T-Mobile Central v. Unified Gov't of Wyandotte

• Decision Date: 28 September 2007
• Docket Number: No. 06-2313-DJW.,06-2313-DJW.
• Citation: 528 F.Supp.2d 1128
• Parties: T-MOBILE CENTRAL, LLC, as Successor in interest to VoiceStream Kansas City, Inc. d/b/a T-Mobile, Plaintiff, v. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, Defendant.
• Court: U.S. District Court — District of Kansas

528 F.Supp.2d 1128

T-MOBILE CENTRAL, LLC, as Successor in interest to VoiceStream Kansas City, Inc. d/b/a T-Mobile, Plaintiff, v. UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, Defendant.

No. 06-2313-DJW.

United States District Court, D. Kansas.

September 28, 2007.

COPYRIGHT MATERIAL OMITTED

Cathy J. Dean, Polsinelli Shalton Flanigan Suelthaus, P.C., Kansas City, MO, Kristin E. Weinberg, Polsinelli Shalton Welte Suelthaus, P.C., St. Louis, MO, for Plaintiff.

Patrick M. Waters, Kansas City, KS, for Defendant.

MEMORANDUM AND ORDER

DAVID J. WAXSE, United States Magistrate Judge.

I. INTRODUCTION

This is an action for declaratory, injunctive, and mandamus relief pursuant to the Federal Telecommunications Act of 1996 (the "TCA").¹ More specifically, T-Mobile alleges that the Defendant's denial of Plaintiff's application for Special Use Permit to construct a wireless telecommunications facility violates the TCA.

Before the Court are cross-motions for summary judgment filed by Plaintiff Mobile Central, LLC ("T-Mobile") (doc. 22) and Defendant Unified Government of Wyandotte County/Kansas City, Kansas ("Unified Government") (doc. 28). For the reasons set forth below, the Court will grant T-Mobile's Motion for Summary Judgment and deny the Unified Government's Motion for Summary Judgment.

II. SYNOPSIS OF MEMORANDUM AND ORDER

The issues presented in this lawsuit are:

(1) whether the Unified Government's denial of T-Mobile's application to construct a wireless communication tower was supported by substantial evidence in the written record as required by the TCA; and

(2) whether the denial had the effect of prohibiting the provision of personal wireless services in violation of the TCA.

Although, at first glance, the issues presented above seem narrow and straightforward there are a considerable number of uncontroverted facts in this case and, on several issues of law, no clear precedent in the Tenth Circuit In light of these circumstances, the Court finds it helpful to begin this opinion with a brief synopsis.

After setting forth the legal standard for summary judgment (Section III) and the uncontroverted facts (Section IV), the Court will begin its analysis (Section V) by discussing the first issue raised in this lawsuit: whether denial of T-Mobile's application is supported by substantial evidence (Section V(A)). Judicial review under the substantial evidence standard, even at the summary judgment stage, is quite narrow and highly deferential to the local decision-making entity.² The court is limited to reviewing only the administrative record to see if it contains substantial evidence to support the local board's decision.³ To that end, the Court will discuss the appropriate "substantial evidence" legal standard (Section V(A)(1)) and then will review the local zoning ordinances relied upon by the Unified Government in denying the application (Section V(A)(2)). Applying the facts to the law, the Court will then go through each of the Unified Government's reasons for denying T-Mobile's application in order to determine whether each is supported by substantial evidence (Section V(A)(3)).⁴

The Court will continue its analysis in Section V by discussing the second issue raised in this lawsuit: whether denial of T-Mobile's Application had the effect of prohibiting the provision of personal wireless services in violation of the TCA (Section V(B)). Unlike a substantial evidence claim, the parties readily acknowledge that an effective prohibition claim is reviewed de novo and may be based on newly proffered evidence.⁵ To that end, the Court first will discuss the appropriate legal standard of review (Section V(B)(1)(a)) and then determine the meaning of the terms "prohibition" and "service gap" as used in the TCA (Section V(B)(1)(b)). Because review is de novo, the Court next will set forth the evidence presented by each of the parties (Section V(B)(2)). Finally, the Court will apply the facts to the law to determine whether denial of T-Mobile's Application had the effect of prohibiting the provision of personal wireless services in violation of the TCA (Section. V(B)(2)).

