American Towers, Inc. et al v. Wilson County, Tennessee Board of Zoning Appeals
MEMORANDUM. An appropriate Order will be entered. Signed by District Judge Kevin H. Sharp on 1/2/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
AMERICAN TOWERS, INC.,
EXCELL COMMUNICATIONS, INC.,
WILSON COUNTY, TENNESSEE
BOARD OF ZONING APPEALS,
WILSON COUNTY, TENNESSEE
This case concerns a protracted battle between two companies seeking to build a
telecommunications tower in Wilson County, Tennessee and local zoning entities opposed to the
project. The companies sued the county bodies, alleging that their inaction on the companies’
zoning applications violated federal and state laws. Pending before the Court is the companies’
motion for summary judgment, (Docket No. 55), which is fully briefed, (Docket Nos. 55-2, 66,
& 69). For the reasons that follow, the Court GRANTS the motion.
The coverage gap
AT&T Wireless, one of the largest providers of wireless services in the United States,
sought to improve its service network after determining that a significant coverage gap existed in
the Trice Road area of Wilson County, Tennessee. (Docket No. 57-1 at 4). AT&T searched the
area surrounding the intersection of Trice Road and Holt Road to identify existing
telecommunications towers that could be used to collocate AT&T’s equipment or, barring that,
suitable land where a new tower could be constructed. (Id.) Finding no existing towers that met
its requirements, AT&T retained American Towers, Inc. (ATI), an independent owner and
operator of telecommunications tower sites, to develop a new tower. (Id.) ATI, in turn, engaged
Excell Communications, a construction and development firm, to perform site-acquisition
services and assist with the zoning-approval process. (Docket No. 57-2 at 2). Excell’s task was
to identify a property in the search area ATI defined that was adequately sized, properly zoned,
and could be leased for this purpose. (Id. at 3–4). ATI and Excell looked at several potential
properties and ultimately settled on a parcel located at 261 Trice Road in Lebanon, Tennessee.
(Id. at 8–11, 13).
The Wilson County Tower Regulation
The primary policy governing the siting of telecommunications towers in Wilson County
is a regulation entitled “Regarding Cell Tower Site Locations in Wilson County” (the Tower
Regulation). (Docket No. 57-3 at 1). The Tower Regulation enumerates four main requirements
an applicant must meet to construct a telecommunications tower. (Id.) First, the applicant must
provide written evidence that it has investigated the possibility of collocating on an existing
tower within one mile of the proposed site. (Id.) Second, the applicant must show the tower
meets all Federal Aviation Authority (FAA) requirements. (Id.) Next, the applicant’s plan must
allow maintenance vehicles to maneuver on the site. (Id.) Finally, the applicant must ensure that
any on-site building structure will be used only to store equipment. (Id.)
ATI’s first set of applications
A. The Use Application
On September 22, 2010, Excell filed with the Wilson County Board of Zoning Appeals
an application for a Use on Appeal Permit (the Use Application) to allow Excell to build a new
tower on a 400 foot by 400 foot parcel of land at 261 Trice Road. (Docket No. 57-1 at 1). In a
section entitled “Site Need and Justification,” the Use Application explained AT&T’s need for
the proposed site. (Id. at 4). To comply with the county’s Tower Regulation, the Use
Application contained (1) a statement that collocating on an existing tower was not feasible and
that other wireless providers could collocate on the proposed site, (id. at 3, 5); (2) a Final
Determination of No Hazard from the FAA, (id. at 8–10); (3) certification that vehicles would
have site access, (id. at 6); and (4) certification that any on-site buildings would be used only for
equipment storage, (id.). Site maps and site plans rounded out the 33-page document. (Id. at 7,
B. The Site Application
As Wilson County’s zoning ordinance does not allow multiple uses on a single parcel,
(id. at 5), and because the parcel in question was zoned for residential use, ATI also had to file an
Application for Site Plan Approval (the Site Application) with the Wilson County Planning
Commission. Functionally, approval of the Site Application would correct the site’s
nonconforming use by subdividing the parcel into two (so that the tower site would be located on
a separate parcel from the parent property) and designating the tower parcel as a utility lot.
(Docket No. 57-12 at 1–3).
C. The Zoning Board’s first hearing on ATI’s first Use Application on November 19,
At a Zoning Board hearing on November 19, 2010, ATI presented its initial Use
Application, (Docket No. 57-5), submitting the evidence described above to show the project
complied with the Tower Regulation’s four requirements. (Id. at 15–18). To illustrate the
significance of the coverage gap, ATI also presented propagation maps revealing holes in
AT&T’s coverage in the area, reports of customer complaints about poor coverage, and an
account of an AT&T radio-frequency engineer who conducted a drive study of the area and
concluded a significant gap in coverage existed. (Docket Nos. 57-5 at 12–14, 25–26; 57-6 at 1–
3; 57-7 at 1; 57-8 at 1). Andy Rotenstreich, an attorney who appeared at the hearing on ATI’s
behalf, deciphered these three graphical exhibits for the Zoning Board and answered questions.
(Docket No. 57-5 at 11–26).
Several local residents appeared at the hearing to oppose ATI’s plan. One resident stated
that members of the community did “not want the tower in our back door.” (Id. at 58–59).
Another wrote in a letter read into the record that the proposed tower would ruin his view and
change the area’s landscape. (Id. at 44). Many residents spoke of the tower’s potentially
negative health effects, (id. at 49, 54–57, 59–62), and several focused on the tower’s impact on
the well-being of students at Friendship Christian Academy, a private school located about 2500
feet from the proposed site, (id. at 45–47). Still others worried the tower would lower property
values. (Id. at 55). (Responding to this latter charge, ATI presented to the Zoning Board an
appraisal report showing “no discernable negative impact” on the values, marketability, or
appreciation rates of homes near cell towers in Wilson County. (Id. at 21–23; Docket No. 57-10
at 1–21).) Finally, the Zoning Board heard from citizens who doubted that AT&T’s coverage in
the area needed improvement at all. (Docket No. 57-5 at 51–56).
