Daily Development for Wednesday, November 21, 2001

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

TELECOMMUNICATIONS; FEDERAL PREEMPTION: Applying "rigorous review" test, court should disregard lay testimony supporting City's denial of telecommunications tower permit, even as to aesthetics.

MIOP, Inc. v. City of Grand Rapids, No 1:01-CV-335, http://www.michbar.org/opinions/district/2001/101501/12907.html (W.D. Mich. 10/15/01)

Applicant, after a hearing attracting lots of NIMBYs, failed to obtain a permit to construct a 150 foot telecommunications tower on church property in a residential neighborhood. Applicant appealed to the federal district court, claiming a violation of the Telecommunications Act of

1996, and the court found for applicant. The opinion is vague on the nature of the relief given, but one assumes that a judgment was entered ordering the City to grant the permit.

Applicant showed that there was a need for a cell tower in the area and that the site in question was one of the few available sites that met the basic standard of the city's zoning code - that the tower be located 500 feet from any residence.

The Act requires that any local government decision to deny a telecommunications tower permit must be "supported by substantial evidence contained in a written record." The court noted that there is a split in the circuits concerning the standard to be applied in reviewing the agency decision. The Fourth Circuit has established a "substantial deference" approach, while the Sixth Circuit (where Michigan is located), appears to follow a "rigorous review" approach. Sixth Circuit cases have further refined the test to be "such relevant evidence as a reasonable mind might accept as adequate to support the conclusion."

In addition to the 500 foot requirement, the ordinance also required that the proposed structure "will not be injurious to the use and enjoyment of other property . . . , nor substantially diminish or impair property values within the neighborhood or the value of the natural environment." The city obviously rejected the application because it concluded that the record demonstrated that the application did not meet this test.

The court's analysis of how it will evaluate the burden of proof in reviewing the city's decision is interesting. The court noted that the applicant had submitted evidence supporting its position as to each of these issues, but stated that it would not put the applicant to the "impossible standard of proving the negative." It appears to be saying that once the applicant has come forward with some evidence supporting its position, on the "negative" issues, it is up to the city that denies the permit to demonstrate why this evidence is insufficient.

Perhaps most noteworthy here is the court's ruling on the relevance of lay opinion testimony respecting the question of aesthetics. It cites cases admitting and refusing such evidence, but ultimately concludes that the trend among courts in the Sixth Circuit, which applies a tougher standard overall, is to deny such opinion testimony. In the words of one court: "It would completely frustrate the purposes of the [Telecommunications Act] if the voicing of negative opinions by a small number of citizens, without more, could serve as a basis for denial."

Virtually all of the evidence taken by the city supporting its conclusion that the application failed to satisfy the three tests in the ordinance was lay testimony. The neighbors came in to explain why they thought the tower would be ugly and impair their enjoyment of their property. The complained that it would deteriorate values, but the only support they provided was a 1983 Wall Street Journal of a Houston study involving the impact of electromagnetic transmission facilities on neighborhood values. This study the court disregarded because it was remote in time and addressed different concerns.

As to impact on the natural environment, local residents testified that migratory birds would be obstructed by the tower and that some herons had been nesting in the area in recent years. But the court refused to credit this testimony because the parties offering it were not expert naturalists.

Hence, the court concluded that there was absolutely nothing credible in the record to support the city's decision.

Comment 1: Although, of course, city zoning commissioners are likely to be swayed by NIMBYs, and the federal law is designed to correct the balance, isn't this case a bit of overkill? Isn't the issue of aesthetics one that is ultimately subjective, and aren't community standards relevant? Couldn't the court admit that the neighbor's evidence had probative value on this score and still conclude that the record was inadequate?

Comment 2: On the issue of impact on values, the applicant, not surprisingly, came in armed with studies based upon its national experience that telecommunications towers in fact do not reduce values, but the neighbors dropped the ball here by failing to bring in their own appraiser to criticize that study and demonstrate why it wasn't relevant in this case. If they didn't want to spring for a few hundred dollars for an appraiser, maybe their opposition wasn't all that strong to begin with, although probably strongly asserted.

Comment 3: On the issue of environmental impact, it does seem that expert testimony is relevant, this strikes the editor as particularly true on the question of whether birds are unable to fly around a telecommunications tower.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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