VoiceStream v. St. Croix County

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2889
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.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01 C 504—Barbara B. Crabb, Chief Judge.
____________
ARGUED FEBRUARY 18, 2003—DECIDED SEPTEMBER 8, 2003
____________
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 (collec-
tively, “the County”) under § 704 of the Telecommunica-
tions Act of 1996, 47 U.S.C. § 332. The County had denied
VoiceStream’s application for a special exception permit
2 No. 02-2889
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 Voice-
Stream’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 injunc-
tion 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 geo-
graphic boundaries of its license. See R.22 at 5-6. The tech-
nology that VoiceStream is licensed to implement requires
No. 02-2889 3
the construction and placement of antennas that are capa-
ble 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 (residen-
tial, commercial, and vehicular), (b) topographical con-
straints 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 unim-
peded 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 com-
munications 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
4 No. 02-2889
“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
No. 02-2889 5
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 Voice-
Stream 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
1
antennas would be located. See R.16, Ex.H.
On March 7, 2000, VoiceStream sent a letter to the Plan-
ning 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
1
At its base the proposed tower is over five feet in diameter. See
R.16, Ex.H. The diameter of the tower tapers gradually as it
extends upward and measures three feet in diameter at the
midpoint, and two feet in diameter at the top. See id. Atop the
tower sits a triangular array of antennas. See R.16, Ex.G. Each
of the three sides of this array extend outward from the
tower and span approximately fifteen to twenty feet. See id.
6 No. 02-2889
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 pro-
posed 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-
No. 02-2889 7
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 proposed was a four-tower system
with three 80-100 foot towers located directly adjacent to
Minnesota 95 and another 80-100 foot tower located along
Wisconsin 35. See id. In a May 31, 2000, memorandum
summarizing this meeting, VoiceStream’s attorney, Greg
Korstad, indicated that either of these multiple-tower
alternatives would provide adequate coverage for the area
sought to be covered by the Somerset site. See id. at 1-2.
VoiceStream worked with the local historical societies,
both in Wisconsin and in Minnesota, to determine if the
proposed Somerset site would have substantially adverse
effects on their respective historical sites. See R.16, Ex.O, P.
As part of this effort, VoiceStream conducted a “crane test”
on June 27, 2000, which consisted of extending a crane to the
proposed height at the Somerset site, as well as two other
alternative single-tower sites, in order for local residents
to get a better idea of the potential visual impact of the
proposed tower at each site. See R.16, Ex.P. Photos were
taken at different locations in the Historic District and in
the Riverway and submitted to the Board of Adjustment
as exhibits to the SEP. A follow-up meeting was held on
August 10, 2000, to discuss the results of the crane test with
the local residents, historical society representatives, Park
Service representatives and local government officials. See
R.22 at 15.
The Board of Adjustment scheduled a hearing on Sep-
tember 28, 2000, to consider the Somerset site SEP applica-
tion. See R.16, Ex.S. Included in the record before the Board
of Adjustment were several letters from local residents
expressing concern over, among other things, the aesthetic
impact of the proposed tower. See R.16, Ex.U. The record
also contained a report written by Jeff Nelson, a consultant
8 No. 02-2889
retained by the County to review VoiceStream’s SEP
application. See R.16, Ex.V. Nelson found that there was a
gap in VoiceStream’s coverage that needed to be filled. See
id. at 2. He also was unable to find any suitable existing
structures upon which antennas could be located to fill the
gap. See id. He concurred with the position advocated by the
Park Service that the tower would indeed be visible from
water level in the Riverway and from the Historic District
across the river. See id. He also opined that VoiceStream had
“an economic interest in limiting the number of towers to
cover” the area and that VoiceStream could achieve its
coverage objectives with multiple shorter towers in lieu
of a single 185-foot tower. Id. at 3. Finally, Nelson further
stated that the proposed tower was a “standard” design,
which did not attempt to minimize the adverse visual ef-
fects on the Riverway or on the adjacent Historic District.
See id. Also in the record before the Board of Adjustment
was a letter from the Park Service expressing concern
about the height and location of the proposed tower, a let-
ter from the Minnesota Historical Society requesting more
information on the proposal, a petition signed by some
of the neighbors of the Haases in support of the tower, a
letter from Marine with a resolution objecting to the pro-
posed tower because of aesthetic considerations, a peti-
tion from twelve residents living near the Somerset site
opposing the tower for aesthetic and other reasons, as well
as several maps and diagrams showing the Somerset site
and the proposed tower design. See R.16, Ex.T at 1.
At the public hearing, Attorney Korstad testified that
there was a gap in VoiceStream’s coverage in the area
surrounding the Riverway and that VoiceStream needed to
fill the gap with a wireless communications facility. He
also discussed the two alternative single-tower proposals
explored during the crane test and explained why the
Somerset site would be the least intrusive of the three
No. 02-2889 9
proposals. See R.16, Ex.W at 7-8. Attorney Korstad made
no mention, however, of the multiple-tower alternatives
that VoiceStream had proposed earlier during the May 24,
2000, meeting. See id.
Also at the September 28, 2000, hearing, several individu-
als testified under oath about the proposed tower. The
Haases testified in favor of the tower, as did their two sons
Jason and Matt. Likewise, Brandon Johnson, a Radio
Frequency Engineer, and Dan Menzer, a Senior Manager for
Regulatory Affairs, both testified as employees of
VoiceStream in favor of the tower. Charles Lederer, a
neighbor to the Haases, also testified on behalf of the tower.
Speaking against the tower were Paul Roelandt, a Park
Service representative, as well as Nancy Nelson, Jack
Warren, Glen Mills and Rosemary Pontuti, neighbors of the
Haases who raised aesthetic, health, wildlife and property
value concerns. See id. at 1-28.
