K. MICHAEL MOORE, J.
THIS CAUSE came before the Court upon Plaintiffs Motion for Partial Summary
UPON CONSIDERATION of the Motions, the Responses, the Replies, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.
Plaintiff, Keys Wi-Fi, Inc. ("Keys Wi-Fi") is a corporation that constructs wireless service facilities such as telecommunications monopoles.
Keys Wi-Fi seeks to build its monopole at 2832 North Roosevelt Boulevard. Its monopole would allow multiple wireless providers to collocate their antennas at the same place. Use of a monopole is considered a "conditional use" under the City's municipal code. See Key West, Fla., Code §§ 86-9, 122-418(6). Thus, such usage requires a conditional use permit. On June 1, 2009, Keys Wi-Fi submitted an application for a conditional use permit, and submitted additional materials on October 19, 2009. On November 19, 2009, this application came before the Key West Planning Board. The Planning Board passed Resolution 2009-048, which approved the conditional use subject to approval of a height variance from the Key West Board of Adjustment ("BOA").
The height variance was required because the area in which Keys Wi-Fi's monopole would be located has a 40-foot zoning height restriction. The monopole would be 145 feet high The BOA may authorize a variance from maximum height requirements where the following requirements are met: (1) there must exist special conditions, (2) the special conditions must not be created by the applicant, (3) special privileges must not be conferred, (4) hardship conditions must exist, (5) only the minimum possible variance must be granted, (6) the variance must not be injurious to the public welfare, and (7) the existing nonconforming uses of other property must not be the basis of approval. See Key West, Fla., Code § 90-395. The Party requesting the variance has the burden of showing each one of the requirements are met, and the failure to meet any of the requirements is grounds for denying the application. Id. Additionally, the party seeking the variance must comply with a "good neighbor policy" by contacting all impacted property owners and attempting to address their concerns. Id.
On June 1, 2009, Keys Wi-Fi filed its variance application with the City. The application was considered at a BOA meeting held on December 15, 2009.
At the start of the hearing, the City Clerk presented two petitions against the
Speaking against the variance, Planning Director Amy Kimball-Murley ("Kimball-Murley") recommended that it be denied. Among her reasons was that Keys Wi-Fi was unable to establish that § 90-395(5), requiring that applicant only seek the minimum variance necessary, was met. She noted that Keys Wi-Fi was attempting to optimize and maximize the monopole they were able to build, while a shorter monopole could fully accommodate some of the carriers. Kimball-Murley opined that several other § 90-395 factors were not met for various reasons. Several individuals spoke on behalf of residents who did not want the monopole built. Evidence was entered suggesting AT & T was separately applying to have an antenna constructed that would be only 80 feet high, though that other site "most likely" would not completely meet AT & T's needs. At the conclusion of the hearing, Keys Wi-Fi's application for a variance was denied.
On January 12, 2010, the BOA issued a written denial of the application in Resolution No. 90-339. The resolution went through the § 90-395 factors and, with little analysis, found the application not to meet factors one through five.
The City presented evidence that several height variance applications for towers that would provide cellular service were accepted, while several others were denied, depending on the circumstances and locations identified in the particular application.
On February 10, 2010, Keys Wi-Fi filed this suit alleging that the City (1) violated FTA, 47 U.S.C. § 332(c)(7)(B)(iii), because the resolution denying the variance was not "in writing" (Count I); (2) violated FTA, 47 U.S.C. § 332(c)(7)(B)(iii), because the denial was not supported by "substantial evidence" in a written record (Count II); (3) violated FTA, 47 U.S.C. § 332(c)(7)(B)(i)(II), because the provision had the effect of prohibiting personal wireless services (Count III); (4) violated FTA, 47 U.S.C. § 332(c)(7)(B)(i)(I), by discriminating
Keys Wi-Fi now seeks summary judgment on Counts I, II, III, VI and VIII. The City seeks summary judgment on all claims.
The applicable standard for reviewing a summary judgment motion is stated in Rule 56(c) of the Federal Rules of Civil Procedure:
Summary judgment may be entered only where there is no genuine issue of material fact. Twiss v. Kury, 25 F.3d 1551, 1554 (11th Cir.1994). The moving party has the burden of meeting this exacting standard. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). An issue of fact is "material" if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.1997). An issue of fact is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party. Id.
In applying this standard, the district court must view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. Id. However, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The FTA is "a deliberate compromise between two competing aims-to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers." Telespectrum v. Pub. Serv. Comm'n, 227 F.3d 414, 423 (6th Cir.2000)
Keys Wi-Fi alleges that the City did not meet the FTA's writing requirement by passing Resolution No. 90-339. Under the FTA, a city's decisions to deny a carrier's application must be "in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). The FTA does not define "writing." Circuits have applied different levels of scrutiny to this requirement. See New Par v. City of Saginaw, 301 F.3d 390, 395-96 (6th Cir.2002) (comparing standards). The Eleventh Circuit has yet to decide this issue.
This Court easily rejects the most stringent test, which requires something close to formal findings of fact. See Smart SMR of N.Y., Inc. v. The Zoning Comm'n of the Town of Stratford, 995 F.Supp. 52, 56 (D.Conn.1998). Such a strict standard
Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 59-60 (1st Cir.2001). The Court thus adopts the First Circuit's approach, which is summarized as requiring that
Id. at 60.
