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Sun State Towers LLC v. County of Coconino

United States District Court, D. Arizona

October 25, 2017

Sun State Towers LLC, Plaintiff,
v.
County of Coconino, Defendant.

          ORDER

          HONORABLE G. MURRAY, SNOW UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the Request for Expedited Review Pursuant to 47 U.S.C. § 332(c)(7)(B)(v) of Plaintiff Sun State Towers, LLC (“Sun State”) (Doc. 1). For the following reasons, the Court denies the request without prejudice to its renewal on appropriate subsequent facts.

         BACKGROUND

         Plaintiff Sun State is a limited liability corporation registered and doing business in Arizona. Plaintiff's business is to build wireless service facilities and lease those facilities to wireless service providers. In this case, Plaintiff seeks to build a wireless service facility in Coconino County, Arizona and lease the facility to Verizon Wireless (“Verizon”). Verizon identified two gaps in its coverage (a two-mile and a five-mile gap) around the I-40 near Flagstaff which were leading to dropped calls for Verizon customers.

         Verizon hired consultants to study the area with the coverage gap and determine possible locations for a new wireless service facility. These consultants identified three potential locations that could fill the coverage gap. In the first location, about 1, 000 feet further from the I-40 than the Toonerville site, the land was in escrow and the private owner was not interested in disturbing that sale by leasing land to Sun State.[1] R000022; R000067; R000132. A second location, and Sun State's preference (“the Toonerville site”), is located on private land adjacent to the first location. In both of these locations, a wireless service facility would need to be built. A third possibility was for Verizon to co-locate with an existing wireless service facility located one mile away from the Toonerville site. This wireless facility is owned and operated by the Navajo Tribal Utility Authority (“NTUA” and “the NTUA site, ” respectively); it is located on tribal land and governed by tribal law. Co-location allows one wireless service facility to house equipment for multiple wireless service providers. Verizon's consultants rejected the NTUA site because they determined it would not adequately fill the coverage gap, it would take too long to implement, and it was too expensive. Therefore, Verizon and Sun State moved forward on plans to build a wireless service facility at the Toonerville site.

         In Coconino County, a Conditional Use Permit (“CUP”) is required to build most wireless service facilities. Coconino County Zoning Ordinance § 3.9.B(1).[2] The County's zoning regulations seek to “protect the county's environmental resources and to minimize adverse impacts on visual resources, ” “minimize the number of towers by encouraging the joint use (co-location) of facilities, ” and “enhance the ability to provide wireless telecommunication services to county residents, businesses and visitors.” Id. at § 3.9.A. To achieve these goals, the Ordinance provides an order of preference for ten types of new wireless service facilities, ranging from most preferred to least preferred. Relevant to this case, co-location on an existing tower is ranked as the most preferred; a new tower of 100 to 199 feet in a G zone is ranked as the eighth preferred. Id. at § 3.9.C(1)(a). A new facility “shall use the most preferred facility type and location where technically feasible, even if it results in an increase in the number of facilities or a higher cost.” Id. at § 3.9.C (1)(b) (emphasis added). The County may only permit a lesser-preferred facility when “the applicant presents substantial evidence to show that it will have a lesser visual impact or is more technically necessary than the use of more preferred facilities.” Id. The Ordinance also lists disfavored sites, which includes “[a]ny site within a visual corridor or scenic vista, for example in view of the San Francisco Peaks, . . . unless the facility blends with the surrounding natural and human made environment. Id. at 3.9.C(2)(b).

         To receive a CUP, applicants first apply to the Coconino County Planning and Zoning Commission (“the Commission”). Sun State filed an application with the Commission on January 20, 2016. The Commission held public hearings and eventually granted the CUP on November 30, 2016. R000161. NTUA appealed the Commission's decision on December 14, 2016. R000163-65. An appeal of the Commission's zoning decision goes to the Coconino County Board of Supervisors (“the Board”). The Board hears appeals de novo.

