Opinion
CIVIL ACTION No. 01-0520 SECTION: I/5
January 27, 2003
ORDER ANZD REASONS
This matter is before the Court on cross motions for summary judgment. Record Documents Nos. 10 and 13. The lawsuit arises out of Plaquemines Parish's ("the Parish") denial of Sprint Spectrum's ("Sprint") application for a zoning permit and related approvals for construction of a 256.5 foot tall telecommunications tower and equipment compound on a tract of land in the Jesuit Bend area of Plaquemines Parish. Sprint alleges that the Plaquemies Parish Council's ("Council") denial of its conditional use application violated the Telecommunications Act of 1996, 47 U.S.C. § 151, et. seq., ("the TCA"), the Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"), and the Constitution of the State of Louisiana. Sprint prays for injunctive relief, which would order the Parish to issue all necessary permits for the construction and operation of the antenna tower, actual damages and attorney fees. The Parish prays for dismissal of Sprint's lawsuit. The cross motions for summary judgment were submitted on the briefs at an earlier date. For the reasons that follow, plaintiff's motion is DENIED and defendant's motion is GRANTED.
Sprint Spectrum's motion is actually entitled "Motion for Partial Summary Judgement". it requests judgment granting Sprint's conditional use application for construction of a 270 foot telecommunication tower and related equipment located at 11846 Highway 23 (Jesuit Bend), Belle Chasse, in Plaquemines Parish. Rec. Doc. No. 10. A judgment in favor of Sprint on its motion would require a decision that Plaquemines parish's denial of that application violated 47 U.S.C. § 332(c)(7)(3)(iii) (Federal Telecommunications Act of 1996, hereinafter ("TCA") as alleged in Sprint's Complaint at ¶ XXXVII (First Cause of Action) Sprint's Complaint further alleges that the violation of the federal statute also violates Sprint's Civil rights pursuant; to 42 U.S.C. § 1983 (Second Cause of Action at ¶ XLIII), and Article I of the Louisiana Constitution (Third Cause of Action at ¶ XLVII) See Complaint, Rec. Doc. No. 1. Because Sprint's second and third causes of action are derivative of its first claim that the Parish's action violated the TCA, the Court considers Sprint's motion as a motion for summary judgment as to all causes of action alleged in the Complaint.
BACKGROUND
The following is a summary of the long and contentious history of Sprint's conditional use application, taken from the 775 page record, Record Document No. 11, "Joint Exhibits of All Parties" ("Exhibit"), and the parties' multiple memoranda filed in the record.
Sprint Spectrum L.P., a wireless telephone and communications provider, is in the process of building a nationwide wireless network using PCS technology. Rec. Doc. No. 1, Complaint at ¶ VIII. In 1995, Sprint was the highest bidder at a Federal Communications Commission ("FCC") auction for a PCS wireless broadcast license in the New Orleans major trading area which includes Plaquemines Parish. Id. at ¶ IX. The FCC license obligates Sprint to create a network of cell sites, each consisting of antennas mounted on transmission towers, buildings or other structures, connected to a small equipment cabinet located near the tower base. Id. at ¶ X. In any given area, a continuous interconnected series of cell sites is necessary to maintain effective, continuous and uninterrupted service to subscribers. The effective transmission and reception range of the cell sites must overlap in a grid pattern approximating a honeycomb. Id. at ¶ XI.
PCS technology is a "new generation" of wireless service that uses digital transmission to improve wireless communications which, compared to the older analog technology, provides a clearer connection with fewer dropped calls. it also better accommodates the requirements of computer and telecopier transmissions.
On September 9, 1999, Sprint first applied to the Plaquemines Parish Department of Permits (the "Permit Department") for conditional use permits to construct a telecommunications tower installation consisting of a 256.5' self support lattice tower and related equipment building. The footprint of the installation site was a 100' by 100' square of ground. Exhibit 2. The first permit request was for a proposed installation on a site referred to as the "Johnson Site", fronting on the east side of Highway 23 in Jesuit Bend. Id. The next two conditional use permit requests were for proposed tower locations on the Ranatza site, located on the west side of the highway just across from the Johnson site. Exhibits 11A and B, 18 and 19. The Ranatza site consists of approximately 285 acres of land fronting 600' on Highway 23, at a depth of about 6872' on the south side, about 7380' on the north side, with a rear width of about 2971'. Exhibit 19 at p. 305. Both properties are located in an area classified as A-2 Rural and Agricultural by the Plaquemines Parish Comprehensive Zoning Ordinance ("Zoning Ordinance"). Exhibit 2 at p. 10; Exhibit 4A at pp. 28-29.
Sprint's application to the Parish for a conditional use permit on the Johnson site identified only one mobile home on the site which belonged to the property owner. Exhibit 2 at pp. 10-11. Its two succeeding applications for the Ranatza site did not identify any residential structures in the area other than that of the property owner of the proposed site. According to Sprint, the surrounding land is in agricultural production, and it is not a residential area. Id. Area residents and property owners disagree.
The record contains references to a trailer park where approximately thirty persons permanently reside adjacent to the Johnson site (Exhibit 4A at p. 69; Exhibit 26), and at least four residential structures in the area, including two brick homes and two mobile homes. Exhibit 4A at p. 48; Exhibit 10 at p. 142. Two of those residential structures are adjacent to the Ranatza site, one on each side. Exhibit 25A at pp. 429, 432. By October, 2000, four new houses had been built, two were under construction on the Johnson site, and three more were planned. Exhibit 25a at p. 430. Residents and neighboring property owners describe the area as scenic, one of the fastest growing residential areas in the metropolitan region, and a prime area for expensive residential development. Exhibit 10 at p. 146; Exhibit 25A at pp. 428, 438-40, 442-44. The owners of two large undeveloped tracts of land, Idlewild and Live Oak Plantations, plan large upscale residential developments in the near future. The properties are located about 1200' from the Ranatza site, one on each side. Id. at pp. 433-36; Exhibit 25C.
Sprint's conditional use permit request for the Johnson site was placed on the agenda of the Parish Development Board (the "Board")for public hearing on October 20, 1999. At the public hearing, Julio F. Dumas spoke on behalf of Sprint and in favor of Sprint's application. The Board heard opposition from or on behalf of six adjacent property owners and a neighboring resident who is a landscape architect. Exhibit 4A, all pages. A new telecommunications ordinance to provide for such applications in the Parish Zoning Ordinance was under consideration by the Parish Council at that time. Id. at pp. 43, 89-90; Exhibit 4D, Resolution No. 22-99. The Board voted to defer action until the new ordinance was adopted. Shortly thereafter, the Council enacted a moratorium on consideration of new telecommunications towers so it could consider all such conditional use applications in light of the new ordinance. Parish Memorandum in Support of Motion for Summary Judgment ("Parish Memorandum") at p. 4.
The Plaquemines Parish Development Board is the body designated to hold public hearings entitled "Zoning Hearing(s). See Exhibit 5A and the parish's Memorandum at p. 3. Throughout the record, the "Board" is interchangeably referred to as the "Zoning Board" and the "Development Board". For the sake of simplicity, the court refers to "the Board".
The Board acts in an advisory capacity only; its recommendations are forwarded to the Plaquemines Parish commission council (the "Council") for final action. Exhibit 4A at p. 28.
At a special meeting on August 2, 2000, the Board again considered Sprint's conditional use application for the Johnson site. This was the Board's first meeting following the Council's adoption of the new provisions for telecommunication towers and the lifting of the moratorium. At that meeting, the Board voted to recommend approval of Sprint's application on the condition that the proposed tower conform with the conditions and regulations for telecommunications towers set forth in the new ordinance. Exhibit 5B.
