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Verizon Wireless of The East, L.P. v. Columbia County

United States District Court, S.D. Georgia, Augusta Division

April 23, 2015

VERIZON WIRELESS OF THE EAST, L.P., Plaintiff,
v.
COLUMBIA COUNTY, GEORGIA; COLUMBIA COUNTY BOARD OF COMMISSIONERS; RON C. CROSS, Individually and in his Official Capacity as Chairman of the Columbia County Board of Commissioners; RON THIGPEN, TREY ALLEN, and WILLIAM D. MORRIS, Individually and in their Official Capacities as Members of the Columbia County Board of Commissioners, Defendants.

ORDER

RANDAL HALL, District Judge.

On November 7, 2014, Plaintiff Verizon Wireless of the East, L.P. ("Verizon") brought the instant complaint seeking declaratory and injunctive relief, as well as expedited review under the Federal Communications Act of 1934, as amended by the Telecommunications Act of 1996 ("the TCA"). Specifically, Verizon alleges that Defendants' denial of its application to build a 160-foot cell phone tower violates Section 322(c)(7) of the TCA. Consistent with Section 332 (c) (7) (B) (v), which instructs courts to hear and decide such actions on an expedited basis, the Court entered an accelerated briefing schedule on January 7, 2015. (Doc. 15.) For the reasons set forth herein, Verizon's Motion for Summary Judgment (doc. 21) is GRANTED, and Defendants' Motion for Summary Judgment (doc. 18) is DENIED. Defendants are hereby ORDERED to approve Verizon's application for rezoning and special use permit, as well as its variance applications. Additionally, Verizon's Motion to Strike (doc. 28) and Amended Motion to Strike (doc. 31) are GRANTED. Verizon's Motion for Oral Argument (doc. 32) is DENIED. Finally, all claims against the Commissioner Defendants in their individual capacities are DISMISSED, and Doug Duncan shall be SUBSTITUTED for Ron Thigpen as a defendant in this matter.

I. BACKGROUND

Verizon is a wireless telecommunications provider seeking to improve the coverage and capacity of its wireless service network in Columbia County, Georgia. (Doc. 21 at 3.) After identifying this purported need, Verizon's radio frequency ("RF") engineer created a search area approximately "3/4 mile east-west and north-south of the intersection of Chamblin Road/Baker Road and Baker Place Road/Long Creek Falls." (Doc. 16, Ex. 1D) In the course of its search, Verizon determined that collocating[1] with one of the nine existing towers within four miles of the proposed site would be inadequate for its purposes.[2] (Id.) In addition to researching the availability of existing towers, Verizon's RF engineer opined that a 150-foot tower with a 10-foot lightning rod was "critical to provide the necessary capacity off-load of the most affected sector while still improving coverage to the surrounding commercial and residential areas." (Id.)

The present dispute arises out of the Columbia County Board of Commissioners' ("the Board") denial of Verizon's Rezoning, Special Use Permit, and Variance applications. The Board is the governing body of Columbia County and is composed of four members and a chairman. (Doc. 16, Ex. 16 § 1-2-1 (hereinafter "Columbia County Code").) Consistent with O.C.G.A. § 36-5-22.1, [3] the Board enacts rules, ordinances, resolutions, and regulations. (Id. § 1-2-9.) At all times pertinent to Verizon's applications, Ron C. Cross was the Chairman of the Board, with Ron Thigpen, [4] Trey Allen, and William D. Morris as the other members. (Doc. 16, Ex. 11.)

A. Verizon's Applications

On July 3, 2014, Verizon submitted Rezoning, Special Use Permit, and Variance applications to allow for a 160-foot monopole to be located at 2029 William Few Parkway, Columbia County, Georgia.[5] (Doc. 16, Ex. 1.) For this new tower, Verizon intended to lease a 10, 000 square-foot parcel of land from the Evans Christian Academy. (Id. at 2.) The selection of this location, per Verizon, was based on four factors: (1) the site met the RF engineer's coverage improvement requirements; (2) the site was buildable; (3) the site was leasable; and (4) the site met the zoning ordinances. (Doc. 16, Ex. 8 at 36.)

With its applications, Verizon made three requests, but otherwise contended that the pole met the applicable ordinances. First, Verizon requested that the land be rezoned from "S-1 (school)" to "S-1 (telecommunications facility)." (Doc. 16, Ex. 1A.) Second, it requested a height variance to allow for a 160-foot pole. (Id.) Finally, it requested that the setback requirement be decreased. (Id.)

B. Special Use Permit/Rezoning

The Columbia County Code requires an applicant to (1) request a Special Use Permit for the construction of any new tower and (2) obtain approval to rezone the property to S-1 (telecommunications facility). (Columbia County Code §§ 18-305, 18-314, 18-332.) The Columbia County Planning Commission "shall accept, review, analyze, evaluate, and make recommendations to the board of commissioners with respect to the granting or not granting... of Special Use Permits for wireless telecommunications facilities." (Id. § 18-305 (c).) Following this recommendation, the Board retains final authority on rezoning applications. (Id.)

