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NE Colorado Cellular, Inc. v. City of North Platte, Nebraska

United States Court of Appeals, Eighth Circuit

August 22, 2014

NE Colorado Cellular, Inc., a Colorado corporation, doing business as Viacro Wireless, Plaintiff - Appellant
v.
City of North Platte, Nebraska, Defendant - Appellee

Submitted May 13, 2014.

Appeal from United States District Court for the District of Nebraska - Lincoln.

For NE Colorado Cellular, Inc., a Colorado corporation, doing business as: Viacro Wireless, Plaintiff - Appellant: Shawn D. Renner, Cline & Williams, Lincoln, NE.

For City of North Platte, Nebraska, Defendant - Appellee: Douglas Stack, North Platte, NE.

Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.

OPINION

Page 930

SMITH, Circuit Judge.

NE Colorado Cellular, doing business as Viaero Wireless (" Viaero" ), sought to construct a telecommunications tower in the City of North Platte, Nebraska (" the City" ). The North Platte City Council (" City Council" ) voted to deny Viaero's application for a permit to build the tower, finding that the tower would be inharmonious with the neighborhood in which Viaero proposed to build. Viaero filed suit against the City for violation of the Telecommunications Act of 1996 (TCA), alleging that the City Council decision was neither " in writing" nor " supported by substantial evidence."

Page 931

The district court[1] upheld the City's decision. We affirm.

I. Background

Viaero is licensed by the Federal Communications Commission to provide personal wireless services in Nebraska, including the City. Viaero sought to build a telecommunications [" telecom" ] tower in the City to improve its network coverage. Viaero located what it considered a suitable site in a B-1 zoning area and negotiated the purchase of that site.

Under applicable City ordinances, a B-1 zone is eligible for placement of a telecom tower after receipt of a conditional use permit (CUP). The application for a CUP must be reviewed by the City Planning Commission (" Commission" ) and approved by the City Council. North Platte Code of Ordinances § 156.322 provides that conditional uses must " be in harmony with the character of the area and the most appropriate use of the land."

On March 11, 2012, Viaero applied for a CUP to install a 100-foot telecom tower and related support structures at the aforementioned site. Viaero stated that the tower would address a lack of reliable in-building wireless service in the City. On April 24, 2012, the Commission conducted a public hearing on Viaero's application. The Commission received both live testimony and letters from property owners near the proposed tower site. After the hearing, the Commission issued a summary report, which it provided to the City Council. The Commission's report recommended denial of the application because the tower would not be in harmony with the character of the area.

The City Council conducted a public hearing on May 15, 2012. Two people, a Viaero representative and the previous owner of the proposed tower site, spoke in favor of the tower. Twelve residents spoke in opposition. The hearing minutes, which summarized the residents' testimonies, state that the residents opposed the tower because

it is not appropriate or harmonious for the historic neighborhood, it could decrease the property values of the homes in the area, the tower could be dangerous to the public, the tower will be an eyesore for the busy intersection and there are other places in North Platte that would be better suited for the tower.

The City Council voted 6-2 in favor of a motion denying the application. The minutes of the council meeting summarize the motion and resolution:

Stoll moved and McGuire seconded the motion to find the request for a Conditional Use Permit to allow a 100' tower and a communication facility building located at [the proposed tower site] does not meet the minimum standards stated in the North Platte Code of Ordinances Section 156.322 and deny the Conditional Use Permit as requested based on the following factual findings: 5. The use is not in harmony with the character of the area and it is not the most appropriate use of the land as it is a historic neighborhood and the tower could decrease property values in the area. Roll call vote: " AYE" : Barrett, Stoll, McNea, McGuire, Carman, Steinbeck. " NAY" : Pederson, Campbell. Motion carried.

Viaero sued the City, claiming that the City violated the TCA. See 47 U.S.C. ยง 332. Viaero ...


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