Agenda - Planning Commission - 12/03/2009

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u Zoning Bulletin August 25,20091 Volume 31 No. 16 (~ In September 2006, T-Mobile sought to close a "service gap" and to expand its coverage ill the city. Pursuant to'the city's municipal code (the "Code"},T-Mobile applied to the city for a "special use permit" {"SUP"} to construct an additional wireless telecommunications facility ("WCF") at a particular site {the "Site"} in the city. The permit 'application "ana- lyzed eighteen site. alternatives and proposed the construction of a 116- foot monopole with three antennas at the top." Eventually, the city Planning Commission denied T-Mobile's applica- tion. T-Mobile appealed, and the City Council also denied the applica- tion. The City Council based its decision on the conClusions that the pro- posed WCF would: have a "commercial appearance 'and would detract from the residential character and appearance of the surrounding neigh- borhood," which was "predominately single-family residences;" and "negatively impact the views from single-family residences in the vicin- ity." The City Council also concluded that T-Mobile's Site was the "least intrusive," since "[a]t least four alternative sites were potentially accept- able to provide [the required coverage]." T-Mobile filed an action in federal district court against the city. Among other claims, I t alleged that the city's denial of the SUP violat- ed S. 332{~} of the federal Telecommunications Act of 1996 {the "Tele- communications Act" or the "Act"} {47 U.S.C. S 332{c}{7}{B}}. Section 332(c}{7}{B} of the Act provided that local regulations "shall not pro~ hibit or have the effect of prohibiting the provision of personal wireless services." Section 332{c} further required that a 10cal zonj.ng decision be , "supported by substantial evidence." The district court ruled in T-Mobile's favor. It found that T-Mobife's proposed Site "was the least intrusive 'means to close a significant gap inits wireless service in the [c]ity." It also found that "the [c]ity's denial was not supported by substantial evidence." It concluded that" [b ]ecause the [c]ity prevented T-Mobile from closing a significant gap through the 'least intrusive' means available, the [c]ity's decision ha[d] the effect of 'prohibiting wireless services in violation of [S] 332(c}{7}." The city appealed. () DECISION: Affirmed. The United States Court of Appeals, Ninth Circuit, found that the ,city's denial of the special use permit was supported by substantialevi- dence. Nevertheless, the court concluded that the' denial violated the Telecommunications Act because the city had failed to rebut T-Mobile's . showing that its proposal constituted the least intrusive means of rem- edying. the service gap. The court 'explained that in reaching its conclusion, it applied a two- part test: {1} consideration of whether the city's denial under the city @ 2009 Thomson Reuters 9 55