Vantage Tower Group, LLC v. Chatham County - Savannah Metropolitan Planning Commission et al
Filing
51
ORDER denying 32 Motion for Summary Judgment; dismissing as moot 45 Motion to Strike, ; granting 29 Motion for Summary Judgment. The Clerk is directed to dismiss the case. Signed by Judge B. Avant Edenfield on 1/20/15. (wwp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
VANTAGE TOWER GROUP, LLC,
Plaintiff,
V
4: 13-cv-258
.
CHATHAM COUNTY—SAVANNAH
METROPOLITAN PLANNING
COMMISSION AND MAYOR AND
ALDERMEN OF THE CITY OF
SAVANNAH, GEORGIA,
Defendants.
ORDER
I. INTRODUCTION
The appetite of consumers for everlarger buffets of mobile data knows no
apparent bounds. But mobile data requires
immobile towers, and few appreciate having
such structures built in their backyards.
LLC
Group,
Tower
Vantage
("Vantage"), wants to construct a wireless
transmission tower on 57th Street in
Savannah. ECF No. 29-34 at 2. Both the
Chatham County-Savannah Metropolitan
Planning Commission ("MPC") and the
Mayor and Alderman of Savannah, Georgia
("the City"), have denied Vantage's request.
Therefore, Vantage has sought relief in this
Court. ECF No. 1.
Currently before the Court are
competing motions for summary judgment.
For the reasons set forth below, the Court
GRANTS Vantage's motion and DENIES
the City's motion.
II. BACKGROUND
telecommunication
To
promote
competition and quality on a national scale,
Congress enacted the Telecommunications
Act of 1996 ("the TCA"). City of Rancho
Palos Verdes, Cal. v. Abrams, 544 U.S. 113,
115 (2005). In particular, the TCA
"imposes specific limitations on the
traditional authority of state and local
governments to regulate the location,
construction, and modification of [wireless
communications] facilities." Id. Under this
statute,
not
governments
may
local
'unreasonably discriminate among
providers of functionally equivalent
services,' take actions that 'prohibit or
have the effect of prohibiting the
provision of personal wireless services,'
or limit the placement of wireless
facilities 'on the basis of the
environmental effects of radio frequency
emissions.' They must act on requests
for authorization to locate wireless
facilities 'within a reasonable period of
time,' and each decision denying such a
request must 'be in writing and
supported by substantial evidence
contained in a written record.'
Id. at 116 (quoting 47 U.S.C. § 332(c)(7)
(citations omitted)). Under the TCA, "[a]ny
person adversely affected by any final action
or failure to act by a State or local
government or any instrumentality thereof
that is inconsistent with this subparagraph
may, within 30 days after such action or
failure to act, commence an action in any
court of competent jurisdiction." 47 U.S.C.
§ 332(c)(7)(B)(v).
Vantage wanted to build a freestanding
wireless transmission tower in Savannah,
foot monopole Wireless Telecommunications Facility with internal
antennae to be located at 1105 East 57th
Street, which is currently zoned PRM-27
(Planned Multifamily -27 units per acre)
was heard. The appellant is further
requesting a variance to reduce the
required landscaping and buffering
from a six-foot fence with 15-foot
planted buffer to a 10-foot fence with a
five-foot planted buffer.
Georgia. ECF No. 29-1 at 2. It intended to
use the tower to provide additional wireless
coverage to customers of AT&T. ECF No.
29-34 at 2. Vantage wanted to construct the
tower to a height of 127 feet, ECF No. 29-1
at 2, which was a problem because
Savannah prohibits freestanding towers
taller than eighty-five feet, ECF No. 20 at 8.
Thus, Vantage sought a variation from the
MPC. ECF No. 29-1 at 2.
The MPC held three public hearings to
evaluate Vantage's proposal. ECF Nos. 2914, 29-16, 29-18. It also evaluated the work
of various investigators. ECF Nos. 29-2, 293. At the conclusion of its investigation, the
MPC denied Vantage's request. ECF No.
29-1 at 3.
* Council voted to approve an 85 foot
tower with no variances.
For additional information, please see
City Council meeting minutes of
February 20. 2014 at www.savannah
ga. gov.
Id.
Vantage now comes before this Court
seeking an order that requires the City to
grant Vantage's application for a tower.
ECF No. 20.
Vantage then appealed to the City, ECF
No. 29-23, which held a public hearing on
February 20, 2014, ECF No. 29-21. At the
hearing, the members of the city council and
the mayor discussed Vantage's request with
the city attorney and interested community
members. Id. at 4-10. They also questioned
Vantage's attorney extensively. Id. at 8-10.
