TIMOTHY J. CORRIGAN, District Judge.
Plaintiff PI Telecom Infrastructure, LLC challenges Defendant City of Jacksonville, Florida's denial of its application to construct a wireless communications facility (more commonly known as a cell tower) as violative of the Federal Telecommunications Act of 1996 (the "Act"), 47 U.S.C. § 151 et seq. The record here is fixed, and the facts are not substantially in dispute. The parties have fully briefed cross-motions for summary judgment. The Court heard oral argument on April
PI Telecom sites, constructs, and operates cell towers for telecommunications carriers in Florida. (Compl. ¶ 1, Doc. 1.) PI Telecom has proposed constructing a 150-foot camouflaged unipole
(PC REC_0075.) The proposed site is zoned Industrial Light, with a Light Industrial land use category. (PC REC_0004.) A Jacksonville Electric Authority facility is immediately east of the proposed site. (PC REC_0006.) Immediately north of that, and north-northeast of the proposed site, is Jackson Square, a
On April 1, 2014, PI Telecom submitted its application to build the tower with the Jacksonville Planning and Development Department ("Department"). (PC REC_0067.) Sections 656.1501-.1517 of the Jacksonville Ordinance Code (the "Tower Ordinance") set out the applicable regulations for the location, design, and operation of cell towers within the City. The stated goals of the regulations include "[p]rotecting the natural features and aesthetic character of the City ... with special attention to residential neighborhoods, public parks, transportation view corridors, historic districts, historic landmarks, and environmentally sensitive lands" and "[m]inimizing the adverse visual and aesthetic impact" of cell towers while "accommodating the growing demand for wireless communication services...." Jacksonville Ordinance Code ("JOC") § 656.1501(b)-(c). To ensure that these purposes are not frustrated, the City employs a three-part application review process.
Any telecommunications company wishing to construct a new cell tower must submit an application to the City. JOC § 656.1504. Initially, a Planning Coordinator reviews the application for completeness. Id. If complete, the application is forwarded to the Department, which prepares a staff report recommending denial, approval, or approval with conditions. In the case of "Track II Towers" such as the one proposed by PI Telecom,
Section 656.1506 on Track II Towers reads in pertinent part:
JOC § 656.1506(a)-(b).
Thus, pursuant to section 656.1506, a successful Track II application requires the satisfaction of two criteria, one objective (compliance with siting, design and performance standards) and one subjective (compatibility with existing contiguous uses and zoning and with the general character and aesthetics of the surrounding neighborhood or area). JOC § 656.1506(a). In making its subjective
Among other things, PI Telecom's application packet included statements describing the proposed site and the need of carrier AT & T Mobility, Inc. for a tower at that location, coverage maps for before and after installation of the proposed tower, maps of the "search ring," the satellite map reproduced above, and a series of photo simulations of the proposed tower from the selected locations near the proposed site marked on the above satellite map. (PC REC_0071-72, 75-89.)
The letter of need from AT & T explains that it requested PI Telecom build a tower at the proposed site to remedy the area of in-building coverage weakness depicted as the largest area in yellow in the coverage map below:
(PC REC_0085; see PC REC_0072, PC REC_0017 at 114.) AT & T's radio frequency ("RF") system design engineer identified this area after reviewing coverage in Jacksonville, analyzing existing antenna sites, conducting site visits, and performing computer modeling of coverage. (PC REC_0072.) Based on this analysis, AT & T concluded that "the existing coverage levels do not adequately support the usage demands of AT & T customers in this area, in terms of placing calls and using advanced data devices such as smartphones, tablets[,] etc." (Id.)
PI Telecom's consultant also prepared for the application photo simulations of what the proposed tower might look like from the various positions all around the proposed site marked on the satellite map reproduced earlier. (PC REC_0075-89.) To do so, a surveyor performed a test positioning a weather balloon at the approximate height and position of the proposed tower. (PC REC_0084.) Photographs were taken at each location where the balloon could be seen.
The Department reviewed PI Telecom's application and first issued a staff report on it on May 8, 2014, recommending the application be approved. (PC REC_0103-09.) The staff determined that the application
The Department reports classify the proposed tower as a Track II tower "utilizing a camouflaged design." (PC REC_0004-5.) As such, the Department evaluated the application based on the two objective and subjective criteria set forth in section 656.1506(a). The Department determined that the proposed tower complies with the objective siting and design requirements by exceeding the minimum distance from wetlands, environmentally sensitive lands, parks, and public right-of-ways, and by "meet[ing] the required setback from residentially zoned land and the required landscaping." (PC REC_0005.) The Department also concluded that the design for the proposed tower meets the section 656.1506(b)(3) performance standard that camouflaged Track II towers accommodate antennas for at least two carriers by allowing for a total of five carriers. (Id.)
