Cellular South v. City of Germantown, Tennessee
Filing
23
MEMORANDUM OPINION AND ORDER. Signed by Judge Jon Phipps McCalla on 6/22/2015. (McCalla, Jon)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CELLULAR SOUTH REAL ESTATE,
INC. d/b/a CELLULAR SOUTH
Plaintiff,
v.
CITY OF GERMANTOWN,
Defendant.
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No. 2:12-cv-02888-JPM-tmp
MEMORANDUM OPINION AND ORDER
Plaintiff Cellular South Real Estate, Inc. (“Plaintiff” or
“Cellular South”) brings this suit under the Telecommunications
Act of 1996, 47 U.S.C. § 332(c)(7)(B)(i)(II) and (iii) (“TCA”)
alleging that Defendant City of Germantown (“Defendant” or
“City”) wrongfully denied permission to build personal wireless
services facilities (“WSF”).
The parties have decided to have
this issued determined purely on the trial briefs.
For the reasons set forth in this opinion, this Court holds
that Plaintiff was wrongfully denied approval of building WSF on
under 47 U.S.C. § 332(c)(7)(B)(i)(II) and (iii).
Accordingly,
the decision of the City Board of Zoning Appeals’ denial of
Cellular South’s application is REVERSED, and the case is
REMANDED to the City Board of Zoning Appeals for further action
in conformity with this opinion.
I.
PROCEDURAL HISTORY
On October 10, 2012, Plaintiff filed an action against the
City of Germantown, Tennessee.
(Compl., ECF No. 1.)
Count I of
the Complaint alleges that the City’s denial of Cellular South’s
Application was not supported by substantial evidence as
required by 47 U.S.C. § 332(c)(7)(B)(iii).
(See id. ¶¶ 20-34.)
Count II of the Complaint alleges that the City’s denial
effectively prohibited the provision of personal wireless
services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).
id. ¶¶ 35-42.)
(See
Count III alleges that the City’s denial
violated 47 U.S.C. § 332(c)(7)(B)(iv) on the grounds that the
City unlawfully based its denial on alleged negative effects of
radio frequency emissions.
(See id. ¶¶ 43-55.)
On March 11, 2013, the parties filed their Rule 26(f)
Report, where the parties agreed that “[t]he issues in this
action are purely legal.”
(ECF No. 13 at 1.)
Accordingly,
“[t]he parties agree that this Court’s review is in an
appellate-type capacity and should be limited to the legal
issues stated above and as outlined in Cellular South’s
Complaint.”
Answer.
(Id. at 2.)
(ECF No. 14.)
On March 12, 2013, the City filed its
On March 18, 2013, the Magistrate Judge
entered the Scheduling Order.
(ECF No. 15.)
On May 3, 2013, the City filed the Administrative Record on
Appeal in this case, “containing all of proof submitted before
2
the [City of Germantown] Board of Zoning Appeals.”
No. 17.)
(ECF
On May 17, 2013, Cellular South filed a Stipulated
Supplementation of Record.
(ECF No. 18.)
Collectively, these
submissions constitute the Record on Appeal (“R.”). 1
On June 10, 2013, Cellular South filed its Initial Trial
Brief.
(ECF No. 19.)
Response Brief.
(ECF No. 20.)
filed its Reply Brief.
II.
On July 19, 2013, the City filed its
On July 31, 2013, Cellular South
(ECF No. 21.)
FINDINGS OF FACTS
Cellular South Real Estate, Inc., doing business as
Cellular South, is a Mississippi corporation with its principal
place of business in Ridgeland, Mississippi.
No. 17-6 at PageID 225-26.)
business in Tennessee.
24.)
(R. 110-11, ECF
Cellular South is authorized to do
(R. 108-09, ECF No. 17-6 at PageID 223-
Defendant City of Germantown is a municipality located in
Shelby County, Tennessee.
(Compl. ¶ 2, ECF No. 1; Answer ¶ 2,
ECF No. 15.)
On or about July 13, 2012, Cellular South submitted to the
City its Application for Use on Appeal to construct a WSF.
(R. 142—77, ECF Nos. 18-2, 18-3.)
