T-Mobile Central, LLC v. Unified Government Wyandotte County Ks

FILED
United States Court of Appeals
Tenth Circuit

November 17, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

T-MOBILE CENTRAL, LLC, as
successor in interest to
VOICESTREAM KANSAS CITY,
INC., doing business as T-Mobile,

Plaintiff - Appellee,

v. No. 07-3332

UNIFIED GOVERNMENT OF
WYANDOTTE COUNTY, KANSAS
CITY, KANSAS,

Defendant - Appellant,

-------------------------

PCIA,

Amicus Curiae.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 06-CV-02313-DJW)

Cathy J. Dean of Polsinelli, Shalton, Flanigan, Suelthaus, P.C., Kansas City,
Missouri, for Plaintiff - Appellee.

Patrick Waters of Unified Government of Wyandotte County/Kansas City Kansas
Legal Department, Kansas City, Kansas, for Defendant - Appellant.

Karl J. Nelson and Jennifer A. DeRose of Saul, Ewing, L.L.P, Baltimore,
Maryland, for Amicus Curiae.
Before KELLY, BALDOCK, and O’BRIEN, Circuit Judges.

KELLY, Circuit Judge.

T-Mobile, LLC, (“T-Mobile”) brought this action challenging the decision

of the Unified Government of Wyandotte County/Kansas City, Kansas (“Unified

Government”) to deny T-Mobile’s application for a Special Use Permit to

construct a wireless telecommunications facility. T-Mobile sought declaratory,

injunctive, and mandamus relief. The parties filed cross-motions for summary

judgment and the district court 1 granted T-Mobile’s motion. In a memorandum

and order, the court held that the Unified Government’s denial of the application

violated the Federal Telecommunications Act of 1996 “because the denial was not

supported by substantial evidence and has the effect of prohibiting the provision

of personal wireless services.” T-Mobile Central, LLC v. Unified Government of

Wyandotte County/Kansas City, Kansas, 528 F. Supp. 2d 1128, 1172 (D. Kan.

2007). The court entered its judgment declaring the above and granting

injunctive relief by ordering the Unified Government to approve T-Mobile’s

application. The Unified Government now appeals. Our jurisdiction arises under

28 U.S.C. §§ 636(c)(3) and 1291, and we affirm solely on the basis that the

Board’s decision was not supported by substantial evidence. We do not reach the

1
By consent of the parties, the action was heard before a magistrate judge.
28 U.S.C. § 636(c)(1).
issue of whether the decision had the effect of prohibiting the provision of

personal wireless services.

Background

A. The Permit Application Requirements

The Kansas City, Kansas, Code of Ordinances (“Code”) establishes a

permitting procedure whereby individuals or entities may seek to have the local

governing body authorize, through the issuance of Special Use Permits, “certain

uses and situations with characteristics which may not blend or harmonize with

the uses in the standard zoning districts.” Kansas City, Kan., Code of Ordinances

§ 27-1251. Section 27-1252 lists “[t]elecommunication antennas and towers” as

such an “allowable special use.” Id. at § 27-1252. Telecommunication antennas

and towers which meet certain specified minimum criteria 2 “may be permitted

2
The relevant minimum criteria set forth in Section 27-1252 are as follows:

a. All towers more than 100' tall shall be designed to
accommodate at least three communication carriers.
b. All towers shall be a distance from any off-site main residential
structure at least equal to twice the height of the tower.
c. Landscaping of tower as set out under 27-1349(a)(5).
d. No tower shall be located within a distance of one-third of the height
of the tower from any land without the landowner’s written consent.
e. No tower shall be located within a distance equal to the height of the
tower from any off-site main residential structure.

Code § 27-1252(a)(32). The parties do not contest that T-Mobile’s proposal met
(continued...)

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under special use permit in any zoning district except as specifically limited

herein.” Id. at § 27-1252(a).

The Code also establishes the considerations and factors which the

governing body should take into consideration in granting Special Use Permits.

