T-MOBILE CENTRAL LLC v. THE CHARTER TOWNSHIP OF WEST BLOOMFIELD, MICHIGAN (United States District Court, Eastern District of Michigan, March 31, 2011).
Plaintiff filed an application for special land use and site approval for a 90-foot cellular tower and related equipment to be located in residentially-zoned property owned by Detroit Edison. The facility would replace an existing tower owned by the utility company. Plaintiff submitted evidence to the Township suggesting a need for the facility to address a significant coverage gap in its network, as well as demonstrating compliance with the Township's Zoning Ordinance. Defendant stated that many residents opposed the request and that the existing land uses in the area were residential subdivisions to the north, east, and west, and a day care center to the south of the site. After the denial of the request for approval, Plaintiff brought suit seeking injunctive relief, claiming that the Board's denial violated the Federal Telecommunications Act of 1996 (the "Act" or "TCA") because the denial was not based on substantial evidence, and the denial has the effect of prohibiting the provision of personal wireless services in a portion of the Township.
The Federal District Court stated that through the Telecommunications Act, Congress has placed limits on the authority of state and local governments to deny the construction of telecommunications towers and has placed regulations on how such decisions are to be made. Because the method by which siting decisions are made is subject to judicial oversight, denials subject to the TCA are reviewed by the court more closely than are other types of zoning decisions to which federal courts generally afford great deference. Plaintiff argued that summary judgment was appropriate on either of the grounds found in 47 U.S.C. § 332(c)(7)(B). First, "[a]ny decision by a State or local government or instrumentality thereof 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). Second, "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the provision of personal wireless service."
A. Substantial Evidence.
Citing the Sixth Circuit, the Court stated that substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. The Court reviews the entire record, including evidence opposed to the result of the decision. The Court looks to whether the agency explained any credibility judgments it made and whether it gave reasons for crediting one piece of evidence over another. The Court must examine the evidence as a whole, taking into account whatever in the record fairly detracts from its weight. Once an agency has identified grounds for denial of a request, the plaintiff bears the burden of establishing that none of these grounds are supported by substantial evidence in the record compiled in the proceedings.
In the case, the Township Board proffered the following five reasons for denying the Plaintiff's request:
1. That the aesthetics of the surrounding neighborhood would be affected adversely;
2. That the Plaintiff has not accomplished an aesthetically pleasing structure;
3. That a 70 foot cellular tower could be erected in the location rather than a 90 foot cellular tower;
4. That the Zoning Ordinance specifies that the Township Board found that the presence of numerous towers and pole structures, particularly if located within residential areas, would decrease the attractiveness and destroy the character and integrity of the community; and
5. That Plaintiff has not presented a sufficient need to build the tower.
After reviewing the administrative record, the Court found that the Township's grounds for denial were not supported by substantial evidence. In regard to the aesthetic concerns, the Court noted that only two letters of objection were received, only five residents voiced opposition and the comments made were either of a general nature or were conclusory in nature. The Court recognized that citizens' concerns regarding aesthetics may rise to the level of "substantial evidence" in some cases, but the Court found that the facts of the case more closely resembled the facts of the cases where the concerns were not found to constitute substantial evidence.
The Township Board's third stated ground for denial argued that a 70-foot tower could be constructed instead of the 90-foot tower. The Plaintiff submitted evidence that a 90 foot tower was necessary to accommodate possible collocators, which the zoning ordinance preferred. If collocation was not required, then Plaintiff was willing to construct a shorter tower. As collocation was clearly preferred by the Zoning Ordinance, the Court found that there was nothing supporting the contention that collocation should be disfavored and a 70 foot tower should be constructed. As to the fourth basis for denial, citing to the Township Board's finding that numerous facilities would decrease the attractiveness of the community and destroy the integrity and character of the community, the Court found that there was no evidence in the record that Plaintiff's facility would have this effect. Finally, Defendant argued that Plaintiff had not demonstrated a sufficient need to build the tower. The Court reviewed the record and found that Plaintiff produced substantial evidence of a sufficient need to build the tower.
B. Prohibiting Plaintiff's Provision of Personal Wireless Services.
The Court stated that to have the effect of prohibiting the provision of personal wireless services in violation of the Telecommunications Act, Plaintiff must establish (1) that the Defendant's zoning decisions and ordinances prevent the closing of significant gaps in the availability of wireless services, and (2) that further reasonable efforts are so likely to be fruitless that it is a waste of time to even try based the zoning language or circumstances. The Court found that a gap in coverage indeed existed, and the Court stated that the Plaintiff investigated several sites for the towers and could not find an alternate site that would meet Plaintiff's coverage requirements. The Court stated that the burden shifted to the locality to show that there were some potentially available and technologically feasible alternatives, but in this case, there was no evidence that Defendant ever proposed an alternative site. Because of this, Plaintiff was entitled to judgment, as a matter of law, that Defendant effectively prohibited the provision of personal wireless services.
For the reasons stated above, the Court ordered that Plaintiff correct the technical deficiencies in its application and that, within thirty days of receiving those corrections, Defendant issue all necessary permits and approvals for the construction of Plaintiff's proposed wireless communications facility.
Anthony Dorland
DorlandA@moss-barnett.com
(612) 877-5258