Voicestream Minneapolis v. St. Croix County

• Citation: 342 F.3d 818
• Decision Date: 08 September 2003
• Docket Number: No. 02-2889.,02-2889.
• Parties: VOICESTREAM MINNEAPOLIS, INCORPORATED, formerly known as APT Minneapolis, Incorporated, a Delaware corporation, Plaintiff-Appellant, v. ST. CROIX COUNTY, a Wisconsin political subdivision, and its Board of Adjustment, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

342 F.3d 818

VOICESTREAM MINNEAPOLIS, INCORPORATED, formerly known as APT Minneapolis, Incorporated, a Delaware corporation, Plaintiff-Appellant, v. ST. CROIX COUNTY, a Wisconsin political subdivision, and its Board of Adjustment, Defendant-Appellee.

No. 02-2889.

United States Court of Appeals, Seventh Circuit.

Argued February 18, 2003.

Decided September 8, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gary A. Van Cleve (Argued), Larkin, Hoffman, Daly & Lindgren, Bloomington, MN, for Plaintiff-Appellant.

Mark J. Steichen (Argued), Anita T. Gallucci, Boardman, Suhr, Curry & Field, Madison, WI, for Defendant-Appellee.

Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges.

RIPPLE, Circuit Judge.

VoiceStream Minneapolis, Inc. ("VoiceStream") brought this action against the County of St. Croix, Wisconsin, and its Board of Adjustment (collectively, "the County") under § 704 of the Telecommunications Act of 1996, 47 U.S.C. § 332. The County had denied VoiceStream's application for a special exception permit to construct and operate a telecommunications tower. The district court granted summary judgment in favor of the County. It held that the County's denial of VoiceStream's application was supported by substantial evidence and that VoiceStream had failed to demonstrate that the County's decision had the effect of prohibiting personal wireless services. VoiceStream asks us to reverse the judgment of the district court and to direct that an injunction be granted, directing the County to issue the requested permit. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

VoiceStream, formerly known as APT Minneapolis, Inc., is a provider of personal communication services ("PCS"). St. Croix County is a political subdivision of the State of Wisconsin. The St. Croix County Board of Adjustment ("Board of Adjustment") is a quasi-judicial arm of the County with the responsibility for reviewing applications for special exception permits ("SEP") under the County's zoning ordinance. VoiceStream is licensed by the Federal Communications Commission ("FCC") to provide PCS to customers in several states, including Wisconsin and Minnesota. The County is included within the geographic boundaries of VoiceStream's license for providing PCS in Wisconsin.

VoiceStream's commercial license requires it to provide adequate PCS coverage to its customers within the geographic boundaries of its license. See R.22 at 5-6. The technology that VoiceStream is licensed to implement requires the construction and placement of antennas that are capable of receiving and transmitting wireless communication signals in accordance with radio frequency standards. See id. at 7. The location of these antennas "takes into account several factors including (a) population demands (residential, commercial, and vehicular), (b) topographical constraints of the land, such as uneven terrain, buildings, extensive tree cover or vegetation, (c) the height of the proposed antenna, and (d) the proximity to and height of other antennas." Id. In order for PCS to function properly, the antenna must be elevated to allow a relatively unimpeded line of sight to the end users' telecommunications equipment. See id. This goal often is attained by locating the antenna on an existing structure such as a water or fire tower. See id. Where no such structure is available, a communications tower must be constructed to elevate the antenna to the proper height. See id. Although the signal from the antenna can penetrate trees and buildings, it cannot penetrate hills. See R.29 at 22. Thus, in order to provide PCS in an area with hills, the service provider must either increase the elevation of the antenna or increase the number of antenna locations. See R.20, Ex.4 at 21.

VoiceStream began seeking a location for an antenna that would fill a gap in its PCS coverage along Wisconsin Highway 35, Minnesota Highway 95, the St. Croix River Valley and the surrounding area. See R.16, Ex.B at 1. VoiceStream determined that, in keeping with its goal of meeting "full coverage objective[s] with only one tower," R.16, Ex.EE, § 2 at 1, the best site was on the agriculturally zoned property owned by William and Opal Haase ("Haases") in Somerset Township, Wisconsin ("Somerset site"). Somerset is located in St. Croix County.

