Eastman & Smith Obtains Injunction Permitting Construction of Cell Tower


gavel on desk books in backgroundAfter nine months of administrative proceedings, a municipality in Northwest Ohio denied a special use permit to construct a cell tower in an area with a known coverage gap. The denial led to litigation in which the plaintiff cell tower company, represented by Eastman & Smith, prevailed.

During the municipal proceedings, Eastman & Smith member Gene R. Abercrombie represented the company from the application for a special use permit and throughout multiple hearings. Initially, the municipality’s planning commission unanimously recommended approval of the application. However, members of the public raised questionable concerns regarding health, property value and the environment as well as aesthetics. During the hearings, the company presented evidence substantiating the need for the tower to cure a gap in cell service coverage, as well as the lack of any viable alternative sites. Ultimately, the municipality’s city council denied the special use permit, but provided no reasons for its denial.

Matthew D. Harper and Mark W. Sandretto, members of Eastman & Smith, brought suit in federal court, arguing the municipality's decision violated the federal Telecommunications Act of 1996. That Act limits when and how municipalities can legally deny a zoning permit to construct cell towers and other wireless facilities. The company made three principal arguments. One, the municipality improperly denied the special use permit when it provided no reasons for the denial as required by the Act. Two, even if reasons belatedly proffered by the municipality could now be considered, no substantial evidence supported them, also a requirement of the Act. Three, under the Act, the municipality could not deny approval of a special use permit to construct a cell tower necessary to cure an existing gap in cell service coverage, as the company had proven during the administrative proceedings. The court agreed on all three points and ordered the municipality to approve the special use permit. Of note, the court also rejected the municipality’s request that, even if the Act had been violated, the matter could be remanded so that such violations could be corrected. Rather, the court found the proper remedy to be an injunction requiring the municipality to issue the special use permit.

Having formerly served on the Springfield Township Board of Zoning Appeals, Mr. Abercrombie, a real estate and commercial law attorney, is particularly attuned to zoning issues. Messrs. Harper and Sandretto, both litigation attorneys, handle a wide range of business disputes, including those related to land use, zoning and real estate.  For questions regarding zoning issues, please contact one of these attorneys.