Municipal Communications, LLC v. Cobb County, Georgia ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11977
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-00852-TCB
MUNICIPAL COMMUNICATIONS, LLC,
Plaintiff-Appellee,
versus
COBB COUNTY, GEORGIA,
BOARD OF COMMISSIONERS OF COBB COUNTY, GEORGIA,
MEMBERS OF THE BOARD OF COMMISSIONERS OF
COBB COUNTY, GEORGIA,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 8, 2020)
Before MARTIN, JILL PRYOR, and BRANCH, Circuit Judges.
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PER CURIAM:
Cobb County, Georgia, the Cobb County Board of Commissioners, and the
members of the Board of Commissioners (collectively “the County”) appeal the
grant of summary judgment in favor of Municipal Communications, LLC. This
case stems from the Board’s decision to grant Municipal a special land use permit
to construct a telecommunications tower; the permit was granted on the condition
that Municipal move the tower 300 feet east of the proposed location. Municipal
filed suit arguing that the County’s decision was effectively a denial of the permit
because the County’s proposed site is unavailable. Municipal also argued that the
decision was not supported by substantial evidence as required by the
Telecommunications Act of 1996. 1 Conversely, the County argued that Municipal
failed to prove that the new site is unavailable and that the County’s decision to
require relocation of the tower was supported by record evidence. The district
court granted summary judgment in favor of Municipal. We affirm.
I. BACKGROUND
A. Cobb County’s Zoning Ordinance.
1
As relevant to this appeal, the Telecommunications Act of 1996 provides that “[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).
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Cobb County’s zoning ordinance provides that before constructing a
wireless tower over 35 feet in height, a person must apply for and obtain a special
land use permit. Cobb County Code § 134-273(1)-(2). The local Zoning Division
may retain the services of “consultants, engineers, or other experts in the area of
radio frequency engineering or other relevant fields to assist the county in
analyzing the application.” Id. § 134-273(3)(m). Then, the planning division and
zoning division staff analyze the application and recommend either granting or
denying the application. Id. § 134-122. The Cobb County Planning Commission 2
then holds a public hearing and makes a recommendation to the Board of
Commissioners. Id. § 134-123(b). Finally, the Board of Commissioners holds a
public hearing and votes on whether to grant the application. Id. § 134-124. The
county code lists fifteen factors that the Board of Commissioners must consider
when deciding whether to grant the permit. Id. §§ 134-37(e), 134-273. 3
2
The Planning Commission is an advisory commission that assists the governing
authority (the Board of Commissioners) in administering and enforcing the Zoning and Planning
Act. See Cobb County Code §§ 134-61, 134-64, 134-65.
3
The fifteen factors are: “(1) Whether or not there will be a significant adverse effect on
the neighborhood or area in which the proposed use will be located; (2) Whether or not the use is
otherwise compatible with the neighborhood; (3) Whether or not the use proposed will result in a
nuisance as defined under state law; (4) Whether or not quiet enjoyment of surrounding property
will be adversely affected; (5) Whether or not property values of surrounding property will be
adversely affected; (6) Whether or not adequate provisions are made for parking and traffic
considerations; (7) Whether or not the site or intensity of the use is appropriate; (8) Whether or
not special or unique conditions overcome the board of commissioners' general presumption that
residential neighborhoods should not allow noncompatible business uses; (9) Whether or not
adequate provisions are made regarding hours of operation; (10) Whether or not adequate
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B. Municipal’s Application for a Special Land Use Permit.
On August 25, 2015, SouthernLINC Wireless, Inc. submitted an application
for a special land use permit with the Zoning Division to build a cellular tower on a
site that it was leasing on the property of Wildwood Baptist Church. The church
was surrounded by residential properties and an elementary school. While the
application was pending, SouthernLINC assigned its rights, title, and interest in the
lease to Municipal, and Municipal became the applicant.