Following the hearing, the Board of Adjustment voted
unanimously to table the proposal and to require addi-
tional information from VoiceStream. R.16, Ex.X at 8. The
County Zoning Office sent a letter to VoiceStream detailing
the Board of Adjustment’s decision. See R.16, Ex.Y. Among
other requirements, the letter stated that VoiceStream
should “provide information on alternative sites with
explanations of why they do or do not work for
[VoiceStream’s] intended purpose.” R.16, Ex.Y at ¶ 5. The
letter also specifically requested that “a plan be prepared
(with a narrative, map and mock-up) that shows more
towers at lesser heights to lessen the visual impact on this
national scenic area.” Id. The Board of Adjustment also
requested a detailed plan covering “stealth” concealment
that would lessen the visual impact of the proposed tower
to the Riverway and to the Historic District. See id. at ¶ 4.
Finally, the Board of Adjustment requested a detailed
10 No. 02-2889
response to the concerns raised by Jeff Nelson’s report. See
id. at ¶ 7.
In the months that followed, VoiceStream held another
series of public meetings in an attempt to resolve con-
cerns surrounding the visual impact of the proposed tower
on the Historic District. Although the record shows con-
tinued concern by several members of the community
regarding the aesthetic impact of the tower on the Historic
District, VoiceStream did succeed in obtaining letters
from historical societies on both sides of the river that
state that the proposed tower would have “no adverse
impact to properties listed or eligible for listing on the
National Historic Register” in the area. R.16, Ex.LL at
App.D. Likewise, VoiceStream commissioned Pinnacle
Engineering, Inc. to prepare an environmental assessment
in accordance with 47 C.F.R. § 1.1311. See R.16, Ex.LL at 1.
This assessment evaluated the environmental effects of
the proposed installation in accordance with the require-
ments of the National Environmental Policy Act of 1969, 42
U.S.C. § 4321 et seq. See R.16, Ex.LL at 1. The assessment
concluded that the tower planned for the Somerset site
did not “appear to present a significant adverse environ-
mental impact.” Id. at 10.
VoiceStream representatives also met with Jeff Nelson in
an effort to address each of the concerns listed in his
September 27, 2000, letter. See R.16, Ex.OO at 5. In a meeting
on October 9, 2000, Nelson informed VoiceStream that the
thrust of his written analysis to the Board of Adjustment
“was that VoiceStream should investigate the use of a
series of smaller structures to be used in the aggregate
rather than one standard tower to meet its coverage objec-
tives.” R.23 at ¶ 4; see also R.24 at ¶¶ 3-4. Nelson met again
with VoiceStream on October 25, 2000, and he once more
emphasized the negative visual impact of the single-tower
No. 02-2889 11
approach and suggested that VoiceStream investigate al-
ternatives using multiple, shorter structures that would be
“less conspicuous and more easily concealed and camou-
flaged.” R.23 at ¶ 5; see also R.24 at ¶ 5. Nelson also recom-
mended several existing structures as potential antenna
locations. See R.16, Ex.OO at 6. Later, on June 20, 2001,
Nelson was contacted by Steve Ramberg, the senior
VoiceStream radio frequency operator who had conducted
a review of alternative locations for placing an antenna.
Nelson’s conversation with Ramberg led him to conclude
that VoiceStream only had considered single-tower alterna-
tives, and had not considered whether an aggregation of
sites could be used to meet VoiceStream’s coverage objec-
tives. See R.23 at ¶ 7.
In a letter dated May 10, 2001, VoiceStream responded to
the Board of Adjustment’s request for additional informa-
tion. See R.16, Ex.OO. Among other things, VoiceStream
explained why the existing structures suggested by Nelson
as possible antenna locations would not work using a
single-tower approach. However, VoiceSream did not
discuss in any meaningful way the feasibility of using a
combination of these structures in a multiple-antenna
system to achieve its coverage objectives. Nelson later
reviewed this letter and concluded that VoiceStream had
not investigated the use of multiple, shorter structures,
inasmuch as no supporting information had been submit-
ted to the Board of Adjustment that depicted coverage
performance from a multi-site coverage solution. See R.23
at ¶ 6.
In a letter dated June 20, 2001, the County Zoning Office
sent VoiceStream a copy of the staff report sent to the
Board of Adjustment for the upcoming hearing on June 28,
2001. This report concluded that VoiceStream had not
responded adequately to the Board of Adjustment’s request
12 No. 02-2889
for additional information regarding alternative stealth
designs and had not submitted alternative mock-up plans.
The report also set forth concerns about the lack of effort
on VoiceStream’s part to look into less visually intrusive
alternatives to the Somerset site. See R.16, Ex.QQ.
Nelson sent a letter to the County Zoning Office on June
25, 2001, in which he stated that VoiceStream had not
seriously considered multiple-tower options. R.16, Ex.TT.
Ramberg responded to Nelson’s conclusion in a memo,
also dated June 25, 2001, in which he asserted: “We have
as recommended by the County’s consultant evaluated
whether the service could be accomplished by increasing
the number of sites using existing tall structures as anten-
na locations. We have concluded that it will not [] meet
coverage objectives in the riverway area. Because of this,
no multiple site configuration is presented.” See R.26,
Ex.UU.
The public hearing originally scheduled for June 28, 2001,
was moved, at the request of VoiceStream, to July 26, 2001.
R.16, Ex.VV. The record previously before the Board of
Adjustment during the September 28, 2000, hearing was
supplemented with additional letters from residents op-
posing and supporting the tower, including letters from
the City of Marine, the Town of Somerset, and various
local organizations and historical societies. See R.16,
Ex.XX. Attorney Korstad again testified on behalf of
VoiceStream. In particular, he explained that VoiceStream’s
alternatives for constructing shorter towers were limited
because of the County’s ordinance prohibiting the construc-
tion of towers in the Riverway. See R.16, Ex.ZZ at 30-38.
