Summary
stating that, "[c]onsistent with Sixth Circuit precedent, this Court does not find lay opinion evidence sufficient to satisfy the substantial evidence requirement."
Summary of this case from Cellco Partnership v. Franklin County, Ky.Opinion
File No. 1:01-CV-335
October 15, 2001
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Plaintiff's motion for summary judgment (Docket # 6) on Count I of Plaintiff's complaint is GRANTED.
IT IS FURTHER ORDERED that Defendants' motion for summary judgment (Docket # 10) on Count I of Plaintiff's complaint is DENIED.
IT IS FURTHER ORDERED that Defendants' motion to dismiss (Docket #11) Count II through Count VI of Plaintiff's complaint is DENIED as moot.
IT IS FURTHER ORDERED that Plaintiff may construct the proposed tower at 2340 Dean Lake Road without interference from Defendants.
IT IS FURTHER ORDERED that JUDGMENT is entered in favor of Plaintiff.
OPINION
Before the Court are the Plaintiff MIOP, Inc.'s ("MIOP") and Defendants City of Grand Rapids and Grand Rapids City Commission's (collectively the "City") cross motions for summary judgment on Count I of Plaintiff's complaint and Defendants' motion to dismiss Counts II through VI. Plaintiff seeks to construct a 150 foot tower at 2340 Dean Lake Road for the provision of personal communication services ("PCS"). Defendants have denied Plaintiff a "Permitted With Approval Use" for the construction of the tower. For the following reasons, the Court GRANTS MIOP's motion and DENIES the City's motions.
I. Factual Background
MIOP is an agent for VoiceStream Wireless Corp. ("VoiceStream") and represents the interests of VoiceStream in this action. Although some of the earlier proceedings leading up to this case were between VoiceStream and the City, the Court refers to the party seeking to construct the tower as MIOP. Beginning in 1999, MIOP determined that there was an approximately 5-mile PCS coverage gap along I-96. This gap is significant because of the large number of PCS potential users who travel along this stretch of I-96. To close this gap, MIOP conducted propagation studies and examined possible antenna or tower locations, which would eliminate the gap in coverage. Possible sites were then analyzed to determine whether they would comply with local zoning ordinances. Significantly, local zoning ordinances require that any proposed antenna or tower structure be at least 500 feet away from any residences. GRAND RAPIDS, MICH., ZONING ORDINANCE § 5.40.4(1).
Combining all of these requirements, one of the few sites, which would both eliminate the gap in coverage and satisfy the zoning ordinance, was on the New Community Church's ("Church") property at 2340 Dean Lake Road. While this proposed location is in a residential neighborhood, it is at least 500 feet from any residence and less than a mile away from I-96, a major West Michigan expressway. No governmental entities have chosen to regulate this land as either wilderness park, wetlands, or any other type of environmentally protected area.
The Court notes that 32,100 vehicles a day traverse this stretch of I-96. TRAVEL INFO. UNIT, BUREAU OF TRANSP. PLANNING, MICH. DEP'T OF TRANSP., MICHIGAN 2000 ANNUAL AVERAGE 24-HOUR TRAFFIC VOLUMES.
In October 2000, MIOP filed an application with the City's Planning Commission ("Planning Commission") to construct a 150 foot tower on the Church's property. After a hearing held by the Planning Commission, the tower location was moved several hundred feet to accommodate the Planning Commission's concerns. The Planning Commission approved the new location of the tower on January 11, 2001. The decision was appealed to the City Commission, which held public hearings on the issue, received correspondence from neighbors near the proposed site, and hired an independent consultant to study the issue. Notably, the City's independent consultant's study "reveal[ed] an area with weak, or poor coverage depending [on] the type of carrier and technology deployed, in the area of the proposed site." (Def.'s Ex. 10 at 2). This study by the City's independent consultant also indicated that alternative sites were not viable. (Def.'s Ex. 10 at 2) Finally, the City's consultant concluded that "given these factors and having to deal with the locations of existing infrastructure, this area will need some sort of antenna support structure." (Def.'s Ex. 10 at 3).
