Legal Precedence on Cell Tower Application Denials
You may hear many leaders say cell tower applications always eventually get approved, but that is simply not accurate.
The following are examples of cases and final rulings by courts, some appellate, demonstrating the large variety of permitted
logic for denying a cell tower application. Keep in mind that all cases are somewhat unique and although the contextual justifications
may be general a specific case's justification for cell tower application denial may be specific to jurisdictional laws and regulations.
That said, most of the case law presented on this page is general enough to apply to all jurisdictions after minimal review of state and local law and ordinances
applicable to telecommunications towers, land use, and land development.
Minnesota Towers, Inc. v. City of Duluth, Civil No. 04-5068 (DWF/RLE) (D. Minn. Jul. 1, 2005)
- “Plaintiffs assert that the City's denial of its request is not supported by 'substantial evidence' as required by the TCA.
The City Council made the following findings with regard to its reason for denial of the special use permit application:
- Property values in the immediate area will be significantly diminished by the presence of a 195-foot tower.
- This denial does not have the effect of prohibiting personal wireless services in the area as there is already adequate
cellular phone coverage in the area.
- The height of the tower in its proximity to neighboring homes creates a hazard from blowing snow and ice as well as
potential dangers from the proximity of the tower itself, should it fail structurally.
- The tower height requested is not the "least intrusive means" of achieving services in the area.
- Other potential tower sites have not been evaluated.
- The 195-foot tower does not blend into the surrounding area, and the plans submitted do not show any attempt to alter its appearance to more appropriately match the character of the surroundings.”
- “the Court finds that the City's findings for denying the special use permit, namely, the findings regarding diminished property values and aesthetic impact, were supported by substantial evidence on the record.”
- “the legitimate lay opinions of neighboring landowners are valid evidence of a diminishment of market values.”
- “although the City may not consider the environmental effects of radio frequency emissions when deciding whether to allow placement of a telecommunications tower (47 U.S.C. § 332(c)(7)(B)(iv)), this does not prevent the marketplace from considering health concerns as a factor in assessing the potential diminished market value of property near a 195-foot tower.”
- “Based on the information that was before the City Council, the Court finds that the City Council's determination that property values would be significantly diminished by the presence of a 195-foot tower was based on substantial evidence on the record.
- "In addition to the petition signed by the 72 neighboring residents as to the unattractiveness of the proposed tower, the record also contains sufficient photographic evidence of the proposed tower's visual height impact. (AR 000310.) Considering the unsightly visual impact of a 195-foot structure standing well above the treeline in a wooded residential neighborhood, the Court finds that substantial evidence existed on the record to support the City Council's aesthetic findings.”
- “In addition, the Court finds that although Plaintiffs considered other alternatives to the proposed site, 'these alternatives were not pursued such that [Plaintiffs] thoroughly investigated the viability of other alternatives.'”
- “The provider bears the heavy burden to demonstrate 'not just that this application has been rejected but that further reasonable efforts are so likely to be fruitless that it is a waste of time even to try.'”
- “Considering the Court's determination that Plaintiffs did not thoroughly investigate other viable alternatives, the City's denial does not prohibit or have the effect of prohibiting personal wireless services in violation of 47 U.S.C. § 332(c)(7)(B)(i)(II).”
- “The City determined that the proposed tower did not blend into the proposed area. See Duluth Zoning Ordinances § 50.35(ff)(8). Moreover, the City's determination regarding the visual impact was, in effect, a determination that the proposed tower did not have a 'reasonable height limitation.'”
- “Plaintiffs' Motion for Partial Summary Judgment (Doc. No. 12) is DENIED.”
Eco-Site, LLC v. Town of Cedarburg, 2019 WI App 42
- “Because the Town proceeded on a correct theory of law when it determined that the tower was incompatible with the uses, values, and enjoyment of the other property in the area under its ordinance, and this decision was supported by substantial evidence, we affirm.”
- “Our appellate certiorari review looks only at the Town’s decision, not the circuit court’s. Lake Delavan Prop. Co. v. City of Delavan, 2014 WI App 35, ¶5, 353 Wis. 2d 173, 844 N.W.2d 632. The scope of our review is confined to four areas: (1) whether the Town kept within its jurisdiction; (2) whether the Town acted according to law; (3) whether the Town’s action was arbitrary, oppressive, or unreasonable, and represented its will, and not its judgment; and (4) whether the evidence was such that the Town might reasonably make the order or determination in question.”
