The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
NEW CINGULAR WIRELESS P C S L L C CASE NO. 2:23-CV-01769
VERSUS JUDGE JAMES D. CAIN, JR.
CITY OF JENNINGS LOUISIANA ET AL MAGISTRATE JUDGE LEBLANC
MEMORANDUM RULING
Before the court are cross-motions for summary judgment filed, respectively, by
plaintiff New Cingular Wireless PCS LLC d/b/a AT&T Mobility (“AT&T”) and
defendants City of Jennings, Louisiana, and Philip Arceneaux, in his official capacity as
City Inspector. Docs. 16, 19. Both motions are opposed. Docs. 18, 27.
I.
BACKGROUND
This suit arises from efforts by AT&T to site a wireless telecommunications tower
in the city of Jennings, Louisiana. As set forth in the court’s ruling in a prior case:
AT&T filed an application for rezoning with the city on May 25, 2022,
seeking appropriate permitting for the construction of an 80-foot monopole
tower with a 5-foot lightning rod on property located at 1737 North Cutting
Avenue. The city’s zoning board recommended approval and the ordinance
to rezone (Ordinance No. 1787) was introduced at the city council’s regular
meeting on July 12, 2022. The minutes of that meeting reflect that questions
were raised by one member, who opposed the introduction of the ordinance,
and that AT&T was to contact that member regarding his concerns. At the
August 9 meeting, AT&T asked to postpone consideration of the ordinance
until the next meeting. The request was approved by unanimous vote. Id. At
the next regular council meeting, on September 13, 2022, a member moved
to adopt the motion but failed to obtain a second. The motion therefore failed
and the council president explained that the ordinance was no longer open
for discussion. On November 3, 2022, AT&T also submitted a commercial
building permit application for the cell tower.
New Cingular Wireless PCS LLC v. City of Jennings, No. 2:22-cv-6025 (W.D. La. Sep. 22,
2023), doc. 23, p. 1 (record citations omitted). No action was taken on that application,
however, and AT&T filed a complaint for equitable relief and declaratory judgment in this
court. Id. at doc. 1. There it alleged that the city had unlawfully denied and/or failed to
timely act on the application, in violation of the Communications Act of 1934, as amended
by the Telecommunications Act of 1996 (“TCA”), 47 U.S.C. § 151 et seq. Id. The parties
filed cross-motions for summary judgment and the court found that AT&T was entitled to
relief based on the city’s failure to take final action on the application for rezoning. Id. at
doc. 23. Accordingly, the court granted AT&T’s request for declaratory judgment and
ordered that the city render a decision on the rezoning application within 60 days. Id. It
provided no relief as to the commercial building permit, finding that it was not ripe given
the lack of decision on the zoning application. Id.
The city denied the rezoning application on November 14, 2023, and provided a
written decision one week later. Doc. 1, atts. 5 & 6. On December 18, 2023, AT&T filed
another complaint for equitable relief and declaratory judgment in this court. Doc. 1. It
again alleges that defendants have violated the TCA by (1) failing to provide substantial
evidence in support of their denial; (2) effectively prohibiting the provision of personal
wireless services; and (3) unreasonably discriminating among providers of functionally
equivalent services. Id. The parties now bring cross-motions for partial summary judgment
on Count 1, asking the court to determine defendants’ compliance with the substantial
evidence requirement based on the record. Docs. 16, 19.
II.
SUMMARY JUDGMENT STANDARD
Under Rule 56(a), “[t]he court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The moving party is initially responsible for identifying
portions of pleadings and discovery that show the lack of a genuine issue of material fact.
Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995). He may meet his burden by
pointing out “the absence of evidence supporting the nonmoving party’s case.” Malacara
v. Garber, 353 F.3d 393, 404 (5th Cir. 2003). The non-moving party is then required to go
beyond the pleadings and show that there is a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To this end he must submit
“significant probative evidence” in support of his claim. State Farm Life Ins. Co. v.
