Verizon Sues Okla. Town Under TCA for 'Unlawfully' Denying Tower Permit Application

Verizon sought to fill a gap in coverage, "densify its network, improve capacity, and improve service capabilities" in the vicinity of the Glenpool North site in Sapulpa, said the complaint. After considering alternatives, the carrier identified the Glenpool North site as the “only viable site” on which to locate a 175-foot monopole tower with a 10-foot lightning rod,” it said.

Under Sapulpa’s zoning code, siting and construction of a cell tower and antenna are subject to the requirements of a specific use permit (SUP). Section 1801 of the zoning code identifies a list of uses allowed in a zoning district only through a SUP, including a transmitting tower, the complaint said. Applicants can appeal a recommendation of denial by the planning commission to the city council by written notice within 15 days; the city council may reverse the recommendation by a two-thirds vote, it said.

On Dec. 21, based on the city’s "insistence,” Verizon submitted its SUP application for a specific use permit to develop the new wireless facility on the Glenpool North site, including all required and necessary supporting documents, said the complaint. The city deemed the application “complete,” it said.

After a Jan. 23 public planning commission hearing, a city staff report recommended approval of the SUP application, the complaint said. Verizon addressed “all the grounds for considering a SUP under the city zoning code,” it said. Opposition “consisted of speculation and conclusory statements concerning health risks from radiation exposure, the proximity of the cell tower to surrounding houses, and making houses harder to sell,” it said. Comments weren’t supported by evidence and “amounted only to speculation and generalized concerns about health effects, aesthetics, or property values that do not constitute substantial evidence,” said the complaint. After the hearing, the planning commission recommended denying the SUP application, it said.

On Jan. 31 Verizon appealed the denial, and a hearing was set to be heard by the city council on Feb. 19, where Verizon demonstrated the same evidence in support of the tower. It encountered similar opposition comprising “speculation and conclusory statements,” the complaint said. A motion to consider Verizon’s SUP application didn’t receive a second, so its appeal was rescheduled for hearing on March 18 where similar opposition was voiced. The city council voted 6-4 in favor of approving the SUP application, falling one shy of the two-thirds vote needed to reverse the planning committee recommendation, the complaint said.

When preparing for the second city council meeting, Verizon learned that Sapulpa erred when it required Verizon to submit and obtain both a specific use permit and a special exception permit to install a new wireless facility, the complaint said. The Sapulpa zoning code required the carrier to obtain only a special exception permit, it said.

The city violated the TCA in denying Verizon’s applications for three reasons: Its decisions weren’t based on substantial evidence in violation of 47 U.S.C. Section 332(c)(7)(B)(iii); its decisions effectively bar Verizon from providing wireless services, in violation of 47 U.S.C. Section 332(c)(7)(B)(i)(II); and its decision “decision discriminates among functionally equivalent wireless providers,” violating 47 U.S.C. Section 332(c)(7)(B)(i)(I), the complaint said.

Sapulpa’s special exception permit states that wireless facilities such as antennas and support structures, are allowed in agricultural districts and regulated by chapter 9, Section 904.1-6 of the code, the complaint said. The city zoning code states that antennas and antenna support structures "which are accessory to principle uses permitted in the agricultural, office, commercial or industrial zoning districts shall be setback from residential district boundary lines" by 110% of the height of the antenna and antenna support structure as measured at the average ground elevation at the base of the structure, it said.

Verizon’s proposed wireless facility is a principal use in an agricultural district, thereby falling under Section 904.1-6 of the city zoning code, the complaint said. That section states that public protection and utility facilities that have technical location requirements necessitating specific locations in and around areas serviced and “certain open air land uses which can be objectionable to certain other uses” are permitted in certain districts only by special exception and in the remaining districts “by right.”

The installation of antennas and antenna support structures in agricultural and industrial districts requires application approval of the board of adjustment for a special exception, the complaint said. The application must include a site plan showing all proposed improvements and a scale drawing which displays the location of all such existing sites, and sites on which applications are pending for antennas and antenna support structures within a quarter-mile radius of the proposed site, it said.

Verizon “has exhausted all of its administrative remedies,” said the complaint. The company seeks a declaratory judgment that wireless telecommunication facilities require only a special exception under the Sapulpa zoning code. It also seeks an injunction ordering issuance of a permit as a remedy for violation of the TCA.