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PI Telecom Infrastructure V, LLC v. Georgetown-Scott County Planning Commission

United States District Court, E.D. Kentucky, Central Division, Lexington

February 10, 2017

PI TELECOM INFRASTRUCTURE V, LLC, a Delaware Limited Liability Company, CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS, a Delaware General Partnership, ALBERT DAVID BURKE, an individual, Plaintiffs,
v.
GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN K. CALDWELL CHIEF JUDGE, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY

         Plaintiffs, PI Telecom Infrastructure V, LLC, Cellco Partnership d/b/a Verizon Wireless, and Albert Burke, (collectively as the Applicants), challenge the Defendant's, the Georgetown-Scott County Planning Commission (the “Commission”), denial of their application to construct a cell phone tower on a 36.5 acre tract of land in Scott County, Kentucky, as violative of the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. (the “TCA”) and Kentucky law. Applicants seek an order from this Court directing the Commission to grant their application for the proposed facility.

         This matter is now before the Court on the parties' cross-motions for summary judgment. For the reasons discussed herein, the Applicants' motion for summary judgment is granted and the Commission's motion is denied.

         I. BACKGROUND

         A. Telecommunications Act

         Congress enacted the TCA to promote competition between service providers that would inspire the creation of higher quality telecommunications services and to encourage the rapid deployment of new telecommunications technologies. See City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005). In so doing, “Congress recognized zoning decisions by state and local governments had created an inconsistent array of requirements, which inhibited both the deployment of personal communications services and the rebuilding of a digital technology-based cellular telecommunications network.” Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1214 (11th Cir. 2002) (citing H.R.Rep. No. 104-204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61). “Congress also acknowledged ‘there are legitimate State and local concerns involved in regulating the siting of such facilities, '” Preferred Sites, 296 F.3d at 1214 (quoting H.R. Rep. No. 104-204, at 94-95 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61), and drafted the Act so as to “‘preserve[ ] the authority of State and local governments over zoning and land use matters except in . . . limited circumstances.'” Id. (quoting H.R. Rep. No. 104-458, at 207-08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222).

         Therefore, the TCA was designed to strike a proper balance between two competing and often clashing policy concerns: national need for the growth of wireless telephone service and local authority to control the placement of those needed cell phone towers. See H.R. Conf. Rep. No. 104-458, at 207-09 (1996); see also Omnipoint Commc'ns, Inc. v. City of White Plains, 430 F.3d 529, 531 (2d Cir. 2005). On one side of the balance, the TCA generally “preserves traditional authority of state and local governments to regulate the location, construction, and modifications” of wireless communications facilities such as cell phone towers. T-Mobile South, LLC v. City of Roswell, Ga., 135 S.Ct. 808, 814 (2015) (internal quotations omitted). On the other side, the TCA imposes specific substantive and procedural limitations on that authority by reducing the impediments that local governments can impose to defeat or delay the installation of wireless communications facilities and by protecting against “irrational or substanceless decisions by local authorities.” Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001); T-Mobile Cent. LLC v. Unified Gov't of Wyandotte Cnty., Kansas City, Kan., 546 F.3d 1299, 1306 (10th Cir. 2008).

         As a part of these limitations, the TCA provides that local cell tower regulation “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” § 332(c)(7)(B)(i)(II). To enforce the substantive limitations on localities, the TCA also mandates that “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” § 332(c)(7)(B)(iii). In addition, the TCA provides a mechanism for enforcement if any party is, in their view, adversely affected by a locality's decision. See § 332(c)(7)(B)(v).

         In this case, the Court is called upon to enforce the balance Congress sought to achieve.

         B. Facts[1]

         PI Telecom constructs, owns, and manages wireless telecommunications facilities that are used by national and regional wireless carriers to provide personal wireless service to customers. (Compl. ¶ 1). Verizon is a national wireless carrier licensed by the Federal Communications Commission that provides wireless communication services within its licensed areas, including Scott County, Kentucky. (Compl. ¶ 2). PI Telecom and Verizon entered into a lease with Mr. Burke, who owns a 36.5-acre tract of land, permitting PI Telecom and Verizon to construct a 195-foot monopole wireless communications facility on the Burke property.

         Verizon sought to construct the wireless communication facility after radio frequency engineers analyzed Verizon's existing network and coverage needs and identified a “significant gap” in Verizon's coverage in the area east of I-75 and south of Paris Road (U.S. 460) in Scott County. Verizon then enlisted PI Telecom to develop a wireless communications facility within the “significant gap” discovered by Verizon engineers. PI Telecom considered several sites, but identified Mr. Burke's property as the parcel that would provide the “optimum coverage for [Verizon's] wireless service” and would “comply with local zoning requirements related to set backs.” (Binder Submitted By Applicant for Planning Commission - Tab D - Alternative Site Analysis, p. 4).