Steve Ramberg also testified on VoiceStream’s behalf.
When asked if he was aware that VoiceStream might be
able to locate antennas within the Riverway, Ramberg
replied, “No, not to my knowledge.” R.16, Ex.ZZ at 44.
Ramberg explained that he was told by VoiceStream that
No. 02-2889 13
it could not locate antennas in the Riverway because of the
local zoning ordinance. See id. When asked whether locat-
ing towers in the Riverway sounded like a viable option,
Ramberg testified: “No, not really” because “we’re trying to
cover a broad area with as minimal [a] number of towers
as we can.” Id.Also at the July 26, 2001, hearing, several individuals
testified against VoiceStream’s proposed tower. Tony
Anderson, a superintendent of the Park Service at the St.
Croix National Scenic Riverway in St. Croix Falls, testified
that VoiceStream’s proposed tower would “have a major
and drastic impact upon the Riverway” and that less
visually intrusive alternatives needed to be pursued. See
id. at 38. Jill Medland, a planning and compliance special-
ist with the Park Service, testified that VoiceStream had
not adequately explored the alternative of shorter towers
with stealth designs. See id. at 39. Medland, along with Paul
Roelandt, another representative of the Park Service,
pointed out that VoiceStream could locate antennas within
the Riverway with the permission of the Park Service,
and that the Park Service repeatedly had offered to con-
sider granting permission if the overall visual impact on
2
the Riverway would be lessened. See id. at 39-40. Jack
Warren, a member of the planning commission for the
2
In a letter dated August 27, 2001, Robert J. Karotko, a superin-
tendent of the Park Service at the St. Croix National Scenic
Riverway in St. Croix Falls, described an enclosed right-of-way
permit issued to a wireless telecommunications provider for
two wireless telecommunications facilities at Rock Creek Park
in Washington D.C. See R.25, Ex.A. Superintendent Karotko
also expressed his willingness to review an application for a
telecommunications facility in the Riverway, but emphasized
that any proposal could not be in derogation of the values
and purposes for which the Riverway was established. See id.14 No. 02-2889
City of Marine, also testified in opposition to the proposed
tower. He stated that the City of Marine was in favor of
utilizing multiple, shorter, more easily concealed towers
as a means of minimizing the visual impact on the River-
way; he also indicated that he did not believe such
an alternative had been adequately considered. See id. at
41. Charles Arneson, a resident of the City of Marine and a
member of a committee appointed by the city to work on
the tower proposal, further testified that the proposed
tower would have an adverse visual impact on the scenic
and historic resources of the St. Croix River Valley. See id.
at 42. At the conclusion of the hearing, the Board conducted
an on-site inspection of the Somerset site.
On July 27, 2001, the five-member Board of Adjustment
reconvened to vote on VoiceStream’s SEP application. The
Board of Adjustment voted three-to-two against granting
the proposal for the Somerset site. See R.16, Ex.AAA at 16.
On September 19, 2001, the Board of Adjustment issued
a formal written decision, including findings of fact and
conclusions of law, denying the application. See R.16,
Ex.BBB. In its written decision, the Board of Adjustment
concluded that “granting [] the request would not be
consistent with the spirit and intent of the Zoning Ordi-
nance.” Id. The Board of Adjustment supported its conclu-
sion with the following findings:
1. The 185-foot cell tower would be visible from the
Lower St. Croix National Scenic Riverway.
2. The applicant has not adequately researched or
brought forth information on an alternative site or multi-
ple alternative sites to lessen the visual impact on the
Lower St. Croix National Scenic Riverway.
3. The National Park Service (NPS) has provided testi-
mony stating that they would work with the applicant
No. 02-2889 15
to explore and develop stealth sites within NPS river-
way areas.
****
5. This tower and this location had tremendous public
and agency opposition.
6. Of any area in St. Croix County, the Lower St. Croix
National Scenic Riverway and riverway valley is one of
the most scenic areas in the region. This region requires
careful wireless communication service facility siting and
design to minimize adverse visual effects. This proposal
does not minimize adverse visual effects.
7. The record will indicate the various concerns that the
public and agencies had with this application. The various
concerns are found in the public testimony and the
exhibits brought forth by the public and governmental
agencies.
Id. at 1-3. In finding number 4, the Board of Adjustment
indicated its agreement with the conclusions in the zon-
ing staff report. See id.B. District Court Proceedings
Following the County’s denial of VoiceStream’s request
for a SEP to construct its proposed tower, VoiceStream
brought this action in the district court under the Telecom-
munications Act of 1996. It alleged that the County’s
decision was not supported by substantial evidence as
required by 47 U.S.C. § 332(c)(7)(B)(iii) and that the denial
has the effect of prohibiting the provision of personal
wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).
The parties filed cross-motions for summary judgment and
the district court granted the County’s motion. The court
held (1) that substantial evidence in the record supported
16 No. 02-2889
the County’s determination that VoiceStream’s proposed
telecommunications tower would have an adverse visual
impact on the Lower St. Croix National Scenic Riverway
and that VoiceStream had not shown the infeasibility of
other, less visually intrusive alternatives for closing its
coverage gap, and (2) that VoiceStream failed to meet its
burden of proof to show that the County’s decision effec-
tively prohibited personal wireless services.
II
DISCUSSION
A. Introduction
Congress enacted the Telecommunications Act of 1996
(“TCA”), 47 U.S.C. § 151 et seq., “to promote competition
and reduce regulation in order to secure lower prices and
higher quality services for American telecommunications
consumers and encourage the rapid deployment of new
telecommunications technologies.” Pub. L. No. 104-104, 110
Stat. 56, 56 (1996). Among the technologies addressed by
Congress in the TCA was wireless communications services.
