Wireless Telecommunication Facilities and Zoning
Most of the restrictions on local land use regulation of wireless telecommunication facilities are based on federal law. There are also state laws on the topic, which generally mirror federal provisions.
State Law
G.S. 160A-400.50 to -400.53 and 153A-349.50 to -349.53 allow local government regulation of wireless telecommunication facilities based on “land use, public safety, and zoning considerations.” This expressly includes the authority to address “aesthetics, landscaping, land-use based location priorities, structural design, setbacks, and fall zones.” These statutes also provide that they do not limit the provisions of local historic district or landmark regulations.
The statutes provide that local governments may not require information on an applicant’s “business decisions,” specifically including information about customer demand or quality of service. This distinction poses some inherent conflict, as it is not uncommon for ordinances to allow new towers in sensitive areas (a land use consideration) only upon a showing that existing facilities are unavailable to provide adequate service (what some might consider a business decision). The statute addresses this tension by specifying the information that can be required and considered in permit reviews. A local government is allowed to consider whether an existing or previously approved structure can reasonably be used to provide service, whether residential, historic, and designated scenic areas can be served from outside the areas, and whether the proposed tower height is necessary to provide the applicant’s designated service. A local government is also allowed to evaluate the reasonable feasibility of collocating new antennas and equipment on existing structures.
Local governments are required to provide streamlined processing for qualified collocation applications. Decisions on these applications must be made within forty-five days of receipt of a completed application (and decisions on all other applications must be made within a reasonable time consistent with other land use applications). Notice of any deficiencies in a collocation application must be provided within forty-five days of submission of an application. Qualified collocation applications can be reviewed for conformance with site plan and building permit requirements but are not otherwise subject to zoning requirements. Applications entitled to this streamlined review include those regarding new antennae on towers previously approved for collocation facilities if the installation is within the terms of the original permit. Other collocations entitled to this streamlined process include those that meet a set of specified conditions, including no increase in the height or width of the supporting tower, no increase in ground space for the facility, and any new equipment being within the weight limits for the structure.
Local governments are prohibited from requiring that wireless facilities be located on city- or county-owned towers or facilities. They are allowed to provide expedited processing for applications for wireless facilities proposed to be located on city- or county-owned property.
Two other key issues addressed by this statute are the fees required for permit review and the construction of speculative towers. Local governments are allowed to charge an application fee that includes fees for consultants to assist in review of permit applications. These fees must be fixed in advance of the application and may not exceed the usual and customary costs of services provided. Local governments may add a condition to zoning approvals for new towers that building permits for the tower will not be issued until the applicant provides documentation of parties intending to locate facilities on the tower (but the zoning permit itself may not be denied due to the lack of documentation of a committed user). Zoning permits can require that permitted facilities be constructed within a reasonable time, provided that time is not less than twenty-four months.
Federal Law
Land use regulation of telecommunication towers is common. Many local ordinances limit the location of telecommunication towers to certain zoning districts, set height limits,[1] require security fencing and landscaping,[2] encourage collocation of multiple providers on a single tower, encourage use of existing structures (water towers, church steeples, tall buildings) for antenna location,[3] encourage use of camouflaging for towers (use of “stealth” designs), and include provisions for removal of abandoned towers.[4] A 2005 survey by the School of Government indicated that 70 percent of the responding municipalities and 78 percent of the responding counties had adopted regulations on telecommunication towers.[5]
Both state and federal laws restrict local regulation of these facilities. The Telecommunications Act of 1996 allows local regulation of the location of personal wireless services but provides for limited preemption of local ordinances in specified situations.[6] Local regulations based on the environmental health effects of radio frequency emissions are prohibited, and the federal government exclusively deals with radio frequency interference issues.[7] This preemption of regulation of health effects does not, however, preclude a public agency from imposing more stringent restrictions on emissions as part of a site leasing agreement (versus their being imposed as a regulation).[8]
Other limitations imposed by the Telecommunications Act on land use regulation of wireless telecommunication facilities are noted below.
