Agenda - Planning Commission - 01/31/2013 - Special

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September 25, 2012 1 Volume 6 1 Issue 18 Zoning Bulletin which T-Mobile wanted to replace with a 90-foot pole disguised to look like a pine tree with antennas fashioned as branches (a "monopine"). This site was not located within the two cellular tower overlay zones designated in the Township's Zoning Ordinance, where wireless facilities are considered a use permitted by right, subject only to site approval. Therefore, T-Mobile needed to seek special land -use approval and site -plan approval. On December 17, 2008, T-Mobile filed an application with the Township to obtain special land -use approval for the proposed site. Ultimately, the Township Planning Commission recommended to the Board of Trustees of the Township (the "Board") that T-Mobile's ap- plication should be denied. The Board denied T-Mobile's application. T-Mobile then sought an injunction in district court that would direct the Board to grant its application. Among other things, T-Mobile argued that: (1) the denial of its application was not supported by substantial evidence, in violation of the Telecommunications Act, 47 U.S.C.A. § 332(c)(7)(B)(iii); and (2) the denial of its application had the "effect of prohibiting the provision of personal wireless services" in violation of the Telecommunications Act, 47 U.S.C.A. § 332(c)(7)(B)(i)(II). The district court held that the Township's grounds for denial were not supported by substantial evidence. The district court also held that T-Mobile could not feasibly locate the facility elsewhere and that the Township had effectively prohibited the provision of wireless services in violation of the federal Telecommunications Act. The Township appealed. DECISION: Affirmed. The United States Court of Appeals, Sixth Circuit, first agreed that the Township's grounds for denial of T-Mobile's application were not supported by substantial evidence in violation of the Telecommunica- tions Act, 47 U.S.C.A. § 332(c)(7)(B)(iii). The court explained that pursuant to 47 U.S.C.A. § 332(c)(7)(B)(iii): "Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless ser- vice facilities shall be in writing and supported by substantial evidence contained in a written record." The court explained that there must be substantial evidence "in the context of applicable state and local law." Thus, the nature of the evidence relied on by the local zoning board in its decision must be "substantial evidence" that is "substantiated." Here, the court found the Township's reasons for denial were not based on substantial evidence in the record. The court found the evi- dence relied upon by the Board —such as general concerns from a few residents —was merely "alleged," not "substantiated." 6 © 2012 Thomson Reuters