In regard to this technology, Congress found that “siting
and zoning decisions by non-federal units of government”
had “created an inconsistent and, at times, conflicting
patchwork of requirements” that was inhibiting the deploy-
ment of wireless communications services. H.R. Rep. 104-
204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61. At the
same time, Congress recognized that “there are legitimate
State and local concerns involved in regulating the siting of
such facilities . . . , such as aesthetic values and the costs
associated with the use and maintenance of public
rights-of-way.” Id. To address the problems created by local
zoning decisions, the House version of the TCA would have
given authority to the FCC to regulate directly the siting
No. 02-2889 17
of wireless communications towers. The Conference Com-
mittee, however, decided against complete federal preemp-
tion, opting to “preserve[] the authority of State and local
governments over zoning and land use matters except in []
limited circumstances.” See H.R. Conf. Rep. No. 104-458,
at 207-08 (1996). Therefore, § 704(a) of the TCA, 47 U.S.C.
§ 332(c)(7), strikes a delicate balance between the need for
a uniform federal policy and the interests of state and local
governments in continuing to regulate the siting of wireless
communications facilities. Under that section, state and
local governments retain the authority to regulate the sit-
ing of wireless telecommunications facilities, but their
decisions are subject to certain procedural and substantive
3
limitations. See 47 U.S.C. § 332(c)(7). Only two of those
3
47 U.S.C. § 332(c)(7) provides:
Preservation of local zoning authority
(A) General authority
Except as provided in this paragraph, nothing in this
chapter shall limit or affect the authority of a State or
local government or instrumentality thereof over deci-
sions regarding the placement, construction, and modi-
fication of personal wireless service facilities.
(B) Limitations
(i) The regulation of the placement, construction,
and modification of personal wireless service facilities
by any State or local government or instrumentality
thereof—
(I) shall not unreasonably discriminate among pro-
viders of functionally equivalent services; and
(II) shall not prohibit or have the effect of prohib-
iting the provision of personal wireless services.
(continued...)
18 No. 02-2889
limitations are relevant here. First, the County’s denial of
VoiceStream’s permit must be “supported by substan-
tial evidence contained in a written record.” 47 U.S.C.
§ 332(c)(7)(B)(iii). Second, the County’s denial of the permit
must not “prohibit or have the effect of prohibiting
the provision of personal wireless services.” 47 U.S.C.
§ 332(c)(7)(B)(i)(II).
B. Substantial Evidence
VoiceStream contends that the district court erred when
it granted summary judgment in favor of the County
because the County’s decision to deny VoiceStream’s SEP
3
(...continued)
(ii) A State or local government or instrumentality
thereof shall act on any request for authorization to
place, construct, or modify personal wireless service
facilities within a reasonable period of time after the
request is duly filed with such government or instru-
mentality, taking into account the nature and scope
of such request.
(iii) Any decision by a State or local government or in-
strumentality thereof to deny a request to place, con-
struct, or modify personal wireless service facilities
shall be in writing and supported by substantial evi-
dence contained in a written record.
(iv) No State or local government or instrumentality
thereof may regulate the placement, construction, and
modification of personal wireless service facilities on
the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with
the Commission’s regulations concerning such emis-
sions.
47 U.S.C. § 332(c)(7).
No. 02-2889 19
application was not supported by substantial evidence.
According to VoiceStream, it demonstrated to the County
that the proposed tower at the Somerset site would not
have an adverse visual impact on the area and that the
proposal was the only legally and technologically viable
alternative available to close the undisputed coverage
gap. The County, on the other hand, maintains that the
district court properly granted summary judgment in the
County’s favor because its decision was supported by
substantial evidence that VoiceStream’s proposed tower
would have an adverse visual impact on the extraordinary
scenery of the Lower St. Croix National Scenic Riverway
and because VoiceStream failed to show the infeasibility
of less visually intrusive alternatives for closing the cov-
erage gap.
The TCA requires 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 substan-
tial evidence contained in a written record.” 47 U.S.C.
4
§ 332(c)(7)(B)(iii). “Substantial evidence review under the
4
VoiceStream does not dispute that the Board of Adjustment’s
decision was “in writing” for purposes of the TCA; accordingly,
we have no occasion to consider the “in writing” requirement
of § 332(c)(7)(B)(iii) at this time. Compare New Par v. City of
Saginaw, 301 F.3d 390, 395 (6th Cir. 2002) (“[F]or a decision by a
State or local government or instrumentality thereof denying a
request to place, construct, or modify personal wireless service
facilities to be ‘in writing’ . . . , it must (1) be separate from the
written record; (2) describe the reasons for the denial; and (3)
contain a sufficient explanation of the reasons for the denial
to allow a reviewing court to evaluate the evidence in the rec-
(continued...)
20 No. 02-2889
TCA does not create a substantive federal limitation upon
local land use regulatory power.” Southwestern Bell Mobile
Sys., Inc. v. Todd, 244 F.3d 51, 58 (1st Cir. 2001) (internal
quotation marks omitted); see also Preferred Sites, LLC v.
Troup County, 296 F.3d 1210, 1219 (11th Cir. 2002); Aegerter
v. City of Delafield, 174 F.3d 886, 890 (7th Cir. 1999); Cellular
Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir.
1999). Rather, “[t]he TCA’s substantial evidence test is a
procedural safeguard which is centrally directed at whether
the local zoning authority’s decision is consistent with
the applicable [local] zoning requirements.” ATC Realty,
LLC v. Town of Kingston, 303 F.3d 91, 94 (1st Cir. 2002)
(internal quotation marks omitted); see also Omnipoint Corp.
v. Zoning Hearing Bd. of Pine Grove Township, 181 F.3d 403,
408 (3d Cir. 1999); Town of Amherst v. Omnipoint Communica-
tions Enters., Inc., 173 F.3d 9, 16 (1st Cir. 1999). “The substan-
tial evidence test is highly deferential to the local board.”