The County hired CityScape Consultants to conduct an independent
evaluation of the application. At CityScape’s suggestion, SouthernLINC, and later
Municipal, agreed to reduce the height of the tower from 190 feet to 165 feet and
to camouflage it to look like a pine tree. In its final report, CityScape concluded
that Municipal’s application met the relevant zoning ordinance requirements and
recommended approval.
controls and limits are placed on commercial and business deliveries; (11) Whether or not
adequate landscape plans are incorporated to ensure appropriate transition; (12) Whether or not
the public health, safety, welfare or moral concerns of the surrounding neighborhood will be
adversely affected; (13) Whether the application complies with any applicable specific
requirements set forth in this chapter for special land use permits for particular types of uses;
(14) Whether the applicant has provided sufficient information to allow a full consideration of all
relevant factors; (15) In all applications for a special land use permit the burden shall be on the
applicant both to produce sufficient information to allow the county fully to consider all relevant
factors and to demonstrate that the proposal complies with all applicable requirements and is
otherwise consistent with the policies reflected in the factors enumerated in this chapter for
consideration by the county.”
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After Municipal amended its application to reflect the changes
recommended by CityScape, the County’s planning division and zoning division
staff reviewed the application. The staff concluded that the application satisfied all
of the applicable zoning ordinance requirements and recommended approval.
However, the staff also proposed that the County attach a condition to the permit
requiring Municipal to move the tower 300 to 400 feet to the east, which would
place it in a thick grove of trees near the center of the property. On February 10,
2016, Municipal filed a supplement to its application informing the zoning
department that the staff’s proposed location was unavailable because the church
would not lease the site. Municipal explained that the church would not allow the
tower on that site because it would create a large area in the center of the property
that could not be developed in the future. Municipal further explained that moving
the tower would make it less visible for neighbors to the west, but more visible for
neighbors to the east and for travelers on Wade Green Road. Municipal also
explained that the move was unnecessary because the proposed site was already
farther away from the nearest neighbors than many other towers the County had
previously approved.
On February 2, 2016, the Planning Commission held a public meeting on
Municipal’s application. At the meeting, Municipal’s attorney reiterated
Municipal’s objections: the proposed condition to move the tower 300 feet to the
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east would not make the tower less visible and the church would not allow
Municipal to move the tower. 4 She further explained that the church would not
allow Municipal to move the tower because it would preclude development of that
area in the future. Finally, she noted that moving the tower 300 feet would require
Municipal to start the process of receiving other regulatory approvals—including
approval from the Federal Communications Commission—all over again.
The expert consultant from CityScape explained at the meeting that the
tower was necessary to fill a cellular service coverage gap in the area, and the
County’s zoning division manager explained that Municipal had satisfied all of the
zoning ordinance requirements. Eighteen local residents attended the meeting in
opposition to the tower, and six of those residents spoke, disputing the existence of
a coverage gap and expressing general aesthetic concerns 5 and the potential for the
4
Although Municipal’s attorney did, early in her remarks before the Planning
Commission, say, “Number one, we can, but number two, it’s not going to achieve anything if
we did move it,” in context it is clear this was a misstatement. The attorney clarified moments
later that requiring Municipal to move the tower “ensures essentially a denial of [the] application
because the current property owner will not allow us to move [the tower] to that location.” Then,
in response to a question from the Planning Commission’s chairman, the attorney explained that
“one of the main reasons” for Municipal’s objection to the condition is the fact that “the church
has said no, emphatically no.” This reading of the attorney’s statements is also consistent with
Municipal’s written objections to the condition.
5
The first resident to speak, C.N., stated that he represented residents of seven
neighborhoods, and explained that the residents opposed the tower because “such a tower would
inflict an unsightly and wholly adverse impact on the aesthetics and character of the
neighborhood. . . . This is a view the residents and visitors to Cobb County will see. Welcome
to Cobb County, home of the mega tree.” Another resident, E.W., stated that her yard is a
private, “real-world escape place to relax and enjoy the natural beauty around us. . . . This tower
will be visible from our entire yard. There will be no escaping this totally unnatural towering
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tower to impact property values negatively. Prior to voting on the recommendation
to make to the Board, one of the planning commission members posed the question
“whether or not as a community you-all have looked at the staff recommendations
and had any thoughts about whether or not moving it to a different location on the
property would change your feelings about the request.” Resident C.N., who was
the spokesperson for seven neighborhoods, stated “[w]ell without appearing to be
very rigid, we don’t want a tower, no way, no how between—in our seven
residential neighborhood area from the Cherokee County line on Wade Green to
Wooten Lake Road.” The commissioner stated that her understanding then was
that the community did not want the tower anywhere on the church property, even
if it was moved 300 feet to the east and was less visible, and resident C.N.
