Skyway Towers LLC et al v. Lexington-Fayette Urban County Government et al

Filing 39

OPINION AND ORDER: 1) 25 Motion for Historic Mt. Horeb Neighborhood Association to Intervene is DENIED and 32 Motion for Summary Judgment is DENIED as moot. 2) 21 Motion for Summary Judgment is DENIED. 3) 19 Motion for Summary Judgment is GRANTED. 4) LFUCG's denial of Verizon's application is REVERSED. LFUCG is ORDERED to provide any an all permits necessary for the construction of the proposed wireless facility. Signed by Judge Karen K. Caldwell on 2/29/2016. (SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION – LEXINGTON

SKYWAY TOWERS, LLC, CELLCO
PARTNERSHIP d/b/a VERIZON
WIRELESS, and MICHAEL QUAGLIANO,

CIVIL ACTION NO. 5:15-301-KKC

Plaintiffs,
V.

OPINION AND ORDER

LEXINGTON-FAYETTE URBAN COUNTY
GOVERNMENT, and the LEXINGTONFAYETTE URBAN COUNTY PLANNING
COMMISSION,
Defendants.

This matter is before the Court on the motions for summary judgment (DE 19, 21)
filed by the plaintiffs and defendants. In addition, the Historic Mt. Horeb Pike
Neighborhood Association has filed a motion to intervene in the action (DE 25).
I. Background
The plaintiffs in this matter seek to construct a 190-foot monopole wireless
communications facility on property in north Fayette County, Kentucky that is currently
used as a farm and pasture land for horses. The plaintiff Skyway Towers, LLC constructs
and manages wireless telecommunications facilities and then leases space on the facilities
to national and regional wireless carriers to provide personal wireless services to
consumers. The plaintiff Verizon Wireless provides wireless communications services. The
plaintiff Michael Quagliano owns the property where Verizon and Skyway seek to install
the facility.
Verizon sought to construct the facility after its engineers identified a “significant
gap” in its wireless service coverage in the area. Verizon and Skyway applied with the

