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Charles S. Hayes, Inc. v. Board of Commissioners of County of St. Joseph

United States District Court, N.D. Indiana, South Bend Division

December 5, 2017

CHARLES S. HAYES, INC., Plaintiff,


          JON E. DEGUILIO Judge

         Plaintiff Charles S. Hayes (“Hayes Towers”) filed an amended verified complaint seeking declaratory relief against the Board of Commissioners of the County of St. Joseph (“the Board”)[1]because it denied Hayes Towers a Special Use Permit (“Permit”) to build a telecommunications tower on a residential plot of land that it leased for that purpose. Hayes Towers moves for summary judgment arguing that the Board's decision to deny the Permit is in violation of the Telecommunications Act of 1996 (“TCA”) because it was not based on “substantial evidence.”[2]Jurisdiction is established pursuant to 47 U.S.C. § 332(c).


         The facts in this matter are not in dispute.[3] After determining that a deficiency existed in its cellular network in Harris Township, Granger, Indiana which caused dropped calls and customer complaints, Verizon began working with the Harris Township Trustee in early 2014 regarding the installation of new equipment. Verizon offered to rebuild an existing tower on the Township's fire station property so that it would have the capacity to service multiple cellular providers, including AT&T who was already paying the Township to use the existing tower. Complications over the ownership of the fire station tower and plans to expand the fire station left the Trustee unwilling to enter an arrangement with Verizon at the time. After two years of negotiating, Verizon contends that it was ultimately “shot down” by the Trustee.

         Thereafter, Verizon engaged Hayes Towers to build and maintain a tower that would allow Verizon and other carriers to lease space on it for necessary antennas and equipment. In June 2016, Hayes Towers entered into a lease with property owner Amir Pouya to build its telecommunications tower on his residential plot of land located off of Elm Road. On August 3, 2016, the Board of Zoning Appeals (“BZA”) unanimously voted to send the Permit to the Board with a favorable recommendation.[4] On August 22, 2016, the Harris Township Trustee indicated that given resident concerns about locating a new tower on residential land, it would be open to working toward installation of a new tower near the fire station, which would maintain lease revenues for the Township [DE 29-1 at 11]. Hayes Towers and the Trustee then met and reopened discussions about this newly proposed construction site (later identified as being on or near the Township's park). On September 20, 2016, the Trustee informed board member Jamie O'Brien that “[t]he township stands ready to continue working toward the use of township land for a tower.” Id.

         A public hearing was held on September 27, 2016, during which the Board reviewed and discussed the Hayes Towers' Permit request. The transcript of this meeting [DE 29-1 at 77-84] reveals that the following transpired: the BZA representative indicated that despite some opposition to a new tower by those living in close proximity to its proposed residential location, the BZA gave a favorable recommendation for the Permit.

         Evidence supporting the Permit's passage was then discussed during the Board meeting, including: the need for better cellular service in the area given the number of customer complaints and the increased use of cellular service (including use for emergency calls); confirmed compliance with general standards for special use permits and with the Federal Communications Commission's (“FCC”) regulations for emissions; the existence of an agreement by Hayes Towers not to interfere with income generated by Harris Township from AT&T for AT&T's use of the existing tower on the fire station's property; the history of Verizon's earlier negotiations with the Trustee for use of the fire station property; the willingness of Hayes Towers to use landscaping and fencing around the new tower which would be located toward the back of the residential property among trees and an existing high tension power line; and independent appraisal results indicating that the new tower would not likely have a negative impact on nearby property values.