Apart from these concerns, the Zoning Board also focused on the parcel’s nonconforming
status, a problem the Planning Commission was set to address when it considered ATI’s Site
Application later that morning, after the Zoning Board meeting adjourned. (Id. at 31). Asked
about the interaction of pending applications before the Zoning Board and the Planning
Commission, Wilson County Planner Tom Brashear stated that the Zoning Board “routinely will
have a [Zoning Board] case that affects a planning commission case later in the morning,” noting
several examples that “require [the Zoning Board’s] approval before it’s been established at the
planning commission that they’re going to approve it.” (Id. at 32). “But it’s kind of a chicken or
egg thing,” Brashear observed. (Id.) “The planning commission is contingent on [the Zoning
Board] approving the use before they’re going to approve the site plan and vice versa.” (Id.)
Although Wilson County’s zoning ordinance does not require the Planning Commission
to vote on a site plan to correct a parcel’s nonconforming use before the Zoning Board can vote
on a Use Application concerning that parcel, the Zoning Board voted to deny ATI’s Use
Application “based on the nonconforming status of the site.” (Id. at 70).
D. The Planning Commission’s first hearing on ATI’s first Site Application on December
The Planning Commission deferred the hearing on ATI’s first Site Application from
November 19, 2010, to December 17, 2010. On that later date, ATI presented its plan to
eliminate the parcel’s nonconforming use. (Docket No. 57-13 at 2). Wilson County Planner
Tom Brashear, however, recommended that the Planning Commission deny the Site Application
because the Zoning Board had not approved the Use Application on November 19, 2010. He
stated that the Planning Commission’s approval would “creat[e] a utility lot for which no utility
has been approved [by the Zoning Board] because the Board denied the requested use in
November. The utility lot cannot be created [by the Planning Commission] without an approved
use [by the Zoning Board], and a non-conforming lot cannot be divided [by the Planning
Commission] without hearing the non-conformity status estimation. Therefore, the Planning
Commission cannot approve this lease lot subdivision.” (Id. at 2). When a Planning
Commission member asked Brashear whether the body’s “protocol [is] to normally let the Board
of Zoning Appeals review these [applications] prior to our taking up the case,” he responded that
“traditionally[,] the Board of Zoning Appeals has approved the use before [the Planning
Commission] ever ha[s] approved the utility lot.” (Id. at 3).
Andy Rotenstreich, ATI’s representative at the Planning Commission hearing, disagreed.
He pointed out that the county’s zoning ordinance does not require the Zoning Board to approve
the Use Application before the Planning Commission rules on the Site Application. (Id. at 2–3).
In a deposition taken months later, Wilson County Mayor Claude Randall Hutto, who also sits on
the Planning Commission, similarly stated that he knew of no ordinance that requires the Zoning
Board to first vote on a Use Application before the Planning Commission can make its
determination. (Docket No. 57-14 at 2–3).
Brashear conceded the Site Application met the relevant “technical requirements,” but
nonetheless recommended denial because “the utility use for the tower was denied by the Board
of Zoning Appeals, and therefore, the site plan cannot be approved.” (Id. at 4). The Planning
Commission followed his lead and denied ATI’s application. (Id.).
E. The Planning Commission’s second hearing on ATI’s first Site Application on
February 18, 2011
The Planning Commission considered ATI’s Site Application again on February 18,
2011. It again voted to deny the application without prejudice, ostensibly relying on two issues
discussed at the hearing. First, Planner Brashear voiced a concern that the septic tanks on the
site might not comply with local ordinances. (Docket No. 57-17 at 1–2). Asked by a Planning
Commission member to elaborate on the issue, Brashear responded: “All I know is that we
received a phone call from neighboring residents asking us to look into the issue. We called the
State Soil’s Office and they told us that they would be glad to look into the issue. That’s all I
know about it.” (Id. at 2). Second, Brashear advised that the Planning Commission does not
typically take action on proposals involved in litigation. (Id. at 1; see also Docket No. 57-20 at
4–5 (discussing an “unwritten policy” that is the Zoning Board’s “custom and practice”)). As
ATI and Excell had filed suit in federal court on December 17, 2010, to require the Zoning
Board to allow the companies to build the tower, (Docket No. 1), Brashear’s advice amounted to
a recommendation that Wilson County indefinitely put off a decision on the Site Application
until the litigation was resolved.
ATI’s second set of applications
In August 2011, ATI filed a second Site Application with the Planning Commission to
eliminate the nonconforming use by subdividing the lot and creating a utility lot, and a second
Use Application with the Zoning Board to construct the tower. (Docket Nos. 18 at 1 & 19 at 1).
A. The Planning Commission’s hearing on ATI’s second Site Application on October 21,
The Planning Commission set the second Site Application for hearing on October 21,
2011. After the Planning Commission’s chairwoman expressed her hope that the body would
deny the application without prejudice, no other member rose to support her view. (Docket No.
57-20 at 16). As a result, the Planning Commission took no action on the second Site
Application which, as ATI’s representative and the Planning Commission’s lawyer agreed,
meant the application was approved by operation of law.1 (Id.).
