T-MOBILE SOUTH LLC v. THE CITY OF MARGATE, FLORIDA (United States District Court, Southern District of Florida, April 4, 2011).
In 2006, after conducting a formal search for a location for a wireless site, Plaintiff proposed a site in Centennial Park, a City-owned property in Margate, Florida. The City Commissioners rejected this site. Following the rejection, Plaintiff worked together with the City Planning Department and the City's independent consultant to research other potential locations that would meet Plaintiff's coverage objectives and the requirements of the City's Telecommunications Ordinance. As a result of this collaborative effort, Plaintiff proposed the Oriole Golf Course, which is also located in the City of Margate, and Plaintiff entered into a lease agreement with the owners of the property.
Because the proposed site was located on private property zoned "S-1 Recreation District", a conditional use permit was required. Plaintiff's application and supporting materials for the proposed 100-foot flagpole structure with hidden antennas satisfied all requirements necessary for obtaining conditional use approval. The City’s consultant and City staff recommended approval and the City Attorney testified that "we have no grounds to turn this down." Following the hearing, the City Commissioners voted unanimously to deny Plaintiff's application. The City formally notified Plaintiff of their collective decision by adopting Resolution No. 11-591, which stated, without further elaboration, that "the City Commission of the City of Margate, Florida, hereby denies a conditional use to develop a telecommunications site at Oriole Golf Course located at 8000 Margate Boulevard."
Plaintiff brought the lawsuit in federal court requesting declaratory relief that the City's denial of the application violated the Federal Telecommunications Act ("TCA"), 47 U.S.C. § 332. Plaintiff also sought an injunction compelling the City to approve the application and to issue all the necessary authorizations and permits required for Plaintiff to construct and maintain the proposed tower facility.
The parties agreed that the TCA provided the substantive law governing the dispute. The relevant provisions of that statute provide that a "State or local government or instrumentality thereof. . . shall not prohibit or have the effect of prohibiting the provision of personal wireless services" and that any State or local governmental decision "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).
A. Prohibiting The Provision Of Personal Wireless Services.
The Court stated there was no dispute regarding a significant gap in Plaintiff’s coverage in Margate, Florida but that the parties disagreed as to standard of Plaintiff’s proof in regard to the feasibility of other site locations, one in which the Eleventh Circuit has not yet taken a position. The City urged the Court to adopt the "only feasible plan" test followed by the First and Seventh Circuits and asserted that Plaintiff had the burden of proving that the Oriole Golf Course was the "only feasible plan" and that "no alternative sites" would solve the problem caused by its coverage gap. On the other hand, Plaintiff urged the Court to follow the "least intrusive means" test adopted by the Second, Third, and Ninth Circuits and asserted that it only had the burden to prove that its proposal would fill the coverage gap in the means that were "least intrusive" on the City. The Court stated that other courts that have adopted one of these tests over the other have recognized that the standards between the tests do not differ dramatically and neither party relied on the minority test articulated by the Fourth Circuit (a provider has burden of demonstrating that denial of its application for the one particular site is tantamount to a prohibition of service and that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.)
Although the Court stated that it appeared that the Eleventh Circuit would require a provider to demonstrate that it had no alternative locations for a service tower within reason or which could be considered reasonable alternatives, the Court held that the Eleventh Circuit's silence on specific standards under the TCA cases was immaterial to the outcome of the dispute because Plaintiff had met its burden even under the "only feasible plan" test put forth by the City. In particular, the record supported Plaintiff's argument that there were no alternative sites available to Plaintiff other than the Oriole Golf Course.
The City argued that Plaintiff failed the "only feasible plan" test because Centennial Park —the site of the previous proposal which the City already rejected — presented a "reasonable alternative" site and Plaintiff's failure to reapply for the Centennial Park site should preclude it from obtaining permission to place a tower at the new site. The Court stated that no jury was needed to resolve disputes concerning these facts and there was no case law to support the argument that a service provider should be required to reapply for permission to locate its tower on the very same plot of land that the very same decision making body previously rejected several years before. The Court found no reason to require Plaintiff to take such an illogical step and, moreover, adopting the City's argument would frustrate the foundational goals and purposes for which Congress enacted the TCA in the first place: to encourage the rapid deployment of new telecommunications technologies and reduce the impediments imposed by local governments upon the installation of facilities for wireless communications.
B. Substantial Evidence.
The District Court stated that "generalized objections with no articulated reasons" and "rationalizations constructed after the fact" do not constitute "sufficient evidence" under the TCA. The Court stated that a local government cannot deny a provider's application on the basis of health effects or a preference to place the relevant cell tower in a neighboring town. Construing the evidence in the light most favorable to the City, the Court concluded that there were no disputes of material fact that the City did not provide sufficient evidence for its denial of the application, and a reasonable mind could not accept the evidence in the record as adequate to support the City's denial.
C. Remedy.
In the Eleventh Circuit, a district court may enter an injunction and explicitly order the relevant State or local government to approve the application in question and issue all appropriate permits. Remanding a case would frustrate the TCA's guarantee of expedited relief. Because of this, the City was directed to grant the Conditional Use Permit and issue all necessary permits and authorizations to allow Plaintiff to construct and operate the proposed facility at the Oriole Golf Course and to construct the proposed facility in accordance with the plans already on file with the City. The City was required to comply with the order on an expedited basis as required by the TCA and file a short submission with the Court on or before Friday, April 15, 2011, confirming that it had complied with the Order or providing an explanation as to why it had not yet complied.
Anthony Dorland
(612) 877-5258
Dorlanda@moss-barnett.com