Case 1:15-cv-00387-CG-B Document 1 Filed 08/03/15 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CELLULAR SOUTH REAL ESTATE,
INC.,

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Plaintiff,
vs.
CITY OF MOBILE, ALABAMA,
Defendant.

Civil Action No. 1:15-cv-387

COMPLAINT

Cellular South Real Estate, Inc. (“Cellular South”) comes now, by and through
undersigned counsel, and files this Complaint against the City of Mobile, Alabama (the “City”)
asserting that the City’s denial of Cellular South’s application to construct a wireless
transmission facility violated the Telecommunications Act of 1996 (the “TCA”). In support of
this Complaint, Cellular South states as follows:
PARTIES
1.

Cellular South Real Estate, Inc. is a Mississippi corporation with its principal

place of business in Ridgeland, Mississippi. Cellular South Real Estate, Inc. is authorized to do
business in Alabama.
2.

The City of Mobile is a municipal corporation located in Mobile County,

Alabama. Pursuant to FED. R. CIV. P. 4(j), the City of Mobile may be served with process by
service on its chief executive office, Mayor Sandy Stimpson, at 205 Government Street, Mobile,
Alabama 36602, by service upon its city clerk, Lisa Carroll Lambert, at 205 Government Street,

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Mobile, Alabama 36602, or by service upon its city attorney, Ricardo A. Woods, at 205
Government Street, Mobile, Alabama 36644.
JURISDICTION AND VENUE
3.

This Court has original subject matter jurisdiction over this matter pursuant to 28

U.S.C. § 1331 as this action involves a federal question arising under the Telecommunications
Act of 1996, specifically 47 U.S.C. § 332(c)(7). Telecommunications Act § 332(c)(7)(B)(v)
states that “[a]ny person adversely affected by any final action or failure to act by a State or local
government or any instrumentality thereof that is inconsistent with this subparagraph may,
within 30 days after such action or failure to act, commence an action in any court of competent
jurisdiction” and that the court “shall hear and decide such action on an expedited basis.”
4.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) as this is the

judicial district in which the City of Mobile is located and in which the property that is the
subject of this action is situated.
GENERAL FACTUAL ALLEGATIONS
5.

On January 8, 2014, Cellular South obtained authorization from the City of

Mobile to “submit various applications necessary for a cell phone tower site in the City owned
Ladd-Peebles Stadium parking lot.” A true and correct copy of that authorization letter is
attached as Exhibit A.
6.

On August 21, 2014, and pursuant to the City’s authorization, Cellular South, by

and through its agent, submitted to the City its initial application for Board of Zoning
Adjustment approval to construct a wireless transmission facility, also known as a cellular
telecommunications tower, in a B-3 community business zoning district of the City. A true and

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correct copy of that initial application packet submitted by Cellular South to the City is attached
hereto as Exhibit B.
7.

Cellular South proposed to construct a 152-foot, monopole telecommunications

tower in the parking lot of Ladd-Peebles Stadium, which is owned by the City and located at
1621 Virginia Street, Mobile, Alabama, 36604 (the “Site”).

Cellular South’s application

contemplated variances of the City’s height limitation, required setbacks, buffering distances,
and requirements for paved parking access and landscaping in B-3 zoning districts.
8.

Thereafter, pursuant to the City Planning Commission’s request, Cellular South

placed its application on hold and amended the application and related Site plans in order to
move the wireless transmission facility approximately 345 feet to the west. The move allowed
the Site to remain within the Ladd-Peebles stadium parking lot but created additional space
between the Site and existing residences, mooting the need for a residential buffering variance.
9.

On April 2, 2015, Cellular South, by and through its agent, submitted to the City

an amendment to its application for Board of Zoning Adjustment approval to construct the
wireless transmission facility on the revised Site within the Ladd-Peebles stadium parking lot. A
true and correct copy of that amendment packet submitted by Cellular South to the City is
attached hereto as Exhibit C. Cellular South’s initial, August 21, 2014 application, as amended
by the April 2, 2015 filing, was considered by the City’s Board of Zoning Adjustment and will
be collectively referred to herein as the “Application.”
10.