Sprint's Application No. 3-99CU was then considered by the Parish Council at its August 24, 2000, meeting. Exhibit 10. Again, Julio Dumas made a presentation on behalf of Sprint. Councilman Steve Vaughn, representing District 5 in which the proposed tower site was to be located, and Patrick Becnel, an adjacent property owner, spoke in opposition. Robert Tarzak, an attorney representing Patrick Becnel, distributed a letter of opposition on behalf of the Jesuit Bend Neighborhood Association. Id. at p. 146. The Council took no action at that meeting, but at its next meeting on September 14, 2000, the Council voted to deny Sprint's application without discussion. Exhibits 14A and B.
The letter is not in the record.
In the meantime, on August 28, 2000, Sprint filed a new application for a conditional use permit, the first for the Ranatza site. Exhibits 11A and B. That application, No. ZCU-2000-4, proposed locating the tower approximately 300' west of Highway 23. The Board held a public hearing on the new application on September 20, 2000. Julio Dumas again made the presentation for Sprint. He explained that Sprint had moved the proposed location 897' west of the highway to address the residents' concerns. Exhibit 15A at p. 238. Three adjacent property owners again spoke in opposition to the proposed site. No vote was taken at that meeting because a quorum was not present. Id. at p. 206.
It appears from the record of the discussion at the September 20, 2000, Board meeting and a review of the application that the legal description of the proposed site provided in the application and advertized for public hearing was inaccurate. Application ZCU-2000-4 was abandoned.
The next Board meeting was scheduled for October 25, 2000. Exhibit 25A. By that time, Sprint had filed yet a third application, No. ZCU-2000-6, proposing to locate its telecommunication tower approximately 900' west of Highway 23 on the Ranatza site. Exhibits 18 and 19. This third application was considered at the October 25, 2000, Board meeting. Eight speakers opposed the application. All owned or represented owners of either adjacent or nearby property. Action on Sprint's application was deferred as the Board requested maps of the proposed location showing the location of dynamite containers on adjacent property, as well as verification of whether the proposed tower site could be moved farther west from the highway. Exhibit 25A at pp. 480-484. Sprint did not provide maps showing the location of the dynamite containers.
The next Board meeting on November 15, 2000, was a special meeting, not a public hearing. Exhibit 28. Councilman Steve Vaughn, representing his constituents, read a letter of opposition that he had submitted to the Board. Id. at p. 550-55. In the letter, he stated that most of the residents have been opposed to a tower in Jesuit Bend for three years, that the present proposed location is not acceptable to the community of Jesuit Bend, and that the proposed location does not conform to land use in the area. He believed the proposed tower site did not comply with the new ordinance because alternative sites that minimize the potential adverse impact on existing residences had not been considered.
BellSouth Mobility, Inc., had previously tried to locate a telecommunications tower in Jesuit Bend. See BellSouth Mobility, Inc., v. Parish of Plaquemines, 40 F. Supp.2d 372 (E.D. La. 1999) (Feldman, J.). The Court found no other district court cases within the Fifth Circuit that have addressed the application of 47 U.S.C.A. § 332(c)(7).
Councilman Vaughn read the text of the letter into the record; a copy is not in the record.
Julio Dumas responded that Sprint understood its mandate to be to minimize the number of towers and generate maximum coverage. He reported that the tower site could be moved back 2000' west of Highway 23 if an additional 20' of height was allowed. Id. at pp. 578-81. He also emphasized that the tower would host four carriers (including Sprint) and that it could accommodate two additional carriers which would relieve the Parish from having to locate other tower sites for other carriers. Board members questioned Brad Mayeux, a Sprint radio frequency ("RF") engineer, about existing and proposed telecommunication towers along the length of Highway 23 and in other parts of the Parish, including the eastbank of the river. Id. at pp. 596-601. For a third time, the Board deferred its vote. On November 27, 2000, it sent Sprint's application and propagation maps to Leo Holzenthal, an independent RF engineer with M S Benbow Associates, a Professional Engineering Corporation ("Benbow"), to conduct an engineering study and independent review of Sprint's application. Exhibits 29 and 30.
On January 15, 2001, Leo Holzenthal rendered his report in the form of a letter addressed to the Board (the "Benbow report") Exhibit 32. The Board held a special meeting on January 18, 2002, to again consider Sprint's application and the Benbow report. Julio Dumas confirmed that the proposed tower location under consideration was 2000' west of the highway and that the proposed height was 265 feet. Exhibit 33A at pp. 616-17. Teddy Mackenroth, a telecommunications consultant for the Parish, noted that the Benbow report did not look at any alternative sites, and that 10 to 12 carriers were currently working with the Parish to provide telecommunications coverage to the Parish. Id. at pp. 634-36. Dumas explained that there are only six telecommunications providers in the area, but there are a multitude of other types of communications providers such as "beeper" providers which use other technologies. As a result, no single "footprint" or grid would work for everyone. Id. at pp. 640-41. Once again, the Board refused to take a vote on the matter and a motion to refer the matter to the Council without a recommendation failed. Id. at pp. 667-72.
At Sprint's request, its application was considered on February 2, 2001, at a special meeting of the Council. Sprint's Memorandum in Support of Motion for Partial Summary Judgment ("Sprint Memorandum") at p. 16; Exhibit 36, Transcript of Plaquemines Parish Council Meeting, February 2, 2001. Councilman Vaughn and two neighboring property owners again spoke in opposition to the proposed tower site at 2000' west of the highway, reiterating the arguments each had expressed at earlier Board hearings and meetings. The Council voted 2-7 against the motion to grant the conditional use application. Id. at p. 768; Exhibit 37, Council Resolution No. 01-30. This lawsuit followed.
While the parties vigorously dispute the legal ramifications flowing from the facts, they do not dispute that the 775 page "Joint Exhibits of All Parties" is an accurate record of the pertinent facts giving rise to this lawsuit.
ANALYSIS
Summary Judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). To grant summary judgment, a court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagra Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1989), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). In reviewing a motion for summary judgment, the record and the evidence must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
This case is the result of a collision of competing interests at the intersection of two statutes — the federal Telecommunications Act of 1996 and the Plaquemines Parish Comprehensive Zoning Ordinance. The issue before the Court is whether the Parish's denial of Sprint's conditional use application violates the provisions of 47 U.S.C.A. § 332(c)(7)(B) (iii).
The Telecommunications Act of 1996
The TCA was a comprehensive overhaul of federal regulation of the telecommunications industry. It placed both procedural and substantive limitations on local zoning decisions "regarding the placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7) BellSouth Mobility, Inc. v. plaquemines Parish, 40 F. Supp.2d 372, 376 (E.D. La. 1999) (Feldman, J.); see also Omnipoint Corporation v. Zoning Hearing Board of Pine Grove Township, 181 F.3d 403, 407 (3rd Cir. 1999). Congress recognized that siting and zoning decisions by local governmental units "have created an inconsistent and, at times, conflicting patchwork of requirements which will inhibit the deployment of personal Communications Services . . .". However, Congress still recognized the "legitimate State and local concerns involved in regulating the siting of such facilities . . ., such as aesthetic values . . . ." Pine Grove Township, 181 F.3d at id., quoting H.R. CONF. REP. 104-204, at 94-95 (1995), reprinted in 1996 U.S.C.C.A.N. at 61.
The House version of the Act would have required the FCC to regulate the siting of wireless telephone transmitters, but the Conference Committee instead enacted § 332(c)(7) to "preserve the authority of State and local governments over zoning and land use matters except in . . . limited circumstances . . . ."Id., quoting H.R. CONF. REP. 104-458, at 207-08, reprinted in 1996 U.S.C.C.A.N. at 222. 47 U.S.C. § 332(c)(7) is a "deliberate compromise between the two competing aims — to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers." Id., quoting Town of Amherst, New Hampshire v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 13 (1St Cir. 1999); New Par v. City of Saginaw, 301 F.3d 390, 394 (6th Cir. 2002)
Paragraph (C) of 47 U.S.C.A. § 332 provides in pertinent part as follows:
(7) Preservation of local zoning authority
(A) General authority Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(iii) Any 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.Plaquemines Parish Comprehensive Zoning Ordinance
47 U.S.C.A. § 332(c)(7)(B)(I) provides that the local regulation:
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
These limitations are not at issue in this case.