Gutterman, 896 F.2d 116, 118 (5th Cir. 1990). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
249 (citations omitted).
A court may not make credibility determinations or weigh the evidence in ruling on
a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000). The court is also required to view all evidence in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this standard, a genuine issue of material
fact exists if a reasonable trier of fact could render a verdict for the nonmoving party.
Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir. 2008).
III.
LAW & APPLICATION
The TCA contains “specific limitations on the traditional authority of state and local
governments to regulate the location, construction, and modification of [wireless
telecommunications] facilities.” City of Arlington, Tex. v. FCC, 569 U.S. 290, 293 (2013).
Under this statute, “[a]ny 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.
§ 332(c)(7)(B)(iii). There is no specific format requirement for the writing, and a defendant
may rely on a detailed hearing transcript to support its decision. Prime Tower Dev. LLC v.
Clayton Cnty., Ga., 2020 WL 13573500, at *3 (N.D. Ga. May 19, 2020) (citing Mun.
Commc’ns LLC v. Cobb Cnty., Ga., 796 F. App’x 663, 669 (11th Cir. 2020)). The reasons
provided “need not be elaborate or even sophisticated, but rather . . . simply clear enough
to enable judicial review.” T-Mobile South, LLC v. City of Roswell, Ga., 574 U.S. 293, 302
(2015).
“Substantial evidence” is “more than a scintilla, but less than a preponderance” and
comprises “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Sprint Spectrum L.P. v. Parish of Plaquemines, 2003 WL 193456,
at *10 (E.D. La. Jan. 28, 2003). The TCA, however, limits the types of reasons that a zoning
authority may use to justify its decision. Accordingly, “generalized concerns about
aesthetics or property values do not constitute substantial evidence.” U.S. Cellular Corp.
v. City of Wichita Falls, Tex., 364 F.3d 250, 256 (5th Cir. 2004). Additionally, because the
TCA “is centrally directed at whether the local zoning authority’s decision is consistent
with the applicable zoning requirements,” the challenged decision must comply with those
requirements. Id.
AT&T first submitted a commercial building permit application regarding the
proposed tower in June 2021. Doc. 16, att. 2, p. 3, ¶ 5. The city’s Code Enforcement
Department denied that application. Id. At the department’s instruction, AT&T instead
filed a Zoning Map Amendment Application, seeking rezoning of the proposed site from
A-2 Residential (Medium Density) to C-2 Commercial (Central Business District). Id.; see
doc. 18, att. 1, p. 4. The city initially denied the requested rezoning, after which AT&T
agreed to reduce the height of the proposed tower from 145 feet to 85 feet. Doc. 16, att. 2,
pp. 6–7. A new application was then presented at a public meeting of the City of Jennings
Planning and Zoning Board on July 12, 2022, where it was unanimously approved. Id. at
112–46 (application); id. at 148 (zoning board minutes). As described above, the city
council failed to issue a decision within the TCA’s deadlines and this court ordered the city
to reach a decision within 60 days. The matter then came before the city council at a public
hearing on November 14, 2023. Despite advance notice, no member of the public spoke in
opposition to the requested rezoning. Doc. 16, att. 3, pp. 82, 102–35.
At the hearing both the AT&T representative and Jennings Mayor Henry Guinn
acknowledged that the city’s Code of Ordinances was silent as to cell tower prohibitions
in either Zones A-2 or C-2.1 Id. at 9–11. Mayor Guinn stated:
I think that there was a . . . slight assumption because the code was silent to
cellular communication that the council would kind of remain silent. And . .
. I think the fear is the creation of—of spot zones in—you know, there—
there may be leeway. There may not be leeway. But you could essentially
open Pandora’s box if you start going throughout the City of Jennings and
each resident enters into a contract with a cellular, you know, company or
provider, and then the next thing you know, you got cell towers popping up
all over the place.
So that—that leads to two topics of discussion. We desperately need
a communications ordinance—a cellular tower ordinance to dictate where
these things can specifically be placed, force these providers to use existing
locations. And I guess my question is, has there ever been an alternative site
that was sought that was already zoned commercial?
