Opinion
CIVIL ACTION NO. 7:01-CV-162-R
April 18, 2003
MEMORANDUM OPINION AND ORDER
Now before this Court is Plaintiff's Motion for Summary Judgment ("Plaintiff's Motion") (filed January 2, 2002). For the reasons discussed below, Plaintiffs Motion is DENIED, and summary judgment is GRANTED in favor of Defendants.
I. BACKGROUND
This case arises under the provision of the Telecommunications Act of 1996 which provides for federal judicial review of decisions of local zoning authorities. 47 U.S.C. § 332 (c)(7).
In May 2001, Plaintiff, United States Cellular Corporation ("U.S.C."), submitted an application to the City of Wichita Falls (the "City") for a conditional use permit in order to construct a 90 foot cellular telephone communications tower at a site located at 4729 Jacksboro Highway in Wichita Falls, Texas. On June 13, 2001, a hearing regarding the application was held before the Wichita Falls Planning and Zoning Commission (the "Commission"). The Commission approved U.S.C.'s application by a 7-1 vote. In so doing, the Commission also required U.S.C. to seek a variance from the Airport Board of Adjustments (the "Board") as the proposed height of the tower would extend into a "height transition zone" at the nearby Kickapoo airport. On June 27, 2001, the Board denied the variance for the 90 foot tower to the extent that it protruded into the height transition zone, thus the maximum height for which U.S.C.'s tower was approved was 62.8 feet. The decision of the Commission was appealed to the Wichita Falls City Council (the "City Council"). On July 17, 2001, the appeal hearing was held before the City Council. After statements by City Council members, representatives from U.S.C. and citizens who opposed the tower, the City Council voted unammously (5-0) to revoke the conditional use permit granted by the Commission. U.S.C. then timely filed the instant action before this Court. See 47 U.S.C. § 332 (c)(7)(B)(v).
Joint Appendix ("J.A.") at 49. The application was submitted by Denny Redmon of Land Acquisitions, Inc., acting as an agent for U.S.C.. Id. at 48-49. The application lists the site address as 1314 Echo Lane, while subsequent documents List the address as 4729 Jacksboro Highway. The site is located 172.5 feet north and 230 feet east of the intersection of Echo Lane and Jacksboro Highway, and thus these appear to be two different addresses for the same site. Id. at 68 (site map).
The Kickapoo airport is also referred to as the Kickapoo Airpark.
J.A. at 66 (City Council summary of the actions of the Commission and Board). Other documents and some of the testimony at the City Council hearing refer to a slightly different approved height of 62 1/2 feet. See, e.g., Plaintiff's Motion at 3, 7 n3; J.A. at 77.
Id. at 72 (appeal application).
U.S.C. alleges that the City Council's revocation of the conditional use permit violates the provisions of the Telecommunications Act of 1996. 47 U.S.C. § 332 (c)(7)(B)(i), (iii). Specifically, U.S.C. alleges that the action of the City Council was not "in writing and supported by substantial evidence contained in a written record" as required by 47 U.S.C. § 332 (c)(7)(B)(iii) U.S.C. also argues that the City Council's action had the effect of "unreasonably discriminat[ing] amongst providers of functionally equivalent services." 47 U.S.C. § 332 (c)(7)(B)(i)(I). U.S.C. seeks an injunction ordering the City Council to grant a conditional use permit for the proposed tower.
II. ANALYSIS
A. SUMMARY JUDGMENT STANDARD
The facts in this case are not in dispute. Plaintiffs Motion includes a 102 page Joint Appendix containing the documents relating to Plaintiff's application for the conditional use permit. The parties have agreed, and this Court has Ordered, that the case will be decided on Plaintiff's Motion for Summary Judgment. The case is therefore ripe for determination under Rule 56(e) of the Federal Rules of Civil Procedure which allows summary judgment when there is no genuine issue as to any material fact 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 (1986); Melton v. Teachers Ins. Annuity Ass'n of Am., 1- 4 F.3d 557, 559 (5th Cir. 1997). Moreover, although Defendants have not filed a cross-motion for summary judgment, the lack of material facts in dispute and the agreement of the parties that the case will be disposed of on Plaintiff's motion, lead this Court to conclude that this is one of the relatively rare cases in which the grant of summary judgment to the non-moving party is appropriate. As the Fifth Circuit has stated, when:
Agreed Order (entered November 9, 2001); Joint Status Report at 2 (filed October 31, 2001).