B. The Planning Commission’s multiple considerations of ATI’s Utility Lot Application
Still remaining before the Planning Commission, however, was the need to designate the
subdivided parcel as a utility lot. The Planning Commission considered—and punted on—ATI’s
Utility Lot Application, (Docket No. 57-21), four times, (Docket Nos. 57-22 at 5 (December 16,
2011 hearing deferring action); 57-23 at 13 (February 17, 2012 hearing denying application
without prejudice); 57-24 at 7 (April 20, 2012 hearing deferring action); 57-25 at 7 (May 18,
2012 hearing denying application without prejudice)). The Utility Lot Application remains
The exchange went as follows:
Madame Chair: [The Site Application is] being denied without prejudice because it’s in
litigation. Do I have a motion from the board?
Madame Chair: Then if I do not have a motion through the board to deny without prejudice, I
need a motion from the board.
Madame Chair: We have to act on this some way.
[ATI Representative] Rotenstreich: Well, you don’t have to act. It’s approved if you don’t act,
but you don’t have to act.
[Wilson County Attorney] Jennings: That’s correct. Andy [Rotenstreich] and I agree on that.
[Wilson County Planner] Brashear: That’s correct.
Mr. Rotenstreich: Yeah. So you can do nothing.
Madame Chair: I’m asking the board for a motion.
Madame Chair: Then we have no motion from the board.
Mr. Rotenstreich: Thank you very much.
(Docket No. 57-20 at 16–17).
C. The Zoning Board’s first hearing on ATI’s second Use Application on February 17,
Meanwhile, on February 17, 2012, the Zoning Board held a hearing on the second Use
Application, which became the company’s operative application before the Zoning Board after
ATI fixed the nonconforming-use issue that had earlier stymied the process. ATI presented
evidence that its second Use Application complied with the county’s Tower Regulation (which
Planner Brashear later admitted, (Docket No. 57-4 at 4)) and that the parcel’s nonconforming use
was no longer a problem, (Docket No. 57-23 at 7-9, 13-14).
As they had at the earlier hearing on ATI’s first Use Application, local citizens voiced
concerns about the undesirable aesthetics and potentially negative health effects of the proposed
tower. (Docket No. 57-23 at 7–9). As well, opponents raised the specter of a potential drop in
enrollment at the Friendship Christian School. (Id. at 7). The Zoning Board also discussed
ATI’s ongoing negotiations with a property owner for an alternative tower location, which ATI
engaged in at the county’s request. (Id. at 3–4).
At the hearing’s end, the Zoning Board voted to deny ATI’s second Use Application
without prejudice because of ATI’s ongoing discussions with another landowner, as well as the
Zoning Board’s “unwritten policy” of not making decisions concerning matters in litigation. (Id.
D. The Zoning Board’s second hearing on ATI’s second Use Application on April 20,
The second Use Application was again before the Zoning Board on April 20, 2012. The
Zoning Board voted to defer the issue until May while ATI negotiated over an alternative site.
(Docket No. 57-26 at 11).
E. The Zoning Board’s third hearing on ATI’s second Use Application on May 18, 2012
The third and final hearing on ATI’s second Use Application took place on May 18,
2012. On that date, Brashear again informed the Zoning Board that the ATI’s second Use
Application met the requirements of the Tower Regulation, (Docket No. 57-27 at 1, 4–5), and
ATI again stated that the parcel’s nonconforming use had been eliminated, (id. at 1). Countering
concerns about the proposed tower’s economic impact on the nearby school, ATI’s
representative related that the company operates towers on 41 private-school campuses around
the country, and that none of those schools suffered adverse economic consequences as a result.
(Id. at 4). After hearing from two citizens opposed to the tower for the same reasons raised
before, the Zoning Board voted to defer a decision on the second Use Application indefinitely
until ATI’s litigation came to a close. (Id. at 12).
As noted, ATI and Excell (collectively, ATI) filed this suit against Wilson County’s
Zoning Board and Planning Commission (collectively, Wilson County) on December 17, 2010,
the same day that the Planning Commission held the initial hearing on ATI’s first Site
Application. (Docket No. 1). As the process wore on, ATI twice amended its complaint to
narrate the twists and turns of the application labyrinth. (Docket Nos. 4 & 58). ATI’s lawsuit
asks the Court to declare that Wilson County violated the Telecommunications Act of 1996
(TCA), Pub. L. 104-104, Feb. 8, 1996, 110 Stat. 56, codified at 47 U.S.C. § 151 et seq., and to
order the Zoning Board and Planning Commission to issue all necessary approvals and permits
so ATI can construct the proposed tower. Specifically, ATI alleges the Zoning Board’s denial of
ATI’s initial applications did not meet the TCA’s writing and substantial-evidence requirements.
Further, ATI maintains that Wilson County’s actions with respect to its first set of applications
had the effect of improperly prohibiting the provision of wireless services. ATI also asserts the
county’s failure to timely resolve the pending applications was unreasonable under the TCA.
Finally, ATI contends that both bodies acted beyond the bounds of their legal authority under
Tennessee law when they refused to approve applications that complied with the pertinent parts
of the county’s zoning ordinance.
ATI moved for summary judgment on all claims on December 3, 2012. (Docket No. 55).
Wilson County opposed the motion on January 7, 2013, (Docket No. 63), and ATI replied one
week later, (Docket No. 69). The motion is ripe for review.
A party may obtain summary judgment if the evidence establishes that there are no
genuine issues of material fact for trial and the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c); Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 914 (6th Cir.
2000). The moving party bears the initial burden of satisfying the Court that the standards of
Rule 56 have been met. See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question is whether any genuine issue of material fact is in dispute. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary judgment is inappropriate.