Cellular South’s proposed
site for the WSF is “on property owned [by] Faith Presbyterian
Church of Germantown,” located at 8834 Poplar Place.
1
(R. 142,
The Record on Appeal will consist of the City’s submissions (R. 1-130; ECF
Nos. 17-2, 17-3, 17-4, 17-5, 17-6) and Cellular South’s submissions (R. 131177; ECF Nos. 18-1, 18-2, 18-3), which are sequentially paginated.
3
ECF No. 18-2 at PageID 259.)
The proposed WSF tower is designed
as a concealed belfry tower and “is to be 100 feet in height
. . . [with a] 40 ft. by 40 ft. lease[d] area around the tower
[that] will contain the equipment for the C-Spire antennas and
future antennas.”
(R. 132, ECF No. 18-1 at PageID 249; see also
R. 160-77, ECF Nos. 18-2, 18-3 at PageID 277-94, (Neel-Schaffer
designs for communication tower).)
Further, the proposed tower
is “be designed to withstand winds of 70 miles per hour and 1/2
inch radial ice in accordance with the ANST/TIA/EIA-222-F-1996
Standard.”
(R. 151, ECF No. 18-2 at PageID 268 (Aug. 21, 2012,
letter from Neel-Schaffer engineer).)
Moreover, “[t]he proposed
antennas will not interfere with established public safety
telecommunication structures” by using only frequency bands
licensed to Cellular South by the Federal Communications
Commission (FCC), which avoids “any possibility of interference
with television, radio, or emergency systems.”
(R. 152, ECF
No. 18-2 at PageID 269 (Aug. 28, 2012, letter from Neel-Schaffer
engineer).)
The City’s Ordinances allow wireless transmissions
facilities in residential zoning districts, if they meet certain
specific requirements.
(R. 132, ECF No. 18-1 (quoting Section
23-86 of zoning ordinance).)
On September 11, 2012, the Application was presented to the
Board of Zoning Appeals (“Board”), and the City -- acting
4
through the Board -- denied Cellular South’s application to
construct a WSF on the property owned by Faith Presbyterian
Church located at 8834 Poplar Pike, Germantown, Tennessee 38138.
(R. 131-35, ECF No. 18-1 at PageID 248-52 (Board meeting mins.
for Sept. 11, 2012).)
Four Board members were present:
Ms.
Elizabeth Boyd (“Boyd”), Mr. David Klevan (“Klevan”), Mr. Tony
Salvaggio (“Salvaggio”), and Ms. Patricia Sherman (“Sherman”).
(R. 131, ECF No. 18-1 at PageID 248.)
The meeting minutes indicate the finding that “[t]he
proposed wireless transmission facility meets the location
criteria for a use on appeal and the site area, setback, tower
height requirements, buffer zone and ANSI standards for a
[wireless transmission facility].”
(R. 133, ECF No. 18-1 at
PageID 250.)
At the meeting on September 11, 2012, however, there was a
large, negative, public response by the residents of the City.
Their concerns are as listed:
adverse effects on property
values (ECF No. 19-1 at PageID 313), blocking the sunset (id.),
whether cell towers are located in residential areas (id.), the
adverse effects of microwave emissions (id. at PageID 314), and
simply not wanting to live next door to a cell tower (id. at
PageID 317).
All four Board members denied Cellular South’s application
on the grounds that Germantown, TN, Ordinance 23-49(b) allows
5
the board to consider the “public health, safety, comfort or
welfare of the inhabitants of the city” when deliberating
whether to grant application for building a structure within the
city limits.
Board member Klevan voted no because he felt
“there is a safety issue and that there is a lack of substantial
impact in the area: he does not see a significant coverage
increase that will benefit the community.”
(Sept. 11, 2011,
Board Minutes, R. 135, ECF No. 18-1 at PageID 252; see also Tr.,
R. 19, ECF No. 17-2 at PageID 134.)
Board member Salvaggio
voted no because there are other alternative locations and the
presence of the cell tower would compromise the welfare of the
citizens and compromise the property values.
(R. 19, 135.)
Board member Sherman voted no because the tower was located in a
zone marked residential and because of the uncertain impact it
would have upon the neighborhood.
