New Cingular Wireless PCS LLC v. Monroe County Board of Commissioners

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

NEW CINGULAR WIRELESS PCS, LLC,

d/b/a AT&T MOBILITY,

Plaintiff,

v. Case No. 3:20-CV-1327-NJR

MONROE COUNTY BOARD OF

COMMISSIONERS and MONROE

COUNTY BOARD OF ZONING

APPEALS,

Defendants.

MEMORANDUM AND ORDER

ROSENSTENGEL, Chief Judge:

Pending before the Court is a Motion for Summary Judgment filed by Plaintiff New

Cingular Wireless PCS, LLC d/b/a AT&T Mobility (“AT&T”) (Doc. 23). AT&T seeks

summary judgment with respect to Counts I, III, and IV of its Complaint against Defendants

Monroe County Board of Zoning Appeals (“Zoning Appeals Board”) and Monroe County

Board of Commissioners (“Board of Commissioners”).

BACKGROUND

AT&T, a wireless telecommunications provider, identified deficiencies in its wireless

network in Monroe County, Illinois (Doc. 23-1, ¶¶ 3, 8). To strengthen its coverage and rectify

the deficiencies, AT&T applied for a Permit for Communication Support Structures in

Monroe County, Illinois, on April 12, 2019 (Docs. 20, ¶ 4; 20-3). In the application, AT&T

proposed a location for a 155-foot monopole tower with accompanying telecommunications

equipment (Doc. 20, ¶ 5). The proposed location is a 50-foot by 70-foot fenced-in, portion of

land at 1332 Valmeyer Road (parcel pin number 04-20-200-002-000) that AT&T would lease

(Id. at ¶ 5, 10). The leased area is not a separate parcel, but is a part of the overall plot of land

(Id. at ¶ 6). Under Monroe County Zoning Code, the proposed land is zoned as MB2 which

permits communications facilities (Id. at ¶ 7). Currently, the owner of the proposed plot of

land independently maintains a self-storage facility on an area outside the leased area (Id. at

¶¶ 8, 11).

To consider the merits of AT&T’s application, the Board of Commissioners held two

public hearings on November 4, 2019, and August 3, 2020 (Id. at ¶¶ 14-17). During the latter,

the Board requested that County Zoning Administrator Chris Voelker interpret Section 40-9-

3(B)(1) of the Zoning Code (the “Ordinance”) (Id. at ¶¶ 18, 19). The Zoning Code instructs

that “[c]ommunication support structures and antennas may be permitted in all zoning

districts[.]” (Doc. 20-2, p. 3). The Ordinance dictates that, “[n]o public office, or principal

repair or storage facilities shall be maintained in connection with the site.” (Id.).

At the August hearing, AT&T argued that the Ordinance intends to prevent

telecommunications carriers from maintaining significant additional operations aside from

the telecommunications facility itself, such as operating a company vehicle repair operation,

commercial sales office, or a company equipment storage program (Doc. 20, ¶ 20). The Zoning

Administrator concluded, however, that the Ordinance prohibited AT&T from installing its

proposed tower “since a storage facility is maintained in connection with the building site.”

(Doc. 20-5, p. 3). AT&T appealed (Doc. 20, ¶ 22).

On September 9, 2020, the Zoning Appeals Board held a public hearing on the appeal

(Id. at ¶ 23). For the appeal, AT&T argued that the Zoning Administrator’s interpretation of

the Ordinance was erroneous and, even if not, the Ordinance likely violated Illinois and

Federal law. The Zoning Board voted to deny the appeal and affirm the interpretation1 (Id.

at ¶¶ 27-28). At another public meeting on October 5, 2020, the Board of Commissioners voted

unanimously to uphold the decision of the Zoning Administrator denying AT&T’s

application because the parcel of land contains a storage facility (Id. at ¶ 29).

The Zoning Board issued a formal written decision in November 2020, summarizing

the September hearing, which noted the Zoning Board’s vote breakdown and listed the

Zoning Administrator’s ordinance interpretation as the sole reason for the application denial

(Id. at ¶¶ 32, 33). The minutes for the September meeting were published on the County

website in December 2020 (Id. at ¶ 30).