Second Generation Props., L.P. v. Town of Pelham, 313 F.3d
620, 627 (1st Cir. 2002). It is the same standard of review
used by courts when reviewing the decision of an ad-
ministrative agency—“such relevant evidence as a reason-
able mind might accept as adequate to support a conclu-
sion.” City of Delafield, 174 F.3d at 889 (internal quotation
marks omitted); see also Town of Kingston, 303 F.3d at 94;
Troup County, 296 F.3d at 1218; Telespectrum, Inc. v. Pub.
4
(...continued)
ord that supports those reasons.”), and Southwestern Bell Mobile
Sys., Inc. v. Todd, 244 F.3d 51, 60 (1st Cir. 2001) (same), with
AT&T Wireless PCS, Inc. v. City Counsel of City of Virginia Beach,
155 F.3d 423, 430 (4th Cir. 1998) (“The simple requirement of a
‘decision . . . in writing’ cannot reasonably be inflated into a
requirement of a statement of findings and conclusions, and the
reasons or basis therefor.”).
No. 02-2889 21
Serv. Comm’n of Kentucky, 227 F.3d 414, 423 (6th Cir. 2000).
“[T]he party seeking to overturn the local zoning board’s
decision has the burden of proving that the decision is not
supported by substantial evidence.” American Tower LP v.
City of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002); see
also Todd, 244 F.3d at 63; MetroPCS, Inc. v. City and County
of San Francisco, 259 F. Supp. 2d 1004, 1009-10 (N.D. Cal.
2003); Primeco Pers. Communications, Ltd. P’ship v. City of
Mequon, 242 F. Supp. 2d 567, 575 (E.D. Wis. 2003); APT
Minneapolis, Inc. v. Eau Claire County, 80 F. Supp. 2d 1014,
5
1022 (W.D. Wis. 1999).
In this case, the County concluded that VoiceStream’s
request “would not be consistent with the spirit and intent
5
As stated in the text, the Eleventh Circuit has held squarely
that the burden is on the party seeking to overturn the decision.
See American Tower LP v. City of Huntsville, 295 F.3d 1203, 1207
(11th Cir. 2002). The First Circuit also appears to place the burden
of proof on the party seeking to overturn the decision. See S.W.
Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 63 (1st Cir. 2001) (“The
‘substantial evidence’ requirement does nothing more than allow
applicants to overturn denials if they can prove that the denial
lacks adequate evidentiary support in the record.”). The Second
and Sixth Circuits have indicated that it is unclear which party
bears the burden of proof and have declined to resolve the issue
because the evidence before the courts was insufficient to sup-
port the denial either way. See Laurence Wolf Capital Mgmt. v. City
of Ferndale, Nos. 01-1142, 01-1457, 2003 WL 1875554, at *17 (6th
Cir. Apr. 10, 2003); Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d
490, 496-97 (2d Cir. 1999). The district courts are split on the issue,
but several recent cases have held that the burden rests with
the party seeking to overturn the decision. See, e.g., MetroPCS,
Inc. v. City and County of San Francisco, 259 F. Supp. 2d 1004,
1009 (N.D. Cal. 2003); Primeco Pers. Communications, Ltd. P’ship
v. City of Mequon, 242 F. Supp. 2d 567, 575 (E.D. Wis. 2003).
22 No. 02-2889
of the Zoning Ordinance.” See R.16, Ex.BBB at 1. One of the
stated purposes of the County’s Wireless Communication
Facilities Ordinance is to “[m]inimize [the] adverse visual
effects of wireless communication facilities through careful
siting and design standards.” See R.16, Ex.F. The County
specifically found that the proposed “185-foot cell tower
would be visible from the Lower St. Croix National Scenic
Riverway,” that “the Lower St. Croix National Scenic
Riverway and riverway valley is one of the most scenic
areas in the region,” that “[t]his region requires careful
wireless communication service facility siting and design
to minimize adverse visual effects” and that VoiceStream’s
proposed tower “does not minimize adverse visual effects.”
R.16, Ex.BBB at 1-3.
In City of Delafield, we stated that “[n]othing in the
Telecommunications Act forbids local authorities from
applying general and nondiscriminatory standards derived
from their zoning codes, and . . . aesthetic harmony is a
prominent goal underlying almost every such code.” City
of Delafield, 174 F.3d at 891. Indeed, every circuit to con-
sider the issue has determined that aesthetics may consti-
tute a valid basis for denial of a wireless permit if substan-
tial evidence of the visual impact of the tower was before
the board. See Troop County, 296 F.3d at 1219; Todd, 244
F.3d at 61; Pine Grove Township, 181 F.3d at 408; AT&T
Wireless PCS, Inc. v. Winston-Salem Zoning Bd. of Adjustment,
172 F.3d 307, 316 (4th Cir. 1999); Town of Oyster Bay, 166
F.3d at 495. Of course, a “few generalized expressions of
concern with aesthetics,” standing alone, cannot serve as
substantial evidence on which to base a wireless permit
denial. New Par v. City of Saginaw, 301 F.3d 390, 398 (6th
Cir. 2002) (internal quotation marks omitted); Troup Coun-
ty, 296 F.3d at 1219; Town of Oyster Bay, 166 F.3d at 496.
Because “[f]ew people would argue that telecommunica-
No. 02-2889 23
tions towers are aesthetically pleasing,” a local zoning
board’s “aesthetic judgment must be grounded in the
specifics of the case.” Todd, 244 F.3d at 61.
