually located on a
thoroughfare or near the intersection of two (2) thoroughfares, these
districts are large and are within convenient driving distance of the
group of neighborhoods they will serve. The district regulations are
In addition to Plaintiff’s argument that the Board’s decision was not
supported by substantial evidence, Plaintiff’s complaint alleged that “the City has
not issued or provided any written record or statement of its decision to deny
[Plaintiff’s] Application.” (Doc. 1, p. 6). Plaintiff has since conceded that claim. (Doc.
29, p. 10).
2 Defendant also discusses the proximity of the tower site to nearby schools.
(Doc. 24, p. 17; Doc. 30, p. 16). However, the Board did not ground its decision on
the juxtaposition of the tower site to school property. Rather, the Board only
concerned itself with nearby “residences.” Thus, the Court will not entertain
Defendant’s school argument.
designed to permit the development of the districts for their purpose in
a spacious arrangement.
To protect the abutting and surrounding residential areas certain
restrictions are placed on uses. It is intended that additional
community business districts will be created in accordance with the
amendment procedure set forth herein, as they are needed to serve
groups of new neighborhoods. To insure that such districts are actually
developed to supply the business needs of the groups of neighborhoods,
the amendment creating the district may set a time limit for its
Mobile, Ala. Code § 64-3(E)(3). Towers are allowed in B-3 districts, but only if
“planning approval has been granted by the Mobile city planning commission.”3 Id.
§ 64-4(J)(4)(a). The land immediately south of the stadium site and closest to the
proposed tower is an area zoned for industrial use. See City Map,
http://maps.cityofmobile.org/citymap/index.html (last visited June 26, 2016); Mobile,
Ala. Code § 64-3(A)(2) (adopting the map as part of the code’s chapter on zoning).
The remainder of the area surrounding the stadium property is zoned as
residential. See City Map, supra.
If the Court were to take the first ground of denial literally, that the Board
was unhappy at the particular distance between the proposed tower site and the
residences, the Court would find that the Board’s denial lacked substantial
evidence. Plaintiff’s tower meets the residential buffer zone requirement of 150% of
the height of the tower. See Mobile, Ala. Code § 64-4(J)(7)(a). The tower’s height is
152 feet, so it must be located at least 228 feet from the nearest residence to meet
the zoning requirements. (Doc. 18-8, p. 48). The closest residentially-zoned area is
Towers are allowed in industrial zones “by right” and prohibited in
residential areas. Mobile, Ala. Code § 64-4(J)(4)(a).
located approximately 350 feet from the proposed tower site. Id. Thus, Plaintiff
meets Defendant’s residential buffer zone requirement, and Defendant is barred
from denying Plaintiff’s variance requests on that ground. See, e.g., Vertex Dev.,
LLC v. Marion Cnty., No. 5:07-cv-380-Oc-10GRJ, 2008 WL 2994259, at *16 (M.D.
Fla. Aug. 1, 2008) (“Moreover, to the extent that the Board is relying on the
comments . . . that the tower would be too close to their property lines and to
County Road 475, the Court finds that these comments also cannot constitute
substantial evidence because proximity concerns are specifically addressed by the
Code’s established setback requirements, and Vertex not only met but exceeded
However, even if the Court were to liberally construe the Board’s concerns
about proximity, the Court would still find a deficit of substantial evidence. While
the Board did not expressly state why the close proximity was a problem, it is
apparent that the Board had, or at least considered, concerns over safety and
aesthetics. The safety concerns are easy to dispatch. At the Board meeting, two
members of the community opposed to the tower averred, “The Planning
Commission [who granted conditional approval of the tower] ignored the dangers
from strong winds from severe storms and the potential destruction of property and
lives as a result of the tower being constructed in the open area of the stadium
grounds . . . .” (Doc. 18-18, p. 19). The majority of letters submitted to Defendant
were form letters, and they spoke of perceived dangers such as “hazardous
materials” allegedly associated with tower sites (Doc. 18-3, pp. 28-32, 43-44), the
potential for fire, “falling debris,” and the tower’s collapse (Doc. 18-3, pp. 35-36, 42,
45-47, 49, 52, 57-68), and the possibility for the tower to “explode” or for “batteries
in [the tower] . . . [to] leak sulfuric acid.” (Doc. 18-3, pp. 37-41, 51, 53-56, 69, 71;
Doc. 18-4, p. 15). Those who signed the petition were concerned with safety issues
during storms and maintenance.4 (Doc. 18-3, pp. 73-90; Doc. 18-4, pp. 2-14; Doc. 1814, p. 28).