one party moves for summary judgment the district court, in an appropriate case, may grant summary judgment against the movant, even though the opposite party has not actually filed a motion for summary judgment.Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir. 1985) (citing 10A Wright, Miller Kane, Federal Practice and Procedure: Civil 2d § 2720); see also Caravan Refrigerated Cargo, Inc. v. Yaquinto, 864 F.2d 388, 393 (5th Cir. 1989), overruled on other grounds by Advance United Expressways. Inc. v. Eastman Kodak Co., 965 F.2d 1347, 1352 (5th Cir. 1992).
B. SECTION 332(c)(7) OF THE TELECOMMUNICATIONS ACT
The Telecommunications Act of 1996 (the "Act") provides, inter alia, for an expansion of federal judicial review over state and local zoning decisions in order to promote the nationwide development and installation of cellular phone technology, while at the same time preserving, to the fullest extent possible, traditional broad local authority over zoning matters. 47 U.S.C. § 332 (c)(7)(A)-(B). See H.R. Conic Rep. No. 104-458 (1996), at 207-08, reprinted in 1996 U.S.C.C.A.N. 124, 222 (discussed in Preferred Sites, LLC v. Troup Cty., 296 F.3d 1210, 1214 (11th Cir. 2002)). The Act, in relevant part, states:
(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 facilities.
(B) Limitations
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof —
(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.
(ii) A State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.
(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.47 U.S.C. § 332 (c)(7)(A)-(B). See also 47 U.S.C. § 332 (c)(7)(C) (defining "personal wireless service facilities"). Numerous courts and commentators have examined the difficult balance which this provision of the Act attempts to strike. See, e.g., ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 93 (1st Cu. 2002) (describing the provision as "a scale that . . . attempts to balance two objects of competing weight); New Par v. City of Saginaw, 301 F.3d 390, 394 (6th Cir. 2002) (describing the provision as "a deliberate compromise between two competing aims"); Andrew B. Levy, If Not Here, Where? Wireless Facility Siting and Section 332(c)(7) of the Telecommunications Act, 8 Cornell J.L. Pub. Pol'y 389, 392-95 (1999); Note, Wireless Facilities Are a Towering Problem. How Can Local Zoning Boards Make the Call Without Violating Section 704 of the Telecommunications Act of l996?, 40 Win. Mary L. Rev. 975, 984-986 (1999); Susan L. Martin, Courts Interpret Telecommunications Act of 1996: Can Cellular Phone Companies Put Towers Wherever They Want?, 27 Real Est. L.J. 390, 390-94 (1999).
Section 332(c)(7)(B)(iii) of the Act requires " [a]ny decision" by a local zoning authority denying a request to place, construct, or modify a cellular communications tower " be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332 (c)(7)(B)(iii) (emphasis added). Thus, there are three elements which the City Council's revocation of the conditional use permit must satisfy: 1) the decision must "be in writing," 2) the decision must be supported by "substantial evidence," and 3) the evidence must be "contained in a written record." There is no dispute in this case regarding satisfaction of the third requirement, namely, that the evidence be contained in a written record. The parties have produced a Joint Appendix which contains a relatively complete set of documents, including hearing transcripts, relating to the conditional use permit application. The remaining two elements will be considered in turn.
1. The In Writing Requirement
The Act does not define the term "in writing." Courts that have considered the question have differed on the quantum of documentation necessary to satisfy this requirement. See New Par, 301 F.3d at 395-96Z The Fourth Circuit has held that the requirement was met by the word "denied" stamped on an application along with a transcript of the proceedings before the local zoning authority. ATT Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423, 429 (4th Cir. 1998). Similarly, the Eastern of District of Louisiana has held that a simple denial letter along with other documents in the record was sufficient. Bellsouth Mobility, Inc. v. Parish of Plaquemines, 40 F. Supp.2d 372, 377-378 (E.D. La. 1999). Both courts concluded that the "in writing" requirement does not mandate any additional elaboration of reasons. Id ("If Congress intended the `in writing' provision to impose an additional requirement that local authorities produce judicial opinion-like written reasons, with formal findings and conclusions, it would have said so in the language of the Act.") In contrast, the First and Sixth Circuits have demanded a higher degree of explanation in order to satisfy the "in writing" requirement. Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001) ("the written denial must contain a sufficient explanation of the reasons . . . to allow a reviewing court to evaluate the evidence in the record supporting those reasons"); New Par, 301 F.3d at 395-96 (the decision 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").