- “The Town denied the application because the tower was not “[c]ompatible with adjacent land” and it would substantially impair or diminish the “uses, values and enjoyment of other Town property in the neighborhood.” See TOWN OF CEDARBURG, WIS., CODE § 320-51A(2). We see no error by the Town in denying the application on this point. The Town zoned the area agricultural and the neighboring area residential, all in an effort to keep this area rustic, rural, and populated.5 This intended use and lifestyle are clearly at odds with, and would be thwarted by, the introduction of a 120-foot tall telecommunications tower with its substantial related structure and fencing . The Town proceeded on a correct theory of law by relying on the applicable ordinance and applying it properly.”
- “The visual impact of the tower is different than the broader impact of the tower on the uses and the lifestyle for which the neighborhood is zoned. The visual impact of the tower is also different than the economic impact on the property values—a concrete impact on the neighbors’ pocketbooks and the Town’s property tax revenue. The impacts of these different “concerns” are not one and the same. An unsightly tower could certainly be placed in a location that would be compatible with the neighborhood uses and values due to the particular site, and vice versa, as the Town determined here.”
- “Moreover, there were concerns expressed, by more than one citizen, about how such a discordant and large structure will diminish property values, which was a reason noted by Wickert.6 That concern fairly relates to the compatibility of the tower and the residents’ “uses, values and enjoyment” of their land.”
- “In sum, as noted, the zoning ordinance for CUPs has six requirements and at least one of them is missing (the compatibility requirement), such that the Town’s denial of the application was justified.”
APC Towers III, LLC v. The City of Orlando, Florida et al, City of Orlando, Florida Quasi-Judicial Hearing, 2021
- “Considering height, bulk and scale, the City finds that a 130 feet cell tower with 64 feet of separation from an adjacent property is just as incompatible to surrounding land uses as a 113 feet cell tower with 52 feet of separation. The evidence presented on the issue of compatibility at both the MPB Hearing and the hearing before the Hearing Officer was ample and constitutes substantial competent evidence to support the City’s decision. Therefore, pursuant to §65.285, City Code, the 2019 Application and the application as modified by the Hearing Officer, are denied.”
- “In order to establish effective prohibition, a cellular provider bears a heavy burden to prove that a significant gap in service exists and to make a showing of the infeasibility of alternatives. Wireless Towers, LLC v. St. Johns County, Fla., 690 F.Sup. 2nd 1282 (M.D. Fla. 2010). As the Hearing Officer stated in his Recommended Order (Paragraph 104), there are no bright line rules for determining whether a significant gap in service exists, citing T-Mobile S., LLC v. City of Milton, 2015 WL13687970 (N.D.Ga.,November 2, 2015). Based on the testimony presented by T-Mobile and also based on the Hearing Officer's finding that there were no conflicting studies or expert witness testimony, the Hearing Officer determined that T-Mobile possessed a significant gap in coverage in the Vista Lakes area. In doing so, the Hearing Officer does not consider as persuasive, the testimony of various individuals that their T-Mobile service in the “gap” area was satisfactory. The City disagrees, and finds that such testimony, along with the testimony of T-Mobile's own expert that cell service existed in the area, just not at an optimal level, constituted substantial evidence to support a determination that T-Mobile did not possess a significant gap in service.”
- “Considering the harshness of forcing a local government to approve a cell tower application that violates its land use codes, the threshold for showing a significant gap must be higher.”
- “the City finds substantial evidence to support a determination that T-Mobile did not undertake a reasonable and good faith inquiry of alternatives. The reason given by T-Mobile's witness, for the failure to investigate these fully developed sites is his assumption that any available area was occupied by parking spaces or stormwater retention. However, it’s not unheard of for a property owner to have too much parking and be willing to give up some spaces for a long-term cell tower lease or to have available space for a cell tower in a stormwater retention area. In any event, a local government should not be forced to accept a cell tower location that violates its land use code, without requiring the cell provider to fully investigate alternative sites, whether fully developed or not. “
- “Based on the foregoing findings of fact and conclusions of law, it is hereby Ordered by the City of Orlando, that the Recommended Order is Rejected and that MPB’s Recommended Denial of the Application in Case No. CUP2019-119 is Approved . This Order also applies to Deny the Modified Application, as that term is defined by the Hearing Officer in the Recommended Order.”
