Primeco Personal Communic. v. Village Fox Lake

• Decision Date: 19 November 1998
• Docket Number: No. 97 C 8023.,97 C 8023.
• Citation: 26 F.Supp.2d 1052
• Parties: PRIMECO PERSONAL COMMUNICATIONS, L.P., Plaintiff, v. VILLAGE OF FOX LAKE, Defendant.
• Court: U.S. District Court — Northern District of Illinois

26 F.Supp.2d 1052

PRIMECO PERSONAL COMMUNICATIONS, L.P., Plaintiff, v.VILLAGE OF FOX LAKE, Defendant.

No. 97 C 8023.

United States District Court, N.D. Illinois, Eastern Division.

November 19, 1998.

Donald Joseph Vogel, Sara Lynne Thomas, Adam Carl Smedstad, Michael, Best & Friedrich, Chicago, IL, for Plaintiff.

Paul P. Phillips, Howard R. Teegen, Soffietti, Johnson, Teegen, Phillips & Schwartz, Ltd., Fox Lake, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

PrimeCo Personal Communications, L.P., filed this lawsuit under 47 U.S.C. § 332(c)(7)(B)(v), alleging that the Village of Fox Lake violated § 704 of the Telecommunications Act of 1996, codified at 47 U.S.C. § 332(c)(7), when it denied PrimeCo's application for a special use permit authorizing the construction of a wireless communications monopole on property located in the Village.Specifically, PrimeCo claims that the Village failed to provide a written decision denying the application and that the denial was not supported by substantial evidence contained in the written record as required by § 332(c)(7)(B)(iii).What constitutes a sufficient written decision and substantial evidence under the Telecommunications Act is a question of first impression in this district and this circuit.In fact, in Illinois, only the United States District Court for the Central District of Illinois and the Appellate Court of Illinois for the Fifth District have addressed these issues.SeeIllinois RSA No. 3, Inc. v. County of Peoria,963 F.Supp. 732(C.D.Ill.1997);C-Call Corp. v. Zoning Bd. of Appeals of Edwardsville,298 Ill.App.3d 1128, 233 Ill.Dec. 136, 700 N.E.2d 441(Ill.App. 5 Dist.1998).

The parties have filed cross-motions for summary judgment.Because PrimeCo and the Village do not dispute the relevant facts, instead arguing the legal import of those facts, the case is ripe for resolution.After careful consideration, this Court grants judgment in favor of PrimeCo, and remands the case to the Village Trustees for an expedited hearing on PrimeCo's application.

FACTS

Wireless communications are accomplished by sending low-power radio signals among cellular towers, generally situated in a honeycomb configuration.If the distance between cellular towers is too great, then "coverage gaps" occur.Coverage gaps significantly impair wireless service not only for people in the immediate area of the gap, but also for other customers because existing towers must then handle the "overflow" by relaying signals that should be — according to the honeycomb grid — transmitted via a non-existent tower.Additionally, in the coverage-gap area customers can neither initiate nor receive cellular telephone calls, and when customers travel through a gap area their calls are disconnected.Within each honeycomb (or coverage area) there is a "pinpoint area" in which the communications tower and radio antenna must be located to eradicate a coverage gap.¹

PrimeCo has a coverage gap in the Village and thus cannot provide wireless services to residents of the Village or to customers traveling through the Village.In November 1996, PrimeCo identified the pinpoint area of the Village in which it was essential to locate a communications tower.After locating a technically feasible site within the pinpoint area, PrimeCo signed a five-year lease with its owner, Michael Hellios, to construct and place a communications tower and equipment shelter on a 30-foot by 30-foot area of the land.²The Hellios site is a three-and-a-half acre lot that contains a construction company and heavy machinery.(Village App.Ex. 1, Zoning Bd. of Appeals July 24, 1997 Minutesat 2("July Minutes");Id.Ex. 11, Zoning Bd. of Appeals March 27, 1997 Minutesat 1("March Minutes").)

In Illinois, local units of government are in one of two categories: home-rule units or non-home-rule units.The Village of Fox Lake is a home-rule unit, which simply means that the Village is empowered to regulate local affairs, including the use of property within the Village.