In essence, the disagreement is about whether the "in writing" provision should be given the meaning most apparent from its plain language, or instead should be read in a manner which adds to the text in order to facilitate judicial review. The better reading of the Act is that it says what it says: the decision must be "in writing." It does not say that the decision must be in writing "with a statement of reasons." As noted by the Fourth Circuit, other sections of the Act explicitly require written findings. ATT Wireless PCS, 155 F.3d at 430 (citing 47 U.S.C. § 252 (e)(1) requiring "written findings" and § 271(d)(3) requiring the FCC "state the basis for its approval or denial" of certain applications). In light of this, it is evident that "Congress knows how to demand findings and explanations and that it refrained from doing so in section [332(c)(7)](B)(iii)." Id. at 430. This Court will not place an added burden of compliance with federal law on localities in this District without a more explicit directive from Congress. An elaborate statement of reasons is not required.
In this case, the City Council's actions easily satisfy the "in writing" requirement. The City Council issued two ordinances. The first ordinance was issued the day of the City Council hearing and stated that the permit was revoked — without providing an elaboration of reasons. The second ordinance was enacted three weeks later and listed the following four reasons for revocation of the permit:
J.A. at 94 (Ordinance No. 70-2001, dated July 17, 2001). The Ordinance also contains a preamble and other form language.
1. Proposal violates setback requirements for adjacent residential uses, as established in Section 5910 of the Zoning Ordinance;
2. Proposal violates setback requirements from property lines, as established in Section 5910 of the Zoning Ordinance;
3. Proposal violates setback requirements for single-family zoning district, as established in Section 5910 of the Zoning Ordinance;
4. Proposal may adversely impact the safety and operations of Kickapoo Airpark.
Id. at 99-100 (Ordinance No. 74-2001, dated Aug. 7, 2001).
According to the City Council's agenda, the second ordinance was enacted precisely to meet the "in writing" requirement. The record also contains a transcript of the hearing held by the City Council at which the decision to revoke the conditional use permit was taken. The two ordinances and other documentation are more than sufficient to satisfy the "in writing" requirement. Consequently, there is no need for this Court to address the question of whether a mere denial notice alone, in the absence of the second ordinance, would have been sufficient.
Id. at 94 ("Under the Federal Telecommunications Act, it is necessary that the reasons for denial be put in writing. We have provided the attached ordinance, after review of the [City] Council meeting, to identify the reasons for the conditional use permit revocation.")
Id. at 74-92 (transcript excerpts).
2. The Substantial Evidence Requirement
Although "substantial evidence" is not defined in the Act, courts have uniformly construed the intent of Congress to be the incorporation of "the traditional standard used for judicial review of agency actions." H.R. Conf Rep. No. 104-458, at 208, reprinted in 1996 U.S.C.C.A.N. 124, at 223; Preferred Sites, LLC, 296 F.3d at 1218 (citing cases). Substantial evidence "is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991) (per curiam). See also, Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Cellular Tel. Co. v. Zoning Bd. of Adjustment of Ho-Ho-Kus, 197 F.3d 64, 71 (3d Cir. 1999) (substantial evidence "does not mean a large or considerable amount of evidence"); Cellular Tel. Co. v. Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999) (decision must be upheld if there is "more than a scintilla of evidence"). It is a deferential standard of review in a which a federal court does not interpose its own judgment about which outcome it would select if it were considering the matter in the first instance, but rather seeks to determine if there is more than a scintilla of evidence allowing a reasonable mind to support the action taken by the local zoning authority.