Reasonable Time for Decision
Local governments are required to act on permit applications for wireless telecommunication facilities within a reasonable time.[9] In response to an industry petition for a ruling on precisely what constitutes a “reasonable time,” the Federal Communications Commission (FCC) issued an order setting out “presumptively reasonable” times of 90 days to review a collocation application and 150 days to review an application for a new tower.[10]
Results have been mixed regarding the validity of moratoria on permitting these facilities. In Sprint Spectrum, LP v. City of Medina,[11] the court upheld a six-month moratorium on issuing special use permits for towers adopted shortly after the Telecommunications Act became law, holding that this was a “necessary and bona fide effort to act carefully in a field with rapidly evolving technology.” In Sprint Spectrum, LP v. Jefferson County,[12] the court invalidated a moratorium where the jurisdiction had previously adopted two other ninety-day moratoria and had previously adopted telecommunication tower regulations.
Substantial Evidence
Denials of applications for wireless telecommunication facilities must be supported by substantial evidence in the hearing record.[13]
Examples of evidence found to be sufficient to justify denials include showing substantial departures from mandated setbacks,[14] failure to use mandatory camouflage measures,[15] failure to establish that required standards for a special use permit or variance would be met,[16] photo simulations, test balloons, photographs exhibiting adverse aesthetic impacts,[17] testimony that proposed antennae and support equipment were not well integrated into the design of the building to which they were to be attached,[18] and relevant testimony on impacts on aesthetics and property values.[19]
When the standards for approval address aesthetics and impacts on neighborhood character, there is often disagreement about what type of evidence on these issues is “substantial.” The Fourth Circuit has held that comments by interested citizens on aesthetics and neighborhood character can be considered as substantial evidence.[20] Other courts have been more demanding.[21] Where citizen comments alone are the basis of the decision, the Fourth Circuit has acknowledged that the citizen concerns expressed must be more than mere speculation.[22]
To the extent that a special or conditional use permit is required, compliance with the more demanding North Carolina land use law requires written findings of fact and substantial, competent, and material evidence in the record to support the decision.
AT&T Wireless PCS, Inc. v. Winston-Salem Zoning Board of Adjustment illustrates application of these considerations.[23] The board there denied a special use permit for construction of a 148-foot monopole tower on property owned by the Southeastern Center for Contemporary Art in a low-density, single-family neighborhood. The applicant presented testimony from an engineer on the tower’s safety and from a real estate appraiser that the tower would not adversely affect neighboring property values. Neighborhood residents testified in opposition, largely based on aesthetic impacts. The board found for the applicant on the standards related to health and safety, required specifications, and not injuring property values but denied the permit upon finding the use was not in harmony with the area and the comprehensive plan. The court found that the mailing immediately after the vote of a notice of the decision by the board secretary (a copy of the application with the word “Denied” written in the space indicated for disposition) satisfied the requirement for a written decision.[24] The court held that testimony from neighbors and city staff and letters from state agencies regarding the tower’s visibility, neighborhood impacts, and impacts on a historic structure on site constituted sufficient substantial evidence for a permit denial.
