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Alta Towers, LLC v. The City of New Braunfels

United States District Court, W.D. Texas, San Antonio Division

June 22, 2017

ALTA TOWERS, LLC, Plaintiff,
v.
THE CITY OF NEW BRAUNFELS; THE CITY OF NEW BRAUNFELS ZONING BOARD OF ADJUSTMENT, Defendants.

          ORDER

          XAVIER RODRIGUEZUNITED STATES DISTRICT JUDGE.

         On this day, the Court considered Defendants' Partial Motion for Summary Judgment as to Count 1 of Plaintiff's Complaint, and Plaintiff's Cross-Motion for Summary Judgment as to Counts 1 and 3. For the reasons that follow, Defendants' Motion as to Count 1 is GRANTED, and Plaintiff's Cross-Motion as to Counts 1 and 3 is DENIED.

         BACKGROUND

         Plaintiff Alta Towers, LLC, filed a Complaint in this Court seeking declaratory and injunctive relief against Defendants, The City of New Braunfels (“the City”) and The City of New Braunfels Zoning Board of Adjustment (“the Zoning Board”). The events giving rise to this Complaint are Plaintiff's application to the City Planners (“the Planners”) for the construction of a 150-foot-tall “stealth” telecommunications tower, the Planners' denial of that application, Plaintiff's appeal to the Zoning Board of that denial, and the Zoning Board's affirmance of the Planners' denial. Docket no. 1.

         Plaintiff is a company that builds and manages telecommunications towers. Docket no. 36 at 1. Plaintiff alleges that after a thorough investigation, its client, Verizon, determined that there was a significant coverage gap in the area surrounding the location of Plaintiff's proposed tower. Docket no. 1 at 5. In September 2015, Plaintiff entered a lease agreement with the owner of the property on which Plaintiff planned to site its tower. Docket no. 35-5. The following October, Plaintiff submitted its application to the Planners for administrative approval. Docket no. 35 at 1-2. Plaintiff sought this approval pursuant to the following local ordinance: “Administrative approval for the following towers may be obtained by submitting the required information to the planning department . . . . In any commercial or industrial zoning district, the installation of a stealth tower that is 150 feet in height or less . . . .” New Braunfels, Texas, City Code §§ 5.7-4, 5.7-4(b)(2) (emphasis added). “If the applicant meets the requirements of this chapter, administrative approval for the tower location shall be granted by the planning department, and the applicant may apply for the building permit.” Id. § 5.7-5(e). The parties agree that if Plaintiff's proposed tower were to qualify as a “stealth tower” under the City Code (“the Code”), administrative approval must be granted. It is also undisputed that the Code does not define the term “stealth tower.”

         Plaintiff's proposal is for a 150-foot-tall “slimline monopole with interior antennas.” Docket no. 36-5 at 3. It is designed to hide the fact that it is a telecommunications tower, and as such, it looks like a large flagpole. Encased within the flagpole are the cables and antennas that telecommunications carriers use to provide wireless service to consumers. The land already leased by Plaintiff, on which it proposed to build its tower, is commercially zoned.

         Early in March 2016, one of the Planners, in an email to Plaintiff's lawyer, requested photo simulations of what the tower would look like in its proposed location. Docket no. 35-12 at 6. Plaintiff complied with this request. See Docket no. 35-13 at 4. On April 8, 2016, the Planners sent Plaintiff an email, stating: “your proposed monopole tower does not qualify as a stealth wireless communications tower as required by City ordinance for administrative consideration . . [it] would, therefore, require approval of a [special use permit] . . . .” Id. On April 12, 2016, Plaintiff submitted a revised application, which included the addition of a U.S. flag to the top of the tower in the photo simulations. The next day, Plaintiff sent another email to the Planners, attaching “some information on two similar flag pole installations in New Braunfels for reference.” Docket no. 36-12 at 2. It is undisputed that the two similar towers referenced in that email are essentially identical in height and design to Plaintiff's proposed tower. The parties also agree that those two towers are located in New Braunfels, and that they were granted administrative approval through the same provisions of the Code now at issue. Further, like Plaintiff's proposed tower, the two existing towers are located on commercially zoned properties.

         On April 19, the Planners sent Plaintiff another email, again asserting that the proposed structure did not qualify as a “stealth tower” under the Code:

[Y]our proposed monopole tower does not qualify as a stealth wireless communications tower as required by City ordinance for administrative consideration. To be stealth, the tower must blend into its contextual surroundings rather than prominently stand out. It is staff's opinion that a 150-foot tall monopole tower with a flag on it, does not blend into your proposed location: a highly visible gateway to the Gruene National Register Historic District. It would dominate the skyline of the immediate vicinity and be visible (in some cases unobstructed) to residents in the nearby surrounding neighborhoods.

Docket no. 36-18 at 2.

         Plaintiff subsequently filed an appeal with the Zoning Board, and a public hearing was held. During the hearing, Plaintiff's lawyer presented information as to why the proposed structure constitutes a “stealth tower” and how the tower would benefit the City. At the end of the hearing, the Zoning Board unanimously voted to uphold the determination of the Planners, and several days later sent Plaintiff a letter, stating: “the Zoning Board of Adjustment adopted the reasoning contained in City Staff's written denial submitted to you on April 19, 2016, and issued by Christopher Looney. Another copy of Mr. Looney's denial is attached for your records.” Docket no. 36-18 at 1.

         Plaintiff filed its Complaint with this Court in July 2016, seeking relief under three provisions of the federal Telecommunications Act. Defendants filed a Motion to Dismiss, which this Court denied in December 2016. In May 2017, Defendants filed a Motion for Summary Judgment as to Count 1 of the Complaint. Plaintiff subsequently filed a Cross-Motion for Summary Judgment as to Counts 1 and 3. Attached to Plaintiff's Motion is a lengthy appendix that details the communication between the parties, Plaintiff's initial proposal to the Planners, Plaintiff's appeal to the Zoning Board, and other evidence obtained in discovery.

         DISCUSSION

         I. ...


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