Sun State Towers LLC v. Mohave, County of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Sun State Towers LLC,
Plaintiff,
v.
County of Mohave, et al.,
Defendants.
No. CV-25-08014-PCT-MTL
ORDER
Before the Court are Plaintiff Sun State Towers’s Motion for Summary Judgement
(Doc. 30) and Defendant Mohave County’s Motion for Summary Judgment (Doc. 28). The
motions are fully briefed (Docs. 28, 3034), and the Court heard oral argument on the
motions.
I. 	BACKGROUND
This case arises out of Mohave County’s denial of Sun State Towers’s application
for a special use permit that would have permitted Sun State Towers to build a 195-foot
wireless communications facility. (Doc. 29 ¶¶ 1, 19.) Plaintiff is Sun State Towers LLC, a
company specializing in cell tower development, and Defendants are the County of
Mohave and its Board of Supervisors. (Doc. 1 ¶¶ 2, 4.) Sun State Towers submitted the
Application to the County on September 4, 2024. (Doc. 29 ¶ 5.) The Application contained
propagation maps and predictive models of coverage that show signal strengths with and
without the proposed tower. (Id. ¶¶ 6, 12.) The parties agree that the information provided
in the Application shows that the proposed tower would improve service by filling a gap
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in coverage. (Id. ¶¶ 6-7.) But the Application did not address the feasibility of alternative
sites. (Id. ¶ 5.)
The Mohave County Planning and Zoning Committee considered the Application
first and recommended its approval because of the proposed plan’s compliance with the
Mohave 	County 	General 	Plan 	and 	all 	applicable 	Mohave 	County 	ordinances. 	(Id.
¶¶ 15-16.) The Board held a public hearing on the Application on December 2, 2024, where
three members of the public spoke in opposition to the Application, and Sun State Towers’s
representative spoke in favor of it. (Id. ¶¶ 17, 18; Doc. 29-4.) Members of the public
opposed the Application based on the following concerns: property devaluation, the
tower’s lack of proximity to power and maintained roads, the tower’s visual intrusion on
the landscape, the tower’s size, the tower’s proximity to adjacent residential lots and a
planned airstrip, and the possibility of adverse health effects from radio frequencies.
(Doc. 29-4 at 52-54.) Sun State Towers’s representative was primarily asked about whether
Sun State Towers reviewed alternative locations for the tower. (Id. at 54-55.) The
representative stated that “[Sun State Towers has] looked at other sites in the area” and
apologized that he could not be “super specific” because “[he had] taken this site
over . . . maybe two or three weeks ago.” (Id. at 54.) He went on to explain that Sun State
Towers sent letters to landowners three years prior to the hearing, and the carrier approved
this site based on Sun State Towers’ “due diligence.” (Id. at 55.) The Board voted to deny
the Application. (Doc. 29 ¶ 19.)
The Board issued a written denial, which states:
“[T]he Board of Supervisors of Mohave county who voted in favor of the
denial, denied for the following reasons:
Public Concern of Mohave County Residents
Public Opposition at the Public Hearing
Proximity to Neighboring Residents
Poor Aesthetic Location to the Tower
(Id. ¶ 23.) The Board explicitly referenced and incorporated the testimony from the
December 2, 2024, hearing into its written denial. (Id.)
Sun State Towers sued Mohave County and the Board for violations under the
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Telecommunications Act of 1996. (Doc. 1.) All claims arise under 47 U.S.C. § 332(c)(7).
(Id. ¶¶ 89-111.) First, Sun State Towers alleges that the County’s denial amounts to a
prohibition 	of 	wireless 	services 	in 	violation 	of 	the 	Act’s 	provision 	barring 	local
governments from “prohibit[ing] or hav[ing] the effect of prohibiting the provision of
personal wireless services.” (Id. ¶¶ 89-96); 47 U.S.C. § 332(c)(7)(B)(i)(II). Second, Sun
State Towers alleges that the denial is unlawful under the Act’s provision that requires a
local government’s denial to “be in writing and supported by substantial evidence
contained in a written record.” (Id. ¶¶ 97-105); 47 U.S.C. § 332(c)(7)(B)(iii). Third, Sun
State Towers alleges that the denial runs afoul of the Act’s prohibition of localities denying
proposals 	based 	on 	the 	environmental 	effects 	of 	radio 	frequency 	emissions. 	(Id.