City Ordinance 64-4(J)(4), governing the development and installation of

“telecommunications towers and facilities,” states that wireless telecommunications towers are
allowed to be constructed in B-3 zoning districts if approval is granted by the City Planning
Commission. Additionally, variances for maximum height, setbacks, landscaping, and parking

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surfaces for such telecommunications towers must be granted by the City Board of Zoning
Adjustment if certain requirements set forth in Ordinance 64-4(J) are satisfied.
11.

On June 18, 2015, Cellular South appeared before the City Planning Commission

regarding Cellular South’s Application.

The City Planning Commission approved Cellular

South’s Application to construct the wireless telecommunications facility on the Site, within the
B-3 community business zoning district.
12.

In connection with Cellular South’s Application, the Board of Zoning Adjustment

Staff issued its Staff Report and presented the same to the Board of Zoning Adjustment. A true
and correct copy of the Staff Report is attached hereto as Exhibit D. As shown in the Staff
Report, the Board of Zoning Adjustment Staff recommended approval of Cellular South’s
Application. See Exhibit D at 6. The Staff Report expressly states that Cellular South submitted
the evidence required to satisfy City Ordinance 64-4(J) requirements for the requested height,
setback, landscaping, and parking surface variances. See id. at 3-6.
13.

The Staff Report recommended that the Board of Zoning Adjustment should

approve Cellular South’s Application because: “(1) Based on the fact that the site is within a
public stadium parking lot, the variance will not be contrary to the public interest; (2) These
special conditions (the site is of limited space and adjacent to an existing compound which was
given special considerations for development) exist such that a literal enforcement of the
provisions of the chapter will result in unnecessary hardship; and (3) That the spirit of the
chapter shall be observed and substantial justice done to the applicant and the surrounding
neighborhood by granting the variance in that no other tower sites were available for
collocation.” See id. at 6.

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14.

There has never been any dispute that Cellular South’s Application satisfied each

of the criteria and requirements set forth by the City’s Ordinances, including Ordinance 64-4(J).
15.

Notwithstanding, on July 6, 2015, despite the Staff’s Report and recommendation

for approval of Cellular South’s Application, despite Cellular South’s full compliance with all
City Ordinances, and without substantial justification or evidence, the City Board of Zoning
Adjustment denied Cellular South’s Application by a vote of 6 – 0. The City’s unlawful denial
of Cellular South’s Application is the basis for this Complaint.
16.

To date, the City has not issued any written record or statement of the City’s

denial of Cellular South’s Application; neither has the City otherwise identified in writing the
reasons for its denial of the Application.
17.

Moreover, the City has not supported its denial of Cellular South’s Application

with any substantial justification, evidence, or reasoning.
18.

Accordingly, the City’s denial of Cellular South’s Application was in violation of

the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B), because: (1) the City’s denial
was not in writing and was not supported by substantial evidence; and (2) the City’s denial had
the effect of prohibiting the provision of personal wireless services.
COUNT I
VIOLATION OF 47 U.S.C. § 332(c)(7)(B)(iii)
19.

Paragraphs 1 through 18 are incorporated herein by this reference.

20.

The City’s denial of Cellular South’s Application was not supported by

substantial evidence contained in a written record as required by 47 U.S.C. § 332(c)(7)(B)(iii).
21.

The Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(iii), provides as

follows: “Any decision by a State or local government or instrumentality thereof to deny a

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request to place, construct, or modify personal wireless service facilities shall be in writing and
supported by substantial evidence contained in a written record.”
22.

First, the City has not issued or provided any written record or statement of its

decision to deny Cellular South’s Application. To date, nearly 30 days after the City voted to
deny Cellular South’s Application at the July 6, 2015 Board of Zoning Adjustment meeting, the
City has not stated in writing its reasons for the denial.
23.

Second, the City has wholly failed to demonstrate that the City’s denial was

supported by substantial evidence; in fact, the City has not shown that its denial was supported
by any evidence at all.
24.

The citizens who appeared at the July 6, 2015 Board of Zoning Adjustment

meeting voiced only generalized complaints that amounted to nothing more than “not in my
backyard.” Such complaints are insufficient. Moreover, the members of the Board of Zoning
Adjustment merely noted that the wireless facility was too tall and not aesthetically pleasing.
25.

Thus, the City, through the Board of Zoning Adjustment, relied only on

unsubstantiated, unsupported general concerns and allegations from the citizens in its denial of
Cellular South’s Application.