A copy of the applicable sections of the Plaquemines Parish Comprehensive Zoning Ordinance is now in the record. Rec. Doc. No. 56. In an A-2 zoning district, a telecommunications tower is a "conditional use" which requires application to and approval by the Parish Council after a public hearing, first before the Zoning and Development Board, which may make a recommendation to the Council, and then before the Council. Id. Exhibit 11B at p. 171, Sprint'S Petition for conditional use according to provisions of Ordinance No. 142, Comprehensive Zoning Ordinance for Plaquemines Parish, Louisiana; see also BellSouth, 40 F. Supp.2d at 375. A conditional use application shall be granted when such use: 1) promotes the public interest; 2) preserves the public welfare; 3) will not injure neighboring property; 4) conforms to district regulations; and 5) "[c]onforms to any additional conditions which shall be deemed necessary by the Council, upon the recommendation of the Parish Development Board, to secure the general objectives of the Ordinance so as not to adversely affect other properties in the neighborhood. Id. Parish Memorandum at pp. 4-5, quoting Plaquemines Parish Comprehensive Zoning Ordinance No. 142, Section 12, paragraph 4E; see also BellSouth, 40 F. Supp.2d at 379.
Sprint argues that the Parish violated 47 U.S.C.A. § 332(c)(7)(B)(iii) when it denied Sprint's application for construction and operation of a telecommunications tower on the Ranatza site in Jesuit Bend because (1) the Council did not provide written findings and reasons for its denial as required by the TCA, and (2) the Council's denial was not based on substantial evidence. Sprint also argues that the "written record" considered by the Court should be limited to that drawn from the February 2, 2001, Council meeting.
The Parish argues that it complied with the TCA because (1) the resolution presented to the Parish Council on February 2, 2001, states in writing that the resolution "Failed", and (2) its denial is supported by substantial evidence in the written record. According to the Parish, the Court should consider the cumulative "written record" of Sprint's several applications for various specific site locations in Jesuit Bend.
The Court's task is to determine the meaning of the terms "in writing", "written record", and "substantial evidence" as contemplated by the TCA.
In Writing
Council Resolution No. 01-30 describes Sprint's Application No. ZCU-2000-6, the proposed telecommunications tower and proposed site, and it states that the Development Board conducted a public hearing but the Board was "unable to give this Council a recommendation". It also lists the council members, how each voted, and it states that "the ResolutionFailed on this the 2nd day of February, 2001." The resolution is signed by Susan Becnel, Secretary. Exhibit 35. The record includes a copy of a letter dated February 7, 2001, signed by Benny Roussell, Parish President, to Sheila Robeaux, Superintendent of the Parish Department of Planning, Permits Zoning, enclosing copies of the resolution and noting that the resolution had failed. Exhibit 37.
Sprint argues that the TCA requires written findings of fact tied to the evidence of record which enables a reviewing court to analyze the zoning authority's rationale. Sprint cites as authority Primeco personal Communications Limited partnership v. Lake County, Florida, 1998 WL 565036, at *8 (M.D. Fla. July 20, 1998) ("Governing bodies must produce a written decision detailing the reasons for the decision and the evidence that led to that decision . . .")
Sprint also cites to Western PCS II Corporation v. Extraterritorial Zoning Authority of the City and County of Santa Fe, 975 F. Supp. 1230 (D.N.M. 1997), in support of its argument. That court's analysis of the "in writing" requirement of the TCA consisted of one statement: "The requirement for a written denial was obviously included to permit a reviewing court to ascertain the rationale behind the denial so that it can determine if the denial comports with the requirements of the statute. See H.R. CONF. REP. NO. 104-458, at 208."
This Court has reviewed the entire text of the Conference Committee Report No. 104-458, Section 704 — Facilities Siting; Radio Frequency Emission Standards, and found two sentences that address judicial review: "The conference agreement also provides a mechanism for judicial relief from zoning decisions that fail to comply with the provisions of this section. . . . [T]he courts shall have exclusive jurisdiction over all other disputes arising under this section."
The Parish argues that the Primeco decision and cases like it are an incorrect "over-interpretation" of the plain language of the statute, and an "attempt to place judicial standards on the decisions of legislative bodies." Parish Memorandum, p. 21, citing ATT Wireless PCS Inc., v. City Council of the City of Virginia Beach, 155 F.3d 423 (4th Cir. 1998)
The Primeco case cites as its authority Virginia Metronet, Inc., v. Board of Supervisors of James City County, Va., 984 F. Supp. 966, 972 (E.D.Va. 1998) (holding that 42 U.S.C. § 332(c)(7)(B)(iii) requires governing bodies to produce a written decision detailing the reasons for the decision and the evidence that led to that decision.) Virginia Metronet, Inc. in turn cites as its authority ATT Wireless PCS Inc., v. City Council of the City of Virginia Beach, 979 F. Supp. 416, 428 (E.D.Va. 1979) (holding that in order to facilitate meaningful judicial review, "[a] t minimum, local authorities must issue rulings in written form setting out the reasons for the decision and the evidence that led to the decision.") The first appellate court to address the application of 47 U.S.C.A. § 332(c)(7)(B)(iii) reversed the district court's ATT Wireless PCS, Inc. decision upon which Primeco and Virginia Metronet, Inc. rely.
In ATT Wireless PCS Inc., v. City Council of the City of Virginia Beach, 151 F.3d 423 (4th Cir. 1999), the Fourth Circuit explained that portions of the TCA other than 47 U.S.C.A. § 332(c)(7) contain express language requiring more explicit written findings. As examples, the court noted that 47 U.S.C. § 252(e)(1) requires "written findings as to any deficiencies" of certain agreements, and 47 U.S.C. § 271(d)(3) requires the FCC to "state the basis for its approval or denial" of certain applications. Id. at 430. The Fourth Circuit concluded:
[I]t is clear that Congress knows how to demand findings and explanations and that it refrained from doing so in section (B) (iii). See Keene Co. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) ("[W]here Congress includes particular language in one section of a statute but omits it in another . . ., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") The simple requirement of a "decision . . . in writing" cannot reasonably be inflated into a requirement of a "statement of . . . findings and conclusions, and the reasons or basis therefor."Id. The court further rejected the district court's explanation that requiring written findings and conclusions would facilitate meaningful judicial review. Id. at 430.
In the BellSouth Mobility, Inc. v. Plaquemines Parish case, the Council's denials of BellSouth's permit requests were evidenced by two Council resolutions, and BellSouth received letters of notification of the Council's actions. 40 F. Supp.2d at 375. BellSouth made the same argument as is made here regarding the scope of the "in writing" requirement. The district court found the argument "unsupported by the Act's language and [that the argument] misunderstands the scope of the Act in relation to administrative law generally." Id. at 377. Concluding that inflating the "in writing" language to require "judicial-like reasons is nothing more than an ill-defined insistence on facilitating federal judicial review . . . .'", Judge Feldman held that the Council resolutions satisfied the statute. Id. at 377-78, quoting Shelton v. City of College Station, 780 F.2d 475, 482 (5th Cir. 1986)
Other circuits have reached a different result. In Southwestern Bell Mobile Systems v. Todd, 244 F.3d 51 (1st Cir. 2001), the First Circuit noted a lack of uniformity among courts as to what constitutes a proper written denial under the Act. The court cited a number of district court cases which required that local authorities issue written findings of fact and conclusions of law to facilitate judicial review. Id. at 59, citing APT Pittsburgh Ltd. Partnership v. Penn Township Butler County of Pennsylvania, 196 F.3d 469, 474 n. 4 (3rd Cir. 1999) as noting a lack of uniformity on the issue. The First Circuit agreed that the TCA did not require formal findings of fact and conclusions of law, but it nevertheless rejected the ATT Wireless PCS reasoning. Instead, it chose a middle ground. The First Circuit held that the "in writing" phrase requires local boards to issue a written denial containing an explanation of the reasons for the permit denial which would allow a reviewing court to evaluate the evidence in the record supporting those reasons. Id. at 60.