Section 27-260 provides that the decisions and recommendations of the governing

body should be based on the following general considerations: “(1) conformance

with these regulations, the comprehensive plan, and other adopted plans, design

guidelines and policies; (2) recommendations of staff and recommending bodies;

(3) input of reviewing agencies and departments; (4) public comment and

testimony received at the hearing; and (5) effects of the proposal on the

neighborhood, area, and community-at-large.” Id. at § 27-260(a). With regard to

Special Use Permits in particular, Section 27-279 states that approval or denial of

applications must be based on the following factors:

(a) The character of the neighborhood.
(b) Whether the proposed use will increase the amount of vehicular
traffic to the point where it exceeds the capacity of the street network
to accommodate it.
(c) Where applicable, hours of operation.
(d) Whether the proposed use is reasonably necessary for the
convenience and welfare of the public and will not substantially or
permanently injure the appropriate use, visual quality, or
marketability of adjoining property.
(e) Whether the noise, vibration, dust, or illumination that would
normally be associated with such use is of such duration and

2
(...continued)
these minimum criteria.

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 intensity as to create problems for nearby property.
(f) Whether the proposed use would pollute the air, land or water.
(g) Compatibility with existing and proposed land uses in the
surrounding area.
(h) Whether the use would damage or destroy an irreplaceable natural
resource.
(i) The relative gain to the public health, safety, morals, and welfare as
compared to the hardship imposed upon the individual landowner or
landowners.
(j) The applicant’s ability to maintain the use in an “as proposed”
condition.
(k) Whether the proposed use would result in overcrowding of land or
cause an undue concentration of population.
(l) In general, commercial and industrial Special Use Permits should not
be granted adjacent to residential districts.

T-Mobile, 528 F. Supp. 2d at 1148-49 (citing Code §§ 27-279(f)(4)(b), 27-

279(f)(5)). Furthermore, the Code states that in evaluating applications for the

siting of proposed telecommunication facilities, “commercial districts are

generally preferred over those in residential districts as are sites in less restrictive

residential or commercial districts generally preferred over those in more

restrictive districts.” Code § 27-1252(a)(32)(h).

B. T-Mobile’s Special Use Permit Application

On December 9, 2005, T-Mobile filed an application for a Special Use

Permit, requesting permission to build a 120-foot-tall telecommunications tower

to provide adequate residential and vehicular cell phone coverage in the vicinity

of the proposed site. The application identified other structures (including a

water tower and an existing monopole at a high school) within a mile of the site

that could be used as alternatives to the proposed site, but rejected each of them

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as inadequate. The application also included propagation studies showing

existing coverage as well as anticipated coverage with the new tower.

The United Government Planning Department Staff (“Staff”) advised

rejecting the application. The Staff Report (“Report”), issued on March 13, 2006,

considered numerous factors, several having particular relevance here. The

Report noted, in considering the character of the neighborhood and the use of the

property in question, that the neighborhood was “somewhat commercial in nature”

and that the proposed site (which was zoned residential) was owned by and used

as a church. The Report also considered the proposal’s compatibility with and

detrimental effect on nearby property, stating that the tower would be the “tallest

structure in the area” and “may be considered unsightly by many.” Furthermore,

the Report, in considering whether the proposed use would be reasonably

necessary for the welfare of the public, stated that the Staff doubted that there

was a sufficient deficiency in cell phone performance to require a new tower.

Following the United Government Planning Commission’s (“Commission”)

decision to postpone action on the application pending further information from

T-Mobile, T-Mobile submitted new propagation maps and the results of a drive

test. T-Mobile stated that the drive test confirmed the existence of a significant

gap in cell phone coverage, and, therefore, the need for the proposed tower, while

the Staff updated its report by stating that the test showed adequate service.

The application was then taken up for consideration by the Commission and

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the Unified Government Board of Commissioners (“Board”). The Commission

addressed the T-Mobile application on April 10, 2006. Following testimony by

T-Mobile and the Planning Director, the Commission recommended rejecting the

T-Mobile application. The Board then took up the application for final

consideration on May 25, 2006, hearing more testimony from both T-Mobile and

the Planning Director. The Planning Director testified that T-Mobile’s drive test

showed no dropped calls. In turn, T-Mobile explained that the drive test “was not

a test of dropped calls in the area,” but rather simply “confirmed in the field what

our [propagation] maps already told us, that we had a hole in coverage in this

particular area.” T-Mobile introduced evidence from tests showing over 1,800

dropped calls in the vicinity during one week, and over 2,700 dropped calls

during a different week. The Planning Director responded by stating that T-

Mobile had 280 minutes of use per dropped call in the area, which he thought was

“pretty good.” In response, T-Mobile stressed that its dropped-call numbers fell

below the industry average of 310 minutes of use per dropped call. At no time

during the hearings did neighbors oppose the proposal on the basis of its

aesthetics.