Because the City’s denial was not in writing and was not

supported by substantial evidence, the City violated 47 U.S.C. § 332(c)(7)(B)(iii).
26.

WHERFORE, Cellular South requests that this Court overturn and reverse the

City’s denial of Cellular South’s Application and issue an injunction or other order specifically
directing the City’s Board of Zoning Adjustment to approve Cellular South’s Application.
COUNT II
VIOLATION OF 47 U.S.C. § 332(c)(7)(B)(i)(II)
27.

Paragraphs 1 through 26 are incorporated herein by this reference.

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28.

The Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7)(B)(i), provides as

follows: “The regulation of the placement, construction, and modification of personal wireless
service facilities by any State or local government or instrumentality thereof-- . . . (II) shall not
prohibit or have the effect of prohibiting the provision of personal wireless services.”
29.

The City’s denial of Cellular South’s Application amounts to an effective

prohibition of wireless services and constitutes a violation of 47 U.S.C. § 332(c)(7)(B)(i)(II)
because Cellular South has made (a) a showing of a significant gap in service coverage and (b)
some inquiry into the feasibility of alternative facilities or site locations. See Exhibits B, C.
30.

In its Application and further at the Board of Zoning Adjustment meeting on July

6, 2015, Cellular South demonstrated that a significant gap exists in Cellular South’s coverage in
the area surrounding the proposed Site. See Exhibits B, C. At the meeting, Cellular South
presented coverage maps and discussed other data that demonstrated that a gap in Cellular
South’s coverage exists and that the gap is significant. Neither the City nor any other person or
entity has presented any evidence to the contrary. Thus, the City’s denial of Cellular South’s
Application prevented Cellular South from filling a significant gap in its service coverage.
31.

Additionally, in its Application and further at the Board of Zoning Adjustment

meeting on July 6, 2015, Cellular South demonstrated that it had considered the feasibility of
alternative locations but none of those locations allowed Cellular South to adequately satisfy its
coverage needs and close its demonstrated service gap. Cellular South made good-faith efforts
to identify and investigate alternative sites that may be less intrusive, including alternatives for
collocating on other existing towers. As recognized in the Board of Zoning Adjustment Staff
Report, Cellular South demonstrated that it investigated two alternative towers near the proposed
Site but neither of those towers allowed Cellular South to close its coverage gap. See Exhibit D

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at 3; Exhibit B. The evidence presented by Cellular South was sufficient to make the requisite
showing as to the intrusiveness or necessity of its proposed means of closing its service gap.
32.

Accordingly, the City’s denial of Cellular South’s Application prohibited or had

the effect of prohibiting the provision of personal wireless services, in direct violation of 47
U.S.C. § 332(c)(7)(B)(i)(II).
33.

WHERFORE, Cellular South requests that this Court overturn and reverse the

City’s denial of Cellular South’s Application and issue an injunction or other order specifically
directing the City’s Board of Zoning Adjustment to approve Cellular South’s Application.
DEMAND FOR JUDGMENT
Cellular South prays for judgment against the City of Mobile as follows: (1) that the
Court overturn and reverse the City’s denial of Cellular South’s Application; (2) that the Court
enter an injunction or other order directing the City’s Board of Zoning Adjustment to approve
Cellular South’s Application; and (3) that the Court grant such other and further relief as the
Court deems just and proper.
Dated this 3rd day of August, 2015.
Respectfully submitted,

/s/ Lisa Darnley Cooper
LISA DARNLEY COOPER (COOPL8509)
Counsel for Cellular South Real Estate, Inc.
OF COUNSEL:
HAND ARENDALL, LLC
RSA Tower
11 North Water Street, Suite 30200
Mobile, Alabama 36602
Telephone: (251) 694-6266
Facsimile: (251) 544-1609
lcooper@handarendall.com

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John E. Wade, Jr. (MS Bar No. 6850)
Cody C. Bailey (MS Bar No. 103718)
BRUNINI, GRANTHAM, GROWER & HEWES, PLLC
Post Office Drawer 119
Jackson, Mississippi 39205
Telephone: 601-948-3101
Facsimile: 601-960-6902
jwade@brunini.com
cbailey@brunini.com

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