A federal court ruled that a telecommunications company’s plan to lease a portion of a church’s property for installation of a 120-foot communications tower could proceed, despite the objection of some neighboring landowners.
Background
A telecommunications company proposed to build a 120-foot communications tower on land owned by a church (“Church”). The company hired a telecommunications consultant (“Gulfstream”) to assist with the transaction.
Gulfstream executed a lease agreement with the Church for a 0.139-acre portion of its property.
Gulfstream applied for a Conditional Use Permit (“CUP”) for its proposed tower. The county planning and zoning board voted (5-4) to recommend approval of Gulfstream’sCUP (with certain conditions) but board of county commissioners voted unanimously to deny Gulfstream’s CUP application based on the following “aesthetic” reasons:
- Bright lights on the tower, including a red strobe light at the top;
- Reduction inneighboring landowners’ property valuations;
- The tower would be an “eyesore” for the neighborhood.
The board of county commissioners ultimately found that Gulfstream’s request for a conditional use permit to allow a wireless telecommunications facility “is incompatible with the character of the properties surrounding the subject property and creates a negative aesthetic impact as requested.”
Based on these findings, the board denied Gulfstreams CUP application. This ruling was appealed to a civil court.
A state appeals court began its opinion by noting:
Congress enacted the [Telecommunications Act, or TCA] ‘to promote competition and higher quality in American telecommunications services and encourage the rapid deployment of new telecommunications technologies by, among other things, reducing impediments imposed by local governments to the installation of wireless communications facilities.’ Under the Act, state and local governments retain the authority to regulate the placement, construction, and modification of personal wireless service facilities but their decision making is subject to certain substantive and procedural limitations.
Section 332 of the TCA states: ‘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.’ The same section ‘allows a party to challenge—in federal court—a local zoning board’s refusal to allow the construction of a communications tower.’
The court noted that substantial evidence is generally defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . It requires more than a mere scintilla but less than a preponderance.” The party seeking to overturn the local zoning board’s decision has the burden of proving that the decision “is not supported by substantial evidence.” The court “cannot substitute its own judgment for that of the local board, but it must overturn the board’s decision if the decision is not supported by substantial evidence.”
The court concluded that the board’s denial of Gulfstream’s CUP application for aesthetic reasons was not supported by substantial evidence.
It noted:
The Board’s . . . reasons for denying Gulfstream’s application amount to nothing more than generalized aesthetic objections. . . . Aesthetic concerns may be a valid basis for denial of a permit if substantial evidence of the visual impact of the tower is before the board. Mere generalized concerns regarding aesthetics, however, are insufficient to create substantial evidence justifying the denial of a permit. . . . It is predictable—and entirely understandable—in every case the Court has encountered under the Federal Telecommunications Act that there will be a group of property owners or nearby residents who oppose the erection of communications towers in their neighborhoods for purely subjective and mostly aesthetic reasons. It seems that such towers, like prisons, are just not welcome additions to the landscape, and those who hold those sincere opinions are entitled to some sympathy. This makes for hard cases when they are presented to local political bodies who might find it difficult to explain to their constituents, in an emotionally charged public hearing, the arcane difference between personal preference and substantial evidence. But the law requires the latter—substantial evidence—and while the substantial evidence standard is a lenient one (being something less than a preponderance of the evidence), when a tower erector meets all of the objective and reasonably relevant prerequisites established in advance by local authority for the placement of communications towers, the purely subjective preferences of the towers; putative neighbors, not augmented by any technical or objective facts or evidence, simply do not constitute ‘substantial evidence’ upon which local government can properly rely in denying an application.
What this case means for churches
1. It demonstrates that churches are favored locations for telecommunications towers mainly because church property is viewed as stable by telecommunication companies and not prone to frequent changes in ownership.
2. As the court noted, section 332 of the TCA requires the government to provide “substantial evidence contained in a written record” for any reasons for denying a cell phone tower request. The same standard is used in appeals of local zoning board decisions.
In this case, the court concluded that the board’s decision to deny the CUP application was not supported by enough substantial evidence regarding concerns about aesthetic value and therefore failed.
3. Church leaders must be wary in negotiating the terms of any lease agreement with a telecommunications company. In many cases, the company will insist on a lengthy and irrevocable lease, at a nominal rental fee, with little, if any, opportunity for modification.
At a minimum, a lease should provide the church with the unilateral authority to revoke or alter the terms of the lease for any reason. Church leaders are wise to consult with legal counsel before entering any agreement of this nature.
Gulfstream Towers, LLC v. Brevard Cnty., 2024 WL 2459402 (Fla. App. 2024).