Friday, September 18, 2009

Wireless Estimator 08/25/2009

Cell Tower Rejection Can be Permissible on Aesthetic Grounds, Court Rules

PLATTE COUNTY, MO - The 8th U.S. Circuit Court of Appeals has ruled that a tower proposal can be denied based upon aesthetic concerns.

In a 2-1 decision, the appeals court affirmed Platte County's denial of a permit for a 153-foot tower that Sprint PCS sought.

The Telecommunications Act of 1996 requires local governments to provide written reasons for denying telecommunications towers. Judge Steven Colloton, joined by Judge Raymond Gruender, said a four-paragraph explanation from the Platte County Commission was "adequate to the task." The paragraphs essentially mirrored the county zoning code.

The Platte County Commission objected to the proposed tower because its size, location, and relationship to surrounding screening and landscaping were such that the tower would “dominate the immediate neighborhood so as to prevent development and use of neighboring property.”

However, Judge Kermit Bye dissented, saying the county's reasoning wasn't specific enough, and that "a reviewing court is left to speculate as to the real reason or reasons for the commission's decision."

Sprint wanted to place the tower on a 7.5-acre parcel of land owned by Our Savior Lutheran Church. The land was zoned for agriculture. The county zoning staff opposed the move, arguing that the tower would "visually dominate an otherwise residential area." Neighbors feared it would affect their property values.

The case marked the first time the 8th Circuit has addressed what satisfies the "in writing" requirement of the Telecommunications Act. Several other circuits have said the written denial needs to give a sufficient explanation of the reason for the rejection.

However, the 4th Circuit found that a "denied" stamp on a form met the requirements of the law.

Article Courtesy of