In this case, the district court correctly determined that
substantial evidence supported the County’s conclusion
that the design and location of VoiceStream’s tower as
proposed would have an adverse visual impact on the
Lower St. Croix Riverway and surrounding area. The
district court discussed thoroughly the specific aesthetic
concerns raised by numerous citizens and organizations
in opposition to VoiceStream’s proposed tower:
Although some of the comments from the public
consisted of general statements that the tower was an
eyesore and would have a negative impact on property
values, most of the concerns about aesthetics were
focused on the incompatibility of a 185-foot tower on
the river bluff extending noticeably above the tree line
with the extraordinary scenery of the National Scenic
Riverway and with the historic district in the City of
Marine on St. Croix. In particular, the National Park
Service voiced strong opposition to the tower, asserting
that the unspoiled view of the St. Croix River Valley
was a unique natural resource that deserved unusual
protection. The park service supported its position
with maps developed during the crane testing that
showed that a tower on the Haase site would be visible
from locations up to four miles away on the St. Croix
River and Minnesota Highway 95 and from the [City
of] Marine on St. Croix Historic District. The tower’s
visibility from various sites in the City of Marine on
St. Croix was confirmed by photographs submitted to
the board by local residents.
Contrary to [VoiceStream’s] assertion, the National
Park Service was not the only party that opposed the
24 No. 02-2889
tower on grounds that it was incompatible with the
character and scenery of the St. Croix Riverway. . . .
[T]he City of Marine on St. Croix, the St. Croix River
Association, the Minnesota-Wisconsin Boundary Area
Commission and several members of the public ex-
pressed the view that the riverway was a unique
scenic resource that would be harmed by [Voice-
Stream’s] proposed tower. Several of these groups and
individuals expressed a preference for a multiple-tower
approach utilizing towers that were more consistent
in height and appearance with existing features in the
landscape. This view was supported by zoning board
staff, who concluded that the St. Croix Riverway and
nearby historic preservation areas such as Marine on
St. Croix possessed extraordinary scenic qualities that
demanded special consideration for proposed wireless
telecommunication service facilities.
R.32 at 41-42.
The County’s determination that the proposed tower
would adversely impact the aesthetic harmony of the Low-
er St. Croix Riverway was “grounded in the specifics of
the case.” Todd, 244 F.3d at 61. The decision was not based
on speculation or conjecture; the County conducted an on-
site investigation, and a map prepared by the Park Ser-
vice based on VoiceStream’s crane test documented that
the 185-foot tower would be visible for several miles along
the Riverway. Photographs taken during the crane test
showed that the proposed tower would predominate the
landscape of the bluff overlooking the Riverway. Addi-
tionally, Park Service representatives, local residents and
various state and local entities, many of whom observed the
crane test, testified that VoiceStream’s proposed tower
would interfere with the unique scenery of the Lower St.
Croix Riverway. Based on this evidence, the district court
No. 02-2889 25
correctly determined that the County’s decision did
not violate the substantial evidence requirement of
6
§ 332(c)(7)(B)(iii).
C. Effective Prohibition
VoiceStream submits that the district court erred when
it granted the County’s motion for summary judgment
because the County’s denial of VoiceStream’s SEP applica-
tion had the effect of prohibiting personal wireless services.
VoiceStream maintains that it adequately demonstrated
that the Somerset site is the only legally and technolog-
ically viable alternative to close the undisputed coverage
gap. The County, on the other hand, maintains that the
district court properly granted summary judgment in its
favor because VoiceStream did not meet its burden of
proving the absence of other feasible alternatives to fill
the coverage gap.
The TCA provides that, in regulating the placement and
construction of personal wireless facilities, a state or local
government “shall not prohibit or have the effect of pro-
hibiting the provision of personal wireless services.” 47
U.S.C. § 332(c)(7)(B)(i)(II). Whether a particular zoning
6
The County’s conclusion that VoiceStream “has not adequately
researched or brought forth information on an alternative site
or multiple alternative sites to lessen the visual impact on the
Lower St. Croix National Scenic Riverway,” is addressed below
in connection with the TCA’s anti-prohibition clause. See R.16,
Ex.BBB at 1. “Unlike the substantial evidence issue, the issue
of whether the [County] has prohibited or effectively prohibited
the provision of wireless services is determined de novo” by a
reviewing court. Second Generation Props. L.P. v. Town of Pelham,
313 F.3d 620, 629 (1st Cir. 2002).
26 No. 02-2889
decision violates the TCA’s anti-prohibition clause is a
question “that a federal district court determines in the
first instance without any deference to the [local zoning]
board.” National Tower, LLC v. Plainville Zoning Bd. of Ap-
peals, 297 F.3d 14, 22 (1st Cir. 2002). In resolving this issue,
the district court may “require evidence to be presented
in court that is outside of the administrative record com-
piled by the local authority.” Id. This court reviews de novo
the district court’s grant of summary judgment to the
County. See id.We have not addressed squarely the meaning of the
TCA’s anti-prohibition clause. See Aegerter, 174 F.3d at 890(holding that the city’s decision to deny the provider’s
request to replace an existing tower was supported by
substantial evidence and declining to comment on “how
broad the duty is on any given municipal entity to ensure
that wireless services remain available” because the pro-
vider conceded that it could continue to provide service
with the existing tower). Other circuits have determined
that the clause “is not restricted to blanket bans on cell
towers,” and that “[t]he clause may, at times, apply to
individual zoning decisions.” Second Generation Props., 313
F.3d at 629; see also 360" Communications Co. of Charlottes-
ville v. Bd. of Supervisors of Albemarle County, 211 F.3d 79, 86
(4th Cir. 2000); APT Pittsburgh Ltd. P’ship v. Penn Township
Butler County, 196 F.3d 469, 479 (3d Cir. 1999); Sprint
Spectrum, L.P. v. Willoth, 176 F.3d 630, 640 (2d Cir. 1999);
but see AT&T Wireless PCS, Inc. v. City Council of City of
Virginia Beach, 155 F.3d 423, 427 (4th Cir. 1998) (concluding
that the TCA’s anti-prohibition clause applies only to
“blanket prohibitions” and “general bans or policies,” not
to individual zoning decisions). Those courts properly
have recognized that “[c]onstruing subsection B(i)(II) to
apply only to general bans would lead to the conclusion
that, in the absence of an explicit anti-tower policy, a court
No. 02-2889 27
would have to wait for a series of denied applications before
it could step in and force a local government to end its
illegal boycott of personal wireless services.” Willoth, 176
F.3d at 640-41.
