T-Mobile South, LLC v. City of Milton, Georgia

Filing 62

ORDER denying 23 Plaintiff's Motion for Partial Summary Judgment based on § 332(c)(7)(B)(iii). Signed by Judge Richard W. Story on 6/18/2014. (bdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
T-MOBILE SOUTH LLC,
Plaintiff,
v.
CITY OF MILTON, GEORGIA,
Defendant.

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CIVIL ACTION NO.
1:10-CV-1638-RWS

ORDER
This case is again before the Court on Plaintiff’s Motion for Partial
Summary Judgment [23]. The Court’s previous Orders on Plaintiff’s motion
([33], [39]) were reversed by the Eleventh Circuit and the case was remanded.
(11th Cir. Opin., [56].) After reviewing the Circuit Court’s opinion, the Parties’
submissions, and the record, the Court enters the following Order.
Background
The factual background is fully laid out in the Eleventh Circuit’s opinion
[56] and the Court’s prior Order [33]. What follows is a brief overview of the
case’s procedural history and the Circuit Court’s holding.

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T-Mobile moved for partial summary judgment on the issue of whether
the City of Milton (“Milton”) violated 47 U.S.C. § 332(c)(7)(B)(iii), which
provides: “Any decision by a State or local government or instrumentality
thereof to deny a request to place, construct, or modify personal wireless service
facilities shall be in writing and supported by substantial evidence contained in
the written record.” On June 24, 2011, the Court entered an Order ([33])
holding that Milton had failed to meet the statute’s writing requirement. In
reaching its decision, the Court only considered Defendant’s initial decision
letters (two denial letters and a conditional approval letter), which did not set
forth the reasons underlying Milton’s decisions. ([33] at 5-7.) The Court
declined to consider other written documents in the record such as hearing
transcripts and minutes. (Id.)
In that same Order, the Court remanded the case to Milton “to adequately
state in writing its grounds for denial and/or conditional approval” because
“[s]uch a proper written denial by the Defendant is necessary in order for the
Court to rule on the issue of whether there was substantial evidence to support
Defendant’s decisions.” ([33] at 8.) But upon T-Mobile’s motion for
reconsideration ([35]), which argued that remand is an improper remedy for
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failure to satisfy the Telecommunications Act’s (“Act”) writing requirement,
the Court found that Milton’s conduct warranted an injunction. ([39]).
Accordingly, the Court permanently enjoined Milton from denying T-Mobile’s
applications, subject to T-Mobile producing proper wind load certifications for
each of the three sites. ([39] at 7.) Milton appealed.
The Eleventh Circuit disagreed with the Court’s interpretation of §
332(c)(7)(B)(iii) and held that Milton had satisfied the Act’s writing
requirement. (11th Cir. Opin., [56] at 26.) The Circuit Court stated:
The words of the statute we are interpreting require
that the decision on a cell tower construction permit
application be “in writing,” not that the decision be
“in a separate writing” or in a “writing separate from
the transcript of the hearing and the minutes of the
meeting in which the hearing was held” or “in a single
writing that itself contains all of the grounds and
explanations for the decision. . . . All of the written
documents should be considered collectively in
deciding if the decision, whatever it must include, is
in writing.
(Id. at 25.) According to the Circuit, to determine whether Milton satisfied §
332(c)(7)(B)(iii), the Court should have considered: (1) transcripts of the
Planning Commission’s hearings; (2) transcripts of the City Council’s hearings;
(3) the initial decision letters sent from Milton to T-Mobile; and (4) detailed
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minutes of the City Council hearings. (Id. at 25-26.) In light of the Eleventh
Circuit’s opinion, the Court now considers whether, based on the whole written
record, Milton’s decisions were supported by substantial evidence.
Discussion
I.

Legal Standard - Summary Judgment
Federal Rule of Civil Procedure 56 requires that summary judgment be

granted “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 moving
party bears ‘the initial responsibility of informing the . . . court of the basis for
its motion, and identifying those portions of the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact.’”
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the
moving party makes such a showing, the burden shifts to the non-movant, who
must go beyond the pleadings and present affirmative evidence to show that a
genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 257 (1986).
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The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
Finally, in resolving a motion for summary judgment, the court must
view all evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296
(11th Cir. 2002). But, the court is bound only to draw those inferences which
are reasonable. “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
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II.

Decisions Supported by Substantial Evidence
A.

Substantial Evidence Standard

“Substantial evidence” is not defined in the Act. “The Conference
Committee for the [Act], however, expressly noted ‘substantial evidence’ is
meant to be ‘the traditional standard used for judicial review of agency
actions.’” Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210, 1218 (11th Cir.
2002) (citations omitted). “Substantial evidence is more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quotations and citation omitted). “Although the
‘substantial evidence’ standard is not as stringent as the preponderance of the
evidence standard, it requires courts to take a harder look then when reviewing
under the arbitrary and capricious standard.” Id. (citation omitted). “Finally, to
determine whether the substantial evidence standard is met, a court should view
the record in its entirety, including evidence unfavorable to the state or local
government’s decision.” Id. (citation omitted).
B.

