C-Call Corp. v. Zoning Board of Appeals

September 18, 1998.
                         No. 5-97-1036
                             IN THE
                  APPELLATE COURT OF ILLINOIS
                         FIFTH DISTRICT
_______________________________________________________________
C-CALL CORPORATION, d/b/a NEXTEL   )  Appeal from the
COMMUNICATIONS,                    )  Circuit Court of
                                   )  Madison County.
     Plaintiff-Appellee,           )
                                   )
v.                                 )  No. 97-MR-114
                                   )
THE ZONING BOARD OF APPEALS OF     )
THE CITY OF EDWARDSVILLE,          )  Honorable
                                   )  Ann Callis Rongey,
     Defendant-Appellant.          )  Judge, presiding.
_______________________________________________________________

     JUSTICE KUEHN delivered the opinion of the court:
     This case requires our application of recently enacted section
704(a) of the Federal Telecommunications Act of 1996 (TCA) (47
U.S.C.A. 332(c)(7) (West Supp. 1997)) concerning state and local
government authority to regulate and limit the construction of
wireless communication services facilities.  Specifically,
defendant, the Zoning Board of Appeals of the City of Edwardsville
(the Board), appeals the Madison County Circuit Court's order
reversing the Board's denial of a special-use-permit application
submitted by plaintiff, C-Call Corporation, doing business as
Nextel Communications (C-Call).  We affirm.
     On December 13, 1996, C-Call filed an application for a
special-use permit with the Board, seeking permission for the
construction of a cellular tower on land located at 214 South Brown
Street in Edwardsville, property zoned as "light manufacturing." 
Following a January 27, 1997, public hearing, the Board denied the
permit request in a letter dated February 14, 1997.  
     On March 10, 1997, C-Call filed its complaint for
administrative review in Madison County Circuit Court, pursuant to
section 704(a) of the TCA (47 U.S.C.A. 332(c)(7)(B)(v) (West Supp.
1997)).  The complaint sought both the reversal of the Board's
decision and a mandatory injunction ordering the Board to issue a
special-use permit.  On October 16, 1997, the circuit court entered
judgment in C-Call's favor, finding that the Board had violated
section 704(a) of the TCA by unfairly discriminating against C-Call
in denying the special-use permit and failing to base that decision
on substantial evidence contained in a written record.  See 47
U.S.C.A. 332(c)(7)(B)(iii), 332(c)(7)(B)(i)(I) (West Supp. 1997). 
The circuit court's order further required that the Board conduct
a hearing in compliance with the TCA.  On October 28, 1997, C-Call
filed a motion to modify judgment, requesting that the circuit
court order the Board to issue a special-use permit for the
construction of its proposed cellular tower.  The circuit court
subsequently granted this motion and modified its order
accordingly.  The Board now appeals this modified order.  
     Enacted in 1996, "[t]he TCA is expansive legislation designed
primarily to increase competition in the telecommunications
industry."  BellSouth Mobility, Inc. v. Gwinnett County, Georgia,
944 F. Supp. 923, 927 (N.D. Ga. 1996).  This Act is a congressional
attempt to prevent local authorities from delaying wireless
providers in the hearing process.  Sprint Spectrum L.P. v. Town of
Easton, 982 F. Supp. 47, 50 (D. Mass. 1997). 
     In order to accelerate the deployment of telecommunications
technology, the TCA places certain substantive and procedural
limitations upon the authority of state and local governments to
regulate and limit the construction of wireless communication
services facilities.  Virginia Metronet, Inc. v. Board of
Supervisors of James City County, Virginia, 984 F. Supp. 966, 970
(E.D. Va. 1998).  While the TCA does not completely preempt that
state and local government authority, section 704(a) does impose
limitations pertinent to the case before us:
          "Preservation of local zoning authority
               (A)  General authority
                         Except as provided in this paragraph, nothing in
          this chapter shall limit or affect the authority of a
          State or local government or instrumentality thereof over
          decisions regarding the placement, construction, and
          modification of personal wireless service facilities.
               (B)  Limitations
                         (i)  the regulation of the placement, construction,
          and modification of personal wireless service facilities
          by any State or local government or instrumentality
          thereof--
                                   (I)  shall not unreasonably discriminate among
               providers of functionally equivalent services ***.
                              * * *
                         (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.A. 332(c)(7) (West Supp. 1997).
Section 704(a) further provides that appeals of such government
agency decisions may be taken to either the Federal district court
in which the facilities are located or a state court of competent
jurisdiction.  BellSouth Mobility, Inc., 944 F. Supp.  at 929.   
In this case, the Board's written decision references the
applicable considerations provided in the City of Edwardsville's
special-use-permit zoning ordinance:
               "(d) Requirements for Authorization: No special use
     permit shall be granted by the Board unless the following
     factors have been considered and made part of the record:
                         (1)  Existing uses and zoning of nearby property and
               relationship to Edwardsville's adopted
               Comprehensive Plan.
