United States District Court, W.D. Tennessee, Western Division
CELLULAR SOUTH REAL ESTATE, INC. d/b/a CELLULAR SOUTH Plaintiff,
CITY OF GERMANTOWN, Defendant.
MEMORANDUM OPINION AND ORDER
JON P. McCALLA, District Judge.
Plaintiff Cellular South Real Estate, Inc. ("Plaintiff" or "Cellular South") brings this suit under the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(i)(II) and (iii) ("TCA") alleging that Defendant City of Germantown ("Defendant" or "City") wrongfully denied permission to build personal wireless services facilities ("WSF"). The parties have decided to have this issued determined purely on the trial briefs.
For the reasons set forth in this opinion, this Court holds that Plaintiff was wrongfully denied approval of building WSF on under 47 U.S.C. § 332(c)(7)(B)(i)(II) and (iii). Accordingly, the decision of the City Board of Zoning Appeals' denial of Cellular South's application is REVERSED, and the case is REMANDED to the City Board of Zoning Appeals for further action in conformity with this opinion.
I. PROCEDURAL HISTORY
On October 10, 2012, Plaintiff filed an action against the City of Germantown, Tennessee. (Compl., ECF No. 1.) Count I of the Complaint alleges that the City's denial of Cellular South's Application was not supported by substantial evidence as required by 47 U.S.C. § 332(c)(7)(B)(iii). (See id. ¶¶ 20-34.) Count II of the Complaint alleges that the City's denial effectively prohibited the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II). (See id. ¶¶ 35-42.) Count III alleges that the City's denial violated 47 U.S.C. § 332(c)(7)(B)(iv) on the grounds that the City unlawfully based its denial on alleged negative effects of radio frequency emissions. (See id. ¶¶ 43-55.)
On March 11, 2013, the parties filed their Rule 26(f) Report, where the parties agreed that "[t]he issues in this action are purely legal." (ECF No. 13 at 1.) Accordingly, "[t]he parties agree that this Court's review is in an appellate-type capacity and should be limited to the legal issues stated above and as outlined in Cellular South's Complaint." (Id. at 2.) On March 12, 2013, the City filed its Answer. (ECF No. 14.) On March 18, 2013, the Magistrate Judge entered the Scheduling Order. (ECF No. 15.)
On May 3, 2013, the City filed the Administrative Record on Appeal in this case, "containing all of proof submitted before the [City of Germantown] Board of Zoning Appeals." (ECF No. 17.) On May 17, 2013, Cellular South filed a Stipulated Supplementation of Record. (ECF No. 18.) Collectively, these submissions constitute the Record on Appeal ("R.").
On June 10, 2013, Cellular South filed its Initial Trial Brief. (ECF No. 19.) On July 19, 2013, the City filed its Response Brief. (ECF No. 20.) On July 31, 2013, Cellular South filed its Reply Brief. (ECF No. 21.)
II. FINDINGS OF FACTS
Cellular South Real Estate, Inc., doing business as Cellular South, is a Mississippi corporation with its principal place of business in Ridgeland, Mississippi. (R. 110-11, ECF No. 17-6 at PageID 225-26.) Cellular South is authorized to do business in Tennessee. (R. 108-09, ECF No. 17-6 at PageID 223-24.) Defendant City of Germantown is a municipality located in Shelby County, Tennessee. (Compl. ¶ 2, ECF No. 1; Answer ¶ 2, ECF No. 15.)
On or about July 13, 2012, Cellular South submitted to the City its Application for Use on Appeal to construct a WSF. (R. 142-77, ECF Nos. 18-2, 18-3.) Cellular South's proposed site for the WSF is "on property owned [by] Faith Presbyterian Church of Germantown, " located at 8834 Poplar Place. (R. 142, ECF No. 18-2 at PageID 259.) The proposed WSF tower is designed as a concealed belfry tower and "is to be 100 feet in height... [with a] 40 ft. by 40 ft. lease[d] area around the tower [that] will contain the equipment for the C-Spire antennas and future antennas." (R. 132, ECF No. 18-1 at PageID 249; see also R. 160-77, ECF Nos. 18-2, 18-3 at PageID 277-94, (Neel-Schaffer designs for communication tower).) Further, the proposed tower is "be designed to withstand winds of 70 miles per hour and 1/2 inch radial ice in accordance with the ANST/TIA/EIA-222-F-1996 Standard." (R. 151, ECF No. 18-2 at PageID 268 (Aug. 21, 2012, letter from Neel-Schaffer engineer).) Moreover, "[t]he proposed antennas will not interfere with established public safety telecommunication structures" by using only frequency bands licensed to Cellular South by the Federal Communications Commission (FCC), which avoids "any possibility of interference with television, radio, or emergency systems." (R. 152, ECF No. 18-2 at PageID 269 (Aug. 28, 2012, letter from Neel-Schaffer engineer).)
The City's Ordinances allow wireless transmissions facilities in residential zoning districts, if they meet certain specific requirements. (R. 132, ECF No. 18-1 (quoting Section 23-86 of zoning ordinance).)