As for the subjective criteria, the Department believed that the proposed tower would be "compatible with the existing contiguous uses or zoning and compatible with the general character and aesthetics of the surrounding neighborhood or areas" after considering its design, height, and potential adverse impact on "environmentally sensitive lands, historic districts or historic landmarks, public parks or transportation view corridors." (PC REC_0005-6.) Specifically, the staff felt the camouflaged unipole design was the most compatible design for the area, noting that the photo simulations showed "no direct views of the tower" from the residential areas to the west of the proposed site and that the tower blended in with utility and light poles when viewed from the east along Philips Highway. (PC REC_0005.) As for Alexandria Oaks Park, the staff noted that "[t]here is a row of mature existing trees along the property line which prevent direct views of the tower [from] the park trail." (PC REC_0005-6.) The Department therefore concluded that "[t]he camouflaged unipole tower design will be consistent and compatible with the area" and recommended that the application be approved. (PC REC_0006.)
PI Telecom's application went before the Commission for public hearing on June 19, 2014. (PC REC_0013 at 1.) Chairman Robbins began by disclosing letters objecting to the proposal that he had received from a resident of the San Marco neighborhood and from the San Marco Preservation Society, as well as correspondence Steve Cissel, the developer of the Jackson Square PUD, had sent to Department staff. (PC REC_0015 at 105.) Commissioners Day, King, and Hagan each disclosed that Cissel had spoken with them regarding his objections to the proposal and his view of its impact on his development. (Id. at 105-107.) Commissioner Diettrich disclosed she had communications with Wyman Duggan, a representative of the Jackson Square PUD. (Id. at 107.)
Gerald Muldowney, PI Telecom's consultant on the application, was next sworn in and presented the bulk of the case in favor of the application. (Id. at 111-12.) Muldowney represented that he is a licensed engineer and surveyor with forty-one years of survey and engineer experience, twenty-one of which have been in the telecommunications industry. (Id. at 112.) After presenting his credentials, Muldowney discussed the purposes of the Tower Ordinance and the Act and explained that "one of the primary objectives" of the proposed tower "is to try to get in-building service" to the area to the west of the proposed site (the area depicted in yellow in the coverage map reproduced earlier). (PC REC_0017 at 113-14.) He reiterated the Department's finding that the proposal meets the objective siting and performance standards, but recognized that compatibility would be the sticking point. (Id. at 115-16.) Muldowney opined that the proposed site "represents the ideal situation for providing coverage" into a residential area since the site is zoned industrial and reaches into the residential area from the fringe, rather than from the middle. (PC REC_0017 at 116; PC REC_0018 at 117.) He represented that the proposed design of the tower is one preferred by the Department and represents "the latest in camouflage technology" that conceals the antennas and cables in an effort to lessen the tower's visual impact in areas of particular aesthetic concern or sensitivity. (PC REC_0018 at 117.) Muldowney expressed an openness to using a camouflaged pine tree design, but suggested such a design would have a greater visual impact than the proposed unipole. (Id. at 118.)
Muldowney then discussed the balloon test and photo simulations created by his company to depict the visual impact of the tower. Recognizing that the tower would be visible from Alexandria Oaks Park, he opined that its resemblance to a power pole, though much taller than one, makes it "as slight and benign in nature visually as it possibly can be." (Id. at 119.) As for the Jackson Square PUD, Muldowney suggested the development would be well-served by the tower's cell coverage while an estimate of only 0.5% of its dwelling units would have a direct view of the tower and any view of the tower from elsewhere would be broken up by the four-story development itself. (Id. at 119-20.) He also noted that the railroad is an active freight line, so a cell tower in the adjacent right-of-way would present a much less intensive use. (Id.) Muldowney closed his initial presentation by reiterating his belief that the proposal is the most compatible proposal possible within the search ring and by opining that denial would be akin to simply banning wireless service from single-family residential areas. (PC REC_0019 at 121.)
After Muldowney's initial presentation, the Chairman opened the meeting to the public. Catherine Williams, a resident of the residential area a few blocks west of the proposed site, was sworn in and spoke in opposition to the proposal, suggesting an alternative location roughly a half a mile south along the right-of-way, near St. Augustine Road. (Id. at 123-24.) She described the St. Augustine location as having
Next to speak, unsworn, was Wyman Duggan on behalf of the Jackson Square PUD. He argued that the proposed tower is not a camouflaged tower under the Tower Ordinance, but a low impact/stealth tower and would not comply with the different setback and height restrictions. (PC REC_0020 at 125-27.) He contended that, even classified as a camouflaged tower, the proposed tower must be setback from the nearest residential use by a distance equal to 100% of its height, or 150 feet, and Jackson Square is only 100 feet from the proposed site. (Id. at 126-28.) Duggan also opined that the proposal would be incompatible with the City's long-range plan for a future commuter rail station for Jackson Square. (PC REC_0021 at 129.) He submitted his own photo simulations of the proposed tower from the view of Jackson Square and of Alexandria Oaks Park. (Id. at 130.) Duggan concluded his remarks by proposing an alternate site on an unopened city road called Garland Street to the south of the proposed site that would still be within the search ring and, in his view, would not as severely impact the park and Jackson Square. (Id. at 130-31.)
City Councilmember Lori Boyer spoke next, also unsworn. The proposed site falls partially in her district and partially in the district of Councilmember Warren Jones, who had submitted a letter in opposition. (PC REC_0063.) Councilmember Boyer provided some history of Alexandria Oaks Park and urged the Commission to focus on the proposed tower's impact on the park and on historic districts and landmarks. (Id. at 131-32.) She represented that, while the park and the homes around it have not been designated historic sites, they are eligible for such a designation. (PC REC_0022 at 133.) Councilmember Boyer noted the particular visual impact of the tower on the homes surrounding the park that back directly onto the park and use the park as their backyard vistas. (Id.). She supported consideration of an alternative site to the south due to the potentially lower impact. (Id. at 134.)
