The U.S. Sixth Circuit Court of Appeals has ruled in favor of T-Mobile USA in its lawsuit against the West Bloomfield Township, Mich., for denying a cell tower application, affirming the partial summary judgment of the U.S. District Court for the Eastern District of Michigan.
The appeal comprised three separate issues: whether the denial was supported by substantial evidence, whether the denial prohibited T-Mobile from providing service, and whether the township had the discretion to grant or deny a special land-use application. The appeals court affirmed the district court on all three.
Steven Wells, principal shareholder, Schnelz Wells attorneys at law, welcomed the decision for its positive stance toward cellular carriers, in a legal commentary.
“At last, we have a clear statement of the Sixth Circuit’s position on the requirements of proving substantial evidence an effective prohibition claims und the Telecommunications Act,” he wrote. “In a pro-provider opinion, the Sixth Circuit sided with the Ninth Circuit on every issue of substance.”
In 2008, T-Mobile identified a gap in its coverage of West Bloomfield. After considering several sites, the carrier chose to build at a utility site on property owned by Detroit Edison, replacing an existing 50-foot pole with a 90-foot monopine. At a special-use permit hearing, T-Mobile provided justification for the site selection, the height of the pole, future collocation opportunities and a visual representation of the proposed site showing it would have minimal impact. Several people spoke out against the tower and it was denied.
In its letter denying the applications the township clerk cited adverse effect on the neighborhoods aesthetics, and it claimed that T-Mobile had not justified its need for the tower. The letter, however, did say that a 70-foot tower would be allowable.
Using the Ninth Circuit’s definition of substantial evidence (more than a scintilla and less than a preponderance), the court found that arguments concerning aesthetics were less that substantial.
“The generalized complaints effectively amount to NIMBY –– not in my backyard,” the court wrote. “The evidence relied upon … was merely alleged, not substantiated.
“If Section 332 [of the Telecom Act] were read as broadly as the township suggests and these general objections sufficed, any wireless facility could be rejected,” the court wrote.
Additionally, claims that RF would harm the trees and the children at a nearby daycare center were included in the record, which, the court noted, may not be considered in the regulation of wireless communications facilities per the Telecom Act.
“There was no evidence whatsoever that the wireless facility would have any impact on the conifers, beyond the…accusation,” the court wrote. “Further, concerns that the RF emissions could potentially impact trees or children at the daycare were prohibited by statute as grounds to deny a wireless permit.”
As for the township’s requirement that the tower be 70 feet in height, T-Mobile countered that it could not collocate two other carriers at that height as required by the local zoning ordinance and the court agreed. The court noted the evidence in the record actually supported a taller tower than 70 feet.
“There is no evidence in the record to support the township’s position that a 70-foot tower would have been suitable to satisfy the zoning ordinance’s requirement that two wireless providers, engaged in reasonable communications, could be collocated at this particular site,” the court wrote. “A 70-foot tower, with Verizon collocated at 60 feet, would not, by Verizon’s own admission, have worked.”
Backing up the township’s claim that T-Mobile did not present significant evidence of the need for the tower was the testimony of Dave Crook, who said the tower would only address 15 percent the carrier’s coverage problem. The court found his testimony to be less than compelling.
“Nothing in the record suggests what qualifications Mr. Crook possessed or whether he had any expertise to opine on the coverage gap in the area. His ostensibly lay opinion is not substantial evidence,” the court wrote.
Subsequently, the court adopted a definition for “effective prohibition” that says the denial of a single application may constitute an effective prohibition of wireless communications service. And it held that the Bloomfield’s cell tower denial prohibited wireless service and violated the Telecom Act.
The court adopted the least intrusive means standard used by the Second, Third and Ninth Circuit Courts, which requires that a good faith effort was made to “identify and evaluate less intrusive alternatives.” The court was satisfied that the carrier looked at a number of different sites and techniques for its proposed tower.