Here, the BOA Resolution notified Keys Wi-Fi in writing of the § 90-395 prongs it failed to meet and, thus, of the reasons for the application's denial. This Resolution can be meaningfully reviewed when viewed with evidence in the record. The BOA Resolution was, as Keys Wi-Fi suggests, largely devoid of any analysis as to what facts in the record it was relying on. However, such details, while useful, are not required by the FTA. Thus, the FTA writing requirement is satisfied and this claim is dismissed.
Keys Wi-Fi argues that the City did not base its denial of Keys Wi-Fi's application on substantial evidence, thus violating the FTA. Under the FTA, a local board's decision to deny a request to construct a monopole must be supported by substantial evidence contained in a written record. 47 U.S.C. § 332(c)(7)(B)(iii). This is a "procedural safeguard[,] which is centrally directed at whether the local zoning authority's decision is consistent with the applicable local zoning requirements." Omnipoint Comm'ns MB Operations, LLC v. Town of Lincoln, 107 F.Supp.2d 108, 115 (D.Mass.2000) (internal citations omitted); see also Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Tp., 181 F.3d 403, 408 (3d Cir.1999) ("The substantial evidence test applies to the locality's own zoning requirements."). The Court is required to give the Board the "`benefit of the doubt, since it requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy a reasonable fact finder.'" T-Mobile S. LLC v. City of Jacksonville, Fla., 564 F.Supp.2d 1337, 1345 (M.D.Fla.2008) (quoting Penobscot Air. Servs. v. FAA, 164 F.3d 713, 718 (1st Cir.1999)). "Review under this standard is essentially deferential, such that courts may neither engage in their own fact-finding nor supplant a local zoning entity's reasonable determinations." Id.
Here, the City relied on substantial evidence suggesting that Keys Wi-Fi was ineligible for a height variance. If the application failed to meet any of the § 90-395 criteria, there was a basis to deny the application. See U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364 F.3d 250, 259 (5th Cir.2004) (holding that the TCA "requires only that the adverse action be
Keys Wi-Fi argues that the City's denial amounted to an absolute prohibition, in violation of the FTA. 47 U.S.C. § 332(c)(7)(B)(i)(II) requires that the Board's regulation of wireless services "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." This refers to blanket, and not individual, prohibitions. AT & T Wireless PCS, Inc. v. City Council of City of Va. Beach, 155 F.3d 423, 428 (4th Cir. 1998). Here, no blanket prohibition has been shown, given that it is undisputed that the City has approved numerous other conditional uses and variances for cell towers. This suggests that the denial of the variance was because of the unreasonableness of Keys Wi-Fi's request rather than a desire to ban all cell towers.
An "absolute prohibition" within the meaning of the FTA can also occur in situations where there exists a "significant gap" in wireless service coverage, and there exist no feasible alternative site locations. MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 730 (9th Cir.2005). Here, Keys Wi-Fi cannot meet either prong. Evidence in the record suggesting that a "significant gap" in wireless service exists in the City is largely anecdotal and conflicts with other evidence in the record.
Keys Wi-Fi has also not met the second prong. Given that numerous other permits have been granted in the past, it is at least plausible that permits for additional locations will be granted.
Keys Wi-Fi argues that the City has applied its height variance application standards unequally. 47 U.S.C. § 332(c)(7)(B)(i)(I) prohibits "unreasonably discriminat[ing] among providers of functionally equivalent services." "[A]lmost all federal courts considering such cases have ruled that providers alleging unreasonable discrimination must show that they have been treated differently from other providers whose facilities are `similarly situated' in terms of the `structure, placement or cumulative impact' as the facilities in question." MetroPCS, 400 F.3d at 727 (citations omitted). Here, Keys Wi-Fi has provided insufficient evidence as to "structure, placement or cumulative impact" of the allegedly similarly situated structures.
Keys Wi-Fi argues that the City has applied its height variance application standards in a manner inconsistent with Keys Wi-Fi's Equal Protection rights. Similar to unequal application claims under the TCA, a plaintiff cannot show an equal protection violation where "two applicants are not similarly situated." E & T Realty v. Strickland, 830 F.2d 1107 (11th Cir.1987). Here, as discussed above, Keys Wi-Fi has not pointed to any similarly situated company. Therefore, the City is entitled to summary judgment on this claim.
Keys Wi-Fi claims that the City violated § 365.172, Florida Statutes, by failing to act on the variance in a timely fashion, and violated § 365.172, Florida Statutes, by failing to cooperate with Keys Wi-Fi in determining an appropriate location for the monopole. The only claimed basis for bringing these claims in this Court is under supplemental jurisdiction. "In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). However, "[t]he district courts may decline to exercise supplemental jurisdiction" if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Here, this Court declines to exercise supplemental jurisdiction over the Florida state law claims. In declining to exercise jurisdiction, this Court notes that Keys Wi-Fi has a Petition for a Writ of Certiorari including identical state claims that is pending before the Florida Circuit Court. Thus, principles of comity and federalism suggest allowing the state court to address these issues.
For the foregoing reasons, it is,
ORDERED AND ADJUDGED that Plaintiffs Motion for Partial Summary Judgment (ECF No. 33) is DENIED. Plaintiffs Request for Hearing (ECF No. 32) is DENIED AS MOOT. It is further,
ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment (ECF No. 37) is GRANTED IN PART. Counts I-V are DISMISSED WITH PREJUDICE. Counts VI-VII are DISMISSED WITHOUT PREJUDICE. All other pending motions not otherwise ruled upon are DENIED AS MOOT. The Clerk of the Court is instructed to CLOSE this case.