Covitch v Wilson County Bd. of Zoning, 99-02334
| Decision Date | 06 November 2000 |
| Docket Number | 99-02334 |
| Parties | GREGORY DOMINCOVITCH v. WILSON COUNTY BOARD OF ZONING APPEALSIN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Wilson County No. 98429
C. K. Smith, Chancellor
Petitioner/Appellant, Gregory Domincovitch ("Petitioner") made a request to the Wilson County Board of Zoning Appeals for a "use permissible on appeal" to establish a 250 foot communication tower on his A-1 zoned property. Defendant/Appellee, Wilson County Board of Zoning Appeals ("the Board") denied this request. Mr. Domincovitch petitioned for Writ of Certiorari to the chancery court and subsequently filed a Motion for Summary Judgment in that court. The chancellor granted Petitioner's Motion for Summary Judgment finding that the Board did not have jurisdiction to deny the permit for construction of the communications tower. The Board appealed the chancery court's decision. We affirm the chancery court's ruling finding that Petitioner had presented evidence fulfilling all requirements set out in Wilson County's zoning ordinance regarding cell tower location, and thus, the Board had no jurisdiction to deny the permit to Petitioner.
Michael R. Jennings, Lebanon, Tennessee, for the appellants, Wilson County Board of Zoning Appeals.
William E. Farmer, Lebanon, Tennessee, for the appellee, Gregory Domincovitch.
William B. Cain, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and PATRICIA J. COTTRELL, J., joined.
OPINIONI.FACTS PRESENTED BEFORE THE BOARD.
Petitioner applied to the Wilson County Board of Zoning Appeals for a permit to establish a 250 foot communications tower on a 29 acre parcel of property zoned A-1 (agricultural). Utility use, such as the Powertel communications tower, is a "use permissible on appeal" under Wilson County's zoning laws. See Wilson County Zoning Ordinance 5.20.03(U). The application was submitted and presented by Powertel, the company proposing to locate the tower on Petitioner's property. Wilson County has also enacted the following additional regulations regarding cell tower location:
REGARDING CELL TOWER SITE LOCATIONS IN WILSON COUNTY
A.Applicant shall provide written evidence that they have investigated co-location on an existing tower within one mile of the proposed site. New towers shall not be permitted unless the applicant demonstrates to the reasonable satisfaction of the governing authority that no existing tower or structure can accommodate the applicant's proposed antenna. Evidence to that effect may consist of any of the following:
1. No existing towers or structures are located within the geographic area required to meet the applicant's engineering requirements.
2. Existing towers or structures are not of sufficient height to meet the applicant's engineering requirements.
3. Existing towers or structures do not have sufficient structural strength to support the applicant's proposed antenna and related equipment.
4. The applicant's proposed antenna would cause electromagnetic interference with the antenna on the existing tower.
5. Applicant is unable to work out an acceptable agreement to co-locate.
B.1.Applicant shall provide written evidence that any construction or alteration of more than 200 feet in height above the ground level at its site complies with all FAA requirements.
2. Applicant shall provide written evidence that any construction or alteration of greater height than an imaginary surface extending outward and upward at one of the following slopes meets all applicable FAA requirements.
a.100 to 1 for a horizontal distance of 20,000 feet from the nearest point of the nearest runway of each airport in or near Wilson County, excluding heliports.
b. 25 to 1 for a horizontal distance of 5,000 ft. from the nearest point of the nearest landing and take off area of each heliport in or near Wilson County.
C. Applicant shall provide room for vehicle doing maintenance to maneuver on the property.
D. On-site buildings shall only be used for the storage of necessary on-site equipment. Offices shall be prohibited on the same site as a tower, unless permitted on the same site in that zoning district.