Evidence in the Written Record

As the Eleventh Circuit’s opinion notes, the application process and
written record are similar for the three proposed sites (Mountain Road,
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Hopewell Road, and New Providence Road). The City of Milton Planning
Commission held a hearing on March 23, 2010, to discuss all three applications.
That hearing was transcribed and Action Minutes memorializing the hearing
were later approved. The Planning Commission voted unanimously to deny all
three applications. Then, on April 26, 2010, the City Council of Milton held its
public hearing on the three applications. That hearing was also transcribed and
summarized in approved minutes.1
The City Council denied T-Mobile’s Mountain Road and Hopewell Road
applications, and conditionally approved the New Provide Road tower. It is
undisputed that Milton’s initial letters did not contain any reasons for the City’s
decisions. Thus, the Court directs its attention to the written record from the
Planning Commission and City Council proceedings.2
1.

Mountain Road Location
a.

Evidence in support of the application

1

The minutes from the City Council hearing mirror the contents of the hearing
transcript.
2

The Court and the Eleventh Circuit agree that conditional approvals, such as
the one issued here, can constitute final adverse actions and trigger plaintiffs’ right to
file suit claiming violations of the Act. Thus, the substantial evidence standard must
be satisfied for all three of Milton’s decisions.
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Shawn Blassingill, T-Mobile’s representative, spoke at the City Council
hearing in favor of the application.3 First, he stated that there were no
“collocation” opportunities on existing towers or structures in the area that
would meet T-Mobile’s coverage objectives. (City Council Minutes, [22] CDRom, MTN_RD_000682.) Further, he stated, there were no industrial or
commercial zones in the search area. (Id.) He said that T-Mobile had found an
alternate tower site on a nearby golf course, but the property owners were not
interested in leasing space to T-Mobile. (Id.) He noted that the proposed
Mountain Road tower satisfied the height and set-back requirements under the
City’s zoning ordinance, and there would be minimal disturbance to the natural
surroundings because T-Mobile planned to use an existing gravel driveway to
access the site and no trees would be cut down to build the tower. (Id.)
In response to statements made by opponents of the tower, Blassingill
addressed the possibility of lowering the tower height. He stated that the

3

The statements given at the Planning Commission hearing – both in favor of,
and in opposition to, all three applications – were repeated almost verbatim at the City
Council hearing. Everyone who spoke before the Planning Commission hearing also
spoke in front of the City Council, along with a few additional speakers. Thus, to
avoid unnecessary repetition and give the most complete account of the evidence, the
Court focuses its discussion on the evidence presented at the City Council hearing.
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proposed 145-foot tower was the minimum height required to sustain calls in
the area. (Id. at 000682-83.) He said that if T-Mobile reduced the tower height
to 100 feet, it may improve the aesthetics, but would require the company to put
up another tower nearby, which may not be allowed under Milton’s separation
requirements for such structures. (Id. at 000683.)
Marquise Lewis, T-Mobile’s radio frequency engineer, dismissed the
possibility of using alternative technologies to improve cell service in the area.
She explained that a “peak-a-cell” design allows T-Mobile to place a small
device on an existing structure; however, those devices serve a very small
radius and require a high number of structures on which to collocate, which
were not available in Milton. (Id. at 000688.) Furthermore, she explained, athome “booster” or repeater devices would not work in Milton because the
signal strength in the area is not adequate in the first place. (Id.) She
analogized those devices to turning up the volume on a radio station when the
station starts to experience static – you do not end up with a clearer signal, only
louder static. (Id.) She also noted that voice services, not data services, were
the focus of T-Mobile’s application, stating: “That is in accordance with our
research and what we found that in general, in the area that we’re trying to
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serve, a customer cannot reliably make and maintain a call in their vehicle and
in their home.” (Id. at 000691.)
Harris Simpson, a real estate appraiser, was hired to study the Mountain
Road site and render an opinion about whether the proposed tower would have
an impact on property values. (Id. at 000689.) According to Simpson, the data
“didn’t suggest that there was an impact on appreciation or price per square
foot.” (Id.) He concluded: “we looked at this proposed tower location and we
felt that it was a reasonable location and we did not think that it would impact
property values or appreciation rates of surrounding properties and that is in the
data.” (Id.)
Georgia Tax and Regulatory Solutions (“GTRS”), an independent
consulting firm hired by Milton to evaluate all three of T-Mobile’s applications,
made some findings in favor of the Mountain Road tower. Specifically, GTRS
found: (1) the property is zoned Agricultural and telecommunications towers
are a permitted use in that zoning designation; (2) “the Applicant has
demonstrated that there is poor coverage in this geographic service area;” and
(3) the property is wooded and will provide some natural screening for the
tower and its accessory structures, and a minimum number of trees would need
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to be cut down because the Applicant proposes to use an existing driveway.
(Id. at 000678.)
One resident, Mr. Prakash, spoke in favor of the Mountain Road tower.
He stated that he was unable to use his T-Mobile phone in his house. (City
Council Hearing Re: Mountain Road, [1-2] at 6 of 23.) Mr. Prakash said that he
knew of “several other people in the same situation in this neighborhood.” (Id.)