In New Par v. City of Saginaw, 301 F.3d 390, 395 (6 th Cir. 2002), the Sixth Circuit went further. The New Par court held that to comply with the provisions of section (B) (iii), a denial "in writing" must "(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons." Id. at 395-96.
Any question of statutory interpretation begins by examining the text of the statute to determine whether its meaning is clear. Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 1216 (11th Cir. 2002), citing Hughes Aircraft v. Jacobson, 525 U.S. 432, 438, 119 S.Ct. 755, 760, 142 L.Ed.2d 881 (1999). This Court need not go beyond the plain language of the statute.
First, the statute's specification that "any decision . . . shall be in writing" simply requires a final action by the local governmental body analogous to a final judgment for purposes of appeal. The denial "in writing" starts the 30 day period during which an aggrieved party can file a lawsuit such as this one, challenging the state or local government's "final action". 47 U.S.C. § 332(c)(7)(B)(v); see, e.g., Troup County, 296 F.3d at 1217 (The statutory language provides for an appeal within 30 days of a "final action"; putting the decision "in writing" is the last action the state or local authority is required to take, therefore logically is the "final action".); New York SMSA Ltd. Partnership v. Town of Riverhead, 2002 WL 2008911, *3 (2nd Cir. (N.Y.) 2002) ("[T]he Town has not issued a final (and therefore appealable) decision . . ." under 47 U.S.C. § 332(c)(7)(B)(v)); Telespectrum, Inc., v. Public Service Commission of Kentucky, 227 F.3d 414, 422-23 (6th Cir. 2000) (The district court had subject matter jurisdiction because the PCS's order in writing denying plaintiff permission to construct a tower was a final action.)
Second, the Fifth Circuit has cautioned that requiring a local zoning authority to provide judicial type findings from the record evidence shifts the function of a member of a zoning board from that of a legislator, deciding the best course for the community, to that of a judge adjudicating the rights of contending petitioners. Shelton, 780 F.2d at 480; BellSouth, 40 F. Supp.2d at 378 ("Without an explicit statement from Congress, the writing requirement cannot be read to effect such a dramatic upheaval in the local authority.") The Court finds that the Council's denial satisfied the "in writing" requirement of the TCA.
Written Record
The Council's decision shall be "supported by substantial evidence contained in a written record." 47 U.S.C.A. § 332(c)(7)(B)(iii). The written record presented to this Court is 775 pages long. It includes copies of each of Sprint's three conditional use applications, transcripts of all public hearings, and minutes or transcripts of all special meetings before the Board. It also includes letters of opposition from residents, a letter to the Board and another to the Council from Brad Mayeux, the letter report of M S Benbow Associates by Leo Holzenthal, and the transcript of the February 2, 2001, Council meeting.
Sprint argues that the only portion of the record this Court should consider is the transcript of the February 2, 2001, Council meeting. According to Sprint, those portions of the record relating to opposition to the Johnson site and the first two proposed tower locations on the Ranatza site are not relevant to the final proposed tower location at the Ranatza site which the Council ultimately rejected. See Sprint's First Reply Memorandum at p. 3. The Parish argues that the written record should include opinions of citizens voiced at all public hearings and meetings of the Board and Council at which any of Sprint's proposed tower locations were considered, as well as each of the conditional use applications, and any other related record evidence.
"A reviewing court's task is to determine whether there is substantial evidence in the record as a whole to support the challenged decision."Cellular Telephone Co. v. Zoning Board of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 71 (3rd Cir. 1999), citing Universal Camera v. NRLB, 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed 456 (1951); Aegerter v. City of Delafield, Wisconsin, 174 F.3d 886, 889 (7th Cir. 1999) (Courts review the entire record to see if it contains "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (citation omitted.))
The Council's denial of Sprint's final conditional use application did not begin with the Council meeting at which the decision was made. It was the culmination of Sprint's attempt to locate a tower somewhere within a limited area in Jesuit Bend, a lengthy process that included three separate applications for four proposed tower locations, and multiple public hearings and special meetings before both the Board and the Council. Moreover, Sprint admits that the Ranatza site "was only across the highway from the Johnson site not miles away", and it describes its three proposed tower locations on the Ranatza site as adjustments in its attempts to satisfy the residents and Council. Sprint's Reply Memorandum at p. 5. Although the final proposed location was 2000' west of the highway, Sprint admits that its search area had been limited to a narrow strip about 2500' long and 1000' wide along Highway 23 in Jesuit Bend. Exhibit 4A at p. 79. The Court will review the entire record.
The court does not consider the opposition to the Johnson site that was specific to that site. For instance, opponents' concerns that if the tower were to fall on the levee it would damage the levee, that the site was too small to contain the full fall radius of the tower, and that the tower would limit development of adjacent property, were not considered.
Substantial Evidence
Courts agree that substantial evidence is more than a scintilla, but less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." ATT Wireless, PCS, 115 F.3d at 430, citing Universal Camera v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed.2d 456 (1951); accord, Brennan v. National Hotel Company, 476 F.2d 17, 21 (5th Cir. 1973); Todd, 244 F.3d at 58,Cellular Telephone Company v. Town of Oyster Bay, 166 F.3d 490, 494 (2nd Cir. 1000); Pine Grove Township, 181 F.3d at 408; Telespectrum, Inc., 227 F.3d at 423; Aegerter, 174 F.3d at 889; American Tower LP v. City of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002); BellSouth, 40 F. Supp.2d at 378-79, citing Director, Office of Workers' Comp. Programs v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305 (5th Cir. 1997). The Council's decision need not be the sole inference that can be drawn from the facts. BellSouth, 40 F. Supp.2d at 379, citing ATT Wireless PCS, 155 F.3d at 430. Even if the record supports Sprint's view, this Court cannot disturb the Council's decision if there is substantial evidence to support the Council's view. See id.; ATT Wireless, PCS. v. Winston-Salem ZBA, 172 F.3d 307, 314 (4th Cir. 1999) (When reviewing an agency's decision, "a court is not free to substitute its judgment for the agency's; it must uphold a decision that has substantial support in the record as a whole' even if it might have decided differently as an original matter." ( citing ATT Wireless, PCS, 151 F.3d at 430 ( quoting NRLB v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997)));Brennan, 476 F.2d at 20 ("[T]he reviewing court refrains from substituting its own judgment as to the correct resolution of factual questions . . ."). Finally, "[w]hen assessing the Council's decision, the Court refers to the local zoning ordinance to determine what considerations informed the Council's decision." BellSouth, 40 F. Supp.2d at 379; citing Town of Oyster Bay, 166 F.3d at 494; accord, Borough of Ho-Ho-Kus, 197 F.3d at 72 (The decision process itself is governed by state and local zoning laws.); Town of Amherst, 173 F.3d at 16 ("The substantial evidence test applies to the locality's own zoning requirements . . . ."); Pine Grove Township, 181 F.3d at 408.In spite of this apparent uniformity, application of the substantial evidence standard to cases arising under 47 U.S.C.A. § 332(c)(7) quickly leads to disagreement among the circuits on two issues: (1) what level of scrutiny is required by the substantial evidence standard; and (2) what evidence is "substantial evidence".
(1) What level of scrutiny?
In the Fifth Circuit, the standard of judicial review of a local government's zoning decisions was stated in Shelton v. City of College Station, 780 F.2d 475 (5th Cir. 1986). The Shelton court held that the outside limit on the local governmental authority's exercise of its police power in zoning decisions is that the decision must have a "rational basis". Id. at 482.
