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ILLINOIS RSA NO. 3 v. COUNTY OF PEORIA

April 28, 1997

ILLINOIS RSA NO. 3, INC., PLAINTIFF,
v.
COUNTY OF PEORIA, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge:

    OPINION

The Telecommunications Act of 1996 requires local governments to rule on requests to build cellular telecommunications facilities within a reasonable time and to issue written decisions that are based on substantial evidence in a written record.

In 1996, the County of Peoria denied Plaintiff's request to build a cellular communications tower.

Although the County acted within a reasonable time, it did not issue a written decision and substantial evidence did not support its decision.

Accordingly, the County's decision cannot stand.

I. BACKGROUND

A. Parties

Plaintiff is an Illinois corporation that provides cellular telecommunications service in central Illinois. Plaintiff holds licenses from the Federal Communications Commission to provide cellular telecommunications service in the Peoria Metropolitan Statistical Area (Peoria, Tazewell, and Woodford Counties) and the Illinois Rural Service Area (RSA) No. 3 (Fulton, Schuyler, Hancock, McDonough, Henderson, Mercer, Knox, and Warren Counties). Defendant is a non-home rule county within the State of Illinois.

B. Plaintiff's Proposed Cell Site

Plaintiff wishes to place a cellular transmission tower (a cell site) in the Village of Bartonville in Peoria County to improve the cellular telephone service it provides. Plaintiff expects that a cell site in Bartonville will fill gaps in coverage and would improve cellular telephone service at the Peoria Airport and on a nearby interstate highway Based on its own studies, Plaintiff concluded that the ideal location for the additional cell site is 4324 W South Street in Bartonville. To select a site, Plaintiff used various engineering criteria to determine the best location, negotiated with the property owner for a lease, filed required notices and certificates with the Federal Aviation Administration, studied the potential environmental impact of such a site, and consulted with adjoining land owners to obtain their consent to build the cell site.

C. The County's Zoning Regulations

The property where Plaintiff wants to build its tower is zoned "R1." The County employs fifteen different classifications in its zoning code:

1. "A" Agricultural District

2. "R1" County Home District

3. "R2" Medium Density Residential District

4. "R3" Multiple Family Residential District

5. "R4" Planned Residential District

6. "B1" Commercial District

7. "B2" Commercial District

8. "B3" Commercial District

9. "C1" Neighborhood Commercial District

10. "C2" General Commercial District

11. "C3" Community Commercial District

12. "C4" Regional Commercial District

13. "11" Industrial District

14. "12" Industrial District

15. "13" Industrial District

The zoning ordinance describes the R1 district this way:

    The "R1" County Home District is designed to
  protect and preserve quiet low density residential
  areas that are presently developed and those areas
  that will be developed with single-family
  dwellings and which areas are characterized by a
  high ratio of home ownership.
  The regulations for this district are designed to
  stabilize and protect the residential character of
  the district and to promote and encourage suitable
  environment for activities associated with family
  life. Development is limited to relatively low
  concentration and the uses permitted are limited
  to principally single-family dwellings in areas
  not generally served with public facilities.
  Certain additional uses related to residential
  uses such as governmental

  buildings, neighborhood centers, religious
  institutions, etc., may be permitted in this
  district provided they meet conditions specified
  and obtain approval of the county board.

County of Peoria, Illinois Zoning Ordinance § 24-122 (1994) (hereafter Zoning Ordinance). Although the Zoning Ordinance specifically lists numerous uses other than single family dwellings as suitable for the "R1" district, it does not specifically list commercial communications towers*fn1 as a suitable special use.*fn2 Commercial communications towers are specifically permitted, however, as special uses in the "A" Agricultural district, Zoning Ordinance § 24-109(20), in the B3 district, id. § 24-198(62), in the C2, C3, and C4 districts, id. § 24-217, and in the I1, I2, and I3 districts, id. § 24-232(a)(9).

Since February 1989, the County has granted special use permits for nine cellular phone towers. One of the nine petitions was for a special use within the R2 district. The "R2" Medium Density Residential District consists primarily of medium density single and two-family homes. It was designed "to encourage and preserve medium density neighborhoods . . . and to provide a suitable environment for activities associated with family life." Zoning Ordinance § 24-136. The Zoning Code does not expressly permit commercial communications towers as a special use in the R2 District.

D.  Proceedings Related to Plaintiff's Special Use Petition
    for the Bartonville Site

Plaintiff believes that Illinois law does not allow the County to subject Plaintiff to zoning restrictions. Based on a 1994 Illinois Attorney General Opinion, Plaintiff has insisted since it first sought approval of the Bartonville cell site that the County does not have zoning authority over Plaintiff. Accordingly, Plaintiff wrote the County before December 1995 and asked to be excused from the regular zoning process. Plaintiff never received a response to its request and, to foster good will and speed the construction of the cell site, petitioned for a special use to allow it to construct the proposed cell site.

Plaintiff filed its Petition for a special use permit (the Petition) on December 6, 1995. Plaintiff requested a special use permit to construct a monopole cellular telephone transmission tower 140 feet tall; specified the address and zoning classification of the property; described the present use of that property and the surrounding area; and explained the purpose of the request. The proposed site is "vacant, agricultural waste" in a "vacant field surrounded by trees which provide[ ] a buffer from adjacent properties."

The first step in the County's zoning process was review of the Petition by the County's Planning and Zoning Department (the Department). The Department has a staff of about ten and is headed by Elizabeth Haderlein. In a written report dated January 2, 1996, the Department recommended allowing the Petition with certain restrictions. The Department found that the Petition was consistent with applicable land use plans and maps, would have little or no impact on local traffic volume, would have minimal impact on the environment, and would comply with zoning ordinance ...


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