b.

Evidence against the application

Lynn Tully, Milton’s Community Development Director, spoke against
the proposed tower. According to Tully, staff reviewed T-Mobile’s application
and “determined the proposed monopole cell tower is inconsistent with the
intent and policies of the focus Fulton 20/25 comprehensive plan in the areas of
encouraging development that is consistent with the surrounding scale transition
of densities and uses, . . . as well as protecting the existing rural character of
Northwest Fulton.” (City Council Minutes, [22] CD-Rom, MTN_RD_000676.)
Staff also concluded that the proposed tower was inconsistent with adjacent
land uses – single family residences on large agricultural parcels and associated
agricultural uses such as barns and riding rings. (Id.)
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GTRS’s Mountain Road report contained some findings unfavorable to
the proposed tower, specifically: (1) an alternate location was identified, which
would provide better screening of the tower and enable the tower to be placed
further from residences and roadways (but recognizing that the property owners
at that location would not discuss the possibility of putting a tower there); (2) a
balloon test showed that the tower was clearly visible above the tree line and
this “could have an adverse impact on the adjacent and neighboring properties;”
and (3) “[a]lthough a reduction in height may not provide the signal strength
desired by the Applicant, it will greatly improve coverage in the area.” (Id. at
000677-81.)
Four residents spoke against the Mountain Road tower. They gave
several reasons for denial, including: availability of other technologies to
improve cell service (such as those addressed by Ms. Lewis, T-Mobile’s
engineer); preserving the rural atmosphere and unique landscape of Milton; and
potential negative impact on property values. (See generally, City Council
Transcript, [1-2].) Additionally, twenty-five residents conducted their own test
regarding the need for better T-Mobile coverage in the area. They used TMobile phones to make calls from indoors in the vicinity of the proposed
12

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Mountain Road tower and submitted affidavits saying they had “100 percent
coverage” in the area. (City Council Minutes, [22] CD-Rom,
MTN_RD_000687.) They contended that there was adequate T-Mobile
coverage already and no coverage gap warranting a tower. (Id.)
c.

Rationale underlying Milton’s decision

Toward the conclusion of the Planning Commission’s hearing,
Councilmember Ragsdale offered his reasons for denying all three applications:
(1) T-Mobile had not met the technical requirement under Milton’s zoning
ordinance of providing wind load certifications with its applications; (2) lack of
evidence that users in the service areas saw the need for better T-Mobile
Coverage; and (3) aesthetic concerns and the potential existence of alternate
tower sites that may be more aesthetically pleasing. (Planning Comm’n
Transcript, [1-5] at 8 of 14.) Chairman Moore added that his three votes were
partly based on the fact that something below 100 percent cellular coverage is
acceptable, and lower tower heights might accomplish an inferior level of
coverage but be “more in keeping with the aesthetics of Milton.” (Id.)4 The

4

These comments offered by Ragsdale and Moore are the only ones in the
Planning Commission’s transcript that discuss the Commission’s rationale for its
decisions. No rationale was recorded in the Action Minutes from the Commission’s
13

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Action Minutes from the Planning Commission’s hearing provide no further
insight into the Commission’s decisions. (See generally, Planning Comm’n
Action Minutes, [22] CD-Rom.)
At the City Council hearing on April 26, 2010, Councilmember Bailey
moved to deny the application “for the following, not exhaustive set of
reasons:” (1) Plaintiff’s failure to submit a wind load certification with its
application, as required by Milton’s zoning code; (2) “the proposed tower is
inconsistent with the adjacent land use as a single-family residence on large
agricultural parcels and incompatible based on the location of the tower to
adjacent residential structures;” (3) “the proposed tower is inconsistent with the
surrounding scale, transition of densities, and does not protect the existing rural
character of Milton;” (4) “all of those reasons supporting denial set forth in the
March 22, 2010 [GTRS] letter to the City of Milton Planning Development
Division;” and (5) “the multitude of other reasons” given by citizens at the
hearing. (City Council Transcript, [1-2] at 14 of 23.) GTRS’s letter referenced
by Councilmember Bailey gave the following reasons for recommending

