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<br /> 301 F.gupp.2d 125i Page 6
<br />· (Cite as: 301 F.$upp.2d 1251)
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<br /> As plaintiff recognizes, even under a substantial like," and health concerns, a basis generally
<br /> evidence review, zoning ' decisions based on improper Under the TCA, "dominated. the speakers'
<br /> aesthetic concerns can be valid. See St. Croix statements").
<br /> County, 342 F.3d at 831; Troup County, 296 F.3d
<br /> at 1219; Todd, 244 F.3d at 61; Pine Grove [3] But even under the TCA, the board is entitled
<br /> Township, 181 F.3d at 408; AT & T Wireless.PCS, to make an aesthetic' judgment as long as the
<br /> Inc. v. City Council of the City of lqrginia Beach, judgment is "grounded in the specifics of the case,"
<br /> 155 F.3d 423, 430-31 & n. 6 (4th Cir. 1998); see and'does not evince merely an aesthetic opposition
<br /> also H.R. Conf. Rep. 104-458, at 208, reprinted in to cell-phone towers in general. Todd, 244 F.3d at
<br /> 1996 U.S.C.C.A.N. 124, at 222 (contemplating that 61; see also Petersburg Cellular P'ship v. Bd. of
<br /> localities properly can base decision on aesthetic Supervisors of Nottoway County, 205 F.3d 688, 695
<br /> impac0. Plaintiff does not cite, and the court could (4th Cir.2000) ("[If a zoning board] denies a permit
<br /> not find, any authority holding that the TCA renders based on the reasonably-founded concerns of the
<br /> aesthetic concerns an invalid basis upon which to commUnity then undoubtedly there is 'substantial
<br /> base a permit denial. As summarized by the evidence'" (emphasis in original)). Accordingly,
<br /> Seventh Circuit, "[n]othing ' in the when the evidence specifically focuses on the
<br /> Telecommunications Act forbids local authorities adverse visual impact of the tower at the particular
<br /> from applying general and nondiscgmlnatory ' location at issue more than a mere scintilla of
<br /> standards derived from their zen/rig codes, and ... evidence generally will ex/st.
<br /> aesthetic harmony is a' prominent goal underlying
<br /> almost every such code." Aegerter v. City of Plaint/if nevertheless insists the evidence before
<br /> Delafield, 174 'F.3d 886, 891 (Tth Cir. 1999). the city in this case amoUnted to.no more than
<br /> Moreover, consistent with traditional zoning unsupported and vague objections. See Plaint/fPs
<br /> standards, local government ii "entitled to make an Pre-Hearing Memorandum at 9. But a proper
<br /> aesthet/c judgment" about the proposal "without review of the record shows there was more than a
<br /> justifying 'that judgment by reference to an scintilla of evidence l'grounded in the specifics of
<br /> economic or other quantifiable impact" such as the case." Todd, 244F.3dat 61.
<br /> property value. Todd, 244 F.3d at 61.
<br /> For example, neighboring residents submitted
<br /> Plaint/fi, however, correctly observes that' cases letters objecting to the tower"s proposed location
<br /> .have found general, unsubstantiated aesthetics because the tower would infringe 'upon the
<br /> concerns to have marginal eviclentiary value. See, neighborhood's prized natural setting, comprised of
<br /> e.g., PrimeCo Personal Communications, /_an v. fir and evergreen trees as well as a greenway. See,
<br /> City of Mequon, 352 F.3d 1147, 1150-$1 (Tth e.g., R. 191, R. 195, R. 197, R.205, R.207, R.220,
<br /> Cir.2003) ("The only 'evidence' bearing on aesthetic R.222, R.407, lL420. At the site, there is no
<br /> considerations was the testimony of three or four significant commercial development; nor are there
<br /> residents that they don't like poles in general; they existing commercial towers or above-ground power
<br /> didn't say they would object to a flagpole in the lines. R.26, R.205, R.407, R.420. In addition, on
<br /> church's [the proposed, site's] backyard..~. IT]here is each' side of the tower is a single-family residential
<br /> no'evidence that Ve 'nzon's proposed flagpole would zone; the record shows 'the tower would be
<br /> if erected in the churchyard be considered unsightly surrounded by existing residences. See, e.g.,
<br /> by the neighbors...."); D'oup County, 296 F.3d at tL247-58, P~769, R.816. Residents stated' they
<br /> 1219 (finding insufficient petitions which gave "no relied on the natural~ residential character of'the
<br /> articulated reasons for the opposition" and a single neighborhood in purchasing their homes, which
<br /> affidavit reciting "generalized concerns" about the they would not have purchased had pla/ntifl~s
<br /> towe~s negative aesthetic impact when there was no proposed tower been standing. R. 191, R. 199,
<br /> other evidence in the record); Oyster Bay, 166 F.3d tL205. The city properly relied on the evidence
<br /> at 492, 495-96 (finding insufficient evidence of showing the tower would be incompatible with the
<br /> 'visual blight because '1258 "[v]ery few residents character of this particular neighborhood. .See, e.g.,
<br /> expressed aesthetic' concerns at the hearings," Todd, .244 F.3d at 61 ("The five limitations upon
<br /> comments suggested that the "residents who local authority in the TCA do not state or imply that
<br /> expressed aesthetic concerns did not understand the TCA prevents municipalities from exercising
<br /> what the .pwposed cell sites would actually look their traditional prerogatives to restrict and control
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