The Board denied the application, citing three primary reasons. First, the

Board concluded that T-Mobile had failed to show that denial of the application

would “prohibit the provision of personal wireless services.” According to the

Board, “[d]rive studies indicated that there were no dropped calls in the area

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surveyed in stark contrast to studies submitted for other applications for cellular

towers. Indicating zero or limited dropped calls seems to indicate this tower is

not necessary for the convenience of the public.” Second, the Board stated that

the proposed 120-foot tower was not the “least intrusive means of fulfilling a gap,

if any exists,” in T-Mobile’s services. The Board cited the Code’s preference for

commercial districts over residential districts, the indirectness of the relation

between the proposed tower and the existing use as a church, and the aesthetic

impact of the proposed tower. Third, the Board stated that the Commission had

considered the Golden factors (factors that Kansas courts have recommended that

cities review when deciding whether to grant special use permits) and had decided

to reject T-Mobile’s application.

Discussion

We review the grant of a motion for summary judgment de novo, applying

the same standard as the district court. Timmerman v. U.S. Bank, N.A., 483 F.3d

1106, 1112 (10th Cir. 2007). Summary judgment is appropriate if “there is no

genuine issue as to any material fact and . . . the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(c). We examine “‘the record and all

reasonable inferences that might be drawn from it in the light most favorable to

the non-moving party’.” Antonio v. Sygma Network, 458 F.3d 1177, 1181 (10th

Cir. 2006) (quoting Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193,

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1196 (10th Cir. 2005)).

A. Overview of Applicable Law

The Federal Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 332,

limits the decision-making authority of local government bodies regarding the

placement of wireless communications facilities. While Congress expressly

preserved local zoning authority over the construction of personal wireless service

facilities when it enacted the TCA, see U.S. Cellular Tel. of Greater Tulsa, LLC

v. City of Broken Arrow, Okla., 340 F.3d 1122, 1132 (10th Cir. 2003), Congress

adopted the TCA in order to promote competition and higher quality in

telecommunications services and to encourage the rapid deployment of new

telecommunications technologies, City of Rancho Palos Verdes v. Abrams, 544

U.S. 113, 115 (2005). The TCA furthered these goals by reducing the

impediments that local governments could impose to defeat or delay the

installation of wireless communications facilities such as cell phone towers, id.,

and by protecting against “irrational or substanceless decisions by local

authorities.” Sw. Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 57 (1st Cir. 2001).

To that end, Congress amended the Communications Act of 1934 by

placing six restrictions on the authority of local governments in regulating the

placement, construction, and modification of telecommunications facilities. 47

U.S.C. § 332(c)(7)(B)(i)-(v). Two of these provisions have potential relevance in

this case. First, the TCA requires that any decision by a local government “to

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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). Second, the TCA provides that local

governments must not make decisions that “prohibit or have the effect of

prohibiting the provision of personal wireless services.” 47 U.S.C. §

332(c)(7)(B)(i)(II). Because the Board’s decision was not supported by

substantial evidence, we need not reach the second of these provisions to

conclude that the Board violated the TCA. See MetroPCS, Inc. v. City and

County of San Francisco, 400 F.3d 715, 724 (9th Cir. 2005) (“If a zoning board’s

decision, reached under its own rules, is not supported by substantial evidence,

then we need not consider the application of the anti-prohibition or anti-

discrimination prongs of the statute.”).

