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March 12, 1999


The opinion of the court was delivered by: Castillo, District Judge.


In an earlier opinion, PrimeCo Personal Communications, L.P. v. Village of Fox Lake, 26 F. Supp.2d 1052 (N.D.Ill. 1998) ("PrimeCo I"), this Court held that the Village's decision denying PrimeCo's application for a special use permit violated the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii). We remanded the case to the local zoning authority, instructing it to either grant PrimeCo's permit application or conduct an expedited hearing in conformity with our opinion. The Village Trustees chose the latter option, conducted a supplemental hearing, and again denied the application. The case is now before us on PrimeCo's motion seeking reconsideration of our decision to remand the case for further proceedings and attacking the Village's second denial of its permit application. We deny PrimeCo's motion on both counts: under the specific circumstances of this case, denying PrimeCo's request for injunctive relief was proper; and substantial evidence in the record supports the Village's decision to deny PrimeCo's application.

      PrimeCo's Motion to Reconsider this Court's Denial of
                        Injunctive Relief

In PrimeCo I, we decided the merits of the case in favor of PrimeCo, but refused the relief it sought: an injunction ordering the Village to issue the special use permit. PrimeCo I, 26 F. Supp.2d at 1066. Instead, we remanded the case to the local zoning authority for an appropriate decision under the Act. On December 7, 1998, PrimeCo filed a motion challenging our denial of its request for injunctive relief.*fn1 We deny PrimeCo's request to reconsider that decision.

As explained in PrimeCo I, the Telecommunications Act does not specify a remedy for the violation of § 332(c)(7)(B)(iii); instead it grants federal courts jurisdiction to hear a very narrow subset of challenges to local zoning decisions and explicitly reserves local zoning authority "over decisions regarding the placement, construction, and modification of personal wireless service facilities." § 332(c)(7)(A); see also § 332(c)(7)(B)(v) (granting federal courts subject matter jurisdiction and simply instructing the courts to "hear and decide such action[s]."). Congress clearly intended that local zoning authorities would retain their traditional role in deciding special use application with very few, very specific limitations (e.g., local authorities may not deny cellular tower permits on the basis of perceived health risks, § 332(c)(7)(B)(iv).

In this case, the Village Board, grappling with a new law startling in its departure from traditional notions of local authority over zoning decisions, had no consistent guidance on its application, and no experience with federal agency procedures or even language. PrimeCo I, 26 F. Supp.2d at 1059-61 (discussing competing interpretations of § 332(c)(7)(B)(iii)). Even now there is little agreement among the courts as to the meaning of substantial evidence under § 332(c)(7)(B)(iii). Compare, e.g., Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495-96 (2d Cir. 1999) (residents' unsupported expressions of concern over the aesthetics and financial impact of cellular towers probably is insufficient under the Act), with AT & T Wireless PCS, Inc. v. City Council of Virginia Beach, 155 F.3d 423, 430 (4th Cir. 1998) (constituents' unsupported statements opposing location of cellular tower constitutes substantial evidence).*fn2 We continue to believe that granting PrimeCo's request for an injunction under these specific circumstances would have been unfair to the Village, and upsetting to the balance intended by Congress when it reserved zoning authority to municipalities. Furthermore, as feeble as the original hearing records were in terms of evidence, it was clear that local residents voiced legitimate concerns about the mono-pole's proposed location that fit comfortably within the framework of the local zoning ordinance.

But, having said all this, we do not expect local zoning authorities to rely on this opinion as an excuse to delay cellular tower permit proceedings by purposefully conducting shoddy hearings and then, once challenged in court, requesting a second opportunity to do it correctly. Obviously, such an illogical and expensive strategy would not be condoned by any court. Additionally, the standards are becoming clearer with each federal court decision interpreting the Act, and we fully expect guidance from the Seventh Circuit on the proper interpretation of § 332(c), averting future claims of ignorance by municipalities.