Lexington-Fayette Urban County Government (LFUCG) Planning Commission for the
necessary approvals. With their application, the applicants submitted a report detailing
their site-selection process. (DE 16-1, Application at CM-ECF p. 8; DE 16-3, Site Selection
Report at CM-ECF p. 6.) The report states that the process was aimed at identifying “the
least intrusive of all the available and technically feasible parcels in a service need area.” It
further explained that the proposed site met all local zoning requirements for the
placement of a telecommunications facility. (DE 16-3, Site Selection Report at CM-ECF p.
9.)
The application included a map depicting the “search area,” which is the location
where the monopole must be located to close the coverage gap pursuant to radio-frequency
requirements. (DE 16-3, Radio Frequency Search Area at CM-ECF pp. 3, 11.) The
applicants also submitted a report and maps prepared by a radio frequency engineer
depicting the coverage gap. (DE 16-3, Radio Frequency Engineer Report at CM-ECF p. 13.)
The application explained that the “tower must be located at the proposed location and
proposed height to provide necessary service to wireless communications users in the
subject area.” (DE 16-1, Application at CM-ECF p. 9.)
The LFUCG’s Division of Planning staff reviewed the application to determine if it
complied with Article 25 of the local zoning code, which regulates the placement of
telecommunications towers. Zoning Ordinances, Art. 25, http://lexingtonky.gov/. The staff
also reviewed the application to determine if it complied with the county’s 2013
Comprehensive Plan, which sets forth certain goals and objectives for land use in the
county including protecting historic resources and archeological sites, supporting the
agricultural economy and horse farms, and protecting and enhancing the county’s natural,
cultural, historic, and environmental resources. 2013 Comprehensive Plan,
http://www.lexingtonky.gov/2013CompPlan/.
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The staff concluded that the application met all of the requirements of Article 25 but
nevertheless determined that this was “not an ideal situation.” (DE 16-11, Staff Report at
CM-ECF p. 6.) The staff noted that it had received a letter from the Office of State
Archaeology stating that, within approximately a mile of the proposed site, there are three
archaeological sites, two of which are listed on the National Register of Historic Places and
a third of which is considered eligible for listing. According to the staff, the letter “notes the
negative visual impact the tower will have on the view shed from each site.” (DE 16-11,
Staff Report at CM-ECF p. 2.)
The staff agreed that the tower would affect the view shed in the area but concluded
that “it may be no more of a negative with regard to visual impact” than Clear Channel
radio towers already in the area, “which are four towers clustered together, the tallest of
which is approximately 400 feet in height.” The staff opined that “[e]ventually the proposed
tower will become part of the landscape of the area, much like these radio towers have.”
(DE 16-11, Staff Report at CM-ECF p. 3.)
The staff noted that, in compliance with federal law, the applicants had obtained
letters from the Kentucky Heritage Council regarding the impact of the proposed facility on
historic and archaeological sites included in the National Register. (DE 16-11, Staff Report
at CM-ECF p. 2.) The first, dated March 30, 2015, states that the council’s survey “found no
evidence of prehistoric or historic archaeological sites. Therefore, the authors concluded
that the project will have no adverse effect on archaeological resources that are potentially
eligible for listing on the National Register of Historic Places. I concur with the author’s
findings.” (DE 16-5, CM-ECF p. 51.)
The second letter, dated May 4, 2015 states “[a]s there are not Eligible or extant
Listed historic resources located within either the direct or indirect [area of potential effect]
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for this project, we concur with your assessment of No Historic Properties Affected for the
proposed Skyway Towers, LLC Mattoxtown tower site.” (DE 16-5 at CM-ECF p. 52.)
The staff further noted the applicants had obtained a letter from the LFUCG
Division of Historic Preservation. (DE 16-11 at CM-ECF p. 2.) That letter also stated that
the division had found “no properties currently listed in the National Register of Historic
Places nor eligible for listing are located within the [area of potential effect].” (DE 16-5 at
CM-ECF p. 53.) The staff further noted that, in compliance with federal law, the applicants
had obtained a National Environmental Policy Act (NEPA) review. (DE 16-11 at CM-ECF p.
2) The NEPA report found “no recognized environmental conditions were identified for the
site.” (DE 16-5 at CM-ECF p. 58.)
The staff opined, however, that “a tall monopole does not fit either the historic or
rural context of the area.” (DE 16-11, Staff Report at CM-ECF p. 6.) The staff recommended
that the applicants use an alternative tower design that is “context-sensitive to the rural
area,” such as a silo or faux water tower. (DE 16-11, Staff Report at CM-ECF p. 7.)
The commission considered the application at a public meeting on September 10,
2015. At that meeting, Verizon submitted an additional statement by its radio frequency
engineers detailing the need for the facility. (DE 16-4 at CM-ECF pp. 2, 17) The statement
included coverage plots which, according to the engineers, demonstrated that “[a]
significant wireless network service gap exists in Lexington which negatively affects
substantial numbers of wireless users throughout the area.” (DE 16-4, Report at CM-ECF
p.21.) The statement also included a map which indicated “where a new facility must be
located to close this growing service capacity gap.” (DE 16-4 Report at CM-ECF p.21.)
In addition, Verizon submitted a network analysis containing “dropped call data.”
(DE 16-4, Analysis at CM-ECF pp. 34-45.) The report details the existence of a coverage gap
in the location of the proposed monopole and states that the proposed facility will mitigate
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the gap and diminish the drop-call rate. (DE 16-4, Report at CM-ECF p. 54.)
At the meeting, a planning staff member presented the staff report. Counsel for the
applicants explained the evidence submitted in support of the application and offered the
engineering and scientific experts for questioning. (DE 18-2, Tr. at CM-ECF pp. 2 -15 ) No
commissioner asked the experts any questions.
Several area residents spoke in opposition to the application. (DE 18-2, Tr. at CMECF pp. 19-30.) Some asserted that there were historic and archaeological sites in the area
and others expressed concern about the visual impact of the tower. Counsel for one resident
introduced letters from two real estate brokers stating that the monopole would negatively
