Agenda - Planning Commission - 11/02/1998

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Page 2 October 25, 1998 Z.B. Communication Tower Provider challenges denial of permit for cell tower Citation: C-Call Corp. v. Zoning Board of Appeals of the City of Edwardsville, Appellate Court of Illinois, 5th Dist., No. 5-97-1036 (1998) C-Call Corporation wanted to build a cellular tower in Edwardsville, Ili. It applied for a special use permit because the proposed site was zoned "light manufacturing." The city zoning board held a public hearing, at which C-Call said the tower would be 170 feet high and could withstand an inch of ice and 100 mph winds. The company said it would ensure the soil could hold a proper footing for the tower. Area residents objected to the tower, expressing general concerns about safety, property values, and aesthetics. A city ordinance required the zoning board to consider several factors be- fore granting a special use permit, including the uses of nearby properties, the relative gain as compared to the hardship imposed on the applicant, and how the permit would affect property values and public safety. The board denied C-Call's request, finding the company didn't show a need for a permit. The board found the tower would adversely affect public safety, would be inconsistent with nearby properties, and would diminish property values. C-Call appealed to court, seeking a court order requiring the board to issue a special use permit. C-Call claimed the board violated the federal Telecom- munications Act of 1996, which stated any decision to deny permission for a wireless service facility had to be supported by "substantial evidence." The court awarded C-Call judgment. It found the board violated the Act by not basing its decision on substantial evidence. The court originally ordered the board to hold another hearing, but at C-Call's request ordered the board to issue a permit allowing C-Call to build the tower. The board appealed, claiming the court should have allowed it to hold an- other hearing instead of ordering it to issue C-Call a permit. DECISION: Affirmed. The trial court properly ordered the board to issue C-Call a special use permit. The board's denial of C-Call's application wasn't supported by sub- stantial evidence. Although the city's zoning ordinance required that C-Call prove it was entitled to a permit, the federal statute shifted this burden to the board. The board had to show substantial evidence supported its decision to deny C-Call's application; C-Call didn't have to prove it had a right to the denied permit. The only evidence opposing C-Call's request that the board considered was resi- dents' generalized concerns about safety, property values, and aesthetics. This wasn't the kind of "substantial evidence" the Act required. Although the court could have allowed the board to hold additional hear- ings, this "would frustrate the [Act's] intent to provide aggrieved parties full relief on an expedited basis." In failing to produce substantial evidence at the