11-26-1997 Council Agenda - Laserfiche WebLink

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NOV- 7 -97 FRI 12:36 PM JUSTIN. PROPERTIES FAX NO. 16126410169 P. 6 3. The moratorium also did not violate Section 704's requirement forbidding discrimination among telecommunications providers. New applicants are not discriminated against merely because existing telecommunications facilities are is place. With the dramatic changes in the law and the market, the City could not place the new applicants in the same position as the existing companies; the City had to simply treat each new applicant without discrimination. 4. Finally, the moratorium did not violate the 1993 provisions of the Act, which prohibit regulating the entry of any commercial mobile provider. Given the preservation of local zoning authority, the moratorium did not completely deny entry, which is consistent with the Act. 1I1. Reported Cases Since the Telecommunications Act of 1996 A) BellSouth Mobility, Inc. v. Gwinnett County, 944 F.Supp. 923 (N.D.Ga. 1996) The .court granted Bellsouth's request for a writ of mandamus compelling the County to grant its application to construct a 197 -foot cellular telephone communications monopole. The County's denial of Bellsouth's application for a "tall structure permit" was not supported by substantial evidence in a written record as required by Section 704. On the contrary, the evidence substantially supported issuing the permit. The "substantial evidence contained in a written record" requirement of the Act is the traditional standard used for judicial review of agency actions. Evidence supporting the issuance of the permit included: 1. showing that the monopole posed no hazard to navigable airspace, including no objections from the local airport authority and transportation authority; 2. recommendations from the county planning and development department that the permit be approved subject to three conditions that Bellsouth agreed to follow ( Bellsouth further offered to follow additional, self - imposed restrictions); 3. evidence that property values had not decreased in the past in similar situations; and 4, radio frequency emissions would be well within federal regulations. Contrary evidence deemed insufficient included unsupported testimony by an owner of neighboring property expressing concern about 1) the potential safety threat to children who might try to climb on the pole or facility; 2) the potential that parts of the structure could become dislodged in strong winds and damage property; 3) exposure to microwave emissions on a regular basis; 4) the aesthetically unpleasing nature of the facility; 5) property value diminution; and 6) potential for more companies using the site. Page 87