Plaintiff, a wireless telecommunications service provider, applied to the Frederick County Board of Appeals (the "Board") for a special use exception to install a cell tower in Frederick County, Maryland in order to close a gap in Plaintiff's service coverage. Following the Board's denial of the application, Plaintiff filed an action seeking an injunction directing the Board to grant its application, as well as any ancillary permits necessary to construct the cell site, based on alleged violations of the Telecommunications Act of 1996 and Maryland law. Plaintiff filed a motion for summary judgment.
The proposed tower was a 150-foot stealth telecommunications unipole. The tower was described as "stealth" because all the antennas would be completely enclosed within the unipole. Additionally, the proposed unipole (or monopole) will be brown in order to blend into the surroundings, and all related equipment will be inside a wooden fenced compound surrounded by a 10-foot-wide landscaping buffer. The property was zoned "A" (Agricultural), allowing for the construction of a new cell tower as a special exception under the Frederick County Code of Ordinances. In addition to other requirements that were met, an application had to include a “listing of alternative sites considered and why not selected”(emphasis added). The Plaintiff identified one existing structure within the search ring upon which collocation would be possible, but the only height available (40 feet above ground level) was determined to be too low by Plaintiff's radio frequency engineer.
At the public hearing, Plaintiff introduced five witnesses with expertise as to Plaintiff's cell site location process, as well as general expertise in the areas of site acquisition, zoning, wireless project management, radio frequency engineering, wireless network design, site development, environmental science, and real estate values. There was testimony both for and against the proposal. Plaintiff submitted a petition signed by thirty-three community members supporting the installation of the unipole while a petition with over sixty signatures opposing the proposed location was submitted.
The County Board voted to deny Plaintiff's special exception application by a vote of 3-2. The County Board summarized the testimony provided at the hearing and stated its reason for denying the application: “The requirement that the Applicant include justification as to why the site was selected and that the Applicant provide a listing of alternative sites considered and why they were not selected is intended to elicit a meaningful effort to locate such towers in locations which will serve the needs of the Applicant while, at the same time, minimize the impact on surrounding properties. In light of the nature of the area ultimately selected by the Applicant in this case, and its location within, among others, a Rural Legacy area, this Board is of the view that more evidence was required to answer the inquiry as to what other sites were considered and why they were not selected.”
Plaintiff claimed that the County Board's decision violated Section 332(c)(7)(B)(iii) of the Telecommunications Act of 1996 ("TCA") because it was not supported by "substantial evidence." Plaintiff also claimed that the Board violated Maryland law concerning special exceptions to zoning ordinances. The Court held that the two claims merge because courts require that in order for a zoning board decision to satisfy the TCA's substantial evidence test, the challenged decision must be in accord with applicable local zoning law. In other words, if a zoning board's decision violates a state's zoning law, as a matter of law it is not supported by substantial evidence.
The Court stated that pursuant to Maryland law, once a special exception applicant has introduced facts and documents that satisfy the specific criteria for a special exception set forth in the zoning ordinance, "the appropriate standard to be used in determining whether a requested special exception use should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone."
The Court held that the County Board made no finding in the case that the granting of the special exception at the proposed location would have adverse effects that are not inherently associated with cell towers and that the Plaintiff satisfied the specific criteria set forth in the zoning ordinance for obtaining a special exception. The Court held that the County zoning oridinance imposed no obligation upon Plaintiff to identify other potential sites and negotiate with the owners of those sites before seeking a special exception. Because Plaintiff satisfied the criteria established by the zoning ordinace for obtaining a special exception and the County Board did not find that the installation of a cell tower on the proposed site had adverse effects not inherent in cell towers themselves, the County Board's decision under both Maryland law and the TCA was invalidated. Therefore, Plaintiff was entitled to the summary judgment it sought — an injunction directing the County Board to grant the application.
For a copy of this decision, contact Anthony Dorland at dorlanda@moss-barnett.com.