None of these safety concerns were supported by a single shred of evidence.
Within its application, Plaintiff submitted a certification by a professional engineer
that the tower did not “pose a risk of explosion, fire or other danger due to its
proximity to volatile, flammable, explosive, or hazardous materials.” (Doc. 18-5, p.
12). Another engineer certified that the tower was designed to “collaps[e] upon
itself” should an unlikely event cause the structure to fall. (Doc. 18-17, p. 75). The
unsubstantiated complaints offered by the letters and petition do not constitute
substantial evidence, particularly in light of the expert documentation. The
“proximity” ground is not supported by these safety concerns.
The Court of Appeals for the Eleventh Circuit has opined on the use of
aesthetics as substantial evidence three times. In American Tower LP v. City of
The letters and petition also contained concerns about “electromagnetic
radiation” and the like emanating from the tower. However, the TCA expressly
forbids municipalities from “regulat[ing] the placement, construction, and
modification of personal wireless service facilities on the basis of the environmental
effects of radio frequency emissions to the extent that such facilities comply with
the [Federal Communications] Commission’s regulations concerning such
emissions.” 47 U.S.C. § 332(c)(7)(B)(iv) (2012). Plaintiff submitted a statement in its
application verifying that the tower would comply with FCC regulations. (Doc. 1817, pp. 49-51). The Court will disregard these complaints for the substantial
Huntsville, 295 F.3d 1203, 1206 (11th Cir. 2002), the plaintiff attempted to build a
tower in a residentially-zoned area. The plaintiff needed a height variance, as well
as the city’s permission to build the tower in the residential neighborhood. Id. At
the public hearing, “[s]everal (10+) residents in the area of the proposed tower
property testified against granting the application, and many more (60+) residents
signed a petition asking the [city] to deny the application,” leading the city to turn
down the plaintiff’s request. Id.
The court began its discussion by declaring:
Land use decisions are basically the business of state and local
governments. The Telecommunications Act of 1996 (“TCA”) does not
say otherwise. The legitimate power of federal courts to interfere in the
kind of zoning decision involved in this case is limited.
Id. at 1206-07 (citations omitted). The court found that the city “was authorized to
consider . . . the proposed tower’s negative aesthetic impact (as well as its effect on
property values) and the proposed tower’s effect on the health, safety, and welfare of
the public” pursuant to the city’s zoning ordinances. Id. at 1208. The court held that
“testimony from several residents on the negative aesthetic and value impact of the
proposed tower” was enough to show that the city’s denial was supported by
substantial evidence. Id. The court highlighted testimony from a realtor who
testified that the tower would devalue property in the area and “that she had
already lost potential buyers for her own property in the area because of the
proposed tower.” Id. This testimony, coupled with “testimony on safety questions
tied to the proposed tower’s unusual proximity to two schools and several soccer
fields used by children,” provided the city with substantial evidence for its decision.
Id. at 1208-09.
Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11th Cir. 2002), was
decided approximately two weeks later. The plaintiff requested conditional use
approval to build a 250-foot tower on “property with an appropriate zoning
classification approved for the construction of a tower.” Id. at 1219. At the hearing,
“several members of the public verbally opposed construction of the tower,”
apparently because of its “visual obtrusiveness.” Id. at 1213. In addition, the county
was in possession of petitions signed by over fifty people that “objected generally to
the construction of the tower.” Id. The county denied the application for a
conditional use permit. Id. at 1214.
The court held that “the citizens’ generalized concerns about aesthetics are
insufficient to constitute substantial evidence upon which the Board could rely.” Id.
at 1219. A negative aesthetic impact can only provide “a valid basis for denial of a
permit if substantial evidence of the visual impact of the tower is before the board.”
Id. Denials are not justified when supported only by “[m]ere generalized concerns
regarding aesthetics.” Id.
In Michael Linet, Inc. v. Village of Wellington, Florida, 408 F.3d 757, 760
(11th Cir. 2005), the plaintiff sought to build a 120-foot tower disguised as a flagpole
on a golf course. The plaintiff was required to get approval by the village due to the
height of the structure. Id. At the hearing, “[r]esidents testified that they would not
have purchased their homes if the pole was present and a local realtor testified the
pole would adversely impact home resale values.” Id. The village declined to issue
the plaintiff a construction permit. Id.