To defeat a properly supported summary-judgment motion, the nonmoving party must set
forth specific facts that show a genuine issue of material fact for trial. If the party does not do so,
summary judgment may be entered. Fed. R. Civ. P. 56(e). The nonmoving party’s burden to
point to evidence demonstrating a genuine issue of material fact for trial is triggered once the
moving party shows an absence of evidence to support the nonmoving party’s case. Celotex, 477
U.S. at 325. A genuine issue exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The TCA does not intrude on the general authority of local governments to regulate
zoning, 47 U.S.C. § 332(c)(7)(A), but it does regulate how local governments make decisions
concerning the construction of telecommunications towers. ATI argues there is no genuine
dispute of material fact that Wilson County’s various refusals to approve ATI’s applications
violate four specific limits the TCA imposes on Wilson County and that the proper remedy is an
injunction compelling the county to issue the requested permits. In addition, ATI maintains that
summary judgment is appropriate on its claim that Wilson County exceeded its authority under
state law, which limits the power of local governments evaluating zoning applications like ATI’s
to consider only whether those applications comply with pertinent zoning ordinances. The Court
considers each argument in turn.
“In writing” (Count 2)
ATI first argues that Wilson County’s failure to issue written denials of its applications
violates the TCA’s mandate that a local government decision “to deny a request to place,
construct, or modify personal wireless service facilities shall be in writing.” Id. §
332(c)(7)(B)(iii). To satisfy the TCA’s “in writing” requirement, a local government’s denial
must “(1) be separate from the written record; (2) describe the reasons for the denial; and (3)
contain a sufficient explanation of the reasons for the denial to allow a reviewing court to
evaluate the evidence in the record that supports those reasons.” New Par v. City of Saginaw,
301 F.3d 390, 395–96 (6th Cir. 2002). New Par adopted the “persuasive” reasoning of the First
Circuit, which observed that “‘permitting local boards to issue written denials that give no
reasons for a decision would frustrate meaningful judicial review, even where the written record
may offer some guidance as to the board’s rationale.’” Id. at 395 (quoting Sw. Bell Mobile Sys.,
Inc. v. Todd, 244 F.3d 51, 59–60 (1st Cir. 2001)) (emphasis added).
ATI argues that Wilson County’s two written denials are inadequate. In the first instance,
the Zoning Board circled “Relief Denied” on the front of ATI’s first Use Application, explaining
in full that its decision was “due to noncompliance of property, multiple uses on site.” (Docket
No. 57-1 at 1). In the second instance, the Zoning Board denied without prejudice ATI’s second
Use Application on February 17, 2012, “based on ongoing litigations [sic] and negotiations with
an alternate site.” (Docket No. 57-19 at 1). In addition, ATI contends Wilson County never
denied its two Site Applications and Utility Lot Application in writing, and that the Zoning
Board never explained in writing the actions it took when it subsequently considered ATI’s
second Use Application. For its part, instead of parsing out whether the Zoning Board and
Planning Commission denied each individual application “in writing,” Wilson County counters
that its various denials meet the TCA’s requirement because they are noted on the paper
applications, in meeting minutes, and in written transcripts of the hearings.
Under Sixth Circuit authority, Wilson County’s denials were not “in writing.” To begin
with, the notation on ATI’s second Use Application—denying ATI’s application because of
“ongoing litigations [sic] and negotiations with an alternate site,” (id.)—does not meet the third
New Par prong. While those eight words effectively give two reasons for the denial, the
relevance of these reasons, standing alone, is not self-evident. It does not explain whether
Wilson County has a policy to deny zoning applications that generate litigation and, if so, the
basis of that policy. And it does not illuminate the authority that makes ATI’s hunt for an
alternative location an allowable ground for denial under the county’s zoning ordinance. The
Zoning Board’s notations, silent to the legal bases for both stated reasons, do not provide “a
sufficient explanation of the reasons for the denial” and thus impede the Court’s ability “to
evaluate the evidence in the record that supports those reasons.” New Par, 301 F.3d at 395–96.
As for the meeting minutes and hearing transcripts, neither of those satisfy New Par’s
requirement that a denial “be separate from the written record,” 301 F.3d at 395, for the simple
reason that these documents are part of the written record. “The primary purpose of the separate
writing requirement is to allow a reviewing court to focus with precision on the action that was
taken and the reasons supporting such action.” Omnipoint Holdings, Inc. v. City of Southfield,
355 F.3d 601, 606 (6th Cir. 2004). While the hearing transcripts and meeting minutes offer a
window into the issues individual Zoning Board and Planning Commission members raised, the
motions they made, and their ultimate votes, these documents fail to distill the reasons the
Zoning Board—speaking as a unified body—denied ATI’s applications. This is not to say that
hearing transcripts and meeting minutes can never be sufficiently separate from the written
record to satisfy New Par. But in this case, the hearing transcripts and meeting minutes are not
sufficiently separate because the Court cannot discern after studying them the arguments the
Zoning Board and Planning Commission relied on as opposed to the arguments those bodies
found unavailing. As the meeting minutes and hearing transcripts do not enable the Court “to
focus with precision on . . . the reasons supporting [the County’s] action[s],” id., they fall short
of New Par’s separate-writing requirement.
Absent a separate, reasoned, and written explanation of its decisions, Wilson County’s
denials do not meet the TCA’s “in writing” requirement, entitling ATI to judgment as a matter of
law on this issue.
Substantial evidence (Count 2)
Next, ATI urges that Wilson County’s denials violate the TCA’s requirement that zoning
decisions be “supported by substantial evidence,” 47 U.S.C. § 332(c)(7)(B)(iii), when evaluated
“in the context of applicable state and local law,” T-Mobile Cent., LLC v. Charter Twp. of W.