Discrimination among Providers
Local regulations may not unreasonably discriminate among providers of functionally equivalent wireless telecommunication facilities. Regulations may not set a preference for one type of wireless technology over another.[25] They also may not favor publicly owned facilities over privately owned ones[26] or favor an initial provider of services over subsequent competitors.[27]
Granting one permit while denying another is not in itself discrimination among providers, provided there is a legitimate basis for the decisions. It is only unreasonable discrimination that is prohibited.[28] For example, a jurisdiction may permit towers in a commercial zoning district while prohibiting them in a residential district.[29]
Prohibition of Service
Under Section 253 of the Telecommunications Act, local regulations may not prohibit or have the effect of prohibiting the provision of personal wireless services.[30] Prohibition includes not only a general ban on all towers in a jurisdiction,[31] but also policies that “have the necessary result that all possible sites in a given area will be rejected.”[32] The denial of an individual application does not in and of itself establish an “effective ban,” but it can be a factor in establishing that there is such a ban if there are significant gaps
in service and no reasonable alternatives for filling those gaps.[33] The carrier has the burden of establishing an effective prohibition.[34]
Significant gaps in service that cannot be closed without new facilities give rise to an effective ban claim.[35] Federal courts are split on the question of whether a gap should be analyzed from the perspective of a consumer or a particular provider.[36] The Federal Communications Commission (FCC) responded with a ruling that a gap within a particular provider’s service is a “significant gap” under the law.[37] When a provider has made good faith efforts to fill a significant gap, including undertaking assessments of technology and reasonable negotiations with owners of preferred alternative sites, denial of special use permits and variances for the only feasible site to fill the gap constitutes an impermissible effective ban.[38] A local government may require that service gaps be closed in the least intrusive means available.[39]
Written Denials
Denials of applications for wireless telecommunication facilities must be in writing. The Fourth Circuit has upheld use of a letter of denial, holding that the Telecommunications Act does not mandate formal findings of fact analogous to those required in formal adjudications under the federal Administrative Procedure Act.[40] Other courts have stressed that while formal findings are not required, a letter of denial must provide a sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate whether the evidence in the record supporting those reasons is adequate.[41]
Also see these Coates Canons blog posts:
David Owens, Can We Top Off our Tower? (March 2013)
Rich Ducker, Wireless Telecommunications Facilities: Can North Carolina Communities Avoid Shot Clock Violations? (Jan. 2010)
[1] See, e.g., USCOC of Va. RSA v. Montgomery Cnty. Bd. of Supervisors, 343 F.3d 262 (4th Cir. 2003) (upholding requirement that proposed 240-foot-tall telecommunication tower height be reduced to 195 feet to conform to zoning requirements).
[2] See, e.g., Davis v. SBA Towers II, LLC, 2009 ME 82, 979 A.2d 86 (interpretation of landscaping requirement).
[3] See, e.g., U.S. Cellular Tel. of Greater Tulsa, LLC v. City of Broken Arrow, 340 F.3d 1122 (10th Cir. 2003) (upholding denial based on evidence to demonstrate infeasibility of use of existing towers).
[4] At the state level, G.S. 146-29.2 allows the state to lease state-owned land for cell tower use but requires the towers to be designed and constructed so as to allow collocation and minimize the visual impact of the towers on surrounding properties.
[5] David W. Owens & Nathan Branscome, An Inventory of Local Government Land Use Ordinances in North Carolina 9 (School of Government, Special Series No. 21, 2006).
[6] 47 U.S.C. § 332(c)(7)(B) (2010). As one court noted, the law “is a deliberate compromise between two competing aims -- to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers.” Town of Amherst v. Omnipoint Commc’ns Enters., Inc. 173 F.3d 9, 13 (1st Cir. 1999). Since the Telecommunications Act contains specific enforcement provisions, actions under 42 U.S.C. § 1983 to remedy alleged violations of the Act are not permitted. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005).
[7] 47 U.S.C. § 332(c)(7)(B)(iv) (2010); Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311, 323–24 (2d Cir. 2000) (preemption on radio frequency interference issue); T-Mobile Ne. LLC v. Town of Ramapo, 701 F. Supp. 2d 446, 460 (S.D.N.Y. 2009). See also Merrick Gables Ass’n, Inc. v. Town of Hempstead, 691 F. Supp. 2d 355, 364 (E.D.N.Y. 2010) (installation not a dangerous condition under state nuisance law); AT&T Wireless Serv. of Cal. LLC v. City of Carlsbad, 308 F. Supp. 2d 1148 (S.D. Cal., 2003) (concern of emissions apparent real basis for denial).
[8] Sprint Spectrum, LP v. Mills, 283 F.3d 404 (2d Cir. 2002) (upholding more stringent standards imposed by school district in lease for site on top of a high school); Omnipoint Commc’n Enters., LP v. Twp. of Nether Providence, 232 F. Supp. 2d 430 (E.D. Pa. 2002) (town lease provisions not preempted).
[9] See Ill. RSA No. 3 v. Cnty. of Peoria, 963 F. Supp. 732, 746 (C.D. Ill. 1997) (holding a six-month period for making a decision is not per se unreasonable).