On December 10, 2020, AT&T initiated this action alleging that the Board of

Commissioners and Zoning Appeals Board unlawfully denied its request to build a wireless

communications facility (Doc. 1). AT&T alleges that the County’s decision violates the

Federal Telecommunications Act (Counts I and II) and requires judicial review (Count III),

and that the Ordinance, as interpreted by the County, violates the Illinois Counties Code

(Count IV). AT&T now moves for summary judgment as to Counts I, III, and IV and asks the

Court to review, vacate, and reverse the Defendants’ decision to deny the application.

SUMMARY JUDGMENT MOTION

The posture of this case is worth discussing. AT&T filed a partial motion for summary

judgment. Defendants did not file a cross-motion, but responded to AT&T’s motion. The

issues before the Court are whether the Board’s interpretation of the relevant Ordinance was

reasonable as a matter of law, whether the Ordinance conflicts with Illinois law, and whether

1 The Zoning Board voted two in favor of overturning the Zoning Administrator’s interpretation and two

against overturning the interpretation with one abstention (Doc. 20, ¶ 27).

substantial evidence supported the Board’s denial. These are all questions that can be decided

as a matter of law, as there are no genuine issues of fact in dispute.2 Because AT&T moved

for summary judgment, if the Court finds against AT&T on any count, the Court must sua

sponte grant summary judgment to Defendants. This is odd. While the Court may sua sponte

grant summary judgment to the non-moving party when there has been a motion for

summary judgment but no cross-motion, the practice is not encouraged. International Union

of Operating Engineers, Local 150, AFL-CIO v. Village of Orland Park, 139 F. Supp. 950, 957 (N.D.

Ill. 2001); Goldstein v. Fidelity & Guar. Ins. Underwriters, 86 F.3d 749, 751 (7th Cir. 1996). The

practice can be proper when a court agrees there are no material factual disputes but is

compelled to enter judgment in the non-movant’s favor, so long as the movant is afforded

necessary safeguards, like notice that summary judgment is being considered. Goldstein, 86

F.3d at 751; see also Golden Years Homestead, Inc. v. Buckland, 557 F.3d 457, 461 (7th Cir. 2009).

Additionally, it would be unnecessary to invite Defendants to file a motion for summary

judgment, as such practice would be redundant and unnecessary due to the nature of this

case.

This action arises as a review of a zoning board denial. As such, the standard of review

is not whether a genuine issue of material fact exists pursuant to Rule 56, but rather, whether

the Monroe County Board of Commissioners and Zoning Appeals Board made a decision

supported by “substantial evidence.” FED. R. Civ. P. 56(a); 47 U.S.C. § 332(c)(7)(B)(ii) (“Any

decision by a State or local government or instrumentality thereof to deny a request to place,

While Defendants state that most of the facts are not in dispute, they claim that the inferences to be

drawn from those facts are in dispute (Doc. 30, p. 3); however, this is a review of a zoning board

decision—the Board’s decision and the facts surrounding it are in the record.

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construct, or modify personal wireless service facilities shall be in writing and supported by

substantial evidence contained in a written record.”). Essentially, the district court serves in

an appellate function where the trial of sorts has already occurred through the local board’s

decision. See PrimeCo Personal Communications v. City of Mequon, 242 F. Supp. 2d 567, 574 (E.D.

Wis. 2003), aff’d, 352 F.3d 1147 (7th Cir. 2003).

Instead of getting tangled in this strange web, the Court will construe AT&T’s motion

for summary judgment as a motion for an order reversing the Board’s denial, and

Defendants’ response as a request for affirmance.3

DISCUSSION

I. Count I – Substantial Evidence under the Federal Telecommunications Act (“FTA”)

AT&T asserts that Defendants failed to comply with the FTA’s requirement to provide

a written record explaining the rationale and substantial evidence supporting the denial. On

the contrary, Defendants stress that the Board meeting minutes satisfy the low standard for

a written record. Because the denial here is straightforward, Defendants assert that no

extensive detail or analysis was needed to ensure AT&T and a reviewing court could

understand the reasons for denial.

