U.S. Cell. Tele., Great. Tulsa v. Broken Arrow, Ok

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation340 F.3d 1122
Docket NumberNo. 02-5128.,No. 02-5172.,02-5128.,02-5172.
PartiesUNITED STATES CELLULAR TELEPHONE OF GREATER TULSA, L.L.C., an Oklahoma Limited Liability Company, Plaintiff-Appellant, v. CITY OF BROKEN ARROW, OKLAHOMA, Defendant-Appellee. United States Cellular Telephone of Greater Tulsa, L.L.C., an Oklahoma Limited Liability Company, Plaintiff-Appellee, v. City of Broken Arrow, Oklahoma, Defendant-Appellant.
Decision Date19 August 2003

John E. Brightmire, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, OK, appearing for Plaintiff United States Cellular Telephone of Greater Tulsa, L.L.C.

Elizabeth Anne Wilkening, Deputy City Attorney, Broken Arrow, OK, appearing for Defendant City of Broken Arrow.

Before TACHA, Chief Judge, BRISCOE, Circuit Judge, and SHADUR,* District Judge.

TACHA, Chief Circuit Judge.

United States Cellular Telephone of Greater Tulsa, L.L.C. ("U.S.Cellular") brought two separate suits in federal court, challenging decisions by the City of Broken Arrow, Oklahoma ("the City"), denying specific use permit ("SP") requests for the construction of cellular transmission towers. On October 2, 2002, the district court reversed the City's denial of SP-149, concluding that the City's denial violated the Telecommunications Act because it was not supported by "substantial evidence." United States Cellular Telephone of Greater Tulsa, L.L.C. v. The City of Broken Arrow, Oklahoma, No. 01-CV-0518-E(M) (N.D.Okla. Oct. 2, 2002) (order granting plaintiff's motion for summary judgment) ("U.S. Cellular I"). On July 18, 2002, the district court upheld the City Council's denial of SP-150, concluding that "substantial evidence" supported the City's denial. United States Cellular Telephone of Greater Tulsa, L.L.C. v. The City of Broken Arrow, Oklahoma, No. 01-CV-0550-EA(J) (N.D.Okla. July 18, 2002) (order granting defendant's motion for summary judgment) ("U.S. Cellular II"). For the reasons set forth below, we reverse the district court's judgment in U.S. Cellular I and affirm the judgment in U.S. Cellular II.

I. Background
A. Overview of Broken Arrow's Permit Application Process

In Broken Arrow, Oklahoma, the City's power to grant permits for the construction of cellular transmission towers is defined generally by the Broken Arrow Zoning Ordinance. Article VIII, section 18 of the Zoning Ordinance sets forth specific requirements. Under Article VIII, section 18.6, "[n]o person or entity shall hereafter construct, own, or operate any communication tower in excess of fifty (50) feet in height above the mean elevation of the ground of the lot or parcel on which it is built, unless said person has obtained a permit to construct from the City of Broken Arrow." With limited exceptions not applicable here,1 the ultimate authority to issue specific use permits, including permits for the construction of "telecommunications towers," resides in the City Council. See generally Broken Arrow Zoning Ord., art. VIII, § 18.

In general, the permitting process proceeds as follows. Once the Broken Arrow Planning Commission (the "Planning Commission") receives a permit application, a Planning Commission staff member, usually the Planning Director, prepares an "Agenda Packet," which sets forth the background of the permit request, the extent of the applicant's conformance with the Zoning Ordinance and other applicable law, and the staff member's recommended course of action. The preparer of the Agenda Packet submits this report to all members of the Planning Commission. After notice and public hearing, the Planning Commission forwards its recommendation to the City Council for further consideration and public comment. The City Council then holds a final hearing and decides whether to accept or reject the Planning Commission's recommendation.2 If the City Council decides to deny an application, that decision "shall be conveyed to the applicant in writing, together with the summary of the evidence which supports a denial of the application." Id., art. VIII, § 18.16.

B. Requirements Under the Zoning Ordinance

As part of the permitting process, an applicant must provide the City Council with certain required information, set forth in sections 18.7 and 18.11(A)-(F) of the Zoning Ordinance. With respect to the determination of whether to issue a specific use permit, section 18.12 provides:

The City Council shall consider the following factors ...

