NEW CINGULAR WIRELESS PCS, LLC. V. BOARD OF SUPERVISORS OF PIMA COUNTY, ARIZONA (U.S. District Court, Arizona, January 5, 2011).
The wireless provider (the “Plaintiff”) submitted an application for a conditional use permit (CUP) to install a 55 foot cell phone tower of a "monopalm" design, meaning it would be designed to resemble a palm tree. The County Board, after a public hearing, voted unanimously to deny the CUP and issued a written decision. The County Board found that there were "significant aesthetic issues with the location of the proposed tower" and that "[d]ue to the unique scenic features in the area and topography in the area this tower will adversely affect the views of neighboring property owners and views of the Tucson Mountains." The County Board found the proposed camouflage was insufficient to offset the adverse visual effect of the tower.
The Plaintiff alleged that the County Board's decision violated the Telecommunications Act of 1996 (TCA), which prohibits local government regulation that "prohibits or has the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B). In addition, the complaint alleged that the County Board's denial of the application was not supported by substantial evidence, in violation of 47 U.S.C. § 332(c)(7)(B)(iii). The parties agreed that the question of whether the decision was supported by substantial evidence may be decided by a summary judgment motion.
The Court indicated that the substantial evidence inquiry does not require incorporation of the substantive federal standards imposed by the TCA, but instead requires a determination whether the zoning decision at issue is supported by substantial evidence in the context of applicable state and local law. This means that the substantial evidence assessment is made based on applicable state and local regulations. The Court stated that substantial evidence exists if there is less than a preponderance, but more than a scintilla of evidence. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. In the event the Court concludes that the denial is supported by substantial evidence under the applicable local laws, the question of whether the denial "prohibits or has the effect of prohibiting the provision of personal wireless services" would still remain.
The Plaintiff argued that the County Board did not have "unfettered discretion" to grant or deny an application — it was constrained by the Pima County Code, which "permits '[communications towers... in any zone, ' if they meet the specific requirements for communications towers. The specific requirements for communications towers, including detailed set-backs, ground equipment screening, lighting, access, and parking were met, the Plaintiff camouflaged the tower, and the County Board proposed no further camouflage requirement nor cited to any. Instead, the County Board simply denied the tower on the basis of aesthetics, which Plaintiff argued it cannot do because all the specific requirements in the Code had been met.
The Plaintiff objected to "adverse impacts" and "adverse visual effects" as a basis for denying the tower application because these provisions were part of the "Purpose” section of the zoning code and they do not override the specific factors established in the zoning code for review of an application. The Court held that while this may be generally true, the zoning code in question expressly provided that the purpose statements controlled in the event of ambiguities and conflicting provisions. Because the purpose section of the CUP section of the zoning code was operative, and the purpose of the code section covering communication towers "is to minimize the adverse visual effects of towers through careful design, siting and screening", the County Board acted within its discretion when it considered the aesthetic implications of the cell tower application on the site and surrounding properties.
In addition, the specific review process for the applied-for permit involved two public hearings, with notice to neighboring property owners and opportunity to be heard. The process expressly provided for the Planning and Zoning Commission and Board of Supervisor votes to be after public hearing and comment. The Court held that the only reasonable conclusion is that the CUP process requires the Board to take into consideration the concerns of neighboring property owners, including the aesthetics of a project.
In this case, the public comments focused specifically on the adverse visual impact at the particular location. As cited by the Court, the comments at the public hearings reflected concerns that the design was obviously metallic, it was markedly higher than the existing palm trees and did not blend with them; it did not fit in with the other natural desert trees in the surrounding area; the monopalm would have an adverse visual impact of the rolling hills and protected peaks and ridges in the area, including the Tucson Mountains; it would be a visual blight on the designated scenic route, and it would negatively change the view shed of the area. The community and the County Board questioned whether the applicant could use multiple shorter poles, with a design more conducive to the natural vegetation in the area. In addition, the the public and County Board had available to it for review and comment the photo-simulation of the monopalm, as it would look once installed.
Based on these facts and findings, the Court held that there was substantial evidence to support the County Board's denial of the application. Again, whether the denial of the application constituted an effective prohibition of services in violation of the TCA was not before the Court.
For a copy of this decision, contact Anthony Dorland at dorlanda@moss-barnet.com.