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Page 9 of 12
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<br /> 301 F.Supp.2d 1251 ' Page 8
<br /> (Cite as: 301 F.Supp.2d 1251)
<br />
<br /> thc evidence, given the TCA's express reservation Tel. of Greater' Tulsa, LLC v.~ City of
<br /> of local control, the court also must be sensitive to Broken Arrow, 340 F.3d 1122, 1137-38
<br /> the. difficulties involved in applying inherently (10th Cir.2003) C %Ve doubt that Congress
<br /> policy-basedt standards such as "in the public intended local zoning boards to pay for
<br /> interest" to tower-siting decisions. See, e.g., '1260 experts to prove that there are alternative
<br /> 8print Spectrum, L.P. v, Parish of Plaquemines, sites for a Proposed tower.' ") (quoting
<br /> No. 01-0520, 2003 WL 193456, at.. '19- 20 Petersburg Cellular P'ship, 205 F.3d at'
<br /> (E.D.La. lan, .28, 2003) (finding substantial 695). In any event, as discussed above, the
<br /> ev/dence to satisfy the ordinance's "public interest" city's decision is supported by sufficient
<br /> standard where many residents expressed aesthetic evidence.
<br /> concerns, keeping in mind that even under the TCA
<br /> "'[l]and us~ decisions are basically the business of
<br /> state and local governments' ") (qUoting Am. Tower, B. Effective Prohibition
<br /> L.P. v. City of Huntsville, 295 F.3d 1203, 1206
<br /> (1 lth Cir.2002)). Plaintiff further argues the city's denial effectively
<br /> prohibits wireless services. Plaintiff specifically
<br /> [5] In sum, plaintiff does not carry its burden to argues that because the city's denial was based on
<br /> show the City of Hillsboro's decision was not general .aesthetic concerns, no tower could' pass the
<br /> supported by substantial evidence. The city city's review, since no one would praise the
<br />· grounded its decision to deny plaintiffs application aesthetic virtue of a cell-phone tower. See
<br /> in "the specifics of the case," Todd, 244 F.3d at 61, Plaintiffs Pre-Hearing Memorandum at 17.
<br />not on merely unsupported and vague objections
<br />about cell-phone towers in'general, as plaintiff [6] The TCA permits a federal court to overturn a
<br />contends.[FN4] local govemmenes zoning decision when the
<br /> decision has the "effect of prohibiting the provision
<br /> of personal wireless services." 47 U.S.C. §
<br /> FN4. -Plaintiff argues "[i]f the City had 332(c)(7)(BXi). Unlike the substantial evidence
<br /> concerns other ' than · aesthetics, those inquiry, a district court reviews the record de novo
<br /> concerns could have been addressed by a to determine whether it supports an effective
<br /> conditional approval." See Plaintiffs prolu"oition claim. St. Croix, 342 F.3d at 833; 3?at'l
<br /> Pre-Hearing Memorandum at i4-15. Tower, LLC v: Plainville Zoning Bd. of Appeals,
<br /> Specifically, plaintiff argues, "had the City 297 F.3d 14, 22 (lst Cir.2002).
<br /> had lingering concerns over either the
<br /> lighting requirements or maintaining the [7] Most cases have held that a single zoning
<br /> large trees bordering the Golden Road decision can give rise to an effective prohibition of
<br /> location" the city should have conditioned wireless services. See, e.g., Second Generation
<br /> approval on plaintiffs talcing measures to ' Props., LP v. Town of Pelharn, 313 F.3d 620, 629
<br /> allo,~ate those concerns: Id. But because (lst Cir.2002) (citing Town of Amherst v.
<br /> the city's decision was not based on the Omnipoint Communications Enters., Inc., 173 F.3d
<br /> issue of lighting or trees, the court need not 9, 14 (lst Cir. 1999)); ,dPT Pittsburgh LP v. Penn
<br /> consider this issue. Moreover, plaintiff Township Butler County of Pct, 196 F.3d 469,
<br /> does not point to evidence in the record 479-80 (3d Cir. 1999); MetroPC$, Inc.} 259
<br /> showing what, if any, "reasonable F.Supp.2d at 1013; Airtouch Cellular v. City of El
<br /> conditions" were feas~le and that would .Cajon, 83 F.SUpp.2d 1158, 1167 (S.D.Cal.2000).
<br /> 'have effectively alleviated the city's The Fourth Circuit, however, has held that only
<br /> concerns. See ORS § 197.522 (providing . blanket bans. of wireless services implicate the
<br /> that local government can deny a permit TCA's effective prolu'oition provisio~ See City
<br /> 'application when it "cannot be made Council of Va. Beach, 155 F.3d at 428. The weight
<br /> consistent through the imposition of of authority, and the more persuasive reasoning,
<br /> reasonable conditions of approval"). In concludes that an effective protu~oition can be
<br /> seeking t9 overturn the city's .decision, the shown either with a blanket ban or a single decision..
<br /> burden is on plaintiff. See St. Croix, 342 As courts have recognized, construing the effective
<br /> F.3d at 830; cf. United States Cellular prolu'oition clause" 'to apply only '1261 to general
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<br /> Copt. © West 2004 No Claim to Orig. U.S. Govt. Works
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