         Evidence supporting the rejection of the Permit's passage was also discussed during the Board meeting, including: generalized concerns by local residents about safety during and after construction; the possible impact of radio frequency emissions; the possible negative impact of the construction on the environment and wildlife; the unappealing aesthetics of the tower and perceived negative impact that it would have on nearby home values; the perceived disparate impact of attempting to place another tower in a less affluent part of the county; the uncertain need for better coverage; and, the potential for alternate sites that would generate revenue for the Township while being located near an existing tower (especially given the Trustee's willingness to consider allowing a new tower to be built near the fire station in the Township park). Because Mr. O'Brien was absent from the meeting, he submitted a letter which indicated that as the representative for the district involving the proposed tower's residential placement, he had received “[u]niversal opposition” to the tower from “every single person, other than Ms. Hayes who is advocating for this project.” Mr. O'Brien referenced the Trustee's willingness to locate the tower on Township property near the fire station, which his constituents appeared to prefer. Given the various concerns Mr. O'Brien raised, he requested that his fellow board members vote against the Permit (reminding them that he had consistently voted with board members who represented districts where zoning issues arose).

         Following the reading of Mr. O'Brien's letter, board members inquired further into the alternative site that had been mentioned and raised concerns about whether Verizon had meaningfully considered the park site. Mr. Noland and Mr. Kruszynski suggested that the tower would be more visible on the alternative park site and noted a preference for the proposed location. However, Mr. Noland and Mr. Morton expressed concerns about whether the alternative park location had been adequately considered given the Township Trustee's renewed willingness to negotiate use of the space on account of concerns raised by residents.[5] Mr. Noland specifically commented that the level of opposition for the proposed residential location was “very unusual” from what he had experienced in nine years. Despite believing that Verizon needed the tower, Mr. Noland commented that it would be “very difficult to vote against the overwhelming opposition.” Various local constituents also voiced their objections to having rent money going to a private non-resident property owner rather than the Township, and to the tower's being too visible on the proposed residential location. The Board recognized that similar concerns could be raised by others living near the alternative site.

         Once public comments were heard, Mr. Catanzarite motioned to grant the Permit without further explanation. The motion was summarily seconded by Mr. Kruszynski. However, Mr. Telloyan, Mr. McCahill, Mr. Root, Mr. Noland, Ms. Hess and Mr. Morton voted against the Permit. As a result, the Board notified Hayes Towers that the Permit had been denied and rested on the hearing transcript to support its decision. The denial of the Permit precipitated this lawsuit by Hayes Towers.


         Hayes Towers has requested summary judgment; however, it has been explained that summary judgment is inappropriate when a district court is asked to rule in “an appellate capacity.” Helcher v. Dearborn Cty., 500 F.Supp.2d 1100, 1108 (S.D. Ind. 2007), aff'd, 595 F.3d 710 (7th Cir. 2010); Primeco Personal Communications v. City of Mequon, 242 F.Supp.2d 567, 574 (E.D. Wis. 2003), aff'd, 352 F.3d 1147 (7th Cir. 2003) (affirming the district court which reasoned that “in cases involving review of municipal decisions under the [Telecommunications Act], summary judgment motions are cumbersome and unnecessary . . . The purpose of a summary judgment motion is to determine whether a case should proceed to trial, but in cases where courts review the decisions of other bodies the ‘trial' has already taken place.”). Thus, in reality, the applicable standard of review is whether the municipal body's decision was “supported by substantial evidence.” Id. (citing 47 U.S.C. § 332(c)(7)(B)(iii)).

         The substantial evidence standard is highly deferential to the local government making the decision. Helcher, 595 F.3d at 723 (citing VoiceStream Minneapolis, Inc. v. St. Croix County, 342 F.3d 818, 830 (7th Cir. 2003)). The court applies the same test for substantial evidence under the TCA that is applied to the review of the decisions of administrative agencies. Id. (citing PrimeCo, 352 F.3d at 1148; VoiceStream, 342 F.3d at 830). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citing VoiceStream, 342 F.3d at 830). The party seeking to overturn the board's decision has the burden of proving that the decision is not supported by substantial evidence. Id. The Seventh Circuit has determined that there is no practical difference between the substantial evidence standard and the clear error standard, and so the relevant question is whether the board clearly erred in refusing to issue the permit. Id. (citing PrimeCo, 352 F.3d at 1149).

         III. ...

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