[10] In re Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review & to Preempt under Section 253 State & Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, 24 FCC Rcd 13994 (2009). In August 2010 the FCC denied a petition to reconsider these time periods and the 30-day tolling of them to determine an application’s completeness.
[11] 924 F. Supp. 1036, 1040 (W.D. Wash. 1996).
[12] 968 F. Supp. 1457 (N.D. Ala. 1997). See also Masterpage Commc’ns, Inc. v. Town of Olive, 418 F. Supp. 2d 66 (N.D.N.Y. 2005) (two-year moratorium and delays in scheduling hearing and vote on application constitute unreasonable delay).
[13] The “substantial evidence” standard is the same as the standard used in the federal Administrative Procedures Act and elsewhere in the law—less than a preponderance but more than a scintilla of evidence. It requires sufficient relevant evidence as a reasonable mind might accept to support a conclusion. Universal Camera v. NLRB, 340 U.S. 474, 477 (1951). See, e.g., T-Mobile Cent., LLC v. Unified Gov’t of Wyandotte Cnty., 546 F.3d 1299 (10th Cir. 2008) (substantial evidence must be in record for relevant standards in ordinance); Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 762 (11th Cir.2005); PrimeCo Personal Commc’ns, LP v. City of Mequon, 352 F.3d 1147 (7th Cir. 2003) (finding insufficient evidence in record to justify permit denial); MetroPCS N.Y., LLC v. City of Mount Vernon, 739 F. Supp. 2d 409 (S.D.N.Y. 2010) (evidence in record did not support stated ground for denial); Cellco P’ship v. Franklin Cnty., 553 F. Supp. 2d 838 (E.D. Ky. 2008) (neighbor testimony regarding aesthetic impacts not substantial where other higher towers already in same area); Cal. RSA No. 4 v. Madera Cnty., 332 F. Supp. 2d 1291 (E.D. Cal. 2003) (inadequate evidence in record to support denial based on plan inconsistency, aesthetic or property value, public safety, or noise impacts). See also AT&T Wireless PCS, Inc. v. Town of Porter, 203 F. Supp. 2d 985 (N.D. Ind. 2002) (state law can impose burden of production on applicant to establish that adverse impacts will not occur).
[14] U.S. Cellular v. City of Wichita Falls, 364 F.3d 250 (5th Cir. 2004) (finding that significant departures from setback were necessary is substantial evidence); Sprint Spectrum L.P. v. Bd. of Zoning Appeals, 244 F. Supp. 2d 108 (E.D.N.Y. 2003) (noncompliance with mandated setback from property line sufficient for denial).
[15] USCOC of N.H. RSA #2, Inc. v. City of Franklin, 413 F. Supp. 2d 21, 32–33 (D.N.H. 2006) (site visit and plans provided sufficient evidence of visual impacts to defeat motion for summary judgment); Omnipoint Commc’ns Enters., L.P. v. Warrington Twp., 63 F. Supp. 2d 658 (E.D. Pa. 1999).
[16] Nextel Commc’ns of the Mid-Atl., Inc. v. Town of Brookline, 520 F. Supp. 2d 238 (D. Mass. 2007).
[17] Wireless Towers, LLC v. City of Jacksonville, 712 F. Supp. 2d 1294 (M.D. Fla. 2010); Cellco P’ship v. Town of Grafton, 336 F. Supp. 2d 71 (D. Mass. 2004) (testimony and balloon test sufficient to establish adverse aesthetic impacts); Sprint Spectrum, 244 F. Supp. 2d at 114–15 (specific and informed testimony from legislators, residents, members of civic and historical organizations, and a real estate appraiser adequate to establish adverse aesthetic impacts on adjacent historic district); Airtouch Cellular v. City of El Cajon, 83 F. Supp. 2d 1158 (S.D. Cal. 2000) (photographs and neighbor testimony adequate to establish adverse aesthetic impact).
[18] Nextel Commc’ns of Mid-Atl., Inc. v. City of Cambridge, 246 F. Supp. 2d 118 (D. Mass. 2003).