The Commission then gave Hunter and Muldowney the chance to respond to the public comments made earlier. Hunter responded first. He took issue with Duggan's photo simulations, suggesting there was no foundation as to how they were prepared. (PC REC_0022 at 135.) He also repeated that the proposed tower does qualify as a camouflaged pole under the Tower Ordinance and had been treated as such by the Department staff. (Id. at 135-36.) He rebutted the contentions that the proposed site was within the PUD zone of Jackson Square and did not meet setback requirements, since the 100% of tower height setback requirement for camouflaged towers is measured to the nearest lot line for single-family residential property, which Jackson Square is not. (Id. at 136; PC REC_0023 at 137.) Hunter downplayed Councilmember Boyer's comments about historic designations since neither the park nor the area around it have been designated historic. (PC REC_0023 at 137.) He urged the Commission to defer to the professional opinion of the Department staff and not to succumb to a general dislike for cell towers since PI Telecom had done everything possible to minimize the impact of the tower. (Id. at 138-39.)
Muldowney began his response to the public comments by noting technical flaws in Duggan's photo simulations that Muldowney felt made them inaccurate representations of the tower. (Id. at 140.) He
With no further public comments, Chairman Robbins closed the public portion of the meeting, and Commissioner Hagan made a motion for denial of the application, seconded by Commissioner King. (PC REC_0025 at 145.) The Commission then proceeded to its own discussion of the application, with questions for the city attorney, Folks Huxford of the Department staff, Muldowney, and Duggan. The discussion began with an extended dialogue between the commissioners, the city attorney, and Huxford as to whether the proposed tower was a camouflaged or low impact/stealth tower, the different setback requirements, and the site's zoning. (Id. at 145-48; PC REC_0026 at 149-52; PC REC_0027 at 153-54.)
After this dialogue, Commissioner King registered her comments on the application. She disagreed with the staff's classification of the proposed tower as a camouflaged tower. (Id. at 155.) She also expressed "significant concerns about its impact on a section of the city that has been surveyed and deemed eligible as a historic district and a park that has been deemed eligible to be a historic landmark," indicating that the fact that they had not been designated historic does not eliminate that factor from her consideration. (Id. at 155-56.) She indicated she was "strongly opposed to this application" due to the impact on "viewsheds from historic properties." (Id. at 156.) Commissioner King worried about "working at cross purposes" with the City's plan for a future commuter rail station, even if no agreements were yet in place. (Id.)
Commissioner Diettrich then inquired of Muldowney as to locating on the existing cell tower to the south of the proposed site or considering an alternative site to the south. (PC REC_0028 at 157.) Muldowney responded that the existing tower would not work and had already been ruled out by AT & T's RF engineer because it is outside of the search ring, already at carrier capacity, and too low to meet AT & T's coverage objectives for the area. (Id. at 157-60; PC REC_0029 at 161.)
As for the Garland Street location to the south, Muldowney acknowledged that PI Telecom had not been aware of it until it was raised earlier in the meeting, but he was concerned whether the City would be able to lease property in a public right-of-way. (PC REC_0029 at 161-62.) He also initially thought Garland Street was out-side the search ring, but might still meet AT & T's coverage objective. (Id. at 162.) After the city attorney confirmed that the City regularly does lease its rights-of-way for private utilities, Muldowney expressed some concern that a tower might not physically fit at that location. (Id. at 162-63.) On a related follow-up question from Commissioner Diettrich, Duggan noted that the Garland Street location is within the 0.252-mile search ring and offered his view that Garland Street was unlikely to ever be developed as a public street. (Id. at 164.)
Muldowney then responded to a question from Commissioner Hagan as to how the search ring had been developed in this
Commissioner Hagan closed with comments disagreeing with the classification of the tower as camouflaged and taking issue with both its setback from Jackson Square and general compatibility with the area. (Id. at 169-70.) Commissioner Hagan supported an application to build the tower at the Garland Street location. (Id. at 170.)
In his brief comments, Commissioner Hill stated, "my opinion is that it just has a negative environmental impact on this particular neighborhood. And I am familiar with the neighborhood, and I just feel that it's just not compatible, and I think they could look at a different location that would be more compatible." (Id.)
Commissioner Day had additional questions for Huxford and the city attorney about the proposed site's zoning and the applicable setback requirements for camouflaged towers and low impact/stealth towers. (Id. at 172; PC REC_0032 at 173-76; PC REC_0033 at 177-78; PC REC_0034 at 181-83.) Commissioner Day stated that his main concern was the proposed tower's compatibility with the surrounding area and the public park, noting that PI Telecom's photo simulation View I from outside Alexandria Oaks Park showed the tower visible, which he viewed as suggesting the impact of the tower from the park itself would be "more substantial." (PC REC_0033 at 179-80.) Commissioner Day stated that, setting aside the tower's classification and zoning, "I still don't think it fits in the general character or aesthetics of that public park. Not the design standards, but just the compatibility (inaudible) of that park. So that's where I sort of keep coming down on." (Id. at 180.)