¶¶ 106-111); 47 U.S.C. § 332(c)(7)(B)(iv).
Both parties have moved for summary judgment. (Docs. 28, 30.) Sun State Towers
asks for a declaration of its rights under 47 U.S.C. § 332 and an injunction requiring the
Board to approve the Application for a special use permit. (Doc. 30 at 1.) The County
requests that all claims be dismissed. (Doc. 28 at 6.)
In its motion (Doc. 30), Sun State Towers advances evidence that was never
presented to the Board. It provides the Court with a detailed expert analysis that concludes
the proposed site would fill a significant gap in coverage. (Doc. 30-1.) The analysis is based
on Ookla crowdsource data, CellMapper data, Open Signal data, Verizon’s regional radio
frequency engineer, propagation maps, and a search ring—all tools that radio frequency
engineers typically use to assess coverage. (Id. at 6-7.) The expert explains that the
proposed site is the only site that would allow Sun State Towers to remedy the gap in
coverage, particularly because the proposed tower would connect to a tower already
approved by the County. (Id. at 11-12.) Sun State Towers also submits a declaration signed
by Graham Chapman, a former Sun State Towers employee that worked on selecting the
site. (Doc. 30-2.) The declaration explains why the proposed site was chosen, namely
because of the gap in coverage and the lack of available alternatives. (Id.)
This 	Court 	now 	addresses 	the 	parties’ 	motions 	(Docs. 	28, 	30), 	taking 	into
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consideration that much of this information was absent from the Application provided to
the Board in the first instance.
II. 	LEGAL STANDARD
Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the non-moving party, demonstrates “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine issue of material fact exists when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party,” and material facts are those “that
might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). At the summary judgment stage, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Id. at 255 (citation omitted); see also Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127,
1131 (9th Cir. 1994) (holding the court determines whether there is a genuine issue for trial
but does not weigh the evidence or determine the truth of matters asserted).
III. 	DISCUSSION
A. 	Prohibition Claim
Sun State Towers moves for summary judgment in favor of its claim that the Board’s
denial violated the Telecommunications Act by prohibiting wireless services. (Doc. 30 at
2.) The Act provides that state and local governments may not “prohibit or have the effect
of prohibiting the provision of personal wireless services.” 47 U.S.C. § 332(c)(7)(B)(i)(II).
In T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 995 (9th Cir. 2009), the Ninth
Circuit provides a two-part test for determining whether a local zoning authority is
“prohibit[ing] or hav[ing] the effect of prohibiting” service coverage. The “‘two-pronged
analysis require[s] (1) the showing of a ‘significant gap’ in service coverage and (2) some
inquiry into the feasibility of alternative facilities or site locations.’” Id.
1. 	The 2018 FCC Order
The parties disagree on whether a declaratory ruling issued in 2018 by the Federal
Communications Commission abrogated the Ninth Circuit’s two-part test. (Docs. 28 at
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10-11, 30 at 8-10, 31 at 2-3, 32 at 5-6, 34 at 3-4); In re Accelerating Wireless Broadband
Deployment by Removing Barriers to Infrastructure Inv., 33 F.C.C.R. 9088 (2018) (the
“2018 FCC Order”). The 2018 FCC Order states that, to succeed on a prohibition claim, a
plaintiff must show that a state or local requirement “materially limits” service coverage.