The TCA requires that a local board’s decision “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(c)(7)(B)(iii). Essentially, localities

must provide reasons when they deny cell phone tower siting applications. T-Mobile South,

3 Defendants, in their response, state that the County’s decision “should be affirmed” unless clearly

erroneous. As such, it seems Defendants understand what disposition of this motion would entail

(Doc. 30, p. 3).

LLC v. City of Roswell, Ga., 574 U.S. 293, 302 (2015). These reasons need not be elaborate or

even sophisticated, but rather simply clear enough to enable judicial review. Id. The

requirement of substantial evidence review under the TCA does not create a substantive

federal limitation upon local land use regulatory power. VoiceStream Minneapolis, Inc. v. St.

Croix County, 342 F.3d 818, 830 (7th Cir. 2003). Rather, the substantial evidence test acts as a

procedural safeguard centrally directed at whether a local zoning authority’s decision is

consistent with the applicable local zoning requirements. Id. Further, this test is highly

deferential to the local board. Id.

As with the standard of review used by courts to review an administrative agency’s

decision, only “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion” is required. Id; see also Aegerter v. City of Delafield, Wisconsin, 174 F.3d

886, 889 (7th Cir. 1999). Likewise, the party seeking to overturn the local zoning board’s

decision bears the burden of proving that the decision is unsupported by substantial

evidence. VoiceStream, 342 F.3d at 830. A local zoning board’s decision is not supported by

substantial evidence, for example, when a generalized expression of concern regarding

aesthetics of a telecommunications tower is the only basis for denial recorded. Id. In

determining whether the evidence before an agency was substantial, a court views the record

in its entirety and takes account of evidence unfavorable to the agency’s decision. See

American Textile Mfr. Inst., Inc. v. Donovan, 452 U.S. 490, 523 (1981). A locality may rely on

detailed meeting minutes to communicate its decision, although writing a short statement

providing its reasons can help avoid prolonging litigation. T-Mobile South, LLC, 574 U.S. at

303.

Here, the record on review contains minutes from the Board of Commissioners’

meetings on November 2, 2019, August 3, 2020, and October 5, 2020, as well as the minutes

of the Zoning Board of Appeals hearing on September 9, 2020 (Docs. 20-4, 20-5, 20-6, 20-7, 20-

8). The minutes contain a brief description of the happenings of the meeting, along with a

summary of the decision and information considered.

The Zoning Appeals Board decision (Doc. 20-6) provided AT&T a clear description of

the basis for the denial. As an initial note, the record indicates that the County found the

proposed property unsuitable for a cell tower because a local ordinance prohibited storage

facilities from being operated on the same property. The Board of Commissioners and Zoning

Appeals Board based this decision on the Zoning Administrator’s decision along with

AT&T’s arguments in opposition. AT&T points to the many additional questions asked by

the County Board of Commissioners as proof that the decision was not rooted in substantial

evidence. Though the Board asked these questions, they do not appear to have influenced the

ultimate decision, which is likely why any discussion of these topics is omitted from the

Board’s rationale. The Board considered the Zoning Administrator’s interpretation of the

County’s Zoning Ordinance and AT&T’s alternative arguments, which allowed the Board to

come to a decision which is clearly communicated in the meeting minutes and included notes.

This is different from a situation where the local board refers broadly to aesthetics,

home values, or other generalized expressions of concern as its only basis for denial.

Furthermore, “[n]othing in the Telecommunications Act forbids local authorities from

applying general and nondiscriminatory standards derived from zoning codes.” Sprint

Spectrum, LP v. City of Jeffersonville Bd. of Zoning Appeals, No. 4:05-cv-154, 2008 WL 833494

(S.D. Ind. Mar. 27, 2008) (quoting Aegerter, 174 F.3d at 891).