(R. 135.)
Finally, Board
member Boyd voted no because she was “opposed to the tower being
in a residential area and possibly having a negative effect on
the surrounding neighbors.”
(R. 19, 135.)
Because the board
members relied on the justifications provided by the City’s
residents, the board members did not provide additional
justification.
At the meeting on September 11, 2012, representatives for
Cellular South made two assertions.
First, Cellular South
maintained that there was a gap in wireless communication
6
coverage and that the presence of a cell tower on the property
of Faith Presbyterian Church would close that gap.
(R. at 133-
34, ECF No. 18-1 at PageID 250-51 (responses by Cellular South
Representatives Robert Pierce and Melinda Bodie).)
The map
provided at the meeting illustrated this point, and this
assertion went undisputed.
(coverage maps).)
(ECF No. 20-1 at PageID 398-99
Second, Cellular South considered other
alternative locations and such locations were not feasible.
at 133-34, ECF No. 18-1 at PageID 250-51.)
(R.
Taking into account
that the area was a residential zone, Cellular South proposed
that the tower be disguised as a free-standing bell tower.
(ECF
No. 20-1 at 400-02.)
III. CONCLUSIONS OF LAW
Cellular South argues that it is entitled to judgment as a
matter of law on Counts 1 and 2 of its Complaint.
at 1.)
(ECF No. 19
Accordingly, the issues before the Court are as follows:
(a) whether the decision to deny Cellular South’s Application
was not supported by “substantial evidence contained in a
written record,” in accordance with 47 U.S.C.
§ 332(c)(7)(B)(iii), and (b) whether the Board’s denial of
Cellular South’s application effectively prohibited the
provision of personal wireless services in violation of 47
U.S.C. § 332(c)(7)(B)(i)(II).
7
A.
Substantial Evidence
The TCA provides, in part:
“Any decision by a State or
local government or instrumentality thereof to deny a request to
place, construct, or modify personal wireless service facilities
shall be in writing and supported by substantial evidence
contained in a written record.”
47 U.S.C. § 332(c)(7)(B)(iii).
When determining whether evidence is considered substantial, the
United States Court of Appeals for the Sixth Circuit applies the
substantial-evidence standard defined as “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.”
T-Mobile Cent., LLC v. Charter Twp. of West
Bloomfield, 691 F.3d 794, 799 (6th Cir. 2012) (citing Universal
Camera v. Nat’l Labor Relations Bd, 340 U.S. 474, 477 (1951)).
“Substantial evidence should be substantiated.”
Id. at 800
(citing Telespectrum, Inc. v. Public Services Com’n of Ky., 227
F.3d 414, 424 (6th Cir. 2000) (holding that “unsupported
opinion” does not constitute substantial evidence)).
allegations will not suffice.
Id.
Mere
“General concerns from a few
residents that the tower would be ugly or that a resident would
not want it in his backyard are not sufficient.”
Id. (citing
New Par v. City of Saginaw, 301 F.3d 390, 399 n.4 (6th Cir.
2002)).
The Sixth Circuit reasoned that the purpose of requiring
substantial evidence is:
8
If § 332 were read as broadly as the Township suggests
and
these
generalized
objections
sufficed,
any
wireless facility could be rejected.
Anyone who
opposed a cell tower in their backyard could offer an
excuse that it would be bad for the community, would
not be aesthetically pleasing, or would be otherwise
objectionable.
But that by itself is not enough.
There must be evidence. And not just any evidence -evidence
that
is substantial.
And
substantial
evidence
must
be
substantiated
by
something.
“Substantial evidence, in the usual context, has been
construed to mean less than a preponderance, but more
than a scintilla of evidence.”
West Bloomfield, 691 F.3d at 801 (quoting Cellular Tel. Co. v.
Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999).
Plaintiff argues that the Board’s erroneous decision to
deny its Application was based on five reasons:
“(1) health
concerns, (2) safety concerns, (3) preservation of property
values, (4) aesthetics, and (5) lack of evidence of an increase
in coverage area.”
(Pl.’s Trial Br. at 2, ECF No. 19.)
The Court addresses each of these arguments in turn.
