Cingular Wireless, LLC v. Thurston County

• Court: Washington Court of Appeals
• Writing for the Court: Houghton
• Citation: Cingular Wireless, LLC v. Thurston County, 129 P.3d 300, 131 Wn. App. 756 (Wash. App. 2006)
• Decision Date: 28 February 2006
• Docket Number: No. 32967-1-II.
• Parties: CINGULAR WIRELESS, LLC, a Delaware limited liability company, Appellant, v. THURSTON COUNTY, a Washington municipal corporation, Respondent, North Olympia Fire Department, a property owner, and Kendall Keating, an individual, Defendants.

129 P.3d 300

131 Wn. App. 756

CINGULAR WIRELESS, LLC, a Delaware limited liability company, Appellant, v. THURSTON COUNTY, a Washington municipal corporation, Respondent North Olympia Fire Department, a property owner, and Kendall Keating, an individual, Defendants.

No. 32967-1-II.

Court of Appeals of Washington, Division 2.

February 28, 2006.

COPYRIGHT MATERIAL OMITTED

William Dale Kamerrer, Law Lyman Daniel Kamerrer et al, Olympia, WA, Jeffrey George Fancher, Attorney at Law, Olympia, WA, for Respondent.

Amit D. Ranade, Paul J. Lawrence, Preston Gates & Ellis LLP, Seattle, WA, for Appellant.

HOUGHTON, P.J.

¶ 1 Cingular Wireless, LLC sought a special use permit to erect a cell phone tower in a rural residential area. A hearing examiner denied the permit and the Board of County Commissioners, with some modifications, affirmed the hearing examiner. Cingular appealed to the superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW, and the court denied the petition.

¶ 2 Cingular appeals, arguing that (1) the hearing examiner improperly applied general standards from the county's comprehensive plan rather than applying only specific county code provisions, (2) the determination that the tower would have an "undue" adverse impact contravenes the Federal Telecommunications Act, and (3) substantial evidence does not support the hearing examiner's decision.

¶ 3 Because, under these facts, both the general standards and specific regulations on cell phone towers apply, federal law does not apply, and substantial evidence supports the decision, we affirm.

I. FACTS

¶ 4 Cingular applied for a special use permit to erect a cellular antenna tower or wireless communications facility (WCF) at a site in an Olympia rural residential area. Following an evaluation of the proposed project, the Thurston County Planning Department issued a mitigated determination of nonsignificance (MDNS)¹ and recommended issuance of the special use permit subject to conditions.

¶ 5 Area residents appealed the MDNS under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Following a public hearing to consider both the SEPA appeal and the special use permit application, a hearing examiner affirmed the MDNS, but he denied the special use permit. Cingular appealed to the Thurston County Board of Commissioners (Board) which, with slight modifications, affirmed the hearing examiner.² Cingular then appealed to federal court, under both the Federal Telecommunications Act, 47 U.S.C. § 332(c) and the LUPA. The federal court declined to exercise supplemental jurisdiction over the state law claims and stayed the federal claims. Cingular then appealed the Board's decision to the superior court under LUPA, but the court denied the petition.

¶ 6 Cingular wants to erect the WCF to close a coverage gap in its Personal Communications Services (PCS)³ network. Currently, the two to three square mile coverage gap includes portions of the main north/south road along the eastern side of Budd Inlet in northeastern Olympia. Cingular customers do not have reliable service within this coverage gap. Thus, the Cingular system drops calls as customers pass through the area. Cingular's Federal Communications Commission (FCC) license obliges it to "build out" its PCS network in order to close such coverage gaps.

¶ 7 Cingular proposes to build a 150-foot freestanding monopole WCF, with a three antennae array, each with two flat panel antennas. The proposed site lies within an area of northeastern Olympia known as Boston Harbor, which is zoned rural residential, with one home per two acres.

¶ 8 The primary uses allowed in the zone include agriculture, single family homes, and home businesses. Thurston County Code (TCC) 20.10.020.⁴ The TCC permits a WCF as a special use, subject to TCC 20.54, which establishes both general and specific standards that must be met before a special use may be permitted.

¶ 9 The general standards provide that: (1) the proposed use "shall comply with the Thurston County Comprehensive Plan and all applicable federal, state, regional, and Thurston County laws or plans"; (2) the proposed use "shall comply with the general purposes and intent of the applicable zoning district regulations and subarea plans"; and (3) "[n]o application for a special use shall be approved unless a specific finding is made that the proposed special use is appropriate in the location for which it is proposed." TCC 20.54.040. The latter finding must be based on a determination that "[t]he proposed use shall not result in substantial or undue adverse effects on adjacent property, neighborhood character, natural environment, traffic conditions, parking, public property or facilities, or other matters affecting the public health, safety and welfare." TCC 20.54.040(3)(a).