confirmed that was correct. During their deliberations, the planning
commissioners acknowledged that Municipal had demonstrated the tower was
needed and met all of the applicable zoning requirements. The planning
commissioner from the relevant district questioned whether moving the tower
would make any difference to the tower’s visibility. Nevertheless, she moved for a
vote to recommend granting the application subject to the relocation condition. The
Planning Commission unanimously approved the recommendation.
fake pine tree.” Resident J.C., noted that “[i]t’s important to protect the quality of life and the
aesthetics of residential neighborhoods.”
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The Board held a hearing on Municipal’s application on February 16, 2016.
Twenty-eight residents attended the hearing in opposition to the application.
Municipal’s attorney explained the need for the tower to provide greater cell
coverage in the area. She also described an appraiser’s report that had been
submitted to the County, which explained that the tower would not harm property
values and discussed nearby towers that had not caused a reduction in property
values. Municipal’s attorney further explained that moving the tower would
increase visibility for some neighbors and that, in any event, the church would not
allow the tower to be placed on the alternative site. Two of the residents spoke in
opposition to the application at the hearing. One asserted that there was no
demonstrated gap in coverage and the tower was not necessary. The other resident
urged that if the Board “must approve” the application that it do so with the
condition that the tower be moved 300 feet to the east so that they would not “have
to look at it every time we walk out of our house.” Additionally, a local realtor
spoke on behalf of the residents in opposition to the application and expressed a
generalized concern that the tower would impact property values negatively.
The independent consultant from CityScape spoke and supported the
conclusion that the tower was necessary. Specifically, he confirmed that there was
a “substantial gap” in coverage in the area, and that other siting areas had been
considered but were not adequate to meet the service goals. When asked whether
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moving the tower 300 feet to the east would harm the applicant, the consultant
explained he perceived no engineering or coverage issues related to moving the
tower. The consultant observed that moving the tower into more tree cover would
“shield the portion of the tower that’s in the trees,” although a large, unshielded
portion would still remain above the tree cover. He also noted that “[i]f you’re
moving away from the homes 300 feet, . . . you’re going to probably reduce the
visibility because you’re moving further away. Of course, you’re moving towards
others, so . . . that’s kind of more of . . . an opinion for you, [the Board] to assess.”
Finally, the members of the Board spoke. Commissioner Birrell concluded
that the tower was necessary to fill a gap in coverage and that it met all zoning
requirements, but she also acknowledged the general aesthetic and property value
concerns that had been raised. With respect to property values, Birrell said, the
effect of cell towers on property values “is really subjective.” As an example, she
noted that despite the presence of one very prominent tower in the area, homes
surrounding it were still “million-dollar homes and some more.” She stated that “it
does depend on, you know, the buyer, and I just—I mean, it’s subjective. And we
can’t really say that it definitely impacts one way or the other. And there are cases
where it does affect.” Birrell then stated that she believed moving the tower 300
feet would reduce visibility, which “would help preserve the neighborhood and
address some of the aesthetic concerns that the neighbors have[.]” Accordingly,
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she made a motion to approve Municipal’s application subject to the condition that
the tower be moved 300 feet to the east. Commissioner Cupid acknowledged that
the proposed tower would impact residents’ views, but emphasized that it was not
like traditional cell towers, and because it is to be designed to look like a tree, “it’s
not going to bear that same detriment in your view as you might associate with the
traditional cell phone tower.” Commissioner Weatherford stated that he did not
see any reason to move the tower, noting that “[i]t seems to do nothing, except
change a different view and closer to the road.” He noted that he had approved a
cell tower near his own home, and “you can barely see it, and it becomes invisible
after a while.” He explained he supported the tower “as it meets some of the best
qualifications I’ve seen in my years of doing this as far as fall zone and impacting
of neighbors[,] . . . but I really don’t see a reason to move it 300 feet.” The Board
then unanimously voted to approve the application with the relocation condition.