[19] Am. Tower LP v. City of Huntsville, 295 F.3d 1203 (11th Cir. 2002) (upholding denial based on resident testimony regarding negative aesthetic impacts and realtor testimony regarding impact on sales). T-Mobile S., LLC v. City of Jacksonville, 564 F. Supp. 2d 1337 (M.D. Fla. 2008) (upholding denial based on testimony regarding proximity of tower to neighbors and planned removal of screening trees).
[20] AT&T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 430–31 (4th Cir. 1998). See also 360 Degrees Commc’ns Co. of Charlottesville v. Bd. of Supervisors, 211 F.3d 79, 85 (4th Cir. 2000) (virtually unanimous citizen opposition and plan inconsistency constitute substantial evidence); Sprint Spectrum, LP v. Willoth, 176 F.3d 1210 (11th Cir. 2002) (record adequate to support denial of site plan approval for three cell towers after town had concluded a single tower would be adequate).
[21] T-Mobile Ne. LLC v. Inc. Vill. of E. Hills, 779 F. Supp. 2d 256 (E.D.N.Y. 2011) (generalized aesthetic objections of neighbors and concern about property value impacts insufficient to contradict expert testimony of applicant); Cellco P’ship v. Town Plan. & Zoning Comm’n, 3 F. Supp. 2d 178 (D. Conn. 1998) (inadequate evidence in hearing record to support denial of special use permit to reconstruct a church steeple and include antennae within); AT&T Wireless Serv. of Fla., Inc. v. Orange Cnty., 994 F. Supp. 1422 (M.D. Fla. 1997) (adequate evidence in record to support denial of permit for construction of church steeple with antennae within); Century Cellunet of S. Mich., Inc., v. City of Ferrysburg, 993 F. Supp. 1072 (W.D. Mich. 1997) (adequate evidence in record to deny special use permit for tower); Ill. RSA No. 3 v. Cnty. of Peoria, 963 F. Supp. 732, 744–45 (C.D. Ill. 1997).
[22] Petersburg Cellular P’ship v. Bd. of Supervisors, 205 F.3d 688, 695 (4th Cir. 2000). See also Ogden Fire Co. No. 1 v. Upper Chichester Twp., 504 F.3d 370, 389–90 (3d Cir. 2007) (generalized testimony about aesthetics and property value impacts inadequate); Omnipoint Commc’ns, Inc. v. Vill. of Tarrytown Planning Bd., 302 F. Supp. 2d 205 (S.D.N.Y. 2004); Preferred Sites, LLC v. Troup Cnty., 296 F.3d 1210 (11th Cir. 2002) (citizen petitions with generalized objections inadequate basis for denial); Telespectrum, Inc. v. Pub. Serv. Comm’n, 227 F.3d 414, 424 (6th Cir. 2000); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490 (2d Cir. 1999) (invalidating denial based on generalized expressions of concern); BellSouth Mobility, Inc. v. Gwinnett Cnty., 944 F. Supp. 923, 928 (N.D. Ga. 1996) (generalized concerns do not constitute substantial evidence to justify a permit denial).
[23] 172 F.3d 307 (4th Cir. 1999).
[24] As is common practice with special and conditional use permits, the formal findings and a written decision relating the evidence were approved by the board several months later as part of the approval of minutes for the hearing. The court rejected the district court’s finding that such subsequently approved findings were pretextual or in any way improper. AT&T Wireless, 172 F.3d at 313.
[25] N.Y. SMSA Ltd. P’ship v. Town of Clarkston, 612 F.3d 97 (2d Cir. 2010). The town had established a regulatory preference for distributed antenna systems (DAS) in order to promote use of more numerous but lower and less powerful towers.
[26] Issuing permits to towers on sites leased by the town while subjecting another site to more rigorous review and denial can constitute unreasonable discrimination. Omnipoint Commc’ns, Inc. v. Common Council, 202 F. Supp. 2d 210 (S.D.N.Y. 2002). However, a preference for a publicly owned site is not in and of itself unlawful. USCOC of Greater Mo., L.L.C. v. Vill. of Marlborough, 618 F. Supp. 2d 1055, 1064–65 (E.D. Mo. 2009).