Since our earlier opinion, the Second Circuit has held that the appropriate relief for a violation of § 332(c)(7)(iii) is an order commanding issuance of the requested permit. Oyster Bay, 166 F.3d 490, 496-97. In discussing the appropriate remedy, the Oyster Bay panel first noted that the majority of courts automatically enter injunctions upon finding violations of the Act, and that only two courts — this one and the United States District Court for the Middle District of Florida — remanded a case for further proceedings. Id. at 496 (citing cases); see also AT & T Wireless Serv. of Fla., Inc. v. Orange County, 982 F. Supp. 856 (M.D.Fla. 1997).*fn3 It then cited the "TCA's stated goal of expediting resolution of this type of action," and summarily found that remand would serve no useful purpose. Oyster Bay, 166 F.3d 490, 496. Of course, this case is distinguishable from Oyster Bay on that last point, and we believe the strict time limitation imposed by our earlier decision, especially when coupled with our expedited treatment of this litigation, adequately incorporated Congress' concerns regarding timeliness.*fn4 In sum, we believe that in exercising our discretion to remand the case on an expedited basis, we appropriately balanced and accommodated the various competing interests and goals recognized by the Act.

For these reasons, we deny PrimeCo's request to revisit our decision denying injunctive relief and remanding the case for further proceedings. Having resolved that question, we turn to the substantive issues regarding the Village's second denial of PrimeCo's permit application.


On January 13, 1999, the Village Board of Trustees and the Village Zoning Board of Appeals conducted a joint supplemental hearing on PrimeCo's application for a special use permit allowing PrimeCo to construct a 150-foot monopole on property located at the juncture of U.S. Route 12 and Illinois Route 59 ("the Hellios site"). A written decision denying PrimeCo's application was prepared and, on January 18, 1999, adopted by the Board. (PrimeCo Br. Att. 1, Decision of Village of Fox Lake Board of Trustees Denying Special Use Permit Application of Michael Hellios and PrimeCo Communications ("Decision").)

In its decision, the Board stated several reasons for denying PrimeCo's application. Specifically, the Village reasoned that a monopole on the Hellios site would negatively impact economic development of the community by discouraging quality development in the area; injure the use and enjoyment of the 36 property owners who would have a clear view of the structure from their property; and "diminish the unique . . . character of the heavily wooded hill generally regarded as the gateway . . . to the Village." (Decision at 1-2.) Therefore, the Village concluded, PrimeCo did not satisfy the criteria of local zoning ordinance sections 9-1-6-10D.1 (the intended use will not be detrimental to the general welfare of Fox Lake residents) and 9-1-6-10D.2 (the intended use will not injure the use and enjoyment of property by Fox Lake residents). Additionally, the Village found that alternative sites for the monopole exist at more aesthetically appropriate locations. Finally, the Village concluded that PrimeCo did not establish the technological necessity of the Hellios site, but merely demonstrated that the site would be economically advantageous to PrimeCo. A description of the relevant evidence adduced at the supplemental hearing follows.

The first witness was Pete Pointer, an architect and certified urban planner with 37 years of experience who, for the past 17 years, has operated his own planning and design firm. (Tr. of Jan. 13, 1999 Hr'g, at 12-13 ("Tr.").) Pointer opined that placing the monopole at the Hellios site would negatively impact the community by discouraging residential and resort development and impairing the owners' enjoyment of existing residential property. (Tr. at 25.) In reaching these conclusions, Pointer relied on the "unique topography" of the Hellios site and the result of a balloon test.

As to topography, Pointer describes the Hellios site as the "gateway" to Fox Lake. The property is on a hill in the "V" where U.S. Route 12 splits from Illinois Route 59. (See Hr'g Ex. 1, Topographical Survey Map of Fox Lake.) To reach the resort district of Fox Lake one continues north on Route 12; several residential developments lie on Route 59 immediately north of the split. (See Hr'g Ex. 2, Aerial Photograph of Fox Lake.) South of the split the land is flatter and makes up Fox Lake's commercial corridor; for example, a Menard's and a Jewel are located south of the split at the intersection of Route 59 and Illinois Route 134. Additionally, a grammar school and middle school are located ...

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