The Board did not issue any additional formal writing explaining its decision.
On March 16, 2018, Municipal filed its complaint in the district court
alleging that the Board’s decision was effectively a constructive denial of
Municipal’s application and was unsupported by substantial evidence in violation
of the Telecommunications Act of 1996. The parties filed cross-motions for
summary judgment. The district court granted summary judgment in favor of
Municipal, concluding that the Board’s approval of the permit with the condition
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attached constituted a denial of the permit and was unsupported by substantial
evidence. The district court ordered the County to issue Municipal a special land
use permit without the relocation condition. The County appeals.
II. STANDARD OF REVIEW
We review de novo a district court’s order granting a motion for summary
judgment and construe “all reasonable doubts about the facts in favor of the non-
movant.” Browning v. Payton, 918 F.2d 1516, 1520 (11th Cir. 1990) (quoting
Tackitt v. Prudential Ins. Co. of Am., 758 F.2d 1572, 1574 (11th Cir. 1985)). We
also review de novo the district court’s determination that the Board’s decision was
not supported by “substantial evidence” and apply the same standard—§ 332’s
“substantial evidence” standard—that the district court applied. Am. Tower LP v.
City of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002).
III. DISCUSSION
The Telecommunications Act of 1996 “generally preserves ‘the traditional
authority of state and local governments to regulate the location, construction, and
modification’ of wireless communications facilities like cell phone towers, but
imposes ‘specific limitations’ on that authority.” T-Mobile S., LLC v. City of
Roswell, 574 U.S. 293, 300 (2015) (quoting Rancho Palos Verdes v. Abrams, 544
U.S. 113, 115 (2005)). One of those limitations is that “[a]ny decision by a State
or local government or instrumentality thereof to deny a request to place, construct,
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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).
Although a locality must make its reasoning available in writing, there is no
specific requirement regarding the format that writing must take, and a locality can
rely on a detailed hearing transcript in order to support its decision as the County
did here. T-Mobile S., 574 U.S. at 303.
The substantial evidence standard under 47 U.S.C. § 332(c)(7)(B)(iii) is the
same as the substantial evidence standard used by courts to review agency
decisions. Michael Linet, Inc. v. Vill. Of Wellington, Fla., 408 F.3d 757, 762 (11th
Cir. 2005). “Substantial evidence” is defined as “more than a mere scintilla but
less than a preponderance.” Id. As the party seeking to overturn the Board’s
decision, Municipal bears the burden of proving that the decision was not
supported by substantial evidence. Id.
It is well-established in this Circuit that “[a] blanket aesthetic objection does
not constitute substantial evidence under § 332. Such a standard would eviscerate
the substantial evidence requirement and unnecessarily retard mobile phone service
development.” Id. Nevertheless, we have noted that “[a]esthetic objections
coupled with evidence of an adverse impact on property values or safety concerns
can constitute substantial evidence.” Michael Linet, 408 F.3d at 762; see also
Preferred Sites, LLC v. Troup Cty., 296 F.3d 1210, 1219 (11th Cir. 2002)
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(explaining that “[a]esthetic concerns may be a valid basis for denial of a permit if
substantial evidence of the visual impact of the tower is before the board”).6 Thus,
while in certain circumstances particularized aesthetic concerns may be a valid
basis for the denial of an application, “[m]ere generalized concerns regarding
aesthetics . . . are insufficient to create substantial evidence justifying the denial of
a permit under [the Telecommunications Act].” Preferred Sites, 296 F.3d at 1219.
In this case, the County raises two arguments on appeal. First, the County
argues that its decision to deny the application was justified because Municipal did
not meet its burden of providing sufficient information to show that the alternate
site was unavailable. Second, the County argues that the Board’s decision to deny
Municipal’s application was supported by substantial record evidence as required
by the Telecommunications Act. We address those arguments in turn.
A. Whether Municipal Provided Sufficient Information.
The County argues that it was justified in denying Municipal’s application
because Municipal failed to meet its burden of producing sufficient information to
show that the alternative site was unavailable. Cobb County’s zoning ordinance
provides that “[i]n all applications for a special land use permit the burden shall be
on the applicant both to produce sufficient information to allow the county fully to
6
Because the case at hand concerns only those general aesthetic concerns, we do not
reach the question of the extent to which particularized aesthetic objections could suffice in a
different case.