Chairman Robbins spoke last on the substance of the application. He expressed appreciation for Muldowney's efforts on the landscaping issue and his frankness in acknowledging that the Garland Street location falls within the search ring. (PC REC_0034 at 183.) But the Chairman identified his main focus as "the general character and aesthetics of the surrounding area," noting that "there are significant landmark properties" in the area, even if the San Marco neighborhood itself had not been designated a historic district. (Id.) He indicated concern about the tower's impact on the Jackson Square PUD and the area around it, which are "the next hot spot" and "clearly on the move." (Id. at 184.) The Chairman suggested that, regardless of whether the tower were classified as camouflaged or low impact/stealth, it would still be "a big stick in the air." (Id.) In his view, the tower would have an impact on areas of Alexandria Oaks Park, a "landmark park" he described as "an active location" with a
(PC REC_0035 at 185.)
After some brief comments about the letter from City Councilmember Jones, the Chairman brought the motion to deny the application to a vote. (Id. at 185-86.) The motion passed unanimously, six to zero, and the application was denied. (Id.)
The same day, June 19, 2014, the Commission issued a written order denying the application.
(Id.) A transcript of the Commission meeting was completed six days later, on June 25, 2014. (PC REC_0036 at 193.)
On July 21, 2014, PI Telecom filed suit under the Act, alleging that substantial evidence shows that the Commission's decision has the effect of "prohibiting the provision of personal wireless services" in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II), that the Tower Ordinance itself has the same prohibitive effect, and that the Commission's decision was not supported by substantial evidence contained in a written record as required by 47 U.S.C. § 332(c)(7)(B)(iii). (Doc. 1, ¶¶ 44-60.) PI Telecom seeks both a declaratory judgment and a permanent mandatory injunction requiring the City to grant its application and any other required permits. (Id. at 20-21.) The City denies the operative allegations in the complaint. (Answer, Doc. 6.) As the record before this Court is fixed and the facts are not in significant dispute, the parties have agreed that this case is appropriate for adjudication on cross-motions for summary judgment. (Joint Planning Meeting Report ¶ 3, Doc. 8.)
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "In determining whether to grant summary judgment, the Court must view the evidence and inferences drawn from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor." T-Mobile S. LLC v. City of Jacksonville, Fla., 564 F.Supp.2d 1337, 1340 (M.D.Fla.2008) (citing Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988); WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988)). "The principles governing summary judgment do not change when the parties file cross-motions for summary judgment. When faced with cross-motions, the Court must determine whether either of the parties deserves judgment as a matter of law on the undisputed facts." Id.
Congress enacted the Act to "promote competition and higher quality in American telecommunications services and `to encourage the rapid deployment of new telecommunications technologies.'" Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 761 (11th Cir.2005) (quoting City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005)). "With respect to the construction of telecommunications facilities, Congress recognized zoning decisions by state and local governments had created an inconsistent array of requirements, which inhibited both the deployment of personal communications services and the rebuilding of a digital technology-based cellular telecommunications network." Preferred Sites, 296 F.3d at 1214. Even so, "Congress also acknowledged `there are legitimate State and local concerns involved in regulating the siting of such facilities,'" id. (quoting H.R.Rep. No. 104-204, at 94-95 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61), and drafted the Act so as to "`preserve[] the authority of State and local governments over zoning and land use matters except in ... limited circumstances,'" id. (quoting H.R.Rep. No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222).
The Act was therefore designed to "strike a balance between `two competing aims — to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.'" Omnipoint Commc'ns, Inc. v. City of White Plains, 430 F.3d 529, 531 (2d Cir.2005) (quoting Town of Amherst, N.H. v. Omnipoint Commc'ns Enters., Inc., 173 F.3d 9, 13 (1st Cir.1999)). Thus, while local authorities retain the authority to regulate the placement and construction of towers, "[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) (emphasis added). The Act also provides that local cell tower regulation "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Though the Eleventh Circuit has not yet addressed the issue, other circuits have held that "a locality can run afoul of the [Act]'s `effective prohibition' clause if it prevents a wireless provider from closing a `significant gap' in service coverage." Sprint PCS Assets, LLC v. City of Palos Verdes
PI Telecom's motion contends that the City's short June 19, 2014 order denying the application does not satisfy the Act's requirement that any denial be "in writing" and "supported by substantial evidence contained in a written record." (Doc. 14 at 21-24.) Using a test for the "in writing" requirement that at least one court in the District had employed before, PI Telecom argues that that the City's order does not sufficiently explain what siting, design, or performance standards the proposed tower fails to meet or its conclusion that the proposed tower is not compatible with the general character and aesthetics of the surrounding area. (Id. at 23); see T-Mobile S. LLC, 564 F.Supp.2d at 1344-45.
In its motion, the City contends that its order contains the same level of specificity that Judge Moore found sufficient in T-Mobile South. (Doc. 15 at 25-26.) The reasons for the conclusions in the order are then adequately stated and supported in the record. (Id. at 26.)