The neighbors were vehemently opposed to the construction of the tower for aesthetic reasons, for fear of diminishing property values, and for concerns over damage to the natural environment. Based primarily on the neighbors' opposition, the City decided to deny MIOP the necessary permit. The City's resolution denying the permit to construct the tower stated:
1. That the Permitted With Approval use will be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes permitted because the character of this rural, residential area will be spoiled by the appearance of the cell tower in the skyline.
2. That the proposed use will substantially diminish or impair property values within the residential neighborhood because of its unsightly nature and intrusion into the skyline.
3. That the proposed use will diminish or impair the value of the natural environment because it will put an unnatural structure into a natural environment.
II. Standard of Review
Summary judgment is appropriate 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 a judgment as a matter of law." FED.R.CIV.P. 56(c). An issue concerning a material fact is genuine if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Rule 56, the court must view the evidence in a light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to the party's case for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. Analysis
The Telecommunications Act of 1996 ("TCA" or "Act") "provide[s] for a procompetitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition." S. REP. NO. 104-230, at 1 (1996). The Act requires that "[a]ny 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) (2001). Count I of Plaintiff's complaint alleges that Defendants have violated the TCA by not providing substantial evidence to support its denial of a "Permitted With Approval Use."
A. Meaning of Substantial Evidence
Other district courts dealing with similar cases have found two trends in the applicable definition of "substantial evidence." New Par v. City of Saginaw, ___F. Supp.2d ___, U.S. Dist. Lexis 11185, *21-22 (E.D.Mich. 2001) (citing PrimeCo Pers. Communications, L.P. v. Vill. of Fox Lake, 26 F. Supp.2d 1052, 1059-61 (N.D.Ill. 1998)). These two trends are the "substantial deference trend" and the "rigorous review trend." Id. at *22. The "substantial deference trend" has been primarily adopted by the Fourth Circuit. Id. Despite the Fourth Circuit's arguments, the Sixth Circuit continues to apply a more "rigorous review." Id. at *22-23.
Consistent with "rigorous review," the Sixth Circuit recently defined substantial evidence as "`such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.'" Telespectrum v. Public Service Comm'n of Ky., 227 F.3d 414, 423 (6th Cir. 2000) (quoting Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999)). When determining whether a decision was based on substantial evidence, the Court is required to consider all the evidence and to examine whether the decision maker "gave reasons for crediting one piece of evidence over another." Telespectrum, 227 F.3d at 423.
B. Satisfying the Zoning Ordinance
MIOP has the initial burden of showing that the record supports a variance. New Par, ___F. Supp.2d ___, 2001 U.S. Dist. Lexis 11185, *25. Although supporting the general proposition, the New Par court did not hold the plaintiff to a very heavy burden in proving the negative. Id. at *31. For example, the court did not require the plaintiff to present any evidence showing that the structure would "not interfere with or discourage the appropriate development and use of adjacent land and buildings or unreasonably affect their value." Id. Similarly, this Court will not hold MIOP to the impossible standard of proving the negative.
Applying this burden to the facts here, MIOP has satisfied the Grand Rapids ordinance. In addition to a 500 foot set back from any residences, GRAND RAPIDS, MICH., ZONING ORDINANCE § 5.40.4(1), Grand Rapids' ordinance requires a showing that the variance "will not be injurious to the use and enjoyment of other property . . ., nor substantially diminish or impair property values within the neighborhood, or the value of the natural environment." GRAND RAPIDS, MICH., ZONING ORDINANCE § 5.33(2). MIOP has offered evidence to address each of these concerns. A number of photographs demonstrate the aesthetic effect on other nearby property. (Pl.'s Br. Supp. Exs. I, K). To address the impact on property values, MIOP presented a 1999 study, The Impact of Communication Towers on Residential Property Values, which finds that this type of tower did not diminish property values. MIOP also commissioned a study from the Blandford Appraisal Company. (Pl.'s Br. Supp. Ex. 1K). The Blandford appraisal stated that "[i]t is the conclusion of the appraiser, after reviewing the above studies, that in general, cellular towers would not affect negatively the property values in proximity to the towers." (Pl.'s Br. Supp. Ex. 1K at 4). Through this evidence, MIOP has satisfied its burden of showing that it is entitled to the variance. Consequently, the real issue is whether the City has offered substantial evidence to support its decision.
