T-Mobile South LLC v. City of Jacksonville, Fla.
| Decision Date | 03 June 2008 |
| Docket Number | Case No. 3:06-cv-846-J-16TEM. |
| Citation | 564 F.Supp.2d 1337 |
| Parties | T-MOBILE SOUTH LLC, Plaintiff, v. CITY OF JACKSONVILLE, FLORIDA, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Daniel C. Johnson, James Blaker Baldinger, Carlton Fields, PA, Orlando, FL, for Plaintiff.
Jason R. Teal, Tracey I. Arpen, Jr., General Counsel's Office, Jacksonville, FL, for Defendant.
Plaintiff, T-Mobile South LLC ("T-Mobile"), a cellular telephone company challenged the City of Jacksonville's (the "City") denial of two applications to construct a camouflaged cell phone tower at 5266 Losco Road in Jacksonville, Florida (the "Proposed Site") as violative of the Federal Telecommunications Act of 1996 (the "Act"). 47 U.S.C. § 332. The parties' cross-motions for summary judgment (Dkts. 27 and 28) on consolidated Count I and responses in opposition (Dkts. 29 and 30) are pending before the Court.
The facts of this case are not in significant dispute. The parties disagree about the application of the facts to the legal standards articulated below. After careful consideration of the parties' memoranda of law and supporting documents, the Court finds that the City's Motion for Summary Judgment on consolidated Count I (Dkt. 28) will be GRANTED and T-Mobile's Motion for Summary Judgment on Consolidated Count I (Dkt. 27) will be DENIED.
This consolidated case resulted from the City's denial of T-Mobile's two applications to construct a cell phone tower on the Proposed Site.1 In the first application, Mobile sought approval for a 150-foot tower (the "First Application"). Following denial of the First Application, T-Mobile filed a second application to build a 130-foot tower at the same location (the "Second Application"), which the City also denied.
Following denial of the First Application, T-Mobile filed a two-count complaint in Case Number 3:06-cv-770-J-16HTS. Count I sought declaratory and injunctive relief and Count II sought only injunctive relief for violations of the Act. Count II was pled in the alternative to Count I and contained the traditional elements of injunctive relief.
Following denial of the Second Application, T-Mobile filed a four-count complaint in Case Number 3:06-cv-846-J-16TEM. Counts I and II were based on the City's denial of the 130-foot tower and requested the same relief as Counts I and II in the First Application case. Counts III and IV alleged that the City's denial of T-Mobile's applications to construct both the 150-foot and 130-foot towers had the effect of prohibiting the provision of personal wireless service in violation of the Act's Section 332(c)(7)(B)(iii). When consolidating the First and Second Application cases, the Court dismissed Count II and abated Counts III and IV pending resolution of the parties' cross-motions for summary judgment on Count I of the consolidated case.
T-Mobile proposed to build an unmanned and "camouflaged" cell tower which would require only one maintenance visit per month. The proposed cell tower is "camouflaged" in that it is designed to look like a flag pole, which assists in "hiding, obscuring, and concealing both the tower itself and its antennas (which are housed inside the flag pole)." (Dkt. 27 at p. 4). T-Mobile does not plan to fly a flag from the cell tower. Between the First and Second Applications, T-Mobile reduced the height of the proposed cell tower from 150-feet to 130-feet.
The Proposed Site, 5366 Losco Road in Jacksonville, Florida is located near the southern intersection of I-295 and I-95. It contains a single-family residence and is zoned rural residential ("RR") with an underlying Low Density Residential ("LDR") land use designation. The Proposed Site is surrounded by properties that are zoned for low density single-family residential uses. Contiguous properties contain single-family homes. Several new residential subdivisions are being built near the Proposed Site.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
In determining whether to grant summary judgment, the Court must view the evidence and inferences drawn from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988); WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988). In Lee the Eleventh Circuit explained that:
In deciding whether an inference is reasonable, the Court must "cull the universe of possible inferences from the facts established by weighing each against the abstract standard of reasonableness." [citation omitted]. The opposing party's inferences need not be more probable than those inferences in favor of the movant to create a factual dispute, so long as they reasonably may be drawn from the facts. When more than one inference can be reasonably drawn, it is for the trier of fact to determine the proper one.
Thus, if a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant the summary judgment motion. See Augusta Iron & Steel Works, Inc., 835 F.2d at 856.
The principles governing summary judgment do not change when the parties file cross-motions for summary judgment. When faced with cross-motions, the Court must determine whether either of the parties deserves judgment as a matter of law on the undisputed facts.
T-Mobile alleges that it is entitled to summary judgment on Count I for three reasons. First, T-Mobile claims that the City's denials of the First and Second Applications failed to contain statutorily required explanations of the reasons for the denials. Second, T-Mobile claims that the City's denials were based on statutorily impermissible generalized aesthetic concerns, which were not supported by substantial evidence. Third and finally, Mobile claims that to the extent that the City's denials were based in whole or in part, on the feasibility of an alternative site for the camouflaged cell phone tower, the denials violate the Act because no evidence was presented that the "alternative site" is either appropriate for a camouflaged cell phone tower or available to Mobile for that purpose. The City claims that it is entitled to summary judgment because its denials meet the Act's statutory requirements and are supported by substantial evidence.
The Act provides in pertinent part:
(7) Preservation of local zoning authority
Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a state or local government ... over decisions regarding the placement, construction, and modification of personal wireless service facilities.
(i) The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government ...
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
....
(iii) Any decision by a State or local government ... 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.
Courts have observed that § 332(c)(7)(B) is "a deliberate compromise between two competing aims—to facilitate nationally the growth of wireless telephone service and to maintain substantial local control over siting of towers." U.S. Cellular v. City of Franklin, New Hampshire, 413 F.Supp.2d 21, 29 (D. New Hampshire 2006) ). "Basically, [the Act] gives local authorities the first say in determining where and how to construct [wireless communications facilities]; if, however, a local authority's actions violate the provisions of [the Act], a court has the authority to order the locality to take such steps as are necessary to grant the relief which the wireless provider had originally requested from the locality." Id. (internal citations omitted).
Pursuant to the City's Ordinance Code (the "Code") § 656.1505 (the "Tower Ordinance"), a telecommunication company wishing to construct a telecommunications tower within the City must first file an application with the City's Planning Commission (the "Commission").2 The application process has three steps. First, a Planning Coordinator reviews the application to determine if it is complete. Second, the completed application is forwarded to the Planning and Development Department (the "Planning Department"), which prepares a report recommending denial or approval. Third and finally, the Commission holds a public hearing and makes a final determination on the application.
When rendering a final decision on a proposed cell tower, the Commission must adhere to the Tower Ordinance, which provides that the Commission "shall approve, deny or conditionally approve" requests to construct camouflaged towers if they "(1) compl[y] with the tower siting and design standards and performance standards ....; and (2) are compatible with the existing contiguous uses or zoning and compatible with the general character and aesthetics of the surrounding neighborhood or area, considering (a) the design and height of the communication tower; and (b) the potential adverse impact...
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