Agenda - Planning Commission - 10/09/2014

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August 25, 2014 ( Volume 8 1 Issue 16 Zoning Bulletin It held that the City had satisfied the Act's writing requirements when considering the other written documents in the record such as the hearing transcripts and minutes. In light of the Eleventh Circuit's opinion, the district court was left to consider whether, based on the whole written record, the City's decisions were supported by substantial evidence. T-Mobile moved for partial summary judgment. It asked the court to find that there were no material issues of fact in dispute and to decide the matter in its favor on the law alone. It argued that the City's denials and conditional ap- proval violated the Act-47 U.S.C.A. § 332(c)(7)(B)(iii)—because they were not supported by substantial evidence. T-Mobile asserted that there was no ev- idence that nearby alternative locations were actually available. T-Mobile also argued that "generalized aesthetic concerns, lay persons' unsubstantiated opinions about the need for cell towers, and bald speculation about property values" were not sufficient to support the City's denials of the towers. DECISION: Summary judgment motion denied. The United States District Court, N.D. Georgia, Atlanta Division, held that substantial evidence found in the whole record supported the City's denials and conditional approval of the permits. In so holding, the court agreed with T-Mobile that there was no evidence that there were no available alternative sites for the three towers. As to aes- thetic concerns, the court agreed with T-Mobile that "[a] blanket aesthetic objection does not constitute substantial evidence" under § 332 of the Act. However, said the court, "aesthetics may constitute a valid basis for denial of a wireless permit if substantial evidence of the visual impact of the tower was before the zoning decisionmaker." Here, the court found that there was such substantial evidence supporting the aesthetic objections to the permit applications. The court found that aes- thetic objections to all three towers raised by both City staff and residents were supported by balloon test evidence. The court also found that residents had spoken about the towers' "specific impact on their residences." The court concluded that, therefore, "the aesthetic objections raised in [the] case [went] beyond general concerns, and . . . [were] `grounded in the specifics of the case.' " The court also found that, despite the testimony of some residents to the contrary, the testimony of other residents that T-Mobile service in the proposed towers' coverage area was already adequate constituted substantial evidence that supported the City's decisions. In so finding, the court said that the City Council "was entitled to credit some witnesses over others . . . . " In summary, the court concluded that there was "substantial evidence in the written record —in the form of specific, fact -based aesthetic objections and testimony regarding adequate coverage in the area —to support all three of the City's decisions." Accordingly, the court denied T-Mobile's motion for partial summary judgment. See also: Southeast Towers, LLC v. Pickens County, Ga., 625 F. Supp. 2d 1293 (N.D. Ga. 2008). See also: T-Mobile South LLC v. Cobb County, Ga., 52 Communications Reg. (P & F) 522, 2011 WL 336641 (N.D. Ga. 2011). 8 ©2014 Thomson Reuters