Allen G. Dorin, Jr. and Joseph W. Smith, III, The Impact of Communication Towers on Residential Property Values, RIGHT OF WAY Mar. — Apr. 1999. (Pl.'s Br. Ex. 13).
C. Lay Opinion Evidence
There is disagreement among the circuit and district courts as to whether lay opinion evidence may satisfy the substantial evidence requirement. Compare Telespectrum, 227 F.3d at 424 (finding that neighbors' testimony "was no more than unsupported opinion"), and Iowa Wireless Servs., L.P. v. City of Moline, 29 F. Supp.2d 915, 922 (C.D.Ill. 1998) ("It would completely frustrate the purpose of the statute if the voicing of negative opinions by a small number of citizens, without more, could serve as a basis for denial."), with Southwestern Bell Mobile Sys., Inc. v. Todd, 244 F.3d 51, 61 (1st Cir. 2001) (permitting aesthetic judgment "without justifying that judgment by reference to an economic or other quantifiable impact"). The Fourth Circuit has found that opinion testimony is sufficient. AT T Wireless P. C. S. v. City Council of Virginia Beach, 155 F.3d 423, 430-31 (4th Cir. 1998). Notably, the Sixth Circuit in Telespectrum did not cite these Fourth Circuit cases. Telespectrum, 227 F.3d at 424. Instead, the cases cited by the Sixth Circuit remark that opinion is not sufficient to meet the substantial evidence requirement. Id. Consistent with Sixth Circuit precedent, this Court does not find lay opinion evidence sufficient to satisfy the substantial evidence requirement.
D. The City's Evidence
As noted in the facts, the City provided three reasons for denying the permit. First, the City feels that the tower would interfere with the use and enjoyment of other nearby property. Second, the City claims that the tower will diminish or impair property values within the residential neighborhood. Finally, the City alleges that the tower will diminish or impair the value of the natural environment. Although the Court is required to look at all of the evidence, Telespectrum, 227 F.3d at 423, in this case, it is not necessary because the City presents no evidence sufficient to justify the denial.
1. Injurious to Use and Enjoyment of Other Nearby Property
The only evidence offered by the City to support its first reason for denying the permit is the neighbor's statements and photographs. (Def.'s Br. Resp. Opp'n at 13-15). One neighbor describes the tower as "half the height of the Amway Grand Plaza Hotel in a virtually treeless location with nothing to hide its negative impact from all vistas." (Def.'s Ex. 9). Another neighbor similarly says that "[t]he pole is very visible and will be very obnoxious and will not fit in with the setting whatsoever." (Def.'s Ex. 2 at 24). Several letters from neighbors echo these sentiments and strongly urge finding another site with less of a residential character. The neighbors also superimposed a tower structure on a number of current photographs. (Def.'s Ex. 11). The City's hired consultant "understand[s] the concern of the visual impact on the community." (Def.'s Ex. 10 at 3). Although the Court has viewed this evidence, it is lay opinion evidence, which alone is not substantial enough to satisfy the requirements of the TCA.
