Agenda - Planning Commission - 01/07/2016

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December 10, 2015 1 Volume 9 1 Issue 23 Zoning Bulletin Telecommunication Act allows anyone "adversely affected" by a final decision of a state or local government inconsistent with the provisions of § 332(c)(7)(B) to com- mence an action "in any court of competent jurisdiction," 47 U.S. C.A. § 332(c)(7)(B)(v). The court emphasized that a plaintiff's mere allegation that it has been adversely affected is insufficient to establish standing to sue under the Act, and instead, a plaintiff mist also establish the elements of constitutional standing to invoke the court's jurisdiction. The court found that Verizon was not an applicant, that it lacked any lease agreement or other enforceable legal interest related to the zoning ap- plication for the wireless facility, and that it did not participate in the bulk of the proposal design and application process. The court found that lack of involvement and of a cognizable legal interest demonstrated that "Verizon could not have suffered a concrete and particularized injury fairly traceable to the Board's actions." Moreover, the court found that any such injury would not be redressable by a favorable decision in the action because even if the court ordered the Board to approve the Applications, it could not order CWS to allow Verizon to locale on the proposed facility absent a legally en- forceable contract. Consequently, the court found that Verizon had failed to allege a sufficient personal stake in the controversy to establish standing. As to CWS, the court found that CWS did have a sufficient personal stake in the matter. Although it did not possess a property interest, it had shown a sufficient personal stake in the outcome of the proceedings to demonstrate constitutional standing based on the contract with the landowner (i.e., the Church) and the expenditure of "substantial time and money," found the court. (Although Verizon did not have standing, the court addressed the Plaintiffs' argument that the Board's decision prohibited the provision of "personal wireless services" by Verizon in violation of the Act "in the inter- est of creating a complete record.") Case Note: The Plaintiffs had also alleged that the Board's written decision denying the ap- plication was insufficient under the Telecomnumications Act. The court disagreed. The court found that even though the Board only provided CWS and the Church with a verbatim transcript of the Board's denial motion, discussion, and vote, that was sufficient to allow the court to determine the reasons why the Board denied the ap- plication, as required to meet the Telecommunication Act's requirement that such decision be in writing. Case Note: The Plaintiffs had further claimed that the Board's denial of the proposed tower af- ter having previously approved another cell phone tower in a nearby town, which was of a similar size and design and in a residential zone, was a discriminatory ap- 8 © 2015 Thomson Reuters