33 F.C.C.R. 9088 ¶ 35. The FCC explained that this “material inhibition” standard “is met
not only when filling a coverage gap but also when densifying a wireless network,
introducing new services or otherwise improving service capabilities.” Id. ¶ 37. The FCC
definitively rejected a “coverage gap” standard because “a prohibition does not have to be
complete or ‘insurmountable’ to constitute an effective prohibition.” Id. ¶ 41. In doing so,
the FCC reaffirmed California Payphone, the FCC Order that originally articulated the
“material inhibition” standard. Id. ¶¶ 35, 37 (discussing In the Matter of Cal. Payphone
Ass’n Petition for Preemption of Ordinance No. 576 NS of the City of Huntington Park,
Cal. Pursuant to Section 253(d) of the Communications Act of 1934 (California Payphone),
12 F.C.C.R. 14191 (1997)). The issue is whether and to what extent this order affects the
Ninth Circuit’s two-part test.
The County argues that the 2018 FCC Order only applies to small wireless facilities,
meaning the Ninth Circuit’s two-pronged standard still applies to Sun State Towers’
request for a 195-foot cell tower. (Doc. 28 at 11.) The 2018 FCC Order indicates that it
was issued specifically to regulate small wireless facilities. At the outset, the 2018 FCC
Order opines that the order is issued because “new small cell deployments that have
antennas often no larger than a small backpack . . . raise different issues than the
construction of large, 200-foot towers.” 33 F.C.C.R. 9088 ¶ 3. Moreover, the applicable
portion of the 2018 FCC Order appears under the heading: “Overview of the Section 253
and Section 332(c)(7) Framework Relevant to Small Wireless Facilities Deployment.” Id.
¶¶ 34-42 (emphasis added).
In City of Portland v. United States, 969 F.3d 1020, 1035 (9th Cir. 2020), the Ninth
Circuit suggested that the 2018 FCC Order—referred to as the “Small Cell Order”—applies
only to small 5G wireless facilities. In that case, several municipalities sought the court’s
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review of recent FCC orders related to telecommunications facilities, including the 2018
FCC Order. Id. at 1031. City of Portland primarily considered Section 253(a), but the court
noted that Section 332(c)(7) “contains a limitation on local authority nearly identical to
Section 253(a)” and that the court was “deal[ing] with issues pertaining to all of these
provisions.” Id. at 1033-34. Section 253(a) applies to telecommunications facilities while
Section 332(c)(7) applies to personal wireless service facilities, but both contain identical
language stating that localities may not “prohibit or have the effect of prohibiting” services.
Compare 47 U.S.C. § 253(a) with 47 U.S.C. § 332(c)(7)(B)(i)(II). The congruence between
the 	provisions 	led 	the 	FCC, 	in 	its 	2018 	order, 	to 	“resolve 	the 	conflicting 	court
interpretations 	of 	the 	‘effective 	prohibition’ 	language” 	specifically 	with 	respect 	to
“continuing confusion on the meaning of Sections 253 and 332(c)(7).” 33 F.C.C.R. 9088
¶ 35 (emphasis added). This Court applies the Ninth Circuit’s interpretation of Section
253(a), and by extension Section 332(c)(7), in City of Portland.
The 	court 	in 	City 	of 	Portland 	begins 	by 	noting 	that 	the 	FCC 	“in
2018 . . . promulgated orders relating to the installation and management of small cell
facilities.” Id. at 1031. It held that “[t]he FCC has explained that [the material inhibition
standard] applies a little differently in the context of 5G, because state and local
regulation . . . is more likely to have a prohibitory effect on 5G technology than it does on
older technology.” Id. at 1035. The opinion then analyzes the validity of various provisions
of FCC orders as applied to the deployment of small 5G wireless facilities, although those
provisions are not applicable to the present case. Id. at 1036-47.
In any case, this Court is compelled to follow the Ninth Circuit’s interpretation of
the Act, not the FCC’s. See Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 399
(2024) 	(holding 	that 	forcing 	courts 	to 	“afford 	binding 	deference 	to 	agency
determinations . . . when a pre-existing judicial precedent holds that the statute means
something else . . . is the antithesis of the time honored approach the [Administrative
Procedure Act] prescribes”). The district court declines to unilaterally abrogate the Ninth
Circuit’s standard with respect to large towers until the Court of Appeals does so itself.