2. Diminish or Impair Property Values Within the Residential Neighborhood
The City's evidence concerning the effect of the tower on property values is primarily, like the evidence on aesthetics, opinions of the neighbors and anecdotal evidence of the neighbors. The City does offer a reference by a neighbor at a Planning Commission meeting to a 1983 Wall Street Journal article citing a Houston study concerning property values near electric transmission lines. (Def.'s Ex. 1 at 9). The study's relevance is highly questionable given the remoteness in time and location and the different type of structure studied, electric transmission lines. More importantly, the study does not appear to have been considered by the City Commissioners as nothing in the minutes from the City Commission meeting when the decision was made to deny the variance mentions this study. (Def.'s Ex. 16). The only reference pointed to by the City in the entire record is a January Planning Commission meeting and not at any City Commission meeting. (Def.'s Ex. 1 at 9). Because the City did not consider the study it cites and the study is significantly remote in time, location, and type of structure, the Court disregards the study as evidence. Consequently, the City has offered only lay opinion evidence to support its claim that the tower will diminish or impair property values, and as with the evidence on aesthetics, lay opinion evidence is insufficient under the TCA.
3. Diminish or Impair the Value of the Natural Environment
Finally, the only evidence concerning the effect on the natural environment is a few comments from a member of the Planning Commission and a couple of neighbors. Planning Commissioner Dan Gravelyn described the neighborhood as a "rural hamlet [with] a nice lake in a rural setting, natural environment and peace and enjoyment." (Def.'s Ex. 14 at 25). A neighbor reports that the community has purposely spent money to ensure that utilities are underground and that there are no power poles "disturb[ing] the natural surroundings." (Def.'s Ex. 3 at 35). Finally, another neighbor testified that the tower would sit in the middle of the flight path of migratory birds and that the tower was very near where herons have been nesting for several years. (Def.'s Ex. 2 at 22-23). As none of these comments were made by individuals with experience or expertise in birds or natural environments, the Court considers them lay testimony and not sufficient to satisfy the substantial evidence requirement.
E. Relief
MIOP requests an order requiring the City to issue the necessary permit. (Pl.'s Br. Supp. at 25). Because MIOP titles this remedy "mandamus," the City argues that the order must comply with 28 U.S.C. § 1361 (2001). Section 1361 applies to orders to federal officers, and nothing indicates that this section is applicable to this action. Moreover, a number of other courts have found that an injunctive remedy is appropriate for a substantial evidence violation. Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir. 1999) (collecting cases). See also New Par, ___F. Supp.2d ___, 2001 U.S. Dist. Lexis 11185, *32-34 (analyzing appropriateness of an injunction requiring the city to issue the necessary permits). Therefore, this Court finds this remedy is appropriate in this case.
IV. Conclusion
The Court is not unsympathetic with the neighbors' high value on aesthetics and the natural environment. Moreover, the Court understands the resulting diminution in aesthetics caused by a skyline obstruction like the proposed tower. The proposed location, however, is one of the few which would eliminate the present gap in PCS coverage and satisfy the local zoning ordinance requirements. Moreover, the record in this case lacks any specific evidence to support the Defendants' denial of the necessary permit. For the foregoing reasons, Plaintiff's motion for summary judgment on Count I is GRANTED and Defendants' motion for summary judgment on Count I is DENIED. Because Plaintiff is obtaining all the relief it seeks, Defendants' motion to dismiss Count II through Count VI is DENIED as moot without addressing the merits. Furthermore, Plaintiff's request for an injunction permitting it to construct the tower is GRANTED. An order and judgment consistent with this opinion will be entered.
POTTHOFF v. PROVIDENT LIFE ACCIDENT INSURANCE COMPANY, (W.D.Mich. 2001)
WILLIAM P. POTTHOFF, Plaintiff, v. PROVIDENT LIFE ACCIDENT INSURANCE COMPANY, PROVIDENT COMPANIES and UNUM PROVIDENT, Defendants. Case No. 1:00-CV-823 United States District Court, W.D. Michigan, Southern Division. October 18, 2001
MEMORANDUM OPINION AND ORDER ON STANDARD OF REVIEW
DAVID W. McKEAGUE, United States District Judge.
This is an action for recovery of benefits under an employee benefit plan governed by the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. Plaintiff seeks review of the plan administrator's decision to discontinue payment of residual disability benefits. Now before the Court is the question of the applicable standard of review. Plaintiff contends the Court should review the plan administrator's decision de novo. Defendants argue that the more deferential "arbitrary and capricious" standard of review applies.