In ATT Wireless, PCS, the Fourth Circuit chose a deferential application of the substantial evidence standard. It distinguished between the "reasonable mind of a legislator" and the "reasonable mind of a bureaucrat", and it concluded that the distinction should be considered when a court reviews legislative decisions under the "substantial evidence" standard. ATT Wireless PCS, 155 F.3d at 430. However, inBellSouth, Judge Feldman observed that while the TCA preserved the general authority of local zoning authorities, it scaled back the traditionally deferential review by subjecting decisions under the TCA to judicial oversight. BellSouth, 40 F. Supp.2d at 377, citing 47 U.S.C.A. § 332(c)(7)(B)(v). concluded that "denials of zoning requests subject to the Act are reviewed more closely than standard zoning decisions to ensure compliance with the Act's substantive and procedural requirements." 40 F. Supp.2d at id., citing Town of Oyster Bay, 166 F.3d at 493; accord, Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630, 637 (2nd Cir. 1999); Todd, 244 F.3d at 58 (The TCA expands the scope of federal court review of local zoning decisions beyond the traditional deferential "rational review" standard.)
In Aegerter v. City of Delafield, Wis., the Seventh Circuit also found fault with the Fourth Circuit's deferential version of the substantial evidence standard. The court concluded that there is no indication in the statute that Congress "had any such thing in mind, " and it elected to apply the traditional substantial evidence standard to cases arising under the TCA. Aegerter, 174 F.3d at 890.
Notwithstanding the view of the Seventh Circuit, the Sixth Circuit inTelespectrum, Inc. v. Public Service Commission of Kentucky found it necessary to go further. It reviewed "whether the agency explained any credibility judgments it made and whether it gave reasons for crediting one piece of evidence over another." Telespectrum, 227 F.3d at 423. Then, upon examining the record as a whole, the court took into account "whatever in the record fairly detracts from its weight." Id.
As provided in 47 U.S.C.A. § 332(c)(7), "[t]he phrase substantial evidence contained in a written record' is the traditional standard used for judicial review of agency decisions." H.R. CONF. REP. 104-458, at 207-08, reprinted in 1996 U.S.C.C.A.N. at 222; see also, Todd, 244 F.3d at 58 ("The "substantial evidence' standard is the same as that traditionally applicable to a review of an administrative agency's findings of fact.") While the Fifth Circuit has not addressed application of local zoning laws in relation to the standard imposed by 47 U.S.C.A. § 332(c)(7)(B)(iii), it did address the traditional substantial evidence standard of judicial review of agency decisions in Brennan v. National Hotel Co., 476 F.2d 17 (5th Cir. 1973) In Brennan, the district court reviewed the entire record and drew its own conclusions as to what evidence was entitled to great weight and what testimony was credible.Id., 476 F.2d at 20. Reversing the district court, the Fifth Circuit explained the traditional substantial evidence rule as follows:
This standard of judicial review was not manufactured out of thin air, and its widespread acceptance is not accidental. It was conceived by reviewing courts in response to their need to free themselves from the timeconsuming, frequently exasperating task of weighing the evidence, a task for which reviewing courts are particulary [sic] unsuited because in performing it they are confined to the cold record and have no opportunity to test the credibility of the witnesses by personal observation. Under this standard the reviewing court refrains from substituting its own judgment as to the correct resolution of factual questions for that of the administrative agency. Instead the agency's factual determination is accepted unless there is no substantial evidence in the record as a whole to support it.Id. at 20 (footnotes and citations omitted.)
Guided by the statutory directive and the Fifth Circuit's instructions, this Court applies the traditional substantial evidence standard to determine whether, in light of the applicable provisions of the Plaquemines Parish Zoning Ordinance, the Council's denial of Sprint's application is supported by substantial evidence.
(2) What is "substantial" evidence?
The Parish argues that the opinions of the neighboring property owners and residents of Jesuit Bend are substantial evidence. Moreover, it vehemently denies that Sprint's application meets all of the zoning ordinance standards for approval of a conditional use permit. It also argues against the claim that the Benbow report answered the Parish's questions about other possible locations.
The Parish also argues that the Fourth Circuit decision inPetersburg Cellular partnership v. Board of Sup'rs of Nottoway County, 205 F.3d 688 (4 th Cir. 2000), "presents another, perhaps more compelling reason for affirming the decision of the Plaquemines Parish Council." In that case, the majority of the three judge panel agreed with the district court that the Board's decision was not supported by substantial evidence. However, Judge Niemeyer, writing for the two judge majority, held Section 332(c)(7)(B)(iii) of the TCA to be an unconstitutional infringement on the Tenth Amendment's reservation of state sovereignty.Id. at 706. Judge Widener, the second of the two judge majority, concurred in the result and in the per curiam opinion of the panel, but Judge Widener did not concur in Judge Niemeyer's resolution of the constitutional issue. Id. In his written dissent, Judge King agreed that the Board's decision was not supported by substantial evidence, but expressly disagreed with Judge Niemeyer's opinion that the statute was unconstitutional. Id. at 710-11. This Court: need not address the constitutional issue in this case in view of its finding that substantial evidence supported the Council's decision.
Sprint summarily dismisses its opponents' allegations that the proposed tower would be unsightly and diminish the value of neighboring property as unsupported by any research, analysis or expert opinion. According to Sprint, such opposition is not evidence at all, but merely "information". Sprint's evidence consists of computer generated modeling showing gaps in Sprint's coverage of Highway 23 in Jesuit Bend, testimony and reports from RF engineers demonstrating Sprint's coverage objectives, and expert evidence regarding the technical infeasibility of other potential sites. Sprint relies heavily on the Benbow report as independent expert opinion corroborating all of Sprint's evidence, and it claims that the report answered all of the Parish's questions. Sprint argues that its evidence is the only substantial evidence in the record.
Sprint cites Telespectrurn, Inc. v. Public Service Commission of Kentucky, 227 F.3d 414 (6 th Cir. 2000), and Omnipoint Communication, Inc. v. Planning and Zoning Commission of the Town of Wallingford, 83 F. Supp.2d 306 (D. Conn. 2000), in support of its argument that the Council's denial of its application is not supported by substantial evidence. In that case, t he plaintiff, Telespectrum, applied to the Public Service Commission of Kentucky ("Commission") for a certificate of Public Convenience and Necessity which would have allowed it to construct a 199' wireless telecommunications tower in a rural area not subject to local zoning or land use requirements. Telespectrum, 227 F.3d at 417. The facts revealed that four single family residences were located more than 1000' on the south side of the site. Within 1000' of the site were the remains of a burned out residence, a yard containing ten to twelve abandoned automobiles, a residence built around a mobile home surrounded by tires and debris, and the single family ranch home of Mr. and Mrs. Donald Chambers located about 412' from the proposed tower site. Id. The Chambers informed the Commission by letter that they objected to the proposed tower because of health dangers from exposure to the microwaves emitted from the tower, and a concern that the value of their property would decrease. Id. at 418. Donald Chambers was the only witness to speak in opposition to the proposed tower site at the Commission public hearing. Id. He testified that he believed that the value of his home would diminish if the tower were built on the proposed site, and he produced photographs that he had taken from his car as evidence that the proposed tower could be located on four other sites in the area. Id. Telespectrum introduced testimony from a licensed appraiser who, after investigating the proposed site and surrounding environs and considering other similar studies at five comparable locations, concluded that the presence of the tower would not affect the market value of the Chambers' home. Id.
The TCA expressly prohibits consideration of the effects of such emissions in deciding whether to approve a site for a telecommunications facility. 47 U.S.C. § 332(c)(7)(B)(iv).