Consistent with these requirements, Verizon submitted an application for a Special Use Permit and to rezone the land to "S-1 (telecommunications facility)." (Doc. 16, Ex. 1A.) In support of its application, Verizon submitted a letter from its RF engineer, Ralph Richter, who stated that "Verizon Wireless has an immediate need for a new communications facility in this area to provide capacity relief and improved indoor coverage in this area of Columbia County." (Doc. 16, Ex. ID at 1.) Verizon contends that the pole would serve two objectives: (1) improving capacity and (2) increasing coverage. According to Verizon, the capacity issues result in dropped calls, slow data, and an inability to make calls and that a new pole would ease the burden on a tower located at 5114 Columbia Road. (Doc. 16, Ex. 8 at 39.) For the coverage objective, Verizon contends that the pole would improve in-building and in-vehicle service.[6] (Id. at 44.)

Verizon submitted evidence that it conducted a search "approximately 3/4 mile east-west and north-south of the intersection of Chamblin Road/Baker Road and Baker Place Road/Long Creek Falls." (Doc. 16, Ex. ID.) Moreover, Verizon attempted to utilize existing towers, even those outside the search area. (Id.) In its search, Verizon identified nine towers within four miles of the proposed site. Four of those towers were already used by Verizon, and Verizon's RF engineer determined that the other five were too far outside the search area to achieve the stated goals. (Id.) In support of the RF engineer's determination, Verizon provided Columbia County with various maps showing the search area, existing towers, and coverage differences based on tower location. (Doc. 16, Ex. IE.)

C. Height Variance

Section 18-308(b) of the Columbia County Code sets the maximum height for telecommunications towers at 110 feet.[7] To accommodate a 160-foot tower, Verizon requested a variance from that requirement.

In support of its application for a height variance, Verizon provided maps comparingthe coverage differences between a 160-foot pole, a 130-foot pole, and a 110-foot pole. (Doc. 16, Ex. 4.) These maps were keyed based on"best, " "good, " and "moderate" coverage. "Best"meant that "customers can expect, with a very high probability, to make and receive calls outdoors, including in-vehicle. In addition, the signal should be sufficient for most in-building coverage. However, in-building coverage can and will be adversely affected by factors such as thickness/construction type of walls and location within the building[.]" (Id. at 15.) "Good" indicated that "customers can expect to make and receive calls outdoors, including in-vehicle. In-building service will be more variable and very dependent on factors such as thickness/construction type of walls and location within the building[.]" (Id.) And "moderate" meant that "customers can expect to make and receive calls outdoors. In-vehicle service may experience some Mead spots' (loss of service) and in-building coverage will be less likely." (Id.) These maps, in an effort to show the impact of the proposed tower, include an oval shaped ring that reflects the "[p]roposed tower capacity offload/indoor coverage improvement area." (Id. at 8.) The Court refers to the area inside this ring as the "tower coverage zone."

At 160 feet, the majority of the tower coverage zone was keyed "best, " with minimal "good" coverage areas and no "moderate" coverage areas. (Id. at 5.) At 130 feet, there were even more "best" areas of coverage, but there were more areas of diminished coverage outside the tower coverage zone. (Id. at 6.) This meant that, while apparently improving coverage within the tower coverage zone, other areas would suffer as aresult of a 130-foot tower. Finally, the 110-foot tower saw approximately the same coverage as a 160-foot tower, but like the 130-foot tower there was an increase in diminished coverage areas outside the tower coverage zone. (Id. at 7.) Aerial views of the 110-foot map showed that these areas of potentially-diminished coverage are residential. (Id. at 9-13.)

The reduction in coverage shown in the maps "would mean that a call being made in-building at that spot were the tower at 160 [feet], may not be able to be made in-building at that spot and would have to be made outside or possibly in-vehicle to get reliable service if the proposed tower height is decreased." (Id. at 14.) According to Verizon, to maintain the same level of coverage provided by the 160-foot tower, it would have to build at least two 110-foot towers. (Doc. 16, Ex. 10 at 17.) As Verizon stated at the Planning Commission hearing, a 160-foot tower "is the minimum height our RF engineer has determined that will allow us to connect to all the towers in the area and provide seamless coverage. Reducing the height to 110 feet will severely diminish certain areas of coverage[.]" (Id.at 8.)

D. Setback Variance

In addition to the height requirement, Section 18-312 requires a wireless facility to be setback from adjacent property lines a distance equal to the height of the tower. The proposed tower height is 160 feet, meaning that the setback distance must equal 160 feet. However, Verizon sought a variance from this request given the "unique size and topography of the subject property [.]7/ (Doc. 16, Ex. 1 at 2-3.) More specifically, Verizon sought permission to have a setback of just 110 feet tothe southeast and southwest. (Id.)