¶ 10 The TCC also establishes specific standards for 45 particular special uses, including WCFs, which apply "in addition to" the general standards. TCC 20.54.070,.070.44. TCC 20.33⁵ sets forth the specific WCF standards. In particular, WCF design standards are codified in TCC 20.33.080 and cover ten categories: height, setbacks, co-location with other providers, separation, siting/screening/camouflaging, security, parking/access, signals, outdoor storage, and noise.

¶ 11 The hearing examiner found that Cingular's proposed use met the specific TCC 20.33.080 WCF design standards. Then, based on testimony and evidence presented by area residents, the hearing examiner found that the project would not be appropriate in the proposed location. Accordingly, the hearing examiner concluded that the permit should be denied because it did not comport with the general standards.

¶ 12 At the public hearing, 22 area residents testified, voicing concerns about the aesthetic, environmental, and health impacts of the proposed WCF. In addition, about 150 citizens signed a petition opposing the permit.

¶ 13 Several citizens voiced concerns about the adverse health impacts of radiofrequency (RF) emissions, including increased risk of cancer. Because the Federal Telecommunications Act (TCA) expressly prohibits local officials from basing land use decisions on fears about RF emissions when proposed WCFs comply with FCC RF exposure limits, and because the proposed WCF complied with such limits, the hearing examiner did not consider this testimony.

¶ 14 Citizen concerns about environmental effects focused on the adverse effect on birds and other wildlife, salmon in nearby streams, and groundwater contamination. But the hearing examiner determined that the proposed WCF met guidelines issued by the United States Fish and Wildlife Service. Moreover, the Washington Department of Fish and Wildlife found the project would have no adverse impact. The hearing examiner determined that the adverse environmental impacts were aesthetic.

¶ 15 To support its request, Cingular submitted 10 balloon photographs, taken from various vantage points. In four of the photographs, a digital monopole tower is superimposed over the site to simulate the visual effect of the WCF. Some residents objected to the balloon photographs because they do not depict views from one of the neighborhoods that the WCF would impact.

¶ 16 Cingular wanted to place the WCF on a 1,600 square foot site it leased within a 3.25 acre parcel that had been donated to the North Thurston County Fire District for community use and recreational purposes. A fire station currently sits on the property. Also, about 150 feet from the proposed WCF site, there is a park with a picnic area, volleyball court, and playground. Residents use the park for weddings, picnics, and family gatherings.

¶ 17 Finding of fact 13 states:

The Appellants and other residents objected to the proposal on the basis of aesthetic and environmental impacts. The surrounding rural neighborhood enjoys vistas of farmland and Mt. Rainier. One of the primary aesthetic impacts identified by residents is the obstruction of their Mt. Rainier view corridor. Residents submitted that the site is on a migration route for songbirds. The subject property is near the Nisqually National Wildlife Refuge, and there are large conservation parcels to the west and north of the site. The businesses in the neighborhood are family owned and operated. The types of businesses include horse boarding, gardening and auto repair (home-based). The residents are committed to upholding the character of the neighborhood.

Administrative Record (AR) at 40.

¶ 18 Based on these findings, the hearing examiner concluded that the project conflicts with the comprehensive plan's policy to "locate private utility facilities near compatible land uses as defined in the County's Special Use standards." AR at 51. The hearing examiner also concluded that the project would not comply with the purpose and intent of the zoning district, which is to "enhance and preserve the rural agricultural character in areas where there is currently little development." AR at 51.

¶ 19 Finally, the hearing examiner concluded:

Based on the credible (and voluminous) testimony and evidence of the surrounding residents, the facility would have an undue adverse effect on neighborhood character. The neighborhood is marked by scenic vistas of farmland and Mt. Rainier, home-based businesses, outdoor recreational opportunities, and abundant wildlife. A 150-foot tall monopole tower would detract from these features and aesthetic environment. Such an effect is "undue" per TCC 20.54.040(3)(a) because the neighborhood is served by wireless services. Although the Applicant provided credible evidence that Cingular has a coverage gap for in-vehicle and in-home service in the area of the proposed WCF, the Applicant did not identify any laws or regulations that would require Thurston County to fill every such coverage gap, particularly when, as here, the facility would detract from the character of a unique neighborhood. No evidence was provided...