United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR., UNITED STATES DISTRICT JUDGE
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.
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.
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.
CONCLUSIONS [. . .]
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
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
e) Granting the variances desired will violate the general
spirit and intent of the Zoning Code, and should therefore be
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
• Count I --- Action for injunction and writ of mandamus
pursuant to the Federal Telecommunications Act of 1996
• 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.
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.
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.
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.
Standing and indispensable parties
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
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.” 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.
claims may be resolved without the personal appearance of the
property owner as a party in this case.
Counts I and IV
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
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 ...