Michael Linet Inc. serves as an agent for several cellular phone service providers. He assists these firms to identify and oversee the construction of cellular phone sites, which are important to operation of mobile phone service networks.

Representing cellular phone provider Metro PCS Inc., Linet identified a country-club site as ideal for construction of a 120-foot flagpole with a cellular communications antenna concealed inside. The country club would receive rent for use of the flagpole.

Purchase Bob Bruss reports online.

Because of the flagpole height exceeding 60 feet, Linet had to obtain approval from the city before constructing the pole. However, several neighbors objected, claiming the flagpole would have an adverse impact on the value of their property.

Residents testified they would not have bought their homes if the flagpole were present. A local Realtor testified the pole would adversely impact home resale values. Others complained about the proximity to a nearby middle school. They noted other cellular phone companies found suitable nearby sites that were not objectionable.

Linet sued the city, arguing these objections are impermissible pure aesthetic “not in my back yard” objections in violation of the federal Telecommunications Act of 1996. He argued that aesthetic objections are not rational grounds for prohibiting construction of cellular phone towers.

If you were the judge would you order the city to allow construction of the flagpole cellular antenna on the country-club property?

The judge said no!

Evidence presented shows other cellular phone companies located sites within the city that were approved without objections from residents, the judge began. The testimony presented by experts indicates cellular phone installations can have adverse impact on property values, he continued.

The “substantial evidence” standard is the test used by courts to review decisions by local governmental agencies, the judge explained. “It requires more than a mere scintilla but less than a preponderance,” he noted.

Linet has the burden of proving the city’s decision was not supported by substantial evidence, the judge emphasized. He has failed to do so, the judge added.

The city met this test, listening to objections from residents and a Realtor concerning the cell site’s negative impact on real estate values, the judge commented. Linet failed to show an alternative location was unavailable or unfeasible, he remarked.

Because the city’s decision denying the cellular phone flagpole was supported by substantial evidence, Linet’s appeal of the city’s rejection is denied and he is not entitled to damages, the judge ruled.

Based on the 2005 U.S. Court of Appeals decision in Michael Linet Inc. v. Village of Wellington, 408 Fed.3d 757.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

***

What’s your opinion? Send your Letter to the Editor to opinion@inman.com.

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