United States District Court, E.D. Kentucky, Central Division, Lexington
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,
GEORGETOWN-SCOTT COUNTY PLANNING COMMISSION, Defendant.
MEMORANDUM OPINION AND ORDER
K. CALDWELL CHIEF JUDGE, UNITED STATES DISTRICT COURT EASTERN
DISTRICT OF KENTUCKY
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
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.
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.
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.
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 §
case, the Court is called upon to enforce the balance
Congress sought to achieve.
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.
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).
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).
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).
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.
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).
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).
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).
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).
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.
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).
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
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).
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).
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
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).
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.
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 ...