Although an individual zoning decision is capable of
violating the anti-prohibition clause and the provider need
not show “a consistent pattern of denials or evidence
of express hostility to personal wireless facilities, . . . it
is necessary for the provider to show more than that it
was denied an opportunity to fill a gap in its service
system.” Penn Township, 196 F.3d at 480; see also Albemarle,
211 F.3d at 86 (“[C]ase-by-case denials of permits for
particular sites cannot, without more, be construed as a
7
denial of wireless services.”). The First Circuit has held
that the provider carries the “heavy” burden to show “not
just that this application has been rejected but that fur-
ther reasonable efforts are so likely to be fruitless that it is
a waste of time even to try.” Town of Pelham, 313 F.3d at
629 (quoting Town of Amherst, 173 F.3d at 14); see also
Plainville, 297 F.3d at 20. Under this standard, the pro-
vider must show that its “existing application is the only
feasible plan” and that “there are no other potential solu-
tions to the purported problem.” Town of Pelham, 313 F.3d
7In order to establish a violation of the TCA’s anti-prohibition
clause, the service provider must first show that its proposed
facility will close a “significant gap” in coverage. See Omnipoint
Communications Enters., L.P. v. Zoning Hearing Bd. of Easttown
Township, 331 F.3d 386, 399-400 (3d Cir. 2003); Second Generation
Props., 313 F.3d at 631-32; Sprint Spectrum, L.P. v. Willoth, 176
F.3d 630, 643 (2d Cir. 1999). In this case, however, it is undis-
puted that there is a significant gap in coverage that needs to
be closed by a telecommunications facility. Accordingly, we
have no occasion to consider what constitutes a significant
gap in coverage.
28 No. 02-2889
at 630, 635; see also Albemarle, 211 F.3d at 86-87 (stating that,
“conceptually, if wireless service could feasibly be provided
from only one site, a denial of a permit for a facility at that
site could amount to a prohibition of wireless services, in
violation of (B)(i)(II),” but noting that such a situation is
8
“unlikely in the real world”). We agree with the First
8
The Third Circuit has held that the provider must show “that
the manner in which it proposes to fill the significant gap in
service is the least intrusive on the values that the denial sought
to serve.” APT Pittsburgh Ltd. P’ship v. Penn Township Butler
County, 196 F.3d 469, 480 (3d Cir. 1999). In order to make such
a showing, the provider must demonstrate that “a good faith
effort has been made to identify and evaluate less intrusive
alternatives, e.g., that the provider has considered less sensitive
sites, alternative system designs, alternative tower designs,
placement of antennae on existing structures, etc.” Id. Con-
sistent with the Third Circuit’s approach, the Second Circuit
had held that “[a] local government may reject an application
for construction of a wireless service facility in an under-served
area without thereby prohibiting personal wireless services if
the service gap can be closed by less intrusive means.” Willoth,
176 F.3d at 643.
The Fourth Circuit has criticized the “interpretive rule” of the
Second and Third Circuits on the grounds that it unduly limits
the discretion of the local zoning entity and that the stat-
utory question requires no additional formulation:
This interpretive rule effectively creates a presumption,
shifting the burden of production to the local government to
explain its reason for denying such an application. But, as
an interpretation of the Telecommunications Act, we be-
lieve this rule reads too much into the Act, unduly limiting
what is essentially a fact-bound inquiry. A community
could rationally reject the least intrusive proposal in favor
(continued...)
No. 02-2889 29
Circuit’s formulation of the statutory requirement and hold
that, so long as the service provider has not investigated
thoroughly the possibility of other viable alternatives, the
denial of an individual permit does not “prohibit or have
the effect of prohibiting the provision of personal wireless
services.” 47 U.S.C § 332(c)(7)(B)(i)(II).
The district court correctly determined that VoiceStream
failed to meet “its heavy burden of showing that its pro-
posal to build a 185-foot tower on the Haase property is
the only feasible plan for closing the gap in its coverage
along Highways 95 and 35 and the St. Croix River.” R.32
at 29. Although several alternatives to the Somerset site
were suggested by both the County and VoiceStream, these
8
(...continued)
of a more intrusive proposal that provides better service or
that better promotes commercial goals of the community.
Even if we were to apply the rule formulated by the
Second and Third Circuits, determinations about what
constitutes the “least intrusive means” and “a significant
gap” in services, would, we believe, quickly devolve into
the broader inquiry indicated by the language of the stat-
ute: “Does the denial of a permit for a particular site have
the effect of prohibiting wireless services?” We believe
that this statutory question requires no additional formula-
tion and can best be answered through the case-by-case
analysis that the Act anticipates.
360B Communications Co. of Charlottesville v. Bd. of Supervisors of
Albemarle County, 211 F.3d 79, 87 (4th Cir. 2000). We share much
of the Fourth Circuit’s concern regarding the “interpretive rule”
expounded by the Second and Third Circuits and agree that
the proper inquiry is the one indicated by the statute: “Does
the denial of a permit for a particular site have the effect of
prohibiting wireless services?” Id.30 No. 02-2889
alternatives were not pursued such that VoiceStream
thoroughly investigated the viability of other alternatives.