impact the value of the surrounding properties. (DE 16-17, Letters.) He also stated that 40
area residents had signed a petition and 14 had written letters opposing the application.
(DE 18-2, Tr. at 18-28.) In addition, Jennifer Ryall of the Kentucky Heritage Council stated
that the council had reopened its review of the proposed tower in light of concerns
expressed by area residents and the Office of State Archaeology.
A commissioner moved to disapprove of the application because “there is not
adequate exploration of alternate locations in the potential search ring” and “there’s not
adequate consideration of negative significant interest in the cultural and historic
resources, based on the testimony of the representative of the Kentucky Heritage Council.”
(DE 18-2, Tr. at 33.) The motion passed.
By letter dated September 30, 2015, the LFUCG notified the plaintiffs that the
planning commission had disapproved the application, again stating:
1) There is not adequate exploration of alternative locations in the
potential search ring to provide the necessary coverage.
2) There is not adequate consideration of negative significant interest in
the cultural and historic resources, based on the testimony given by
the representative of the Kentucky Heritage Council.
(DE 16-14, Sept. 30, 2015 Letter.)
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The plaintiffs seek a review of this decision pursuant to 47 U.S.C. § 332(c)(7)(B)(v)
which provides that any person adversely affected by a state or local government’s actions
regarding the placement and construction of a communications facility may seek judicial
review.
II. Motion to Intervene
The Mt. Horeb Pike Neighborhood Association, which is made up of property owners
in the area of the proposed facility, moves to intervene in the action. Federal Rule of Civil
Procedure 24 provides that the Court must allow anyone to intervene who:
(1) is given an unconditional right to intervene by a federal
statute; or
(2) claims an interest relating to the property or transaction
that is the subject of the action, and is so situated that
disposing of the action may as a practical matter impair or
impede the movant's ability to protect its interest, unless
existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a).
Mt. Horeb does not argue that a federal statute grants it the right to intervene.
Instead, it seeks to intervene under the Rule 24(a)(2). The Sixth Circuit has interpreted
that rule as requiring the movant to establish each of the following four elements:
(1) the application was timely filed;
(2) the applicant possesses a substantial legal interest in the
case;
(3) the applicant's ability to protect its interest will be impaired
without intervention; and
(4) the existing parties will not adequately represent the
applicant's interest.
See Blount-Hill v. Zelman, 636 F.3d 278, 283 (6th Cir. 2011)(citing Grutter v. Bollinger, 188
F.3d 394, 397–98 (6th Cir. 1999)). “[F]ailure to satisfy any one of the elements will defeat
intervention under the Rule.” Id. (citing United States v. Michigan, 424 F.3d 438, 443 (6th
Cir. 2005) and Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
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Mt. Horeb asserts that it has a substantial legal interest in protecting the natural,
scenic, historical, cultural, agricultural, and property value of the land where the proposed
monopole will be located. It argues that this interest will be negatively impacted if the court
permits the monopole to be constructed and, thus, its ability to protect this interest may be
impaired if it is not permitted to intervene. Mt. Horeb further argues that the LFUCG does
not have the same interests as the neighborhood association and, thus, its interest will not
be adequately represented absent intervention.
The LFUCG, however, has argued that its actions in this case have been guided by
Article 25, a local zoning ordinance that was specifically intended to protect the interests
that Mt. Horeb asserts. Zoning Ordinances, Art. 25, http://lexingtonky.gov/. That ordinance
is intended to assure that communications facilities are placed in locations that “provide
adequate cellular telecommunications services while protecting the public, preserving the
character and value of surrounding property, and protecting the view from residential
areas.” Zoning Ordinances, Art. 25, § 25-1, http://lexingtonky.gov (emphasis added).
Moreover, Mt. Horeb and the government share the same ultimate objective in this
action: that the Court affirm the government’s denial of the application. While the
proposed intervenor need only show that there is a potential it will be inadequately
represented, there is a presumption of adequate representation when an applicant shares
the same ultimate objective as a party to the suit. United States v. Michigan, 424 F.3d 438,
443-44 (6th Cir. 2005) The alignment between the objectives and interests of the
government and the proposed intervenor is demonstrated by the fact that Mt. Horeb asserts
essentially the same arguments in its tendered motion for summary judgment that the
LFUCG has asserted to support its denial of the application.
Accordingly, Mt. Horeb does not have a right to intervene in this case. The Court
may still permit it to intervene if it is given a conditional right to intervene by a federal
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statute; or “has a claim or defense that shares with the main action a common question of
law or fact.” Fed. R. Civ. P. 24(b)(1). Mt. Horeb does not argue that a federal statute grants
it a conditional right to intervene. Assuming there is a common question of law or fact, the
Court must consider whether intervention would result in undue delay or prejudice to the
original parties. Fed. R. Civ. P. 24(b)(3).
Delay is of special importance in this action because the plaintiffs seek review under
47 U.S.C. § 332(c)(7)(B)(v) which provides for expedited judicial review to a person adversely
affected by a local government’s action. The parties developed a scheduling order that
provided for briefing to be completed by January 26, 2016. The neighborhood association
did not move to intervene until the date that the parties had completed their briefing.
Further, the statute grants the right of judicial review only to the person “adversely
affected” by the government’s actions. Permitting Mt. Horeb to intervene in this action
would delay a judgment and prejudice the plaintiffs, the only parties granted a right to
pursue this action.
Moreover, the delay would be undue because, as discussed, Mt. Horeb has the same
ultimate objective as the LFUCG and asserts essentially the same arguments. Thus, its
interests are adequately represented. Further, because this action calls for a review of a
local government decision, the Court sees no purpose in expanding this matter beyond the
governmental entity that issued the decision and the applicant adversely effected by it.
Accordingly, the Court declines to permit Mt. Horeb to intervene in this action.
III.