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The FCC’s determination as to what constitutes a prohibition of service coverage is specific
to small wireless facilities.
Sun State Towers’s 195-foot proposed tower is not a small wireless facility, defined
by the 2018 FCC Order as a structure less than 50 feet tall or 10 percent of adjacent
structures. 33 F.C.C.R. 9088, app. A, implemented as 47 C.F.R. § 1.6002. The Ninth
Circuit’s two-pronged test applies here. To succeed on its prohibition claim, Sun State
Towers must show: (1) a “significant gap” in service coverage, and (2) that its proposal is
the “least intrusive means” of filling the gap. City of Anacortes, 572 F.3d at 995.
2. 	Significant Gap in Coverage
The “significant gap” prong is satisfied when a provider “prevent[s] a wireless
provider from closing a ‘significant gap’ in service coverage.” Am. Tower Corp. v. City of
San Diego, 763 F.3d 1035, 1056 (9th Cir. 2014). “‘[S]ignificant gap’ determinations are
extremely fact-specific inquiries that defy any bright-line legal rule.” MetroPCS, Inc. v.
City and Cnty. of San Francisco, 400 F.3d 715, 733 (9th Cir. 2005). “[T]he relevant service
gap must be truly ‘significant’ and ‘not merely individual ‘dead spots’ within a greater
service area.’” Id.at 733 n.10. Courts look to a number of factors, including a coverage
gap’s “effects on significant highways or railways, the nature of the area or number of
potential customers, effects on commercial districts, and safety interests.” Los Angeles
SMSA Ltd. P’ship v. City of Los Angeles, No. LA CV16-04954, 2020 WL 13662046, at
*18 (C.D. Cal. Sept. 1, 2020). A reviewing court may consider evidence beyond the
administrative record available to the locality when making its decision. Nat’l Tower, LLC
v. Plainville Zoning Bd. of Appeals, 297 F.3d 14, 22 (1st Cir. 2002); VoiceStream
Minneapolis v. St. Croix Cnty., 342 F.3d 818, 833 (7th Cir. 2003); AT&T Mobility Servs.
v. Vill. of Corrales, 642 Fed.App. 886, 888-89 (10th Cir. 2016).
Sun State Towers presents a report authored by Steven Kennedy, a radio frequency
engineering expert, which concludes that there is “a significant gap in the vicinity of the
Proposed Site.” (Doc. 30-1 at 6.) The conclusion is based on various forms of data and
propagation maps of the area around the proposed site. (Id. at 6.) Sun State Towers included
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propagation maps demonstrating a 250-square-mile gap in coverage. (Doc. 30-3 at 8;
Doc. 29 ¶¶ 6, 12.) The County does not contest the significance of the coverage gap, instead
focusing on Sun State Towers’s obligation to make a prima facie showing that its proposal
is the least intrusive means of filling the coverage gap, so there is no genuine issue of
material fact. (Docs. 28, 32, 33.) Sun State Towers has satisfied the coverage gap prong.
3. 	Least Intrusive Means
In addition to demonstrating a significant coverage gap, a provider must “‘show that
the manner in which it proposes to fill the significant gap in services is the least intrusive
on the values that the denial sought to serve.’” City of Anacortes, 572 F.3d at 995 (emphasis
in original). “A provider makes a prima facie showing of effective prohibition by
submitting a comprehensive application, which includes consideration of alternatives,
showing that the [provider’s proposal] is the least intrusive means of filling a significant
gap.” Id. at 998. A provider “has not borne its burden” if it fails to “offer[] a feasibility
analysis of alternative designs or sites for [the locality] to reach its own conclusion.” Am.
Tower Corp., 763 F.3d at 1056. If zoning authorities never receive or have the opportunity
to 	consider 	a 	provider’s 	feasibility 	analysis, 	“the 	applicant—rather 	than 	the
locality—[becomes] the arbiter of feasibility and intrusiveness, gutting the ‘least intrusive
means’ standard with predictable, applicant-friendly results.” Id.