On September 11, 2012, the Application was presented to the Board of Zoning Appeals ("Board"), and the City - acting through the Board - denied Cellular South's application to construct a WSF on the property owned by Faith Presbyterian Church located at 8834 Poplar Pike, Germantown, Tennessee 38138. (R. 131-35, ECF No. 18-1 at PageID 248-52 (Board meeting mins. for Sept. 11, 2012).) Four Board members were present: Ms. Elizabeth Boyd ("Boyd"), Mr. David Klevan ("Klevan"), Mr. Tony Salvaggio ("Salvaggio"), and Ms. Patricia Sherman ("Sherman"). (R. 131, ECF No. 18-1 at PageID 248.)
The meeting minutes indicate the finding that "[t]he proposed wireless transmission facility meets the location criteria for a use on appeal and the site area, setback, tower height requirements, buffer zone and ANSI standards for a [wireless transmission facility]." (R. 133, ECF No. 18-1 at PageID 250.)
At the meeting on September 11, 2012, however, there was a large, negative, public response by the residents of the City. Their concerns are as listed: adverse effects on property values (ECF No. 19-1 at PageID 313), blocking the sunset (id.), whether cell towers are located in residential areas (id.), the adverse effects of microwave emissions (id. at PageID 314), and simply not wanting to live next door to a cell tower (id. at PageID 317).
All four Board members denied Cellular South's application on the grounds that Germantown, TN, Ordinance 23-49(b) allows the board to consider the "public health, safety, comfort or welfare of the inhabitants of the city" when deliberating whether to grant application for building a structure within the city limits. Board member Klevan voted no because he felt "there is a safety issue and that there is a lack of substantial impact in the area: he does not see a significant coverage increase that will benefit the community." (Sept. 11, 2011, Board Minutes, R. 135, ECF No. 18-1 at PageID 252; see also Tr., R. 19, ECF No. 17-2 at PageID 134.) Board member Salvaggio voted no because there are other alternative locations and the presence of the cell tower would compromise the welfare of the citizens and compromise the property values. (R. 19, 135.) Board member Sherman voted no because the tower was located in a zone marked residential and because of the uncertain impact it would have upon the neighborhood. (R. 135.) Finally, Board member Boyd voted no because she was "opposed to the tower being in a residential area and possibly having a negative effect on the surrounding neighbors." (R. 19, 135.) Because the board members relied on the justifications provided by the City's residents, the board members did not provide additional justification.
At the meeting on September 11, 2012, representatives for Cellular South made two assertions. First, Cellular South maintained that there was a gap in wireless communication coverage and that the presence of a cell tower on the property of Faith Presbyterian Church would close that gap. (R. at 133-34, ECF No. 18-1 at PageID 250-51 (responses by Cellular South Representatives Robert Pierce and Melinda Bodie).) The map provided at the meeting illustrated this point, and this assertion went undisputed. (ECF No. 20-1 at PageID 398-99 (coverage maps).) Second, Cellular South considered other alternative locations and such locations were not feasible. (R. at 133-34, ECF No. 18-1 at PageID 250-51.) Taking into account that the area was a residential zone, Cellular South proposed that the tower be disguised as a free-standing bell tower. (ECF No. 20-1 at 400-02.)
III. CONCLUSIONS OF LAW
Cellular South argues that it is entitled to judgment as a matter of law on Counts 1 and 2 of its Complaint. (ECF No. 19 at 1.) Accordingly, the issues before the Court are as follows: (a) whether the decision to deny Cellular South's Application was not supported by "substantial evidence contained in a written record, " in accordance with 47 U.S.C. § 332(c)(7)(B)(iii), and (b) whether the Board's denial of Cellular South's application effectively prohibited the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).
A. Substantial Evidence
The TCA provides, in part: "Any 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). When determining whether evidence is considered substantial, the United States Court of Appeals for the Sixth Circuit applies the substantial-evidence standard defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." T-Mobile Cent., LLC v. Charter Twp. of West Bloomfield, 691 F.3d 794, 799 (6th Cir. 2012) (citing Universal Camera v. Nat'l Labor Relations Bd, 340 U.S. 474, 477 (1951)). "Substantial evidence should be substantiated." Id. at 800 (citing Telespectrum, Inc. v. Public Services Com'n of Ky., 227 F.3d 414, 424 (6th Cir. 2000) (holding that "unsupported opinion" does not constitute substantial evidence)). Mere allegations will not suffice. Id . "General concerns from a few residents that the tower would be ugly or that a resident would not want it in his backyard are not sufficient." Id . (citing New Par v. City of Saginaw, 301 F.3d 390, 399 n.4 (6th Cir. 2002)).
The Sixth Circuit reasoned that the purpose of requiring substantial evidence is:
If § 332 were read as broadly as the Township suggests and these generalized objections sufficed, any wireless facility could be rejected. Anyone who opposed a cell tower in their backyard could offer an excuse that it would be bad for the community, would not be aesthetically pleasing, or would be otherwise objectionable. But that by itself is not enough. There must be evidence. And not just any evidence - evidence that is substantial. And substantial evidence must be substantiated by something. "Substantial evidence, in the usual context, has been construed to mean less than a preponderance, but more than a scintilla of evidence."
West Bloomfield, 691 F.3d at 801 (quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999).
Plaintiff argues that the Board's erroneous decision to deny its Application was based on five reasons: "(1) health concerns, (2) safety concerns, (3) preservation of property values, (4) aesthetics, and (5) lack of evidence of an ...