Id. at 113. AT&T’s representative responded, describing the company’s search process and
its unsuccessful attempts to find available commercial property within the appropriate
range. Id. at 114–15. She also addressed the issue of an ordinance on cell tower sites:
[Y]ou could absolutely, and you should absolutely go through the process of
crafting and passing a . . . telecommunications ordinance. A lot of parishes,
even more rural parishes, have them. And we regularly advise parishes on to
the extent you—you want advice, you can get all kinds of input from different
stakeholders. We’re happy to do that. I advised, I think, Pointe Coupee last
year on one. This is a problem, you know, and a demand that’s not going to
go away any time soon. So you should absolutely do that.
1 Zone A-2 contains certain “permitted uses,” namely residential buildings, and “special uses permitted by the mayor
and council,” limited to public libraries or museums, private recreational uses, hospitals, and cemeteries and public
utility stations. It then specifies following prohibited uses: (1) mobile homes, (2) motor homes and travel trailers
except when not in use, (3) garage sales, yard sales, merchandise sales, barters or exchanges, except as permitted, and
(4) sale of alcoholic beverages for consumption on the premises. Doc. 18, att. 1, pp. 10–11. Buildings in Zone A-2 are
subject to a 35’ height restriction. Id. at 11.
Zone C-2 permits a number of businesses, including “all business not specifically restricted or prohibited.”
Id. at 17. It prohibits only animal hospitals, building material yards, freight terminals, bulk fuel storage, and farm
cropping. Id. at 18. There is no height restriction for Zone C-2. Id. at 18.
With respect to this tower, unfortunately, it’s before you now. And so
legally, you can’t—it’s kind of already in play, and there needs to be a
decision made on it.
Id. at 115–16.
Councilman LeJeune of District C, where the proposed tower site is located, then
voiced objections. He stated that he had walked the neighborhood and “the vast majority
were opposed to rezoning . . . and did not want a tower in that neighborhood.” Id. at 117.
Councilman Armentor of District B also stated that he had received “a bunch of calls from
District C” opposing the tower site. Id. at 119–20. Mayor Guinn raised the possibility of
leasing space on the water tower. Id. at 123–26. Councilman Van Hook of District E
emphasized that the issue before the council was “simply to decide on whether the zoning
[should be] changed over to commercial from residential.” Id. at 126. The council took
questions from an audience member, who did not appear to oppose the rezoning, and the
mayor provided a brief overview of this dispute’s history. He also stated:
And again, the council has expressed their concerns. I’ve expressed my
concerns. I think it’s fixable. I think it needs to be fixable because nobody’s
moving away from cell phones. But at the same time, we all love our home,
and we don’t want the next door to just become commercial because a
resident enters into a lease agreement and it gets rezoned. So there’s—there’s
a lot of things at play here. More specifically is—the rezoning key is . . . what
do we allow in residential, what do we allow in commercial.
Id. at 130. Councilman Van Hook further emphasized that the council had “worked very
hard to move away from” spot zoning based on resident feedback and instead have
residential areas remain entirely residential. Id. at 131. The motion was then put to a vote
and was opposed unanimously. Id. at 133; doc. 1, att. 5.
On this record, AT&T maintains that the council lacked adequate justification to
deny the rezoning application since it voiced only generalized concerns and appeared to
acknowledge that the tower was permitted under either Zone A-2 Residential or Zone C-2
Commercial. The court disagrees on the latter point. Structures in Zone A-2 are (1) limited
to permitted or special uses, which do not include cell towers, and (2) subject to a height
restriction of 35 feet. See note 1, supra. While the prohibited uses are selective, the fact that
these do not exclude cell towers or hundreds of other potential uses does not mean that
anything falling in the gap is therefore permitted. Instead, the specified “prohibited uses”
(mobile homes, motor homes and travel trailers, garage sales, and sale of alcoholic
beverages) appear to be activities or structures that could otherwise coincide with a
permitted use. Accordingly, the council was within its rights to consider this matter as a
rezoning application and to determine whether the parcel should be converted to
commercial use.
