T-MOBILE Cent. LLC. v. The CHARTER Twp. of West BLOOMFIELD

T-MOBILE CENTRAL LLC, a Wholly Owned Subsidiary of T-Mobile USA, Inc. Plaintiff,

v.THE CHARTER TOWNSHIP OF WEST BLOOMFIELD, a Michigan municipal corporation, Defendant.

CASE NO. 09-13496

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Dated: March 31, 2011

HONORABLE DENISE PAGE HOOD

ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY

JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This matter is before the Court on Plaintiff T-Mobile Central LLC's (T-Mobile) Motion for Partial Summary Judgment [Docket No. 8, filed on March 19, 2010] and Defendant Charter Township of West Bloomfield's (Township) Motion for Summary Judgment [Docket No 9, filed on March 19, 2010].¹ Defendant filed a Response to Plaintiff's Motion [Docket No. 11, filed on April 9, 2010], to which Plaintiff filed a Reply [Docket No. 13, filed on April 20, 2010]. Plaintiff filed a Response to Defendant's Motion [Docket No. 10, filed on April 9, 2010], to which Defendant filed a Reply [Docket No. 12, filed on April 20, 2010].

II. STATEMENT OF FACTS

In December 2008, Plaintiff T-Mobile, a provider of personal wireless services, filed an application for special land use and site approval for a personal wireless services facility, with related equipment. The proposed facility would be a 90-foot cellular tower, to be located in residentially-zoned property owned by Detroit Edison. The facility would replace an existing tower.

Pursuant to the Township's Zoning Ordinance, to be located on residentially zoned property, special land use approval must be recommended by the Planning Commission, and the applicant must get final approval from the Township Board. Plaintiff submitted evidence to the Township suggesting a need for the facility to address a significant coverage gap in T-Mobile's network, as well as demonstrating compliance with the Township's Zoning Ordinance. Defendant states that many residents opposed the request, and that the existing land uses in the area were residential subdivisions to the north, east, and west, and a day care center to the south of the site. The application was heard by the Planning Commission on February 24, 2009. Plaintiff contends that no documentary evidence or expert testimony was submitted in opposition to the application, with the only opposition coming from statements by five residents and some Board members, who opposed the facility without factual support.

The Planning Commission unanimously recommended denial of T-Mobile's request, providing the following explanation:

1. That the aesthetics of the surrounding neighborhood would be affected adversely; and,

2. That the Petitioner has not accomplished an aesthetically pleasing structure; and,

3. That a 70 foot cellular tower could be erected in the location rather than a 90 foot cellular tower; and,4. That the Petitioner has not provided information that other cellular companies are interested in co-existing on the subject cellular tower; and,

5. That the Zoning Ordinance (Section 26-49 a.10) specifies that the Township Board found that the presence of numerous towers and pole structures, particularly if located within residential areas, would decrease the attractiveness and destroy the character and integrity of the community.

Administrative Record, D.

Plaintiff argues that, in denying its application, the Board:

(i) ignored uncontroverted expert testimony concerning T-Mobile's significant coverage gap in its network within this portion of the Township, the lack of alternatives and the need for the facility to address that gap; and (ii) failed to properly implement the standards for approval contained in the Township Zoning Ordinance.

Plaintiff's Motion for Partial Summary Judgment, at 1. Plaintiff brings this suit seeking injunctive relief, claiming that the Board's denial violates the Federal Telecommunications Act of 1996 (the "Act" or "TCA") because the denial is not based on substantial evidence, and the denial has the effect of prohibiting the provision of personal wireless services in a portion of the Township. Defendant also seeks summary judgment on the issue of whether the denial of the application violated the Michigan Zoning Enabling Act. Plaintiff and Defendant have submitted a joint Administrative Record.

III. APPLICABLE LAW & ANALYSIS

Through the Telecommunications Act of 1996 ("Act" or "TCA"), Congress has placed limits on the authority of state and local governments to deny the construction of telecommunications towers, and has placed regulations on how such decisions are to be made. See Sprint Spectrum, L.P. d/b/a Sprint PCS v. Willoth, 176 F.3d 630, 637 (2d Cir. 1999). "[T]he method by which siting decisions are made is now subject to judicial oversight. Therefore,denials subject to the TCA are reviewed by [the] court more closely than are other types of zoning decisions to which federal courts generally afford great deference." Id. (internal quotations omitted).

