Agenda - Planning Commission - 06/07/2012

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Zoning Bulletin April 25, 2012 1 Volume 6 1 No. 8 telecommunications facility in a residential neighborhood had to submit a special exception application to the Board. Here, AT & T proposed a facility consisting of a 15-foot tall storage shed and an 88-foot tower disguised as a tree (the "tree monopole"). The facility was to be erected behind a Masonic lodge in an otherwise residential neighborhood, ap- proximately 100 feet from nearby residences. Under the Ordinance, the Board could approve the special exception applica- tion if it was "harmonious with" and would not "adversely affect the use of ... neighboring properties ...." Under the County's Policy Plan, which comprised a portion of the County's Comprehensive Plan, it was stated that new telecommu- nications should be located "on properties that provide the greatest opportunity to conceal the telecommunications facilities," and designed to "provide( ) the least visual impact on residential areas ...." Ultimately, the Board denied AT & T's special use exception because it did not conform to the County's Comprehensive Plan or the standards for approval of a special use exception under the Ordinance. In its denial, the Board specifi- cally noted that the proposed facility: (1) was to be located 100 feet from two of the neighboring resi- dences; (2) would extend thirty-eight feet above the closest tree; (3) would rise approximately forty-eight feet above the average height of the existing trees on the adjacent property; (4) was to be locat- ed on a site containing concrete pads, with only a few trees and a small, grassy area with dense brush; and (5) called for supplemen- tal vegetation that, when full grown, would not reach a sufficient height to minimize the tree monopole's visual impact. The Board also took community opposition into consideration as one of the factors it considered in the denial. Following the Board's denial of the special exception application, AT & T filed a complaint pursuant to 47 U.S.C.A. 5 332(c)(7)(B)(v). It alleged that the Board's decision: violated the "substantial evidence requirement" (g 332(c)(7)(B)(iii)) of the federal Telecommunications Act of 1996 (the "Act"); and that it amounted to an effective prohibition of wireless services in violation of 5 332(c)(7)(B)(i)(II). Finding there were no material issues of fact in dispute, and deciding the mat- ter on the law alone, the district court issued summary judgment in favor of the Board. The court found the Board "reached a reasonable decision" to deny the special exception application based on a determination that the proposed facility was not in harmony with the Ordinance and the County's Comprehensive Plan. The court also determined that the denial did not amount to an effective prohibi- tion of wireless services in violation of the Act, particularly in light of evidence of the Board's previous approval of numerous zoning applications for telecommuni- cations facilities. AT & T appealed. DECISION: Affirmed. © 2012 Thomson Reuters 3