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Page 11 of 12 301 F.Supp.2d 1251 Page 10 (Cite as: 301 F.Supp.2d 1251) based its decision on the specific circumstances providers have been permitted to build similar presented in the case, not on unsubstantiated structures on similar sites while it has been denied." general observations equally applicable to any cell- Id. at 1012 (citing cases). That is, plaintiff must phone tower. In short, plaintiff does not carry its show the city treated a competitor more. favorably burden to show the city's denial has the effect of "for a functionally identical request." Id. In prohi~oiting wireless services, determining whether unlawful discrimination occurred, a court must remain mindful that cities C. Discrimination retain" 'flexibility to treat facilities that create different visual, aesthetic, or safety concerns [9] Plaintiff generally contends the city's denial differently to the extent permitted, under generally results in unlawful discrimination, because the city applicable zoning requirements; even if those previously has granted conditional- use permits for facilities provide functionally equivalent services.' , two other wireless-communication facilities in Id. at 1011 (quo.ting H.R. Conf. Rep. No. 104-458, residential areas. Plaintiff speculates that the city at 208, reprinted in 1996 U.S.C.A.A.N. at 222}. denied tho Golden Road permit simply because the Thus a zoning board can treat one prov/defs .. neighborhood at issue is affluent. Plaintiff contends application differently from another provider's a mun/cipality should not be permitt~t to .deny a application based on- "traditional bases of zoning conditional-use application, on -the sole ground the regulation." City of Fa. Beach, 155 F.3d at 427. proposed location'is in a neighborhood more affluent than others: Wlfile plaintiffs position may Plaintiff does not carry its burden to establish be laudable, it points to no evidence showing the unreasonable d/scrimlnat/on. Plaintiff cites a map city based its decision on the alleged wealth of the showing the city has '1263 approved two other residents. As discussed below, plaintiff does not permits for wireless facilities in residential zones. otherwise offer sufficient evidence supporting its R. 779;81. However, neither this map nor plaintiff 'argument the city engaged in unreasonable establishes any relevant similarity (other than the discriminafion.'[FN6] common zoning designation) between those other two locations and the Golden Road location at issue here. The record shows the other' facilities are "at 17N5. It is worth noting that plaintiffs different locations with~ the [city]." MetroPC$, argument regarding discrimination, i.e., 259 F.Supp.2d at 1012 (holding that a mere that other, similar permits have been showing facilities were permitted in different granted, is at least partially inconsistent, locations within a district was not "unreasonable with its argument regarding effective discriminalion under the Telecommunications Act, pr01n'oition, i.e., that the city is effectively asa matter of law"). In fact, the board specifically prohibiting wireless services. distinguished the other two sites. 'See infra at 1259-60. Nor does plaintiff show that the two other residential area permits were approved, as in this The TCA prohibits zoning boards from case, to improve indoor coverage rather than to fill unreasonably discriminaling "among providers of a complete void in coverage. In sum, function.oily equivalent services." 47 U.S.C. § There is no ev/dence that the City Council had 332(0)(7)(B)(/)(1]. As with claims'under the any intent to favor one company or form of effective prohibition clause, there is no deference to service over another. [Instead] the evidence the local government's findings. Airtouch, 83 shows that opposition to the application rested on F.Supp.2d at 1164 (citing Cellular Tel. Co. v. traditional bases of zoning regulation: preserving Zoning Bd. of',idjus~nent of Ho-Ho-Kus, 197 F.3d the character of the neighborhood and avoiding 64, 71 (3d cir. 1999)). aesthetic blight If such behavior is unreasonable then nearly every denial of an application such as [10] The TCA allows discrimination among this will v/elate the Act, an obviously absurd providers as long as the discrimination is result. reasonable. See Willoth, 176 F.Bd at 638. Plaintiff CiO~ofFa. Beach, 155 F,3d at 427. · bears the burden of establishing the city engaged hi unreasonable discrimination. See MetroPC$, 259 IH. Conclusion F.Supp.2d at 1011o12..Plaintiff must show "other Copr. © West 2004 No Cla/m to Orig. U.S. Govt. Works 1V-67