Walla Walla Seeks Summary Judgment on AT&T’s Claim That City Violated Section 332

Walla Walla, Washington, seeks summary judgment against AT&T’s claim that the city violated Section 332 of the Telecommunications Act. It's challenging AT&T's contention that a city hearing examiner’s denial of its application to build a 65-foot cell tower wasn’t supported by substantial evidence (see 2312040002), said Walla Walla’s motion Wednesday (docket 4:23-cv-05162) in U.S. District Court for Eastern Washington in Richland.

The examiner’s Nov. 2 denial determined that AT&T’s proposed tower doesn’t meet the definition of “stealth” and that it unreasonably affects nearby properties “due to its location, visibility, and ineffectiveness of the proposed stealth technology,” said the motion. The examiner also determined that AT&T’s application didn’t satisfy the city’s “conditional use standards” and that the proposed tower is neither compatible with nor in harmony with “the particular area where the facility is proposed to be built,” it said.

The examiner also found that AT&T didn’t make a “comprehensive effort” to identify alternative locations for the proposed tower in compliance with the city’s “siting criteria,” said the motion. Any of those reasons “is sufficient for denial of AT&T’s application,” because the city zoning code provides that no person may use any land, except in accordance with all the applicable provisions of the code, it said.

Local law authorizes rejection of AT&T’s proposed tower for failing to satisfy the city’s stealth requirements, said the motion. The site that AT&T picked for the tower is zoned “neighborhood residential,” it said. The city zoning code prohibits cell towers on properties so zoned unless they’re designed using stealth technology, meaning that the tower is required to blend into the surrounding environment, it said.

Most of AT&T’s photo-simulations of the proposed tower contain foreground images “that obscure the tower’s scale,” said the motion. But one AT&T photo-simulation reveals “the massive size of the tower in comparison to its immediate vicinity despite being cleverly positioned far away in the distance and partially hidden behind a foreground utility pole,” it said. The examiner found that photo-simulation was “probative” when determining that the faux tree cell tower wouldn't blend into its surrounding environment, it said.

Local law authorizes the denial of AT&T’s application for failing to meet city conditional use standards, said the motion. “Substantial evidence supports the determination that AT&T’s facility would generate nuisance conditions and not be compatible with its surrounding area,” it said. The Nov. 2 denial explains that findings regarding the height and appearance of the tower, “along with the ineffective attempt to disguise the tower as a tree,” were relevant to both the question of stealth and the determination that AT&T’s application violates conditional use prohibitions, it said.

Local law also authorizes denial of AT&T’s application for failing to adequately consider alternative sites for the tower, said the motion. AT&T’s initial November 2022 application “made nothing more than conclusory assertions that AT&T had looked but couldn’t find a more suitable site,” it said. AT&T later submitted revised materials asserting, “without supporting documentation or technical analyses,” that it had identified 11 potential sites, including the chosen site, “but claimed that other sites weren’t available or wouldn’t work,” it said.

AT&T left multiple reasons “to doubt the thoroughness of its search and to disbelieve the sincerity of its effort to find an alternative site,” said the motion. In identifying the 11 potential alternative sites, AT&T asserted it had mailed “letters of interest” to the 11 property owners, it said. But in reality, AT&T sent only a form letter to the 11 property owners and conducted “no follow-up” with eight of those owners after they didn’t respond, it said.