Sun State Towers did not provide an adequate feasibility analysis to the Board. Its
application packet did not include any alternative designs or sites. (Doc. 29-1.) At the
December 2, 2024, meeting, Sun State Towers’s representative, John Kerr, did not say
much to supplement the Application. When asked about alternative sites, Kerr stated, “we
have looked at other sites in the area,” that he “ha[s] taken this site over . . . maybe two or
three weeks ago,” and that “if he [did not] have super specific because [sic] [he]
apologize[d] about that.” (Doc. 29-4 at 54.) Kerr mentioned that three years before the
meeting, Sun State Towers sent letters to landowners inquiring about building the facility.
(Id. at 54-55.) When pressed again on whether there was “room for looking at additional
sites,” Kerr responded that “this is the one that we have approval from . . . the carrier to
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proceed and . . . we’ve done our due diligence.” (Id. at 55.) That is all Sun State Towers
provided to the Board with respect to the possibility of building the proposed tower on an
alternative site.
Sun State Towers did not supply “a comprehensive application, which includes
consideration of alternatives.” City of Anacortes, 572 F.3d at 998. Sun State Towers offered
conclusions, not an analysis, and “[a] locality is not compelled to accept the provider’s
representations.” Id. at 998. Beyond apprising the Board of his lack of knowledge about
the site, he stated that Sun State Towers had “done [its] due diligence.” (Doc. 29-4 at 55.)
But the county supervisors are entitled to do theirs. If a provider does not share an analysis
that “allows for a meaningful comparison of alternative sites . . . , the [locality] is entitled
to judgment as a matter of law on the effective prohibition claim.” Am. Tower Corp., 763
F.3d at 1056-57. Because it did not present any substantive feasibility analysis to the
County, Sun State Towers did not show that the proposed tower was the least intrusive
means of filling the gap in coverage. As a matter of law, Plaintiff’s prohibition claim fails.
B. 	Substantial Evidence Claim
Sun State Towers’s second claim alleges that the Board’s denial was not supported
by substantial evidence in a written record. (Doc. 1 ¶¶ 97-105.) “Any decision by a State
or local government or instrumentality thereof to deny a request to place, construct, or
modify personal wireless service facilities shall be in writing and supported by substantial
evidence contained in a written record.” 47 U.S.C. § 332(c)(7)(B)(iii). The Ninth Circuit
concludes that “this language is meant to trigger the traditional standard used for judicial
review of agency decisions.” Am. Tower Corp, 763 F.3d at 1053 (internal quotation marks
and citations omitted). “[W]hatever the meaning of substantial in other contexts, the
threshold for such evidentiary sufficiency [in the context of agency decisions] is not high.”
Biestek v. Berryhill, 587 U.S. 97, 103 (2019). A court’s inquiry centers on the written
record supplied by the locality. See SEC v. Chenery Corp. (Chenery I), 318 U.S. 80, 95
(1943) (holding that the validity of an administrative order depends only on the basis
articulated in the order itself). The written record must provide enough for the Court “to
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identify the reason or reasons why the locality denied the application.” T-Mobile South,
LLC v. City of Roswell, Ga., 574 U.S. 293, 300 (2015).
Substantial evidence consists of “more than a ‘scintilla’ but not necessarily a
preponderance” of evidence. City & Cnty. of San Francisco, 400 F.3d at 725. It is “such
relevant evidence as a reasonable mind might accept as adequate to support [a locality’s]
conclusion.” Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates, 583 F.3d 716, 726
(9th Cir. 2009) (quoting City & Cnty. of San Francisco, 400 F.3d at 724. The “standard is
essentially ‘deferential,’ such that courts may ‘neither engage in [their] own fact-finding
nor supplant the [locality’s] reasonable determinations.” City & Cnty. of San Francisco,
400 F.3d at 725 (quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2nd
Cir. 1999)).