North American Towers LLC v. City of Lakeland, 8:20-cv-3006-VMC-AAS (M.D. Fla. Jul. 13, 2021)
- “Maio then described the size of the property, its proximity to other homes, and the scale of the proposed structure. (Id. at 4:21-5:25).”
- “Maio presented the Commission with photo simulations of the cell tower from various perspectives, noting it would “certainly be visible above the tree canopy, but the tree canopy does serve to significantly reduce the overall height of the tower.” (Id. at 6:23-7:6).”
- “Yet another attendee opposing the ordinances referred to the cell tower’s “proximity to our homes, the risk of property value loss, neighborhood aesthetics and most importantly implied health concerns.”
- “The City Attorney advised the Commissioners that they could consider “aesthetics, compatibility, and property values.” (Id. At 52:25-53:6).”
- “Commissioner McLeod noted his belief that “this [is not] the best use for this property” considering its “unique location[,] . . . with Lake Hunter to the . . . north and Dixieland Historic District and with Lakeland Christian [S]chool to the south.” (Id. at 60:10-15). He also cited to property values. (Id. at 60:20-21). The Commissioners then voted on the motion to approve the ordinances, which failed to pass 3-2. (Id. at 67:14-18).”
- “Shortly after the hearing, on November 19, 2020, the City Attorney formalized the Commission’s reasoning for denying the applications in writing on the following grounds:
- Based on the testimony and photographs presented by residents of surrounding neighborhoods, as well as the staff report, maps, testimony and other evidence presented by the City’s planning staff, the proposed Cell Tower site is located within close proximity of a residential neighborhood, with the closest residential structure being approximately 360 feet of the Cell Tower site. Maps presented by City planning staff also show the close proximity of the Cell Tower to the Dixieland Historic District. Visual simulations of the Cell Tower submitted into the record illustrate the modern and industrial appearance of the Cell Tower.
The proximity of a cell tower of this nature to surrounding residential and historic land uses creates significant and adverse compatibility issues and would diminish the aesthetic enjoyment of the area by the residents of the affected area.
- It is readily apparent from aerial maps of the subject site and visual simulations of the Cell Tower submitted into the record that the proposed 150-foot Cell Tower would be clearly visible from residences surrounding Lake Hunter and by citizens enjoying the recreational opportunities afforded by Lake Hunter. The City Commission was presented with testimony and evidence that several existing cell towers are already visible from Lake Hunter. Approval of the proposed Cell Tower would add an unacceptable level of visual clutter to the viewshed from Lake Hunter.
- The current zoning for the Property is multi- family residential. Multi-family residential development on the Property is compatible with the residential land uses surrounding the Property, while the proposed Cell Tower is not."
- ““[T]o determine whether a locality’s denial was supported by substantial evidence, . . . courts must be able to identify the reason or reasons why the locality denied the application.” T-Mobile, 574 U.S. at 300.” locality denied the application.” T-Mobile, 574 U.S. at 300.
[T]hese reasons need not be elaborate or even sophisticated, but . . . simply clear enough to enable judicial review.” Id. at 302.”
- "The City’s Development Code provides the following factors for the Commission to consider in weighing whether to approve the construction of a cell tower as a conditional use:
- The height and visual obtrusiveness of the facility;
- The degree of visibility from the public view;
- The proximity of the facility to residential structures and residential district boundaries;
- The character of the uses and structures on adjacent and nearby properties;
- The character of the land, including topography and tree coverage;
- The design of the facility with particular reference to design characteristics that have the effect of reducing or eliminating visual obtrusiveness;
- The degree to which the facility reduces the proliferation of visually obtrusive structures through co-location; and
- Competent evidence that reasonable alternatives to the proposed conditional use do not exist."
- “Additionally, “[t]he party seeking to overturn the governing body’s decision bears the burden of showing that the decision is not supported by substantial evidence.” PI Telecom, 104 F. Supp. 3d at 1342 (citing Am. Tower LP v. City of Huntsville, 295 F.3d 1203, 1207 (11th Cir. 2002)).”