Having carefully reviewed the record, substantial evidence supported the denial. The

Board explained its rationale with sufficient specificity regarding how and why it concluded

the way it did—primarily, violation of a local ordinance. Accordingly, AT&T’s motion for

summary judgment, construed by this Court as a motion to overturn Defendants’ decision,

is denied.

II. Count III - Judicial Review of Zoning Decision

The Monroe County Ordinance at issue provides in relevant part:

(B) General. Communication support structures and antennas may be

permitted in all zoning districts by the County Board following a public

hearing. Notice of public hearing shall be published at least 15 days

before the hearing in a newspaper of general circulation published in

the County. The County Board shall make its decision on all requests

within 75 days of the submission of a completed application by the

telecommunications carrier.

The following conditions must also be met:

(1) No public office, or principal repair or storage facilities shall

be maintained in connection with the site.

(2) The building housing any equipment, shall be designed and

constructed to conform to the general character of the

neighborhood or area.

(3) Landscaping and Buffer Areas must be a minimum of a six

foot fence or wall with a ten-foot planting screen around the

outside, fenced area. Shrubbery and trees must be not less than

five feet in height with expected growth of at least 10 feet. The

screens must be planted within 30 days after support structure

is completed.

(4) Antennas, attached to a communication support structure or

other tall structures (e.g., smokestack, water tower, or building)

that do not exceed the height of the structure by more than 15

feet, and support structures 65 feet or less in height owned by an

amateur radio operator licensed by Federal Communication

Commission, will be a permitted use.

Monroe County Code of Ordinances § 40-9-3(B).

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AT&T argues that Defendants denied its application under an unreasonable

interpretation of the Ordinance. According to AT&T, its interpretation of the Ordinance—that

self-storage businesses are only “maintained in connection with” telecommunications

facilities when they are related or operated by the same owner on the same plot of land—is

the correct and reasonable interpretation. Parsing the Zoning Code’s definition of “site,”

AT&T notes that the term is synonymous with the only defined term “lot,” which is defined

as, “[a] tract of land intended as a unit for the purpose (whether immediate or future) of

transfer of ownership or development.” Monroe County Zoning Code of Ordinances § 40-1-

8. Further, “a ‘lot’ may not coincide with a lot of record.” Id. at § 40-1-9. Thus, AT&T reasons

that the term “site” only applies to the leased portion, not the entire plot of land. Moreover,

AT&T argues that, even if Defendants reasonably interpreted the language of the Ordinance,

the rationale behind such a restrictive reading is unreasonable as there is no purpose in

preventing telecommunications facilities on the same lot as wholly unrelated storage

facilities.

Alternatively, Defendants contend that the County Zoning Administrator correctly

interpreted the Ordinance. Specifically, Defendants contest the characterization of the

property at issue as not a storage facility, but rather, a small section of leased property on

which a storage facility independently operates. Further, Defendants disagree with AT&T’s

understanding of the term “in connection with” appearing in the Ordinance. Defendants take

the position that, because the cell tower would be located on a portion of a site owned by a

landlord who also operates a storage facility, such facility is operated in connection with the

proposed cell tower site. Further, Defendants contend that the words “site” and “parcel” are

synonymous so its rationale in determining that the term “site” applies to the entire plot of

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land versus just a portion is reasonable.

Pursuant to Illinois Law, under the Counties Code, “[a]ny decision regarding a facility

by the county board or a county agency or official shall be supported by written findings of

fact,” moreover, the reviewing court shall “review the reasonableness of any adverse decision

and the plaintiff shall bear the burden of proof, but there shall be no presumption of the

validity of the decision.” 55 ILCS 5/5-12001.1(f)(9). Because the underlying rationale for

denying AT&T’s application was an interpretation of a local ordinance, the Court can

determine whether the Board’s interpretation was indeed reasonable.