The decision was communicated to AT&T one week after the council meeting in a
letter with the following justification:
Therefore, for the reasons expressed by the City Council in previous Council
meetings, for the reasons discussed during the City Council meeting on
November 14, 2023, which are contained in the attached transcript . . . and
the attached Minutes of the November 14, 2023 Council meeting, and for the
reasons presented by the City in defense of the referenced litigation, the City
of Jennings maintains its position that a building permit will not be issued to
New Cingular Wireless PCS, LLC d/b/a AT&T Mobility for the construction
of a cell tower on the residential property which was the subject of the
proposed ordinance.
As expressed by the Council and Mayor Guinn during the Council
meeting, the City is interested in working with New Cingular Wireless PCS,
LLC d/b/a AT&T to assist in securing a location for a cell tower in a
commercially zoned area that does not present the issues of concern raised
by the community and addressed by the Council.
Doc. 1, att. 6. AT&T maintains that the justifications offered in this writing and the
transcript incorporated by reference are too broad to comply with the TCA’s written
decision and substantial evidence requirements.
The TCA’s minimum justification standards require that “the government’s
decision be supported by evidence that is both substantial and substantiated.” Eco-Site, Inc.
v. City of Huber Heights, Ohio, 2018 WL 3092901, at *5 (S.D. Ohio June 22, 2018) (citing
T-Mobile Cent., LLC v. Charter Twp. Of W. Bloomfield, 691 F.3d 794, 799 (6th Cir. 2012)).
The transcript relays secondhand constituent concerns on a number of issues, but
particularly on the one emphasized in the letter and by Mayor Guinn at the close of the
hearing: the aesthetic impact of the tower and the impact of spot-zoning within residential
areas of the city. To this end, however, no particular evidence of that impact was provided
and only general, unsubstantiated concerns regarding home values and retaining a “small
city” feeling. E.g., doc. 16, att. 3, p. 121 (“And then you’ve got a resident, you know, their
. . . biggest investment is their home, you know? And it’s—it’s hard to go against those
people.”); id. at 128–29 (noting one family’s concern that the tower would “bring back
vibes of the metropolitan city, which is what they moved away from.”).
Generalized aesthetic objections do not qualify as substantial evidence. Cobb Cnty.,
Ga., 796 F. App’x at 668–69. Instead there must be a more developed record before the
local governing board, such as “evidence of an adverse impact on property values or safety
concerns[.]” Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 762 (11th Cir.
2005). Here councilmembers and the mayor only voiced general opposition on behalf of
constituents and no evidence was introduced to support these viewpoints. The availability
of alternative sites to eliminate residents’ concerns may prove relevant.2 Id. (citing
PrimeCo Pers. Commc’ns, Ltd. P’ship v. City of Mequon, 352 F.3d 1147, 1151 (7th Cir.
2003)). But AT&T stated that it was not able to find any available and suitable site already
zoned commercial, despite an exhaustive search, and defendants failed to rebut this
assertion anywhere in the record. Councilmembers and the mayor relayed constituent
concerns in the most general terms, did not provide any evidence to substantiate these
concerns such as petitions, and did not even discuss the proposed site and tower in
relationship to any particular nearby structures.3 No citizen appeared to speak in opposition
to the tower. Furthermore, there is no record of any opposition before the rezoning board.
To the extent the council was concerned with “spot zoning,” it failed to substantiate its
claims of public opposition, substantiate concerns regarding the impact at this particular
site, or point to a provision in the Code of Ordinances limiting such applications. Cf. Mun.
Commc’ns III, LLC v. Columbus, Ga., 2024 WL 3260886, at *9 (M.D. Ga. Jul. 1, 2024)
2 The mayor and councilmembers also raised the possibility of collocating AT&T’s antenna by placing it on a water
tower. But “the preference for collocation comes into play only when erecting an antenna in a new location is
objectionable because of unsightliness or some other factor,” and the court need not consider it if defendants have not
substantiated their concerns in the first instance. City of Mequon, 352 F.3d at 1151.