In its reply, PI Telecom notes that the City's denial order in T-Mobile South referenced a written Department staff report and recommendations that lined up with the Commission's decision, whereas the staff report here recommended approval, but the Commission denied the application. (Doc. 16 at 7.) PI Telecom also finds the reasons for denial expressed by the commissioners during the meeting to be jumbled, diverse, and without objective factual support, all of which PI Telecom believes further support the need for a more detailed written decision. (Id. at 8.)
On January 14, 2015, after initial briefing on the cross-motions for summary judgment was complete, the U.S. Supreme Court issued an opinion in T-Mobile South, LLC v. City of Roswell, Georgia (Roswell III), ___ U.S. ___, 135 S.Ct. 808, 190 L.Ed.2d 679 (2015) elaborating on the "in writing" requirement under the Act. This Court asked the parties to supplement their briefing to address the impact of Roswell III on this case. (Jan. 27, 2015 Order, Doc. 19.)
PI Telecom suggests in its supplemental brief that the Court consider this issue only as an alternative to ruling in PI Telecom's favor on its claim that the City's decision was made without substantial evidence. (PI Telecom's Suppl. Memo. 1, 7, Doc. 20.) But should the Court reach the issue, PI Telecom contends, the transcript of the Commission meeting does not provide "sufficiently clear" reasons for denial and was not provided as promptly as required by the Supreme Court in Roswell III. (Id. at 7.)
The City argues that Roswell III confirms that it satisfied the writing requirement, particularly since the transcript of the Commission meeting was produced just six days after the meeting. (Doc. 21 at 3-4.) And, the City argues, even if six days is not soon enough under Roswell III, it was not so long as to prejudice either PI Telecom's decision to file suit or this Court's review such that reversal of the City's decision would be appropriate for this violation alone. (Id. at 6-7.)
Roswell reached the Supreme Court by way of the Northern District of Georgia and the Eleventh Circuit. Finding no authority on the issue from the Eleventh Circuit, the district court had employed
While the initial Roswell appeal was pending, the Eleventh Circuit addressed the "in writing" requirement for the first time, siding with the minority of circuits at the time. In T-Mobile South, LLC v. City of Milton, Georgia, the Eleventh Circuit rejected the argument that the Act's requirement that any denial be "in writing and supported by substantial evidence contained in a written record" means that the denial decision must be in a writing separate from the record. 728 F.3d 1274, 1283 (2013). The court agreed that the language of the Act means some writing must contain the reasons for denial so that a court can evaluate whether the decision is supported by substantial evidence. Id. "What is neither expressed nor implied [in the Act], however, is any requirement that the reasons for a denial must be stated in the [denial] letter or some other document that announces the decision, if there is a separate document doing that, or any prohibition against having the reasons stated only in the hearing transcript or minutes." Id. The Eleventh Circuit declined "to take a more pragmatic, policy-based approach" adopted in the majority of circuits (and followed by the district court in Roswell I). Id. at 1284. Instead, the court held that:
Id. at 1285. The defendant City of Milton had sent three letters unambiguously stating its decision on the plaintiff T-Mobile South, LLC's application. Id. at 1282. The reasons for the city's decision could then be found in the 181 pages of hearing transcripts T-Mobile had arranged and paid for and in the sixty-five page detailed minutes the City of Milton provided. Id. Without deciding whether anything less or different would suffice, the court concluded that access to all of these documents pre-suit was enough to meet the "in writing" requirement of § 332(c)(7)(B)(iii). Id. at 1286.
The panel hearing the appeal in Roswell reversed the district court, based primarily on Milton. T-Mobile S., LLC v. City of Roswell, Ga. (Roswell II), 731 F.3d 1213, 1220-21 (11th Cir.2013). The court noted that T-Mobile had access to the same writings — a letter from the City of Roswell denying the application, minutes summarizing
Before the district court reached the merits, however, the U.S. Supreme Court granted T-Mobile's petition for writ of certiorari to resolve the split among the circuits. The Supreme Court appears to have unanimously resolved the split in favor of the Eleventh Circuit's reading of the "in writing" requirement, but with an additional timing element not strictly found in the text of the Act. Roswell III, 135 S.Ct. at 811-12. The Court rejected the majority view that the reasons for denial must be stated in the denial letter or notice itself, finding that the City of Roswell's detailed minutes were acceptable.
Id. at 811-12 (emphasis added). Because the City of Roswell had issued its detailed minutes twenty-six days after its written denial letter, or four days before the deadline for T-Mobile to file suit, the city had not provided its written reasons for denial essentially contemporaneous with the denial. Id. at 818.
The Court reached this conclusion by first reading the language of the Act, particularly "substantial evidence," a term of art in administrative proceedings, to mean that localities must provide reasons for denials of cell tower applications. Id. at 815. "[H]owever, these reasons need not be elaborate or even sophisticated, but rather, as discussed below, simply clear enough to enable judicial review." Id. The statutory text, however, does not require those reasons to be stated in the same writing that conveys the denial. Id. at 815-16. No particular format for the written reasons must be followed, and localities may rely on detailed meeting minutes to supply the reasons, though the Court did highlight the practical benefits of issuing a separate statement of reasons rather than relying on a voluminous record. Id. at 816.