The Eleventh Circuit began by stating:
A blanket aesthetic objection does not constitute substantial evidence
under § 332. Such a standard would eviscerate the substantial
evidence requirement and unnecessarily retard mobile phone service
development. Aesthetic objections coupled with evidence of an adverse
impact on property values or safety concerns can constitute substantial
evidence. Also relevant is whether the company can reasonably place a
cell site in an alternative location and eliminate the residents’
Id. at 761-62 (citations omitted). The court determined that the testimony by the
residents and realtor regarding “adverse property value impact concerns,” combined
with the plaintiff’s failure to “show that an alternative location was unavailable or
unfeasible” and the site’s location “unnecessarily close to a local middle school,” was
enough to constitute substantial evidence. Id. at 762.
A survey of Eleventh Circuit district court cases regarding aesthetics since
the Michael Linet decision reveals very little consistency. See, e.g., PI Telecom
Infrastructure, LLC v. City of Jacksonville, Fla., 104 F. Supp. 3d 1321, 1345 (M.D.
Fla. 2015) (holding that simulated photographs “of a proposed cell tower from a
public park, a space which, by ordinance, the City is trying to protect and keep
pristine, rises above ‘mere generalized concerns regarding aesthetics’”); T-Mobile S.
LLC v. City of Milton, Ga., 27 F. Supp. 3d 1289, 1301-02 (N.D. Ga. 2014) (finding
that balloon test evidence showed the negative impact on residences as well as
“specific farms, equestrian facilities, and scenic highway corridors”); T-Mobile S.
LLC v. Cobb Cnty., Ga., No. 1:10-cv-0111-WSD, 2011 WL 336641, at *7-8 (N.D. Ga.
Jan. 31, 2011) (ruling that testimony by a realtor of the detrimental impact on
property values and the site’s location in an area zoned residential were enough to
support the denial); Vertex Dev., LLC v. Manatee Cnty., 761 F. Supp. 2d 1348, 1370
(M.D. Fla. 2011) (deciding that “[t]he photo simulation, residents’ testimony,
property value evidence, and testimony concerning alternative cell phone tower
sites constitute substantial evidence within the record upon which the BOCC was
entitled to base the BOCC’s decision”); Wireless Towers, LLC v. City of Jacksonville,
Fla., 712 F. Supp. 2d 1294, 1304-05 (M.D. Fla. 2010) (concluding that photographic
simulation evidence of the impact the tower would have on views from the
surrounding areas, which included a state park, a preserve, and a creek used as a
kayak trail, constituted substantial evidence); Verizon Wireless Pers. Commc’ns LP
v. City of Jacksonville, Fla., 670 F. Supp. 2d 1330, 1343 (M.D. Fla. 2009)
(determining that balloon test evidence supported the wireless company and that
letters complaining of the view from a park and preserve were unsupported by
evidence); T-Mobile S., LLC v. Coweta Cnty., Ga., No. 1:08-CV-0449-JOF, 2009 WL
596012, at *9 (N.D. Ga. Mar. 5, 2009) (holding that a resident’s complaint that the
proposed tower would ruin the view and lower property values was generalized and
did not constitute substantial evidence); Vertex Dev., LLC v. Marion Cnty., No.
5:07-cv-380-Oc-10GRJ, 2008 WL 2994259, at *16-17 (M.D. Fla. Aug. 1, 2008)
(judging that aesthetics was only a generalized concern when the only evidence in
support was testimony by one homeowner “who personally witnessed the photo
simulations and confirmed that the tower would be barely visible” and general
layman testimony about decreasing property values); T-Mobile S. LLC v. City of
Jacksonville, Fla., 564 F. Supp. 2d 1337, 1347-48 (M.D. Fla. 2008) (finding
substantial evidence composed of a planning committee’s recommendation of denial,
simulated photographs of the proposed tower, and “uncontroverted testimony” by
residents that trees meant to provide a buffer around the tower were being
removed); Se. Towers, LLC v. Pickens Cnty., Ga., 625 F. Supp. 2d 1293, 1304 (N.D.