Bloomfield, 691 F.3d 794, 798 (6th Cir. 2012) (internal quotation marks omitted). A reviewing
court “may not overturn the [zoning] decision on ‘substantial evidence’ grounds if that decision
is authorized by applicable local regulations and supported by a reasonable amount of evidence.”
Id. at 798–99 (internal quotation marks omitted).
“[T]he familiar substantial-evidence standard” is defined as “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Id. at 799 (quoting
Universal Camera v. NLRB, 340 U.S. 474, 477 (1951)). In reviewing an agency action for
substantial evidence, this Court must “look to whether the agency explained any credibility
judgments it made and whether it gave reasons for crediting one piece of evidence over another.”
Id. (internal quotation marks omitted). Further, “[t]his Court reviews the entire record, including
evidence opposed to the result of the decision.” New Par, 301 F.3d at 396 (internal quotation
ATI argues summary judgment should be granted because the record evidence establishes
that the company’s various applications comply with the relevant requirements and no
substantial evidence supports Wilson County’s denials. Wilson County counters that three
grounds provide substantial evidence for its decisions.2 First, Wilson County insists its denials
were based on substantial evidence that ATI’s proposed tower could detrimentally impact
student enrollment at the Friendship Christian School. Second, Wilson County maintains the
Zoning Board had ample grounds to deny ATI’s applications because of the parcel’s
nonconforming status. And finally, Wilson County suggests its informal policy of not
considering matters subject to pending litigation also justified its denials. The Court looks at
each ground in turn.
To begin, the Zoning Board lacked substantial evidence that the proposed tower might
negatively impact the Friendship Christian School, rendering this basis an impermissible ground
to deny ATI’s applications. The trouble for Wilson County is twofold. First, the concerns
various citizens expressed about the tower’s economic impact on the school all stem from fears
about the tower’s effects on the health of the school’s students. A review of testimony offered to
the Zoning Board in support of this claim makes that clear. Kevin Lester, chairman of the
Wilson County appears to concede that concerns expressed about the proposed tower’s aesthetic
unsightliness, its health risks due to radio-frequency emissions, and its negative effect on property values
are not legitimate grounds on which to rest its substantial-evidence explanations. (Docket No. 66 at 22–
23). At any rate, as the county does not meaningfully develop arguments related to these three grounds,
the Court deems them waived. Hensley v. Gassman, 693 F.3d 681, 687 n.6 (6th Cir. 2012) (“[i]t is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put
flesh on its bones”) (internal quotation marks omitted).
school’s board of directors, testified at the November 19, 2010 hearing on ATI’s first Use
the safety of our children is a primary concern of an institution like ours . . . .
Many studies have gone on and are continuing to go on regarding whether it is or
whether it is not safe and perhaps the jury is still out on that . . . . [I]t just does not
seem like good stewardship on the children’s lives to—while the jury may be out
on this subject, to locate a tower that close to both the day care and Friendship
Christian School [and] . . . it just doesn’t seem wise to let the children be perhaps
guinea pigs while we learn more about what the effects may be.
(Docket No. 57-5 at 56–57). At the same hearing, Tina Devlin, a resident of the adjoining
property and mother of three children who are students at the Friendship Christian School,
related that several studies she found confirmed that “[c]hildren are at the greatest risk” from
tower emissions and that ATI’s proposed tower was not “at a safe distance from the school.” (Id.
at 61–62). The Zoning Board heard no testimony concerning the tower’s impact on the school
unrelated to its perceived effect on student health.
The same was true of the testimony the Zoning Board heard from citizens opposing
ATI’s second Use Application on February 17, 2012. Jerry McFarland, an elected Wilson
County Commissioner and area resident, stated that some parents “may not wish to elect to send
their children” to Friendship Christian School “if this site is too close.” (Docket No. 57-23 at 7).
McFarland expanded on this:
One last comment, Mr. Chairman. The concern is health and I know we can’t
consider that under the Federal law. That doesn’t mean it’s not [sic] fair. But if
you can imagine the radiation generated from a cell tower or a light bulb and the
closer you get to that light bulb, energy has caught a couple of us there. But the
closer you get to that [radio frequency], the more you’re receiving it. As you pass
that site, you’re going on down the road and the less and less you receive of it.
The concern is there. At the school these kids will be parked underneath it for
eight hours a day and that’s their concern and they just don’t want that.
(Id. at 9). In sum, the testimony the Zoning Board heard concerning the proposed tower’s
financial consequences on the school did not reach beyond speculation that parental fears about
the tower’s harmful effects on children’s health would lead to a drop in enrollment.
The legal problem for Wilson County—and the reason the stated worries about the
tower’s impact on the school are not substantial evidence that can support the county’s denials—
is that health concerns are an impermissible ground of denial under the TCA. See 47 U.S.C. §
332(c)(7)(B)(iv) (“No State or local government or instrumentality thereof may regulate 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 Commission’s regulations concerning such emissions.”). The Sixth Circuit has long
held the same. Telespectrum, Inc. v. Pub. Serv. Comm’n of Ky., 227 F.3d 414, 424 (6th Cir.
2000) (“concerns of health risks due to the emissions may not constitute substantial evidence in
support of denial by statutory rule”). As the economic-impact rationale the tower’s opponents
advanced is, at its core, a constellation of concerns about the tower’s perceived health risks, the
Zoning Board lacked substantial evidence to deny ATI’s applications on this basis.