1.
Health Concerns
Cellular South argues that “the TCA expressly prohibits the
denial of an application for a WSF based on alleged negative
health effects from radio frequency emissions.”
(ECF No. 19 at
7.)
Regarding the alleged negative health effects of radio
frequency emissions, the City contends that “the Board expressly
acknowledged its understanding that federal law precluded the
Board from denying Plaintiff’s application on that basis during
9
the hearing.”
(ECF No. 20 at 6 n.3. (citing R. at 16-17).)
The
City also asserts that “none of the Board members cited the
negative health effects of radio frequency emissions as his or
her basis for denying Plaintiff’s application.”
at 6).)
(Id. (citing R.
Thus, the City argues that “Plaintiff’s argument on
this point is without foundation.”
(Id.)
The Board acknowledged that federal law precludes the Board
from denying Cellular South’s application on the basis of
alleged negative health effects.
(R. 16-17.)
Because
Defendant’s denial of Plaintiff’s application was not based on
negative health effects, Cellular South’s appeal on this basis
is without merit.
2.
Safety Concerns
Cellular South argues that the “evidence submitted by
Cellular South to the Board was unrebutted by any relevant,
admissible evidence calling into question the safety of the
design or location of the proposed WSF.”
(ECF No. 19 at 8.)
Regarding safety concerns, the City concedes that “the
design of Plaintiff’s proposed tower meets the ANSI/TIA/EIA-222F-1996 Standard requiring the capability to withstand winds of
70 miles per hour and one-half inch of radial ice.
The City
further acknowledges that the proposed tower meets the City’s
height and setback requirements.”
10
(ECF No. 20 at 6 n.3.)
“The
City, therefore, does not dispute Plaintiff’s position relative
to the safety issue.”
(Id.)
The Court finds that, although at least one Board member
cited safety concerns as a basis for denying Cellular South’s
application, the City has conceded this issue.
Accordingly,
Cellular South’s appeal on the basis of safety concerns is also
without merit.
3.
Property Values and Aesthetics
Regarding property values, Cellular South argues that
“[n]either the residents that opposed Cellular South’s
Application, nor the members of the Board that rejected the
Application offered any evidence whatsoever to support their lay
opinions that the construction of the proposed WSF would
negatively impact property values in the area.”
9.)
(ECF No. 19 at
As for impact on aesthetics, Cellular South further
contends that “[t]he generalized concerns of several Germantown
residents regarding the aesthetics of the proposed WSF are
virtually identical to the objections . . . rejected by the
Sixth Circuit as legally insufficient to provide substantial
evidence to deny an application for a WSF.”
(Id. at 11
(citation omitted).)
The City argues that its denial was based upon substantial
evidence which showed negative aesthetic effect (ECF No. 20 at
7-8) and negative impact on the value of its residents’
11
properties (id. at 8).
The City asserts that the Board “did not
premise its decision on the citizens’ testimony concerning
aesthetics, alone, or on the citizens’ testimony regarding
property values, alone.”
(Id. at 9.)
Instead, the City
contends that “the Board premised its decision on the cumulative
effect of the citizens’ testimony regarding the proposed Tower’s
negative effects on aesthetics and property values and
Plaintiff’s lack of evidence.
(Id. (emphasis added).)
The Court finds Defendant’s arguments unpersuasive.
In its
Response Brief, Defendant primarily relies on persuasive
authority in the United States Court of Appeals for the Seventh
Circuit -- namely, Helcher v. Dearborn County, 595 F.3d 710 (7th
Cir. 2010) and VoiceStream Minneapolis, Inc. v. St. Croix
County, 342 F.3d 818 (7th Cir. 2003) -- for the proposition that
“it is not only proper but expected that the local government
will consider the views of its constituents to be a particularly
compelling form of evidence.”
(ECF No. 20 at 7 (citing New
Cingular Wireless PCS, LLC v. Fairfax Cnty. Bd. of Supervisors,
674 F.2d 270, 275 (4th Cir. 2012)).)
These two cases are
distinguishable from the instant case.
In Helcher, the Seventh Circuit affirmed the zoning board’s
decision to deny an application for permission to construct a
wireless communication facility.