Motions for summary judgment
In accordance with the parties’ proposed schedule, the Court set a hearing on the

parties’ motions for summary judgment for February 17, 2016. However, the parties jointly
moved to cancel the hearing, agreeing that the matters had been fully briefed, that the full
administrative record was filed, and that an oral argument was unnecessary. (DE 35, Joint
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Motion.) Accordingly, the Court canceled the hearing.
A. Timeliness of the reasons for denial
A local government’s decision to deny a request to place or construct a wireless
facility like the monopole must be “in writing and supported by substantial evidence
contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). The Supreme Court has held
that localities “must provide reasons when they deny applications to build cell phone
towers.” T-Mobile South, LLC v. City of Roswell, Georgia, 135 S.Ct. 808, 814 (2015). This is
because “courts must be able to identity the reason or reasons why the locality denied the
application” in determining whether the denial was supported by substantial evidence. Id.
Further, an entity adversely affected by the denial must seek judicial review of it within 30
days of the decision by the local government. 47 U.S.C. § 332(c)(7)(B)(v). An applicant may
not be able to make a “considered decision whether to seek judicial review without knowing
the reasons for the denial.” Id. at 816. Thus, in Roswell the Supreme Court held, the locality
cannot delay the release of its reasons “for a substantial time after it conveys its written
denial.” Id. at 816 (emphasid added). Instead, “the locality must provide or make available
its written reasons at essentially the same time as it communicates its denial.” Id. at 817.
The plaintiffs argue that the LFUCG’s denial was faulty here because the
government did not provide written reasons for the denial at “essentially the same time” as
the oral denial, which occurred at the September 10, 2015 public meeting. The LFUCG’s
written denial and reasons came in a letter dated September 30, 2015.
Roswell, however, requires that the written reasons be issued at essentially the
same time as the written denial, not the oral denial. This is because it is the written denial
that triggers the 30-day clock for judicial review. The act provides that the 30-day clock
begins with the “final action or failure to act by a State or local government.” 47 U.S.C.