Courts conducting the § 332(c)(7)(B)(iii) substantial evidence review of municipal zoning denials of cellular phone tower placement, construction, or modification permits have reached different conclusions based on the particular facts of each case (i.e. the terms of the zoning ordinance at issue) as well as the respective court's interpretation of the amount of evidence required under the substantial evidence standard. Compare, e.g., Omnipoint Corp. v. Zoning Hearing Bd. of Pine Grove Township, 181 F.3d 403, 408 (3d Cir. 1999) (local decision not supported by substantial evidence); Petersburg Cellular Partnership v. Bd. of Supervisors of Nottoway Cty., 205 F.3d 688, 696 (4th Cir. 2000) (same); Oyster Bay, 166 F.3d at 497 (same); New Par, 301 F.3d at 396 (same); Preferred Sites, 296 E.3d at 1219-20 (same); with American Tower L.P. v. City of Hunsville, 295 F.3d 1203. 1207 (11th Cir. 2002) (local decision supported by substantial evidence); 360° Communications Co. of Charlottesville v. Bd. of Supervisors of Albemarle Cty., 211 F.3d 79, 85-88 (4th Cir. 2000) (same); ATT Wireless PCS, 155 F.3d at 430 (same); ATC Realty, 303 F.3d at 95-99 (same). For a recent review of the caselaw, including district court decisions, see Sprint Spectrum, L.P. v. Parish of Plaquemines, 2003 WL 193456, at *6-15 (E.D. La. Jan. 28, 2003). The Fifth Circuit has yet to address this provision, although two decisions from the Eastern District of Louisiana have done so. Bellsouth Mobility, 40 F. Supp.2d at 378 (local decision supported by substantial evidence); Sprint Spectrum, 2003 WL 193456, at *20 (same).
As noted above, Plaintiff, in this case, applied for a conditional use permit with the City of Wichita Falls. Plaintiff's application was approved by the Commission, the proposed tower height was reduced by the Board, and ultimately the permit was revoked by the City Council. The Joint Appendix contains a written record of the documents and proceedings related to the application, including the application and supporting materials submitted by U.S.C. to the Commission, the materials submitted on appeal to the City Council, and excerpts from the transcript of the hearing before the Commission and the hearing before the City Council. The transcript of the hearing before the Commission was not available to the City Council at the time of its hearing and decision to revoke the application; it was subsequently produced for this litigation. Therefore, as there is no allegation that either U.S.C. or the City Council failed to comply with the procedural aspects of the Wichita Falls Code (the "Code"), the transcript of the hearing before the Commission is not properly part of the written record in this case. ATC Realty, 303 F.3d at 95 ("in the absence of any claim of procedural irregularity . . . we restrict our review to the record before the [local zoning authority]"). However, as the discussion below makes clear, the decision to incorporate or exclude that transcript in no way affects the outcome of this case.
Defendant's Brief at 7 n. 2.
Plaintiff attacks the decision of the City Council to revoke the conditional use permit. Plaintiff contends that the City Council's "decision revoking the conditional use permit granted by [the Commission] is unsupported by any evidence, much less substantial evidence, contained in the written record." Plaintiff alleges that the City Council "did not consider [the Commission's] approval of U.S.C.'s application on its merits. Rather . . . [the] denial was on wholly inappropriate grounds." Plaintiff also alleges that the City Council misread the Zoning Ordinance by construing the setbacks to be mandatory ones.
Plaintiff's Motion at 14 (emphasis in original).
Id. at 3.
Plaintiff's Reply to Response to Motion for Summary Judgment and Brief in Support at 1-3.
Plaintiff's arguments fail to persuade. After reviewing the evidence contained in the written record, this Court finds that the City Council's decision to revoke the conditional use permit was supported by substantial evidence as required under 47 U.S.C. § 332 (c)(7)(B)(iii).
An analysis of Plaintiffs arguments begins with the text of the Wichita Falls Zoning Ordinance (the "Ordinance"). In early May 2001, the City Council amended the Ordinance to include a new section, § 5910, specifically addressing cellular phone "communications towers." Section 5910, in relevant part, states that:
Defendants' Brief at 2 (stating that the Ordinance was amended "on or about May 1, 2001").
