Preimeco Personal Communications v. City of Mequon
| Citation | 242 F.Supp.2d 567 |
| Decision Date | 27 January 2003 |
| Docket Number | No. 01-C-1205.,01-C-1205. |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | PRIMECO PERSONAL COMMUNICATIONS, LIMITED PARTNERSHIP, d/b/a Verizon Wireless, Plaintiff, v. CITY OF MEQUON, Defendant. |
Gary A. Ahrens, Katherine W. Schill, for Plaintiff or Petitioner.
Raymond J. Pollen, Ryan G. Braithwaite, for Defendant or Respondent.
DECISION AND ORDER
Plaintiff Verizon Wireless ("Verizon"), a provider of personal wireless telephone service, brings this action against defendant, the City of Mequon ("City"), under the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(v) ("TCA"), and 42 U.S.C. § 1983. Verizon alleges that the City's denial of its application for a conditional use permit to construct a personal wireless service facility violated the TCA because it was not supported by substantial evidence. Before me now are the parties' cross-motions for summary judgment.
Wireless communication facilities allow cellular phones, pagers and wireless faxes to work. Such facilities include towers, poles, antennas or other structures used to transmit or receive radio or television signals, or any other spectrum-based transmissions/receptions. Antennas placed within a defined area comprise a cellular system, and the number and location of antennas within a given area directly affect the service available to cellular customers. Telecommunications companies provide wireless service to the public by initially carving service areas into cells. Each cell contains at least one cellular antenna. Where there are no existing structures high enough to accommodate an antenna, telecommunications companies must build tower structures. Shannon L. Lopata, Note, Monumental Changes: Stalling Tactics and Moratoria on Cellular Tower Siting, 77 Wash. U. L.Q. 193, 196-97 (1999).
On November 3, 2000, Verizon applied to the City Planning Commission ("Commission") for a conditional use permit to construct a flagpole antenna at the Beautiful Savior Lutheran Church ("Beautiful Savior"), a nine acre property, which was zoned institutional. A flagpole antenna is known as a stealth design because the purpose of the flagpole is to hide the antenna. At the Commission's request, the height of the proposed flagpole was reduced from one hundred feet to seventy feet and the diameter from twenty-four inches to nine and one-half inches. The flagpole was to be located at the back of the church parking lot.
The Commission delayed consideration of Verizon's application while the City enacted an amendment ("wireless facility amendment") relating to the siting of wireless service facilities to its zoning ordinance. Enacted on March 13, 2001, the amendment permits a facility to be sited in a residentially or institutionally zoned area only if no alternative site is "available" for co-location (locating multiple antennas on a single structure), and the proposed location is "necessary to comply with the 1996 Telecommunications Act and subsequent case law interpreting the Act." Mequon, Wis., Ordinances §§ 3.166(6)(a)a & 3.166(6)(b) (found at Schill Decl. Ex. G at 147). Almost all of the City is zoned residential.
Early in the process, the Commission suggested that Verizon locate the antenna at one of two alternative sites—North Shore County Club ("North Shore") or Homestead High School ("Homestead"). On March 19, 2001, Tim Klingman of Verizon advised the Commission that Verizon had examined the possibility of co-locating at the tower at North Shore and determined that the "site is too close to other sites in the network." (Klingman Decl. Ex. B at 2.)
On April 2, 2001, the Commission held a hearing on Verizon's application. Klingman testified that neither of the alternative sites proposed by the Commission would provide the necessary coverage, and that under the City's zoning code there was no other suitable place nearby. Four persons testified against Verizon's proposal. Clifford Pukaite stated that he opposed permitting commercial property in residential areas. Alderman Roger Reinemann testified that the applicant should be required to meet the criteria of the wireless facility amendment and demonstrate that alternative locations were unavailable. Mark Koerner stated that he considered the project visually unappealing and thought that it might involve health risks. Darrell Laux testified that he did not support the project.
Subsequently, pursuant to the wireless facility amendment, the Commission hired, at Verizon's expense, an independent expert, B. Benjamin Evans of Evans Associates Consulting Engineers ("Evans"), to evaluate Verizon's application. On May 21, 2001, Evans completed a report on the Verizon proposal and recommended:
the approval of the proposed site at the requested height above ground of 70 feet.... Because of the "stealth" nature of the proposed structure, being disguised as a flagpole, and the height being less than other PSC towers, in addition to the fact that many mature trees will help screen the pole from many viewing directions, the visual impact, in the opinion of this engineer, would be moderate at best.
Concerning the availability of alternative sites, the report stated that:
(Id. at 8.)
Finally, the report stated that:
A propagation study conducted by Verizon and verified by this engineer, shows convincingly that the area along Mequon Road has an unacceptably low level of PCS phone service, which can result in dropped calls.
(Id. at 9.)
In a June 5, 2001 letter, Evans advised the Commission of some of the intricacies of evaluating cell sites that would not be readily apparent to laypersons:
[T]he maps represent `talk-out' only, that is, the level of signal received by the wireless phone from the cell site. There are many other factors that go into the evaluation of any given site: (1) `Talk in,' the ability of a portable phone inside a car to contact the cell site to place a call. (2) `Shadowing,' the effect of geography, trees, and structures in the line-of-sight path. (3) `Interference,' whereby one site on the network interferes with another one, even though the propagation map shows that there is coverage. (4) `CDMA' issues for digital phones, whereby a nearby site `captures' a handset and does not allow it to hand off smoothly to another site. It is not certainly possible to fully evaluate a site entirely by the low-resolution, 4 color `talk-out' map alone. It is certainly not possible for persons who are not trained in the technology to make a site analysis on this basis.
He concluded that:
We respectfully disagree with the assertion that coverage from a co-located facility at the North Shore Country club antenna site would not be significantly different from that of the planned 70foot flagpole at Beautiful Savior. We do not recommend the use of the country club site because the Beautiful Savior location, unlike the country club site, is equally distant from the most significant three other adjacent network sites. This location would be the least likely to suffer from interference, and the talk-in and talk-out are nicely mapped.
(Id. at 2.)
On June 18, 2001, the Commission held another hearing on Verizon's proposal. Klingman testified that the stealth facility would have little visual impact and, because Verizon had agreed to demolish a garage on the church property and rebuild it with a lannon stone exterior to match that of the church, the project would improve the appearance of the church grounds. Alderman Reinemann testified that he opposed locating wireless facilities in residential areas. Gerry Nagel supported the proposal. He stated that the flagpole would be only nine inches around and not unsightly, that it would be over three hundred feet from the road and probably not visible from the street because it would be blocked by trees. Reverend Hildebrandt, the pastor of Beautiful Savior, also supported the site, stating that when he was approached by Verizon he had concerns about the aesthetics of the proposal but was directed to look at a site in Waukesha County where a similar flagpole was erected. He stated that he found the flagpole aesthetically pleasing and did not believe that the church was compromising its community mindedness by permitting the site.
Evans testified that the site would be the least visually intrusive, that it was reasonable and prudent and that he recommended it without modification. He stated that the antennas would be hidden inside the flagpole behind fiberglass, and the pole would be screened by mature trees. He also stated that he had verified Verizon's propagation map showing that the area along Mequon Road between Cedarburg and Port Washington Roads was a highly traveled road that had a low level of wireless phone service. He testified that the North Shore and Homestead sites were not technologically feasible because they were ...
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