Ga. 2008) (reasoning that balloon test evidence showing views of the tower from
several structures within a historical district was enough to meet the substantial
evidence standard); TBCom Props., LLC v. City of New Smyrna Beach, No. 6:06-cv1677-Orl-28KRS, 2007 WL 1970863, at *4 (M.D. Fla. July 3, 2007) (ruling that the
city’s denial based on aesthetics was invalid when the 195-foot proposed tower was
located near other tall structures, including “gas station signs of 110 and 91 feet”).
It is apparent that there is no bright line rule to determine whether a given amount
of aesthetic evidence is enough to support a finding of substantial evidence.
In this case, the residents’ concerns were “generalized” as in Preferred Sites.
The residents’ protest of the tower impact on neighborhood views was not supported
by any evidence. The only evidence relating to the tower’s changing of the city’s
landscape is found in Plaintiff’s application. (Doc. 18-2, pp. 4-5). The first simulation
shows how the tower would appear next to the stadium. The second simulation
shows how the tower would look when viewed from a residence at an undisclosed
location. At this particular residence, the majority of the tower is hidden from view
by trees. Regardless, there is no indication that the Board considered these
photographs when making its decision or that any of the residents referenced these
photographs in making their complaints. The lack of evidence relating to the views
of the tower is amplified when considering the current “character” of the proposed
location. While the stadium site is bordered on three sides by residentially-zoned
areas, the south side of the stadium site is an industrially-zoned area composed of
abandoned buildings, a railroad track, and a detention pond. (Doc. 18-1, pp. 65-66;
Doc. 18-2, pp. 24-25, 27-28; Doc. 18-3, p. 2). The tower is located near a stadium
with several light poles approximately “80-100 feet” tall.5 (Doc. 18-2, p. 4; Doc. 1818, p. 22; Doc. 21-1, p. 5).
The residents also complained of declining property values. Defendant cites
to a plethora of Alabama case law holding that “a property owner [is competent] to
testify on the value of his or her land.” (Doc. 30, pp. 11-12). While it appears that
these cases all address the owner’s valuation of property after an event has occurred
rather than a prospective valuation, the Eleventh Circuit used an Alabama statute
to hold that residents can testify about a prospective tower’s “impact on property
values.” See Am. Tower, 295 F.3d at 1208 n.7; Ala. Code § 12-21-114 (LexisNexis
2012). The problem here is that there were no individualized concerns about
declining property values. The residents’ complaints were composed of general and
The Board’s attorney stated at the hearing, “The light poles maybe eighty to
a hundred feet are right behind [the tower]. And if those are already there, and this
was discussed amongst the planning commission members, what additional
aesthetic negative impact does this have on the community with those 80 to 100 foot
light poles there. I guess there is probably 10 of those within 100 yards of this
proposed location.” (Doc. 21-1, p. 5).
unfounded speculation that towers decline property values.6 In fact, the Eleventh
Circuit in addressing a tangential issue recognized that “residential districts can
exist in which a tower would not impact on property values significantly” and
“significant negative impact on property values is not inherent with towers in
residential districts.” Am. Tower, 295 F.3d at 1208 n.7. Such vague and speculative
protests as those here cannot constitute substantial evidence. Additionally, there
was no testimony by any professional, such as a realtor, as in American Tower or
Michael Linet. Like the complaints of the tower’s impact on the residents’ views, the
concerns about property values are generalized and unsubstantiated.
Finally, Defendant argues that Plaintiff failed to consider camouflaging the
tower to minimize its aesthetic impact. (Doc. 24, p. 21). Defendant’s municipal code
addresses the camouflage of towers:
Two pastors were concerned with “[t]he value of property in the . . .
community.” (Doc. 18-3, pp. 26-27). One form letter suggested that the tower could
deter “future home buyers . . . should resale of our homes become desired or
necessary” and argued that “[r]esearch on this subject documents that cell phone
towers . . . can decrease property values as much as 20%.” Id. at 28-32, 43-44.
Another form letter stressed that “studies have demonstrated, and local realtors can
attest, that these cell towers drive down housing prices by as much as 20 percent.”
Id. at 35-36, 42, 45-47, 49, 52, 57-68. Yet another form letter asserted that “home
values will decline,” an argument that had allegedly “been validated in many
communities across the country that also did not want towers in their
neighborhoods.” (Doc. 18-3, pp. 37-41, 51, 53-56, 69, 71; Doc. 18-4, p. 15). One couple
questioned whether “there [is] documented validation that the impact of this cell
tower will not decrease home values in our community.” (Doc. 18-4, p. 22). Another
couple “under[stood] that the value of our homes will substantially decrease with
this unwanted addition to the community.” Id. at 44. The petition listed “[t]he loss
of property and home resale values” as one of the reasons for opposing the tower.
