08 Crown Castle DAS - City Council - City of Davis

The Ninth Circuit rejected T-Mobile’s challenge that the permit denial violated the TCA
because the findings were not supported by substantial evidence. To the contrary, the
Ninth Circuit concluded there was substantial evidence based on the city’s aesthetic
considerations in the record – e.g. proposed WTF would have a “commercial appearance
and would detract from the residential character and appearance of the surrounding
neighborhood;” that it “would not be compatible with the character and appearance of the
existing development;” and that it would “negatively impact the views” of residents.” Id.
at 980-90.
o Legitimate local concerns in considering siting of wireless telecommunication
facilities are height of the proposed tower, proximity to residential structures,
nature and uses of nearby properties, surrounding topography, and foliage. Id. at
994.
o The city is entitled to make an aesthetic judgment as long as the judgment is
grounded in the specifics of the case, and does not evince merely an aesthetic
opposition to cell-phone towers in general … Accordingly, when the evidence
specifically focuses on the adverse visual impact of the tower at the particular
location at issue more than a mere scintilla of evidence generally will exist.
However, the Ninth Circuit went on to hold that the city had not rebutted T-Mobiles
showing that the denial of the application constituted an effective prohibition of services
under the TCA (i.e., that the site was needed to close a significant gap in coverage and
was the least intrusive means of closing that coverage gap).
o The city had identified several potential alternative sites, but T-Mobile rebutted
the availability of those sites. Some of the proposed sites would have required
two sites instead of one due to geographical constraints and a proposed school
sites were too speculative to be considered as viable alternatives given previous
unsuccessful siting efforts at such sites.
o The city also proposed another two-site alternative at its city water tower and
another communication tower, but T-Mobile presented evidence that the two-site
alternative presented more environmental impacts costs and the city was unable
to present any evidence concerning the availability of the communications tower.
REMEDY: The Ninth Circuit affirmed the district court’s entry of judgment in favor of
T-Mobile and its order directing the city to issue the permit to T-Mobile.
FEDERAL CASE - TCA & PUC 7901/7901.1
Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 725 (9th Cir. 2009)
Sprint applied for 10 permits to construct wireless telecommunications facilities in the
city’s PROW. The city granted 8 permit applications, but denied 2 others. As for the
two that were denied, one proposed site was on a narrow residential street (Via Azalea)
and the other was proposed along one of the four main entrances to the City (Via
Valmonte).
o Via Azalea Findings for Denial:
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04-03-12 City Council Meeting 08 - 8