hearing. The comments, offered at the very end of the hearing in summary fashion,
apply to all three applications. To avoid repetition, the Court will not reiterate these
arguments with respect to the other two applications.
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denial: (1) there is no “coverage gap” in this area, but “wireless coverage does
not meet the level desired by the Applicant;” and (2) “review of the topography
of nearby properties indicates that there are properties that would provide better
screening of the tower and therefore minimize its adverse aesthetic impact.”
(GTRS Letter Re: Mountain Road, [22] CD-Rom, MTN_RD_000413.) The
Council accepted Ms. Bailey’s motion without further discussion and voted
unanimously to deny the application.
2.

Hopewell Road Location
a.

Evidence supporting the application

Again, Mr. Blassingill spoke on behalf of T-Mobile. He noted that this
was a much larger parcel than the Mountain Road site, so T-Mobile would have
greater ability to move the proposed tower around and screen it from
surrounding neighborhoods. (City Council Minutes, [22] CD-Rom, MTN_RD_
000697.) He stated that this application also satisfied the zoning ordinance’s
height and set-back requirements, and there would be minimal disruption to the
surrounding area because T-Mobile planned to use an existing gravel drive for
access and would not have to cut down any trees. (Id. at 000697-98.) Mr.
Blassingill acknowledged that there were other parcels in the search area “that
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would provide better screening.” (Id. at 000698.) All of those property owners
were approached, apparently to no avail. (Id.)
Mr. Blassingill explained why wind load certifications had not been
produced for the three proposed towers. Typically, he stated, those types of
certifications (wind load, soil, etc.) are done after the zoning phase because
zoning officials may impose conditions or request changes to the proposed
structure (e.g., a different design or type of structure). For the certifications to
be accurate, they must take into account any mandated alterations. (Id.)
Ms. Lewis acknowledged that some pockets of the service area already
had adequate coverage, but noted that there were also gaps in coverage, which
cause interruptions when traveling throughout the area. (Id. at 000705.) “Gaps
in coverage,” according to Ms. Lewis, occur when customers are unable to
make calls or when they are unable to maintain calls in the service area. (Id. at
000706.) She also explained that even if a cell tower can reach a 25-mile
service area, half-watt cell phones are unable to send signals to a tower that far
away. Thus, practically speaking, towers are limited to a very small radius. (Id.
at 000705.)

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Ms. Lewis further explained the need for a tower in this particular
location. She said that T-Mobile has a continuous feedback system for its
subscribers where they can report trouble making calls or problems with
dropped calls. (Id. at 000707.) Those complaints, she stated, are not
necessarily from residents within the service area, but also include customers
driving through the service area. (Id.) She said: “we have had enough feedback
from our customers to know that there is a significant customer demand for
better coverage in that area and it would come from both residents and people
who drive through the area.” (Id.) T-Mobile did not submit specific customer
complaints to the Council because, Lewis explained, it would put them at a
competitive disadvantage, but they did submit an affidavit and coverage maps
explaining the need for more coverage in Milton. (Id. at 000708.)
As with the Mountain Road location, GTRS found that the tower was a
permitted use in the agricultural-zoned area and that T-Mobile had
demonstrated there was poor coverage in the area. (Id. at 000694-95.) Two
residents spoke in favor of the tower, including the owner of the property on
which the tower was to be located. He stated that the proposed lease agreement
with T-Mobile would allow him to pay increasing taxes on his property and
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continue operating his farm, which is a popular fixture in the Milton community
and comports with the City’s cultural and aesthetic values. (City Council
Transcript, [1-4] at 5 of 25.) The other resident, Ms. Grayson, stated that she
experienced dropped calls with T-Mobile in the area. (Id. at 5-6 of 25.)
b.