“[T]he substantial evidence inquiry does not incorporate the substantive federal
standards imposed by the [Act].” Am. Tower Corp., 763 F.3d at 1053 (internal citation
omitted). Instead, “local and state zoning laws govern the weight to be given the evidence.”
City & Cnty. of San Francisco, 400 F.3d at 725. “[The Court] must take applicable state
and local regulations as we find them and evaluate [a locality] decision’s evidentiary
support (or lack thereof) relative to those regulations.” Id. at 724. 	Here, the relevant
Mohave County zoning ordinance states:
[T]he following shall be considered in determining whether to issue a Special
use 	Permit 	[for 	a 	wireless 	communication 	facility]: 	height 	proposed,
proximity to other uses, historic sites, landmarks, vehicle traffic routes,
medical facilities, air routes, topographical features, utilities, access and
suitability of alternative sites.
Mohave County Ordinance, § 37.R(5)(d). Whether the Boards’ denial was based on
“substantial evidence” depends on whether, for the reasons stated in the written denial,
Mohave County’s zoning ordinances authorize the Boards’ decision.
The Boards’ reasoning for denying Sun State Towers’s application is contained in
Resolution No. 2024-245, stating that the resolution “shall serve as the written record
required by the Act.” (Doc. 29-5 at 6-7.) It provides:
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[T]he Board of Supervisors of Mohave county who voted in favor of the
denial, denied for the following reasons:
Public Concern of Mohave County Residents
Public Opposition at the Public Hearing
Proximity to Neighboring Residents
Poor Aesthetic Location to the Tower
(Id. at 6.) Although that list is short, the reasons provided in a locality’s written record
“need not be elaborate or even sophisticated, but rather, . . . simply clear enough to enable
judicial review.” City of Roswell, 574 U.S. at 302. From the list provided by the Board,
“Proximity to Neighboring Residents” and “Poor Aesthetic Location to the Tower” are, on
their own, legitimate reasons for denying the Application. Mohave County’s zoning
ordinances specifically permit the denial of an application based on considerations like
“proximity to other uses,” “landmarks,” and “topographical features.” 	Mohave County
Ordinance, § 37.R(5)(d).
As for the denial’s reference to public concern and opposition, the resolution
explains that “the Board heard testimony and found substantial evidence in favor of the
denial” at the December 2, 2024, Board of Supervisors meeting. (Doc. 29-5 at 6.) The
resolution purports to incorporate the hearing testimony, and it links to Mohave County’s
website, containing a video of the public meeting along with the meeting’s minutes. Id.
Because the resolution identifies public concern and public opposition as reasons for its
denial, and since the resolution explicitly incorporates the public’s testimony into the
resolution, the public’s testimony is part of the written record that the Court takes into
account in its substantial evidence inquiry. See City of Roswell, 574 U.S. at 295 (holding
that a locality’s “reasons need not appear in the written denial letter or notice provided by
the locality” but instead “may appear in some other written record”).
From the public’s testimony, viewed in its entirety, one could reasonably determine
that Sun State Towers’s proposed site would be a poor aesthetic location and too close to
neighboring residences, as stated by the County. The public raised legitimate concerns that
support the County’s denial, all authorized by the County’s zoning ordinances.
A member of the public testified that a tall cell tower would negatively impact
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property values because it would be visible whenever she went outside. (Doc. 29-4 at 52.)
Another stated that the tower would be “massive” and an “unsightly intrusion into an
absolutely beautiful and majestic environment of the valley.” (Id.) Those considerations
are authorized by the County’s ordinance that permits the consideration of landmarks and
the proposed facility’s height. Mohave County Ordinance, § 37.R.(5)(d). The ordinance
also contemplates consideration of “proximity to other uses,” and members of the public
commented on this too. Id. A participant at the hearing testified that he has worked to obtain
approval from the Federal Aviation Administration, and now the County, to build an
airstrip. (Doc. 29-4at 52-53.) He maintains that the tower would disrupt that airstrip. (Id.
at 53.) Another participant concluded that “[a] cell tower does not belong in a residential
neighborhood.” (Id. at 54.)
