Agenda - Planning Commission - 02/05/2009

Home

(-=--) , , ) , ,I " it ':1 ;1 'I :1 'i '! \! H 'I :i L l ~ <il December 25, 20081 Volume 21 No. 24 .--:..... "city"). It sought permission to build a 120-foot-tall telecommunications tower in the city. Ultimately, the city's Board of Commissidner1;: (the "Board") de- nied T-Mobile's application. The Board cited three primary reasons for the denial. First, T-Mobile failed to show that denial of the application ,would "prohibit the provision of personal wireless services" given that: drive studies indicated there were no dropped calls in the area. Second, the proposed 120-foot tower was not the "least intrusive means of ful- filling a gap, if any exist[ed]," given: (a) the Code's preference for com- mercial districts over residential districts for the siting of telecommunica- tion facilities and the fact that the proposed site was zoned residential; (b) the proposed tower was not compatible with the existing use of the proposed site as a church; and (c) the aesthetic impact of the proposed tower. Third, the Commission had considered the Golden factors (fac- tors that Kansas courts had recommended that cities review when de- ciding whether to grant special use permits) and had decided to reject T-Mobile's application. T-Mobile brought a legal action again~t the city. The court held that the city's denial of the application violated the . Federal Telecommunications Act of 1996 (the "TCA") (47 U.S.c. S 332) because the denial was not supported by substantial evidence' and had . the effect of proJ::libiting the provision of personal wireless services. The court ordered the city to approve T-Mobile's application~ The city appealed. . . DECISION: Affirmed in part. The United States Court of Appeals, Tenth Circuit, held that the Board's conclusion was not supported by substantial evidence, as was re- quired under the TCA to support denial of a special use permit. "While Congress expressly preserved local zoning authority over the construction of personal wireless service facilities when it enacted the TCA, Congress adopted the TCA in order to promote cOIPpetition and higher quality in telecommunications services. . . ." To that end, the TCA liinited the decision-making authority of local government bodies regarding the placement of wireless communications facilities through six restrictions. One of those restrictions was that the TCA required any decision by a local government "to deny a request to place, construct, or modify personal wireless service facilities. . . be in writing and supported by sugstantial evidence." "Substantial evidence" was evidence that a rea- sonable mind would find supported the conclusion of a decisionmaker. A ,court's "substantial evidence inquiry" required a determination as to whether the zoning decision at issue was supported by substantiai evi- d~nce in the context of applicable state and local law. Thus, to determine whether substantial evidence existed to support the Board's decision, the court looked at the requirements set forth in city's ') \ @ 2008 Thomson ReuterslWest 11 67-