Preferred Sites, LLC v. Troup County

296 F.3d 1210, 2002 U.S. App. LEXIS 13851, 2002 WL 1473139
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 10, 2002
Docket01-14182
StatusPublished
Cited by89 cases

This text of 296 F.3d 1210 (Preferred Sites, LLC v. Troup County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Preferred Sites, LLC v. Troup County, 296 F.3d 1210, 2002 U.S. App. LEXIS 13851, 2002 WL 1473139 (11th Cir. 2002).

Opinion

BLACK, Circuit Judge:

This case involves an application of the Telecommunications Act of 1996 (TCA) to the land use decisions of a local government. Pub.L. No. 104-104, 110 Stat. 56 (codified in scattered sections of 15 and 47 U.S.C.). Preferred Sites, LLC (Appellee) filed suit against Troup County, Georgia (Appellant), alleging the county’s Zoning Appeals and Planning Board (the Board) violated § 704(a) of the TCA by denying its application for conditional use approval to construct a multiple user-wireless communication tower. Appellee alleged the Board’s decision was not supported by substantial evidence contained in a written record, as required by § 704(a). The district court agreed, granting summary judgment in favor of Appellee and ordering Appellant to approve the conditional use permit. We affirm.

I. BACKGROUND

A. Factual' and Procedural Background

Appellee owns, operates, and manages free-standing wireless communication towers, which typically are used' to provide cellular telephone service. Appellee also *1213 acts as a site selection firm for the wireless communication industry. As part of this business, Appellee sought to construct a 250-foot tower on a 7.6 acre parcel of property owned by Charles and Ruth Bailey in LaGrange, Georgia, which is located in Troup County. To obtain permission to construct the tower, Appellee, through its agent, applied to the Board for conditional use approval. Appellee’s application was required by the Troup County Zoning Ordinance, which sets forth the standards for placement, design, and removal of telecommunications antennas and towers. Troup County, Ga., Comprehensive Zoning Ordinance, Appendix A, Art. IV, § 14 (1999). 1

On June 8, 2000, the Board held a public hearing at which it considered Appellee’s conditional use application. The minutes of the hearing do not contain the contents of any discussion or debate concerning the application. Appellant, however, submitted to the district court the affidavit of Mike Dobbs, the Zoning Administrator of Troup County, who attended the meeting. The affidavit stated several members of the public verbally opposed construction of the tower. These individuals apparently opposed the visual obtrusiveness of the proposed tower. The affidavit, however, contained no further information concerning these citizens’ objections.

In addition, five-petitions,'which collectively contained the signatures of 58 individuals, were submitted to the Board. The petitions objected generally to the construction of the tower. All five standard form petitions had three groupings of blank lines: (1) a set of blank lines to write in the purpose of the petition, the opinion being expressed, the property concerned, and the. property’s specific location; (2) a set of blank lines to write in an explanation of the proposal for which the petition was being circulated; and (3) a set of lines for individuals’ full signatures and complete addresses. Despite the presence of these blank lines, only two of the petitions were complete, indicating both the purpose of the petition was to oppose the tower and the proposal for which the petition was circulated was to object to the construction of the tower. The third petition merely noted the location of the proposed tower and indicated the proposal for which the petition was circulated was to object to the construction of the tower. Finally, ■ the fourth and fifth petitions submitted to the Board contained no information other than the signatures and addresses of people who live in LaGrange, Georgia. Other than the five petitions, no evidence objecting to "Appellee’s construction of the tower exists in the record.

*1214 At the conclusion of the hearing, the Board voted unanimously to deny Appel-lee’s request for conditional use approval. Thereafter, in a letter dated June 12, 2000, the Troup County Zoning Department provided written notification to Appellee that the Board denied its application.

On July 11, 2000, Appellee filed suit against Appellant in the United States District Court for the Northern District of Georgia, alleging the denial of its application violated § 704(a) and requesting mandamus relief. In response, Appellant claimed Appellee’s action was untimely filed and Appellee had failed to meet the requirements of the zoning ordinance. Subsequently, Appellee requested permission from the district court to amend its petition to add a claim for damages pursuant to 42 U.S.C. § 1983.

Upon review of the written record, the district court held Appellee’s action was filed within the statute of limitations. In addition, the court'denied Appellee’s request to amend its petition. The district court also held the Board violated § 704(a) because its denial of the application for conditional use approval was not supported by substantial evidence. Accordingly, the district court granted summary judgment in favor of Appellee and ordered Appellant to approve the conditional use permit.

B. Background of the Telecommunications Act of 1996

The TCA was enacted “to provide for a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services-to all Americans by opening all telecommunications markets to competition.” H.R. Conf. Rep. No. 104-458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124, 124. In addition, the TCA was intended “to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.” Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56, 56 (1996). Wireless telephone service was one of the many telecommunications technologies Congress considered when enacting the TCA.

With respect to the construction of telecommunications facilities, Congress recognized zoning decisions by state and local governments had created an inconsistent array of requirements, which inhibited both the deployment of personal communications services and the rebuilding of a digital technology-based cellular telecommunications network. H.R.Rep. No. 104-204, at 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61. Despite this recognition, Congress also acknowledged “there are legitimate State and local concerns involved in regulating the siting of such facilities ..., such as aesthetic values and the costs associated with the use and maintenance of public rights-of-way.” Id. at 94-95, reprinted in 1996 U.S.C.C.A.N. 10, 61. As a result, Congress enacted § 704(a) to “preserve[ ] the authority of State and local governments over zoning and land use matters except in ... limited circumstances....” H.R. Conf. Rep. No. 104^458 (1996), at 207-08, reprinted in 1996 U.S.C.C.A.N. 124, 222.

In § 704(a), codified at 47 U.S.C. § 332(c)(7), 2

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296 F.3d 1210, 2002 U.S. App. LEXIS 13851, 2002 WL 1473139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/preferred-sites-llc-v-troup-county-ca11-2002.