595 F.3d at 713-14.
As noted
by Plaintiff (ECF No. 21 at 2), the record in Helcher contained
12
substantial evidence: (1) testimony from “[a] real estate
appraiser [who] addressed property values and concerns regarding
potential hazards to children presented by the proposed tower,”
595 F.3d at 715, (2) “a report filed by . . . a consulting
firm[,] [which] conceded that the proposed tower would provide
the desired coverage . . . but suggested that other sites could
deliver superior service with a smaller impact on the
surrounding community,” id., and (3) “software-enhanced
photographs based on those taken during Bell’s balloon test,
modified to show a scaled, graphical representation of the
proposed tower” and how the tower “would reduce their property
values, change the character of the neighborhood, and be
visually intrusive,” id. at 720.
The Seventh Circuit therefore
concluded that the board’s decision rejecting the permit for
noncompliance with zoning ordinance was supported by substantial
evidence.
Id. at 722-27.
The only objective evidence that was introduced in support
of Defendant’s position regarding the aesthetic impact of the
tower was “a photograph depicting the current view from [a local
resident’s] front porch toward the location of the Tower, . . .
and Plaintiff’s renderings of the proposed Tower.”
(ECF No. 20
(citing R. 12, 21, 166, 175; ECF No. 17-2 at PageID 127, 136;
ECF No. 18-2 at PageID 283, 292.)
Although Plaintiff’s
rendering of the tower indicates that it would be visible for
13
some distance (see R. 175, ECF No. 18-2 at PageID 292), the
rendering on its own is insufficient to establish by substantial
evidence that the tower would have a negative aesthetic effect
on the surrounding area.
Unlike Helcher, the record in the
instant case includes no testimony from a real estate appraiser,
no expert reports regarding alternative locations, and no
simulations or tests that demonstrate the aesthetic effect that
the tower may have on the surrounding area -- other than an
isolated rendering of the tower.
Also, unlike Helcher, Cellular
South’s application met the City’s ordinance requirements.
(See
R. 133, ECF No. 18-1 at PageID 250.)
VoiceStream is similarly distinguishable.
VoiceStream
concerned a “185–foot tower on the river bluff extending
noticeably above the tree line” that contrasted with “the
extraordinary scenery of the National Scenic Riverway and with
the historic district in the City of Marine on St. Croix.”
F.3d at 832.
342
The National Park Service objected to the
construction of the tower and “supported its position with maps
developed during the crane testing that showed that a tower on
the Haase site would be visible from locations up to four miles
away on the St. Croix River and Minnesota Highway 95 and from
the [City of] Marine on St. Croix Historic District.”
Id.
“The
tower’s visibility from various sites in the City of Marine on
St. Croix was confirmed by photographs submitted to the board by
14
local residents.”
Id.
The evidence demonstrated that “the
proposed tower would predominate the landscape of the bluff
overlooking the Riverway.”
Id.
As a result of the evidence
“grounded in the specifics of the case,” the Seventh Circuit
found that the County’s decision to deny VoiceStream a special
exception to build a telecommunications tower “did not violate
the substantial evidence requirement of § 332(c)(7)(B)(iii).”
Id. (internal quotation marks omitted).
In contrast to the evidence in VoiceStream, other than the
Plaintiff’s rendering of the tower that indicates that it will
be visible from some unknown distance away (see R. 175, ECF No.
18-2 at PageID 292), no objective evidence exists regarding the
aesthetic impact the tower will have on the surrounding area.
The record is devoid of information regarding the distance from
which the tower will be visible.
There is no evidence that the
tower is being constructed in an area with the “extraordinary
scenery” of a National Scenic Riverway or that the tower would
intrude on a historic district.
Further, there is no evidence
that the tower would “predominate the landscape.”
The record in the instant case supports Plaintiff’s
position.
T-Mobile Cent., LLC v. Charter Twp. of West
Bloomfield, 691 F.3d 794, is instructive.
the Sixth Circuit found:
15
In West Bloomfield,
While the concerns brought before the Board certainly
relate to building a wireless facility that is
aesthetically pleasing and ‘harmonious with the surrounding
area,’ the evidence in the record is hardly substantial.
