08 Crown Castle DAS - City Council - City of Davis

the city violated the TCA because the city’s findings were not supported by substantial
evidence. The proposed site at issue would include 6 antennas and a radio base station
housed on privately owned property.
o The antennas and base station were designed to look like part of the existing
house – incorporated into chimney designs. The design was modeled on a very
similar cell site owned by Pac Bell located on a house a block away.
o At the Planning Commission hearing, 16 residents testified in opposition to the
application, 10 of whom expressed concerns over the health effects that RF
emissions would case despite having been informed that health effects could not
be considered. Id. at 1153. Residents also testified about aesthetic concerns,
whether alternative sites had been considered, and over the area becoming
“antenna alley.” Id. Additionally, more than one resident expressed concern over
property values decreasing based on possible health effects from the cell site’s
RF emissions.
o The PC denied the CUP application on the expressed concerns of the residents
(e.g., aesthetics, commercialization, decrease in property values, etc.). Id. at
1154. ATT appealed the denial to the city council and the city council affirmed
the denial following public testimony which again included concerns over
unknown cumulative health effects caused by RF emissions. The city attorney
advised that RF emissions could not be considered and the mayor then asked
residents about aesthetic concerns to which the response was that there was a
“philosophical” opposition to the aesthetics of the additions, although the
additions could not be seen from the road due to the property’s elevation. Id.
o Between the hearing at which the city council voted to deny the CUP, but before
the adoption of the written findings, the city adopted a policy regarding cell sites
that required an applicant to demonstrate that no feasible alternatives in nonresidential
locations existed.
Among other claims, AT&T asserted the city violated the TCA because the denial was
not supported by substantial evidence. The court concluded that “concern over the
decrease in property values may not be considered as substantial evidence if the fear of
property value depreciation is based on concern of the health effects.” Id. at 1159.
“Thus, direct or indirect concerns over the health effects of RF emissions may not serve
as substantial evidence to support the denial of an application. Accordingly, when public
testimony in the record ‘is almost exclusively directed to health effects, there must be
substantial evidence of some legitimate reason for rejecting the applications to avoid the
conclusion that the denials were based on the impermissible health effects ground.” Id.
at 1159-60 (quoting Cellular Telephone Co. v. Town of Oyster Bay, 166 F.3d 490, 495
(2d Cir. 1999)).
o The court rejected the stated grounds for denial because the record was replete
with concerns about health effects while there was only a general or
“philosophical” concern regarding aesthetics and lack of compatibility with the
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04-03-12 City Council Meeting 08 - 6