Item 3 - PH/Ord. on Cell Towers - Laserfiche WebLink

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Page 9 of 12 301 F.Supp.2d 1251 Page 8 (Cite as: 301 F.Supp.2d 1251) the evidence, given the TCA's express reservation Tel. of Greater Tulsa, LLC v. City of . of local control, the court also must be sensitive to Broken Arrow, 340 F.3d 1122, 113%38 the. difficulties involved in applying inherently (10th Cir.2003) (" Me doubt that Congress policy-based' standards such as "in the public intended local zoning boards to pay for interest" to tower-siting decisions. See, e.g., '1260 experts to prove that there are alternative Sprint Spectrum, L.P.v. Parish of Plaquemines, sites for a Proposed tower.' ") (quoting No. 01-0520, 2003 WL 193456, at, '19- 20 Petersburg Cellular P'ship, 205 F.3d at' (E.D.La. Jan..28, 2003) (finding substantial 695). In any event, as discussed above, the evidence to satisfy the ordinance's "public interest" city's decision is supported by sufficient standard where many residents expressed aesthetic evidence. concerns, keeping in mind that even under the TCA "'[1]and use decisions are basically the business of State and local governments' ") (quoting Am. Tower, B. Effective Prohibition L.P. v. City of Huntsville, 295 F.3d 1203, 1206 (llth Cir.2002)). Plaintiff further argues the city's denial effectively prohibits wireless services. Plaintiff specifically [5] In sum, plaintiff does not carry its burden to argues that because the city's denial was based on show the City of Hillsboro's decision was not general aesthetic concerns, no tower could' pass the supported by substantial evidence. The city city's revi0w, since no one would praise the 'grounded its decision to deny plaintiffs application aesthetic virtue of a cell-phone tower. See in "the specifics of the case," Todd, 244 F.3d at 61, Plaintiffs Pre-Hearing Memorandum at 17. not on merely unsupported and vague objections about cell-phone towers in general, as plaintiff [6] The TCA permits a federal court to overturn a contends.[FN4] local government's zoning decision when the decision has the "effect of prohi'biting the provision of personal wireless services." 47 U.S.C. § FN4. 'Plaintiff argues "[i]f the City had 332(c)(7)(BXi). Unlike the substantial evidence concerns other 'than · aesthetics, those inquiry, a district court reviews the record de novo concerns could have been addressed by a to determine whether it supports an effective conditional approval." See Plaintiffs prohibition claim. St. Croix, 342 F.3d at 833; 1Vat'l Pre-Hearing. Memorandum at i4-15. Tower, LLC v: PlainviIle Zoning Bd. of Appeals, Specifically, plaintiff argues, "had the City 297 F.3d 14, 22 (lst Cir.2002). had lingering concerns over either the lighting requirements or maintaining the [7] Most cases have held that a single zoning large trees bordering the Golden Road decision can give rise to an effective prohibition of location" the city should have conditioned wireless services. See, e.g., Second Generation approval on plaintiffs taking measures to ' Props., LP v. Town of Pelham, 313 F.3d 620, 629 alleviate those concerns: Id. But because (lst Cir.2002) (citing Town of Amherst v. the ci~s decision was not based on the Oran!point Communications Enters., Inc., 173 F.3d isSUe of lighting or trees, the court need not 9, 14 (lst Cir. 1999)); APT Pittsburgh LP v. Penn ' consider this issue. Moreover, plaintiff Township Butler County of Pa., 196 F.3d 469, does not point to evidence in the record 479-80 (3d Cir. 1999); MetroPCS, Inc.~ 259 showing what, if any, "reasonable F.Supp.2d at 1013; Airtouch Cellular v. City of El conditions" were feasible and that would Cajon, 83 F.Supp.2d 1158, 1167 (S.D.Cal.2000). 'have effectively alleviated the city's The Fourth Circuit, however, has held that only concerns. See ORS § 197.522 (providing . blanket bans. of wireless services implicate the that local government can deny a permit TCA's effective prohi"oition provision. See. City application when it "cannot be made Council of Va. Beach, 155 F.3d at 428. The weight consistent through the imposition of of authority, and the more persuasive reasoning, reasonable conditions of approval"). In concludes that an effective prohibition can be seeking to overturn the city's .decision, the shown either with a blanket ban or a single decision.. burden is on plaintiff. See St. Croix, 342 As courts have recognized, construing the effective F.3d at 830; cf. United States Cellular prohi'oition clause" 'to apply only *1261 to general Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-65