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consider all relevant factors and to demonstrate that the proposal complies with all
applicable requirements and is otherwise consistent with the policies reflected in
the factors enumerated in this chapter for consideration by the county.” Cobb
County Code § 134-37(e)(15).
The district court concluded that it is “undisputed that Municipal
substantially complied with the requirements of the local zoning ordinance.”
However, the County did argue in its motion for summary judgment that Municipal
failed to meet its burden of providing sufficient information because it did not
submit documentation showing the proposed site was unavailable. Thus, we
disagree that it is undisputed that Municipal “substantially complied.” What is
undisputed, however, is that Municipal repeatedly represented throughout the
application process that the church would not lease the new location to it and it
could not move the tower, and no County representative, Board Commissioner, or
Planning Commission member or staff person, ever alleged, or even remotely
suggested, that Municipal had failed to meet its burden of providing sufficient
information in compliance with the County’s zoning ordinance. 7 Indeed, the
7
In fact, the CityScape consultant, the County’s planning division and zoning division
staff, the County’s zoning division manager, the Planning Commissioners, and at least two Board
members unequivocally stated that Municipal met all applicable zoning requirements.
Additionally, the fact that the County did not question the representation that the cell tower could
not be moved despite numerous opportunities to do so further undermines its argument.
Specifically, after the planning and zoning division staff proposed moving the tower, Municipal
filed a supplement to its application informing the County that the proposed location was
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County did not articulate this reason as a basis for its decision until after the
commencement of this action in the district court.8 The County cannot “rely on [a]
rationalization[] constructed after the fact” and then cherry-pick from the record
evidence that supports it. See Preferred Sites, 296 F.3d at 1220 n.9 (rejecting the
appellant’s stated reasons for denial of an application where the “reasons . . . were
not espoused prior to the commencement of [the] action,” as the “[a]ppellant may
not rely on rationalizations constructed after the fact to support the denial of
[a]ppellee’s application”); see also T-Mobile S., 574 U.S. at 304 n.3 (noting that a
process in which the locality could wait until a lawsuit is commenced to proffer
reasons for its decision is unworkable and would “turn judicial review on its
head”).9 Accordingly, the County cannot now rely on Municipal’s alleged failure
unavailable because the church would not lease it. Then at the Planning Commission meeting,
Municipal explained again that the church would not allow it to move the tower. Finally, at the
Board hearing, Municipal reiterated that the church would not lease the new location. At any of
these points, had the County been concerned about the veracity of Municipal’s representation
that it could not move the tower, the County could have requested documentation. And even if
the Board did not consider the issue until it was raised by residents at the Board meeting, it still
could have at that point requested documentation.
8
The County asserts that the record as a whole demonstrates that from the beginning the
Board disputed Municipal’s representation that the new location was unavailable because the
church was not willing to lease it, citing statements made by residents at the Board hearing,
which indicated that a lease between the church and Municipal had not been finalized. However,
the record as a whole demonstrates that, notwithstanding the residents’ comments, no
Commissioner ever questioned Municipal about its representation that the proposed relocation
site was unavailable or even remotely suggested that Municipal needed to require proof of such.
9
The County argues that an applicant “cannot make a naked request to construct a
telecommunications tower, i.e., appear empty-handed before the zoning authority, and then
complain that the zoning authority’s simple ‘no’ answer is not supported by substantial
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to produce evidence concerning the unavailability of the new location as a basis for
its decision.
B. Whether the County’s Decision is Otherwise Supported by
Substantial Evidence.