B. The Board’s Decision Is Not Supported by Substantial Evidence

Under 47 U.S.C. § 332(c)(7)(B)(iii), “[a]ny 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.” Judicial review under the

substantial evidence standard is “quite narrow.” Broken Arrow, 340 F.3d at 1133;

Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1551 (10th Cir. 1996). While

deferential, however, it is not a “rubber stamp.” Broken Arrow, 340 F.3d at 1133

(quoting Sw. Bell Mobile Sys., 244 F.3d at 59). “‘Substantial evidence is such

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evidence that a reasonable mind might accept as adequate to support the

conclusion reached by the [decisionmaker]. Substantial evidence requires more

than a scintilla but less than a preponderance.’” Broken Arrow, 340 F.3d at 1133

(quoting Sandoval v. Aetna Life & Casualty Ins. Co., 967 F.2d 377, 382 (10th

Cir. 1992)) (alteration in original). “‘The possibility of drawing two competing

conclusions from the evidence does not prevent [a finding of] substantial

evidence’.” Id. (quoting Curtis, Inc. v. I.C.C., 662 F.2d 680, 685 (10th Cir.

1981)). While a reviewing court has no power to substitute its own conclusions

for those of the fact-finder, Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d

490, 494 (2d Cir. 1999), “if the record as a whole contains conflicting evidence,

the fact-finder must adequately explain its reasons for rejecting or discrediting

competent evidence,” Cellular Tel. Co. v. Zoning Bd. of Adjustment of the

Borough of Ho-Ho-Kus, 197 F.3d 64, 71-72 (3d Cir. 1999).

Substantial evidence review does not create a substantive federal limitation

on local land use regulatory power. As the Ninth Circuit has stated, “the

substantial evidence inquiry does not require incorporation of the substantive

federal standards imposed by the TCA, but instead requires a determination

whether the zoning decision at issue is supported by substantial evidence in the

context of applicable state and local law.” MetroPCS, Inc., 400 F.3d at 723-24.

(emphasis in the original). Our substantial evidence review is “‘directed to those

rulings that the Board is expected to make under state law and local ordinance in

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deciding on variances, special exceptions and the like.’” Broken Arrow, 340 F.3d

at 1133 (quoting Sw. Bell Mobile Sys., 244 F.3d at 58). Accordingly, this Court

must look to the requirements set forth in the local zoning code to determine the

substantive criteria to be applied in determining whether substantial evidence

existed to support the Board’s decision. Id.; see also MetroPCS, Inc., 400 F.3d at

723-24; U.S. Cellular Corp. v. City of Wichita Falls, Tex., 364 F.3d 250, 256 (5th

Cir. 2004).

Here, the Board’s written decision offered three reasons for denying T-

Mobile’s application. The central issue is whether each of these reasons is

supported by substantial evidence in the record.

1. Reason One: Failure to Show Prohibition of Personal Wireless
Services

a. Absence of Support in Local Law for the “Failure to
Show Prohibition of Personal Wireless Services”
Criterion

The first reason, set forth in Paragraph 1 of the written denial, that the

Board asserted to support its decision was that T-Mobile had “failed to show that

the denial of the Special Use Permit [would] prohibit the provision of personal

wireless services.” However, the Board erred in requiring T-Mobile to

demonstrate that denying the application would have the effect of prohibiting the

provision of wireless services. No such criterion appeared in the Code at the time

of T-Mobile’s application. While the Code provided that approval or denial of

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Special Use Permits should be based upon consideration of certain factors

enumerated in Section 27-279(f)(5) and set forth specific minimum criteria for

telecommunication facilities in Section 27-1252(a)(32), it did not require

telecommunication providers to demonstrate prohibition of personal wireless

services.

By inventing a criterion for which the applicable local ordinances did not

provide, the Board failed to act on the basis of substantial evidence. “In order

[to] be supported by substantial evidence, the proffered reasons must comport

with the objective criteria in existence (i.e. zoning regulations, permit application

policies, etc.). Governing bodies cannot simply arbitrarily invent new criteria in

order to reject an application.” Virginia Metronet, Inc. v. Bd. of Supervisors of

James City County., Va., 984 F. Supp. 966, 974 n.14 (E.D. Va. 1998); see New

Par v. City of Saginaw, 301 F.3d 390, 398 (6th Cir. 2002) (concluding that the

zoning board’s decision was not supported by substantial evidence because,

among other reasons, the applicant’s failure to show lack of alternatives did not

“go to any of the criteria set out in the Zoning Code”); Town of Amherst, N.H. v.