Two of the limits Congress has imposed, relevant to this case, are found in 47 U.S.C. § 332(c)(7)(B). First, "[a]ny decision by a State or local government or instrumentality thereof 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." 47 U.S.C. § 332(c)(7)(B)(iii). Second, "[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the provision of personal wireless service." 47 U.S.C. § 332(c)(7)(B)(i)(II). Plaintiff argues that partial summary judgment is appropriate on either one of these grounds.²

A. Substantial Evidence

The Sixth Circuit has provided instruction as to how the Court must determine whether evidence is "substantial," and whether it supports the denial of a request for a personal wireless service facility.

Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion. This Court reviews the entire record, including evidence opposed to the result of the decision. We look to whether the agency explained any credibility judgments it made and whether it gave reasons for crediting one piece of evidence over another. This Court must examine the evidence as a whole, taking into account whatever in the record fairly detracts from its weight.

Telespectrum, Inc. v. Pub. Serv. Comm'n. of Kentucky, 227 F.3d 414, 423 (2000). Once an agency has identified grounds for denial of a request, the plaintiff bears the burden of "establishing] that none of these grounds are supported by substantial evidence in the record compiled in the proceedings." Sprint Spectrum v. Twp. of Brandon, 563 F.Supp.2d 697, 707 (E.D. Mich. 2008).

In this case, the Township Board proffered the following five reasons for denying T-Mobile's request:

1. That the aesthetics of the surrounding neighborhood would be affected adversely; and,

2. That the Petitioner has not accomplished an aesthetically pleasing structure; and

3. That a 70 foot cellular tower could be erected in the location rather than a 90 foot cellular tower; and,

4. That the Zoning Ordinance (Section 26-49 a.10) specifies that the Township Board found that the presence of numerous towers and pole structures, particularly if located within residential areas, would decrease the attractiveness and destroy the character and integrity of the community; and

5. Petitioner has not presented a sufficient need to build the tower.

Administrative Record B and C.

Having reviewed the Administrative Record, the Court finds that the Township's grounds for denial are not supported by substantial evidence. The Township Board's first two grounds for denial are aesthetic concerns. Defendant contends that many residents in the area spoke in opposition to the request, and raised concerns about the location and aesthetics of the tower. Defendant's Motion for Summary Judgment, at 4,11. Defendant cites Sprint Spectrum LP v. Charter Township of West Bloomfield, 141 F.Supp.2d 795 (E.D. Mich. 2001) to argue that citizens' objections can be used as a basis for denial. In Sprint, Sprint "contend[ed] that thegeneralized concerns of residents regarding aesthetics and property values are unsupported in the record." Id. at 798. In Sprint, in addition to the several residents who spoke in opposition at the hearing, a petition opposing the tower, signed by 150 residents, was presented, in addition to a formal opposition paper. The court in Sprint distinguished the facts before it from the "generalized concerns and conclusive statements" not found to be substantial evidence in other cases, such as in Iowa Wireless Servs., where four residents voiced concerns and no objective evidence existed. Id. at 800 (citing Iowa Wireless Servs. v. City of Moline, 29 F.Supp.2d 915 (C.D. Ill. 1998). While this Court does not dispute that citizens' concerns regarding aesthetics may rise to the level of "substantial evidence" in some cases, the Court finds that the facts of this case more closely resemble the facts of Iowa Wireless Servs., where the concerns were not found to constitute substantial evidence. The Administrative Record ("AR") reflects that only two letters of objection were received, and only five residents voiced opposition.³ AR 7-2, at 3, 6. The comments made were either of a general nature, or were conclusory in nature. Id. at 7-3, 6. The Court finds that the record is devoid of substantial evidence to support a denial of Plaintiff's application on the first two bases.

The Township Board's third stated ground for denial argues that a 70-foot tower could be erected instead of the 90-foot tower Plaintiff's requested. The record contains no substantial evidence supporting this as a basis for denying Plaintiff's application. To the contrary, the Staff Report for the Planning Commission...