The Commission's order denying Telespectrum's application expressly noted Donald Chambers' objections and it stated that he had "produced multiple possible tower sites . . ." Id. Citing its sensitivity "to the concerns of residents and landowners whose property is affected" and "balancing the interests of the applicant against the interest of the intervenor", the Commission found that the proposed tower would not serve the public interest. Id. at 418-19. Telespectrum filed suit. The district court granted summary judgment in favor of Telespectrum. The Sixth Circuit affirmed, finding that the Commission's denial rested solely on the testimony of Donald Chambers and the Chambers' letter objecting to the tower site, and that the Chambers' testimony "was no more than unsupported opinion that there were alternate sites available."Id. at 424. The Sixth Circuit concluded that "in light of Telespectrum's evidence that other sites were less suitable and that the Chambers' concerns were not based on fact, " the Commission's denial was not based on substantial evidence. Id.
Based on their letter, the PSC had granted the Chambers "full intervention" into the application process. Id. at 418.
The Telespectrum case is distinguishable from this case because the Commission was not faced with the application of a local zoning ordinance to the proposed tower site on which the proposed tower was not a permitted use. Also, unlike here, the Chambers were the only opponents of the proposed tower location. Moreover, Telespectrum presented evidence to rebut the Chambers' concern that if the tower was built at the proposed site the value of their property would diminish.
In Omnipoint Communications, Inc., plaintiff, Omnipoint, sought approval from the Planning and Zoning Commission ("Commission") to construct a tower on commercially zoned property. 83 F. Supp.2d at 307-08. The proposed tower was a permitted use in the commercial zone and the proposed construction met all applicable zoning regulations. Id. The Commission denied Omnipoint's application, listing several reasons for the denial. Id. at 309. Following a review of the reasons for the Commission's denial, the district court found (1) no evidence that Omnipoint had not complied with regulations designed to reduce the "visual obtrusiveness" of the tower, (2) Omnipoint had attempted to make the tower less obtrusive, and (3) the Commission gave no objective criteria for its "feelings" that the tower would not be appropriate for the proposed site. Id. at 310, 312. The court held that the Commission's denial of Omnipoint's application violated the TCA.
According to Sprint, like Omnipoint, it attempted to comply with the neighbors' and Board's concerns by twice moving the tower location on the Ranatza site farther west of Highway 23. While the Omnipoint court criticized the Commission's reasons for the denial, its ultimate conclusion as to the validity of the Commission's decision is grounded in the provisions of the local zoning ordinance and applicable state law, rather than its recognition of Omnipoint's attempts to make the tower less obtrusive. The court held that because the tower was a permitted use at the proposed site, it was presumed not to have an ill effect on the area. Id. at 310-11, citing Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 443, 418 A.2d 82 (1979) ("The designation of a particular use of property as a permitted use establishes a conclusive presumption that such use does not adversely affect the district . . . .") The facts in this case are distinguishable from those in Omnipoint. A telecommuications tower is not a permitted use in the A-2 zoning district applicable to the Ranatza site; it is a conditional use that must be considered in light of certain standards enumerated in the zoning ordinance.
Sprint next tries to distinguish the BellSouth Mobility case authored by Judge Feldman by arguing that in BellSouth, "the surrounding landowners and concerned citizens raised substantial questions concerning BellSouth's site selection that went largely unanswered." Sprint Memorandum, p. 28. The record included several letters, petitions, and testimony from at least six named individuals complaining about the aesthetic damage and decline in existing property values that the towers would cause. BellSouth, 40 F. Supp. at 379-80. One opponent supported his concern that his property value would decrease with a certified real estate appraiser's opinion. Id. BellSouth conceded that other sites were available, but argued that it had already moved a site due to citizen opposition. Id. at 380. Judge Feldman found that the opponents raised substantial questions concerning BellSouth's site selection that were "more than mere generalized or caustic not-in- my-backyard' complaints."Id. at 379. He observed that BellSouth had not "assaulted non-expert citizens with a barrage of experts, exhibits, and evaluations to surmount their lay opinions." Id. The court concluded that the citizens' concerns, coupled with BellSouth's failure to rebut complaints about the site selection process, amounted to substantial evidence supporting the Council's denial of BellSouth's applications. Id. at 380.
Like the record in BellSouth, this record includes significant opposition from a number of citizens, some of whom were immediate neighbors of the proposed sites and some of whom owned property in the general vicinity. Sprint argues that this case is distinguishable fromBellSouth because, in this case, Sprint rebutted the opponents' unsupported opinions with expert reports, analysis and opinion. The real issue is whether the opinions of individual residents and the community in general are substantial evidence.
In ATT Wireless, PCS, the Fourth Circuit recognized that the record in that case included evidence that would have justified approval of plaintiff's application. ATT Wireless PCS, 155 F.3d at 430-31. Nevertheless, the Court found that "the repeated and widespread opposition of a majority of the citizens . . . who voiced their views" amounted to more than a "mere scintilla" of evidence, and that the evidence was sufficient to persuade a reasonable mind to support the opposite conclusion. Id. at 431. On appeal, plaintiffs argued that expert reports, opinions and evaluations supporting an application mandated approval of that application even in the face of citizen opposition. The Fourth Circuit observed that accepting such an argument would require interpretation of the TCA "so as to always thwart average nonexpert citizens . . . ." Id. The court concluded that "Congress, in refusing to abolish local authority over zoning of personal wireless services, categorically rejected this scornful approach." Id. Review of the evidence does, however, require more than an uncritical review and reflexive acceptance of constituent complaints since "sanctioning permit denials based on few generalized concerns would frustrate the Act's purposes." BellSouth Mobility, Inc., 40 F. Supp.2d at 379.
In Petersburg Cellular Partnership, the Fourth Circuit crafted a working definition of substantial evidence when considering local opposition to permit applications made pursuant to the TCA:
The concerns expressed [by the community] were objectively reasonable because they were based on known experience about the effects that commercial uses can have on a residential neighborhood. If a legislative body denies a permit based on the reasonably-founded concerns of the community, then undoubtedly there is "substantial evidence" to support the body's decision. If, however, the concerns expressed by a community are objectively unreasonable, such as concerns based upon conjecture or speculation, then they lack probative value and will not amount to substantial evidence. The number of persons expressing concerns, standing alone, does not make evidence substantial, but it might be relevant to the reasonableness of the concern.Id., 205 at 695 (4th Cir. 2000) (emphasis in original)
Sprint argues that during the course of the Council meeting on February 2, 2001, no evidence was offered to refute Sprint's expert reports, evaluations and evidence in support of its final conditional use application for the Ranatza site. Sprint Memorandum at p. 18. As previously mentioned, Sprint's evidence in support of its application included computer generated site propagation maps showing the need for a tower, correspondence from Brad Mayeux, Sprint's RF engineer explaining the limitations of two suggested alternative sites, and Leo Holzenthal's letter report for Benbow. Sprint acknowledges the two letters from the Perez family representatives, but it argues that they produced no evidence to support the generalized complaints expressed in the letters.Id. Sprint further claims that other than the two letters, "none of Councilman Vaughn's constituents had ever publicly voiced a concern" at any of the public hearings on the site. Sprint Memorandum at p. 18.
Dale Lindsey, who with his wife owns property adjacent to the Ranatza site, addressed the Council at its February 2, 2001, meeting. His opposition was to the site chosen by Sprint, and not to cell towers generally. He noted that Sprint had not convinced the zoning board that the Ranatza site chosen by Sprint was the best site for a tower in the Jesuit Bend area. Exhibit 36 at p. 732. Chalin Perez, an owner of neighboring property, also spoke in opposition to the proposed site. He stated that there was considerable residential development above and below the proposed site, and that the proposed tower was incompatible with existing and proposed residential development as it would be an eyesore that would reduce property values. Id. at p. 733-735. Councilman Steve Vaughn spoke in opposition to Sprint's application at the meeting, stating that he wanted to express what he believed to be his constituents' view. Id. at p. 753. The Councilman stated that he had held several meetings over the past two years, the most recent one during the preceding week, and that the majority of those who attended the meeting were opposed to the tower even if it were placed 2000' west of the highway. He said that his constituents agreed with Chalin Perez and Dale Lindsey. Id. Councilman Vaughn believed there were other suitable locations north and south of the Ranatza site, including some available industrial sites.