The generalized complaints effectively amount to NIMBY -not in my backyard.
691 F.3d at 800.
For example, statements made during the board
meeting in West Bloomfield consisted of:
“But I need to know if a resident says, you put an
ugly tower in my backyard and you potentially decrease
my property value; [m]y backyard is kind of where
they’re going to put this thing; [b]ut the final word
is, would you want one of these cell towers in what
would be, if I build a house there or build houses
there, in my backyard?; [w]ould you want that in your
backyard; [t]here will be towers and towers, and
pretty soon I'll have Disneyland in my backyard.”
Id. at 800 n.4 (alterations in original).
Like the citizens in West Bloomfield, several residents in
the instant case raised concerns regarding, inter alia,
potential decrease in property values.
ECF No. 18-1 at PageID 251.)
(Board minutes, R. 134,
Although the residents provided
their opinion as to the potential devaluation of their property
based on perceived negative impact on aesthetics, they did not
support their testimony with substantial evidence:
[Resident 1]: I for one like [the city ordinances]
because it keeps standardization in the community and
keeps our property values . . . .
I have personally
talked to neighbors in excess of half a mile radius
and I have one neighbor that said that he didn’t think
that it would devalue his property. . . .
Our issue
is today the devaluation and safety.
. . . .
16
[Resident 2]: [W]hen I look at the westerly setting
sun, I will be looking out in front of my house at
this big large tower. I don’t think that’s something
that I particularly want to look at, so my opinion is
I don’t want this.
. . . .
[Resident 3]: Thank you for the opportunity to express
my viewpoints. I’m totally against it. No matter how
much you dress up that tower, it’s still a tower. How
much, whatever you put it on it’s there and it sticks
up and it’s degradious(?) [sic] to me.
. . . .
[Resident 4]: We feel that our property value deserves
the same protection and concern of all the regulations
in the City of Germantown as other residents deserve
and expect.
. . . .
[Resident 5]: I’d rather see it stay in more of a
commercial or office and other type of environment,
not in our backyard.
. . . .
[Resident 6]: First of all, everything is equal when I
start to sell my house.
If somebody could lay by my
pool and look up at the cell tower, (inaudible) clear
to the sky, guess whose house they’re going to buy,
not mine.
. . . .
[Resident 7]: We don’t want to live next door to a
cell tower. That wasn’t the bargain . . . .
(Tr. at R. 10-15, ECF No. 17-2 at PageID 125-30.)
Just as in West Bloomfield -- and in contrast to Helcher
and VoiceStream -- these opinions are not based on objective
evidence, and instead amount to asserting: “not in my backyard.”
17
“[A] ‘few generalized expressions of concern with aesthetics,’
standing alone, cannot serve as substantial evidence on which to
base a wireless permit denial.”
VoiceStream, 342 F.3d at 831
(quoting New Par v. City of Saginaw, 301 F.3d 390, 398 (6th Cir.
2002)).
Accordingly, the Court finds that the City’s reasons
for denial concerning aesthetics and property values were not
based on substantial evidence in the record.
See Telespectrum,
227 F.3d at 424 (finding testimony by residential landowners
regarding diminishing property values was merely “unsupported
opinion” because the testimony was not supported by substantial
evidence).
4.
Coverage gap in personal wireless services
The Defendant City asserts that Plaintiff’s maps and
opinions about coverage are unsupported claims lacking
substantiated evidence.
This objection was first raised during
the course of litigation and was not part of the record of the
meeting on September 11, 2012.
In West Bloomfield, the Township
argued that the showing of a coverage gap was not based on
sufficient evidence.
Because that claim was raised in the
course of litigation and was not present in the record, the
issue is not properly before the Court.
691 F.3d at 803-04.
The issue that is properly before this Court, as was before the
Sixth Circuit in West Bloomfield, is whether or not the denial
was based on substantial evidence in accordance with the City’s
18
ordinances.
The City of Germantown never questioned whether
there was a gap in coverage.
The City cannot retroactively add
a basis for objection when it was never considered by the Board
in the first place.
