Bellsouth Mobility Inc. v. Gwinnett County, Ga

• Decision Date: 13 August 1996
• Docket Number: No. 1:96-cv-1268-GET.,1:96-cv-1268-GET.
• Citation: 944 F.Supp. 923
• Parties: BELLSOUTH MOBILITY INC., James Dean and Lanette Dean, Plaintiffs, v. GWINNETT COUNTY, GEORGIA; F. Wayne Hill, Judy Waters, Kevin Kenerly, Tommy Hughes, Patti Muise, individually, and in their capacities as Members of the Gwinnett County Board of Commissioners; Michael C. Williams, individually and in his capacity as Director of the Gwinnett County Department of Planning and Development; and William D. Jascomb, Jr., individually and in his capacity as Director of the Development Division of the Gwinnett County Department of Planning and Development, Defendants.
• Court: U.S. District Court — Northern District of Georgia

944 F.Supp. 923

BELLSOUTH MOBILITY INC., James Dean and Lanette Dean, Plaintiffs, v. GWINNETT COUNTY, GEORGIA; F. Wayne Hill, Judy Waters, Kevin Kenerly, Tommy Hughes, Patti Muise, individually, and in their capacities as Members of the Gwinnett County Board of Commissioners; Michael C. Williams, individually and in his capacity as Director of the Gwinnett County Department of Planning and Development; and William D. Jascomb, Jr., individually and in his capacity as Director of the Development Division of the Gwinnett County Department of Planning and Development, Defendants.

No. 1:96-cv-1268-GET.

United States District Court, N.D. Georgia, Atlanta Division.

August 13, 1996.

Peter M. Degnan, Scott A. McLaren, Alston & Bird, Atlanta, GA, for BellSouth Mobility, Inc., James Dean and Lanette Dean.

John Patrick O'Brien, Donna N. Kemp, Jill Ilene Seligman, Thompson O'Brien Kemp & Nasuti, Norcross, GA, Caryl B. Sumner, Gwinnett County Law Department, Lawrenceville, GA, Philip W. Horton, William E. Cook, Jr., Arnold & Porter, Washington, DC, pro hac vice, for Gwinnett County, Georgia, F. Wayne Hill, Judy Waters, Kevin Kenerly, Tommy Hughes, Patti Muise and Michael C. Williams.

John Patrick O'Brien, Donna N. Kemp, Jill Ilene Seligman, Thompson O'Brien Kemp & Nasuti, Norcross, GA, for William D. Jascomb, Jr.

ORDER

G. ERNEST TIDWELL, Chief Judge.

The above-styled matter is before the court on plaintiffs' appeal from the Gwinnett County Board of Commissioner's April 23, 1996 decision denying plaintiff BellSouth Mobility, Inc.'s ("BellSouth") application for a Tall Structure Permit. The matter is also before the court on: defendants' motion to exceed page limits [docket no. 5]; plaintiffs' motion to exceed page limits [docket no. 13]; and plaintiffs' motions to dismiss certain claims without prejudice [docket nos. 11 & 18].

Factual Background

Sometime during the early part of 1995, plaintiff BellSouth determined that in order to meet the obligations imposed on it by its FCC license, it needed to improve its signal strength within the Five Forks-Trickum/Oak Road area of Gwinnett County, Georgia. BellSouth's engineers then determined that to achieve this objective, BellSouth needed to install a cellular telephone communications monopole somewhere within that area. The ideal height of the monopole, according to BellSouth's engineers, would be 197 feet above ground level.

On June 28, 1995, BellSouth entered into a lease agreement with plaintiffs Dean. That agreement gave BellSouth an option to use the Dean property ("Dean property"), which is located at 3109 Five-Forks Trickum Road, to construct, maintain, and operate a cellular communications monopole. The Dean property is zoned commercial and is currently occupied by an automotive repair shop, an auto parts store, and a tire supply company.

Under section 14-116 of the Gwinnett County Code ("Code"), a property owner who wants to erect on his or her property a wireless communication tower that is greater than fifty feet must first apply to the county for a "Tall Structure Permit." This application must be submitted to the county's department of planning and development. GWINNETT COUNTY, GA., CODE OF ORDINANCES § 14-117 (1994). Further, each application shall contain detailed plans and specifications showing: (1) the nature of the structure, (2) the structure's proposed use, (3) the height of the structure, and (4) the structure's proposed location (with all property lines clearly defined and all distances from the proposed structure to the property lines clearly marked). Id. The property owner must also pay a fee. Id.