(Doc. 18-3, pp. 73-90; Doc. 18-4, pp. 2-14; Doc. 18-14, p. 28). Finally, those opposed
at the hearing spoke of “the certain decrease in property values that this tower will
have on their homes.” (Doc. 18-18, p. 19).
Camouflage. All towers and telecommunications facilities shall be of
camouflage design standards. Examples of camouflage facilities
include, but are not limited to, architecturally screened roof mounted
antennas, antennas integrated into architectural elements, and
telecommunications towers designed to blend into the surrounding
environment or to look other than a tower such as light poles, power
poles and trees. At a minimum, all towers not requiring FAA painting
or marking shall have an exterior finish which is galvanized or painted
a dull blue, gray, or black.
Mobile, Ala. Code § 64-4(J)(16). There is no indication in the record that Plaintiff
failed to satisfy this requirement. Plaintiff did not request a camouflage variance.
Rather, it appears that Defendant inquired whether Plaintiff could exceed the
minimal camouflage requirement. At the hearing, the Board questioned whether
the tower could be camouflaged like a flagpole and whether residents would be
receptive of that change, although the members appear to have decided that it
would not be prudent “to offer a compromise without [the residents’] input.” (Doc.
21-1, pp. 3-4; Doc. 18-18, p. 22). Camouflage does not seem to have factored into the
Board’s decision to deny. Further, Plaintiff argues that a flagpole design would have
prevented collocation on the tower, which is prohibited by Defendant’s municipal
code. (Doc. 29, p. 17). The code requires all new towers to be “capable of supporting
another person’s [comparable] operating telecommunications facilities.” Mobile, Ala.
Code § 64-4(J)(4)(e). The minutes of the hearing records Plaintiff’s representative as
stating “that the downside of a flagpole design is the number of units that can be
collocated on the structure, and their goal is to have towers on which multiple
companies can place their equipment rather than having to build more towers.”
(Doc. 18-18, p. 22). There is no indication that Plaintiff’s tower failed to meet
Defendant’s camouflage ordinances. An aesthetics argument against the tower is
not supported by substantial evidence.
b. Additional Sites and Collocation
The remaining two grounds for denial were based on the availability of other
sites to construct the tower and other towers for collocation of Plaintiff’s cellular
antennas. These objections are not supported by any evidence whatsoever. In fact,
the evidence in the record regarding additional sites and collocation completely
supports Plaintiff. At the hearing, Plaintiff’s representative provided a coverage
map to the Board and explained that the proposed site was the “only spot” that
would allow Plaintiff to fill “gaps in the cell coverage.” (Doc. 21-1, p. 2). The
representative testified that this conclusion was supported by engineering data. Id.
Regarding collocation, the Staff’s report states that “the applicant has submitted
written, technical evidence from an engineer that the proposed [tower] cannot be
installed or collocated on another tower.” (Doc. 18-8, p. 46). The report goes on to
[T]here are two other cellular communications towers within a one-half
mile radius of the subject site. One is owned by Alabama Power
Company and within its service compound approximately 900’ to the
Southeast, but it is only 105’ high which is insufficient to provide
adequate service. A 140’ high tower located approximately 775’ to the
Southwest is on Mobile County Public School property, but it is
restricted to the sole use of the Mobile County Public School System by
variance approval conditions.
Id. This evidence directly contradicts the Board’s grounds for denial. The evidence
supporting the denial is composed of generalized concerns from residents7 and
A letter from a school commissioner stated, “Structures such as cell phone
towers are better suited in industrial locations away from residential communities.”
unsubstantiated speculation from Board members that another location would be
more suitable. (Doc. 21-1, pp. 5-6). It is apparent that neither of these grounds were
supported by any evidence at all, much less substantial evidence.
In sum, the Court finds that the Board’s denial was not supported by
substantial evidence. It is important to note that this ruling does not determine
whether there was enough evidence before the Board to properly deny Plaintiff’s
application. Rather, the Court only holds that the Board’s three grounds for denial
were unsupported by substantial evidence. The Court can neither create grounds for
denial based on the record, nor can the Court allow Defendant to offer additional
grounds for denial at the summary judgment stage. On this issue, Plaintiff is
entitled to summary judgment, and Defendant’s motion for summary judgment
must be denied.
