Denial of New Cell Tower Permit Reversed, Pricey Water Tower Lease Not ‘Practicable'

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By Eric Topor  

The U.S. District Court for the District of Kansas granted an injunction against a municipality Jan. 24 vacating the denial of a special use permit to install a cellular communication tower over aesthetic and location concerns (Verizon Wireless (VAW) LLC v. Unified Government of Wyandotte County/Kansas, D. Kan., No. 2:11-cv-02374-EFM-KMH, 1/24/13).

The defendant Unified Government of Wyandotte County/Kansas City rejected plaintiff Verizon Wireless (VAW) LLC's special use permit primarily because it believed Verizon should have leased space on a nearby water tower instead of constructing a new cell tower in a residential area, thereby avoiding the aesthetic concerns that went along with a new tower. But Judge Eric F. Melgren said the county-owned water tower was not a practicable alternative because the proposed lease rates were well above market, and found no substantial evidence in the record to show the new tower was not the best way to remedy Verizon's existing coverage gap.

Melgren also noted the county's Board of Commissioners' extensive discussion on concerns regarding radio frequency emissions during a hearing on Verizon's permit request. Board members devoted a substantial portion of the hearing to discussing constituent and personal concerns regarding radio frequency emissions from a wireless facility despite the county counsel's warning that the federal Telecommunications Act of 1996 (Pub. LA. No. 104-104, 110 Stat. 56 (1996)) forbade permit denial on those grounds.

Lease Negotiations Fail, Permit Denied

Verizon sought to fill a coverage gap in its wireless service in the county with a new wireless communication facility. A county statute mandated that new communications towers could only be built if no existing communications tower will satisfy the need.

Verizon began negotiations to locate its equipment on a water tower, which already had some communications equipment on it; the tower was owned by the Board of Public Utilities (BPU), a county agency. However, Verizon and BPU could not come to an agreement on lease terms, and Verizon claimed that BPU demanded substantially more than market lease rates. Verizon found a suitable alternative location a half mile from the water tower that it could lease for $1.1 million less than the BPU lease terms.

Verizon filed for a special use permit to construct a 120-foot stealth monopole at the alternate site, with space available for collocation of future wireless providers. The county Planning Commission staff issued a report suggesting that Verizon negotiated in good faith, and recommended the Board approve the permit.

During a hearing on Verizon's permit application, several Board members expressed concerns of their own, and those from their constiuents, about the amount of radio and radiation emissions from Verizon's proposed facility. The county counsel advised Board members several times that the TCA barred denial of a WCF based on radio frequency emission grounds, causing one Board member to ask if Board members could vote to deny the permit based on constituent's disapproval of radio frequency emissions, rather than a Board member's personal concerns.

The Board ultimately denied Verizon's application for aesthetic reasons, its discordance with the surrounding community, and because the water tower was a less intrusive option.

Substantial Evidence for Permit Denial Lacking

Verizon filed suit for an injunction against the Board's permit denial, arguing that the decision lacked the substantial evidence necessary under the Communications Act. The court agreed with Verizon, and issued an injunction directing the approval of the special use permit.

Melgren first rejected the county's argument that the water tower was a suitable location and “practicable” location as required under county code section 27-593(a)(30)(j)(v). Melgren agreed with Verizon that the BPU water tower lease terms were not practicable because they were so much higher than market rate, a finding that the county did not dispute. The Planning Commission's report specifically said that it would not have recommended approval of Verizon's permit had Verizon not negotiated in good faith. The high costs associated with the water tower location rendered it an unsuitable location, said Melgren, undermining that portion of the county's permit denial.

Nor was the cell tower incompatible with the surrounding residential neighborhood, the court found. While the Planning Commission report said that the tower was not suitable for the residential area, it recommended approval anyway. Melgren went further, saying the lack of any evidence of an adverse effect on the surrounding neighborhood suggested the two uses were compatible. The court also rejected the Board's aesthetic concerns, supported by a single objection by a local resident, as completely unsupported by evidence of noise, vibration, light, or other adverse impact.

Impermissible Objections Concerned Court

Although the court struck down the county's permit denial on other grounds, Melgren said he was concerned by the Board's discussion at the permit hearing regarding whether or not it could deny the permit based on radio frequency emissions, which is barred under Section 332 of the Communications Act. Melgren noted that while the written rejection did not mention radio frequency emissions, “almost 25 percent of the written transcript . . . discusses radio frequency emissions.”