[27]. A denial based on a determination that one form of wireless service is already available in an area (as opposed to safety, traffic, or aesthetic concerns) improperly discriminates among providers. Sprint Spectrum, LP v. Town of Easton, 982 F. Supp. 47 (1997). See also Nextel Partners, Inc. v. Town of Amherst, 251 F. Supp. 2d 1187 (W.D.N.Y. 2003) (denial of application for antennae placement on same tower previously approved for other carrier’s antennae is unreasonable discrimination where there was no plausible reason for distinction).
[28] Omnipoint Commc’n Enters., L.P. v. Zoning Hearing Bd., 331 F.3d 386, 395 (3d Cir. 2003); Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 266 (3d Cir. 2002); APT Pittsburgh Ltd. P’ship v. Penn Twp., 196 F.3d 469, 480 (3d Cir. 1999).
[29] Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 639 (2d Cir. 1999). Denial of an application for collocation of antennae on an existing tower when there is no substantial evidence in the record of any significant visual or aesthetic difference in the proposed antennae and permitted antennae violates this “legitimate basis” requirement. Nextel W. Corp. v. Town of Edgewood, 479 F. Supp. 2d 1219 (D.N.M. 2006).
[30] Omnipoint Commc’ns, 331 F.3d 386 (upholding denial of permit for tower where other providers already present and no gaps in service established). To prevail under Section 253 of the Telecommunications Act, a plaintiff must show actual or effective prohibition, not merely potential prohibition. Sprint Telephony PCS, L.P. v. Cnty. of San Diego, 490 F.3d 700 (9th Cir. 2007). Also see 47 U.S.C. § 253 (2010).
[31] AT&T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 428 (4th Cir. 1998).
[32] Va. Metronet, Inc. v. Bd. of Supervisors of James City Cnty., 984 F. Supp. 966, 971 (E.D. Va. 1998).
[33] VoiceStream Minneapolis, Inc. v. St. Croix Cnty., 342 F.3d 818, 833–35 (7th Cir. 2003); Second Generation Props., L.P. v. Town of Pelham, 313 F.3d 620 (1st Cir. 2002); Nat’l Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14 (1st Cir. 2002); 360 Degrees Commc’ns Co. of Charlottesville v. Bd. of Supervisors, 211 F.3d 79, 85 (4th Cir. 2000); APT Pittsburg Ltd. P’ship v. Penn Twp., 196 F.3d 469, 478–81 (3d Cir. 1999); Town of Amherst v. Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 14 (1st Cir. 1999); Cellular Tel. Co. v. Zoning Bd. of Adjustment, 197 F.3d 64, 70 (3d Cir. 1999); Nextel W. Corp. v. Town of Edgewood, 479 F. Supp. 2d 1219 (D.N.M. 2006); Omnipoint Holdings, Inc. v. Town of Westford, 206 F. Supp. 2d 166 (D. Mass. 2002).
[34] T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 993–95 (9th Cir. 2009); USCOC of Greater Iowa, Inc. v. Zoning Bd. of Adjustment, 465 F.3d 817, 825 (8th Cir.2006).
[35] Denial of a tower for improvement of indoor service where alternatives existed for meeting the need was held not to be an effective ban. Voice Stream PCS I, LLC v. City of Hillsboro, 301 F. Supp. 2d 1251, 1260–62 (D. Or. 2004).
[36] Compare Omnipoint Commc’ns Enters., L.P. v. Zoning Hearing Bd., 331 F.3d 386 (3d Cir. 2003) (consider gaps for remote users rather than for particular providers) with Metro PCS, Inc. v. City & Cnty. of S.F., 400 F.3d 715 (9th Cir. 2005) (gap exists if particular provider is unable to fill its own service coverage). See also Omnipoint Commc’ns, Inc. v. City of White Plains, 430 F.3d 529, 536 n.3 (2d Cir.2005) (question unsettled).