The Court declines to perform an in-depth analysis regarding the Board’s

interpretation of the Ordinance. Under a reasonableness standard, Defendants provide

ample support for their interpretation, and their construction of the Ordinance does not run

afoul of the typical canons of statutory construction. The Court denies AT&T’s motion for

summary judgment as to Count III.

III. Count IV – Violation of 55 ILCS 5/5-12001.1

AT&T maintains that summary judgment is proper because Defendants’ denial of the

application overreached the power conferred to the County by Illinois state law. Defendants’

interpretation of the Ordinance, according to AT&T, conflicts with multiple provisions of the

Telecom Facilities Statute and, therefore, the Ordinance is preempted. Specifically, AT&T

urges that Illinois’s statute prevents a county from prohibiting multiple structures or uses on

a zoning lot and that the proposed tower is expressly permitted by the statute (referencing

55 ILCS 5/5-12001.1(f)(2) and (g)).

On the other hand, Defendants argue that the Ordinance does not violate the Illinois

Telecom Facilities Statute and disagrees with AT&T’s interpretation of the statute as applied

to the Ordinance. According to Defendants, the statute prohibits general restrictions of

multiple uses on a zoning lot. The Ordinance does not prohibit multiple uses generally,

rather, it prohibits specific uses like placement of a cell tower where storage facilities operate.

Further, Defendants urge that adopting AT&T’s interpretations would defy the express

language in the statute conferring power to county boards to regulate the location of

telecommunications facilities. Moreover, while the Illinois Telcom Facilities Statute permits

a tower based on size and proximity to residential areas, Defendants argue the statute does

not mandate approval of such towers.

The Illinois Telecom Facilities Statute, 55 ILCS 5/5-12001.1(f)(2), provides in relevant

part: “[a] facility may be located on the same zoning lot as one or more other structures or

uses without violating any ordinance or regulation that prohibits or limits multiple

structures, buildings, or uses on a zoning lot.”

Moreover, Section (g) contains additional provisions applying to counties with a

population of less than 180,000, such as Monroe County, including that:

(1) A facility is permitted if its supporting structure is a qualifying structure or

if both of the following conditions are met:

(A) the height of the facility shall not exceed 200 feet, except that if a

facility is located more than one and one-half miles from the corporate

limits of any municipality with a population of 25,000 or more the

height of the facility shall not exceed 350 feet; and

(B) the horizontal separation distance to the nearest principal

residential building shall not be less than the height of the supporting

structure; except that if the supporting structure exceeds 99 feet in

height, the horizontal separation distance to the nearest principal

residential building shall be at least 100 feet or 80% of the height of the

supporting structure, whichever is greater. Compliance with this

paragraph shall only be evaluated as of the time that a building permit

application for the facility is submitted. If the supporting structure is

not an antenna tower this paragraph is satisfied.

55 ILCS 5/5-12001.1(g).

AT&T’s interpretation of Section (f)(2) is well-taken, however, the Court finds that

Monroe County’s Ordinance does not violate the section. The Ordinance states, “No public

office, or principal repair or storage facilities shall be maintained in connection with the site.”

This is not a prohibition against multiple structures, buildings, or uses on a zoning lot. In fact,

the zoning lot that AT&T seeks to build its tower on allows multiple structures, buildings,

and uses. Instead, the Ordinance prohibits specific operations maintained in connection with

a telecommunications site, which is different. AT&T conceded as much when it argued at the

August 3 hearing that the Ordinance intends to prevent telecommunications carriers from

maintaining significant additional operations aside from the telecommunications facility

(Doc. 20, ¶ 20).