Sprint dismisses Councilman Vaughn's opposition as "mere stonewalling" (Sprint's Reply Memorandum at p. 11) and dismisses the Council's decision as "politics" (Sprint's Memorandum in Opposition at p. 7) Councilman Vaughn was the elected representative of District 5, which includes Jesuit Bend and the Ranatza site. Every Jesuit Bend resident who spoke in opposition to Sprint's application at any public hearing or meeting was his constituent. A number of his constituents have, therefore, publically voiced a concern. Moreover, the Councilman was elected to represent his constituents' interests before the Council. He is entitled to do just that and it was not necessary f or each constituent to appear individually and separately express an opinion, although several did.
Throughout the hearing process, the opposition consistently expressed four main concerns:
1) The tower would pose a hazard to nearby residents during a hurricane.
Many of the opponents have been residents of Plaquemines Parish for generations. In spite of Julio Dumas' assurances that the tower is designed and constructed to withstand hurricane force winds, and designed to collapse downward in a spiral if it falls, the residents remained unconvinced. Their apprehension is based on years of first hand experience with the extensive damage and devastation caused by major hurricanes. However, the record confirms that similar towers withstand Hurricane Andrew in Florida and tornadoes in Oklahoma. Exhibit 25A at pp. 518-19. Based on the evidence presented, this Court is unable to conclude that the tower could not withstand hurricane force winds and it finds that the opponents' safety concerns are not reasonably founded.
2) The tower would be a commercial intrusion that would damage the residential value of property.
In Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490 (2nd Cir. 1999), the Second Circuit recognized the difficulty of weighing residents' unsupported concerns about potential decline in their property value against expert testimony rebutting those concerns. Id. at 496. The court concluded that "[a] few generalized concerns about the potential decrease in property values, especially in light of . . . contradictory expert testimony, does not seem adequate to support a conclusion' . . . that the permits should be denied." Id., citing Universal Camera v. NRLB, 340 U.S. at 477, 71 S.Ct. 456 (1951) ( quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)
The residents of Jesuit Bend cited recent residential development in the immediate area, including two residences under construction on the Johnson site first proposed as a tower location. Exhibit 25A at pp 428-30. Carl Becnel observed that people had bought property in Jesuit Bend in order to build homes, expecting that the area would remain residential in character. Exhibit 4A at p. 67. Dale Lindsey had plans to construct his home within 500' of the proposed tower location and on land he and his wife already own. Exhibit 25A at p. 429. Perez family members stated plans for large upscale residential developments on property they own about 1200' from both sides of the Ranatza site. Exhibit 25C. Patrick Becnel spoke of "quite extraordinary" land sales in the area, noting recent real estate transfers in the $75,000.00 per acre range. Exhibit 4A at pp. 54, 59. A letter from a representative of the Jesuit Bend Neighborhood Association objected to the proposed tower and referred to the potential for residential development of homes in the six figure range. Exhibit 10 at p. 146. All opponents believed that the proposed tower would diminish the value of their property and inhibit proposed residential construction.
The only proponent of the proposed tower location, Joseph Ranatza, Jr., was the property owner who agreed to lease the site to Sprint. He argued that he did not want to subdivide his property because he preferred a small industrial use to more people in the area. Exhibit 26 at p. 543. Sprint did not produce any appraisals or surveys to rebut the opponents' concerns. The residents' and property owners' concerns, based on personal expectations and knowledge of current real estate activity in Jesuit Bend, are more than a "few generalized concerns" regarding a potential decrease in property values.
3) The proposed tower would be an eyesore completely dominating the scenic area, and the tower would be incompatible with existing and planned residential development.
It is well understood that local authorities can implement zoning restrictions to preserve the aesthetic features of neighborhoods.BellSouth Mobility, 40 F. Supp.2d at 379, citing Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 129, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) In Southwestern Bell Mobile System, Inc. v. Todd, the First Circuit concluded that, when assessing the visual impact of a proposed tower, the local authority "was entitled to make an aesthetic judgment about whether that impact was minimal, without justifying that judgment by reference to an economic or other quantifiable impact." 244 F.3d at 61.
Opponents graphically described the proposed tower's size and visual impact as a "gargantuan tower" and an eyesore, far out of proportion to any existing structure as well as proposed residential development. Exhibit 25A at pp. 439, 443; Exhibit 10 at p. 146, Exhibit 4A at p. 59. Carl Becnel, a landscape architect who owns neighboring property, stated that the proposed tower would have "a horrible aesthetic impact for the area." Exhibit 4A at p. 67. Patrick Becnel, who also owns neighboring property, complained that the tower would ruin the aesthetics of the residential area. Id. at pp. 54-59. Leander Perez, III, has an ownership interest in neighboring Idlewild and Live Oak plantations. He described the proposed tower as a 26 story, very narrow building which could be seen from a great distance. Exhibit 25A at p. 433.
In rebuttal, Julio Dumas observed that in his experience the towers tend to lose their identity and blend into the landscape over time. Exhibit 4A at p. 73. However, even if accurate, his observation does nothing to belie the accuracy of the opponents' descriptive images and aesthetic concerns.
4) There are more appropriate alternative locations that could provide the necessary coverage.
Based on the criteria given by its radio frequency department, Sprint's site search area was a narrow corridor along Highway 23 in Jesuit Bend, about 2500' long and 1000' wide. Sprint evaluated nine properties in the search area based on three criteria: 1) it must have a living land owner willing to lease the property; 2) it must meet radio frequency design objectives; and 3) it must meet the standards of the zoning ordinance. Exhibit 4A at p. 76. Most properties were rejected f or various reasons, and Sprint believed that the properties it chose met its criteria. Id. at 76-79. Ultimately, in an attempt to satisfy the residents' concerns, the final location proposed by Sprint was 2000' west of Highway 23, just outside of the initial search area.
Two alternative sites were frequently suggested during the lengthy hearing process. The first was the possibility that Sprint could share space on the eastbank telecommunications tower built by Two-Way Communications at Bertrandville, Louisiana. Carlos Pumilia of Two-Way communications asserted that space was available on that tower which he believed could accommodate Sprint's needs and eliminate the need for Sprint's proposed tower site in Jesuit Bend. Sprint responded with a letter dated November 29, 2000, from Brad Mayeux, RF Engineer f or Sprint, faxed to the Parish President and Council members. Exhibit 31, p. 608-09. The letter explained in technical detail that locating on the eastbank tower would not successfully close the gap along Highway 23 in Jesuit Bend and that such placement would require a second tower farther south than the Ranatza site in a more residential area of Jesuit Bend.
The second frequently mentioned alternative location was near the rear of the Ranatza site, about a mile from Highway 23. Again, Brad Mayeux responded on behalf of Sprint with a letter to the Board. Exhibit 27 at p. 545. He described computer modeling that eliminated the site because it was allegedly inadequate to provide necessary coverage, and, therefore, not technically feasible for Sprint. According to the letter, in order to meet Sprint's minimum standards for a reliable level of service, such a location would require a second tower site along Highway 23 south of Jesuit Bend, somewhere in the general vicinity of the coverage gap.
In addition to these two alternative sites, Board members and Council members inquired about locating the tower at various other sites in industrial or commercial zoned districts to the south and north of Jesuit Bend. Exhibit 25A at 471. Board members Aubry Adams, Jr., and Mato Machella, as well as Shelia Robeaux, Superintendent of the Planning, Permits and Zoning Department, asked about a number of existing monopole installations below and above Jesuit Bend, some of which belonged to Sprint and some of which belonged to other providers. Id. at pp. 456-462. Dumas responded that some of those sites had been considered and rejected, usually because they required two or three towers to provide the necessary coverage. However, some suggested locations had not been considered.