But because an applicant has only thirty days after denial to seek judicial review under the Act, the locality must issue its reasons "at essentially the same time as it communicates its denial" so as to not impair either the applicant's decision to file
A dissent authored by Chief Justice Roberts and joined by Justices Ginsburg and Thomas
This Court determines that the City has met the "in writing" requirement of the Act. The Commission unanimously voted to deny PI Telecom's application on June 19, 2014 and issued its final order effective the same day. The City did not issue a blanket denial order, but identified the reasons for denial as that "[t]he proposed tower does not comply with the tower siting and design standards and performance standards of Chapter 656, Part 15, Subpart A, Ordinance Code" and that "[t]he proposed tower design is not compatible with the existing contiguous uses, or zoning and is not compatible with the general character and aesthetics of the surrounding neighborhood, or area." (PC REC_0002.) Whether those reasons are supported by substantial evidence, including whether there is objective evidence of the tower's alleged negative aesthetic impact, is a separate issue that can then be determined by a review of the entire written record. The City's June 19, 2014 Order clears the fairly low hurdle of the "in writing" requirement.
To the extent that the Order might be seen as insufficient on its own, though, PI Telecom also had access to the written transcript of the Commission meeting well in advance of the deadline to seek judicial
The Court turns next to PI Telecom's claim that the Commission's denial is not supported by substantial evidence. "[T]he `substantial evidence' standard [under the Act] is the traditional substantial evidence standard used by courts to review agency decisions," meaning "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Linet, 408 F.3d at 762 (internal citation and quotation omitted). As such, substantial evidence is "more than a mere scintilla but less than a preponderance." Id. (internal citation and quotation omitted). In utilizing this standard, a court may not substitute its own judgment for that of the
Under the Act's substantial evidence standard, review of a local government's decision to deny a cell tower application should include consideration of the requirements of the local zoning ordinance. Id. at 1303 (citing Wireless Towers, LLC v. St. Johns Cnty., Fla., 690 F.Supp.2d 1282, 1294 (M.D.Fla.2010) and T-Mobile S., LLC v. Coweta Cnty., Ga., Civil Action No. 1:08-CV-0449-JOF, 2009 WL 596012, at *7 (N.D.Ga.2009)). Thus, "[w]hen evaluating the evidence [supporting the denial], local and state zoning laws govern the weight to be given the evidence," and the Act does not "affect or encroach upon the substantive standards to be applied under established principles of state and local law." Id. (quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir.1999)). With this framework, the Court must review the Commission's subjective determination of incompatibility (based upon the factors set forth in section 656.1506 of the Tower Ordinance) for "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Linet, 408 F.3d at 762 (internal citation and quotation omitted). The evidentiary hurdle is a low one for the City to clear, given the discretion afforded the Commission by section 656.1506.
The City no longer contends that the proposed tower is a "low impact/stealth tower," not a "camouflaged tower," under the Tower Ordinance or that the first reason for denial given in its order — "[t]he proposed tower does not comply with the tower siting and design standards and performance standards of Chapter 656, Part 15 Subpart A, Ordinance Code" — is supported by substantial evidence. (Doc. 15 at 2; see PC REC_0002.) Instead, the City focuses on the second reason: "[t]he proposed tower is not compatible with the existing contiguous uses, or zoning and is not compatible with the general character and aesthetics of the surrounding neighborhood, or area." (PC REC_0002); see St. Johns Cnty., 690 F.Supp.2d at 1293 ("[T]he Act requires only that the adverse action be supported by substantial evidence, not that each individual reason for the adverse action be supported by substantial evidence." (quotations omitted)).
The parties agree that the Eleventh Circuit recognizes that "[a]esthetic concerns may be a valid basis for denial of a permit if substantial evidence of the visual impact of the tower is before the [governing body]." Preferred Sites, 296 F.3d at 1219. "[U]nder the Act the Commission is entitled to make an `aesthetic judgment as long as the judgment is `grounded in the specifics of the case,' and does not evince merely an aesthetic opposition to cell-phone towers in general.'" T-Mobile S. LLC, 564 F.Supp.2d at 1346 (quoting Voice Stream PCS I, LLC v. City of Hillsboro, 301 F.Supp.2d 1251, 1258 (D.Or.2004)). This Court has previously reviewed the relevant Eleventh Circuit precedent and concluded that substantial evidence sufficient to support a denial based on aesthetics must include "objective
The City points to three viewsheds the Commission believed would be impacted by the proposed tower: the residences in the area, Jackson Square PUD, and Alexandria Oaks Park. (Doc. 15 at 17-18.) Section 656.1506 of the Tower Ordinance does instruct the Commission to consider compatibility "with the existing contiguous uses or zoning" and "with the general character and aesthetics of the surrounding neighborhood or area," and to pay particular attention to "the potential adverse impact" on certain places like public parks. JOC § 656.1506. The City contends that the Department staff report, photo simulations of the proposed tower, materials submitted by the developer of the Jackson Square PUD, letters from the San Marco Preservation Society and one of the City Councilmembers for the area, and the testimony at the meeting expressing concern about the tower's impact on the viewsheds constitute substantial evidence supporting the Commission's decision. (Id. at 19-22.)