A Conditional Use Permit shall be required for all communications towers unless exempted
herein. . . . Regulations related to communications towers, antennas and structures shall include the following as applicable, and shall be subject to other terms as may apply under Section 7200 (Conditional Use Procedure). Communication towers shall only locate, with a Conditional Use Permit, within Light Industrial (LI) and Heavy Industrial (HI) zoning districts unless otherwise permitted herein.
A. A communications tower should be setback from rights-of-way and adjacent properties equivalent to the height of the tower. Consideration toward reducing the setback may require specifications as to the engineered "fall" characteristics of a tower and the nature of neighboring land uses. The following may be considered minimum setback requirements:
1. For ground-mounted proposals where the allowed zoning district is adjacent to a residentially-zoned district or residential use, such tower shall not be located closer than 300 feet from the residential use or residential zoning boundary and not be higher than 100 feet at that distance. For every additional foot of height proposed, the tower shall be setback an additional one foot.
2. Towers shall be setback a minimum of 100 feet from a public right-of-way classified as a major collector or of a larger classification. For a public right-of-way classified smaller than a major collector, the minimum setback shall be 50 feet. The classification of streets, roads and highways shall be in accordance with the Thoroughfare Plan, as amended.
J.A. at 1.
Procedural aspects of conditional use applications are governed by §§ 7200-7299 of the Code). The director of community development reviews an incoming application, schedules a public hearing, and then submits a report to the Commission. The Commission reviews the application, conducts a hearing, and either approves, conditionally approves, or disapproves the application according to certain specified criteria — the most important of which for the purposes of this case is § 7235(A) which mandates "[c]onformance with applicable regulations and standards established by the zoning ordinance." The Code also provides for appeal from a decision of the Commission to the City Council.
Code § 7205.
J.A. at 102 (Code § 7230). See Id. at 59 (Staff Report of the Commission).
Id. at 102 (Code § 7235(A)). Section 7235 states that a conditional use application "shall be reviewed and evaluated" using the following criteria:
A. Conformance with applicable regulations and standards established by the zoning ordinance.
B. Compatibility with existing or permitted uses on abutting sites, in terms of building height, bulk and scale, setbacks and open spaces, landscaping and site development, and access and circulation features.
C. Potentially unfavorable affects [effects] or impacts on other existing or permitted uses on abutting sites, to the extent such impacts exceed those which reasonably may result from use of the site by a permitted use.
D. Location, lighting, and type of signs, and relation of signs to traffic control, and adverse effect on adjacent properties. Safety and convenience of vehicular and pedestrian circulation in the vicinity, including traffic reasonably expected to be generated by the proposed use and other uses reasonable and anticipated in the area considering existing zoning and land uses in the area.J.A. (§ 7235).
Id. at 102 (Code § 7245)
The initial question this Court faces is how to construe the rather odd linguistic structure of § 5910(A) which regulates the setback requirements at the heart of this case. A setback is defined as "[t]he minimum distance from the street right-of-way line or any other lot line that establishes the area within which the principal structure must be erected or placed." Subsection A begins with a "should" sentence containing the general provision governing setbacks:
Code § 2030.
A communications tower should be setback from rights-of-way and adjacent properties equivalent to the height of the tower.
Id. at 1 (emphasis added).
The section then continues with two permissive sentences containing the word "may" (quoted supra): the first lists two factors for which additional information may be needed in order to "consider" reducing the setbacks, and the second lists what "may be considered" to be minimum setback requirements. These provisions appear intended to provide the local authorities discretion to waive or lessen the setbacks "required" in the general provision. As the latter two sentences of § 5910(A) are permissive "may" provisions, this Court focuses its inquiry on the proper construction of the first sentence of § 5910(A).
The proposed tower is located less than its Commission and Board approved height of 62.8 feet from the adjacent North, South, and East property lines. Both sides misunderstand the significance of this fact in the context of the Ordinance. Defendants argue that by virtue of failing to meet the setback requirements, Plaintiff has violated the Ordinance. In other words, Defendants would construe "should" to equal "shall." Indeed the City Council's written explanation of its decision (quoted supra) states that the proposed site "violates" the setback requirements of § 5910 (as set forth in both the general and subsidiary provisions of § 5910). Plaintiff, on the other hand, argues that because U.S.C. offered evidence in support of its proposed site, the City Council acted without authority in revoking the conditional permit based on the evidence before it. In so doing, Plaintiff attempts to turn the "should" clause on its head, arguing, without textual support, that the City Council was obligated to grant Plaintiff discretionary relief. Plaintiff's argument goes too far.