The Court is not persuaded by AT&T’s construction of Section(g). Primarily, AT&T’s

interpretation leads to an absurd result. See Hubble v. Bi-State Development Agency of the Illinois-

Missouri Metropolitan District, 238 Ill.2d 262, 345 Ill.Dec. 44, 938 N.E.2d 483, 497 (2010) (“[A]

court construing the language of a statute will assume that the legislature did not intend to

produce an absurd or unjust result.”). To read Section (g) as AT&T suggests would

completely eliminate any power or discretion a county has in approving or denying location

of cell towers or facilities that meet these size and general structural requirements. A facility

that meets the requirements in Section (g) may be permitted, but the provision does not

suggest that a facility can be placed in any location where the facility could meet these

specifications. Under such an interpretation, any telecommunications provider could dictate

where a facility goes so long as it complies with these physical requirements. This result is

indeed absurd considering the edict in 55 ILCS 5/5-12001.1(a) stating, “the county board or

board of county commissioners of any county shall have the power to regulate the location

of the facilities.”

a. Timing

Another issue AT&T raises in connection with this claim is timing. Pursuant to Illinois

law, a county board must hold a hearing for eligible telecommunication site applications no

later than 75 days after submission. 55 ILCS 5/5-12001.1(g)(2). If the county fails to do so, the

application shall be deemed approved. Id. Here, as the first hearing occurred 206 days after

the application submission, AT&T argues that the application should be deemed approved.

Without denying a violation of the timing requirements, Defendants argue that AT&T

failed to properly raise this issue in the Complaint. Therefore, they were without notice as to

such claim prior to summary judgment. As such, Defendants contend the purported timing

defect should not be considered. In contravention to this argument, AT&T argues that its

Complaint reserved this argument in stating, “The timeliness and propriety of the County’s

adverse decision concerning AT&T’s facility is subject to de novo judicial review without any

presumption of validity.” (Doc. 1, ¶ 58).

The Court disagrees with AT&T that its complaint sufficiently alleged improper

timing in the issuance of the Board’s decision. The only paragraph in the Complaint that

references timing is a legal conclusion regarding the standard with which the Court should

review the timing and propriety of the denial. While plaintiffs may alter their original legal

theories as a case naturally progresses, factual theories must be raised in the complaint.

Chessie Logistics Company v. Krinos Holdings, Inc., 867 F.3d 852, 859 (7th Cir. 2017). An attempt

to adjust the factual basis for a claim at summary judgment may be construed as a plaintiff’s

attempt to amend its complaint. Id. at 860. Where a new legal theory is raised at summary

judgment, a court should consider the consequences of allowing the plaintiff’s new theory

before electing to do so. Id. AT&T’s new theory as to timing involves both fact and law. Both

the decision to allow amendment or to allow a new legal theory involve consideration of

whether such allowance would cause unreasonable delay, create costs and difficulties in

defending the suit, or unfairly harm the defendant. Id.; see also Whitaker v. Milwaukee County,

Wisconsin, 772 F.3d 802, 808-09 (7th Cir. 2014); see also Prayitno v. Nextep Funding LLC, No. 17

C 4310, 2020 WL 3414955, at *4-5 (N.D. Ill. June 22, 2020).

AT&T’s complaint did not allege specific facts supporting improper timing, albeit the

facts around timing of the hearings and subsequent decisions were generally known from

the Complaint. Other than its summary judgment motion after the close of discovery, AT&T

has not otherwise signaled its pursuit of a theory of improper timing. While the introduction

of a new factual or legal theory at such a late stage of the case may create delay or expense,

here, the new theory should not require additional discovery and would not cause

Defendants undue burden to defend. The Court, in its discretion, will allow amendment, post

summary judgment, of the Complaint to encompass this theory. Further, the parties may

request a temporary reopening of discovery if necessary. Thus, AT&T is granted leave to

amend its Complaint as to this issue on or before October 14, 2022.

CONCLUSION

For the reasons set forth above, the Motion for Summary Judgment (Doc. 23),

construed by the Court as a motion to overturn the Board’s decision, filed by Plaintiff New

Cingular Wireless PCS, LLC is DENIED. The County’s decision is affirmed as to Counts I

and III. Plaintiff is granted leave to amend its Complaint as to the timing claim under Count

IV on or before October 14, 2022. Further, the case proceeds on Count II.

The Court will set a status conference by separate order for the purpose of discussing

the next steps needed to bring this action to resolution.

IT IS SO ORDERED.

DATED: September 30, 2022 7 >

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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