08 Crown Castle DAS - City Council - City of Davis

Michael Linet, Inc. v. Village of Wellington, Fla., 408 F. 3d 757 (11th Cir. 2005)
The Village of Wellington, a residential community in Palm Beach County, Florida,
denied a permit to a Florida corporation (Linet) to construct a proposed new 120 foot
flagpole with a cellular communications antenna concealed inside on a golf course in a
residential area. Because the height of the pole exceeded 60 feet, Linet was required to
obtain approval from the Village before constructing the pole. Linet’s proposal was not
well received by the Village’s residents. After a hearing reviewing the merits of Linet’s
application, the Village, based on objections by the residents, refused to issue a permit to
construct the pole.
o The residents’ primary concern, voiced at a June 2003 meeting, was the impact
the pole would have on the value of their property. Residents testified that they
would not have purchased their homes if the pole was present and a local realtor
testified the pole would adversely impact home resale values.
o Linet argued that these objections were impermissible pure aesthetic or NIMBY
objections. Linet relied on rebutting testimonial evidence that the facility would
not lower property values.
Linet sued the Village in federal court alleging violations of the TCA. The district court
found in favor of the Village, concluding the permit denial was based on substantial
evidence. The Eleventh Circuit affirmed, noting the evidence in the record from
residents and a realtor concerning the cell site’s negative impact on real estate values and
Linet’s failure to show that an alternative location was unavailable or unfeasible. Id. at
762.
o In so holding, the Eleventh Circuit noted, “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. Aesthetic objections coupled with evidence of an adverse impact on
property values or safety concerns can constitute substantial evidence.” Id. at 761
(emphasis added).
PENDING ACTIONS
NextG Networks of California, Inc. v. City of Newport Beach, Central District of California,
Case No. SACV10-01286 DOC (JCx)
In August 2009, NextG submitted seven permit applications to the city for the installation
of telecommunications facilities at seven sites within the city, all on or near Pacific Coast
Highway. In response to the Public Notices, the City received numerous letters and
emails from residents opposing NextG’s permit applications. The city council denied the
five applications to install new poles on Pacific Coast Highway and approved, with
conditions, the two applications to install equipment on existing Southern California
Edison poles on Marcus Avenue and Santa Ana Avenue.
NextG filed an action in federal court under the TCA alleging the city’s denial was not
supported by substantial evidence. BB&K represented the City of Newport and the trial
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04-03-12 City Council Meeting 08 - 12