Plaintiff William P. Potthoff, M.D., a surgeon, alleges he has suffered a partial disability due to a lower back condition that resulted in work restrictions and a 20% loss of income. He further alleges that defendant Provident Life Accident Insurance Company
("Provident") initially approved his claim for disability benefits on February 4, 1997. On December 16, 1998, however, Provident issued notice that plaintiff's disability benefits would be discontinued. This decision was based on Provident's determination that plaintiff's loss of income was due to a lifestyle choice rather than the limitations of a physical condition. Plaintiff alleges Provident's decision is not supported by any evidence and that, in fact, his condition has worsened since Provident initially approved his claim for disability benefits.
The parties essentially agree that Provident's decision as plan administrator is subject to de novo review unless the plan clearly vests discretionary authority in Provident to determine benefits or interpret the plan. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir. 1998) (en banc). Otherwise, the "arbitrary and capricious" standard of review applies. Id. While "magic words" like "discretionary authority" are not necessary to vest discretion, the mere right to decide coverage questions, without more, does not grant discretionary authority. Tiemeyer v. Community Mutual Ins. Co., 8 F.3d 1094, 1099 (6th Cir. 1993); Torello v. UNUM Life Ins. Co. of America, 201 F.3d 441 (Table), 1999 WL 1204755 *3 (6th Cir. (Ohio)). Yet, language granting to the plan administrator the right to require "due proof" or "satisfactory evidence" has generally been deemed sufficient to confer discretionary authority. Perez, 150 F.3d at 556; Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir. 1996). That is, if the plan requires some qualitative threshold of proof that requires the plan administrator to exercise subjective judgment, then discretionary authority is conferred. See Yeager, 88 F.3d at 381; Chiera v. John Hancock Mutual Life Ins. Co., 3 Fed. Appx. 384, 390, 2001 WL 111585 *4 (6th Cir. (Ohio)); Sparks v. UNUM Life Ins. Co. of America, 225 F.3d 659 (Table), 2000 WL 1033003 *3 (6th Cir. (Ohio)); Williams v. Continental Cas. Co., 138 F. Supp.2d 998, 1009-10 (M.D.Tenn. 2001).
Arguably at odds with this latter line of authorities is Williams v. Int'l Paper Co., 227 F.3d 706, 711 (6th Cir. 2000). In Williams, the pertinent plan language stated that a participant could obtain disability benefits "provided that the Plan Administrator finds, and a physician or physicians designated by the Plan Administrator certify that the Disability is likely to be permanent during the remainder of the Participant's life." 277 F.3d at 711 n. 3. This language doe not prescribe a qualitative threshold of proof like "due proof" or "satisfactory evidence." Yet, the Williams court implicitly concluded that the plan language, by expressly allowing the plan administrator to make the "finding" of disability and to designate the acceptable examining physician(s), required the plan administrator to exercise subjective judgment.
Here, the pertinent plan language supports no such construction. The definitional provisions of the Provident plan themselves prescribe no threshold of proof. It is a provision entitled "Time of Payment of Claims" which appears to define the requisite nature of proof to support a claim for disability benefits:
The residual disability provisions provide:
Residual Disability or residually disabled, during the Elimination Period, means that due to Injuries or Sickness:
1. you are not able to do one or more of your substantial and material daily business duties or you are not able to do your usual daily business duties for as much time as it would normally take you to do them;
2. you have a Loss of Monthly Income in your occupation of at least 20%; and
3. you are receiving care by a Physician which is appropriate for the condition causing disability. We will waive this requirement when continued care would be of no benefit to you.
After the Elimination Period has been satisfied, you are no longer required to have a loss of duties or time. Residual Disability or residually disabled then means that as a result of the same Injuries or Sickness:
1. you have a Loss of Monthly Income in-your occupation of at least 20%; and
2. you are receiving care by a Physician which is appropriate for the condition causing the Loss of Monthly Income. We will waive this requirement when continued care would be of no benefit to you.