Sprint insists that the Benbow report is determinative of its right to approval of its permit application. Sprint Memorandum in Opposition to Motion for Summary Judgment of the Parish of Plaquemines ("Sprint Memorandum in Opposition") at pp. 6-7; Sprint Reply Memorandum at pp. 11-13. Sprint claims that the report answered all of the Council's and Board's questions about the technical requirements and necessity for the tower location at the proposed site. Sprint further argues that the report found that its application met all requirements of the zoning ordinance. Finally, Sprint claims that the report "recommended approval" of the application. Sprint Memorandum at pp. 29-30.
The Parish argues that the report was merely "an engineering review" of the site proposed by Sprint and that it did not determine that Sprint's proposed site is the only site that could fulfill Sprint's need. The Parish also argues that the report did not address the alternative site proposed on the eastbank of the river.
The Benbow report is in the record. See Exhibit 32. The report states that the application meets the minimum standards of the zoning ordinance and it confirmed that a tower placed 2000' west of Highway 23 would provide continuous coverage along the highway, closing the coverage gap between Sprint's existing Belle Chasse and pointe-a-la-Hache tower sites such that no other sites should be required between those towers. Finally, the report recommends "acceptance of the conditional use petition on the basis that Sprint has demonstrated need and complied with the requirements of the zoning ordinance."
The Parish does not dispute that the proposed tower design conforms to the minimum standards specified by the" Special Regulations for Telecommunications Towers" in the zoning ordinance governing the location, design and set-back requirements f or telecommunications towers. However, it correctly points out that pursuant to those regulations, the proposed tower is not a permitted use in the A-2 zoning district in which the proposed tower site is located. The Parish argues that the report does not address zoning ordinance standards for approval of a conditional use permit necessary for the placement of a telecommunications tower in an A-2 zoned district. Neither does it address alternative locations.
Sprint's goal was to close the gap along Highway 23 with a single tower, a goal that could be accomplished only with a tower location in the immediate vicinity of the Ranatza and Johnson sites in Jesuit Bend. The evidence suggests that the gap could be closed with two towers at other locations. See Exhibits 27 and 31. The Jesuit Bend residents and the Council expressed a reasonable preference for two or more towers at locations other than the Jesuit Bend location that Sprint chose.
"Land use decisions are basically the business of state and local governments." American Tower LP v. City of Huntsville, 295 F.3d 1203, 1206 (11th Cir. 2002), citing Hess v. Port Auth. TransHudson Corp., 513 U.S. 30, 44, 115 S.Ct. 394, 402, 130 L.Ed.2d 245 (1994) The TCA does not change that, and "[t]he legitimate power of federal courts to interfere in the kind of zoning decision involved in this case is limited." Id. at 1207. As observed by the First Circuit in Town of Amherst, "[u]ltimately, we are in the realm of trade-offs: on one side [is] the opportunity for the carrier to save costs, pay more to the town, and reduce the number of towers; on the other are more costs, more towers, but possibly less offensive sites and somewhat shorter towers." 173 F.3d 9, 15 (1st Cir. 1999) Sprint may legitimately think that its solution is best. But subject to an outer limit, such choices are just what Congress has reserved to the Plaquemines Parish Council. See id., citing ATT Wireless PCS, 155 F.3d at 428-29.
The record reveals a reasonable concern that the proposed tower installation would not promote the public interest, that it would injure neighboring property, and that it would adversely affect neighboring property. This Court concludes that substantial evidence supports the Council's denial of Sprint's conditional use application. The Parish did not violate the TCA.
42 U.S.C. § 1983
In its complaint, at ¶¶ XLI, XLII and XLIII, Sprint claims that as a holder of federally issued PCS licenses, it has rights pursuant to the TCA that were violated by the Parish's denial of Sprint's conditional use application. Sprint claims that because the Parish was acting under the color of state law within the meaning of 42 U.S.C. § 1983, it is entitled to appropriate relief. Sprint does not claim any violation of its federal constitutional rights. Furthermore, because this Court finds that the Parish did not violate the TCA when it denied Sprint's conditional use application, Sprint's § 1983 claim fails.
42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Section 1983 has been extended to provide remedies for violations of federal statutes as well as violations of constitutional rights by parties acting under color of state law. 42 U.S.C. § 1983; ATT Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1325 (11th Cir. 2000), reh'g and reh'g en banc denied, June 15, 2000 (citing Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). In order to "invoke § 1983, a plaintiff must meet two requirements. First, the federal statute must create private rights enforceable under § 1983; Second, the statute must not evidence congressional intent to foreclose a cause of action under § 1983." Id.
The Parish also argues that pursuant to 42 U.S.C. § 1988, it is entitled to attorney's fees if it prevails in defeating Sprint's § 1983 claim. Defendants in a § 1983 claim are entitled to attorney's fees only when the plaintiff's underlying claim is frivolous, unreasonable or groundless. United States v. State of Mississippi, 921 F.2d 6004, 609 (5th Cir. 1991). The Court finds that Sprint's lawsuit was neither frivolous, unreasonable, nor so lacking in merit as to be groundless. Plaquemines Parish is not entitled to attorney's fees.
Constitution of the State of Louisiana
Finally, Sprint argues that the Council's denial of Sprint's application violated Article I of the Louisiana Constitution. Article I is the Constitution's "Declaration of Rights" which includes 24 sections listing 22 enumerated rights. Sprint's Complaint at ¶ XLV claims that "[u]nder Louisiana Law, the standards for granting conditional use permits must ensure equal treatment of all applicants to prevent a board of adjustment from exercising its powers arbitrarily."
Sprint does not argue that the Parish's decision denied Sprint its right to equal protection. Accordingly, its equal protection claim is deemed abandoned. Instead, Sprint argues that the parish's denial of its conditional use application violated its due process rights. Sprint argues that the Council was acting in a quasijudicial capacity, and that it, therefore, "subjected itself to the same judicial scrutiny and standard of review as would apply to any other judicial or administrative agency, i.e., its action must be based on sufficient and competent evidence." Sprint's Memorandum in Opposition, quoting Williamson v. Williams, 543 So.2d 1339, 1344 (La.App. 4 Cir. 1988)
Section 3 of Article I of the Louisiana Constitution, "Right to Individual Dignity", provides as follows:
No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations, Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.
Section 2 of Article I of the Louisiana constitution provides that "[n]o person shall be deprived of life, liberty, or property, except by due process of law."
The argument is that pursuant to Louisiana law, the Council was acting in a quasi-judicial capacity when it considered Sprint's conditional use application, therefore its decision must be based on "sufficient and competent evidence." Again, Sprint argues that the Council had no sufficient or competent evidence to support its decision, and its denial of the application was arbitrary and capricious. Therefore, according to Sprint's argument, the decision violated its procedural due process rights protected by Article I, Section 3, of the Louisiana Constitution.
The Court has reviewed the Council's denial pursuant to the substantial evidence standard as set forth in this opinion. The denial of Sprint's application was supported by substantial evidence. The Parish did not, as Sprint argues, violate Sprint's right to due process under the Louisiana Constitution.
CONCLUSION
Accordingly, upon reviewing the record, the evidence, the cross motions for summary judgment, the memoranda of both parties, and the law,
IT IS ORDERED that the motion of plaintiff, Sprint Spectrum L.P., for partial summary judgment be and is hereby DENIED; and
IT IS FURTHER ORDERED that the motion of defendant, Parish of Plaquemines, for summary judgment be and is hereby GRANTED; and
IT IS FURTHER ORDERED that the complaint of Sprint Spectrum L.P. against the Parish of Plaquemines be and is hereby DISMISSED