Agenda - Planning Commission - 02/05/2009

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Zoning Bulletin Code to find the substantive criteria to be applied. The court concluded that the Board's decision was not supported by substantial evidence be- cause the decision was based on: criteria that was not in the Code; mis- application of the Code's criteria; rnlsunderstanding of evidence; and a failure to consider evidence. Specifically, the Board's deriial of T-Mobile's application on the grounds that T-Mobile had "failed to show that the denial of the Special Use Permit would prohibit the provision of personal wireless services" was not supported by substantial evidence because the Code did not require telecommunication providers to demonstrate pro- hibition of personal wireless services. Also, the Board's reliance on the drive test results of no dropped calls was based upon a misunderstand- ing of the test's purpose (the test was not designed to measure dropped calls), and therefore the test could not provide the substantial evidence necessary to support the Board's decision. The Board also erred in re- quiring T-Mobile to demonstrate that its proposal was the least intrusive means of filling a serVice gap because nothing in the Code permitted the Board to impose such a requirement. Furthermore, the residential zon- ing designation of the site did not provide substantial eVIdence necessary to uphold the Board's decision because the Board failed to consider evi- dence of the actual commercial nature of the area sur,rounding the site. Moreover, although the tower and the church uses were not directly re- lated, there was no substantial evidence for finding the proposed tower was incompatible with the existing use. Also, while aesthetics was a per- missible ground for d~nial of a permit under the TCA if substantial evi- ') dence of the visual irripact of the tower was before the Board, here there . were no concerns raised by residents as to the tower's aesthetic impact; there was only the Board's generalized aesthetic concern based on a pho- to simulation of the proposed tower. Finally, three of the Golden factors considered and relied on by the Board in its denial were: the character of the neighborhood; the aesthetic impact of the proposed tower; and the dropped call data-all of which (as already discussed) were not sup- ported by substantial evidence. . See also: U.S. Cellular Telephone of Greater Tulsa L.L.G. v. City of Bro- ken ArroUl, Oklahoma, 340 E3d 1122 (10th Cir. 2003). See also: MetroPCS, Inc. v. City and County of San Francisco, 400 E3d . 715 (9th Cir. 2005). Case.'~N;ote: The court acknowledged that substantial evidence could exist to 'support a decision to refuse to issue. a Special Use Permit even if alternative conclusions could be drawn from the evidence. HdW,ever, the court noted that circumstance was not presented here. .{ . , .' . ::" ::+7:.y "'.~; ;'?7 .~:::,,:,?( <.:~:f1f~:;:.>~:::r~~T::;.'",:;~.:-:::-::;;-_~~;~~::J'.~~;' '=~:-: 'S:~;-':",=;~",\:,~:'Ef,:.:~ ;;;; ;irJ~i!v~B~~%t!~g~,~~,~~~~~~}!~;~~[~t~~!~~~~~~~;~~~~!i~~~~ltl't~E1~ 12 @ 2008 Thomson ReutersIWest 68