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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

March 26, 2018

CHARLES S. HAYES, INC., Plaintiff,



         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 the St. Joseph County Council (“the Council”)[2] 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 moved for summary judgment arguing that the decision to deny the Permit was in violation of the Telecommunications Act of 1996 (“TCA”) because it was not based on “substantial evidence.” In response, the defense argued that substantial evidence supported the Permit's denial because the record revealed that the tower would adversely affect property values and because alternative sites were available, viable, and more desirable [DE 34 at 11-13].

         Ultimately, the Court denied Hayes Towers' motion for summary judgment and remanded the matter for further expeditious proceedings [DE 41]. In so doing, the Court held that: an examination of the record revealed no clear indication as to the actual reasons for the rejection of the Permit sufficient to enable judicial review; the Court could not “pluck reasons from the record” supporting the parties' respective summary judgment positions, because: (1) post-hoc rationales cannot serve as substantial evidence, see T-Mobile S., LLC v. City of Roswell, Ga., 135 S.Ct. 808, 816, n.3 (2015), and (2) present were both legitimate and illegitimate reasons for the decision to deny the Permit; and finally, remand of the matter was appropriate given the lack of bad faith and the fact that sufficient evidence existed for a reasonable decision.

         Hayes Towers has sought reconsideration of the Court's findings [DE 43]. Hayes Towers argues in pertinent part that it was improper for the Court to remand the matter because such a remedy was never sought by the defense or contemplated in the parties' briefs, and because remand causes further delay in violation of the statute and case precedent. Hayes Towers also argues that had the Court rendered a determination on the merits as to whether substantial evidence existed in the stipulated record[3] to support the Permit's denial, then it would have answered the inquiry in the negative. In response, the defense argues that no manifest errors of law or fact occurred and no newly discovered evidence had been presented so as to make reconsideration appropriate [DE 44]. The defense then filed a transcript of a Council meeting subsequently held on February 13, 2018, which indicated that in an attempt to comply with the Court's order of remand, the individual council members provided their reasons for initially denying the Permit in September 2016.

         On March 1, 2018, the Court held oral argument on the motion for reconsideration [DE 53]. During that hearing, defense counsel conceded that the Council violated the TCA's writing requirement by failing to set forth its reasons for denying the Permit. Having said that, defense counsel argued (as it did in response to the original motion for summary judgment [DE 34 at 12-13]), that the legitimate reasons for the Permit's denial included: assertions by property owners that the tower would diminish their property values, and a viable alternative site existed based on emails from the Township Trustee [DE 29-1 at 11].

         For the reasons set forth below, the Court GRANTS the motion for reconsideration [DE 43], and the Court modifies the remedy it deems appropriate under the circumstances presented by this case.


         The facts in this matter are not in dispute and are set forth in the stipulated record. For the sake of completeness, the Court sets forth the facts as it views them.

         After determining that a deficiency existed in its cellular network in Harris Township, Granger, Indiana, which caused dropped calls, inability to access the network, 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. Verizon provided a site plan, lease agreement, and presented the design options to the Trustee. However, 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 trying to put the tower on Township property and getting “shot down” by the Trustee, Verizon started looking for another location.

         Thus, 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 that would allow Verizon and other carriers to lease space on it for necessary antennas and equipment. On August 3, 2016, the Board of Zoning Appeals (“BZA”) unanimously voted to send the Permit to the Council with a favorable recommendation.[4] The BZA's findings of fact indicated that the proposed special use would not injure the public health, safety, morals, or general welfare of the community, would improve the appearance of the neighborhood and not devalue the surrounding properties, and would blend into the overall comprehensive plan [DE 29-1 at 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 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 council member Jamie O'Brien that “[t]he township stands ready to continue working toward the use of township land for a tower.” Id. However, the same letter also said that “no agreement is in place nor can it be assumed” for this “probably . . . acceptable site, ” and that it was possible that “various approvals may be required, and that a public bid process may be necessary.” Id.

         A public hearing was held on September 27, 2016, during which the Council 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 Council 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 unsuccessful negotiations with the Trustee for use of Township 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 Council 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 given that some network users indicated that there were no coverage problems; 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 [President of Hayes Towers] who is advocating for this project.” Mr. O'Brien ...

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