3 Though there is scant recent Fifth Circuit authority under the TCA’s substantial evidence requirement, this case is
similar to Alltel Corp. v. City of Jackson, Miss., 466 F.Supp.3d 673, 682–83 (S.D. Miss. 2020). In that matter,
councilmembers relayed more specific aesthetic concerns, with one “objecting that ‘many communities use Lakeshore
as a gateway” and ‘everyone coming out on Lakeshore and Terry Road will pass by and notice ‘this gigantic 150-foot
[monopole] tower,’ which ‘is not one of your prettier features’ and is ‘probably one of the poorer designs as far as
how it looks.’” Id. at 680. The court noted a lack of record evidence, beyond a vaguely worded petition signed by 21
residents, to back up the councilmember’s objections. Id. at 682. It also determined that, even if it could assume
residents shared these objections, the councilmember’s arguments were “plainly of the ‘generalized concerns’ variety”
because “[t]here is no evidence that the proposed tower can be seen from the neighborhoods to which [the
councilmember referred (or in which any of those who signed the petition reside).” Id. at 683.
(denial of rezoning application for cell tower, following photo simulations and “extensive
public opposition” at the public hearings, supported by substantial evidence under TCA).
The lack of any substantiation and the vagueness of the councilmembers’ concerns prevent
judicial review in violation of the TCA. Based on the foregoing, the court concludes that
defendants’ decision to deny the rezoning application was not supported by substantial
evidence. Accordingly, AT&T is entitled to summary judgment on Count 1 of its
complaint.
As to the remedy, AT&T seeks a judgment (1) declaring that defendants violated 47
U.S.C. § 332(c)(7)(B)(iii); (2) directing defendants to grant all permits and approvals
necessary to erect the proposed wireless communications tower; and (3) estopping
defendants from taking any action to prevent AT&T from constructing and operating the
proposed wireless communications tower. Courts have found that the proper remedy for a
governing body’s failure to comply with the TCA’s “in writing” or “substantial evidence”
provisions is “injunctive relief compelling the defendant to issue the requested permit.”
Tennessee ex rel. Wireless Income Properties, LLC v. City of Chattanooga, 403 F.3d 392,
399 (6th Cir. 2005) (collecting cases). Such relief “best serves the TCA’s stated goal of
expediting resolution of this type of action.” Verizon Wireless Personal Commc’ns, LP v.
Harrison Cnty., 2015 WL 12564945, at *8 (S.D. Miss. Nov. 9, 2015) (quoting Cellular
Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999)). Given that this matter
has already required federal intervention once before, and that it has been over three years
since AT&T first filed its rezoning application, the court sees no point in remanding the
matter to the city. The city has had two chances to address this matter in compliance with
the statute and AT&T is entitled to an expedited resolution of its application under federal
law. Accordingly, the court will grant the requested declaratory and equitable relief.
IV.
CONCLUSION
For the reasons stated above, the Motion for Partial Summary Judgment [doc. 16]
filed by plaintiff New Cingular Wireless PCS LLC d/b/a AT&T Mobility will be
GRANTED and the Motion for Partial Summary Judgment [doc. 18] filed by defendants
City of Jennings and Philip Arceneaux will be DENIED. Judgment will therefore be
entered in AT&T’s favor on Count | and its requests for declaratory and equitable relief
will be granted, with AT&T’s remaining claims DENIED AS MOOT. The court will also
issue a permanent injunction requiring defendants to grant all permits and approvals
necessary to erect the proposed wireless communications tower and estopping defendants
from taking any action to prevent AT&T from constructing and operating the proposed
wireless communications tower.
THUS DONE AND SIGNED in Chambers on the 16th day of October, 2024.
UNITED STATES DISTRICT JUDGE
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