Agenda - Planning Commission - 12/03/2009

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I I I 56 August 25, 2009 I Volume 3 I No. 16 Zoning Bulletin Code was supported by substantial evidence; and (2) if it was, consider- ation of whether the denial violated S 332(c). Under the first-part of the inquiry, in the context of state and local law-not federal standards-there had to be "more than a scintilla of evidence" to support the city's denial. Here, the Code provided that when considering a SUP, the city could consider certain factors includ- ing: the height of the proposed tower; the proximity of the tower to resi- dential structures; the nature of uses on adjacent and nearby properties; the surrou;1ding topography; and the surrounding tree coverage and fo- liage. The court found these were "legitimate concerns" for the city. It also found that there was "more than a scintilla of evidence" concern- ing those factors, given that residen~s claimed that: the monopole would have a detrimental impact on surrounding residential property; the pole would not be completely screened; and the pole would interfere with res- idents' scenic views. Having found substantial evidence supported the city's permit denial, . the court addressed the second-part of the inquiry-whether the city's permit denial violated S 332(c). The city's deni~l would violate S332(c) if it constituted "either an outright prohibition or an effective prohibi- tion on the provision of telecommunications services." The court found the city's denial was an effective prohibition of such services because: (1) there was a "significant gap" in service coverage; and (2) T-Mobile had shown that its proposed Site was the least intrusive means to close the gap, and the city had failed to show "the existence of some poten- tially available and technologically feasible alternatives to the proposed. [Site]." The court found that the alternative sites suggested by the city as . "adequate" were, in fact: "speculative" and up.available. See also: Sprint Telephony.PCS, L.P. v. County of San Diego, 543 F.3d . 571 (9th Cir. 2008), cert. denied, 2009 WL 1835182 (U.S. 2009). See also: MetfoPCS, Inc. v. City and County of San Francisco, 400 R3d 715 (9th Cir. 2005). Case Note: The court explained that if T-Mobile had shown only that the city's denial "potentially prohibit[ed] the provision oftele- communications servi~es," that would have been insufficient to find a violation of S 332(c). Case Note: Because the court concluded that the city failed to show that there were any available alternative sites, it did not determine whether proposed alternative sites would have provided sufficient coverage to close the gap in T-Mol;>ile's coverage. 10 @ 2009 Thomson Reuters (=) ( ) ( , ,-) I ! I I I