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Cellco Partnership v. City of Peoria

United States District Court, C.D. Illinois

May 16, 2017




         This matter is now before the Court on Defendants' Motion [14] to Dismiss or Strike Plaintiff's Amended Complaint, and Plaintiff's Motion [27] Requesting Judicial Notice. For the reasons set forth below, Defendants' Motion [14] is DENIED, and Plaintiff's Motion [27] is GRANTED in part and DENIED in part.


         The Plaintiff in this action is Cellco Partnership, who does business as Verizon Wireless (“Verizon”). Defendants are the City of Peoria, the City of Peoria Zoning Board of Appeals (“ZBA”), and the City of Peoria Site Plan Review Board (“SPRB”). For the purposes of this Order, the Defendants will be referred to collectively as “the City.” Presently before the Court are Defendants' Motion to Dismiss (Doc. 14) and Plaintiff's Motion to Request Judicial Notice (Doc. 27). In the Amended Complaint, [1] Verizon alleges that the City of Peoria's denial of its application violated § 332(c)(7)(B)(iii). That subsection provides:

(iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

47 U.S.C. § 332.

         A. The Linn Street Property

         The following facts are taken from Verizon's Amended Complaint (Doc. 12) and the attached exhibits. In 2016, Verizon sought to address gaps in its wireless coverage along the Knoxville Avenue commercial corridor. See Doc. 11-6, at 3-4 (coverage maps). This can be accomplished in two ways: building a new tower, or by locating the equipment on existing structures (“co-location”). Based on the findings of Verizon's radio frequency engineers, Verizon identified a property at 2112 N. Linn Street in Peoria, Illinois as the best location to address its coverage gaps.

         David Patch is the owner of the Linn Street property, which is a 60' tall 32-unit apartment building. The building is zoned “R-6 (Multi-Family Residential).” The surrounding properties are mixed use-the parcel abutting the southern and eastern property lines of the Linn Street property is zoned “C-G (General Commercial)” and the parcels north and west of the building are zoned “R-4 (Single Family Residential).” See Doc. 11-7 (zoning map). The Linn Street property owner authorized Verizon to use the building to install Verizon's proposed wireless communications facility upon obtaining the necessary approvals for construction. The proposed co-location site would consist of nine antennas and ancillary equipment installed on the roof of the building, elevated equipment cabinets and a generator for emergency power located on the ground. See Doc. 11-8 (“before and after” photographs).

         B. The City's Ordinance

         The City's Zoning Ordinance regulates wireless telecommunications facilities. See Doc. 11-2 (Article 3 of Zoning Ordinance). Therefore, Verizon is required to obtain a Special Use Permit from the City unless it qualifies for an exemption under § 3.3(b)(2), which provides:

(g) Co-location on existing towers or other structures. The City, as opposed to the construction of a new tower, shall prefer locating on existing towers or other structures. The City shall encourage such use by permitting collocations, which results in a height increase of less than ten (10) percent of the existing support structure, subject to administrative review. Only one administrative approval may be granted for a height increase not to exceed ten (10) percent. Such shared use shall consist only of the minimum Antenna Array technologically required to provide service primarily and essentially within the City, to the extent practicable, unless good cause is shown.

City of Peoria Ordinance, § 3.3(b)(2)(g), Doc. 11-4, at 2.

         C. The Special Use Application

         Initially, Verizon sought to place the antennas above the existing penthouse, which would have increased the building's height from 60 feet to 70 feet. Thus, the exception above did not apply, and Verizon was required to obtain a Special Use Permit. On January 27, 2016, Verizon's agent, Insite, Inc. submitted a Special Use Application (“SUA”) to the City's Site Plan Review Board (“SPRB”) for the proposed wireless communications facility at the Linn Street property.[2]Docs. 11-9, 11-10 (original submission). On February 22, 2016, Verizon provided a Priority Letter to the SPRB explaining why other potential buildings were insufficient in location or height to effectively address the coverage gap. See Doc. 11-12 (Priority Letter). The same day, the City's staff notified Verizon via email that it intended to recommend a denial of Verizon's Linn Street SUA due to concerns over the antennas' proposed installation height.

         On March 15, 2016, the SPRB informed Verizon via email that it would recommend approval of the SUA if Verizon relocated the antennas from the west (Linn Street) side of the building to the south side. Doc. 11-15. Verizon submitted revised site plans with the recommended change, and on April 4, 2016 the SPRB recommended approval of the SUA, with certain conditions, to the Planning and Zoning (“P&Z”) Commission. Doc. 11-18, at 3.

         On April 7, 2016, the P&Z Commission considered Verizon's SUA and held a public hearing, which no members of the public (other than Verizon and the property owner) spoke. See Doc. 11-19 (minutes from P&Z proceeding). The Commission removed some of the SPRB's building and property maintenance conditions and recommended that the City Council approve Verizon's SUA. Id. On April 13, 2016, Verizon submitted revised site plans to the SPRB reflecting the requirements and conditions the Commission identified. However, on April 14 and 15, the SPRB informed Verizon that it would recommend denial of the SUA unless Verizon reinstated the conditions removed by the P&Z Commission. Verizon reinstated the conditions and resubmitted the SUA on April 19, 2016.

         Verizon presented the matter to the City Council on April 26, 2016. Councilman Grayeb opened the floor for public comment, where Heart of Peoria Neighborhood Association President, Thomas Wester, spoke. The minutes from that meeting are at the heart of this dispute and are reflected in their entirety below, beginning with Mr. Wester's comments.

Mr. Thomas Wester, President of the Heart of Peoria Neighborhood Association, said he and his neighbors worked hard to restore the quality of life within that neighborhood and he voiced his concern regarding the installation of the facility. He said there were no issues of lack of cell service in the area and the neighbors did not want to see a wireless facility in the neighborhood. He asked the Council to deny the request for the Special Use.
Council Member Grayeb said he was certain Verizon would find another location, which would not be damaging to a fragile neighborhood, and he moved to deny the request to adopt Ordinance A or the Recommendation of Staff to Adopt Ordinance B, approving a Special Use for a wireless communication facility for the property located at 2112 N. Linn Street, Peoria, IL; seconded by Council Member Jensen.
Discussions were held regarding the impact this facility would have on the neighborhood, and Mr. Wester remarked that the neighborhood was not a commercial neighborhood stating it would take away from the neighborhood's vibrancy.
Council Member Grayeb said the height of the facility would exceed what could be approved administratively. He said the facility would be visible and did not belong in a residential neighborhood. He voiced his disapproval of this item, and he asked Council to deny the item as outlined.
In response to Council Member Akeson's question on what would happen should this item be denied, Ms. Groark said Verizon would ...

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