In support of its request, Verizon provided a report from Sabre Industries. (Doc. 16, Ex. IF.) The report indicated that the proposed pole would be designed for 90 mile per hour winds without ice, and 30 mile per hour winds with 3/4 inch ice. (Id.) According to Sabre Industries, "it is highly unlikely that the monopole will fail structurally in a wind event where the design wind speed is exceeded within the range of the built-in safety factors." (Id.) The Sabre report went on tosay:

Should the wind speed increase beyond the capacity of the built-in safety factors, to the point of failure of one or more structural elements, the most likely location of the failure would be within the flanged connection at the bottom of the top section. Assuming that the wind pressure profile is similar to that used to design the monopole, the monopole will yield at the location of the highest combined stress ratio within the flanged connection. This is likely to result in the portion of the monopoleabove Afolding over' onto the portion below, essentially collapsing upon itself.... In the unlikely event of total separation, this, in turn, would result in collapse of that section to the ground within a radius equal to 1/3 of the pole height.

(Id.) Thus, even if the pole were to fail completely at the top section, the dislodged pole would reach a radius of approximately 54.feet.

E. Administrative Process

On August 7, 2014, the Planning Department certified that Verizon's applications and materials were complete. (Doc. 16, Ex. 2.) On September 18, 2014, the Planning Department Staff ("the Staff") issued two reports, one addressing the Special Use Permit and the other addressing the variance requests. (Doc. 16, Exs. 6-7.) That same day, a hearing was held before the Planning Commission. (Doc. 16, Ex. 9.) Finally, the Board met on October 7, 2014. (Doc. 16, Ex. 11.)

i. The Staff Report

Following review of Verizon's application, the Staff recommended approval of the Rezoning and Special Use Permit, specifically recognizing that the tower would not burden existing public facilities, the application was in conformity with the policy and intent of the land use plan, and the proposal reflected a reasonable balance between the promotion of health, safety, and welfare and the rightto unrestricted use of property.[8] (Doc. 16, Ex. 6.) Moreover, the Staff recommended approval of the setback variance without much comment. (Doc. 16, Ex. 7.) The Staff recommended denying the height variance, however, stating that "the additional height from 110 feetto 160 feet would not provide a significant increase in the amount of coverage to the area." (Id.) The Staff additionally noted that other towers within the County did exceed the maximum height, but that "the majority are county-owned and are used for public safety purposes." (Id.) In its recommendation, the Staff recognized that "[t]he Planning Commission [cannot] act in recommendation of the cell tower height variance (Section 18-308) because the Code exclusively reserves this decision to the Board of Commissioners." (Doc. 16, Ex. 7.)

ii. Planning Commission Review

The Columbia County Planning Commission held a hearing on September 18, 2014 at 6:00 PM. (Doc. 16, Ex. 9.) Verizon's applications were introduced by Planning Department Interim Director Andrew Strickland. (Doc. 16, Ex. 10.) As to the Special Use Permit, the Commission recommended approval. (Doc. 16, Ex. 10 at27.) Indeed, one unidentified speaker stated that "I think there's definitely a need. I know somebody that lives right down the road there and they don't have the problem with the cell service but the internet is extremely [slow][9] and it's right down eight or ten houses from below it so I know they'll be excited." (Id. at 28.)

As to the variances, the Planning Commission recommended approval of the setback variance and disapproval of the height variance because "we don't really have a say."[10] (Id. at 27.) As to the setback variance, Mr. Strickland explained that

[g] iven the design of the mono-pole tower and the way it actually falls, if it were to fall, the fall radius is far lower than the actual height, so it's not a direct line fall.... It really has break points on the tower and would collapse within, I believe the distance would be about 54 feet according to the application. (Id. at 4.) Verizon's representative was asked a number of questions from unidentified members of the Planning Commission. These questions addressed (1) whether a lower • tower would increase data speed (doc. 16, ex. 10 at 11); (2) whether residents are getting the service they need at lower heights (id. at 13-14); (3) the coverage and capacity maps (id. at 14-16); (4) the heights of other towers in Columbia County (id. at 19); (5) a previous request from Verizon (id. at 20); (6) how long would it take for Verizon to outgrow the proposed tower at 160 and 110 feet (id. at 20, 23);[11] (7) how many households are serviced by a single tower[12] (id. at 21); (8) whether Verizon received any negative comments from neighbors (id. at 24); (9) how the tower would be accessed (id.); (10) whether the surrounding trees and sights would be disturbed (id.); and (11) camouflaging the tower (id. at 25).

At the hearing, no contradictory evidence was presented, nor did any resident speak in opposition to Verizon's proposal.

iii. The Board Hearing

Following the Planning Commission's recommendation, the Board met on Tuesday, October 7, 2014 at 6:00 PM. (Doc. 16, Ex. 11.) At the outset of the meeting, Defendant Commissioner Morris made a motion to deny Verizon's rezoning application. (Doc. 16, Ex. 13 at 2.) In response to that motion and in light of the Planning Commission's recommendation, Verizon focused its presentation on the height variance, summarizing the ...


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