Rather, the City’s scope of consideration
is limited to considering what is present in the city ordinance:
The board of zoning appeals in either approving,
granting or denying a use, variance, or otherwise when
proper, will consider whether or not the approval will
impair an adequate supply of light and air to adjacent
property, unreasonably increase the congestion of
public streets, increase the danger of fire and
endanger public safety or in any other way impair the
public health, safety, comfort or welfare of the
inhabitants of the city.
Germantown, TN, Ordinance 23-49(b).
The two asserted
justifications that fall within this scope are objections
regarding the general aesthetics and property values, neither of
which has been substantiated by any evidence in violation of 47
U.S.C. § 332(c)(7)(B)(iii).
Because Defendant’s arguments regarding a coverage gap in
personal wireless service “are not properly before this court,”
West Bloomfield, 691 F.3d at 803, the Court declines to consider
the merits of this argument.
B.
Prohibiting the Provision of Personal Wireless
Services
The TCA provides, in part:
“The regulation of the
placement, construction, and modification of personal wireless
service facilities by any . . . local government . . . shall not
19
prohibit or have the effect of prohibiting the provision of
personal wireless services.”
47 U.S.C. § 332(c)(7)(B)(i)(II).
The Sixth Circuit has adopted a two-part test to determine
whether a denial of an application prohibits the provision of
wireless services:
“[T]here 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.’”
T-Mobile Cent., LLC v. Charter Tp. of West Bloomfield, 691 F.3d
794, 805 (6th Cir. 2012) (citing MetroPCS, Inc. v. City & Cnty.
of San Francisco, 400 F.3d 715, 731 (9th Cir. 2005), abrogated
on other grounds by T-Mobile S., LLC v. City of Roswell, Ga.,
135 S. Ct. 808 (2015)).
When considering the feasibility of alternative facilities
or site locations, the Sixth Circuit adopted the “least
intrusive” standard which requires the provider to show that the
manner proposed to fill the gap in services is “the least
intrusive on the values that the denial sought to serve.”
Bloomfield, 691 F.3d at 808.
West
This standard requires, at a
minimum, a showing that there was a good faith effort to
identify and evaluate less intrusive alternatives.
See id.
Cellular South meets both prongs of the two-part test.
West Bloomfield is again instructive.
T-Mobile applied to build
a WSF to fill a gap in its coverage in West Bloomfield Township,
Michigan.
West Bloomfield, 691 F.3d at 797.
20
T-Mobile had
investigated other sites which were either not practical or not
feasible.
Id.
The application was denied by the Township’s
Board of Trustees.
Id.
Under the MetroPCS standard, T-Mobile
needed to show that there was a “significant gap” in its own
services in order to satisfy the first prong of the analysis.
West Bloomfield, 691 F.3d at 805.
T-Mobile thus submitted
propagation maps along with a report by a radio frequency
engineer to show that there was in fact a gap.
Id. at 807.
The
court found that this was enough evidence to show that there was
a gap.
Id. at 807-08 (citing MetroPCS, 400 F.3d at 733).
In the instant case, the findings of the Court, supra, show
that Cellular South met the first MetroPCS prong.
Plaintiff
demonstrated that there was a gap in its coverage and that the
presence of a WSF on the property of Faith Presbyterian Church
would fill the gap.
(ECF No. 20-1 at 398-99.)
The report
included coverage maps that showed a gap in coverage that would
be largely alleviated by the proposed WSF.
(Id.)
provided by Cellular South is uncontradicted.
This report
Defendant
contests, however, whether the evidence supports a finding that
additional customers would be served by the addition of the WSF.
(ECF No. 20 at 12–13 (“Plaintiff had no evidence to support its
statement that the proposed Tower in this particular location
would enhance coverage to Plaintiff’s customers.”).)
question is irrelevant to the analysis.
21
This
The relevant inquiry is
whether there is a significant gap in the particular provider’s
coverage that would be ameliorated by the addition of a new
telecommunications tower.
