February 2024 - Parks and Recreation - 28

LAW REVIEW
operate with such applications. "
Local Regulation
Authorization
The issue before the federal district
court was, therefore, whether " the
City Council's decision to deny
Vertical Bridge's CUP application
was authorized by applicable local
regulations. " As cited by the
court, the applicable local regulations
were " the relevant statutes
are set forth in the Brawley Code
of Ordinances ( " Code " ) at Chapter
8C Communications Facilities
and Chapter 27, Brawling Zoning
Ordinance. " In pertinent part, the
federal district court cited Section
8C.5.2 of the Code, which provided
the following:
[A]ll wireless communication
facilities require a conditional
use permit (CUP). To obtain a
conditional use permit, a hearing
is required before either the planning
director or the planning
commission.
Citing
Section
27.274
of
the
As described by the federal
district court, the Code required
consideration of " the project's
impact on aesthetics and
adjacent uses. "
Code, " Basis for Approval or Denial
of a Conditional Use Permit, "
the court further noted the planning
director or planning commission
could approve a CUP application
if the permit satisfied the following
conditions:
[The permit] will not jeopardize,
adversely affect, endanger, or
otherwise constitute a menace to
the public health, safety, or general
welfare, or be materially detrimental
to the property of other persons
located in the vicinity of such use.
In making this
determination,
the court found the planning director
or planning commission was required
to consider the " nature, condition
and development of adjacent
uses, buildings and structures. "
Accordingly, the Code would prohibit
approval of a CUP where the
proposed use " will adversely affect
or be materially detrimental to said
uses, buildings or structures. " Code
§ 27.274.1.b.
Prior to the approval of a CUP
for a proposed communication
facility, Sections 8C.6.1.b.iii and
8C.2.b.iii of the Code mandated
the planning director or planning
commission to make a finding that
" the facility blends in with its existing
environment and will not have
significant adverse visual impacts. "
City Zoning Compliance
The federal district court acknowledged
" the City gave Vertical
Bridge the exclusive option
to lease the park for its proposed
project. " That being said, the
court, however, noted " the City
did not by that same agreement
agree to forego the City's zoning
regulations. " Further, the court
found the record in this case indicated
" Vertical Bridge's CUP application
was originally intended
to undergo administrative review
by the Planning Director. " Before
Vertical Bridge submitted its application,
the court noted Brawley
residents " began to voice their opposition
to the proposed tower site
and demanded a public hearing. "
As characterized by the court,
the record indicated " the City complied
with its zoning regulations
28 Parks & Recreation | FEBR U AR Y 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
requiring a public hearing on the
CUP application and providing for
an appeal to the City Council " :
Upon consideration of Vertical
Bridge's and community members'
presentation of comments
and evidence, the City Council
denied the CUP application and
made necessary findings under
the regulations - namely, that
the proposed use " would have a
negative visual impact " and " not
compatible with existing use of
the park. "
In the opinion of the court, these
findings were grounded in " Section
27.274.1.b's mandate to consider
whether the use will adversely affect
or be materially detrimental
to
adjacent
uses " and " Section
8C.2.b.iii's mandate that the cell
tower will not have significant adverse
visual impacts. "
Having found the CUP application
" grounded in applicable local
regulations, " the next issue before
the federal district court was
" whether there was a reasonable
amount of evidence for its denial
of the CUP. "
Legitimate Local Concerns
As described by the federal district
court, the Code required consideration
of " the project's impact on
aesthetics and adjacent uses. " Further,
the court found such considerations
have been held to be " legitimate
concerns for a locality. " In
the opinion of the federal district
court, " A review of the administrative
record reveals there was
substantial evidence to support the
City Council's decision " :
First, the record contains evidence
for the City's finding that
110-foot cell tower and 36-feet-by36-feet
chain link enclosure would
February 2024 - Parks and Recreation

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