[37] In re Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review & to Preempt under Section 253 State & Local Ordinances that Classify All Wireless Siting Proposals as Requiring a Variance, 24 FCC Rcd 13994, 14016 (2009).
[38] Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38 (1st Cir. 2009); T-Mobile Cent. LLC v. City of Fraser, 675 F. Supp. 2d 721 (E.D. Mich. 2009); Indus. Commc’ns & Elecs., Inc. v. O’Rourke, 582 F. Supp. 2d 103 (D. Mass. 2008) (alternative sites must be available and technically feasible to forestall effective ban claim); USCOC of N.H. RSA No. 2, Inc. v. Town of Bow, 493 F. Supp. 2d 199 (D.N.H. 2007) (no effective ban based on denial of variance for tower proposed to be located on scenic hill where multiple alternative sites exist); Cingular Wireless, LLC v. Thurston Cnty., 425 F. Supp. 2d 1193 (W.D. Wash. 2006).
[39] This requires the applicant to show a good faith effort to identify and evaluate less intrusive alternatives, including consideration of less sensitive sites, alternative designs, and technical alternatives. MetroPCS, Inc. v. City and Cnty. of S.F., 400 F.3d 715, 733–35 (2005); Nextel W. Corp. v. Unity Twp., 282 F.3d 257, 265–66 (2d Cir. 2002); APT Pittsburgh Ltd. P’ship v. Penn Twp., 196 F.3d 469, 480 (3d Cir.1999); Sprint Spectrum, LP v. Willoth, 176 F.3d 630 (2d Cir. 1999); VoiceStream Minneapolis, Inc. v. St. Croix Cnty., 212 F. Supp. 2d 914 (W.D. Wis. 2002).
[40] AT&T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 429–30 (4th Cir. 1998).
[41] Helcher v. Dearborn Cnty., 595 F.3d 710, 717–23 (7th Cir. 2010) (letter of decision and detailed minutes of meeting sufficient explanation of reasons for denial); Sprint Spectrum, L.P. v. Platte Cnty., 578 F.3d 727, 732 (8th. Cir. 2009); USCOC of Greater Mo. v. City of Ferguson, 583 F.3d 1035 (8th Cir. 2009) (central concern of requirement is to enable effective judicial review); Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009) (maps, mockups, and citizen testimony sufficient to establish towers would have adverse aesthetic impact); MetroPCS, Inc. v. City & Cnty. of S.F., 400 F.3d 715, 721–23 (9th Cir. 2005) (holding five-page written decision to be adequate); New Par v. City of Saginaw, 301 F.3d 390 (6th Cir. 2002) (written denial must explain reasons for denial with sufficient detail for a reviewing court); Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001); Omnipoint Commc’ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539 (S.D.N.Y. 2009) (denial of variance for collocation of antennae must provide explanation of reasons for action under both state and federal law) Other courts have been more demanding, seeking specific findings linked to supporting evidence. Omnipoint Commc’ns, Inc. v. Planning & Zoning Comm’n of Wallingford, 83 F. Supp. 2d 306 (D. Conn. 2000); Ill. RSA No. 3 v. County of Peoria, 963 F. Supp. 732, 746 (C.D. Ill. 1997); W. PCS II Corp. v. Extraterritorial Zoning Authority of the City & Cnty. of Santa Fe, 957 F. Supp. 1230 (D.N.M. 1997) (denial of permit to locate antenna on water tower unsupported by any written findings); Smart SMR of N.Y., Inc. v. Zoning Comm’n, 995 F. Supp. 52 (D. Conn. 1998) (invalidating denial of approval to place antenna on existing windmill). In AT&T Wireless Services of Florida, Inc. v. Orange County, 982 F. Supp. 856 (1997), the court remanded the decision for findings, holding that a written denial without findings of fact, citations to evidence, or any explanation as to why the denial was made is inadequate. Also, in Virginia Metronet, Inc. v. Board of Supervisors of James City County, 984 F. Supp. 966, 972–73 (E.D. Va. 1998), the court held that a letter sent by staff after the meeting on the matter would not serve as the required findings, noting that the decision must come from the decision-making body).
