Sun State Towers LLC v. County of Mohave, et al.

Summary

The United States District Court for the District of Arizona resolves cross-motions for summary judgment in a dispute over Mohave County’s denial of a special use permit for a 195-foot wireless communications tower. The court holds that the plaintiff failed to establish an effective prohibition under the Telecommunications Act because it did not present the County with a substantive feasibility analysis of alternative sites. The court also concludes that the denial was supported by substantial evidence and does not establish an unlawful decision based on radio-frequency emissions.

Holdings

1. For a large wireless tower in the Ninth Circuit, an applicant asserting an effective prohibition must show both a significant gap in service coverage and that the proposed facility is the least intrusive means of filling that gap. Sun State Towers established a significant coverage gap but failed as a matter of law to make the required least-intrusive-means showing because it did not provide the County with a substantive feasibility analysis of alternative sites or designs.
2. The County's denial satisfied the substantial-evidence requirement because its written resolution identified proximity to neighboring residents and the tower's poor aesthetic location as reasons for denial, incorporated the hearing testimony, and those reasons were authorized by Mohave County's zoning ordinance and supported by more than a scintilla of evidence.
3. The record did not establish that the Board based its denial on the environmental effects of radio-frequency emissions. Public testimony expressing health concerns was insufficient, without evidence that the Board itself relied on those concerns, to establish a violation of 47 U.S.C. § 332(c)(7)(B)(iv).

Questions Presented

1. Whether denial of the proposed 195-foot tower constituted an effective prohibition of personal wireless services under 47 U.S.C. § 332(c)(7)(B)(i)(II).
2. Whether the County's written denial was supported by substantial evidence in a written record under 47 U.S.C. § 332(c)(7)(B)(iii).
3. Whether the County denied the application on the basis of the environmental effects of radio-frequency emissions in violation of 47 U.S.C. § 332(c)(7)(B)(iv).

Disposition

remanded