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§ 332(c)(7)(B)(v). “The relevant ‘final action’ is the issuance of the written notice of denial.”
Roswell, 135 S.Ct. at 817, n.4 (emphasis added).
Here, the written denial consisted of the September 30, 2015 letter. The plaintiffs’
30-day clock began then. There is no dispute that the letter contained the reasons for the
denial. Accordingly, the written denial complied with the Telecommunications Act and
Roswell.
B. The effective prohibition of wireless service
The Telecommunications Act prohibits a local government from regulating the
placement or construction of wireless facilities in a way that has “the effect of prohibiting
the provision of personal wireless services.” 47 U.S.C.A. § 332(c)(7)(B)(i)(II). The Sixth
Circuit has held that this provision is violated where two conditions exist.
First, the provider must show that the government’s denial of its application to
construct or place a telecommunications facility prevents it from filling a significant gap in
its own service coverage. T-Mobile Central, LLC v. Charter Twp. of West Bloomfield, 691
F.3d 794, 806 (6th Cir. 2012) (quoting MetroPCS, Inc. v. City and Cnty. of San Francisco,
400 F.3d 715, 733 (9th Cir. 2005), abrogated on other grounds by T-Mobile S., LLC v. City of
Roswell, 135 S.Ct. 808 (2015)). With its application and at the hearing, Verizon presented
evidence that its RF engineers had identified a “significant gap” in Verizon’s wireless
coverage in an area in north Lexington that lies between Russell Cave Road and Newtown
Pike. This evidence consisted of reports by RF engineers, including propagation maps,
dropped call data and a detailed explanation of the reports. This is the kind of evidence that
supports a claim for a significant gap in coverage. West Bloomfield, 691 F.3d at 807.
There was no competent contradictory evidence presented. At the hearing, some lay
objectors questioned the need for the proposed facility but they offered no evidence to

