Sprint Spectrum L.P. v. Jefferson County

• Decision Date: 31 July 1997
• Docket Number: Civil Action No. CV-97-S-1424-S.
• Citation: Sprint Spectrum L.P. v. Jefferson County, 968 F.Supp. 1457 (N.D. Ala. 1997)
• Parties: SPRINT SPECTRUM L.P., Dial Call Inc., a wholly owned subsidiary of Nextel Communications, Inc., Plaintiffs, v. JEFFERSON COUNTY, a body politic, and the Jefferson County Commission, Defendants.
• Court: U.S. District Court — Northern District of Alabama

Page 1457

968 F.Supp. 1457

SPRINT SPECTRUM L.P., Dial Call Inc., a wholly owned subsidiary of Nextel Communications, Inc., Plaintiffs, v. JEFFERSON COUNTY, a body politic, and the Jefferson County Commission, Defendants.

Civil Action No. CV-97-S-1424-S.

United States District Court, N.D. Alabama, Southern Division.

July 31, 1997.

As Amended August 1, 1997.

COPYRIGHT MATERIAL OMITTED

Thomas A. Ansley, Samuel M. Hill, Elizabeth Barry Johnson, Sirote and Permutt, PC, Birmingham, AL, for plaintiffs.

Jeffrey M. Sewell, Edwin A. Strickland, Jefferson County Atty's Office, Birmingham, AL, for defendants.

MEMORANDUM OPINION

SMITH, District Judge.

This action is before the court on plaintiffs' petition for declaratory judgment and writ of mandamus. They challenge a resolution adopted by the Jefferson County Commission on May 28, 1997, declaring a moratorium on "the processing of rezoning applications and processing of Board of Adjustment applications intended to authorize the installation of communication towers and [also] imposed upon the issuance of any building or development permit for such communication towers." Resolution No. May-28-1997-506. Plaintiffs contend the moratorium violates: Section 704 of the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7); the Omnibus Budget Reconciliation Act of 1993, 47 U.S.C. § 332(c)(3); Act No. 344 of the 1947 General Session of the Alabama Legislature; and, several state and federal constitutional provisions.

Upon consideration of the pleadings, briefs, affidavits, and stipulations, together with exhibits and oral arguments submitted during a hearing held July 25, 1997, this court makes findings of fact and enters conclusions of law.

I. FINDINGS OF FACTⁱ

A. Plaintiffs

Sprint Spectrum L.P. is licensed by the Federal Communications Commission¹ to provide personal communication services ("PCS") to consumers residing in Jefferson County, Alabama and surrounding areas. Dial Call, Inc. — a wholly owned subsidiary of Nextel Communications, Inc. (collectively, "Nextel") — is licensed by the FCC to provide wide-area specialized mobile radio services ("SMR") in the same area. Both companies base their services on digital technology, rather than analog data techniques employed by previous entrants to the relevant communications market. Most authorities agree that digital technology is an advance in communication and information-processing services.²

PCS and wide-area SMR operate by transmitting low power radio signals between mobile, wireless units and fixed antennae mounted on towers, buildings, or other structures. Signals generated by mobile transmitters are fed to electronic devices housed in equipment cabinets at the base of antennae, where they are connected to telephone lines, over which the transmission is routed to ordinary telephone equipment located anywhere in the world. A single antenna and its related equipment cabinet are called a "cell site."

The distance over which the low-power signals emitted by mobile transmitters may be effectively broadcast to fixed, cell site antennae is limited to a relatively small geographic area, called a "cell." Accordingly, an overlapping, interconnected quilt of cells must be stitched together to provide seamless coverage. Where there is a "gap" in the pattern, the user's call is "dropped," or disconnected.

B. Jefferson County's Regulation of Telecommunication Towers

President Clinton signed the Telecommunications Act into law on February 8, 1996. It is intended to "accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition...." H.R.Cong.Rep. No. 458, 104th Cong., 2d Sess. 1 (1996).

Before the Act, Jefferson County did not have specific zoning regulations governing the construction, placement, or modification of cellular telecommunication towers. Even so, § 704 of the County's Zoning Ordinance authorized the construction of radio and television transmission towers on property zoned as utilities district one ("U-1"), and "the County allowed the placement of cellular [telecommunication] towers only upon property which was zoned U-1." Affidavit of Frank Humber, Director of Jefferson County's Land Development Department, at 1 (emphasis supplied).