                         (2)  Extent to which property value diminishes adjacent
               to the zoned parcels.  Value decrease to be
               supplied by the petitioner and made by professional
               appraiser.
                         (3)  Extent to which the proposed change alters or
               promotes the public health, safety, morals or
               general welfare.
                         (4)  The relative gain to the public as compared to the
               hardship imposed upon the property owners, and
               there is a need for the proposed special use.
                         (5)  The suitability of the subject property for the
               zoned purposes indicated by ordinance." 
          City of Edwardsville Municipal Code 1244.02.2 (amended
     February 6, 1996).  
Addressing these factors, the Board determined that the proposed
tower could adversely affect public health and safety, it would be
inconsistent with the nearby property's existing use and zoning, it
would diminish the value of adjacent parcels, the relative public
gain would not outweigh property owner hardship, and a need for
special use was not demonstrated.  
     The dispositive issue in this appeal is whether that Board
decision is based upon substantial evidence.  Although the TCA does
not define "substantial evidence," courts have interpreted the term
in construing section 704(a).  "Substantial evidence" is "`such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'"  BellSouth Mobility, Inc., 944 F. Supp.  at
929, quoting Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477, 71 S. Ct. 456, 459, 95 L. Ed. 456, 462
(1951).  It is evidence that is more than a scintilla but less than
a preponderance.  Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 743 (C.D. Ill. 1997). 
     Based upon the record before us, we cannot say that the
Board's decision is supported by substantial evidence.
     The record reflects that, at the public hearing, a C-Call
representative explained the specifications of the proposed
cellular tower.  The monopole structure would be 170 feet in height
and would be enclosed in a fenced area of approximately 2,500
square feet.  It could withstand one inch of ice and 100-mile-per-
hour winds.  Furthermore, the soil at the proposed site would be
tested to ensure that it could hold a proper footing for the tower.
     In response, the Board produced no evidence addressing C-
Call's application.  Instead, the record indicates that the only
evidence in opposition to the application was testimony given by
local objectors.  That testimony merely expressed generalized
concern about safety, decreasing property values, and aesthetics. 
Such testimony does not amount to the "substantial evidence"
required by section 704(a) of the TCA. In confronting strikingly
similar circumstances, the United States District Court for the
Central District of Illinois held that generalized concern raised
by objectors at a public hearing does not constitute substantial
evidence:
          "The opposing evidence consisted of local property owners'
     objections based on health concerns, fears about diminished
     property values, and generalized concern that Plaintiff had
     not adequately investigated alternate sites.  Under scrutiny,
     none of this evidence amounts to more than a scintilla of
     support for the County's final decision."  Illinois RSA No. 3,
     Inc., 963 F. Supp.  at 744.  
     The fact remains that the record contains insufficient
evidence with respect to the applicable ordinance factors to
support the Board's denial of C-Call's special-use-permit
application.  We recognize that the City of Edwardsville's special-
use-permit zoning ordinance seemingly places the burden of proof on
the applicant. However, the TCA shifts the burden of proof to the
government agency that denied the siting request rather than
requiring the applicant to produce substantial evidence supporting
its approval.  Sprint Spectrum L.P., 982 F. Supp.  at 49.  Our
review of the record fails to reveal the substantial evidence
required to meet the Board's burden.  Therefore, we conclude that
the trial court was correct in finding that the Board's denial of
C-Call's special-use-permit application was unsupported by
substantial evidence in a written record.[fn1]
     We now turn to the propriety of the circuit court's granting
of a mandatory injunction ordering the Board to issue C-Call a
special use permit to construct the proposed cellular tower.  We
note that section 704(a) of the TCA requires that "[t]he court
shall hear and decide such action on an expedited basis."  47
U.S.C.A. 332(c)(7)(B)(v) (West Supp. 1997).  Although the circuit
court alternatively could have remanded the matter back to the
Board for further hearing, such action "would frustrate the TCA's
intent to provide aggrieved parties full relief on an expedited
basis."  BellSouth Mobility Inc., 944 F. Supp.  at 929.  In failing
to produce substantial evidence at the January 27, 1997, public
hearing, the Board squandered its opportunity to meet its burden of
proof under the TCA.  We see no reason to further delay the
resolution of this case against the TCA's intent.  Thus, we
conclude that the circuit court granted appropriate relief in this
case.
     Accordingly, the judgment of the Madison County Circuit Court
is affirmed.

     Affirmed.

     HOPKINS and GOLDENHERSH, JJ., concur.
     [fn1]     Although our decision today need not address the
issue of whether the Board's denial constitutes unreasonable
discrimination in violation of section 704(a) of the TCA (47
U.S.C.A. 332(c)(7)(B)(i)(I) (West Supp. 1997)), we note that the
same safety concerns expressed by the Board could arguably apply to
other permitted cellular tower sites.