The County argues that the district court erred in its determination of
whether the decision was supported by substantial evidence because the district
court considered only the statements of members of the Board, instead of the
record as a whole. Specifically, the County maintains that when the record is
considered as a whole, substantial evidence supports the Board’s decision to attach
the condition that Municipal move the tower 300 feet to the east, referring to letters
submitted from neighboring residents expressing aesthetic concerns, as well as
concerns that the tower would decrease property values and impact the
neighborhood’s safety. The County correctly notes that when assessing if
substantial evidence supports the Board’s decision, we are required to look at the
whole record, but we do so only in light of the locality’s stated reasons for its
decision. Am. Tower, 295 F.3d at 1209 n.8; see also SEC v. Chenery Corp., 318
U.S. 80, 95 (1943) (holding that “an administrative order cannot be upheld unless
the grounds upon which the agency acted in exercising its powers were those upon
evidence.” AT&T Wireless PCS, Inc. v. Town of Porter, 203 F. Supp. 2d 985, 994 (N.D. Ind.
2002). But Municipal did not appear empty-handed. It submitted an extensive application and
supplemented that application with new information numerous times, including by informing the
County about the unavailability of the proposed site.
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which its action can be sustained”). Here, the County proffered a transcript of the
minutes from the Board hearing as the reasoning for the Board’s decision. The
transcript reveals that the Board acknowledged in passing that numerous residents
had submitted letters and expressed various concerns surrounding the tower.
When explaining his or her decision, however, no Commissioner indicated that
they specifically relied on those letters or concerns or specified what other record
evidence they found persuasive. Rather, each Commissioner focused on the
aesthetic concerns that were a focal point of the planning commission meeting and
the Board hearing. Although the County urges us to consider additional evidence
in the record which could have otherwise supported the Board’s decision, we
cannot do so.10 Like the district court, our review, is circumscribed by the
applicable standard of review. To be clear, although “[w]e look at the whole
record . . . we cannot displace the Board’s fair estimate of conflicting evidence and
cannot freely re-weigh the evidence. We only determine whether substantial
evidence exists to support the local board’s decision.” Am. Tower, 295 F.3d at
1209 n.8; see also Preferred Sites, 296 F.3d at 1220 n.9 (explaining that the
“[a]ppellant may not rely on rationalizations constructed after the fact to support
the denial of [a]ppellee’s application”).
10
We express no opinion as to whether the record evidence not clearly relied upon by the
Board would have constituted substantial evidence.
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For the reasons that follow, the Board’s decision was not supported by
substantial evidence. Commissioner Birrell stated that the tower was necessary to
meet a gap in cell coverage and that Municipal met all applicable zoning
requirements. But she also noted the community’s general aesthetic concerns and
concerns about a possible decrease in property values. As to the property values
issue, she ultimately concluded that the Board of Commissioners could not
determine one way or the other the tower’s effect. 11 Nevertheless, she stated that
she believed moving the tower 300 feet would reduce visibility, which “would help
preserve the neighborhood and address some of the aesthetic concerns that the
neighbors have[.]”
Similarly, Commissioner Cupid stated that she “support[ed] Commissioner
Birrell’s analysis” and “under[stood] the concerns of the neighbors.” However,
she also noted that the proposed tower was “not the traditional cell phone tower
that we typically see on the side of the interstate” and would not “bear that same
detriment in your view as you might associate with the traditional cell phone
tower.” Commissioner Weatherford emphatically supported the need for the
11
The County disputes the district court’s finding that Commissioner Birrell dismissed
adverse effects on property values, arguing that Commissioner Birrell actually stated that the
tower would affect property values. However, read in context, what Commissioner Birrell said
is that “there are cases where [a tower] does affect” property values but because purchasing
decisions are subjective, the Board could not make a determination one way or the other as to the
effect of this tower.
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tower, but dismissed aesthetic concerns, explaining that in his experience with a
similarly designed tower, “you can barely see it, and it becomes almost invisible
after a while.” He also unequivocally stated that he saw no “reason to move it 300
feet.” In light of the Commissioner’s statements, the only reasons clearly
expressed by the Board that could support denying Municipal’s application were
generalized aesthetic concerns. While the County’s local zoning laws permit it to
consider aesthetic impact of the tower, we have held that blanket generalized
aesthetic objections, standing alone—like those proffered here—are not enough to
constitute substantial evidence under § 332. See Preferred Sites, 296 F.3d at 1219.
Accordingly, we conclude that the Board’s decision was not supported by
substantial evidence.
IV. CONCLUSION
The judgment of the district court is AFFIRMED.
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