A contractor for AT&T filed a lawsuit in U.S. District Court Feb. 6 against the Mobile Zoning Board of Adjustments and the Mobile Planning Commission for recently ruling against an application to construct a 150-foot cell phone tower off Cottage Hill Road.
Claiming violations of the Telecommunications Act of 1996, the complaint said the application’s denial was “not supported by substantial evidence, and the BZA and Planning Board’s intentional actions…have the effect of improperly prohibiting the provision of wireless services.”
Attorney B.J. Lyon, who represented some of the neighboring property owners in opposing the tower, said the federal lawsuit is a “sneaky” attempt to bypass local and state authority and challenge two boards that serve on a voluntary basis.
“They may have had every proper reason in the world to deny the application, but if they didn’t do it in a manner consistent with the Telecommunications Act, the court has the authority to enter an order compelling the approval of the application or issuance of building permits,” Lyon said. “[The applicant] could lose the battle and win the war because of a lack of attention and documentation on the part of each board to these very technical Telecommunication Act requirements.”
Since the initial application was filed last September, residents of the Muir Woods neighborhood off Lloyd’s Lane clashed with AT&T over the tower proposed for wooded property at 6311 Cottage Hill Road, but ultimately the planning commission denied it Jan. 16.
In a typical situation, Lyon said, an applicant might seek “administrative remedies” such as appeals to the Mobile City Council or Circuit Court.
“The Telecommunications Act short-circuits all that stuff and allows them to go straight to federal court,” he said. “That’s the federal government, in all its wisdom, saying ‘the states don’t know what they’re doing and we’re going to take control of this.’”
Lyon said the plaintiff, Foresite LLC, will likely attempt to prove the volunteer boards didn’t keep meticulous enough documentation for the denial to be sustained.
“They’ll hang their hat on no citation of evidence in the written record,” he said.
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