Omnipoint Commc’ns Enters., Inc., 173 F.3d 9, 14 (1st Cir. 1999) (stating that the

substantial evidence standard “surely refers to the need for substantial evidence

under the criteria laid down by the zoning law itself”) (emphasis omitted); AT&T

Wireless Servs. of Cal., LLC v. City of Carlsbad, 308 F. Supp. 2d 1148, 1163-64

(S.D. Cal. 2003). Indeed, we have clearly stated that we must “look to the

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requirements set forth in the local zoning ordinance to ascertain the substantive

criteria to be applied.” Broken Arrow, 340 F.3d at 1133. Although the TCA

“does not divest local officials of any authority they may have to consider the

quality of existing services, neither does it create such authority. Efforts to assess

existing quality . . . must be authorized by and performed within the parameters

of governing state and local law.” Ho-Ho-Kus, 197 F.3d at 70. Because the

Board had no basis in the local code for this criterion, the Board erred in its

decision to require T-Mobile to demonstrate that the denial of the application

would have the effect of prohibiting the provision of wireless services.

b. Zero or Limited Dropped Calls

However, the Unified Government did set forth one finding 3 under the

“failure to show a prohibition of personal wireless services” heading that is

justified under the applicable Code and should be examined under the substantial

evidence test.

In Paragraph 1(a) of the written denial, the Board stated that the “[d]rive

studies indicated that there were no dropped calls in the area surveyed in stark

contrast to studies submitted for other applications for cellular towers. Indicating

3
The Board actually made three findings, all of which the district court
rejected as unsupported by substantial evidence. Because the Unified
Government only appeals the district court’s conclusion as to the first finding, we
accept the district court’s conclusion on the second and third findings as law of
the case. See Martinez v. Roscoe, 100 F.3d 121, 123 (10th Cir. 1996).

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zero or limited dropped calls seems to indicate this tower is not necessary for the

convenience of the public.” 4 The Unified Government argues that this conclusion

is supported by T-Mobile’s statements in its application. First, as Paragraph 1(a)

itself states, the Unified Government relies on the fact that the drive test showed

no dropped calls. Second, the Unified Government argues that T-Mobile, by

stating that its customers in the targeted area averaged nearly 280 minutes of use

between dropped calls while its customers in the Kansas metro core as a whole

averaged nearly 310 minutes of use between dropped calls, failed to show any

prohibition of service in the targeted area. Moreover, the Unified Government

contends that T-Mobile’s evidence showing that there were over 1,800 and 2,700

dropped calls in two separate weeks is “unremarkable” and provides substantial

evidence for denying the application.

However, the record does not show that the Unified Government had

substantial evidence to support the conclusion that there were “zero or limited”

dropped calls. The Unified Government erred to the extent that it relied upon the

fact that the drive test did not show any dropped calls. The Unified Government,

in asserting that the “drive studies indicated that there were no dropped calls in

the area surveyed,” apparently relied on the statements of the Planning Director

at the May 25, 2006, Board meeting, when the Planning Director stated that the

4
This reason appears to be based upon Section 27-279(f)(5)(d), and is
therefore a valid criterion.

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“drive test showed no dropped calls.” However, as the record amply

demonstrates and as the district court concluded, the drive test was not designed

to measure dropped calls; rather, it was intended to measure the level of existing

network coverage. As the drive test was not supposed to show the existence of

dropped calls, the Board cannot rely upon it to show the absence of dropped calls.

Therefore, because the Board’s reliance on the drive test was based upon a

misunderstanding of its purpose, the drive test cannot provide the substantial

evidence necessary to support the Board’s decision.

Because it was erroneous for the Board to rely upon the drive test, the

Board had no substantial basis to determine that the amount of dropped calls T-

Mobile customers experienced was actually acceptable. The only other evidence

upon which the Board could rely to support its conclusion was the uncorroborated

assertion of the Planning Director, who stated that, in his opinion, the dropped

call data provided by T-Mobile indicated that T-Mobile’s service in the targeted

area was “pretty good.” In opposition to this uncorroborated statement, T-Mobile

submitted evidence stating that the number of dropped calls fell below the

industry average. Accordingly, T-Mobile’s evidence purporting to show

significant numbers of dropped calls (which directly contravened the Board’s

conclusion) stands substantially uncontradicted.