2. Effective Prohibition
Plaintiff’s second and final claim suggests that Defendant’s denial
“prohibit[ed] or ha[d] the effect of prohibiting the provision of personal wireless
services.” 47 U.S.C. § 332(c)(7)(B)(i)(II) (2012). Specifically, Plaintiff claims that the
denial “amounts to an effective prohibition of wireless services.” (Doc. 1, p. 7). The
(Doc. 18-3, p. 24). One pastor suggested “that a more suitable place be located to
place this tower,” while another two opined “that it would be a wise decision to place
the tower in an industrial area instead of a residential area.” Id. at 25-27. One
couple urged, “Another location should be selected where there are no residents—a
commercial or industrial area should be an alternative.” (Doc. 18-4, p. 22). Another
couple pleaded, “We strongly feel another location should be selected where there
are no residents.” Id. at 44. The form letters had similar complaints. (Doc. 18-3, pp.
28-72; Doc. 18-4, p. 15). Finally, the petition demanded, “An industrial location
should be selected.” (Doc. 18-3, pp. 73-90; Doc. 18-4, pp. 2-14; Doc. 18-14, p. 28).
Eleventh Circuit has yet to address the “effective prohibition” portion of the TCA.
There is currently a split amongst circuits regarding what requirements a plaintiff
must meet to show effective prohibition. See PI Telecom Infrastructure, 104 F.
Supp. 3d at 1346; see also Andrew Erber, Note, The Effective Prohibition
Preemption in Modern Wireless Tower Siting, 66 Fed. Comm. L.J. 357, 365 (2014).
The Fourth Circuit has interpreted this provision to only prohibit “a ‘blanket ban’
on wireless service,” “a general policy that essentially guarantees rejection of all
wireless facility applications,” or “the denial of an application for one particular site
[that] is ‘tantamount’ to a general prohibition of service.” T-Mobile Ne. LLC v.
Fairfax Cnty. Bd. of Supervisors, 672 F.3d 259, 266 (4th Cir. 2012); see also AT&T
Wireless PCS, Inc. v. City Council of City of Va. Beach, 155 F.3d 423, 428 (4th Cir.
1998). The Second and Third Circuits employ a two-step effective prohibition
analysis: (1) determine whether the area has a significant gap in general wireless
coverage, and (2) determine whether the applicant submitted sufficient evidence
showing a lack of alternatives. See Sprint Spectrum L.P. v. Willoth, 176 F.3d 630,
643 (2d Cir. 1999); Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of
Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir. 1999); Omnipoint Commc’ns Enters., L.P. v.
Newton Twp., 219 F.3d 240, 244 (3d Cir. 2000). The First, Sixth, and Ninth Circuits
apply a test similar to the Second and Third Circuits, with a slight variation.
Instead of determining whether an area has a significant gap in general wireless
coverage, those courts determine whether the area has a significant gap in the
applicant’s own wireless coverage. See Second Generation Props., L.P. v. Town of
Pelham, 313 F.3d 620, 634 (1st Cir. 2002); T-Mobile Cent., LLC v. Charter Twp. of
W. Bloomfield, 691 F.3d 794, 807 (6th Cir. 2012); MetroPCS, Inc. v. City & Cnty. of
S.F., 400 F.3d 715, 733 (9th Cir. 2005), abrogated on other grounds by T-Mobile S.,
LLC v. City of Roswell, Ga., 135 S. Ct. 808 (2015). The Fourth Circuit’s approach is
the most stringent, while the test followed by the First, Sixth, and Ninth Circuits is
the most lenient. The Court need not determine which test the Eleventh Circuit is
most likely to adopt, as Plaintiff fails to meet even the most plaintiff-friendly
A district court conducts its effective prohibition analysis de novo. See Second
Generation Props., 313 F.3d at 629. As Defendant points out, Plaintiff must first
show the existence of a significant gap in coverage before the Court need consider
whether the proposed plan is the least intrusive means available. See MetroPCS,
400 F.3d at 734. The only evidence supporting Plaintiff’s contention are maps
showing coverage before and after the construction of the proposed tower and
testimony at the hearing by Plaintiff’s representative expressing the need to close in
the “gap.” The coverage maps show a “best signal level” increase from greater than
or equal to -90 and -100 dBm to greater than or equal to -70 and -80 dBm with the
There is a further split amongst circuits as to the second part of the test.
