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Eco-Site, Inc. v. City of Huber Heights

United States District Court, S.D. Ohio, Western Division, Dayton

June 22, 2018

Eco-Site, Inc., et al., Plaintiffs,
v.
City of Huber Heights, Ohio, et al., Defendants.

          ENTRY AND ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, ECF 38, DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ECF 37, ORDERING COMPLIANCE WITH THE TELECOMMUNICATIONS ACT OF 1996 AND TERMINATING CASE.

          THOMAS M. ROSE UNITED STATES DISTRICT JUDGE.

         Pending before the Court are cross-motions for summary judgment filed by all parties. ECF 37 & 38. Plaintiffs Eco-Site, Inc., and T-Mobile Central LLC assert they are entitled to summary judgment on claims that Defendants the City of Huber Heights and the City of Huber Heights Planning Commission violated the Telecommunications Act of 1996, 47 U.S.C § 332, which requires local governments to “act on any request for authorization to place, construct, or modify personal wireless services facilities” by issuing a decision on such an application “in writing and supported by substantial evidence contained in a written record.” The Act preempts local government regulations and decisions that “prohibit or have the effect of prohibiting the provision of personal wireless services.” Because the City's denial of Plaintiffs' application for the proposed facility failed the “in writing” requirement of Section 332(c)(7)(B)(iii), is not supported by substantial evidence, and effectively prohibits the provision of personal wireless service in the area around the proposed facility, the City has violated 47 U.S.C. § 332(c)(7)(B). Accordingly, the Court will enter judgment in favor of Plaintiffs and issue an injunction requiring immediate approval of the application and associated permits requested therein.

         I. Background

         Plaintiff T-Mobile Central LLC provides wireless telecommunications services pursuant to licenses issued by the Federal Communications Commission. (HU 99; Expert Radio Frequency Report of Richard Conroy (“Conroy Rpt.”) ¶ 3.) Providing its services requires T-Mobile to deploy a network of interrelated “cell sites” that must overlap in a grid pattern and must provide adequate signal strength and network capacity. (PLS 210; HU 9, 110; Conroy Rpt. ¶¶ 5, 9.)

         Eco-Site builds, owns and operates towers and other wireless facilities that allow wireless carriers, such as T-Mobile, to create and maintain their network of cell sites. (PLS 187.)

         Based on research and analysis by radio frequency engineers, T-Mobile determined that it has a significant gap in its ability to provide service for in-building residential and commercial coverage in Huber Heights in the vicinity of 7730 Taylorsville Road. (Conroy Rpt. ¶¶ 11-17.) The gap in service involves an approximately 4.6 square mile area that includes residences, schools, a fire station, various churches, commercial buildings (including Walmart) and more than a mile of Interstate 70 within a boundary comprised of Brandt Pike, I-70, Taylorsville Road, Stonehurst Drive, Deer Bluff Drive, and all the adjoining residential roads within the gap area. (Id. ¶ 15.) According to 2010 U.S. Census data, there are approximately 10, 962 residents in the in-building coverage gap area. (Id.)

         To remedy its gap in service, T-Mobile's radio frequency engineers identified a search area within which a new facility would need to be constructed to remedy the service gap. (Declaration of Kristopher Nickel ¶ 4 (Exh. 2).) Plaintiffs searched within the search area for available properties that may be suitable for construction of a wireless facility. (Id. ¶¶ 6-9; Declaration of Daniel Keidel ¶ 6 (Exh. 3).) To qualify as an appropriate candidate, a location would have to work within T-Mobile's existing network to remedy the service gap, comply with the local zoning requirements, be leasable, and be buildable. (Nickel Decl. ¶ 5.) After evaluating existing towers, structures, and properties within the search area, Plaintiffs concluded that the property at 7730 Taylorsville Road satisfied the criteria for potential viability. (Nickel Decl. ¶¶ 9-12.) A lease was executed with the property owner. (Id. ¶ 12.)

         The property is in what Huber Heights has designated as a “Planned Public and Private Buildings and Grounds” zoning district. (HU 115.) Placement of a cell tower in such a zoning district requires a special use permit. Huber Heights Zoning Code § 1198.05. The Planning Commission may allow a Special Use if the use follows the requirements detailed in Zoning Code § 1135.10, as well as the specific requirements in Zoning Code § 1198.05 as a special use.

         On February 10, 2016, Eco-Site submitted an application for a Special Use permit for a new communications facility at the property. (PLS 186-213.) Huber Heights received and filed Eco-Site's application for a special use permit on February 19, 2016. ECF 38-11, PageID 397-98, (HU 85-86.) The application initially proposed a 180-foot monopole (plus a ten-foot lightning rod, (PLS 191), which was subsequently reduced to a 169-foot tower (plus ten-foot lightning rod (HU 95)) during the administrative review process. (PLS 191; HU 95.) The application was supported with information required by the City's Zoning Code. (PLS 186-213.) A March 9, 2016 City Staff Report concluded that the application met each of the requirements detailed in the Zoning Code, “will not adversely impact any current or future use in this area, ” and recommended approval of the application. (HU 117.)