On top of that, the Zoning Board also lacked substantial evidence to deny the applications
based on the tower’s economic impact because each individual who spoke about the detriment
the school would suffer relied on little more than conjecture and unsupported opinion. While the
Sixth Circuit has not said that lay opinion evidence may never satisfy the substantial-evidence
requirement, it has rejected similar lay-opinion testimony at least twice. See T-Mobile Cent., 691
F.3d at 804 (“ostensibly lay opinion is not substantial evidence”); Telespectrum, 227 F.3d at 424
(while tower opponents “may have been credible, sympathetic witnesses . . . their testimony was
no more than unsupported opinion”). Moreover, the cases on which the Sixth Circuit relied in
rejecting such testimony “remark that opinion is not sufficient to meet the substantial evidence
requirement.” MIOP, Inc. v. City of Grand Rapids, 175 F. Supp. 2d 952, 956–57 (W.D. Mich.
2001) (citing Telespectrum, 227 F.3d at 424).
Standing against this lay-opinion evidence is the testimony of ATI’s representative, who
related that none of the 41 private schools in the country on which ATI’s towers are located have
reported tower-related enrollment losses. (Docket No. 57-27 at 4). Taking all of that evidence
into view—unsupported opinions on the one hand and unrefuted numerical data on the other—
the Zoning Board did not have substantial evidence to deny ATI’s applications due to the
proposed tower’s economic impact on the Friendship Christian School.
Next, the Court considers whether the nonconforming status of the proposed site
constitutes substantial evidence to justify the Zoning Board’s denial of ATI’s applications. To
recap the facts, the Zoning Board denied ATI’s first Use Application on November 19, 2010,
“based on the nonconforming status of the site.” (Docket No. 57-5 at 70). When ATI came
before the Planning Commission with a Site Application to eliminate the parcel’s nonconforming
use, the Planning Commission denied ATI’s technically compliant Site Application because the
Zoning Board previously denied ATI’s Use Application. (Docket No. 57-13 at 4).
The precise question for the substantial-evidence analysis is whether the Planning
Commission’s decision to deny the Site Application to fix the parcel’s nonconforming use based
on the Zoning Board’s earlier denial of the Use Application—which, recall, was due to the
Planning Commission’s anticipated action on the Site Application—is “authorized by applicable
local regulations.” T-Mobile Cent., 691 F.3d at 799 (internal quotation marks omitted). The
answer is no. As ATI’s representative pointed out at the Planning Commission hearing in
December 2010, Wilson County’s zoning ordinance does not require the Zoning Board to
approve the Use Application before the Planning Commission rules on the Site Application.
(Docket No. 57-13 at 2–3). Wilson County’s Mayor, who does double duty as a Planning
Commission member, agreed. (Docket No. 57-14 at 2–3). More to the point, Wilson County’s
opposition to ATI’s summary-judgment motion does not point to any legal authority that
authorized it to ensnare ATI in a bureaucratic Catch-22, no matter how good the catch. The
county lacked substantial evidence to deny ATI’s applications on this basis.
Finally, the Court considers whether Wilson County had substantial evidence to predicate
denial of ATI’s applications on the fact that ATI initiated litigation against the county. Assessed
in the context of applicable state and local law, T-Mobile Cent., 691 F.3d at 798–99, the answer,
again, is no. Although Wilson County refers to a “custom” or “practice” of refusing
consideration of items in pending litigation, it fails to provide evidence of this policy—
unsurprisingly, perhaps, as the policy is “unwritten.” (Docket No. 66 at 9). Moreover, it is
unclear that Wilson County’s denials of ATI’s applications here are actually consistent with the
“unwritten” policy. As Wilson County tells it, the Zoning Board and Planning Commission
usually refuse to act on applications that involve litigation between the applicant and a third
party opposed to the applicant’s plan, not the county itself. (Id. at 17). Wilson County Planner
Tom Brashear could only recall one instance in which the county refused to act on an application
under this informal policy in which the county was sued. (Docket No. 68-2 at 59). Because
applicable state and local laws do not empower Wilson County to deny ATI’s applications due to
the county’s involvement in pending litigation, this basis, too, does not provide substantial
evidence to support the county’s denials.
In sum, Wilson County did not have substantial evidence to deny ATI’s applications for
any of the reasons it gave, entitling ATI to judgment as a matter of law on this issue.
Prohibiting the provision of wireless services (Count 1)
ATI next argues that Wilson County’s denials of ATI’s applications transgress the TCA’s
bar on local government regulations that “prohibit or have the effect of prohibiting the provision
of personal wireless service.” 47 U.S.C. § 332(c)(7)(B)(i)(II). The statutory text forbids both
general prohibitions or bans on wireless-service facilities, as well as facially neutral policies that
“have the effect of prohibiting service” because they “have the necessary result that all possible
sites in a given area will be rejected.” Laurence Wolf Capital Mgmt. Trust v. City of Ferndale,
61 F. App’x 204, 220–21 (internal quotation marks omitted).
As ATI does not contend that Wilson County’s regulations result in a general ban on
wireless-service facilities, the issue here is whether Wilson County’s denials of ATI’s
applications violate the TCA because they effectively prohibit the provision of personal wireless
services. The Sixth Circuit uses “a two-part test to consider whether the denial of an application
amounts to an effective prohibition: there must be (1) a showing of a significant gap in service
coverage and (2) some inquiry into the feasibility of alternative facilities or site locations.” TMobile Cent., 691 F.3d at 805 (internal quotation marks omitted).
A “significant gap” in coverage exists where “a [single] provider is prevented from filling
a significant gap in its own service coverage,” even if other providers offer coverage in that area.