See Second Generation Properties,
L.P. v. Town of Pelham, 313 F.3d 620, 633 (1st Cir. 2002)
(finding that a contrary holding “might have the effect of
driving the industry toward a single carrier” in contravention
of the purpose of the statute); see also West Bloomfield, 691
F.3d at 806 (“The cramped reading of the Fourth Circuit -- which
requires a blanket ban to trigger a violation of the statute -seems inconsistent both with the plain text of the statute as
well as the broader goal of the TCA to promote the construction
of cellular towers.”); T-Mobile Ne. LLC v. Town of Ramapo, 701
F. Supp. 2d 446, 458 (S.D.N.Y. 2009) (noting that a providerbased approach to the question of whether a significant gap in
coverage exists “sits more easily with the goals the TCA was
designed to advance”).
Because the uncontradicted coverage maps
demonstrate that the proposed WSF would ameliorate a current
significant gap in Cellular South service, Plaintiff has met its
burden as to the first MetroPCS prong.
The Court finds Cellular South also met its burden as to
the second MetroPCS prong.
Plaintiff showed that it had
considered other sites for a WSF and had deemed those sites
inadequate to meet its needs.
(ECF No. 19-1 at 323.)
Specifically, a Cellular South representative addressed why the
22
suggested alternative sites at the intersection of Forrest HillIrene and Poplar Pike and at the “tree site on Forest Hill-Irene
at the fire station” were unsuitable.
Id.
According to the
representative, “there is actually a tower located on the south
east corner that they already o[w]n.”
PageID 250.)
(R. 133, ECF No. 18-1 at
The representative testified that “because of the
height limitation, coverage does not extend far enough down
Poplar Pike.”
(Id.)
As to the location at the fire station,
the representative explained that because of the tree height, a
tower at that location “would not provide any coverage.”
(Id.)
According to the representative, “transmissions would basically
be shooting directly into the tree line.”
(Id.)
Other
representatives testified similarly:
[Representative 1]: [W]e’re already co-located on the
Verizon tower, so from the distance from there and the
proposed area is about only a quarter mile and so we
already have good coverage there, so placing a cell
tower where we already have coverage and pretty good
(inaudible) coverage is not a good economic solution
to what we designed for it. . . .
. . . .
[I]f you’ll look at the plots that I gave you, we are
already providing service there, so providing a tower
where we already have service is not a good economic
solution.
So what we would propose is to put
something further west where we have weaker coverage
to be able to serve our customers better.
23
(Tr. at R. 15 (statements by Robert Pierce), ECF No. 17-2 at
PageID 130.)
[Representative 2]: As [Representative 1] has stated,
the other two sites that have been proposed by others
are not feasible for what we need to have to be able
to have the coverage that we want to give to the
citizens of Germantown in our proposal.
(Tr. at R. 17 (statements by Cody Bailey), ECF No. 17-2 at
PageID 132.)
The Court concludes that Cellular South put forth a good
faith effort to find an alternative location for a WSF and that
none was suitable.
Accordingly, the Court finds that Cellular
South has met its burden to demonstrate that it inquired into
the feasibility of alternative facilities or site locations.
West Bloomfield, 691 F.3d at 808 (holding that T-Mobile’s
consideration and rejection of suggest alternative sites was
“sufficient to make the requisite ‘showing as to the
intrusiveness or necessity of its proposed means of closing that
gap’”) (citing MetroPCS, 400 F.3d at 734).
Because Plaintiff has met its burden as to both of the
MetroPCS prongs, the Court finds that the City’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).
IV.
CONCLUSION
For the foregoing reasons, the Court finds that Defendant
denied Plaintiff’s application to construct a WSF in violation
24
of the Federal Telecommunications Act of 1996.
§ 332(c)(7)(B)(i)(II), (iii).
47 U.S.C.
Accordingly, the decision of the
City Board of Zoning Appeals’ denial of Cellular South’s
application is REVERSED.
The case is REMANDED to the City Board
of Zoning Appeals for further action in conformity with this
opinion.
The City is directed either to grant the application
or conduct additional evidentiary hearings and decide the issue
anew on the basis of an expanded record within ninety (90) days.
Should the City choose to conduct additional hearings, Cellular
South must be afforded the opportunity to submit evidence.
Judgment is ENTERED for Plaintiff.
IT IS SO ORDERED, this 22nd day of June, 2015.
/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE
25
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