The County can consider the tower’s accessibility. (Id. at 52.) With respect to this,
the public raised concerns about the inaccessibility of the proposed site due to a lack of
proximity to power and maintained roads. (Id.) The reasons for the denial, listed in the
resolution and provided in testimony, contain more than a scintilla of evidence “that a
reasonable mind might accept as adequate to support [a locality’s] conclusion.” City of
Palos Verdes Estates, 583 F.3d at 726 (internal citation omitted).
Sun State Towers cites several cases for the proposition that generalized concerns
about aesthetics do not constitute substantial evidence. (Doc. 34 at 7.) 	Ninth Circuit
precedent provides otherwise. In City of Anacortes, the locality’s ordinance authorized
consideration of factors much similar to those authorized under Mohave County’s zoning
code, including the height of a proposed tower, the proximity to residential structures and
other uses, and the surrounding topography. 572 F.3d at 994. The Ninth Circuit held that
these are aesthetic concerns, and they are “legitimate concerns for a locality.” Id. In that
case, “a number of residents claimed that [the proposed pole] would have a detrimental
impact on the surrounding residential property, . . . and that it would interfere with
residents’ views.” Id. at 994-95. This was held to be “more than a scintilla of evidence.”
Id. The Board incorporates similar evidence from the December 2, 2024, hearing into its
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denial (Doc. 29-5 at 6), and that constitutes sufficient evidence to support the Board’s
denial. Plaintiff’s second claim fails as a matter of law.
C. 	Radio Frequency Emissions Claim
The parties’ ask this Court to address the validity of Sun State Towers’s final claim,
which alleges that the Board unlawfully rejected the application based on concerns about
possible adverse effects from radio frequency emissions. (Docs. 28 at 17-20; 30 at 19-22.)
The Act bars local governments from “regulat[ing] the placement, construction, and
modification of personal wireless service facilities on the basis of the environmental effects
of radio frequency emissions.” 47 U.S.C. § 332(c)(7)(B)(iv). “[A]ny decision actually
based on environmental effects is a violation, whether other legitimate reasons factored
into the decision or not.” T-Mobile Northeast LLC v. Town of Ramapo, 701 F.Supp.2d 446,
460 (S.D.N.Y. 2009). Sun State Towers argues that the public’s focus on radio frequency
omissions at the hearing and the limited reasoning in the Board’s denial necessitate an
inference that the Board denied the Application based on radio frequency emissions. (Doc.
30 at 19-22.)
Courts are concerned about a locality’s reasons for denying an application, not the
objections voiced by members of the public. T-Mobile Ne. LLC v. Loudoun Cnty. Bd. Of
Sup’rs, 903 F.Supp.2d 385, 201 (E.D. Va. 2012) (finding that although “citizens did voice
objections to the [proposed site] on the basis of health concerns, the Act does not prohibit
citizens from expressing such concerns; it only prohibits the Board’s acting on them”). It
is not the Court’s prerogative to look beyond the written reasons provided by the Board for
the denial. City of Roswell, 574 U.S. at 303-04 (holding that a “locality need not worry
that . . . a court will either find that it could not ascertain the locality’s reasons or mistakenly
ascribe to the locality a rationale that was not in fact the reason for the locality’s denial”).
To be unlawful, a locality’s decision must conspicuously and unmistakably rely on
radio frequency emissions in its denial. Courts have held that a partial reliance on radio
frequency 	emissions 	runs 	afoul 	of 	Section 	332(c)(7)(B)(iv), 	even 	if 	a 	legitimate
consideration is presented as a pretext for that reliance. See, e.g., Cal. RSA No. 4. v. Madera
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Cnty., 332 F.Supp.2d 1291, 1311 (E.D. Cal. 2003). A public opposition’s focus on radio
frequency emissions is not determinative. Courts look for an unambiguous indication that
a locality based its decision on radio frequency emissions. See, e.g., Town of Ramapo, 701
F.Supp.2d at 460 466 (S.D.N.Y. 2009) (noting that “health concerns played a prominent
role in community opposition,” but relying on “the Town[‘s admission] that one of
the . . . reasons for denying [the] application was that the proposal raised health concerns”).
