T-MOBILE NORTHEAST LLC v. THE CITY OF NEWPORT NEWS, VIRGINIA (U.S. District Court, Eastern District Of Virginia, March 23, 2011).
The Court found that there was no merit in the City's contention that the denial of the Conditional Use Permit was supported by substantial evidence. The City argued that the concerns expressed by residents about the appearance of the tower, the possible decrease of property values in the area, and the location of the tower all formed the basis of substantial evidence supporting the City Council's zoning decision to deny.
However, the Court found only one statement in one email by a citizen which could have reasonably been relied upon by the City Council: a statement that the tower would be an "eyesore." Otherwise, the Court found that each of the three individuals who opposed the tower at the hearing spoke only of their fears of radiation and unsupported statements about their belief that the tower would cause their home values to decrease.
Citing 47 U.S.C. § 332(c) (7) (B) (iv), the Court held that federal law preempts local zoning decisions based on concerns about radiation. Additionally, the Court stated unsupported statements about fears of some possible reduction in home value without further evidence cannot form the basis of substantial evidence. Accordingly, the Court held that the record failed to demonstrate substantial evidence for the denial of plaintiff's Conditional Use Permit. The plaintiff’s request for injunctive relief was granted; the City must approve plaintiff’s Conditional Use Permit no later than twenty (20) days from the date of the Court’s order.
In a footnote, the Court noted that the total opposition to the tower was comprised of two emails to the City Council and three citizens speaking at the public hearing. By contrast, six people, though admittedly five were employees of applicant, spoke in support of the tower and responded to the concerns expressed by those in opposition. In addition, one of the applicant’s employees who spoke submitted a petition in support of the tower signed by fifty-one (51) customers of applicant who sought improved coverage in the area with the tower in place.
Anthony Dorland
(612) 877-5258
DorlandA@moss-barnett.com