While it is clear from this Court’s decision in Broken Arrow that

substantial evidence may exist to support a decision to refuse to issue a Special

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Use Permit even if alternative conclusions could be drawn from the evidence,

Broken Arrow, 340 F.3d at 1133, that situation is not presented here. Rather, the

evidence available shows that the Board erroneously relied upon a drive test not

intended to show dropped calls and upon the personal opinion of the Planning

Director that the dropped call data was “pretty good.” A determination regarding

the quality of existing service must be based on substantial, competent evidence,

Ho-Ho-Kus, 197 F.3d at 70, and that technical determination is not supported by

substantial evidence where it is made solely on the adjudicator’s unsubstantiated

belief, see Primeco Pers. Commc’ns v. City of Mequon, 242 F. Supp. 2d 567, 578

(E.D. Wis. 2003), aff’d, 352 F.3d 1147 (7th Cir. 2003). As T-Mobile’s arguments

regarding the existence of dropped calls stands contradicted only by an

unsubstantiated opinion, there is no substantial evidence to support the Board’s

finding.

2. Reason Two: Not the Least Intrusive Means of Filling a
Service Gap

a. Absence of Support in Local Law for the “Least
Intrusive Means” Criterion

The second reason, set forth in Paragraph 2 of the written denial, that the

Board proffered for denying T-Mobile’s application was that “[t]his particular

120 foot tower is not the least intrusive means of fulfilling a gap, if any exists, in

the particular service provided by T-Mobile.” Again, however, the Board erred in

requiring T-Mobile to demonstrate that its proposal was the least intrusive means

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of filling a service gap because nothing in local law permitted the Board to

impose such a requirement. No such criterion appeared in the Code at the time of

T-Mobile’s application. Because the Board had no basis in the Code for this

criterion, the Board erred in its decision to use the “least intrusive means”

analysis as part of its decision-making process. 5 See Broken Arrow, 340 F.3d at

1133; New Par, 301 F.3d at 398; Omnipoint Commc’ns, 173 F.3d at 14; Virginia

Metronet, 984 F. Supp. at 974 n.14.

The Unified Government’s frequent references to Broken Arrow and U.S.

Cellular Corp. v. Bd. of Adjustment of City of Seminole, Okla., 180 F. App’x 791

(10th Cir. 2006), are inapt. In Broken Arrow, we upheld a local board’s decision

to reject a tower application on the grounds that 1) the proposed site was zoned

transitional, and 2) the cellular company had not demonstrated that no other tower

could accommodate the proposed antenna. Broken Arrow, 340 F.3d at 1136-37.

Similarly, in Seminole, we found that the local board’s denial of a tower

application was valid because 1) the proposal violated setback requirements, and

5
The Unified Government erred as a matter of law by imposing a “least
intrusive means” requirement as a prerequisite to issuance of a Special Use
Permit. The TCA’s substantial evidence standard does not require the
incorporation of the TCA’s substantive provisions against the wireless provider.
Rather, the TCA’s substantive provisions provide standards that the local
government must meet. The Board could only apply the criteria set forth in the
local zoning ordinance. To find otherwise would convert the TCA from a
measure that reduces impediments to the installation of wireless communications
facilities into a measure that imposes such impediments. Needless to say, that
result would frustrate the central function of the statute.

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2) the cellular company had not offered evidence regarding the feasibility of other

sites. Seminole, 180 F. App’x at 801, 803-04. The Unified Government relies on

Broken Arrow and Seminole to argue that the opinions of city officials regarding

the feasibility of alternative sites are sufficient to constitute the substantial

evidence required by the TCA. However, in both Broken Arrow and Seminole the

applicable zoning code required the applicant to prove that no existing structure

could accommodate the proposed antenna. See Broken Arrow, 340 F.3d at 1124;

Seminole, 180 F. App’x at 803-04. Here, in contrast, the Code did not require the

applicant to prove that there was no other feasible alternative. Therefore, the

Unified Government’s argument, based on these cases, that T-Mobile had to

demonstrate that another site would be less intrusive is entirely irrelevant.