         On October 1, 2015, Applicants submitted their Uniform Application to the Commission for consideration. In the Uniform Application, Applicants proposed to construct “a 255' self-support wireless communications tower with a 5' lightening arrestor for a total structure height of 260'.” (Planning Commission Folder - A-1). The Uniform Application included: (1) FCC License Documentation; (2) a site development plan; (3) a site survey; (4) a vertical tower profile; (5) a map of adjoining landowners; (6) directions to the site; (7) tower and foundation designs; (8) a copy of the lease agreement with Mr. Burke; (9) a list of residents notified about the proposed tower; (10) notice to adjoining landowners and the Commission; (11) a radio frequency engineer report; (12) a geotechnical study report; and (13) a list of FCC registered antenna structures within a three-mile radius of the proposed facility. (Planning Commission Folder - A-1).

         In the weeks after the Uniform Application was submitted, the Commission raised several issues with the application, including the height of the proposed structure and compliance with the Commission's resident notification policy. (Planning Commission Folder - A-5). Specifically, a Planning Department email dated October 16, 2015, commented that the 260' tower would require a variance from the Scott County zoning ordinance. (Planning Commission Folder - A-5).

         On November 30, 2015, Applicants and the Commission entered into an agreement to extend the time the Commission had to make a final decision on the Uniform Application. Under KRS § 100.987(4)(c), a planning commission must:

Advise the applicant in writing of its final decision within sixty (60) days commencing from the date that the uniform application is submitted to the planning commission or within a date certain specified in a written agreement between the local planning commission and the applicant. If the planning commission fails to issue a final decision within sixty (60) days and if there is no written agreement between the local planning commission and the applicant to a specific date for the planning commission to issue a decision, the uniform application shall be deemed approved.

         As a result of the agreement, both Applicants and the Commission agreed to postpone the final-decision date to January 15, 2016. (Planning Commission Folder - A-4).

         On December 22, 2015, almost a month after the agreement to extend the time to make a final decision, Applicants submitted an amended Uniform Application. The amended application included the following changes:

1. Revised zoning drawings and surveys changing the tower to a 195' monopole tower with a 4' lightning arrestor for a total height of 199'.
2. Revised tower and foundation drawings of the proposed monopole tower structure.
3. Revised Geotechnical Report.
4. A report from [a] Verizon engineer describing the coverage gap that the 195' monopole tower could remedy.

(Planning Commission Folder - A-1; DE 18-1, p. 6 n. 5).

         The Commission's Planning Staff prepared and submitted a report on January 14, 2016, after reviewing the Uniform Application and the December 22nd addendum. After detailing the various aspects of the amended Uniform Application, the Planning Staff concluded that “[t]he proposal appears to meet the conditions of the Zoning Ordinance and the Subdivision & Development Regulations.” (Planning Commission Folder - A-2, Staff Report, p. 4). In addition, the Staff Report addressed specific concerns of local property owners regarding the proposed tower. Regarding concerns about the tower's environmental impact, the Staff Report indicated that the proposed tower was located “outside of all Environmentally Sensitive Areas as described by ordinance and the Comprehensive Plan” and that the tower was “not located in the flood plain . . . as defined by the Comprehensive Plan.” (Planning Commission Folder - A-2, Staff Report, p. 4). Concerning whether the Applicants made sufficient effort to co-locate, the Planning Staff noted that “[t]he Applicant provided documentation describing the site selection process. There are no existing towers or sufficiently tall structures near enough for the Applicant to co-locate on that will allow them to address their gap in coverage.” (Planning Commission Folder - A-2, Staff Report, p. 4).

         On the same day, the Applicants' Uniform Application went before the Commission for public hearing. Mr. Summers, a member of the Planning Staff, began the proceedings by reviewing the Commission's Planning Staff Report. Mr. Summers summarized the Staff Report for the Commission and reaffirmed the Staff Report's finding that the Uniform Application complied with the applicable ordinances and comprehensive plan. (Planning Commission Folder - A-2, Minutes, p. 5). Mr. Summers also addressed the numerous letters and communications from members of the public concerning the tower and dismissed many of the raised concerns as having been addressed in the Staff Report. (Planning Commission Folder - A-2, Minutes, p. 5).

         Attorney David Pike then began his presentation for Applicants. Mr. Pike reviewed the Uniform Application with the Commission and specifically opined to the Commission that the proposed tower in no way violated the comprehensive plan. (Planning Commission Folder - A-2, Minutes, p. 6; DVD of Public Hearing 1:41:00 to 2:35:00). As a part of his presentation, Mr. Pike submitted a planning report, a property value report, and a tower engineering report. He also made the experts who created those reports available for cross-examination. Mr. Pike then asked the Commission to stipulate that each expert adopted their respective reports as their testimony. (DVD of Public Hearing 2:20:00 to 2:23:00). Mr. Pike also tendered the Staff Report and Applicants' Hearing Binder into the record. (DVD of Public Hearing 2:23:00 to 2:24:00). No objections were heard.

