Can a Cell Site’s Neighbors Use Diminution of Property Values as Substantial Evidence? Here’s a Federal Decision That Says “Yes”

Reprinted from Plan Wireless website: http://planwireless.com/wellington.htm

Conceled cellphone tower sites.

(click headline for full text.)

Plan Wireless is a consutant group that helps cities and counties plan their wireless, negotiate their leases and make the best choices.  http://planwireless.com/thepw.htm

The Village of Wellington is a high-end community in a high-end county: Palm Beach County in Florida. Metro PCS (a regional carrier) used a site acquisition consultant to propose a “stealth”[1] flagpole on a golf course.

The Village of Wellington, “based on objections by the residents, refused to issue a permit to construct the pole. The residents’ primary concern, voiced at a June 2003 meeting, was the impact the pole would have on the value of their property.”

The neighbors argued that they would not have “purchased their homes if the pole was present and a local realtor testified the pole would adversely impact home resale values.”

The site acquisition consultant (Mr. Linet) countered, stating:

these objections amount to an impermissible pure aesthetic or “not in my back yard” objection. He (Linet) maintains that the only factually based testimony was provided by two non-residents. The first, an executive director of another telecommunications facility that had constructed a similar cell site after resident opposition, testified that the pole would not adversely impact property values. The second, a real estate appraisal executive, provided similar testimony based on a study involving condominium sales in Boca Raton, Florida.

While the site acquisition consultant raised other claims, he was essentially denied on all of them at the District Court level.

The site acquisition consultant appealed to the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit Court upheld the district court on all counts. The three-judge panel found that:

Our cases highlight that a common objection residents have to the construction of a cell site is that it detracts from the aesthetic appeal of the community. See, e.g., Am. Tower, 295 F.3d at 1208; Preferred Sites, LLC v. Troup County, 296 F.3d 1210 (11th Cir. 2002). A blanket aesthetic objection does not constitute substantial evidence under (the Telecommunications Act of 1996).

This is why Kreines & Kreines, Inc. recommends that “aesthetics” not be used as a word or as the basis for a denial in cell site decisions.

But the Eleventh Circuit goes on to say:

• Aesthetic objections coupled with evidence of an adverse impact on property values or safety concerns can constitute substantial evidence.

Further, the three-judge panel found that the district court held correctly that the Village’s decision to deny Linet’s permit was based on substantial evidence received at the June 2003 hearing. We have held that the “substantial evidence” standard is the traditional substantial evidence standard used by courts to review agency decisions.

The Village met this standard. It heard objections from residents and a realtor concerning the cell site’s negative impact on real estate values.

More importantly, the court noted the site acquisition consultant’s “expert testimony contradicting the adverse property value impact concerns was provided by a telecommunications executive who placed a tower in a different part of the community and a realtor who based his knowledge on condominium sales in a different county. This does not change our conclusion. The residents were worried about the impact of this tower on the golf course within their community, not a different tower, different location, or different community.”

PlanWireless has identified two other cases where property values were shown to be diminished by a proposed cell site. But no case so clearly indicates that aesthetics alone is not a valid concern. However, when coupled with property values, the concern may be substantiated for purposes of denying a cell site.

So, what do we learn from this case?

· Aesthetics by themselves do not constitute a valid issue.

· Property values, when coupled with aesthetics, are a valid issue.

· Residents and realtors can testify as to property values and their testimony can constitute substantial evidence.

Kreines and Kreines, Inc. often hears from appointed and elected officials: “Don’t testify regarding diminished property values because we don’t want to hear it and it won’t influence us.” Well, that’s fine; but if it influences the courts, shouldn’t local governments consider the property values argument?

Finally, your local government may encounter the attitude: “Don’t tell us about Florida and the Eleventh Circuit. That’s a unique state and we’re not in the Eleventh Circuit. There is no such thing as ‘parallel precedent,’ so what they find doesn’t influence our courts.” PlanWireless is not a lawyer’s newsletter, and Kreines & Kreines, Inc. is not a law firm. But every case at the federal appeals court level has borrowed decisions on cell site issues from other circuits. Except for the Abrams v. Rancho Palos Verdes, the Supreme Court has yet to deal with telecommunications issues regarding wireless and Abrams was solely concerned with collecting damages.

This case, which is known as Michael Linet, v. the Village of Wellington is important for all local governments in the U.S.

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[1] Kreines & Kreines, Inc. advises clients not to use – or accept – the term “stealth” in an application. “Stealth” means sneaky, which may be acceptable for the industry to admit to, but not befitting the open decision process of local governments.