Although courts look beyond the locality’s written reasons for its decision, there must be
some undeniable indication that the locality based its decision on radio frequency
emissions, such as an admission by a locality that it did so. Id; AT&T Wireless Servs. of
Cal. LLC v. City of Carlsbad, 308 F.Supp.2d 1148, 1160 (S.D. Cal. 2003) (basing its
finding on a statement by the locality’s mayor that the health effects of radio frequency
emissions were considered).
To be sure, all three members of the public who spoke at the hearing raised concerns
about purported adverse effects of radio frequency emissions. (Doc. 29-4 at 52-54.) But
there is no evidence that the Board itself discussed or was otherwise motivated by the
public’s concern about radio frequency emissions. The Board provided short but specific
reasons for its denial. (Doc. 29-5 at 6.) Those reasons include legitimate considerations
authorized by Mohave County’s zoning ordinances, including aesthetics and the proposed
site’s proximity to neighboring residents. (Id.) Although the written denial incorporates the
public’s testimony at the hearing (id.), that does not necessarily mean the Board adopted
the concerns raised by the public wholesale. Rather, the Board’s written denial simply
states that “the Board heard testimony and found substantial evidence in favor of the
denial.” (Id.) And as discussed, most of the public’s testimony raised legitimate concerns
that rise to the level of substantial evidence that supports the County’s determination. Supra
III.B.
Madera County is the closest case to ours. There, the court inferred that “complaints
about property values were really a proxy for concerns about possible environmental
effects of RFE’s.” Madera Cnty., 332 F.Supp.2d at 1291. The inference was drawn in light
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of 	counsel’s 	concession 	that 	“the 	concerns 	regarding 	property 	values 	[could 	not]
meaningfully be distinguished from a generalized fear of the possible environmental effects
of EMF’s.” Id. at 1310. Here, all members of the public expressed concern about radio
frequency emissions, but the record does not show that the plethora of other considerations
raised at the Board’s hearing, like concerns about the proposed tower’s proximity to
residential lots and a planned airstrip, were proxies for or otherwise traceable to radio
frequency emissions. (Doc. 29-4 at 52-54.) For example, while one member of the public
expressed concerns about a devaluation in surrounding property, she based that conclusion
on the visibility of the tower. (Id. at 52.) Beyond urging the Court to draw an inference,
Sun State Towers does not provide evidence that the Board relied on radio frequency
emissions. Absent further evidence that the Board itself considered and based its denial on
radio frequency emissions, the Court declines to infer that the Board adopted the public’s
statements regarding them. Plaintiff’s third claim fails.
IV. 	CONCLUSION
Accordingly,
IT IS ORDERED Defendants’ Motion for Summary Judgment (Doc. 28) is
GRANTED.
IT 	IS 	FURTHER 	ORDERED 	Plaintiff’s 	Motion 	for 	Summary 	Judgment
(Doc. 30) is DENIED.
IT IS FURTHER ORDERED remanding the matter to Mohave County’s Board
of Supervisors to reconsider Sun State Towers’ application for a Special Use Permit that
would permit the construction of the proposed tower. The Board must consider, at a
minimum, any further information submitted by Sun State Towers related to the feasibility
of alternative sites. *
. . .
. . .
* At oral argument, counsel explained that the original application omitted information
about a second tower that had been approved by the County that is intended to function
with the rejected tower. To the extent Sun State Towers presents new evidence, the Board
is encouraged to evaluate it in making its decision.
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IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment in
favor of Defendants and close this case.
Dated this 25th day of November, 2025.
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