PI Telecom equates the City's aesthetic rationale to nothing more than a general dislike of cell towers that is contradicted by the only objective evidence, which proves the tower's minimal visual impact. (Doc. 14 at 14.) PI Telecom represents that it has done everything possible to ensure that the proposed tower fits with the surrounding area by picking the latest in camouflage technology, locating the tower in a railroad right-of-way on the fringe of a residential area, and testing the visual impact of the tower through expert photo simulations from around the area. (Id. at 13, 15-16.) PI Telecom argues that, with no evidence of any impact on property values or safety, the City's general aesthetic objections are insufficient to support denial. (Doc. 16 at 2.)
The Court finds insufficient objective evidence in the record to support the Commission's denial based on any aesthetic impact on the viewshed from the residential area to the west of the proposed tower. PI Telecom correctly notes that, while the Tower Ordinance affords special protection to historic districts and landmarks, JOC § 656.1506(a), the evidence before the Commission was that this neighborhood has not been designated historic. Councilmember Boyer testified that the neighborhood may be eligible for historic designation, but no evidence was presented that such a designation is being considered or that the proposed tower would eliminate any eligibility to be designated historic. (PC REC_0021 at 132; PC REC_0022 at 133-34.) Neither the potential diminution in property values of homes in the neighborhood nor any safety concerns were even discussed at the meeting, let alone supported by substantial evidence. Resident Catherine Williams, who spoke in opposition to the application, focused her comments on the viability of an alternative location further south along the railroad right-of-way, and not on the impact of the tower on views from her own home or neighborhood. (PC REC_0019 at 123-24.) Though she later answered "Yes" to a series of leading questions asking her to adopt the opinion that the tower would impact those views, there is no evidence in the record to support that opinion.
The viewshed from the Jackson Square PUD is a closer call. That the tower would have a visual impact on the development is established. The developer of Jackson Square estimated that the tower would be approximately 100 feet from the southwest corner of one of the four-story, mixed-commercial/residential, multi-family buildings planned for the development. (PC REC_0057; see PC REC_0021 at 129-30.) A simple look at a map shows the tower will be close to the PUD and that the view of the tower from at least some units in the PUD may be unobstructed.
The same cannot be said for Alexandria Oaks Park. The Tower Ordinance makes clear that protecting the viewshed of "public parks" is a priority for the Commission in considering cell tower applications. JOC §§ 656.1501(b), .1506(a). The Department report indicates that "[t]here is a row of mature existing trees along the property line which prevent[s] direct views of the tower from the park trail." (PC REC_0005-6.) But PI Telecom submitted no photo simulation of the view of the proposed tower from the open field that
Documented visibility of a proposed cell tower from a public park, a space which, by ordinance, the City is trying to protect and keep pristine, rises above "mere generalized concerns regarding aesthetics." Preferred Sites, 296 F.3d at 1210. The Commission found the proposed tower's visual impact upon Alexandria Oaks Park significant enough to warrant denial of PI Telecom's application, a decision supported by photographic evidence. Faced with objective evidence of the visual impact, this Court cannot displace the Commission's "fair estimate of conflicting evidence" and cannot "freely re-weigh the evidence." American Tower, 295 F.3d at 1209 n. 8. Rather, the Court can "only determine whether substantial evidence exists to support the [Commission's] decision." Id. Here, the City has "muster[ed] some (even if not much) real evidence of [visual] impact" of the tower on Alexandria Oaks Park. Verizon, 670 F.Supp.2d at 1345. The Commission's decision that the proposed tower would have a "potential adverse impact" on Alexandria Oaks Park was supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
The remaining two counts of the Complaint allege that the City violated the
The Act cabins the authority of states and localities to regulate "the placement, construction, and modification of personal wireless service facilities," including by providing that such regulations "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). The parties agree that, although the Eleventh Circuit has not yet addressed the issue, "`a locality can run afoul of the [Act]'s `effective prohibition' clause if it prevents a wireless provider from closing a `significant gap' in service coverage.'" St. Johns Cnty., 690 F.Supp.2d at 1293 n. 11 (quoting Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir.2009) (citation and quotation omitted) and citing APT Pittsburgh Ltd. P'ship v. Penn Twp. Butler County of Pa., 196 F.3d 469, 480 (3d Cir.1999); Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 643 (2d Cir.1999)). "`Unlike the substantial evidence issue, the issue of whether [a locality] has prohibited or effectively prohibited the provision of wireless services is determined de novo by the district court'" without deference to the locality's decision. T-Mobile Ne. LLC v. Loudoun Cnty. Bd. of Supervisors, 748 F.3d 185, 192 (4th Cir.2014) (quoting Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620, 629 (1st Cir.2002) and citing VoiceStream Minneapolis, Inc. v. St. Croix Cnty., 342 F.3d 818, 833 n. 6 (7th Cir.2003)).