The record does not reveal what zoning category the Hellios site occupies, but all agree that before building the monopole and equipment shed PrimeCo was required to obtain a special use permit.The procedure for obtaining a permit involves applying to the Planning and Zoning Board of Appeals("Zoning Board" or "Board"), which makes a recommendation to the Village Board of Trustees("Village Trustees" or "Trustees").Village Ordinance 9-1-6-10D sets forth the standards used by the Zoning Board in forming its recommendation:

Standards: No special use shall be recommended by the [Zoning Board] unless they[sic] shall find:

1.That the establishment, maintenance or operation of the special use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare.

2.That the special use will not be injurious to the use and enjoyment of other property in the immediate vicinity ..., nor substantially diminish and impair property values within the neighborhood.

3.That the establishment of the special use will not impede the normal and orderly development and improvement of the surrounding property....

4.That adequate utilities, access roads, drainage and/or necessary facilities have been or are being provided.

5.That adequate measures have been or will be taken ... to minimize traffic congestion in the public streets.

6.That the special use shall, in all other respects, conform to the applicable regulations of the district in which it is located....

The ordinance instructs the Zoning Board to make written findings of fact to submit with its recommendation.The Village Board of Trustees, however, "may grant or deny any application for a special use permit after receiving the report of the ... Zoning Board."Ord. 9-1-6-10(second to last unnumbered paragraph).³

In February 1997, PrimeCo filed its application for a special use permit with the Village's Zoning Board.⁴During a hearing before the Zoning Board on March 27, 1997, Irwin Leiter represented PrimeCo.Leiter first described the project: a 150-foot monopole and an eight by ten by twelve foot equipment shelter.He reported that the monopole met all FCC requirements, would withstand hurricane-force winds, and would be surrounded by a six-foot fence.He also explained that other utilities and emergency service providers could "piggyback" on the tower, but that additional antennae would be required.

In response to questions from board members, Leiter described the monopole as being less than six feet around, either grey or white, and constructed from aluminum or spun concrete.Finally, he told the Board that even if the current cellular technology became obsolete, a new tower would not be necessary because PrimeCo could simply update the equipment, which would all be located in the shed on-site.The Board voted to recommend approving the special use application.(March Minutesat 1-3.)

Apparently PrimeCo failed to properly notify all adjacent landowners and was therefore forced to submit a second special use application, which it did on June 23, 1997.⁵The first hearing on the second application occurred on July 24.Leiter reviewed the information he provided during the March hearing.He also reported that the tower was needed for continuous service in the area, that current PrimeCo customers' phone calls were cut off when they drove through the Village, and that the tower would be located 500 feet away from the nearest residence and 20 feet back from the frontage road.A board member noted that the tower would be "invisible from the north because of topography."(July Minutesat 1.)

Several area residents voiced concerns during the July hearing.Alan Sturgess worried about the tower falling down, while Mary Battle was concerned about the danger to small aircraft and the ugliness of a light floating 150 feet up in the air.Ron Richards asked whether "this [is] the first thing that we want people to see as they enter Fox Lake."(July Minutesat 2.)Richards also claimed that the tower would impact residents' electronic equipment and the area wildlife.Finally, Richards opined that PrimeCo's antenna could be attached to an existing water tower.A board member reported that several residents complained about the tower being in their view, and another board member commented that he could see no benefit to the Village.A motion to approve the special use application "die[d] for lack of a second,"(July Minutesat 3), and the hearing was continued until August 13.

Several PrimeCo witnesses attended the August 13 hearing to address the concerns raised by residents at the July hearing.(Village App.Ex. 2, Zoning Bd. of Appeals Aug. 13, 1997 Minutesat 1("August Minutes").)Shellie Ruiz⁶ explained that PrimeCo chose the Hellios site because it had the best zoning, "business zoning", and that if the Hellios site was unavailable PrimeCo would need to construct two or more communications towers.In response to a board member's question, Ruiz testified that existing water towers were unacceptable because they were not located within the pinpoint area, which was between one-quarter and one-half of a mile wide.She also stated that another proposed site was inappropriate because it was too close to a PrimeCo tower located in Volo, Illinois.

Michelle Krezek explained how PrimeCo and the Hellios site satisfied the six special use criteria outlined in section 9-1-6-10D of the Village Ordinance.She stated that PrimeCo abides by all FCC guidelines, and that no noise, light, or vibrations would be generated by the communications tower.Additionally, Krezek explained that the facility would not interfere with any other radio transmissions because all PrimeCo signals would be on a specific band.She stated that subsections four and five, relating to traffic and "support systems"(e.g., water, drainage, roads, utilities, etc.), were essentially inapplicable...