Nevertheless, the Unified Government sets forth several considerations

under the “least intrusive means” heading that are justified under the applicable

Code and should be examined under the substantial evidence test.

b. Preference for Commercial Districts

First, in Paragraph 2(a) of the written denial, the Board noted that Section

27-1252(32) of the Code created a preference for placing towers in commercial

districts rather than residential districts. The Code states, “In evaluating such

proposed sites, commercial districts are generally preferred over those in

residential districts as are sites in less restrictive residential or commercial

districts generally preferred over those in more restrictive districts.” Code § 27-

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1252(a)(32)(h). The Unified Government argues that because the proposed site

has a residential rather than commercial designation, the Board had substantial

evidence to support its finding that the proposed tower was not the least intrusive

means of filling a gap in service. 6 However, T-Mobile argues that the Code’s

stated preference for commercial districts does not constitute substantial evidence

because the Master Plan for the city designated the parcel as commercial and

because the immediate vicinity included a church, a seminary, and an auto parts

store, while there were only a few residential uses nearby. Indeed, the Staff and

the Commission recognized that the “neighborhood is somewhat commercial in

nature” and that there are only a “few residential uses in the general area.” The

district court concluded that the Board’s failure to consider the actual use of the

surrounding property meant that there was no substantial evidence supporting the

Board’s conclusion. T-Mobile, 528 F. Supp. 2d at 1160.

The district court was correct in reaching this conclusion. It is

unreasonable for the Board to claim that the property’s residential zoning

constitutes substantial evidence without considering contrary factual evidence.

6
The Unified Government relies on Broken Arrow, in which the local
governing body denied the application because the local zoning ordinance stated
that towers were “normally discouraged” in certain zoning districts, Broken
Arrow, 340 F.3d at 1124-25, and the parcel was zoned transitional, id. at 1136. In
that case, however, the local ordinances required the cellular company to secure a
conventional zoning change which the company had failed to secure. Id. No such
requirement exists here.

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“[T]he record should be viewed in its entirety, including evidence opposed” to the

Board’s view. Oyster Bay, 166 F.3d at 494; see Preferred Sites, LLC v. Troup

County, 296 F.3d 1210, 1218 (11th Cir. 2002) (“[A] court should view the record

in its entirety, including evidence unfavorable to the state or local government’s

decision.”). If the record contains conflicting evidence, “the fact-finder must

adequately explain its reasons for rejecting or discrediting competent evidence.”

Ho-Ho-Kus, 197 F.3d 64, 71-72; see Sprint Spectrum L.P. v. Bd. of Zoning

Appeals of Town of Brookhaven, 244 F. Supp. 2d 108, 116 (E.D.N.Y. 2003)

(finding that the rejection of a permit to construct a telecommunications tower

was not supported by substantial evidence when the town failed to respond

adequately to the contrary evidence provided by the telecommunications

provider). Here, given that the Board considered the site’s zoning designation in

isolation without considering contrary factual evidence, the zoning designation

cannot provide the substantial evidence necessary to uphold the Board’s decision.

c. Compatibility with Existing Uses

Second, in Paragraph 2(b) of the written denial, the Board stated that it was

denying the application because it was a “new additional use which has no direct

relation with the current use of the property.” The Unified Government correctly

points out that the question on substantial evidence review is not whether the

Court agrees with the Board’s decision, but whether sufficient evidence supports

the decision so that a reasonable mind could come to the same conclusion. See

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Broken Arrow, 340 F.3d at 1133. Here, however, the court is not simply

disagreeing with the Board’s decision; rather, there is insufficient evidence to

support the decision. The Unified Government argues that it was reasonable for

the Board to conclude that the lack of any direct relation to the current use

weighed in favor of denying the application. But this asserted reason fails for the

simple fact that the Code authorizes the Board to consider “compatibility” with

existing uses, not the directness of the relation to existing uses. Here, the Board

only found that the uses were not directly related, not that the uses were

incompatible. This court does not quarrel with the Board’s decision that the

tower is not “directly related” to the current use as a church. But on the evidence

presented, there does not seem to be any legitimate argument that the church and

the proposed tower were incompatible. On the contrary, both parties agree that

the income stream would benefit the church. Therefore, there is no substantial

evidence for finding the proposed tower to be incompatible with the existing use.