         The matter was assigned for a hearing before the Planning Commission on March 15, 2016, but at that time it was tabled. (HU 106.) The matter came back before the Planning Commission on June 14, 2016. (HU 94-95.) At the hearing, Scott Falkowski, the Assistant City Manager, reviewed the staff report from March 15, 2016 and introduced the matter. Kit Nickel, on behalf of Eco-Site, also introduced the application, and submitted an introduction and overview in support of the application. (HU 198-254.) In Eco-Site's presentation, Nickel acknowledged that the applicant needed to satisfy Section 1198.02 and 1198.05 as part of the special use application. Additionally, Nickel acknowledged that the applicant needed to address and satisfy Section 1135.10 “General Requirements.” (HU 205.)

         Pursuant to Huber Heights Zoning Code Section 1135.10 “the Planning Commission shall review the particular facts and circumstance of each proposed use in terms of the following requirements and shall find by a preponderance of the evidence that such use on the proposed location: ... (c) shall be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity that such uses shall not change the essential character of the same area;” ... and “(d) shall not be hazardous or disturbing to existing or future neighboring uses ... .” (HU 205-06.) Eco-Site's response included claims that the tower was kept farther away from residential uses than required by the Code, and was gray in color.

         At the hearing, three residents appeared and spoke in opposition to the tower. Concerns included the “fall zone” of the tower-whether or not it would be on their property if it fell. See (HU 99.) Another neighbor was concerned that the tower was hazardous and prevented him from using all aspects of his property in the future, as it would restrict residential building due to the fall zone. (HU 100.) He claimed that an FHA loan cannot be obtained if property is within a cell tower fall zone. Id. Falkowski noted that one neighbor had raised a concern that the depth of the proposed tower foundation would affect the well used to supply water to his home. (HU 108.) The neighbor who raised a concern about the potential effect on his well water was one who spoke. He also stated that he would “welcome better cell coverage.” (HU 111.) The other two speakers also raised general aesthetic concerns, asked whether there would be noise emitted from the facility, and reiterated the concern about well water. (HU 111-113.)

         Nickel was also asked exactly what coverage needs or what coverage issues T-Mobile had so as to seek a tower in this location. (HU 100.) Nickel responded that they were not “just talking about coverage; they are not just talking about blanketing an area with signals. They are talking about capacity.” (HU 99.)

         At the conclusion of the March 15 meeting, the Planning Commission tabled consideration of the application so that Plaintiffs could conduct a soil study to address the concerns about well water. (HU 106.) Thereafter, Plaintiffs commissioned a geotechnical soil analysis that confirmed that the foundation of the proposed facility would not interfere with the area groundwater. (HU 215-254.) Nevertheless, Plaintiffs offered a shallower, alternative foundation design in an effort to further alleviate any community concerns. (HU 95.)

         The Planning Commission considered the application again on June 14, 2016. Falkowski provided information about the soil study, communicated Eco-Site's offer of an alternative foundation, and also stated that the height of the proposed facility had been lowered by 11 feet. (HU 95.) In response to arguments that the proposed facility would negatively impact the historic nature of the surrounding properties, Falkowski confirmed that none of the area properties were designated historic. (HU 103.) Several letters were also submitted raising general concerns. (HU 177-181, 184-197.)

         When asked whether all options had been exhausted and if this was the best option, Scott Falkowski stated that “it is the Applicant's proposal. The City did not go out and look for sites. That is not the City's job.” (HU 96.) Similarly, Nickel indicated that multiple sites were considered and that Eco-Site chose one that “made more sense and they went to that property.” (HU 96.)

         After the presentation, the Planning Commission discussed the matter. One voting member of the Planning Commission, Member Webb, emphasized the general requirements in the Zoning Code under Section 1135.10. Webb noted that the preponderance of the evidence required under Section C that the proposed use be “harmonious and appropriate in appearance with the existing or intended character of the general vicinity...” and that under Section D, that the proposed use not be “hazardous or disturbing to existing or future neighborhood uses.” (HU 103.)

         At the June 14 Meeting, a motion to approve the application failed by a 1-4 vote, denying the application, with no administrative appeal available. (HU 93.) The City provided the written denial (HU 93) to Eco-Site on July 12, 2016 (HU 18). The one-page decision does not list reasons for the denial. (HU 93.) The minutes of the June 14 Meeting (HU 94-103) were provided to Eco-Site on August 10, 2016 (HU 12).

         Plaintiffs filed their complaint August 11, 2016. (ECF 1.) They amended their complaint January 18, 2018. (ECF 36.) All parties filed cross-motions for ...


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