Id. at 806 (internal quotation marks omitted). ATI argues it demonstrated a significant gap in
AT&T’s coverage in the area. For support, it points to propagation maps showing holes in signal
strength, reports of customer complaints, an account of a radio-frequency engineer who
conducted a drive study showing weak signal strength, (Docket Nos. 57-5 at 12–14, 25–26; 57-6
at 1–3; 57-7 at 1; 57-8 at 1), as well as the explanations of this evidence ATI’s representative
offered to the Zoning Board, (Docket No. 57-5 at 11–26). Just as in T-Mobile Central—in which
the Sixth Circuit held that propagation maps, drive-test data, a radio-frequency engineer’s report,
and customer complaints are the “types of evidence . . . suitable to support a claim for a
substantial gap in coverage,” 691 F.3d at 807—the evidence here amply shows a significant
Wilson County’s two responses are unavailing. The county’s first claim is that no one
really knows how significant the gap is because ATI’s measurements do not account for signalstrength improvements that may result if a nearby AT&T tower becomes operational. (Docket
No. 66 at 24). The problem with this argument is that Wilson County has not factually countered
ATI’s evidence that the additional site falls outside of the area that would improve AT&T’s
weak coverage spots. (Docket No. 57-5 at 26–28). Merely flagging an apparently unviable
alternative does not create an issue of fact. Wilson County’s second argument—that a fact
question exists as to the coverage gap’s significance because one person testified that coverage in
the area is fine, (id. at 25)—also does not get the county where it wants to go because Wilson
County does not explain this person’s qualifications or expertise to opine on the matter. A single
opponent’s lay opinion about coverage quality does not upend the conclusion that ATI showed a
significant coverage gap.
The second prong of T-Mobile Central’s effective-prohibition inquiry focuses on whether
a provider made “some showing as to the intrusiveness or necessity of its proposed means of
closing” the identified gap. 691 F.3d at 808 (internal quotation marks omitted). In contrast to
circuits that compel providers to demonstrate that no “viable alternatives” exist, the Sixth Circuit
“require[s] the provider to show that the manner in which it proposes to fill the significant gap in
service is the least intrusive on the values that the denial sought to serve.” Id. (internal quotation
marks omitted). A provider satisfies this “least intrusive” standard if it “show[s] that a good
faith effort has been made 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.” Id. (internal quotation marks omitted).
ATI undoubtedly made a good-faith effort to identify and evaluate less intrusive
alternatives to the Trice Road site. At Wilson County’s request, ATI investigated several
potential alternative locations for the proposed tower. Micah Retzlaff, a project manager for
Excell Communications, the company with which ATI contracted for site-location services,
stated that Excell investigated at least five properties in the search ring that met ATI’s zoning
and engineering requirements and whose owners were willing to enter into a lease agreement
with ATI. (Docket No. 57-2 at 13–14). As well, Retzlaff testified that no other qualifying
parcels apart from the Trice Road property exist in the search area. (Id. at 14). Based on this
evidence, ATI made a good-faith effort to identify the least intrusive alternative.
Wilson County does not dispute that ATI considered these other properties. Instead, it
cherry-picks language from T-Mobile Central to claim that ATI cannot show good faith because
the company did not consider alternative system designs or alternative tower designs. (Docket
No. 66 at 25). But T-Mobile Central’s open set of examples of what a search for “less intrusive
alternatives” might include (which is quoted above and concludes, tellingly, with the word
“etc.”), does not obligate ATI to conduct each inquiry before it can show good faith.
The county also maintains that a disputed fact exists as to whether ATI “investigated
every single piece of property within the applicable search ring.” (Id.). Wilson County misses
the mark, as the law does not require this. Indeed, the Sixth Circuit explicitly rejected the “no
viable alternatives” standard, which, it observed, could force “a carrier [to] endlessly . . . search
for different, marginally better alternatives.” T-Mobile Cent., 691 F.3d at 808. Because ATI was
not required to turn every stone in its search for a viable location, the fact that it didn’t do so is
immaterial to Wilson County’s legal argument.
To summarize: ATI has met its burdens to show that a significant coverage gap exists
and that its proposed tower is the least intrusive means of filling that gap. Against that backdrop,
Wilson County has not pointed to evidence in the record factually disputing either conclusion.
As a result, ATI is entitled to judgment as a matter of law on its claim that Wilson County’s
denials effectively prohibit the provision of personal wireless service in violation of the TCA.
Unreasonable delay (Count 3)
The next claim on which ATI seeks summary judgment is that Wilson County’s delays in
processing the company’s second set of applications violate the TCA. The statute requires a
local government to act “within a reasonable period of time after [a provider’s] request is duly
filed with such government or instrumentality, taking into account the nature and scope of such
request.” 47 U.S.C. § 332(c)(7)(B)(ii). Although the TCA does not define it, the Federal
Communications Commission (FCC) has declared a “reasonable period of time” is
presumptively, 90 days to process personal wireless service facility siting
applications requesting collocations, and, also presumptively, 150 days to process
all other applications. Accordingly, if State or local governments do not act upon
applications within those timeframes, then a “failure to act” has occurred and
personal wireless service providers may seek redress in a court of competent
jurisdiction within 30 days, as provided in Section 332(c)(7)(B)(v). The State or
local government, however, will have the opportunity to rebut the presumption of
In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to
Ensure Timely Siting Review, 24 FCC Rcd. 13994, 14005, ¶ 32 (Nov. 18, 2009) (FCC Order).
The operation of the 90- or 150-day presumption does “not, in and of itself, entitle the siting
applicant to an injunction granting the application.” Id. n.99. Instead, “if a court finds that the
State or local authority has failed to rebut the presumption that it failed to act within a reasonable
time, the court would then review the record to determine the appropriate remedy.” Id.
