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Eco-Site, LLC v. City of University City

United States District Court, E.D. Missouri, Eastern Division

December 16, 2019

ECO-SITE, LLC, et al., Plaintiffs,



         Plaintiffs bring this four-count lawsuit claiming defendants wrongfully denied their request for zoning variances with respect to a proposed telecommunications tower. The parties have filed cross-motions for summary judgment on the administrative record. (#55, #59.) The motions have been fully briefed, and the parties filed supplemental briefing at the request of the Court. For the reasons described below, the Court will grant plaintiffs' motion and deny defendants' motion.

         I. Factual Background

         The following facts are undisputed except where indicated. The defendant City of University City, Missouri (the “City”) has a zoning code that requires any telecommunications tower be located at least 200 feet from a street or property line. Plaintiff Cellective Solutions, LLC filed an application to the City's Board of Adjustment for a variance from the 200-foot setback requirement so that a telecommunications tower could be constructed in the back parking lot of a Schnucks grocery store, zoned as a General Commercial (“GC”) district. The property's owner is listed as MC RD University City Square, LLC c/o Desco Group. The tower would be 80 feet tall. The application stated that a variance was needed because the only area on the property that would comply with the 200-foot set back requirement would be in front of the store's entrance. Cellective proposed a site that would be 99 feet from the street and 140 feet from the nearest property line. The application was signed as “representing” plaintiff Eco-Site, LLC and attached site drawings with Eco-Site's logo. The attached site drawings list the Developer as Eco-Site and the Contact Person as Cellective Solutions. The proposed tower's location in the back parking lot of the grocery store would require the removal of a few parking spaces to allow for the tower and landscaping.

         The Board of Adjustment held a public hearing on the matter of the requested variance. Representatives for plaintiffs appeared and presented the reason for the requested variance, and members of the public who lived nearby appeared and spoke their opposition to the variance. The Board voted not to approve the variance. The Board's written denial contained the following findings and conclusions.


11. No evidence was presented to support a conclusion that the condition of not being able to erect the proposed Tower was not created by actions of the Petitioner.
12. Although less desirable, the Petitioner admits that there are alternative locations on the property where a Tower could be erected without a variance.
13. The bulk of the Petitioner's property is covered by buildings owned by the Petitioner.
14. The Board finds the Petitioner's own actions of using portions of the lot, located outside of the floodplain, created the Petitioner's condition.
a) Petitioner did not establish a need for relief due to the unique condition of its Property and which is not ordinarily found in the same zoning district;
b) Petitioner's alleged condition was created by the Petitioner's actions;
c) Strict application of Section 400.1400(C)(3) of the Zoning Code will not result in unnecessary hardship upon the property owner represented in the application;
d) Both variances sought by Petitioner will adversely affect the adjacent properties or public health, safety, order, convenience or general welfare of the City of University City, and
e) Granting the variances desired will violate the general spirit and intent of the Zoning Code, and should therefore be denied.

         Plaintiffs filed this lawsuit, claiming that the defendants' decision was arbitrary and capricious and in violation of state and federal law. The complaint includes the following four counts:

• Count I --- Action for injunction and writ of mandamus pursuant to the Federal Telecommunications Act of 1996 (“TCA”).
• Count II --- Action for injunction and writ of mandamus pursuant to the Missouri Siting Act.
• Count III --- Action for declaratory relief under the Federal Declaratory Judgment Act, 29 U.S.C. §§ 2201-2202, that defendants had violated TCA and state law.
• Count IV --- Petition for writ of certiorari pursuant to § 89.110 RSMo.

         The parties have filed cross-motions for summary judgment. The State of Missouri was allowed to intervene to defend the constitutionality of the Missouri statute addressed by Count II, which defendants claim is unconstitutional.

         II. Legal Standard

         The parties move for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment shall be granted where the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Plaintiffs' claims rest entirely on the evidence in the administrative record, which has been submitted to the Court. See Ogawa v. City of Des Peres, 745 S.W.2d 238, 242 (Mo. App. E.D. 1987).

         III. Discussion

         Plaintiffs seek an order that (1) requires defendants to reverse their denial of Eco-Site's Application and grant the two requested variances therein, and (2) declares that strict application of the 200-foot-setback requirement is arbitrary, unreasonable, and unconstitutional as applied to Eco-Site's Application. Defendants ask the Court to grant judgment to them on all counts of the complaint.

         A. Standing and indispensable parties

         Defendants first argue that plaintiffs were required to name the property owner as a party to this action or to show that they otherwise have a clear legal interest in the property. See 8A McQullin Municipal Corporations § 25:280 (3d ed.) (“To apply or petition zoning boards for…variances…one must have title or a clear legal interest in land…”). Defendants therefore argue that plaintiffs have no standing to bring this lawsuit.

         However, the TCA states that “any person adversely affected by any final action or failure to act by a state or local government” may “commence an action in any court of competent jurisdiction.” 47 U.S.C. §332(c)(7)(B)(v). As explained in this Court's memorandum and order denying the defendants' motion to dismiss, the Court is satisfied that the plaintiffs have standing because they qualify as persons “adversely affected by any final action…by a …local government.”[1] Notably, the defendants did not base their decision to deny the variance application on plaintiffs' standing before the Board of Adjustment. Indeed, the issue of the property owner's absence was not even questioned when EcoSite's application was submitted nor at the hearing. Finally, the Decision of the Board itself states that the application was submitted “on behalf of MCW RD University City Square, LLC (c/o DESCO Group).” The DESCO Group is the property owner as reflected in the record. It thus appears that the Board understood the application to have been made with the authority of the property owner.

         Plaintiffs' claims may be resolved without the personal appearance of the property owner as a party in this case.

         B. Counts I and IV

         Plaintiffs' Count I claims that the defendants' decision to deny the Application was not supported by substantial evidence as required by the TCA, 47 U.S.C. § 332(c)(7)(B)(iii). Count IV seeks a writ of certiorari under § 89.110 RSMo, which allows judicial review for decisions of the Board. Plaintiffs address both counts as one in their motion for summary judgment, so the Court will address both here, as well.

         The TCA's “substantial evidence” requirement “requires a reviewing court to determine whether the local authority's decision comports with applicable local law.” USCOC of Greater Missouri v. City of Ferguson, Mo., 583 F.3d 1035, 1042 (8th Cir. 2009) (citing Sprint Spectrum, 578 F.3d at 733). This Court's review is “essentially deferential, and the party seeking to overturn a decision bears the burden of proving that it is not supported by substantial evidence.” Id. (internal citation omitted). The Board's decision must be affirmed if it is “supported by some substantial level of evidence (but less than a preponderance) on the record as a ...

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