PI Telecom Infrastructure V, LLC v. Georgetown-Scott Cnty. Planning Comm'n
| Decision Date | 10 February 2017 |
| Docket Number | CIVIL ACTION NO. 5:16–46–KKC |
| Parties | PI TELECOM INFRASTRUCTURE V, LLC, a Delaware Limited Liability Company, Cellco Partnership d/b/a Verizon Wireless, a Delaware General Partnership, Albert David Burke, an individual, Plaintiffs, v. GEORGETOWN–SCOTT COUNTY PLANNING COMMISSION, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
David A. Pike, Floyd Keith Brown, Robert W. Grant, Pike Legal Group, PLLC, Shepherdsville, KY, for Plaintiffs.
Charles M. Perkins, City Attorney's Office, Georgetown, KY, Thomas R. Nienaber, Skees, Wilson & Dillon, PLLC, Florence, KY, for Defendant.
Plaintiffs, PI Telecom Infrastructure V, LLC, Cellco Partnership d/b/a Verizon Wireless, and Albert Burke, (collectively as the Applicants), challenge the Defendant's, the Georgetown–Scott County Planning Commission (the "Commission"), denial of their application to construct a cell phone tower on a 36.5 acre tract of land in Scott County, Kentucky, as violative of the Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. (the "TCA") and Kentucky law. Applicants seek an order from this Court directing the Commission to grant their application for the proposed facility.
This matter is now before the Court on the parties' cross-motions for summary judgment. For the reasons discussed herein, the Applicants' motion for summary judgment is granted and the Commission's motion is denied.
Congress enacted the TCA to promote competition between service providers that would inspire the creation of higher quality telecommunications services and to encourage the rapid deployment of new telecommunications technologies. See City of Rancho Palos Verdes v. Abrams , 544 U.S. 113, 115, 125 S.Ct. 1453, 161 L.Ed.2d 316 (2005). In so doing, "Congress recognized zoning decisions by state and local governments had created an inconsistent array of requirements, which inhibited both the deployment of personal communications services and the rebuilding of a digital technology-based cellular telecommunications network." Preferred Sites, LLC v. Troup County , 296 F.3d 1210, 1214 (11th Cir. 2002) (citing H.R.Rep. No. 104–204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61). "Congress also acknowledged ‘there are legitimate State and local concerns involved in regulating the siting of such facilities,’ " Preferred Sites , 296 F.3d at 1214 (quoting H.R. Rep. No. 104–204, at 94–95 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61), and drafted the Act so as to " ‘preserve[ ] the authority of State and local governments over zoning and land use matters except in ... limited circumstances.’ " Id. (quoting H.R. Rep. No. 104–458, at 207–08 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 222).
Therefore, the TCA was designed to strike a proper balance between two competing and often clashing policy concerns: national need for the growth of wireless telephone service and local authority to control the placement of those needed cell phone towers. See H.R. Conf. Rep. No. 104–458, at 207–09 (1996); see also Omnipoint Commc'ns, Inc. v. City of White Plains , 430 F.3d 529, 531 (2d Cir. 2005). On one side of the balance, the TCA generally "preserves traditional authority of state and local governments to regulate the location, construction, and modifications" of wireless communications facilities such as cell phone towers. T–Mobile South, LLC v. City of Roswell, Ga. , ––– U.S. ––––, 135 S.Ct. 808, 814, 190 L.Ed.2d 679 (2015) (internal quotations omitted). On the other side, the TCA imposes specific substantive and procedural limitations on that authority by reducing the impediments that local governments can impose to defeat or delay the installation of wireless communications facilities and by protecting against "irrational or substanceless decisions by local authorities." Sw. Bell Mobile Sys., Inc. v. Todd , 244 F.3d 51, 57 (1st Cir. 2001) ; T–Mobile Cent. LLC v. Unified Gov't of Wyandotte Cnty., Kansas City, Kan. , 546 F.3d 1299, 1306 (10th Cir. 2008).
As a part of these limitations, the TCA provides that local cell tower regulation "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." § 332(c)(7)(B)(i)(II). To enforce the substantive limitations on localities, the TCA also mandates that "[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." § 332(c)(7)(B)(iii). In addition, the TCA provides a mechanism for enforcement if any party is, in their view, adversely affected by a locality's decision. See § 332(c)(7)(B)(v).
