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City Denial of Cell Towers
Upheld By Federal Appeals Court
By Richard A. Lehmann "Little Neck" is a residential
neighborhood in Virginia Beach, Virginia. The neighborhood was served with
analog cellular service through towers located outside the neighborhood. Digital
then came to Virginia Beach. Digital providers said they could not cover Little
Neck without a tower in the neighborhood. Each of the two digital competitors
secured a lease with a church and conditional use approvals were sought for two
towers, each 135 feet in height. The two analog providers jumped on the
bandwagon and proposed to co-locate, one on each of the two towers. The conditional use permit was approved by
planning staff and plan commission but was turned down by the common council
under the pressure of neighborhood opposition. The two digital providers and the
church sued in federal court under the Federal Telecommunications Act. The
federal district court ruled that the city had unreasonably discriminated
against the digital providers and had failed to provide a decision in writing
and supported by substantial evidence in a written record. The district court
found, however, that the city had not prohibited service. The federal appellate court overturned the
decision, ruling entirely for the city. The federal court of appeals found that the
city had good land use reasons for denying the towers in an area that had no
commercial uses and no pre-existing commercial towers. The fact that the denial
had the effect of injuring the prospects of both of the new digital providers
and the older analog providers meant that the decision did not discriminate in
favor of analog and against digital. It is legitimate, the court finds, for the
city to consider land use concerns regarding towers being established in a
neighborhood that previously had no towers. The court of appeals agreed with the district
court that a city will usually be liable for prohibiting or having the effect of
prohibiting the provision of cellular services only if it adopts a blanket ban.
The court opens the door slightly to suggest that a series of case-by-case
denials could be treated the same as an across-the-board ban if the pattern
guaranteed that rejection of every application. The district court had ruled that the city
was required to state findings of fact and an explanation of the decision within
the written record. In this case, the city sent the applicant a plan commission
description of the towers, stamped "denied" and barebones minutes of
the council meeting. The appeals court defines substantial evidence to mean
"relevant evidence such that a reasonable mind might accept the evidence as
adequate to support a conclusion." In this case, although there were no
technical reports supporting rejection, there was public testimony indicating
widespread opposition and this amounted to adequate evidence. The court noted
that industry representatives will have expert testimony and fancy exhibits. The
generalized opinions of average citizens are sufficient weight to support a
denial decision. The city need not adapt findings or reasons. AT&T Wireless PCS, Incorporated v.
City Council of the City of Virginia Beach, 1998 WL 553666, 4th Cir. (VA). |
