Agenda - Planning Commission - 10/09/2014

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Zoning Bulletin August 25, 2014 ( Volume 8 I Issue 16 The Background/Facts: T-Mobile South, LLC ("T-Mobile") wanted to build three cell phone towers in Milton, Georgia (the "City") so that it could "provide reliable in -home cell phone service for its existing customers in that area." In November 2009, T-Mobile applied to the City for use permits to construct the three towers. The three locations whereT-Mobile proposed to build the towers in Milton were: the "Mountain Road" location; the "Cogbuin" location; and the "New Providence" location. Because each of the three properties where T-Mobile wanted to locate its towers was zoned "agricultural," Milton's zoning regulations required T-Mobile to get a use permit in order to build the towers. In March 2010, the City's Planning Commission held a hearing to discuss all three applications. Proponents and opponents both presented evidence in support of and against the applications. At that meeting, the Planning Com- mission voted unanimously to deny all three applications. A councilmember offered his reasons for denying all three applications, including: a lack of evi- dence that T-Mobile service users saw the need for better T-Mobile coverage in the area; aesthetic concerns; and the potential existence of alternate tower sites that could be more aesthetically pleasing. The hearing was transcribed, and minutes memorializing the hearing were later approved. In April 2010, the City Council held a public hearing on the three applications. Again, proponents and opponents presented evidence in support of and against the applications. The Council ultimately voted to deny the ap- plications for use permits at the Mountain Road and Cogburn locations, and to approve the application for the New Providence with conditions. At the hear- ing, reasons given by the councilmembers for the denials included: a lack of evidence of a "coverage gap" in the area; and the possibility of alternative sites that would minimize the adverse aesthetic impact. Reasons given for the conditional approval of the New Providence location included aesthetic concerns. The hearing was transcribed and summarized in approved minutes. After the City Council hearing, the City sent three separate letters to T-Mobile notifying it of the City's decision, one letter about each application. The letters did not recite the reasons why the applications were denied or subject to conditions. In May 2010, T-Mobile filed a lawsuit against the City, alleging violations of the Telecommunications Act of 1996 (the "Act") and seeking injunctive relief. The lawsuit challenged the denial of the applications for cell phone tower construction permits at the Mountain Road and Cogburn locations. It also challenged the conditional approval of the application for a construction permit for the New Providence Road location on the theory that the conditions put on approval effectively made it a denial. Among other things, T-Mobile claimed that Milton's action on each of the three permit applications violated the Act, 47 U.S.C.A. § 332(c)(7)(B)(iii), which requires that denials of ap- plications be "in writing and supported by substantial evidence contained in a written record." The district court agreed with T-Mobile that the City had failed to meet the statute's writing requirement because reasons for the denial and conditioned approval were not detailed in the three letters. On appeal, the United States Court of Appeals, Eleventh Circuit, reversed. © 2014 Thomson Reuters 7