         After making his presentation, Mr. Pike addressed several questions from the Commission concerning the height of the proposed tower. Mr. Pike called Verizon's engineer, Mr. Arbabshirani, to answer specific concerns about the coverage area of the proposed tower and its possible overlap with any neighboring towers. (Planning Commission Folder - A-2, Minutes, p. 7; DVD of Public Hearing 2:27:12 to 2:29: 34).

         Before opening the meeting to the public, counsel for the Commission, Mr. Perkins, provided his initial thoughts about the legal arguments Mr. Pike made in his presentation. Mr. Perkins opined that Mr. Pike was “very accurate” in his telling of the applicable law and how it related to the Uniform Application. (DVD of Public Hearing 2:49:10 to 2:49:40).

         After Mr. Pike's presentation, the Chairman of the Commission, Mr. Jones, opened the meeting to the public. Several area residents spoke in opposition to the application. (Planning Commission Folder - A-2, Minutes pp. 7-13). Mr. Woodson spoke to his concern that the cell tower site would be located on particularly prime farmland, a location with immense value to the local residents. (Minutes, p. 7, DVD 2:52:00 to 2:53:30). Next, Ms. Rowles and Mr. Irwin spoke to the collective concern of local residents who felt that the tower's construction, while potentially lucrative for Mr. Burke, would come at the expense of local Scott County residents. (Planning Commission Folder - A-2, Minutes pp. 8-9).

         Mr. Tillotson spoke next. Mr. Tillotson asserted several reasons for why the Commission should reject the Uniform Application. Referring to Zoning Ordinance 2.55(F)(19), Mr. Tillotson noted that Applicants failed to submit co-location documentation. He argued that Applicants were unjustified in failing to provide the required co-location documentation because the application itself relied on erroneous information. (DVD of Public Hearing 03:25:23 to 03:33:38). He also argued that the Uniform Application contravened the comprehensive plan because construction of the communications tower would disregard the plan's goal to protect sensitive and historic areas in Scott County and, specifically, would jeopardize proposed future plans to preserve the sensitive area where the tower would be located. (DVD of Public Hearing 03:38:00).

         After Mr. Tillotson, several other citizens stood to object to the Uniform Application, citing environmental concerns about the construction of the tower and other general concerns about the aesthetic impact and health hazards that a cell phone tower would cause. (Planning Commission Folder - A-2, Minutes pp. 11-13).

         Mr. Pike responded to the public comments by noting that many of the concerns addressed by the residents, while sincere, simply have no relevance in the applicable law and as to whether the Uniform Application should be approved. (Planning Commission Folder - A-2, Minutes, p. 13). He also emphasized that the Uniform Application is supported by the Zoning Ordinances and that Applicants complied with all the requirements in submitting the application. (Planning Commission Folder - A-2, Minutes p. 13).

         Once Mr. Pike concluded his response, more public comments were heard. The dialogue largely mirrored that of the first round of public comments. Two new objections were raised, however. Mr. Tillotson again spoke to express his opinion that both the comprehensive plan and Applicants' omission of the required co-location documentation provided the Commission with a sufficient basis on which to deny the Uniform Application. He also stated that Applicants submitted reports after the corrections deadline. (Planning Commission Folder - A-2, Minutes pp. 14-15). Mr. Summers responded by telling the Commission that it is not unusual for applicants to submit new supporting documentation late. (Planning Commission Folder - A-2, Minutes p. 15). After Mr. Perkins noted that the Commission and Applicants agreed under Kentucky law to render a decision by January 15, Mr. Offutt, another resident, raised his concern about the Commission's ability to consider the voluminous application in the short time frame prior to the January 15 deadline established by Kentucky law. (Planning Commission Folder - A-2, Minutes p. 15).

         After several more minutes of back and forth between members of the public, the Commission, and Mr. Pike, Chairman Jones closed the public hearing. The Commission then discussed the matter among themselves. A few minutes later, Commissioner Sulski made a motion to deny the Uniform Application based on “the wrong location on the map, ” “lack of proof of collocating, ” and “sloping of a bank 70-80' to Elkhorn Creek from the site.” (Planning Commission Folder - A-2, Minutes p. 17; DVD of Public Hearing 6:01:10). Commissioner Sulski made the motion “to deny and defer to a higher court.” (DVD of Public Hearing 06:01:37). Commissioner Sulski's motion was seconded by Commissioner Shirley. (Planning ...


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