The parties also seem to agree that it is the cell provider's burden to prove the significant gap in service and to make some showing regarding the infeasibility of alternatives to the proposal rejected by the locality, but disagree as to what the required showing is. (Doc. 15 at 16; Doc. 16 at 6.) PI Telecom suggests the Court follow the Sixth Circuit and require it to demonstrate only that the proposed tower is the "`least intrusive' means of remedying the gap in whole or in part." (Doc. 14 at 18 (citing T-Mobile Cent., LLC v. Charter Twp. of W. Bloomfield, 691 F.3d 794, 806-08 (6th Cir.2012)).) The City cites an opinion from the District of Oregon (which in turn cites an opinion from the First Circuit) for the proposition that PI Telecom must demonstrate that "`reasonable efforts'" towards locating an alternative "`are so likely to be fruitless that it is a waste of time even to try.'" (Doc. 15 at 23 (quoting Voice Stream PCS I, LLC v. City of Hillsboro, 301 F.Supp.2d 1251, 1261 (D.Ore.2004)).) The Court's own research has revealed cases holding that the cell provider must show that its proposal is the "only feasible plan." See Omnipoint
PI Telecom points to evidence in the record that it contends shows several blocks of the San Marco neighborhood where commercial and residential customers have poor voice and data coverage that impairs their ability to make calls, including emergency 911 calls. (Doc. 14 at 3, 19.) PI Telecom notes that no one, including those at the meeting opposed to the proposal, has submitted any contradictory evidence. (Id. at 19.)
The City objects to characterizing the purpose of the proposed tower as fixing a "void in coverage" rather than as improving in-building service to an area that already has coverage. (Doc. 15 at 23.) The City contends that denial of an application designed to patch small areas of less-than-ideal service does not amount to a prohibition of wireless service in those areas. (Id. at 23-24.)
Though it is not extremely well-detailed in the record, the Court is willing to assume for purposes of this Order only that PI Telecom has shown a significant gap in service.
The City suggests that small "dead spots" where in-building coverage is less than ideal cannot constitute a significant
PI Telecom has not demonstrated, however, that it adequately explored alternative sites to remedy the service gap, regardless of which test is employed. In selecting the design for the tower, PI Telecom did pursue the least intrusive design possible that would still serve its purposes. The proposed unipole design qualifies as a "camouflaged tower" under the Tower Ordinance, JOC § 656.1502, resembling a utility pole and hiding its antennas behind a visually-opaque but RF-transparent screen that carries the width of the lower monopole steel section all the way to the top of the pole. (PC REC_0018 at 117; PC REC_0026 at 149.) The proposed design exceeds the Tower Ordinance's collocation requirements for camouflaged towers in excess of 110 feet in height by accommodating a total of five carriers. (PC REC_0005); see JOC § 656.1506(c)(4). Muldowney described the design as "the latest in camouflage technology" and one preferred by the Planning Department. (PC REC_0018 at 117.) He was also open to using a camouflaged pine tree design, though no one on the Commission took him up on that offer. (Id. at 118.) Muldowney agreed that, standing 150 feet tall, the proposed tower would be much taller than a utility pole. (Id. at 119.) But there is no maximum height under the ordinance for Track II camouflaged towers, "so long as the proposed tower is architecturally and aesthetically compatible with the surrounding community." JOC § 656.1506(b)(1). As discussed above, the Commission had reason to find that the proposed tower was not compatible. But the evidence in the record is that the antennas need to be placed at 140 feet to resolve the service gap. (PC REC_0028 at 157-59; PC REC_0071, 85-86; see PC REC_0005.) So the evidence supports the conclusion that PI Telecom did seek the least intrusive tower design that would remedy the identified service gap.
However, the evidence does not support PI Telecom's conclusion that it fully considered alternative sites and found none that would be feasible. PI Telecom did look for existing towers on which to collocate and other existing tall structures on which to place antennas, but found no suitable options within the search ring. (PC REC_0071.) Thus, PI Telecom would have to place a new tower to resolve the service gap. But when it came to finding a location for a new tower, Muldowney candidly acknowledged during the Commission
The Garland Street location was the subject of much inquiry during the Commission meeting.
The other objections to Garland Street are, on this record, speculation. The Garland Street location is on a City-owned right-of-way, and the City regularly leases its rights-of-way for public service-type uses. (PC REC_0029 at 163.) PI Telecom contends the site does not have enough physical space for the tower and support facilities, but cites only to statements from Muldowney expressing concerns about room on the site due to size and other blockages but no real support for them. (Doc. 14 at 21 (citing PC REC_0029 at 163).) It may very well be that the Garland Street location cannot
This Court has previously recognized the difficulties faced by an applicant in attempting to meet an aesthetic standard that is inherently subjective and on which opinions can differ dramatically. But local zoning and land use bodies are routinely called upon to make such subjective determinations. Here, the Commission's subjective concern about the "potential adverse impact" of the proposed tower on viewsheds from Alexandria Oaks Park was based on objective photographic and other evidence that the tower would visually intrude on the park. The Commission rightfully considered a potential alternative location that, until the meeting, had not been considered at all.
Accordingly, it is hereby
1. PI Telecom's Motion for Summary Judgment (Doc. 14) is
2. City of Jacksonville's Combined Cross Motion for Final Summary Judgment (Doc. 15) is
3. The Clerk shall enter judgment in favor of the City and against PI Telecom, and close the file.
The City also volunteered at the April 22 hearing that, since Roswell III, the Commission has adopted the practice of waiting to issue a final order until the transcript is finalized and then referring to the transcript in the order, thus further obviating any concern whether the Commission's entire reasoning is made available "essentially contemporaneously."
