Agenda - Planning Commission - 10/02/2008

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,~ ( \ :1 iI 11 H ~l :1 H ;j ii ,I i! i! ~i. ii h Ii II 'I II :1 il j: !! :i ) 1 September 10, 2008 I Volume 2 I No.1 Z ./ was done; and (5) granting the variance would not diminish the value of surrounding properties. The court also explained that the ZBA had to consider the TCA when evaluating On1.illpoint's' application. In order to effectuate the TCA's national policy goals of expanding the availability of wireless telecommunications services, the TCA preempted local law under certain conditions. While the TCA preserved state and local authority over the siting and construction of wireless communication facilities, that authority would be preempted if: a board decision was not sup- ported by substantial evidence; or it effectively prohibited the provi- sion of wireless service. The court disagreed with Daniels' argument that ZBA members overly deferred to the TCA when considering Omnipoint's applica- tion. The court found the ZBA correctly characterized the TCA as an "umbrella" under which a ZBA must evaluate an application to construct a telecommunications tower. The court concluded that it was appropriate for the ZBA to contemplate whether a decision to deny Omnipoint's variance application would have the effect of pro- hibiting towers in violation of the TeA. The 'court further found that there was no evidence that contemplation resulted in board members deeming certain variance criteria mooted by the application of the TCA, as Daniels had argued. Addressing Daniels' alternative argument, the court also held that the ZBA's decision was lawful because Omnipoint met the statutory requirements for a variance. While the court briefly explained how the evidence supported the ZBA's decision regarding the other re- quired'variance criteria, the coUrt focused on Omnipoint's burden to prove that an unnecessary hardship existed. The court noted that in order to prove unnecessary hardship, an applicant had to show that the hardship was a result of specific, "unique" conditions of the prop- erty. The court then adopted a hardship rule that it said boards must follow to ensure compliance with the TCA. The court said that to en- sure compliance with the'TCA, a broader application of the hardship' .criteria was necessary. The court noted that under an ordinary; more narrow application of the hardship criteria, if a parcel of land was found to be similar to the sUrrounding properties in terms of its gen- eral characteristics that would normally result in a negative finding regarding hardship. However, explained the court, when an applica- tiori to build a tower was designed to fill a significant gap in wireless service coverage-as was the case with Omnipoint's application-the suitability of the specific parcel of land for that purpose must be con- sidered. Thus, the location, topography and size of a parcel were fac- tors to consider in determining whether the parcel was "unique" un- @ 2008 Thomson Reuters/West 11 71