Evidence in opposition to the application

Milton’s Community Development staff again recommended denial of TMobile’s application because the proposed tower was inconsistent with
Milton’s long-term development plan and adjacent land uses. (City Council
Minutes, [22] CD-Rom, MTN_RD_000693.) GTRS’s report on the Hopewell
Road application gives the following reasons for recommending denial of the
application: (1) a review of the surrounding area “indicates that there are
properties that would provide better screening of the tower and therefore
minimize its adverse aesthetic impact;” (2) “Applicant’s own [radio frequency]
engineer has already approved these [alternate sites] as capable of providing the
Applicant’s coverage needs;” and (3) “the alternate sites are located closer to
the areas where the coverage gaps exist and would provide more consistent
coverage at the desired coverage level.” (City Council Minutes, [22] CD-Rom,
MTN_RD_000697.) Further, GTRS noted, unlike the Mountain Road location,
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the Hopewell Road site does not have existing tree coverage to provide natural
screening of the tower; the tower would be clearly visible from nearby
properties and roadways and “could have an adverse impact on adjacent and
neighboring properties.” (Id. at 000695.)
Opponents of the tower submitted a petition with more than 250 resident
signatures. (City Council Transcript, [1-4] at 6 of 25.) Residents who spoke at
the hearing expressed general concern about the appearance of the tower and
potential decline in property values. (Id. at 6-7 of 25.) They also expressed
specific concern about Hopewell Road’s status as a scenic highway corridor and
questioned the need for additional or improved T-Mobile coverage in the area.
(Id. at 7 of 25.)
One resident, Ms. Norvell, stated that she conducted her own study about
alleged gaps in coverage. She used her husband’s T-Mobile phone to make
calls from the area during different times of the day, inside and outside of her
car, as well as inside and outside of homes. She reported that she experienced
no dropped calls and good reception. (Id. at 7 of 25.) She also stated that some
T-Mobile customers living right next door to existing towers still do not get
service, questioning the efficacy of the towers in the first place. (Id. at 8 of 25.)
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Ms. Norvell also took pictures from her front yard during the balloon test,
which she presented to the City Council. The photos showed the proposed
tower – at approximately fifteen stories – towering over her single-story home
and the homes of her neighbors. (Id. at 7-8 of 25.)
Mr. Worley, a realtor and opponent of the tower, stated that property
values would drop if the tower were built. He reasoned, “I’ve done this for 31
years as far as selling homes, and no one has ever come to me and said, I want
to buy a house next to a retention pond, a water tower and now a cell tower.”
(Id. at 9 of 25.) He mentioned a specific nearby neighborhood north of
Alpharetta, Georgia where eleven homes sold in the last three years. However,
one home with a cell tower right behind it never sold. (Id.)
c.

Rationale underlying Milton’s decision

Aside from the reasons discussed above with respect to the Mountain
Road application, the Planning Commission’s hearing transcript and Action
Minutes do not offer any additional information about the Commission’s
rationale for recommending denial of the Hopewell Road application. (See
generally, Planning Comm’n Transcript, [1-3]; Planning Comm’n Action
Minutes, [22] CD-Rom, MTN_RD_000519.) During the City Council hearing,
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Councilmember Tart moved to deny the Hopewell Road application for the
following “non-exhaustive” reasons: (1) T-Mobile’s failure to provide a wind
load certification; (2) the proposed tower is “inconsistent with the adjacent land
uses;” (3) the proposed tower is “inconsistent with surrounding scale, transition
of densities, and does not protect the existing rural character of Milton;” and (4)
for all of the reasons set forth by GTRS. (City Council Transcript, [1-4] at 1415 of 25.) The motion passed unanimously.
Other Councilmembers elaborated on their reasons for denying the
application. Councilmember Longoria stated: “[W]hat we’re talking about here
is a question of height. If T-Mobile had come to us with an application that was
requesting a 12-foot tower, we wouldn’t be having this discussion, and so the
reality is at some point in time, the height starts to impact the individuals that
surround the property.” (Id. at 15-16 of 25.) Councilmembers Longoria and
Lusk noted their belief that better technology that “blends into the landscape” is
available and would be more appropriate for Milton than the proposed towers.
(Id. at 16 of 25.) Councilmember Lusk also stated that “there are other sites in
the immediate vicinity that are available and would be less obtrusive than [the
Hopewell Road location].” (Id.) However, he did not refer to any specific
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alternative sites. Finally, Councilmember Thurman stated that she felt “this
kind of tower would hurt more people than it helps at the height that they have
requested.” (Id.)
3.

New Providence Road Location
a.

Evidence supporting the application

The proposed New Providence site is distinct from the other two
locations because it is situated next to an existing power easement with power
lines and poles. GTRS recommended approval of the tower with the following
conditions: submission of a wind load certification, a stealth design, and a
maximum height of 100 feet. When asked why GTRS was recommending
approval for this tower, GTRS’s representative responded that “putting a tower
next to the existing [power poles] aesthetically is probably going to be the
smallest impact on the area possible” and “we didn’t see a better alternative.”
(City Council Minutes, [22] CD-Rom, MTN_RD_000715.) GTRS also offered
its opinion that, even at a height of 100 feet, the tower would address coverage
gaps in the area. (Id. at 000717.)
However, Ms. Lewis disputed that a 100-foot tower would satisfy the
coverage objectives of T-Mobile and stated, “we do submit an application for
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the minimum height that we need to achieve our objectives.” (Id. at 000726.)
She described the process by which T-Mobile evaluates the effect a proposed
tower will have on a coverage area, which involves computer modeling and
field data. (Id. at 000728.) According to the model for New Providence Road,
with the proposed 150-foot tower, there would be 98% reliability that a TMobile customer would be able to make and maintain a call in the coverage
area. Mr. Blassingill noted that GTRS produced no such data to support its
opinion that a 100-foot tower would meet the area’s coverage needs. (Id. at
000718.)
Mr. Blassingill also pointed out that if a tower is incompatible with the
land use at New Providence Road, given the existing power poles and lines on
the property, then presumably there is no agricultural parcel in Milton with
which a cell tower would be compatible and Milton’s ordinance permitting cell
towers in agricultural zones is meaningless. (Id.) Finally, Mr. Blassingill stated
that T-Mobile had private meetings with a couple of Councilmembers during
which they discussed potential alternative technologies and why they would not
work in this area. (Id. at 000722.)