The Second, Third, Sixth, and Ninth Circuits determine whether the applicant’s
plan for the tower is the “least intrusive means” available, while the First and
Seventh Circuits analyze whether there are “no alternative sites.” See Erber, supra,
at 372. The former seems to provide the lowest bar to a plaintiff, although it is not
entirely clear that there is a significant difference between the two standards. See,
e.g., T-Mobile S. LLC v. City of Margate, No. 10-cv-60029, 2011 WL 1303898, at *4
(S.D. Fla. Apr. 4, 2011). The Court does not reach the application of either standard
in this case.
new tower. (Doc. 18-17, pp. 18-19). The testimony of Plaintiff’s representative at the
hearing merely verbalizes that which is shown by the propagation maps. (Doc. 21-1,
pp. 2-3). The scant evidence submitted to the Board and, subsequently, the Court
does not amount to the showing of a significant gap in coverage. Plaintiff did not
submit any evidence such as engineering data or customer testimony that has been
used to support a “significant gap” argument in other cases. See, e.g., MetroPCS,
400 F.3d at 733; T-Mobile Cent., 691 F.3d at 807. Although it is possible that
propagation maps alone may support a finding of a significant coverage gap,
Plaintiff’s color-coded maps display only a change in signal strength without
explaining the effects of the current weaker signal on cellular customers. Plaintiff
has not submitted any evidence to the Court that would allow a determination of
the existence of a coverage gap. While Plaintiff has shown a gap in signal strength
in the stadium site area, Plaintiff has not carried its burden of showing that this
gap is significant in terms of coverage for purposes of the effective prohibition
analysis. Therefore, Defendant’s motion for summary judgment on this issue is due
to be granted, and Plaintiff’s motion for summary judgment must be denied.
The TCA does not provide a remedy for a violation of its substantial evidence
provision. It only states, “Any person adversely affected by any final action . . . by a
State or local government . . . that is inconsistent with this subparagraph may,
within 30 days after such action . . . , commence an action in any court of competent
jurisdiction. The court shall hear and decide such action on an expedited basis.” 47
U.S.C. § 332(c)(7)(B)(v) (2012). The Eleventh Circuit has recognized that
“developing case law hold[s that] injunctive relief best serves the TCA’s explicit goal
of expediting resolution of this type of action.” Preferred Sites, 296 F.3d at 1222
n.13. The court held that “an injunction ordering issuance of a permit is an
appropriate remedy for a violation of [the TCA].” Id. at 1222.
In this case, Plaintiff urges the Court to “enter an injunction or other order
directing the City’s Board of Zoning Adjustment to approve Cellular South’s
Application.” (Doc. 22, p. 16). The Court finds, as other district courts in the
Eleventh Circuit have found, that an injunction is proper here to facilitate the
TCA’s goal of “expediting [the] resolution of this type of action.” See, e.g., Verizon
Wireless of the E., L.P. v. Columbia Cnty., Ga., No. CV 114-211, 2015 WL 1877452,
at *16-17 (S.D. Ga. Apr. 23, 2015); TowerCom V, LLC v. City of Coll. Park, Ga., No.
1:13-cv-530-SCJ, 2013 WL 4714203, at *11 (N.D. Ga. Aug. 21, 2013); T-Mobile S.
LLC v. City of Margate, No. 10-cv-60029, 2011 WL 1303898, at *12 (S.D. Fla. Apr.
4, 2011). Having found that Defendant’s denial of Plaintiff’s request for zoning
variances to construct a cell phone tower is not supported by substantial evidence
contained in the written record, and thus a violation of 47 U.S.C. § 332(c)(7)(B)(iii),
the Court ORDERS Defendant to approve Plaintiff’s application for zoning
Plaintiff’s motion for summary judgment is hereby GRANTED as to Count
1 and DENIED as to Count 2, and Defendant’s motion for summary judgment is
GRANTED as to Count 2 and DENIED as to Count 1. Defendant is hereby
ORDERED to approve Plaintiff’s application for construction of its cellular tower at
the stadium site location.
DONE and ORDERED this 8th day of July, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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