February 2024 - Parks and Recreation - 30

LAW REVIEW
eral district court concluded " the
Defendants' denial of the CUP application
under Code § 27.274.1.b
finds adequate support in the record. "
In so doing, the court noted
Code Section 27.274.1.b required
" a finding that the proposed use will
not adversely affect or be materially
detrimental to the adjacent uses. "
In the opinion of the court,
Plaintiff had not satisfied " the
standard required to show
discrimination under the TCA. "
Pretext for Application
Denial?
Plaintiff had also argued: " Defendants'
reasons for denial are pretext
for their capitulation to the NIMBY
['Not in My Back Yard'] ire of
citizens. " According to Plaintiff,
pretext was " most evident from the
fact that the City cooperated with
Vertical Bridge to choose the location
for the Proposed Tower and
approved the Lease Agreement. "
The federal district court rejected
this argument.
In the opinion of the court, " the
City's business decision to give Vertical
Bridge an option to lease a portion
of Wiest Field Park " was " separate
and distinct from the zoning
and land use decision it made, in
its capacity as a regulator. " Accordingly,
the court held: " Nothing in
the Agreement bypassed necessary
zoning
procedures or prevented
the Planning Commission or City
Council from exercising their zoning
adjudication role. "
In the opinion of the federal district
court, " Defendants' decision
was authorized by and grounded in
the Code, consistent with the Code,
and the residents' opposition were
specific to the cell tower's placement
at Wiest Field Park " :
Because Defendants' decision
was authorized by applicable local
regulations and supported by
a reasonable amount of evidence,
the Court finds the substantial evidence
standard met, and thus upholds
Defendants' decision to deny
Vertical Bridge's CUP application.
Accordingly, the federal district
court granted " Defendants' motion
for summary judgment on the substantial
evidence claim. "
Unreasonable
Discrimination?
Vertical Bridge had also claimed
" Defendants violated the TCA because
they unreasonably discriminated
between Vertical Bridge and
other tower developers in the City. "
As cited by the
federal
court, the TCA provided, in pertinent
part, as follows:
[T]he regulation of the placement,
construction, and modification
of personal wireless service
facilities by any State or local
government
or instrumentality
thereof shall not unreasonably discriminate
among providers of
functionally equivalent services. 47
U.S.C. § 332(c)(7)(B)(i)(I).
As characterized by the court,
this provision " explicitly contemplates
that
some
discrimination
among providers of functionally
equivalent services is allowed " :
Any discrimination need only
be reasonable. To establish unreasonable
discrimination, a provider
" must show that they have been
treated differently from other providers
whose facilities are similarly
situated in terms of the structure,
30 Parks & Recreation | FEBR U AR Y 2 0 2 4 | PARK S ANDRECRE AT ION . OR G
placement or cumulative impact as
the facilities in question. "
To support the claim of unreasonable
discrimination, Plaintiff had
argued " Defendants have approved
towers at much taller heights in locations
that do not have adequate
screening for the tower, and close
to residential areas. " In particular,
Plaintiff had referenced another
" 180-foot tower immediately adjacent
to residential properties " that
the City had previously approved
as proof of discrimination. The
federal district court rejected this
argument.
In the opinion
of the
Plaintiff had not satisfied
court,
" the
standard required to show discrimination
under the TCA. " Specifically,
the court found Plaintiff had
not presented evidence to establish
the following requirement:
[Plaintiff's] identified towers
district
are " similarly situated " to the cell
tower in question in terms of its
" structure, placement or cumulative
impact " on Wiest Field Park
- a recreational park and sports
complex daily frequented by the
community's youth for sports activities
on a nearly year-round basis.
The court acknowledged Plaintiff
had presented evidence of an
arguably " similarly situated " cell
tower, which stood " far above the
height
of the adjacent residential
structures and is immediately
adjacent to a park used as a playground. "
The federal district court,
however, noted the placement of
Plaintiff's supposedly " similarly
situated "
tower was " located
across the street from and does not
take up any space in the park playground. "
Since this cell tower did
not " encroach on or reduce park
space available for the communi
February 2024 - Parks and Recreation

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