ATI says the absolute latest date Wilson County had everything it needed to act on the
company’s applications is May 18, 2012.3 ATI concludes the county’s failure to process ATI’s
applications by October 18, 2012—150 days later—means that Wilson County presumptively
violated the TCA because it did not act on the applications within “reasonable period of time.”4
ATI continues that the county cannot rebut this presumption because no evidence suggests that
ATI’s applications were exceptional and “legitimately require[d] more processing time.” Id. at
14008, ¶ 37. ATI adds that the TCA does not include any provision that affirmatively allows
local governments to defer action on a complete application because of pending litigation.
The Court agrees. Wilson County violated the TCA by failing to act on ATI’s second set
of applications within a reasonable period of time. In addition to the fact that the county’s
To understand how ATI reaches this date, a review of the convoluted path the applications took is
necessary. ATI’s second Site Application, which sought to subdivide the parcel in order to deal with the
nonconforming-use issue, was approved by operation of law on October 21, 2011, when the Planning
Commission failed to act on it. (Docket No. 57-20 at 16). As a result, the sole issue precluding the
Zoning Board’s approval of ATI’s Use Application—the parcel’s nonconforming status—was gone.
Nevertheless, the Planning Commission still refused to take up ATI’s Utility Lot application, (Docket No.
57-21), repeatedly invoking the county’s unofficial no-consideration-when-there’s-pending-litigation
policy to defer a decision on the matter, (Docket Nos. 57-22 at 5; 57-23 at 13; 57-24 at 7; 57-25 at 7).
The Zoning Board considered ATI’s second Use Application on three occasions, voting each time either
to deny it without prejudice or put off a decision, even though it met the Zoning Board’s requirements.
The third and final hearing on it took place on May 18, 2012, at which point the Zoning Board voted to
defer consideration indefinitely until this litigation concluded. (Docket No. 57-27 at 1, 4–5, 12). Thus
May 18, 2012, is the latest conceivable date on which ATI had all of its ducks in a row, so to speak.
ATI’s summary-judgment brief incorrectly notes that the hearing was on May 21, 2012. (Docket No.
55-2 at 24). The transcript of the Zoning Board meeting, however, indicates it occurred on May 18, 2012.
(Docket No. 57-27 at 1). As a result, ATI’s calculation of the 150-day period in its brief is off by three
pending-litigation rationale finds no support in the TCA, it also finds no support in Wilson
County’s own policies or regulations, as discussed above. As a result, the Court grants summary
judgment to ATI on its claim that Wilson County’s delays in processing ATI’s applications
violate the TCA.
Remedy for TCA violations
Having found that ATI is entitled to judgment as a matter of law on the claims addressed
above, the Court next considers the appropriate remedy. ATI seeks an injunction directing
Wilson County to approve its applications and issue all necessary authorizations for ATI to build
and operate the proposed tower. (Docket No. 55-2 at 38–39). Wilson County responds that the
Court should remand the matter to the county to conduct additional evidentiary hearings that will
allow interested parties to submit more evidence. (Docket No. 66 at 26).
“Although the TCA does not specify a particular remedy for violations of its provisions,”
the Sixth Circuit has “repeatedly concluded that where the defendant denied a permit application,
and that denial violated the TCA’s ‘in writing’ and ‘substantial evidence’ requirements, the
proper remedy is injunctive relief compelling the defendant to issue the requested permit.”
Tennessee ex rel. Wireless Income Props., LLC v. City of Chattanooga, 403 F.3d 392, 399 (6th
Cir. 2005) (citation omitted). Wilson County fails to explain what additional evidentiary
hearings could possibly achieve, and the Court discerns no useful purpose in remanding this
matter to expand the record. In addition, Wilson County does not dispute that ATI’s various
applications meet the technical requirements that county regulations impose. Given that, “the
proper remedy is injunctive relief compelling the defendant to issue the requested permit.” Id.
Accordingly, Wilson County must immediately grant the Use Application and all approvals
necessary to allow ATI to construct the proposed tower. In addition, the county must cease all
attempts to prevent ATI from subdividing the proposed site.
State-law claim (Count 4)
Separate from its TCA claims, ATI seeks summary judgment on its claim that the Zoning
Board and Planning Commission lacked authority under Tennessee law to deny ATI’s
applications due to pending litigation because this is not a permissible ground for denial under
Wilson County’s zoning ordinance. (Docket No. 55-2 at 39–40). In response, the county latches
on to five words from another case involving its Zoning Board and argues that even if its denials
were not based on grounds enumerated in the zoning ordinance, its actions were nonetheless
“within existing standards and guidelines.” (Docket No. 66 at 26 (citing Wilson Cnty. Youth
Emergency Shelter, Inc. v. Wilson Cnty., 13 S.W.3d 338, 342 (Tenn. Ct. App. 1999))).
The administrative authority of the Zoning Board and Planning Commission permits
these bodies only to consider whether an applicant meets the rules enumerated in the county’s
zoning ordinance. Merritt v. Wilson Cnty. Bd. of Zoning Appeals, 656 S.W.2d 846, 854–55
(Tenn. Ct. App. 1983). They have “neither the power to zone nor to amend the zoning
ordinance.” Id. at 854. As a result, “[a] denial of a zoning permit which meets all the
requirements of the ordinance when there is no valid ground for denial is arbitrary and
As discussed above, ATI’s applications met the requirements of Wilson County’s zoning
ordinance. Further, the county’s practice of not considering matters subject to pending litigation
finds no support in the zoning ordinance, contains no pending-litigation provision. The Zoning
Board and Planning Commission exceeded their authority because they did more than simply
determine whether ATI’s requested use complies with Wilson County’s zoning laws. ATI is
entitled to summary judgment on this claim.
For the foregoing reasons, the Court GRANTS Plaintiffs’ motion for summary judgment,
(Docket No. 55). An appropriate Order will be entered.
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE
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