Once the property owner has submitted the tall structure permit application, the planning and development department of the county will review it and make a written recommendation to the county board of commissioners. Although the planning and development department may recommend that the application be granted or denied, all applications must be considered by the board of commissioners, who are charged with the responsibility of making the final decision. GWINNETT COUNTY, GA., CODE OF ORDINANCES § 14-120. Indeed, according to the Code, the board of county commissioners, "in the exercise of its discretion under the police power vested in [it]," may deny any application:

where the proposed structure could interfere with or endanger the public using the existing or proposed air facilities located within the county, or where the structure to be erected could endanger the person or property of citizens of the county, or where the structure to be erected would not be compatible from an aesthetic viewpoint with existing or proposed development in the area of the proposed facility, or where the structure to be erected would not be acceptable or after evaluation would be found to be unacceptable from an architectural standpoint with existing or proposed structures in the area.

Id.

On February 12, 1996, plaintiffs, through BellSouth and its counsel, filed their application for a permit to place a cellular communications monopole on the Dean property. Their application was assigned number TSP-96-002. In the application, plaintiffs described the structure that BellSouth wanted to place on the Dean property as a "197-foot monopole together with a 326 square foot unmanned single-story prefabricated concrete switch gear building." Both of these structures were to be "enclosed by an 8-foot chain link fence with 3 strands of bobwire along the top." In addition to filling out the form provided by the county, plaintiffs also attached several documents supporting their application. These documents included:

1) a report by Airspace Safety Analysis Corporation showing that the monopole presented no hazard to navigable air space in the area;

2) the option and lease agreement between BellSouth and plaintiffs Dean;

3) plaintiffs' constitutional objections concerning the standard of review for approving or denying a tall structure permit; and

4) two complete sets of boundary survey and site plans.

The boundary survey and site plans which plaintiffs submitted clearly indicate the nature of the proposed monopole structure, its proposed use, the height of the structure, and its proposed location on the Dean property. The documents also demarcate the property lines and show the distances between the monopole and the property lines.

After conducting its investigation, the planning and development department recommended that plaintiffs' permit application be approved on condition that: (1) the site remained a leased area; (2) plaintiffs install a 10-foot landscape strip, planted with evergreens, outside the fenced area along its north and west side; and (3) plaintiffs obtain all the required building and development permits. As part of the planning and development department's investigation, it solicited comment on plaintiffs' application from the Gwinnett County Department of Transportation, the Gwinnett County Department of Public Safety, and the Gwinnett County Airport Authority. Each of these agencies had no objection to plaintiffs' plans. The permit application was scheduled to be considered by the board of commissioners at a March 26, 1996 hearing.

Shortly before the board's scheduled hearing, homeowners in a residential subdivision located behind the Dean property voiced opposition to the application. The board decided to postpone the hearing from March 26, 1996 to April 23, 1996.

During this time, plaintiffs, apparently after attempting to have some discussion with local property owners, supplemented their permit application. Plaintiffs agreed to three additional conditions. They agreed to prohibit microwave equipment from being operated on the Dean property. They agreed to paint the monopole in a color selected by the adjacent residential property owners. And they agreed not to light the monopole. Plaintiffs also supplemented their application by providing the board with the structure's radio frequency (Rf) emissions specifications. Further, before the April 23, 1996 hearing, plaintiffs submitted a document to the board informing it of the additional requirements that, in their opinion, the Telecommunications Act imposed upon them.

At the April 23rd hearing, the board of commissioners permitted plaintiffs five minutes to present their case. Speaking in support of the permit application, plaintiffs' representative stated for the record that the monopole's height could be reduced from 197 feet to 177 feet in order to alleviate some of the neighbors' aesthetic concerns. He then introduced a certified appraiser's report comparing residential property values in Gwinnett County neighborhoods surrounding three other monopole sites. This report concluded that the cellular communication monopoles did not adversely affect property value.

Plaintiffs' representative also introduced a line of sight survey prepared by Aerial Instrument Research Systems which showed the visibility, from various locations surrounding the Dean property, of a red balloon floated to heights of 197 feet, 187 feet, and 177 feet. He expressed why the proposed location was important to BellSouth, and produced a list of BellSouth's unsuccessful efforts to secure other suitable sites. He concluded by urging the board to grant plaintiffs' application subject to the six conditions to which plaintiffs had previously agreed.

After plaintiffs' five minutes had expired, the board gave those who opposed plaintiffs' tall structure permit application five minutes within which to speak. At that time, a resident of the River Oak Village subdivision, Bruce Nelson ("Nelson"), stood to speak on behalf of the residents of his subdivision, the River Oak Hills subdivision, and the Pool Creek subdivision. Nelson expressed concern that the monopole would pose a safety threat to children living in the area who might want to try to climb it or play around it. Nelson also expressed his fear that the platform and...