At the hearing, Petitioner, through Powertel, submitted evidence that co-location had been investigated, and the only suitable tower within one mile would not provide the necessary coverage of the service area. Powertel also provided a letter from the FAA which stated that the tower would not be a hazard to air traffic safety and provided evidence that the tower met the horizontal distance requirements of the Cell Tower Site Location (B)(2). In addition, Wilson County required a fall radius the same height as the tower and required that the cell tower be the primary use for the property on which it is located. Both of these additional requirements were met by the Domincovitch property and Powertel's proposal.
One of the primary arguments presented before the Board by the tower opponents was regarding a private air strip. Opponents asked that the permit be denied due to the tower's proximity to this airstrip or that the height of the tower be restricted. Evidence was presented that the orientation of the runway was primarily in a north south direction and that the proposed tower would be over 3000 feet to the east of this runway. Thus, the tower would not lie within the approach or landing zone of this air park.
However, opponents to the cell tower presented evidence which attempted to show that this tower would violate FAA regulations governing public airports and, thus, posed a danger to the private airport. They argued that the Board should be able to regulate the tower to force compliance with the FFA public airport guidelines. To combat this argument, additional evidence was presented by Powertel in the form of testimony from an FAA air space consultant. This consultant testified that the FAA does not regulate or protect private airports like Fall Creek Air Park. FAA regulations only protect public and military airports and, thus, do not apply to this case. The FAA would only require the tower to be marked and lighted, and Powertel would comply with these requirements.
Both sides seem to think that the issue extant in this case was whether or not the Board had the authority to regulate the location of cell towers under Tennessee Code Annotated sections 13-24-301 to -303 (1999). These sections read as follows:
13-24-301. Telephone or telegraph services - Exclusion from local regulation. - No municipal, county or regional planning commission or any municipal or county legislative body shall, by ordinance or otherwise, exclude the location or relocation of any facility used to provide telephone or telegraph services to the public.
13-24-302.Facilities included. - Such facilities include those essential to the provision of telephone and telegraph services such as central office exchanges and microwave towers which require a specific location in order to provide the most efficient service to the public.
13-24-303.Regulations allowed. - The exclusion of location from local regulation does not preclude the exercise of reasonable municipal and county police powers including, but not limited to, permit requirements, landscaping, off-street parking or set-back lines as an exercise of police powers.
Tenn. Code Ann. §§ 13-24-301 to -303 (1999).
Opponents of the communication tower argued that this statute does not exclude regulation of the location of these towers through use of a county's police powers and that safety of the airport should come under these police powers. They attempted to show, through federal regulations governing public airports, that this tower would present a safety hazard to the small private airstrip in the vicinity and requested the Board to use its 'police powers' to regulate and, thus, exclude this tower's location. In addition, opponents attempted to argue that regulation of this type of tower was permissible under the theory that the tower was not essential to the provision of telephone service, nor was a specific location required.
Powertel presented evidence of its plan for providing cellular service to Wilson County and how this plan was implemented. Specifically, it showed how the cell towers relayed signals and demonstrated the necessity of towers being located in areas where they could work together to provide the total coverage necessary for optimal cellular service. Powertel showed that in Wilson County it had planned ten tower sites, four of which would be co-located on other cellular towers. Only six of these towers would necessitate new construction. In searching for tower locations they layed out specific areas known as search rings within which each tower would need to be located to provide the cellular coverage. The areas in which towers could be located were further limited by Wilson County's fall radius and principle use requirements.
At the end of this hearing, the Board disapproved Petitioner's request for a permit to build this communications tower on his property. The reason for disapproving this request was "based on the safety of that airport or that airstrip." No other findings were made by the board on which a denial of the permit was based.
II. HEARING BEFORE THE CHANCERY COURT.
After denial of his request, Mr. Domincovitch petitioned the chancery court for Writ of Certiorari to review the ruling of the Board. After this writ was filed, Petitioner filed a Motion for Summary Judgment. Attached to the Motion was additional evidence not presented at the hearing in front of the Board. This evidence consisted of responses to requests for admissions submitted to Rick Gregory and the Wilson County Board of Zoning Appeals, answers to interrogatories submitted to Rick Gregory, an affidavit of Gregory...
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