T-Mobile Central LLC v. City of Fraser

675 F.Supp.2d 721

T-MOBILE CENTRAL LLC, Plaintiff, v. CITY OF FRASER, Defendant.

Civil No. 08-11878.

United States District Court, E.D. Michigan, Southern Division.

December 10, 2009.

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Jeffrey R. Dobson, Dickinson Wright, Ann Arbor, MI, for Plaintiff.

John A. Dolan, York, Dolan, Clinton Township, MI, for Defendant.

Michael G. Vartanian, Dickinson Wright, Ann Arbor, MI.

ORDER ADOPTING REPORT AND RECOMMENDATION

JOHN FEIKENS, District Judge.

This case arises from a denial by the City of Fraser of T-Mobile's application for a zoning variance. T-Mobile seeks to fill a gap in its cellular telephone coverage through the installation a 120 foot monopole on property zoned for commercial use in Fraser. Fraser's zoning regulations limit the height of structures to 25 feet. When Fraser rejected T-Mobile's application for a zoning variance, T-Mobile appealed to this Court, arguing that Fraser's decision is contrary to federal law, because it has "the effect of prohibiting the provision of personal wireless services." The parties briefed their respective positions, and stipulated to the proceedings being conducted as an administrative appeal. (Dkt. Nos. 8, 10, 12, 15.)

On September 15, 2009, Magistrate Judge Scheer issued a Report and Recommendation (the "Report") in which he recommended that Fraser's denial of T-Mobile's application for a zoning variance be reversed. (Dkt. No. 16). Fraser filed Objections to the Report. (Dkt. No. 18). T-Mobile filed a Response to Fraser's Objections, and later filed a Supplemental Response, citing newly-issued authority responsive to one of Fraser's objections. (Dkt. Nos. 20, 21). For the reasons set forth below, I ADOPT Magistrate Judge Scheer's Report and Recommendation, REVERSE the City of Fraser's denial of T-Mobile's application for a zoning variance, and ORDER Fraser to provide any and all permits necessary for the construction of the proposed wireless facility.

FACTUAL BACKGROUND

Plaintiff T-Mobile Central, LLC ("T-Mobile") provides personal wireless communication (cellular telephone) services. Defendant City of Fraser ("Fraser") is a home-rule city, approximately four square miles in size, with approximately 15,297 residents. On November 27, 2007, T-Mobile filed an application with the Fraser Zoning Board seeking to construct a 120 foot tower at 32950 Hayes Road, Fraser. T-Mobile contends that the tower is necessary to fill a gap in its wireless telephone coverage in and around the intersection of Hayes and Fourteen Mile Roads.

Fraser's Zoning Board of Appeals held two public hearings. Among other witnesses, T-Mobile offered the expert testimony of Srinvas Kovuru, a radio frequency engineer engaged in the development of Plaintiff's wireless network. Mr. Kovuru evaluated the proposed project and determined that the requested tower was necessary to fill a substantial gap in coverage in the area. In response, Fraser offered no expert testimony. Indeed, although Fraser's planning consultant, Patrick Meagher, issued a written recommendation that T-Mobile's application be referred to an independent radio engineer for review, Fraser ignored that advice. In fact, the Zoning Board affirmatively declined to postpone voting on T-Mobile's application to allow time to obtain its own expert opinion. Instead, it offered only non-expert opinions of the Zoning Board members, and anecdotal statements of area residents, many of which were not T-Mobile customers.

T-Mobile advanced the following facts in support of its position that a significant gap in coverage exists at the area in question:

• T-Mobile has established a service level goal of no greater than 1% of dropped calls (ROA 235);

• Each day, 8,158 calls are made by T-Mobile customers in the relevant area. Of those, an average of 165 calls are dropped (just over 2%) (ROA 147);

• 101 emergency 9-1-1 calls were placed by wireless customers in Fraser during a 3-month period (ROA 147);

• 14 Mile Road and Hayes Road are heavily traveled "major arteries", having approximately 60,000 vehicles commuting daily between residential and business communities in Warren, Sterling Heights, Fraser, and other neighboring cities. (ROA 66, 174-183);

• Signal propagation maps show insufficient signal strength to serve commercial properties, or residential properties with brick construction (ROA 160-165); and

• Existing cellular facilities have capacity limits, such that if more than 300 simultaneous calls are placed by T-Mobile customers, some callers will experience call drops (ROA 62, 66, 70, 83-84).