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One resident, Mr. Schmidt, spoke in favor of the tower. He stated that
the entrance to the Providence Lake neighborhood was more than half a mile
from the tower site, and based on the area’s topography, “it would be
impossible for anyone in that subdivision to see that tower even if it was 170
feet tall.” (Id. at 000720.) He noted that his house is the closest to the tower
site and he could not see the balloon during the balloon test. (Id.)
b.

Evidence in opposition to the application

The City’s Community Development staff again recommended denial of
the application because of the tower’s incompatibility with Milton’s long-term
development plan and adjacent land uses. (Id. at 000709-10.) When asked
whether the proposed tower was compatible with the existing power easement
on the New Providence Road property, Ms. Tully responded that staff felt the
tower was “incompatible with the neighborhood as a whole,” particularly with
adjoining residential and agricultural uses. (Id. at 000715.)
Mr. Fey, a resident, spoke in opposition to the tower on behalf of the
neighboring Providence Lake Homeowners Association. Mr. Fey spoke about
the availability of new technologies for improving cell service, and mentioned
other events that had already negatively impacted home values in that
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neighborhood (e.g., nearby location of a landfill). (Id. at 000719.) He also
expressed concern about potential negative health impacts, but the City
Attorney advised Councilmembers not to consider health issues in reaching
their decision. (Id. at 000720.)
Mr. Pace, another resident, also expressed concern about declining home
values in the Providence Lake neighborhood and stated that based on the
balloon test, homeowners could clearly see the proposed tower above the tree
line and the power lines. (Id. at 000721.) Furthermore, he did not believe TMobile had demonstrated “with any type of facts that there is a need for its
customers to have more coverage than they currently have.” (Id.) He labeled
T-Mobile’s position about the need for better service “conjecture,” and stated,
“we don’t see a real demand.” (Id.)
c.

Rationale underlying Milton’s decision

The Planning Commission offered no reasons for its recommendation to
deny the New Providence Road tower beyond those which have already been
discussed. (See generally, Planning Comm’n Transcript, [1-5]; Planning
Comm’n Action Minutes, [22] CD-Rom, MTN_RD_000519.) The City
Council conditionally approved the New Providence Road tower largely
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because it would be located next to the existing 100-foot-wide power easement,
allaying some aesthetic concerns that were present with the other two
applications. (City Council Transcript, [1-6] at 17-22 of 31.) However,
Councilmembers still expressed worry about the tower “blending in” with its
surroundings, and ultimately settled on the following conditions: a stealth
design (to be approved by the City’s community development manager), a
maximum height of 100 feet, and “the conditions of the City Development
Department’s recommended conditions that were included in their findings.”
(Id. at 21 of 31.)
The Development Department’s conditions included: a 20-foot landscape
strip in lieu of the required 10-foot strip to provide additional screening of the
tower and associated facilities, and site maintenance only between 8:30am and
5:30pm, Monday through Friday, except in emergencies. (City Council
Minutes, [22] CD-Rom, MTN_RD_000710.) The Department’s rationale for
imposing these conditions appears to be based on aesthetics and minimizing
disruption to local residents. (Id.)
C.