The Somerset site sits on a bluff overlooking the St. Croix River and the Lower St. Croix National Scenic Riverway (the "Riverway"). In fact, the proposed tower would be located just 660 feet east of the Riverway boundary. See R.16, Ex.C at 2. The Riverway runs north to south as the river flows past the Somerset site. The river serves as the boundary between Wisconsin and Minnesota. See R.20, Ex.4J. The National Park Service ("Park Service") owns and manages the Riverway, which includes the St. Croix River and approximately 1/4 mile of land on either side in Minnesota and in Wisconsin. See R.29 at 5-6. The County has exercised its zoning authority over that portion of the Riverway that is within its boundaries and has created a zoning district bordering the river called the "Riverway District." See R.20, Ex.1 at 4. The Riverway "was designated under the Wild and Scenic Rivers Act in 1972 (Public Law 90-542) [16 U.S.C. § 1271 et seq.] to protect its outstandingly remarkable scenic, recreational and geologic values for present and future generations." R.16, Ex.D.

Directly across the river from the Somerset site is the City of Marine on St. Croix ("Marine") and the Marine on St. Croix Historic District ("Historic District"). See id. The Historic District includes the Marine Mill ruins, which is the site of the first sawmill in Minnesota and the birthplace of the Minnesota lumbering industry. See id. The Historic District was nominated to the National Register of Historic Places in 1974. See id.

In 1997, the County enacted Ordinance No. 440, which regulates the placement of wireless communication facilities in the County and provides a specific application process for new facilities. See R.16, Ex.F. One of the stated purposes of the ordinance is to "[m]inimize adverse visual effects of wireless communication facilities through careful siting and design standards." See id. at 1. Wireless communication facilities are regulated according to the zoning district in which the property is located. See id. at 3. When property is located in an agricultural district, anyone seeking to attach an antenna to an existing structure where the antenna extends more than 20 feet above the structure, or seeking to construct a new tower with a maximum height of 300 feet, must submit a SEP application to the Board of Adjustment pursuant to § 17.70(7) of the County ordinance. See id. at 4. A SEP application also must be submitted in order to place an antenna in the Riverway District. See id. However, the zoning ordinance regulating the Riverway District only permits an antenna to be attached to an existing structure, and the antenna must not extend more than 20 feet above the structure. See id. No other towers or antennas are permitted in the Riverway District. See id.

On February 9, 2000, VoiceStream entered into a lease agreement with the Haases. The agreement gave VoiceStream permission to build and maintain a communications facility on the Haases' agriculturally-zoned property, subject to the requirement that VoiceStream obtain all necessary permits from local and federal land use jurisdictions. See R.16, Ex.A. The most prominent feature of the proposed facility would be an 185-foot tower upon which the PCS antennas would be located. See R.16, Ex.H.¹

On March 7, 2000, VoiceStream sent a letter to the Planning Commission for the Town of Somerset, requesting approval for its tower. See R.16, Ex.B. The town planning commission met on March 15, 2000, to consider the tower proposal. See R.16, Ex.C at 2. At this meeting, several members of the local community expressed concern that the proposed tower was not in keeping with the pristine scenic nature of the Riverway. See id. at 3. A Park Service representative also testified concerning the millions of dollars that had been spent to preserve the scenic qualities of the Riverway. He opined that allowing a 185-foot tower in this location would be a visual intrusion on the Riverway and would pose a serious threat to the scenic values that the Riverway was designed to protect. See id. The Planning Commission, in its advisory role to the Somerset Town Board, voted six-to-one to deny the proposed tower because of "the visual impact on the area and a lack of clarity in the presentation." Id. at 4. Despite this negative recommendation, the Somerset Town Board voted two-to-one to approve the Somerset site with the provision that the Haases and VoiceStream further consider what specific tower design would be least obtrusive at that location. See R.16, Ex.E. The Somerset Town Board also noted that County approval would be necessary for the proposed tower. See id.

In short order, VoiceStream filed a SEP application for the Somerset site with the County Zoning Office. See R.16, Ex.G. The Board of Adjustment promptly scheduled a hearing to review the application. However, because the FCC informed VoiceStream that its proposed tower may have adverse effects on the local environment and historical properties, VoiceStream requested that its application be removed from the Board of Adjustment's agenda. See R.16, Ex.K. Subsequently, VoiceStream held several public meetings to discuss the impact of the tower on the Historic District and on the Riverway. At one of these meetings, which was held on May 24, 2000, VoiceStream presented two alternatives to its one-tower Somerset site proposal. See R.16, Ex.N at 2. The first of these alternatives was a two-tower system with one 250-300 foot tower two miles west of the Riverway and one shorter tower located within the Riverway. See id. Also...