Agenda - Planning Commission - 07/10/2006

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Page 2 -- June 25, 2006 Telecommunications --Property owner appeals variance denial after cell phone company builds tower elsewhere Claims injury because variance is still an asset Citation: Johnson v. Board of Adjustment of the City of Seminole, Oklahoma, lOth U.S. Circuit Court of Appeals, No, 02-7124 (2006) The loth U.S. Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and l;~oming. OKLAHOMA (05/11/06) -- U.S. Cellular Corporation (USCC) planned to lease a piece of Johnson's land and use it as a site for a cell phone tower. Because the location did not meet the city's setback requkements, USCC and Johnson ap- plied jointly to the Board of Adjustment of the City of Seminole for a variance. The board denied the application. USCC and Johnson appealed that decision to court under the TeIecommunications Act of 1996 (Act), which mandated in part that negative decisions impacting the placement of cell phone towers had to be supported by substantial evidence contained in a written record. At trial, Johnson and USCC argued that the board had violated the Act by isau'mg only a denial of one of two variance requests that were entered. The trial court found that the boaxd had violated the Act in this regard, and it gave the board 20 days to provide a written decision on the second variance that was based on substantial evidence in the record. The board complied, and USCC and Johnson's request for relief was denied. SubsequentIy, USCC entered into a lease with the city to use an existing water tower to place its antennas. Johnson, claiming that he suffered an injury by being denied the variance, appealed the ~rial court's decision even though USCC no longer sought to use his property for the tower. DECISION:Affirmed. The loth U.S. Ckcuit Court of Appeals found that the board had substantial evidence upon which the variance was denied properly. While the Act guaran- teed certain procedural rights to those who sought to construct wireless ser- vice facilities, the lOth Circuit stated that those tights did not "encroach upon the substantive standards to be applied under established principles of state and local law." Further, when considering cell phone tower construction re- quests, local authorities could take factors such as aesthetics and public safety into account. The minutes from the meeQng to discuss the variance stated clearly that there were s~fety concerns with the location of the proposed tower. The record showed that the proposed location was close to a local business and a street, and if the tower fell it could cause damage or block the street. Joknson claimed that the board's decision caused him an injury, because the variance would have been an asset to him. Even though USCC was no longer interested in using his property for its tower, the va_dance had a potential © 2006 Cuinian Publishing Group. Any repmducti<3n is ptoi~ib[ted. For more information please call {617) 542-0048. 180