(a) height of the proposed tower;

(b) proximity of the tower to residential structures and adjacent residential lot boundaries;

(c) nature of uses on adjacent and nearby properties;

(d) surrounding topography;

(e) surrounding tree coverage and foliage;

(f) design of the tower, with particular reference to those design characteristics which have the effect of reducing or eliminating visual obtrusiveness;

(g) proposed routes of ingress and egress;

(h) whether or not the tower is constructed so as to be available for co-location in the future; and

(i) whether or not there are suitable, existing towers or other supporting structures capable of meeting the technological needs of the applicant.

Id., art. VIII, § 18.12. Section 18.12 also states that "the City Council may modify one or more of these criteria if, in the particular circumstances of the application, [the] Council concludes that the goals and intent of [the Zoning Ordinance] are better served by such modification." Id. Section 18.13 further provides that "[n]o new tower should be permitted by the City Council, unless the applicant demonstrates to the City Council's reasonable satisfaction that no existing tower or other structure can accommodate the applicant's proposed antenna."3 Id., § 18.13. Finally, the Zoning Ordinance sets forth the City's general policy regarding tower construction in certain zoning districts, under which "towers are normally discouraged in A-1 and RE [agricultural and residential] zoning districts, and applicants shall be required to establish the elements of the application by clear and convincing evidence." Id., art. VIII, § 18.11(G).

C. U.S. Cellular's Permit Applications

On February 21, 2001, U.S. Cellular filed two applications for specific use permits with the Planning Commission, seeking to construct the following: (1) a 120-foot "monopole" cellular transmission tower on a tract of land located at 10525 South 193rd East Avenue in Broken Arrow, Oklahoma (the "East Avenue property") ("SP-149"); and (2) a 240-foot, self-supporting cellular transmission tower on a ten-acre tract of land owned by the Forest Ridge Baptist Church, located at 8300 South Oneta Road in Broken Arrow, Oklahoma (the "South Oneta Road property") ("SP-150").

In addition to SP-149 and SP-150, U.S. Cellular had filed numerous other permit applications with the City to construct cellular towers. For example, on June 18, 2001, the City Council approved U.S. Cellular's application to construct a 100-foot monopole tower on the west side of Queens Circle. In fact, according to Doyle Groat, a U.S. Cellular engineer, as of July 16, 2001, U.S. Cellular had completed eight projects within the City. At least three of these projects involved new tower construction; the remaining five apparently involved co-location.

1. SP-149

In its first application, SP-149, U.S. Cellular proposed to construct a 120-foot monopole tower on the East Avenue property, a six-acre tract the City annexed on September 18, 2000. The City assigned the East Avenue property the zoning classification "AR-1," a transitional-zoning category denoting single-family residential use; at the time of U.S. Cellular's application, however, there were no residences on the property.4 The land surrounding the East Avenue property was zoned as follows: to the north, AR-1, single-family residential; to the south, A-1, agricultural with one single-family residence; to the east, AR-1, single-family residential; and to the west, AG, agricultural.

As part of their application, U.S. Cellular submitted two maps prepared by radio frequency engineers. The first map showed U.S. Cellular's existing coverage within the City. The second illustrated the additional coverage U.S. Cellular would be able to provide following the completion of the proposed SP-149 tower. U.S. Cellular also attached the affidavit of Keith Sach, an Associate Radio Frequency Engineer with U.S. Cellular. In his affidavit, Mr. Sach stated, inter alia, that "[t]here are no existing towers or permits for towers located within [one-half] mile of the [SP-149] site." Sach Affid. ¶ 3. Finally, U.S. Cellular's application also stated that "[n]o existing tower can accommodate the proposed antenna." In support of this statement, U.S. Cellular referred to the attached coverage maps and Mr. Sach's affidavit.

2. SP-150

In its SP-150 application, U.S. Cellular proposed to construct a 240-foot tower on the South Oneta Road property, a ten-acre tract of land in the southeast part of the City owned by the Forest Ridge Baptist Church. At the time of U.S. Cellular's application, the South Oneta Road property was zoned "AA-1," a transitional-zoning category indicating agricultural use. Although on February 19, 2001, the City Council approved a change in zoning for the South Oneta Road property, pursuant to which the property would be zoned "A-1," a conventional-zoning category indicating agricultural use, the City Council had conditioned its approval on the site being platted. At the time of the events in question, the Forest Ridge Baptist Church had not yet platted the South Oneta Road property.5 The land bordering the South Oneta Road property was zoned as follows: to the north and west, R-1, single-family residential; to the east, undeveloped with one single-family residence; and to the south, A-1, agricultural, with one single-family residence.

D. The City's Denials
1. SP-149
a. The Agenda Packet

Prior to the Planning Commission's April 26, 2001, meeting, Farhad Daroga, the City's Planning Director,...

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