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support their speculation. In its brief, the LFUCG does not dispute the existence of a
significant gap in Verizon’s coverage in the area at issue.
Verizon further presented evidence that its engineers had identified the area where
the antenna site “must be located” in order to remedy the coverage gap. (DE 16-3 CM-ECF
p. 6.) This “search area” included the location of the proposed monopole. (DE 16-3 CM-ECF
p. 7.) The LFUCG does not dispute this or cite any contradictory evidence. Thus, Verizon
has established that the LFUCG’s denial of its application prevents it from filling a
significant gap in its wireless coverage.
Second, the provider must show it has made a “good faith effort. . . to identify and
evaluate less intrusive alternatives, e.g., that the provider has considered less sensitive
sites, alternative system designs, alternative tower designs, placement of antennae on
existing structures, etc.” West Bloomfield, 691 F.3d at 808. (citation omitted).
Verizon presented a site analysis report detailing the steps it took to identify an
adequate antenna site in the search area. After its engineers identified the coverage gap,
they identified “the geographic area where the antenna site must be located in order to
close the gap and issued a map (called a Search Area) that identified the general area in
which a new site must be located.” (DE 16-3, Site Analysis Report at CM-ECF p. 6.)
Verizon first evaluated whether it could co-locate its antenna on an existing
structure but determined that there were no suitable tall structures in the search area that
would permit Verizon to resolve the coverage gap. (DE 16-3 at CM-ECF p. 7.) After ruling
out any existing structures, Verizon reviewed the search area to determine where it could
locate an antenna site in compliance with Article 25’s zoning requirements. (DE 16-3 at
CM-ECF p. 7.)
In accordance with Article 25, it first looked for public property sites but determined
that none existed in the search area. (DE 16-3 at CM-ECF p. 8.) Verizon next removed any
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parcels that were 40 acres or less. This is because all parcels in the search area are zoned
A-R (Agricultural Rural) and a zoning ordinance requires that any parcel zoned A-R must
have a minimum lot size of 40 acres. Further, another zoning ordinance requires that a
lease for construction of a telecommunications tower shall not reduce the tract to less than
the 40 acres required for parcels zoned A-R. (DE 16-3 at CM-ECF p. 8.)
Verizon next removed from consideration any land in the search area that is part of
the LFUCG’s Purchase Development Rights Program. Verizon explained that these
properties are subject to conservation easements which restrict development on them and
limit the land to agricultural uses only. (DE 16-3 at CM-ECF p. 8.)
After ruling out any unsuitable parcels of land, Verizon visited the remaining
parcels to 1) confirm the availability of sufficient land space for the proposed facility; 2)
identify a specific location for the facility on the parcel; 3) identify any recognized
environmental conditions that would disqualify the parcel from consideration; 4) identify
any construction issues that would disqualify the parcel; and 4) to assess the potential
impact of the facility on neighboring properties. (DE 16-3 at CM-ECF p. 8.)
After performing this analysis, Verizon approached three landowners. The plaintiff
Michael Quagliano was the only owner who indicated a willingness to lease his land for the
facility. (DE 16-3 at CM-ECF p. 8.) Verizon asserts that the “tower must be located at the
proposed location and proposed height to provide necessary service to wireless
communications users in the subject area.” (DE 16-1 at CM-ECF p. 9.) At the hearing,
plaintiffs’ counsel stipulated that, if the LFUCG required it, the plaintiffs would construct a
“stealth silo” at the location instead of a tower. (DE 18-2, Tr. at CM-ECF p. 15.)
The LFUCG does not dispute any of the plaintiffs’ evidence. There was no competent
evidence that any alternative location exists that would be adequate to remedy the coverage
gap. Further, there was no competent evidence that Verizon’s procedure for identifying an
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adequate location was somehow faulty. Finally, there was no competent evidence to refute
Verizon’s proof that the tower must be located at the site proposed in order to remedy the
coverage gap.
At the hearing, some lay objectors questioned Verizon’s evaluation of alternative
sites, but the objectors presented no evidence in support of those speculations. There was no
expert evidence offered in opposition to Verizon’s need for the facility or the adequacy of its
site selection process at all. In its brief before this Court, the LFUCG does not even address
Verizon’s argument that the government’s denial of its application effectively prohibits it
from providing wireless coverage in the affected area.1
Accordingly, Verizon has demonstrated that it put forth a good faith effort to find an
alternative location for the proposed monopole but that no other location was suitable.
Because Verizon has met its burden as to both prongs, the Court finds that the LFUCG’s
decision had “the effect of prohibiting the provision of personal wireless services” in
violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). Having reached this conclusion, the Court
declines to address whether the decision is supported by substantial evidence or whether it
violated state law. See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 999 (9th Cir.
2009) (finding that the city’s denial of the application was supported by substantial
evidence but that it constituted an effective prohibition of services and, therefore, the
provider was entitled to summary judgment).
IV.

Conclusion

For the foregoing reasons, the Court hereby ORDERS as follows:
1) the Historic Mt. Horeb Neighborhood Association’s motion to intervene (DE 25) is
DENIED and its motion for summary judgment is DENIED as moot (DE 32);
2) the LFUCG’s motion for summary judgment (DE 21) is DENIED;
1

Nor does Mt. Horeb address this argument in its tendered response.

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3) the plaintiffs’ motion for summary judgment (DE 19) is GRANTED; and
4) the LFUCG’s denial of Verizon’s application is REVERSED. The LFUCG is hereby
ORDERED to provide any and all permits necessary for the construction of the
proposed wireless facility.
Dated February 29, 2016.

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