The council voted to grant Vantage's request
for a tower but to deny its request for a
variance. Id. at 10.
III. STANDARD OF REVIEW
As noted above, a person adversely
affected by a final action of a local
government may bring an action in the
See 47 U.S.C. §
district court.
332(c)(7)(B)(v). "By structuring the TCA in
this manner, Congress explicitly preserved
local zoning authority over the siting of
wireless facilities, while permitting judicial
oversight as to the manner in which such
decisions are made." Preferred Sites, LLC
v. Troup Cnty., 296 F.3d 1210, 1215-16
(11th Cir. 2002). "[I]f the action alleges that
the state or local government violated any of
the other statutory limitations on its
regulatory authority, the court decides the
issue de novo." T-Mobile Ne. LLC v.
On March 3, 2014, the City sent a letter
to Vantage, stating its decision. ECF No.
29-20. In its entirety, the letter ("Letter")
stated as follows:
At the regular meeting of City Council,
Thursday, February 20, 2014, a public
hearing was held on a petition of Terry
Thomas, Agent for Vantage Tower
Group, LLC, to repeal the denial by the
Chatham County-Savannah Metropolitan
Planning Commission of October 31,
2013, on a request for a proposed 1202
Loudoun Cnly. Bd. of Supervisors, 748 F.3d
Liberty Lobby, Inc., 477 U.S. 242, 248
185, 192 (4th Cir. 2014).
(1986)). A fact is material only if it might
affect the outcome of the suit under
governing law. See Anderson, 477 U.S. at
248.
"The 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." Fed. R. Civ. P. 56(a). In
ruling on summary judgment, the Court
views the facts and inferences from the
record in the light most favorable to the nonmoving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Reese v. Herbert, 527 F.3d
1253, 1271 (11th Cir. 2008). Courts,
moreover, may consider all materials in the
record, not just those cited by the parties.
Fed. R. Civ. P. 56(c)(3).
IV. ANALYSIS
The issue for this Court is whether the
City's decision to deny Vantage's request
for a height variance violates the TCA. See
TowerCom V, LLC v. City of Coil. Park,
Ga., 2013 WL 4714203, at *5 (N.D. Ga.
Aug. 21, 2013). The Court finds that it
does.
As an initial matter, the Court finds that
there is no genuine issue of material fact
presented by the parties. Neither party
disputes that Vantage's request to build a
tower was not granted. Neither disputes that
the City's Letter contained the entirety of
the City's decision. See ECF Nos. 29-34 at
21-22; 33 at 10.
The moving party "bears the initial
responsibility of informing the district 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." Reese, 527
F.3d at 1268 (internal quotation marks
omitted) (quoting Celotex Corp. v. Ca/ret!,
477 U.S. 317, 323 (1986)).
As noted above, the TCA requires that a
decision denying a request for a wireless
transmission tower "be in writing." See 47
U.S.C. § 332(c)(7)(iii). At the time of the
City's decision, the Eleventh Circuit held
that a letter similar to the Letter was
sufficient to fulfil this requirement. See T-
The nonmoving party then "may not rest
upon the mere allegations or denials of [its]
pleading[s], but . . . must set forth specific
facts showing that there is a genuine issue
for trial." Young v. City qf Palm Bay, Fla.,
358 F.3d 859, 860 (11th Cir. 2004). "A
genuine issue of material fact exists if 'the
evidence is such that a reasonable jury could
return a verdict for the nonmoving party."
Owen v. IC. Sys., Inc., 629 F.3d 1263, 1270
(11th Cir. 2011) (quoting Anderson v.
Mobile S., LLC v. City of Roswell, Ga., 731
F.3d 1213, 1220-21 (11th Cir. 2013)
(Roswell 1), rev'd and remanded, 2015 WL
159278 (U.S. Jan. 14, 2015). However, the
United States Supreme Court recently
reversed and remanded that decision. See TMobile S., LLC v. City of Roswell, Ga., --- S.
Ct. ---, 2015 WL 159278 (Jan. 14, 2015)
(Roswell II).
In its decision, the Supreme Court held
that "localities must provide reasons when
3
they deny cell phone tower siting
applications." Id. at *6. This is because
"[un order to determine whether a locality's
denial was supported by substantial
evidence, as Congress directed, courts must
be able to identify the reason or reasons why
the locality denied the application." Id. at
*5• Although those reasons need not be
given in the same document denying an
application, "the locality must provide or
make available its written reasons at
essentially the same time as it communicates
its denial." Id at *7 "[T]hese reasons need
not be elaborate or even sophisticated, but.