Analysis

T-Mobile maintains that there “is no substantial evidence to contravene
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[its] demonstrated need for the towers at the heights requested.” (Pl. Br., [23-1]
at 14 of 26.) First, T-Mobile argues that recommendations provided by GTRS
regarding Plaintiff’s three applications do not constitute substantial evidence.
(Id. at 15 of 26.) Although GTRS concluded that nearby properties would be
preferable for the Mountain Road and Hopewell Road towers, T-Mobile points
out that there is no evidence that nearby locations were actually available. (Id.)
Additionally, T-Mobile claims, GTRS’s recommendations regarding lower
tower heights were not supported by data or evidence showing what coverage
levels would be achieved at those lower heights, and none of Milton’s City
Council members requested such data or challenged GTRS’s recommendations.
(Id. at 16 of 26.)
Next, T-Mobile argues that generalized aesthetic concerns, lay persons’
unsubstantiated opinions about the need for cell towers, and bald speculation
about property values are not sufficient to support Milton’s denial of the towers,
particularly when T-Mobile put forth expert technical evidence on the same
issues. (Id. at 17-21 of 26.) And finally, T-Mobile argues that the absence of
wind load certifications from its applications does not amount to substantial
evidence. (Id. at 22-24 of 26.) Indeed, T-Mobile notes, when Milton
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conditionally approved the New Providence application, one condition was
provision of the certification at a later date. (Id. at 22 of 26.) Furthermore, TMobile posits, if Milton did not think the applications were complete, the City
Council should not have considered the applications when it did, and principles
of estoppel preclude the City from now claiming that the applications were
defective. (Id. at 23-24 of 26.)
The bulk of Milton’s response focuses on the aesthetic concerns
expressed by residents, Community Development Department staff, and GTRS.
Specifically, Milton argues that its denial of Plaintiff’s Mountain Road and
Hopewell Road applications “is supported by evidence of the visual impact of
the proposed [towers] on neighboring residences and the City’s rural, bucolic
aesthetics.” (See, e.g., Def. Br., [26] at 13 of 27.) According to Milton, it relied
on photo simulations of the towers provided by T-Mobile and residents, which
revealed that the towers would be clearly visible from roadways and
neighboring residences. (Id. at 13, 19 of 27.) Milton argues that such specific,
“crystalized” evidence of aesthetic impact does constitute substantial evidence.
Milton also argues that absence of wind load certifications is substantial
evidence supporting denial of Plaintiff’s Mountain Road and Hopewell Road
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applications, and to hold otherwise “effectively turns over control of the City’s
zoning requirements to T-Mobile, allowing it to pick and choose the elements it
will satisfy.” (Id. at 12-13 of 27.) According to Milton, its conditional
approval of the New Providence tower allowing for later wind load certification
“functions as the equivalent of a variance.” (Id. at 12-13 of 27.)
Milton also relied on lay person testing of cell reception in the area to
support its decisions. Milton notes, “Mr. Shepard and 25 other residents within
the [Mountain Road] tower’s anticipated propagation area tested T-Mobile’s
signal using T-Mobile phones. No dropped calls were reported; call clarity was
acceptable; and in-home signal strength was not a problem.” (Id. at 16-17 of
27.) Similarly, Ms. Norvell “detailed having tested T-Mobile’s signal in the
area to be serviced by the tower using her husband’s T-Mobile phone and
experienced no service problems, including at her own home across the road
from the proposed [Hopewell Road] tower location.” (Id. at 22 of 27.) Ms.
Norvell also highlighted the “clear discrepancy between the propagation maps
T-Mobile provided the City (showing poor coverage) and its online marketing
materials (showing ‘excellent’ coverage).” (Id.)

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Ms. Norvell also mapped out the addresses of T-Mobile’s subscribers
requesting better coverage in the tower areas (i.e., those who weighed in on the
online feedback system) and the addresses of the 250 residents who signed her
petition opposing the Hopewell Road tower. According to Milton, “[h]er map
demonstrated that the supporters did not live near the tower; in many instances
they lived outside of the City altogether, and, therefore, would receive little
benefit from the additional ‘in-building’ coverage that served as T-Mobile’s
premise for its tower.” (Id. at 20-21 of 27.) The majority of residents opposing
the towers, however, “lived within the immediate vicinity of the proposed
location and would be directly impacted by its presence.” (Id. at 21 of 27.)
According to Milton, the New Providence Road location was unique
because it adjoined an existing power easement containing high voltage
transmission towers and lines. (Id. at 23 of 27.) “While the compatibility of the
two uses at the site mitigated concern about a tower, that was true only to the
point that the tower exceeded the height of the tree line.” (Id.) However, TMobile’s proposed 154-foot tower would have “soared above the tree line by 60
feet,” and based on balloon test photos, would have been clearly visible from
roadways and neighboring properties. (Id. at 24 of 27.) Therefore, the City
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gave its conditional approval while also addressing “Milton’s core mission of
preserving its pastoral landscape as much as possible.” (Id.)
“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.”
Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 761 (11th Cir. 2005)
(internal citation omitted). But “aesthetics may constitute a valid basis for
denial of a wireless permit if substantial evidence of the visual impact of the
tower was before the zoning decisionmaker.” Se. Towers, LLC v. Pickens
Cnty, 625 F. Supp. 2d 1293, 1303 (N.D. Ga. 2008) (citing Preferred Sites, LLC
v. Troup Cnty, 296 F.3d 1210, 1219-20 (11th Cir. 2002)). Additionally,
aesthetic objections coupled with other concerns, such as declining property
values, may constitute substantial evidence. Michael Linet, 408 F.3d at 761.
“Also relevant is whether the company can reasonably place a cell site in an
alternative location and eliminate the residents’ concerns.” Id. at 762.
Here, as T-Mobile notes, there were no available alternative sites for the
three towers. Other potential sites were identified, but the landowners were not
interested in leasing space to T-Mobile. Further, there is no evidence that
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collocation was possible, or that the towers could be placed in a commercially
zoned area. Although this factor is relevant, however, it is not determinative.
In Se. Towers, this Court found that aesthetic concerns of residents
constituted substantial evidence where the residents’ position was supported by
photos taken during a balloon test and where the concerns were focused on
incompatibility of the tower with the scenery of a particular historic district.
625 F. Supp. 2d at 1303-04. Here, the aesthetic objections to all three towers
raised by City staff, GTRS, and residents were supported by balloon test
evidence. Furthermore, residents from adjacent properties spoke about the
towers’ specific impact on their residences. Residents also spoke about specific
farms, equestrian facilities, and scenic highway corridors that would be
negatively impacted by the towers. Therefore, the Court finds that the aesthetic
objections raised in this case go beyond general concerns, and like those raised
in Se. Towers, are “grounded in the specifics of the case.” Id. at 1304 (citing
Sw. Bell Mobile Sys.s, Inc. v. Todd, 244 F.3d 51, 61 (1st Cir. 2001).
Furthermore, as noted by Councilmember Ragsdale during the Planning
Commission’s hearing, residents presented specific evidence that T-Mobile
service in the proposed towers’ coverage area was already adequate. In T32