III. SUMMARY JUDGMENT STANDARD⁶

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law."⁷ In applying this standard the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.⁸ A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."⁹ An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."¹⁰

The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law.¹¹ In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim.¹²

Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial.¹³ The nonmoving party may not simply rest upon its pleadings to satisfy its burden.¹⁴ Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant"¹⁵ To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."¹⁶ Finally, the court notes that summary judgment is not a "disfavored procedural shortcut"; rather, it is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.'"¹⁷

IV. UNCONTROVERTED FACTS

A. The Parries

T-Mobile is in the telecommunications business and provides commercial mobile radio telecommunications services ("personal wireless service") as that term is defined by the Federal Communications Commission ("FCC").¹⁸ The Unified Government is the consolidated government of Wyandotte County and the City of Kansas City, Kansas.

B. Wireless Communication Facilities in General

Wireless communications systems rely on an overlapping and interconnected network of antenna facilities known as wireless communications facilities ("WCFs"). WCFs are radio antennas that receive and transmit low-power radio signals to and from mobile wireless handsets, thereby facilitating wireless or "mobile" communications. The antennas of WCFs must be located on structures of sufficient height, such as communication towers, to transmit And receive radio signals over large distances. Where no such structures exist, new communication towers may be needed. Any tower component of a WCF must be located within a limited area so it can provide line-of-sight communications with mobile wireless handsets and to properly interact with other WCFs. Each telecommunications tower has a limited maximum coverage area, the extent of which varies depending upon several factors, including the tower height, local topography, configuration of various existing structures, and population densities.

C. The Lease for the Proposed Site

T-Mobile is the lessee of certain real property located in the vicinity of 2900 Minnesota Avenue in Kansas City, Wyandotte County, Kansas (the "Proposed Site"), and T-Mobile seeks to construct a new WCF on that property. T-Mobile entered into a Site Lease with Option (the "Lease") for the Proposed Site with First Baptist Church of Kansas City, Kansas (the "Church"). The Proposed Site is a 50-foot by 50-foot tract of land located on the Church's property. Pursuant to the Lease, the Church grants T-Mobile the right "to erect and maintain on the Premises improvements, personal property and facilities necessary to operate its communications system, including, without limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment shelters and/or cabinets and related cables and utility lines and a location based system."

D. Kansas City, Kansas Code of Ordinances

Kansas, City, Kansas Code of Ordinances ("Code") section 27-260 provides that decisions and recommendations of acting bodies should take into consideration: "(1) Conformance with regulations, the comprehensive plan, and other adopted plans, design guidelines and policies; (2) Recommendations of staff and recommending bodies; (3) Input of reviewing agencies and departments; (4) Public comment and testimony received at the hearing; and (5) Effects of the proposal on the neighborhood, area, and community-at-large."

Section 27-1252(a)(32) of the Code permits telecommunications antennas and towers in Kansas City, Kansas, under Special Use Permit. Section 27-1252(a)(32)(h) states that "[i]n evaluating such proposed sites, commercial districts are generally preferred over those in residential districts as are sites in less restrictive residential or commercial districts generally preferred over those in more restrictive districts (section 27-1049(f))."

Section 27-275(f)(7) of the Code provides for ten separate residential zoning districts in Kansas City, Kansas, classified from "Most Restrictive" to "Least Restrictive." The property upon which T-Mobile's proposed telecommunications tower is zoned R-1(B) Single Family District. The R-1(B) Single Family District zone is the third most restrictive residential zoning classification. Section 27-1160(a) states that the purpose of R-1(B) districts is to "provide for new and infill residential development in those older areas of the city where the existing development was substantially completed prior to World War II."...