Higher Stakes On Cell Tower Siting

Since being signed into law, the Telecommunications Act of 1996 (the TCA) has severely impacted the ability of local governments to make land use decisions with regard to personal wireless service facilities. Section 704 of the Act, codified at 47 U.S.C. § 332(c)(7), is entitled "Preservation of Local Zoning Authority," but the effect has been quite the opposite. Many local governments, faced with armies of wireless service providers seeking to dot the landscape with often unsightly towers, have not faired well when federal courts have scrutinized their denials of permits for such towers. A decision in April of last year from the United States Court of Appeals for the Eleventh Circuit held that cell tower companies can recover money damages and attorneys' fees from local governments for permit denials, further raising the stakes for a local government that denies a tower siting permit. Although that opinion was later vacated on technical grounds, it remains the only federal court of appeals opinion on the issue.

Local governments have had difficulty meeting the Act's requirements, especially the "substantial evidence" requirement, which has thus far caused the most permit or variance denial reversals by federal courts. Local governments can improve the likelihood of withstanding future challenges under the TCA by examining cases that have upheld such decisions in the past.

So far, we have no decisions from either the United States Court of Appeals for the Eleventh Circuit or the Supreme Court construing the substantive provisions of Section 704. Local governments must look to the decisions of other circuits for appellate court guidance.

Every federal court of appeals that has considered this issue has held that evidence of negative aesthetic impact can constitute substantial evidence sufficient to support denial of a tower siting application, as long as aesthetics are a valid basis for denial under the applicable state or local law. Therefore, substantial evidence of aesthetic concerns about the proposed tower can form a valid basis for denial.

Myriad cases support that substantial evidence of possible adjacent property value diminution can form a valid basis for denial. The U.S. Court of Appeals for the Fourth Circuit, in upholding a permit denial, found a mortgage banker's testimony that the tower would lower residential property values to be substantial, despite a study by a real estate appraiser, that the plaintiff submitted, which concluded the tower would not affect neighborhood real estate prices. Local governments, with seemingly little effort, can procure substantial evidence to rebut a provider's claims that no diminution in property value will result.

Courts uniformly have held that economic or technological necessity do not mandate approval of any proposed tower site or justify a failure by the tower company to consider alternative sites upon request. The U.S. District Court for the Northern District of Georgia, for example, held that a tower company's lack of evidence to support its search for alternative sites can constitute substantial evidence in support of a permit denial.

Most courts have held that evidence of proximity to adjoining property is sufficient evidence to support denial of a zoning application.

Recent decisions repeatedly have recognized the proper role of constituent concern and testimony in the democratic process of tower site zoning. These circuit courts have held that where local opposition is substantial, it is the proper role of the local government to take such opposition into account, and such opposition can constitute substantial evidence supporting denial of a permit.

A decision adverse to local governments from another federal appeals court, the Second Circuit, is troubling. Careful planning, however, can help local governments avoid the result in that case. First, the concerns that residents voiced there centered almost exclusively around health concerns, impermissible under the TCA. Second, "very few residents expressed aesthetic concerns at the hearings." With regard to property values, "[a] few generalized concerns about property values, especially in light of [applicant's] contradictory expert testimony, [did] not seem adequate to support a conclusion."

The district court opinions reach varying conclusions about what the TCA requires regarding findings of fact and conclusions of law to satisfy the written denial requirement. Until the Eleventh Circuit or the Supreme Court speaks to the question, local governments would do well to prepare such findings and conclusions.

In April of last year, the United States Court of Appeals for the Eleventh Circuit dealt a serious blow to local governments. For the first time, a federal appeals court has stated that cell tower companies can sue local governments for damages and attorneys' fees for denials of tower permits that violate the TCA. (The opinion was later vacated on technical grounds, but it remains the only federal court of appeals opinion on the issue.) Reversing the district court for the Northern District of Georgia, the court held that a federal statute normally reserved for civil rights plaintiffs, 42 U.S.C. §1983, gives tower companies a federally enforceable right to recover money damages and fees. First, the court determined that the TCA created an enforceable private right on behalf of tower companies. Second, the court determined that in enacting the TCA, Congress did not intend to foreclose remedies under 1983 because the TCA did not create a "'comprehensive remedial scheme that is incompatible with individual enforcement under §1983.'"

Somewhat reluctantly concurring in the opinion, one judge sardonically noted that "Section 1988 [the attorneys' fees counterpart to §1983] was intended to help the civil rights Davids of the world do battle with the governmental Goliaths. AT&T Wireless [the plaintiff in this case] is a seven-billion dollar subsidiary of a sixty-two billion dollar multi-national corporation. My, how the Davids have grown." The judge's point - that it is silly for successful cell tower companies to engage in government-funded litigation through the recovery of attorneys' fees - is well-taken, and underscores the dire need for local governments to ensure that they are not vulnerable to suit for improper permit denials.

Cellular providers have always held the upper hand over local governments because the providers have superior resources with which to compile evidence supporting their applications and, more ominously, to litigate any denial vigorously. This decision will make it that much more important for local governments to proceed cautiously when denying permits and, if sued, to litigate vigorously themselves to avoid an adverse result that can now lead to taxpayer funds going to pay damages and fees to tower companies for illegal denials.

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