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Mobile South, LLC v. Cobb Cnty, No. 1:10-CV-0111-WSD, 2011 WL 336641,
at *3 (N.D. Ga. Jan. 31, 2011), the court found substantial evidence supporting
the county’s decision to deny a cell tower application. The court’s decision was
based at least in part on residents’ testimony that there was no need for the
proposed tower. There, resident opponents of the tower testified that service
and signal strength was adequate and they were satisfied with the service in
their neighborhood, thereby refuting T-Mobile’s argument that it needed a
tower to improve local service. The residents in that case, like the case at bar,
also noted that T-Mobile’s website advertised a “best” signal strength in the
area, despite its claims to the zoning board that coverage was lacking.
In this case, two residents (one speaking against the Mountain Road
tower and the other speaking against the Hopewell Road tower) testified that
they lacked adequate T-Mobile coverage in the towers’ area. Of course, TMobile maintains that there is a need for additional coverage at all three sites
based on comments from their continuous feedback service. However, several
residents said they saw no need for additional service. Twenty-five residents
tested coverage in the Mountain Road area and reported “100 percent
coverage.” Ms. Norvell tested coverage in the Hopewell Road area and said she
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experienced no dropped calls or service problems. And Mr. Pace, an adjacent
property owner to the New Providence Road site, said he and his neighbors saw
no need for additional service and found T-Mobile’s alleged need for a tower
there mere “conjecture.”
The City Council was entitled to credit some witnesses over others, and
the Court will not second guess those decisions. “[Federal courts] look at the
whole record; but, under the substantial evidence standard of Section 332, we
cannot displace the Board’s fair estimate of conflicting evidence and cannot
freely re-weigh the evidence. We only determine whether substantial evidence
exists to support the local board’s decision.” Am. Tower LP v. City of
Huntsville, 295 F.3d 1203, 1209 n. 8 (11th Cir. 2002). Here, both sides
presented evidence regarding the need (or lack thereof) for better coverage in
Milton. The record shows that the Planning Commission and the City Council
balanced the specific aesthetic concerns of the community with the purported
need for additional coverage and concluded that the need did not outweigh the
harm.5

5

A balancing of this nature is suggested by the comments of Commissioners
Ragsdale and Moore during the Planning Commission hearing, which mention lack of
need for additional coverage and the “height” or aesthetic issue. This balancing is
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With respect to the Mountain Road and Hopewell Road applications, the
Board’s calculation resulted in outright denial. However, given the lesser
aesthetic concerns with the New Providence Road tower, Milton granted a
conditional approval. The Court finds that there is substantial evidence in the
written record – in the form of specific, fact-based aesthetic objections and
testimony regarding adequate coverage in the area – to support all three of the
City’s decisions.
Conclusion
Based on the foregoing, Plaintiff’s motion for partial summary judgment
based on § 332(c)(7)(B)(iii) is DENIED.

SO ORDERED, this 18th day of June, 2014.

________________________________
RICHARD W. STORY
United States District Judge

also evident in Councilmember Thurman’s comments with respect to the Hopewell
Road application, in which she concluded that the harm of the tower at the proposed
height outweighs the benefit.
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