February 2024 - Parks and Recreation - 29

be approximately twice as tall as
existing ballpark lights and would
have a negative visual impact on
Wiest Field Park.
Further, " in concluding that the
project would have a negative visual
impact on the park, " the federal
district court found the City
Council considered and relied on
community members' objections
to the tower and its equipment
enclosure " :
Residents voiced concerns that
the tower would become a prominent
industrial feature in the park
and take away from its relaxing
and recreational character. Indeed,
photographs of the proposed site
depict that the tower and its enclosure
would encroach on a grassy
area near an existing baseball field
and batting cages.
Moreover, the court noted " residents
expressed how the project
would be a visual eyesore standing
almost twice as tall as the
light posts nearby. " In particular,
the court found residents had described
the project as " inconsistent
with the character of the recreational
complex " and a " hideous
structure in one of the nicer areas
of our town. "
In the opinion of the court, the
record indicated
" the residents'
aesthetic objections " were " specific
to the tower being placed in a recreational
park and sports complex
frequented by families and their
kids, not simply an objection to the
aesthetics of cell towers generally. "
The federal district court held
the Town Board was " entitled to
make an aesthetic judgment as
long as the judgment is grounded
in the specifics of the case " and the
Town's judgment " did not evince
merely an aesthetic opposition to
cell-phone towers in general. " In
this particular instance, the court
found the Town Board could reasonably
find this cell tower project
" should be in an industrial or
a commercial area, not on a kid's
park. " Moreover, the court noted
Code Section 27.274 contained " a
broad mandate for the City to consider
the public's general welfare. "
According to the court, " the concept
of the public welfare is broad
and inclusive. "
In determining whether " the
tower would be consistent with
the public's general welfare, "
the federal district court further
held " the City Council was within
its authority under Code Section
27.274 to weigh the benefit
of merely improving the existing
coverage against
the negative
aesthetic impact the tower
would cause. " In this particular
instance, the court also found the
City Council had noted " a lack
of data supplied by the proposed
carrier to demonstrate that there
is an actual gap in service making
a tower in this area necessary. "
Having found " more than a scintilla
of evidence " of " the kind a
reasonable mind might accept as
adequate to support a conclusion, "
the federal district court concluded
" Defendants' denial of the CUP
application under Code Section
8C.2.b.iii " had " adequate support
in the record. "
Further, in the opinion of the
court, " the City Council's finding
that the proposed use is not compatible
with the existing use of the
park " was " also supported by sufficient
evidence " :
The City Council heard and
received letters from residents informing
them of how the proposed
cell tower and enclosure would
affect the park's adjacent uses -
to wit, the nearby sports facilities,
including the baseball field and
batting cages.
Adjacent Uses
Plaintiff had also argued the evidence
before the City Council did
not meet the Code's definition of
" adjacent. " The federal district
court disagreed. As cited by the
court, the Code's definition of " adjacent "
included " two or more objects
that lie near or close to each
other. " Code Section 27.31.
In this case, the court noted:
" Photographs of the proposed
site show that the cell tower
would lie near or close to the
sports complex's baseball field,
batting cages, pitching mound,
and bleachers, " which would
" qualify as adjacent uses under
the Code Section 27.31. "
Accordingly, the court found the
record contained " ample support
that the 110-foot cell tower and
its equipment enclosure would be
contrary to the public's general
welfare and materially detrimental
to adjacent uses because it would
significantly reduce the available
practice space for baseball and
football activities. " As described
by the court, one of the youth
sport coaches had explained the
following to the City Council:
(1)
[T]here are very limited
spaces in Brawley for youth baseball
and football activities; (2) the
tower would take away space players
use to warm-up and practice;
and (3) would eliminate an area
where younger kids play while
their older siblings are practicing
or playing games.
Based upon this evidence, the fedPARK
S ANDRECRE AT ION . OR G | FEBR U AR Y 2 0 2 4 | Parks & Recreation
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February 2024 - Parks and Recreation

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