Id. at 60 (Staff Report of the Commission to the City Council). The precise distances are: 17.5 feet from the north property line; 60 feet from the south property line; and 25 feet from the east property line. The distance from the west property line is 230 feet.
The meaning of the word "should" is determined by examining the context in which it appears. After examining cases holding that "should" can be both mandatory and permissive, a court in the Southern District of New York reached the sensible conclusion that: "the use of the word `should' does not automatically denote either a mandatory or permissive direction. Rather the meaning depends on the context in which the words are found." Bord v. Rubin, 1998 WL 420777, at *4 (S.D.N.Y. Jul. 27, 1998) (citing McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 347 (8th Cir. 1985). See also U.S. v. Smith, 282 F.3d 1045, 1047-48 (8th Cir. 2002) (discussing a Circuit split regarding construction of "should" in a section of the U.S. Sentencing Guidelines). The use of the word "should" in the same section as both "shall" and "may" implies that the terms were used to denote differing legislative intent. See Louisiana Seafood Management Council v. Louisiana Wildlife and Fisheries Comm'rs, 715 So.2d 387, 394-95 (La. 1998); c.f. Edwards v. Brandywine Hosp., 652 A.2d 1382, 1389 (Pa.Super. 1995). In this case, the evidence supports the reading of the "should" clause of § 5910(A) as a permissive provision conferring discretionary authority on the Commission and City Council. C.f. Starks v. Kentucky Health Servs., 684 S.W.2d 5, 7 (Ky. Ct., App. 1984) (construing "should" as permissive); State v. Thomas, 528 So.2d 1274, 1275 (Fl.Dist.Ct.App. 1988) (same); Roanoka Memorial Hosps. v. Kenley, 352 S.E.2d 525, 529 (Va.Ct.App. 1987) (same).
Testimony during the City Council hearing supports this reading of the general provision of the Ordinance. The testimony suggests that the current "should" clause was originally a "shall" clause and that it was changed, near the end of the drafting process, in order to give the City Council and Commission a greater degree of discretion in reviewing conditional use permit applications. One of the constituents who spoke in opposition to the permit application apparently based his remarks on a prior draft of the Ordinance, misquoting the provision at issue as: "A communication tower shall be set back. . . ."
J.A. at 89 (emphasis added). The same citizen stated that: "I know one of the Ten Commandments said Thou Shall Not Kill, and, am I to believe this means, might, may, could or should not kill? I don't want to play word games." Unfortunately, much legal analysis appears to the untrained eye to be mere "word games."
U.S.C.'s application was the first one under the new Ordinance and thus the first opportunity for the City Council to apply the new provisions to a proposed tower site. Several members of the City Council commented on the challenge of applying the new ordinance for the first time to what was an apparently non-conforming application. City Councilor Bill Altman stated that:
U.S.C. apparently acquired the site prior to the enactment of § 5910. Id. at 86.
[t]he problem I have now is that we put that ordinance into effect, and the first, you're the first person that comes up and wants to put up a tower and, ask for a waiver of that ordinance that we spent so many months carefully working on with the assistance of industry.
Id. at 80.
In response to a statement that "the setbacks in the ordinance aren't hard and fast," City Councilor Johnny Burns stated that:
Well, they were, till we changed it [sic]. I think that needs to be understood, that they were. It said the words "shall" and "must" were changed to "may" and "can," or "should." "Should" and "may" from "shall" and "must." We made that change ourselves, at that point. At this point, I'm regretting that we made the change. . . . We changed those two words to allow a little flexibility, a little flexibility, in cases where it was deemed appropriate that it's [sic] flexible. I don't know that this is an instance where it is appropriate that it be flexible. . . .