• simply clear enough to enable judicial
review." Id. at *6
Court to determine whether the City has
violated the substantive provisions of the
TCA because the City did not state its
reasons for its decision. See Roswell II,
2015 WL 159278, at *5 ("[I]t would be
considerably more difficult for a reviewing
court to determine whether a locality had
violated these substantive provisions if the
locality were not obligated to state its
reasons."). The Court cannot even reach the
question of whether substantial evidence
supports the City's decision because the City
did not explain with sufficient specificity
why it acted the way it did.
Therefore, the Court finds that the City
has violated the TCA by failing to provide
reasons for its denial of Vantage's request
for a variance. Because the Court finds that
the City has not complied with the TCA, the
party's remaining arguments will not be
addressed.
Here, the Letter did not provide any
reasons for its decision. Indeed, in its brief,
the City argues that reasons are unnecessary.
ECF No. 33 at 10. The City's provided
materials are consistent with its argument
that reasons are unnecessary, since the Court
is unable to find any such reasons in the
record. Although the City did provide
minutes of the February 20, 2014, meeting,
ECF No. 29-21, those minutes do not reveal
why the City denied Vantage's application.'
It is difficult—if not impossible—for the
V. RELIEF
Vantage seeks either monetary damages
or a writ of mandamus requiring the City to
approve its application to build a tower.
ECF No. 20 at 22. However, neither remedy
is appropriate in this situation.
Although the TCA does not provide a
remedy for violations of its substantive
provisions, Brehmer v. Planning Bd. of
Town of Welifleet, 238 F.3d 117, 120 (1st
Cir. 2001), "[t]he grant of equitable relief is
a matter of judicial discretion," Preferred
Sites, 296 F.3d at 1220. An injunction
ordering issuance of a permit is appropriate,
Id. at 1222, and is the result "in the majority
of cases," see Nat '1 Tower, LLC v. Plainville
Zoning Bd. of Appeals, 297 F.3d 14, 21(1st
Cir. 2002). See also Cellular Tel. Co. v.
'Nor does the existence of a transcript of the meeting
suffice to provide reasons. In Roswell II, the
Supreme Court noted that when the appealing
telecommunications company had arranged for its
own transcript of the meeting, such a step "cannot be
said to satisfy the obligation that Congress placed on
the City to state clearly its reasons, and to do so in a
writing it provides or makes available." Roswell II,
2015 WL 159278, at *9 n.7. This describes precisely
the situation now before the Court, since Vantage
paid for and provided the transcript of the February
20, 2014, meeting. See ECF No. 29-22 at 2. Thus,
that transcript—even if it contained reasons—does
not fulfill the City's obligation under the TCA.
4
Town of Oyster Bay, 166 F.3d 490, 497 (2d
Cir. 1999) ("[T]he majority of district courts
that have heard these cases have held that
the appropriate remedy is injunctive relief in
the form of an order to issue the relevant
permits."). Another option is a remand with
instructions to the locality to comply with
the TCA. See Nat? Tower, 297 F.3d at 24;
see also AT&T Wireless PCS, Inc. v. City of
Chamblee, 10 F. Supp. 2d 1326, 1334 (N.D.
Ga. 1997) ("[T]here are other forms of relief
that the Court could consider, such as a
remand to the Council to reconsider the
application."). Such a remedy is sometimes
appropriate if the situation is, "for example,
an instance of good faith confusion by a
board that has acted quite promptly." Nat'l
Tower, 297 F.3d at 24. Ultimately, the
decision whether to remand or to issue an
injunction is left to the district court.
Preferred Sites, 296 F.3d at 1220 (noting
that when a locality violates the TCA "[t]he
grant of equitable relief is a matter of
judicial discretion.").
At the time it was sent, the Letter
complied with the Eleventh Circuit's
interpretation of the TCA. See Roswell I,
731 F.3d at 1220. The City failed to comply
with the TCA, but it did not act in bad faith
and it was complying with then-current law.
Therefore, the Court will not grant
Vantage's request for either money damages
or a writ.
The Court remands Vantage's request
for a variance back to the City with
instructions to comply with the TCA. In
light of the Supreme Court's recent decision,
the Court hopes that the City's decisionmaking process during its second attempt
will include a list of detailed reasons
explaining the basis for whatever its
decision might be.
VI. CONCLUSION
The Court GRANTS Vantage's Motion
for Summary Judgment, ECF No. 29. The
Court also DENIES the City's Motion for
Summary Judgment, ECF No. 32.
Vantage's Motion to Exclude Affidavit,
ECF No. 45, is DISMISSED as moot.
Because the Court has granted Vantage's
Motion, the clerk is directed to DISMISS
this case.
This
)ay of January 2015.
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UNITED STATES DISTRIC COURT
SOUTHERN DISTRICT OF GEORGIA
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