After the hearings, Fraser denied T-Mobile's application for a variance, citing nine separate bases for its denial. Notably, Fraser did not list T-Mobile's failure to establish a significant gap in coverage as a reason for its denial. Magistrate Judge Scheer observes that Fraser's written decision for its denial "appears to concede that such a coverage gap existed" (Report at 12) by listing the following reasons relevant to this Motion: (a) the service needs primarily exist in other communities, (b) the problem may be solved by co-locating T-Mobile's facilities within another cellular provider's facilities, and (c) maps indicate continued coverage lapses after the proposed installation.

Magistrate Judge Scheer found that "T-Mobile submitted documentary and testimonial evidence that a gap existed in wireless telecommunication services to areas of Fraser, Warren, and Sterling Heights surrounding the proposed tower site." Report at 11. Because Fraser "ignored the advice of its own expert", "fail[ed] to secure evidence to counter [T-Mobile's] evidence that there was a service gap," and "accepted the reality of the coverage gap in its written decision," Magistrate Judge Scheer found that Fraser "may not now assert that T-Mobile failed to demonstrate that a gap existed." Report at 12.

STANDARD OF REVIEW

The parts of the Report to which objections are made will be reviewed by the Court de novo. See FED. R. CIV. P. 72(b); Thomas v. Halter, 131 F.Supp.2d 942, 944 (E.D.Mich.2001). The Court, however, "is not required to articulate all of the reasons it rejects a party's objections." Id. (citations omitted); see also Tuggle v. Seabold, 806 F.2d 87, 92 (6th Cir.1986).

ANALYSIS

In his Report, Magistrate Judge Scheer recommends that this Court: (1) find that Fraser's denial of T-Mobile's application for a zoning variance has the effect of prohibiting the provision of wireless services, in contravention of federal law; (2) reverse Fraser's decision to deny T-Mobile's application for a zoning variance; and (3) order Fraser to provide any and all permits necessary for the construction of the proposed wireless facility.

Fraser objects that (1) the Report fails to articulate a legal standard used to determine the existence of a significant gap in coverage; (2) the Report incorrectly states that Fraser concedes that T-Mobile has established a significant gap in coverage; and (3) in finding a significant gap in coverage, the Report fails to address whether other service carriers provide coverage in the area.

I agree with Magistrate Judge Scheer's Report and Recommendation, and find that Fraser's objections fail for the reasons articulated below. Accordingly, I adopt Magistrate Judge Scheer's Report and Recommendation in its entirety.

Omnipoint Holdings v. The City of Cranston

After the Report was issued, the First Circuit issued an opinion in Omnipoint Holdings, Inc. v. City of Cranston, 586 F.3d 38 (1st Cir.2009), which has similar facts to the instant matter. Because the analysis is instructive, I have summarized the Cranston decision here.

In Cranston, a wireless carrier was denied a zoning variance to construct a wireless cellular tower in Cranston, Rhode Island. Id. at 41-42. Omnipoint had established reliability goals for calls made on its network, and determined the minimum cellular signal strength necessary to achieve its goals. Id. at 42. The court noted that "Federal law does not require any specific signal level; Omnipoint has set high standards to satisfy its customers." Id. Omnipoint performed propagation studies and detected signal levels below its established standards on Phenix Avenue, a main roadway connecting Cranston to nearby towns. Id. Omnipoint's radio frequency engineer verified these findings with a drive test, and designed a search ring to identify locations on which a new facility could be constructed to fill the coverage gap. Id.

After failed attempts to locate an existing facility for co-location, Omnipoint selected property for construction of a new tower within Cranston. Id. at 42-44. It then applied for a zoning variance to permit a 90 foot tower to be constructed on the site. Id. Having conducted several hearings, Cranston's zoning board, and zoning board of review, denied Omnipoint's application. Id. at 43-44. Omnipoint sued to overturn the denial, claiming that Cranston's denial "effectively prohibited the provision of personal wireless services." Id.

Omnipoint provided testimony from a radio frequency engineer explaining its signal strength goals, the gap in coverage, the search for available sites, and that the proposed site was the "best alternative" for the construction of the tower. Id. at 43-45. Cranston presented testimony from a purported expert, who argued that (1) there was no gap in coverage, and (2) if there were, the carrier had alternative solutions available. Id. at 44-45.

Cranston first argued that there was no significant gap in coverage because the signal goals that Omnipoint had established were unnecessarily strong. Notably, however, Cranston's witness that challenged the gap's existence "had never visited the [proposed] area ..., had performed no tests there, and had made no computer studies to support his opinions." Id. And, while Cranston claimed that reliable coverage could be achieved with less-strong signals, it "relied only on tests [it...