- “Because the Court has found that the City relied on valid reasons, in writing, and supported by substantial evidence, in denying North American’s applications to construct a cell tower on the Houghton Property, the City’s Motion is granted. See PI Telecom, 104 F. Supp. 3d at 1350 (finding that the Federal Telecommunications Act was not violated by the City’s denial of a cell tower application where there was substantial evidence to support such denial on the basis of aesthetics).”
Since the Telecommunications Act is a federal regulation, these cases hold legal precedent nationwide, holding significant persuasiveness and
influence on legal matters in the State of Florida.
Relevant FCC Regulation
A note relevant on a provider using cellular coverage rationale:
As a matter of fact, cell tower companies and cell service providers are not entitled to "perfect" (100%) coverage.
The FCC regulations explicitly permit such small gaps or "dead spots" (47 C.F.R.
§22.99 and 22.911(b)).
47 CFR § 22.911 - Cellular geographic service area.
- "(b) Alternative CGSA determination (non-PSD). If a carrier believes that the method described in paragraph (a) of this section produces a CGSA that
departs significantly (±20% in the service area of any cell) from the geographic area where reliable cellular service is actually provided, the carrier may
submit, as an exhibit to an application for modification of the CGSA using FCC Form 601, a depiction of what the carrier believes the CGSA should be.
Such submissions must be accompanied by one or more supporting propagation studies using methods appropriate for the 800–900 MHz frequency range,
including all supporting data and calculations, and/or by extensive field strength measurement data. For the purpose of such submissions, cellular
service is considered to be provided in all areas, including “dead spots”, between the transmitter location and the locus of points where the
predicted or measured median field strength finally drops to 32 dBµV/m (i.e. does not exceed 32 dBµV/m further out). If, after consideration of
such submissions, the FCC finds that adjustment to a CGSA is warranted, the FCC may grant the application.
Therefore, a provider citing incomplete cellular coverage in an area is not justification enough to approve a cell tower or overturn
a cell tower application denial."
47 CFR § 22.99 - Definitions.
- "Dead spots. Small areas within a service area where the field strength is lower than the minimum level for reliable service. Service within dead spots is presumed."
Another Valuable Reference
In 2010, Miller, Esquire, and Sharon Cuddy Somers, Esquire, authored a comprehensive document for the NHMA Lecture Series.
Updated for a Workshop in 2014, this document provides valuable recommendations for effectively handling cell tower applications.
Titled
'Wireless Facilities: Managing the Approval Process to Protect Municipal Interests and Comply with State and Federal Law,'
it serves as a guiding resource.
Some relevant content includes:
- "For a telecommunications provider to argue that a permit denial is impermissible because there are no alternative sites, it must develop a record demonstrating that it has made a full effort to evaluate the other available alternatives and that the alternatives are not feasible to serve its customers. Such a showing may be sufficient to support an allegation that the zoning board's permit denial effectively prohibits personal wireless services in the area." Southwestern Bell, 244 F. 3d at 63; Accord, Town of Pelham, 313 F. 3d at 635."
- “As noted in other cases for this circuit, it is the applicant's burden to show that there are no alternative sites that would solve the coverage problem. Id. at 50 (citing Town of Pelham, 313 F. 3d at 635). Importantly, the Court has noted that ''the carrier could not insist on one, ideal way to provide service; the TCA required it to consider alternatives more palatable to local zoning authorities." Id. at 50 (citing Town of Amherst, 173 F. 3d at 14-15)."
- "When evaluating such claims 'we are in the realm of trade-offs' between the carrier's desire to efficiently provide quality service to customers and local government's primary authority to regulate land use. Town of Amherst, 173 F. 3d at 15. A carrier 'may think ... its solution is best' but 'subject to an outer limit, such choices are just what Congress reserved to the town' in §332 (c) (7). Id." City of Cranston, 586 F. 3d at 51”"
- "Ultimately, to prevail on an "effective prohibition" claim, applicants need to show that it is not possible to satisfy the criteria of the land use board, that any application for an alternative arrangement would be rejected and "so likely to be fruitless that is a waste of time even to try." Town of Amherst, 173 F. 3d at 14. Thus, applicants need to demonstrate that no other locations are feasible, because they are either unavailable for use, or technically would not meet the requirements of the applicant. As noted above, this requirement works in tandem with variance criteria involving hardship in the case of an application to the ZBA and with planning board criteria for site review applications."