d. Aesthetic Concerns

Third, the Board stated in Paragraph 2(c) of the written denial that it was

denying the application because the proposed tower “is not aesthetically attractive

in a residential neighborhood and would create blight in the view of the

surrounding residential properties.” While aesthetics can be a valid ground for

local zoning decisions Section 27-279(f)(5)(d), it is only a permissible ground for

denial of a permit under the TCA if substantial evidence of the visual impact of

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the tower is before the board. Mere generalized concerns regarding aesthetics are

insufficient to constitute the substantial evidence justifying the denial of an

application to construct a wireless telecommunications facility. Wichita Falls,

364 F.3d at 256; Preferred Sites, 296 F.3d at 1219; Sw. Bell Mobile Sys., 244

F.3d at 61; Oyster Bay, 166 F.3d at 495.

The Unified Government argues that its aesthetic concerns are supported by

substantial evidence because the Board considered a photo simulation, the flatness

of the terrain, and the presence of residential neighborhoods nearby. However,

the Unified Government’s conclusory reference to the flatness of the terrain and

the presence of nearby residential neighborhoods is a classic example of

generalized aesthetic concerns. No owners of nearby properties opposed the

application or voiced their concerns with the tower’s aesthetic impact.

Accordingly, the only evidence in the record on which the Board could have

based its aesthetic decision was the photo simulation of the proposed tower. This

photo simulation, in the absence of concerns grounded in the specifics of this case

(such as beautification efforts, neighbor complaints, the actual character of the

immediate neighborhood, etc.) does not constitute substantial evidence for the

purposes of the TCA. See PrimeCo Pers. Commc’ns v. City of Mequon, 352 F.3d

1147, 1150 (7th Cir. 2003) (“If blanket opposition to poles could count as

sufficient evidence for denying an application to build an antenna, the substantial

evidence provision of the Telecommunications Act would be set at naught.”).

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Accordingly, the Board’s determination that the tower would be aesthetically

unattractive is unsupported by substantial evidence in the written record.

3. Reason Three: The Golden Factors

The final reason that the Board provided for rejecting T-Mobile’s

application was that it had “considered the ‘Golden’ factors set forth in the staff

report and for the reasons stated herein denies” T-Mobile’s application. The

Golden factors are a set of factors “suggested” by Kansas courts for use by

municipalities during consideration of zoning changes or special use permits.

Golden v. City of Overland Park, 584 P.2d 130, 135-37 (Kan. 1978). The Golden

factors include 1) the character of the neighborhood, 2) the zoning and uses of

nearby properties, 3) the suitability of the property for the uses to which it is

restricted, 4) the extent to which the change will detrimentally affect nearby

property, 5) the length of time the property has been vacant as zoned, 6) the gain

to the public health, safety, and welfare by the possible diminution of value in the

developer’s property as compared to the hardship imposed on the individual

landowners, 7) recommendations of a permanent or professional planning staff,

and 8) the conformance of the requested change to the city’s master or

comprehensive plan. K-S Center Co. v. City of Kansas City, 712 P.2d 1186, 1195

(Kan. 1986) (citing Golden, 584 P.2d at 136).

The Staff Report, which was relied upon by the Board, referenced the

following three Golden factors as evidence supporting the denial of the

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application: the character of the neighborhood, the aesthetic impact of the

proposed tower, and the dropped call data. Each of these factors have been

adequately considered in the foregoing analysis. As outlined earlier, none of

them are supported by substantial evidence. First, the nature of the neighborhood

is largely commercial, and the Master Plan contemplates commercial use.

Second, the generalized nature of the aesthetic concerns do not qualify as

substantial evidence. Finally, the Unified Government’s position with regard to

the absence of dropped calls appears to flatly contradict existing evidence because

the Unified Government could not point to substantial evidence in opposition to

T-Mobile’s testimony regarding the existence of dropped calls and the

substandard nature of the existing service. Therefore, the Board’s findings

regarding the Golden factors are not supported by substantial evidence in the

written record.

AFFIRMED.

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