February 2024 - Parks and Recreation - 27

chain link equipment enclosure.
The Agreement contained a provision
authorizing Vertical Bridge
the right to enter the park to apply
for " Government Approvals, "
including any license or permit
necessary for Vertical Bridge's use
of the leased space. The provision
also authorized Vertical Bridge to
apply for such approvals on behalf
of the City, and the City agreed " to
reasonably cooperate with such
applications. " Based on its communications
with City staff, Vertical
Bridge understood the project
would undergo an administrative
approval process.
In the summer of 2021, Brawley
residents began to express opposition
to the proposed cell tower project
and demanded the City hold a
public hearing on Vertical Bridge's
conditional use permit (CUP) application.
Rather than go through
the
administrative approval process,
the City directed Vertical
Bridge to submit a CUP application
to the Planning Commission.
On August 11, 2021, the Planning
Commission held a public
hearing on Vertical Bridge's CUP
application. Vertical Bridge presented
its application, and community
members presented their
comments and evidence. The Planning
Commission denied the CUP
application.
Vertical Bridge appealed the
Planning Commission's denial
to the City Council, and the City
Council held a hearing on the appeal
on October 5, 2021. After
hearing comments and considering
evidence presented by Vertical
Bridge and community members,
the City Council voted 5-0 to deny
the CUP application.
Within the next day, the City
Council issued a written denial of
the application, including the following
findings:
(1) [T]here is a lack of evidence
showing a gap in service making
a tower necessary in the area; (2)
a nearby armory would be a suitable
alternative site that would
eliminate the impact on the baseball
activities at the park; (3) arguments
concerning potential radio
frequency dangers were not considered;
(4) the proposed tower would
be approximately twice as tall as
existing light standards and would
have a significant negative visual
impact, and (5) the proposal is not
compatible with the existing use
of the park as it will significantly
reduce the available practice space
for baseball and football activities.
On December 31, 2021, Plaintiff
filed a Complaint in federal district
court alleging a lack of substantial
evidence for a denial under the
federal Telecommunications
Act
(TCA) and discrimination between
providers of equivalent services in
violation of the TCA.
TCA Substantial Evidence?
As cited by the court, the TCA
required " any decision by a State
or local government or instrumentality
thereof to deny a request to
place, construct, or modify personal
wireless service facilities
shall be in writing and supported
by substantial evidence contained
in a written record. " 47 U.S.C. §
332(c)(7)(B)(iii). Moreover, the
court noted any party
plaintiff
" seeking to overturn the local
government's decision " under the
TCA had " the burden of showing
the decision was not supported by
substantial evidence " :
Substantial
evidence implies
Lease Agreement
Plaintiff had argued " the City
cannot reconsider its decision as
a landlord to lease a portion of
Wiest Field Park for the cell tower
by denying the CUP application
for the project as a zoning authority. "
The federal
district court,
however, noted " nothing in the
Agreement states that the City's
decision to lease the park waives
or displaces otherwise applicable
municipal procedures for approving
or denying a request to construct
a cell tower thereon. " On
the contrary, the court found " the
Agreement indicates that Vertical
Bridge would need to obtain
government approvals, including
a use permit, and could apply for
such on behalf of the City, and
the City agreed to reasonably coPARK
S ANDRECRE AT ION . OR G | FEBR U AR Y 2 0 2 4 | Parks & Recreation
27
less than a preponderance, but
more than a scintilla of evidence.
It means such relevant evidence as
a reasonable mind might accept as
adequate to support a conclusion.
In conducting its TCA review,
the federal district court further acknowledged
the role of the federal
judiciary was " deferential,
such
that courts may neither engage in
their own fact-finding nor supplant
the Town Board's reasonable determinations. "
In so doing, the court
recognized it was required to " take
applicable state and local regulations
as they find them and evaluate
the City decision's evidentiary
support (or lack thereof) relative to
those regulations. "
Accordingly, the court would
only find the City's decision invalid
if the City failed to comply with applicable
state and local regulations
without necessarily considering applicable
TCA federal standards.
February 2024 - Parks and Recreation

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