Disability Income Policy, p. 9.
After we receive written proof of loss, we will pay monthly all benefits then due you for disability. Benefits for any other loss covered by this policy will be paid as soon as we receive proper written proof.Id. at p. 20. As plaintiff argues, the first sentence of this provision, pertaining to a disability claim, requires only "written proof of loss" and clearly does not prescribe a qualitative threshold that requires exercise of subjective judgment. The second sentence, which does require " proper written proof," applies only to "any other loss," i.e., other than for disability. The second sentence, plaintiff contends, does not, therefore, confer discretionary authority with respect to a disability determination. Indeed, "discretion is not an all-or-nothing proposition." Williams, 227 F.3d at 711." [A] plan can give an administrator discretion with respect to some decisions but not others." Id.
Defendant Provident does not dispute the above construction, but points to two other provisions as evidence that discretionary authority is conferred. A section of the plan defining the method of determining the amount of any residual disability benefits includes the following provision:
We can require any proof which we consider necessary to determine your Current Monthly Income and Prior Monthly Income. Also, we or an independent accountant retained by us shall have the right to examine your financial records as often as we may reasonably require.
Disability Income Policy, p. 10. Citing Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 984 (6th Cir. 1991), Provident argues this provision allows it to determine "what sort of evidence may be required from an applicant" and, to this extent, does confer discretionary authority.
Although Provident's citation to Miller is appropriate, its argument is undermined by the very plan language it relies on. Discretionary authority is conferred under this provision, but only to the extent of determining the appropriate amount of residual disability benefits, based on the ratio of current monthly income to prior monthly income. Plaintiff's current and prior monthly income are not disputed matters. The ultimate question posed in this case is whether plaintiff's undisputed loss of income is the product of a physical disability or of a personal lifestyle choice. The instant grant of discretion to determine what constitutes satisfactory evidence of prior income clearly does not vest discretion in Provident to exercise subjective judgment in making the disability determination. See Williams, 227 F.3d at 711 ("discretion is not an all-or-nothing proposition").
Secondly, Provident points to the following plan language:
We, at our expense, have the right to have you examined as often as is reasonable while a claim is pending.
Disability Income Policy, p. 20. Again, Provident relies on Miller, arguing this provision grants it the right to determine "what sort of evidence may be required."
Yet again, however, the instant language is materially distinguishable from that addressed in Miller. In Miller, the plan language expressly defined "the sort of evidence required" a "medical evidence satisfactory to the Insurance Company." 925 F.2d at 983. This language clearly prescribes a qualitative standard requiring the exercise of subjective judgment. Here, by contrast, the cited language does not refer to a threshold of proof at all, but pertains to the frequency with which medical examinations may be required, establishing not a subjective, but an objective "reasonable" standard. This language simply cannot be reasonably construed as expressly conferring discretionary authority to make the determination of disability.
Provident protests, citing an unpublished ruling in which identical plan language was evaluated and held to vest discretion. Santino v. Provident Life and Accident Ins. Co., No. 99-CV-70301 (E.D.Mich. July 13, 2000). The Santino decision has no controlling effect, of course. Further, having duly considered the opinion, the Court finds its standard of review analysis to be superficial and unpersuasive. It simply is not reconcilable with a careful reading of recent controlling Sixth Circuit precedents. Moreover, the Court notes that Santino, after determining the appropriate standard of review, goes on to affirm the plan administrator's decision irrespective of the standard of review (i.e., under both the arbitrary and capricious and de novo standards), thereby effectively rendering the standard of review analysis a matter of dictum.
Accordingly, for all the reasons stated, the Court finds no persuasive support in the plan language for the proposition that the plan vested discretion in Provident to make the determination whether plaintiff continued to suffer a residual disability after December 16, 1998. It follows that it was incumbent upon Provident to evaluate the information before it under an objective, rather than a subjective, standard. It also follows that this Court must and shall undertake de novo review of Provident's decision.