         The Board first held a public hearing on February 14, 2017. The first hearing centered primarily on whether the NTUA site and the Toonerville site would equally close the coverage gap. See R000013-117. Sun State's studies showed that the NTUA site would provide coverage for the five-mile gap, but not the two-mile gap. R000094. NTUA, however, disputed that their site would not be able to provide sufficient coverage. R000050-57. The Board continued the hearing, giving the parties time to determine standards for measuring the coverage at each location and to discuss the possibility of co-location. R000108-16. The second hearing was held on March 21, 2017. At this hearing, both Sun State and NTUA agreed that the NTUA site could effectively meet Verizon's coverage needs. R000242. Instead, Sun State focused their arguments on other reasons why the NTUA site was not a viable alternative: the short duration of the lease, delays, and the cost. R000242-43. At the end of the hearing, the Board voted 5-0 to approve the appeal and deny the CUP. R000317. The statements of the Board members and the subsequent written denial identified two key reasons why the Board denied the CUP: the Toonerville site is in a disfavored location and the NTUA site is an alternative which is both not in a disfavored location and would provide the opportunity for co-location. R000407-08.

         Sun State seeks this Court's review of the Board's decision pursuant to 47 U.S.C. § 332(c)(7)(B)(v).

         DISCUSSION

         I. The Telecommunications Act of 1996

         This case arises under the Telecommunications Act of 1996 (TCA), Pub. L. No. 104-104, 110 Stat. 56. The TCA was enacted with two primary purposes. First, Congress sought 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.” T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 991 (9th Cir. 2009) (quoting TCA, 110 Stat. at 56). At the same time, Congress also sought to “preserve the authority of State and local governments over zoning and land use matters except in the limited circumstances set forth in the [TCA] conference agreement.” Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571, 576 (9th Cir. 2008) (quoting H.R. Conf. Rep. No. 104-458, § 704, at 207-08).

         In striking this balance between preserving local authority and encouraging technological development, the TCA proscribes only certain, limited behaviors by localities. 47 U.S.C. § (c)(7)(B)(i). Localities may not “unreasonably discriminate” amongst providers nor may they “prohibit or have the effect of prohibiting” wireless services. Id. Localities also must act quickly on permit requests and denials of permits must be based on “substantial evidence in a written record.” Id. at § (c)(7)(B)(ii)-(iii). A person or entity believing that the locality violated these provisions of the TCA can seek review of the decision in the federal courts. Id. at § (c)(7)(B)(v).

         II. Analysis

         Sun State raises two challenges under the TCA. First, Sun State alleges that the Board's decision was not supported by substantial evidence. Second, Sun State argues that even if there was substantial evidence, the denial violates the TCA because it constitutes an effective prohibition. The Court considers each argument in turn.

         A. Substantial Evidence

         The TCA requires that “[a]ny decision by a State or local government . . . to deny a request to place, construct, or modify personal wireless service facilities shall be in writing.” 47 U.S.C. § 332(c)(7)(B0(iii). Although the TCA does not define “substantial evidence, ” courts have held that “this language is meant to trigger ‘the traditional standard used for judicial review of agency decisions.'” Metro PCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 723 (9th Cir. 2005) (abrogated on other grounds) (quoting H.R. Conf. Rep. No. 104-458, at 208 (1996)). This is a deferential form of review, and courts can “neither engage in [their] own fact-finding nor supplant the Town Board's reasonable determinations.” Metro PCS, 400 F.3d at 725 (quoting Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)).

         The substantial evidence determination “does not require incorporation of substantive federal standards.” Metro PCS, 400 F.3d at 723. Instead, it “requires a determination whether the zoning decision at issue is supported by substantial evidence in the context of applicable state and local law.Id. at 723-24. The evidence in the record is substantial when there is “less than a preponderance but more than a scintilla of evidence.” Id. at 725 (internal citations omitted). There must be enough “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. Taken together, a Court may not overturn a locality's decision if (1) the local zoning ordinance allows the denial and (2) there is more than a scintilla of evidence.

         1. The Local Ordinance ...


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