In this case, the Court is called upon to enforce the balance Congress sought to achieve.
PI Telecom constructs, owns, and manages wireless telecommunications facilities that are used by national and regional wireless carriers to provide personal wireless service to customers. (Compl. ¶ 1). Verizon is a national wireless carrier licensed by the Federal Communications Commission that provides wireless communication services within its licensed areas, including Scott County, Kentucky. (Compl. ¶ 2). PI Telecom and Verizon entered into a lease with Mr. Burke, who owns a 36.5–acre tract of land, permitting PI Telecom and Verizon to construct a 195–foot monopole wireless communications facility on the Burke property.
Verizon sought to construct the wireless communication facility after radio frequency engineers analyzed Verizon's existing network and coverage needs and identified a "significant gap" in Verizon's coverage in the area east of I–75 and south of Paris Road (U.S. 460) in Scott County. Verizon then enlisted PI Telecom to develop a wireless communications facility within the "significant gap" discovered by Verizon engineers. PI Telecom considered several sites, but identified Mr. Burke's property as the parcel that would provide the "optimum coverage for [Verizon's] wireless service" and would "comply with local zoning requirements related to set backs." (Binder Submitted By Applicant for Planning Commission—Tab D—Alternative Site Analysis, p. 4).
On October 1, 2015, Applicants submitted their Uniform Application to the Commission for consideration. In the Uniform Application, Applicants proposed to construct "a 255' self-support wireless communications tower with a 5' lightening arrestor for a total structure height of 260'." (Planning Commission Folder—A–1). The Uniform Application included: (1) FCC License Documentation; (2) a site development plan; (3) a site survey; (4) a vertical tower profile; (5) a map of adjoining landowners; (6) directions to the site; (7) tower and foundation designs; (8) a copy of the lease agreement with Mr. Burke; (9) a list of residents notified about the proposed tower; (10) notice to adjoining landowners and the Commission; (11) a radio frequency engineer report; (12) a geotechnical study report; and (13) a list of FCC registered antenna structures within a three-mile radius of the proposed facility. (Planning Commission Folder—A–1).
In the weeks after the Uniform Application was submitted, the Commission raised several issues with the application, including the height of the proposed structure and compliance with the Commission's resident notification policy. (Planning Commission Folder—A–5). Specifically, a Planning Department email dated October 16, 2015, commented that the 260' tower would require a variance from the Scott County zoning ordinance. (Planning Commission Folder—A–5).
On November 30, 2015, Applicants and the Commission entered into an agreement to extend the time the Commission had to make a final decision on the Uniform Application. Under KRS § 100.987(4)(c), a planning commission must:
Advise the applicant in writing of its final decision within sixty (60) days commencing from the date that the uniform application is submitted to the planning commission or within a date certain specified in a written agreement between the local planning commission and the applicant. If the planning commission fails to issue a final decision within sixty (60) days and if there is no written agreement between the local planning commission and the applicant to a specific date for the planning commission to issue a decision, the uniform application shall be deemed approved.
As a result of the agreement, both Applicants and the Commission agreed to postpone the final-decision date to January 15, 2016. (Planning Commission Folder—A–4).
On December 22, 2015, almost a month after the agreement to extend the time to make a final decision, Applicants submitted an amended Uniform Application. The amended application included the following changes:
(Planning Commission Folder—A–1; DE 18–1, p. 6 n. 5).
The Commission's Planning Staff prepared and submitted a report on January 14, 2016, after reviewing the Uniform Application and the December 22nd addendum. After detailing the various aspects of the amended Uniform Application, the Planning Staff concluded that "[t]he proposal appears to meet the conditions of the Zoning Ordinance and the Subdivision & Development Regulations." (Planning Commission Folder—A–2, Staff Report, p. 4). In addition, the Staff Report addressed specific concerns of local property owners regarding the proposed tower. Regarding concerns about the tower's environmental impact, the Staff Report indicated that the proposed tower was located "outside of all Environmentally...
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