We wanted a little wiggle room. To me, I don't know that we, that we're using wiggle room here. To me, we're using dance floor room. And, and maybe we need to, I don't think we do, but it's just my opinion that if we're going to, if we go and, and change our requirements and allow this, then we have effectively nullified having an ordinance in the first place. And, and we ought to just say you can build one, anywhere.
J.A. at 83-84, 86.
The Mayor, John Lueck, expressed concern regarding the degree of discretion provided by the Ordinance, stating that he thought "the ordinance that was passed was just too vague. I think we should have just said it's going to be this way, or it's going to be that way."
Id. at 88.
It is undisputed that the proposed site is located closer to adjacent property lines than it "should" be under the setback provision of § 5910(A). In addition, the proposed tower is less than 300 feet from a residentially-zoned district and residential use and thus runs afoul of the minimum setbacks listed in § 5910(A)(1). Although the permissive "may" plus "shall" combination of § 5910(A)(1) does not require that the tower be more than 300 feet from such residential uses, the City Council certainly could consider this factor in deciding how to exercise its discretion. The proposed site could reasonably be viewed, under the provisions of the Ordinance, as too close to adjacent property lines, nearby residential uses, and to a nearby residentially-zoned district. These three factors comprise "more than a scintilla of evidence which a reasonable able mind might accept as adequate to support a conclusion." Carrier, 944 F.2d at 245. In such a situation, just as the Commission had discretion to grant the permit in spite of the issue of setbacks, the City Council, on appeal, had discretion to revoke the permit on the same grounds. The members of the City Council, in the exercise of the discretion provided for by the Ordinance, chose to revoke the conditional use permit. Their decision to do so was supported by substantial evidence.
The proposed site is 220 feet from the nearest residence and 260 feet from the nearest residentially-zoned district. Id. at 60. It should also be noted that the tower's engineering fall characteristics (estimated to fall in an area approximately half its height) would cross the north and east property lines. Id. at 65.
There is substantial evidence for three of the four reasons listed in the City Council's second ordinance (quoted supra). However, there is not substantial evidence for the fourth reason offered by the City Council: the "[p]roposal may adversely impact the safety and operations of Kickapoo Airpark." U.S.C. had obtained a "No Hazard" statement from the Federal Aviation Administration and there was no evidence of opposition from Kicakpoo Airpark.
J.A. at 21-22, 62.
It is true that there is also evidence that some of the members of the City Council may have been under the impression that the "should" and "may" provisions were equivalent to "shall" provisions, and thus that the proposed site was in violation per se of § 5910(A). Indeed the decision ordinance, quoted supra, stated that the "proposal violates setback requirements," rather than a more precise formulation such as: "the City Council chose not to grant a waiver of the general setback requirements provided for in § 5910." This, however, is immaterial under the facts of this case.
This is not a case, as U.S.C. alleges, where the City Council's decision was based on mere generalized concerns which do not qualify as substantial evidence. See, e.g., Preferred Sites, 296 F.3d at 494 ("generalized objections with no articulated reasons" are not substantial evidence); Oyster Bay, 166 F.3d at 496 (a "few generalized expressions of concern with `aesthetics' cannot serve as substantial evidence"). Nor was the City Council's decision based on impermissible considerations regarding alleged environmental effects relating to communications towers. See 47 U.S.C. § 332 (c)(7)(B)(iv).
Plaintiff's allegation that the City Council unreasonably discriminated against it is also without merit. Plaintiff has several other communications towers in the City of Wichita Falls. Plaintiffs application was the first under the newly enacted § 5910 and there is no evidence that Defendants were unreasonably discriminated against compared to other communications providers.
Id. at 52 (computer graphic showing locations of other U.S.C. towers and the proposed site).
This Court holds that the City Council acted on the basis of substantial evidence in the record before it to revoke Plaintiff's conditional use permit. As there are no disputed facts and the parties have agreed to the disposition of this case on Plaintiffs Motion for Summary Judgment, summary judgment is proper for Defendants.
III. CONCLUSION
For the foregoing reasons, Plaintiffs Motion for Summary Judgment is hereby DENIED, and summary judgment is GRANTED in favor of Defendants. Plaintiff's claims are hereby DISMISSED WITH PREJUDICE. Costs shall be taxed against Plaintiff.
It is so ORDERED.