When necessary to construct a cell site in an area other than one zoned U-1, in order to provide uninterrupted communication services, an application to rezone property had to be filed with the County Commission. That process was (and remains) protracted: "A rezoning of property to a district that permits towers requires at least 90 days, and often longer." Id., at 2.

In all years preceding enactment of the Telecommunications Act, "the County had received only 16 applications to rezone property to U-1 for ... placement of a cellular telephone tower." Id., at 1.³ That changed on February 8, 1996. Applications to rezone property for construction of cell sites virtually tripled: 45 applications for new tower sites have been filed since the Act became law. Id.⁴

C. The First Moratorium

On December 12, 1995, two months prior to enactment of the Telecommunications Act, and perhaps in prescient anticipation of a marked increase in the number of rezoning applications if that legislation became law, "the Jefferson County Commission passed a resolution declaring a moratorium on the rezoning of property for cellular telephone towers." Id., at 2; see also Plaintiffs' Exhibit B: Resolution Dec-12-1995-BESS-165. Although not stated in the Resolution itself, the County's Land Development Director avers:

[t]his moratorium was declared to give the Jefferson County Commission time to develop specific review procedures and guidelines regarding the placement, construction and modification of cellular telephone towers in the County. The County Commission also wanted to explore ways to reduce the need for additional towers by encouraging telephone providers to share cell sites or "co-locate" on existing towers. The County Commission also wanted to explore ways to reduce the negative impact of towers on surrounding land uses, particularly residential neighborhoods.

Humber Affidavit, at 2 (emphasis supplied).

D. The New Zoning Guidelines

Three months later, on March 6, 1996, the Commission amended its zoning regulations. The new regulations⁵ and "review guidelines for communication towers"⁶ reflect the requirements of the Telecommunications Act.⁷ They permit cellular telecommunication towers to be constructed in several additional zoning districts, and subject applications to the scrutiny of "a site review committee" only if a tower will be erected within 1,000 feet of a residence.

For example, under the Guidelines it is possible to place a cellular telephone tower on property zoned C-1, C-3 and C-5 Commercial or all Industrial districts and located immediately contiguous to residentially zoned property with no input from the Planning and Zoning Commission, the County Commission or the residents of the neighborhood (if the tower is within 1000 feet of a residence, review by a site review committee is required but only for landscaping and not for relocation of the tower). ...

Id., at 3 (emphasis in original). Those amendments "significantly reduced the length of time required to gain approval for the placement of a new tower since a formal rezoning of property would usually be unnecessary." Id., at 2.

It is important to note, however, that when adopting the "review guidelines" the Commission clearly stated an intent to "discourage" the construction of new towers:

It is the Commission's express intent that the construction of new towers be an option of last resort; to the extent feasible, location of antennae on existing towers, building rooftops, and other suitable structures should first be sought. These guidelines are designed to ensure the compatibility of towers with and avoid adverse impacts to nearby properties and discourage the proliferation of towers throughout the County.

Plaintiffs' Exhibit B: "Section 1118 Review Guidelines for Communication Towers," at ¶ A (statement of "Purpose").

E. The Second Moratorium

The first moratorium was lifted following adoption of guidelines. During the succeeding eight months, from March 6 through November 19, 1996, the Land Development Department received 22 applications for placement of cellular telecommunication towers. Humber Affidavit, at 2.⁸ Evidently, most of those were for new towers, as opposed to applications to locate "antennae on existing towers, building rooftops, and other suitable structures" because, on November 19, 1996,

the Jefferson County Commission adopted a resolution establishing a second 90 day moratorium only on the processing of applications for rezoning of property for placement of cellular telephone towers. The second moratorium did not restrict the processing of applications for towers that met the guideline criteria and did not require rezoning. That is, the second moratorium only applied to applications to rezone property for the purpose of erecting a cellular telephone tower.

Id. (emphasis in original).

F. The Third Moratorium

The second moratorium lapsed on February 7, 1997. Subsequent applications continued the previous pattern, however: "It was clear that [cellular] providers were going to continue applying for individual tower sites instead of voluntarily co-locating on existing towers." Id., at 3.

It also is clear that residents of county neighborhoods contiguous to commercial, industrial, or utility districts had begun to lodge complaints about the proliferation of towers with their elected commissioners. That inference is gleaned from the affidavit of the County's Land Development Director where — immediately after explaining that the new regulations permitted construction of towers in districts contiguous to residential property "with no input from the Planning and Zoning...