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Page 8 ell2 301 F.gupp.2d 1251 page 7 (Cite as: 301 F.Supp.2d !251) development based upon aesthetic FN3. The court recognizes another conSiderations...."); Aegerter, 174 F.3d at.. 890-91 appraiser mentioned three other homes (upholding zoning board's denial of cell-phone which are within 100 feet of a cell-phone tower because the tower would be "unsightly" and tower. R. 137. However, these sites are not "inconsistent" with the neighborhood, in which in Washington County. Moreover, as residents bought their homes in reliance on the indicated above, the court finds it neighborhood's existing residential character). In significant that plaintiffs own sum, although opponents made general assertions expert-"[a]fter filtering the number of about the nature of cell-phone towers, they also sites for research," R.269~-chose four · considered the specific scene in which the proposed homes which are at least 350 feet from tower would appear, cell-phone towers as the sites most appropriate for purposes of drawing a MoreOver, the city also gave consideration to the comparison to plaintiffs Proposed site. proposed tower's distance from surrounding homes. The city council cited aa appraiser's testimony' that no other cell-phone facility in the city sits as close C~oupled with the city's aesthetic judgment is the to residences as would plaintiffs proposed, tower, fact the proposed tower would not fili a complete R.39. In the board's words, "the cell tower in this void in covorage but instead would only improve case would be in the heart of an R-? single family indoor or, in plaintiffs term, "urban" coverage. residential neighborhood and would be the tL16; see Plaintiffs Reply Memorandum at 3. In functional equivalent of placing a cell tower in the determining whether the tower would be in the center of a subdivision." R.27. In addition, the "public interest," the city was within its authority to board specifically distinguished the two other weigh the.benefit of merely improving the existing previ6usly approved cell-phone facilities which sit coverage agaiost the negative aesthetic impact the in single-family residential zones. R.27. The board tower would cause. See, e.g., City of Mequon, 352 observed-that one of the existing facilities was F.3d at 1149 ("A reasonable decision whether to placed on an existing light pole at an athletic field approve the construction of an antenn~o for .and '1259 that the other sits in abusy section of the cellphone, commllnications requires balancing two city across .from a commercial district. R:27. At the considerations. The first is 'the contribution that the proposed site, the record indicates that many of the antenna will make 'to the availability of cellphone neighboring houses are between 100 and 200 feet services. The second is the aesthetic or other harm 'from the proposed tower. As one witness observed, that the antenna will cause."). Such a policy-based "It]he proposed cell tower site regardless of where decision is precisely the type of decision Congress placed on the property would be within 100 feet of left to local zoning boards. 'a single-family site." 1L769. · [4] Keeping in mind the standard is merely "more In fact, in an attempt to compare the proposed site than a s.cinfilla," and less than a preponderance, the to other Sites where homes are near cell-phone city based its denial on sufficient evidence. facilities, plaintiffs own expert witness Picked four Certainly, as plaintiff contends, it is possible to "subject" homes which are no less than 350 feet conclude the proposed tower would not be a visual from the nearest cell-phone facility. 1L265, blight, judging by the simulated photographs in the IL269-70, K.279, R.289. Each of the expert's four record. This court's role, however, is not to subject homes is in Washington County (which interject its own judgment, but rather to apply the includes the City of Hillsboro) ,and one of the deferential standard of substantial evidence to the homes is in the city. Notably, Washington County city's judgment See Todd, 244 F.3d at 58 ("the records indicate three of the expert's chosen homes possibility of drawing two inconsistent conclusions actually are over 450 feet from the nearest cell- from the evidence does not prevent an phone facility, with one of these three homes being administrative agency's finding from being 900 feet away. R. 138-39. Thus the city had before supported by substantial evidence,"); degerter, 174 it plaintiffs own evidence indicating the proposed F.3d at 888 ("While the conclusions the City site is significantly different from the area's most reached may not be the only poss~le ones, they find 'comparable sites. [171q3] support in the written record and therefore must be respected."). While' the court is obligated to review Copr. © West 2004 No Claim to Orig. U.S. Govt. Works IV-64 http://print.westlaw.com/delivery.html?dest=atp&dataid=AO0'55800000066180001978611... 4/14/2004