Although VoiceStream did investigate, at least partially, two
single-tower alternatives to the Somerset site in its crane
test, there is no evidence in the record to indicate that
VoiceStream made a significant effort to investigate
any multiple-tower alternatives despite the repeated
requests of the Board of Adjustment. In particular, there
is no evidence in the record to indicate that VoiceStream
pursued adequately either of the multiple-tower alternatives
that it mentioned during the May 24, 2000, meeting. See
R.16, Ex.N at 2. The first of these multiple-tower alternatives
included a tower in the Riverway. VoiceStream argues that
such a placement is legally impermissible. It has not ex-
plained, however, why the repeated offers of both the
Park Service and the County to consider favorably such
an alternative would not permit adequate compliance.
Moreover, the second multiple-tower alternative did not
require the placement of any towers in the Riverway.
Rather, this second alternative consisted solely of a series
of towers along Minnesota 95 and Wisconsin 35. See id. In
sum, VoiceStream indicated that both of these multiple-
tower configurations might be viable alternatives to the
Somerset site. Consequently, it was obligated to under-
take further investigation to determine the feasability of
each.
After the first hearing, the Board of Adjustment re-
quested that VoiceStream “provide information on alterna-
tive sites with explanations of why they do or do not work
9
for [VoiceStream’s] intended purpose.” R.16, Ex.Y at ¶ 5.
9
The Board of Adjustment’s request for additional evidence
was proper under the County’s Ordinance, which provides that
(continued...)
No. 02-2889 31
In particular, the Board of Adjustment requested that “a
plan be prepared (with a narrative, map and mock-up) that
shows more towers at lesser heights to lessen the visual
impact on this national scenic area.” Id. Later, in a meeting
held on October 9, 2000, Nelson reiterated that the Board
of Adjustment wanted VoiceStream to investigate the use
of a “series of smaller structures to be used in the ag-
gregate rather than one standard tower to meet its coverage
objectives.” R.23 at ¶ 4; see also R.24 at ¶¶ 3-4. Nelson met
again with VoiceStream on October 25, 2000, and once
more emphasized the negative visual impact of the single-
tower approach and suggested that VoiceStream investi-
gate alternatives using multiple, shorter structures that
would be “less conspicuous and more easily concealed
and camouflaged.” R.23 at ¶ 5; see also R.24 at ¶ 5.
VoiceStream responded to the Board of Adjustment’s
request by a May 10, 2001, letter in which it stated that it
had “already applied stealth technology and reconfigued
its project to improve aesthetics under the current pro-
posal,” and that “VoiceStream engineers have evaluated
alternative means to meet the coverage objective using
shorter towers.” See R.16, Ex.OO at 4. VoiceStream went
on to explain that the zoning ordinances along the river
are very restrictive and the topography is difficult because
of the undulating terrain. See id. VoiceStream then con-
cluded that the height of the proposed Somerset site tow-
9
(...continued)
“[t]he Zoning Administrator or Board of Adjustment may, at
his/her or its discretion, require visual impact demonstrations,
including mock-ups and/or photo montages; screening and
painting plans; network maps; alternative site analysis; lists of
other nearby wireless communication facilities; or facility design
alternatives for the proposed facilities.” R.16, Ex.F at 6.
32 No. 02-2889
er “is the minimum that will provide acceptable coverage
within the river area.” Id.Shortly after reviewing this response, the County Zoning
Office sent a staff report to VoiceStream in which it con-
cluded that VoiceStream had not adequately responded
to the Board of Adjustment’s request for information
regarding multiple-tower alternatives. Specifically, the
staff report stated that “[i]t is unclear[] to what extent
other sites were actually considered[,] investigated[, or]
analyzed. Alternative mock-up plans have not been pro-
vided.” See R.20, Ex.7A at 2. Later, on June 20, 2001, Nelson
was contacted by Steve Ramberg, the senior VoiceStream
radio frequency operator who had conducted a review of
alternative locations for constructing a tower. Nelson’s
conversation with Ramberg led him to conclude that
VoiceStream had only considered single-tower alternatives,
and had not considered whether an aggregation of sites
could be used to meet VoiceStream’s coverage objectives.
See R.23 at ¶ 7. In the intervening weeks between Voice-
Stream’s receipt of the staff report and the second hearing,
VoiceStream failed to submit any additional information
to the Board of Adjustment regarding multiple-tower
configurations as alternatives to the Somerset site pro-
posal. Based on this incomplete response, the Board of
Adjustment determined that VoiceStream had “not ade-
quately researched or brought forth information on an
alternative site or multiple alternative sites to lessen the
visual impact on the Lower St. Croix National Scenic
Riverway.” See R.16, Ex.BBB at 1.
The disparity in substance between what the Board of
Adjustment received from VoiceStream on the Somerset
site and what they received on multiple-tower alternatives
is telling. Although VoiceStream provided extensive maps,
diagrams, environmental assessments and historic assess-
No. 02-2889 33
ments for the Somerset site, VoiceStream provided no
maps, diagrams, or any type of assessment on multiple-
tower configurations as alternative sites. Instead, the rec-
ord contains only conclusory statements. Such conclusory
statements by the applicant, without more, are insufficient
to establish that the applicant has exhausted thoroughly
the possibility of other viable alternatives. VoiceStream’s
conclusory statements that multiple-tower alternatives
are not feasible are insufficient to prove that the Board
of Adjustment’s denial of its Somerset site application
“prohibit[s] or ha[s] the effect of prohibiting the provision
of personal wireless services.” 47 U.S.C § 332(c)(7)(B)(i)(II).
Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-8-03