HomeMy WebLinkAboutMisc.DEFINITION
Stealth Tower: A man -made tree, clock tower, church steeple, bell
tower, utility pole, light standard, identification pylon, flagpole, or
similar structure, that is camouflaged to be unrecognizable as a
telecommunications facility, designed to support or conceal the
presence of telecommunication antennas and blend into the
surrounding environment.
In the United States District Court
for the Southern District of Texas,
Houston Division
Blue Dolphin,Inc., §
- Plaintiff - §
v.
§ No.
City of College Station,Texas, §
Defendant §
Plaintiff's Original Complaint
I
General
1.1 This is a suit for declaratory and injunctive relief pursuant to 42 U.S.C. §1983, seeking a
declaration that certain provisions of the College Station Unified Development Ordinance
("UDO")are facially unconstitutional, and seeking a permanent injunction against the
enforcement of those provisions against the Silk Stocking, a topless dancing
establishment operated by Plaintiff in College Station, Texas.
II
Parties
2.1 Plaintiffis a Texas Corporation,which may be served with process for purposes of this
lawsuit only through the offices of Carter&Fahle,628 S. Presa, San Antonio,Texas
78210,fax#210.212.9199.
2.2 The City of College Station("the City")is the Defendant,a municipal corporation,and
may be served wiifh process through its City Secretary, Connie Hooks,at 1101 Texas
Avenue,College Station,Texas 77840.
III
Jurisdiction
3.1 This Court has subject matter jurisdiction pursuant to.the Declaratory Judgments Act, 28
U.S.C. §2201; the Civil Rights Act,42 U.S.C. §1983, 42 U.S.C. §1988, and 28 U.S.C.
§1343; and the All Writs Act, 28 U.S.C. §1651.
IV
Venue
4.1 Venue is proper in this Court, because the Defendant is located in the Southern District
of Texas, Houston Division.
4.2 Further,the UDO complained of was passed in Brazos County, Texas and applies solely
within the boundaries of the City Of College Station, Texas,which are both in this
Court's District and Division.
4.3 Further,all acts of the Defendant complained of below took place in Brazos County,
Texas,which is in this Court's District and Division.
V
Facts
5.1 Plaintiff owns and operates the Silk Stocking, a topless dancing establishment located at
4075 S. Hwy 6-13.usiness (Texas Avenue), in College Station, Texas. The establishment
is located within the city limits of College Station,Texas,tnd subject to the City's
2
Unified Development Ordinance("UDO").
•
5.2 The UDO,attached as Exhibit.!,was passed by the City Council on March 13,2003, and
became effective June 13,2003. The Silk Stocking is classified as a sexually oriented
business under the UDO.Exhibit 1, §11.2. As such,Plaintiff's business is subject to the
provisions of§6.3(N)of the UDO,which regulates the configuration and location of
sexually oriented businesses.The UDO prohibits the location of sexually oriented
businesses in certain locations,including those locations within 500 feet of a residential
district,or within 1,000 feet of a church,school,playground,university,or other
protected use.Measurements are made from the lot line of the business to the nearest lot
line of the protected use.Exhibit 1, at§6.3(N)(7). The Silk Stocking is not within 1,000
feet of any protected use,nor within 500 feet of a residential district.
5.3 Additionally,however,the UDO prohibits the location of a sexually oriented business
within 500 feet of the frontage of Texas Avenue,Earl Rudder Freeway,Raymond Stotzer
Parkway,University Drive,or Harvey Road.The Silk Stocking is located on a lot with
frontage on Texas Avenue.There do not appear to be any locations within the city limits
of College Station,Texas,where a sexually oriented business may permissibly locate
under the UDO.
5.4 On information and belief,the City Council of College Station did not consider any
evidence regarding any potential secondary effects of sexually oriented businesses when
considering thepassage of the UDO. •
3
VI
First Cause of Action:
The UDO is Not Content-Neutral, and is Therefore an Unconstitutional Prior
Restraint on Speech, In Violation of the First and Fourteenth
Amendments to the United States Constitution
[42 U.S.C. §19831
6.1 In City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)the United States
Supreme Court was faced with the issue of whether a zoning ordinance prohibiting adult
motion picture theaters from locating 1,000 feet from any residential zone, single or
multiple family dwelling, church,park, or school met constitutional muster. 475 U.S. 41,
43. Finding such ordinances to be prior restraints on constitutionally protected speech,the
Court determined that the proper test for constitutionality is to inquire whether the
particular ordinance is a content-neutral time, place, manner regulation, i.e., a regulation
that serves a substantial governmental interest and allows for reasonable alternative
avenues of communication. Id., at 46-47. In determining whether a sexually oriented
business ordinance is content-neutral, the Court conducted a case-specific, fact intensive
inquiry.After sifting through the city's legislative record,which included studies from
other cities as well as testimony on the secondary effects of adult theater locations in
residential neighborhoods,the Court found these"detailed fmdings"sufficient proof of
substantial governmental interest"so long as whatever evidence the city relies upon is
reasonably believed to be relevant to the problem that the city addresses." Id., 52-53.
6.2 However, becausethese presumptively invalid regulations are subject to intermediate
scrutiny, a post-hoc assertion that the Ordinance is intended to serve some legitimate
4
substantial governmental interest is not sufficient. The legislative record itself must
contain evidence,at the time the ordinance was passed,demonstrating the existence of a
content-neutral purpose for the ordinance, such as the intent to combat undesirable
secondary effects like higher crime rates or lower property values. The proponent of the
regulations must come forward with such a legislative record, and such record must
contain evidence which a reasonable legislature could have relied upon in determining
that the regulations are necessary. •
Itis true that the effect on speech here is said to be incidental to a
regulation aimed at the secondary effects of a business whose
activities are within the legitimate scope of the state's police
power.Yet,unlike our review under a standard of rationality,we
will not hypothesize such an objective or accept a naked assertion.
Rather,we intrude into the regulatory decision process to the
extent that we insist upon objective evidence of purpose--a study
or findings. Insisting upon findings reduces the risk that a
purported effort to regulate effect is a mask for regulation of
content.That is, evidence of legitimate purpose is supported by
proof that secondary effects actually exist and are the result of the
business subject to the regulation.
SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274(5th Cir. 1988).
6.3 In AID HEntertairmtent,Inc. v. City ofDallas, the city amended its SOB ordinance to
further a restriction on nude and semi-nude dancing without obtaining any studies that
directly linked any secondary effects to sexually explicit conduct.935 F. Supp. 1384,
1387-98 (N.D.Tex. 1995).The city offered a study prepared and reviewed by the city
after the passage of the amendment as summary judgment evidence.Id.,at 1398. The
United States District Court held that the city had failed its burden of proof to show that a
•
.substantial governmental interest was the predominate factor motivating the ordinance's
5
amendments and granted summary judgment to the SOB plaintiff. Id., at 1399.
6.4 The UDO places location restrictions on where SOBs may operate. In the First
Amendment context, such restrictions are permissible if they are content-neutral time,
place, and manner regulations, narrowly tailored to serve a substantial governmental
interest,and if they do not unreasonably limit alternative avenues of communication. City
of Renton v. Playtime Theatres, Inc.,475 U.S.41,46-47 (1986). The strong presumption
is that the UDO is unconstitutional,and the burden is on the City of College Station, as
the proponent of the Ordinance in question,to prove that the UDO is constitutional,i.e.,
that the UDO is content-neutral,narrowly tailored to serve a substantial governmental
interest,and leaves open adequate alternative avenues of expression.See City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 53 (1986). The proper means for a City to establish
its intent in passing such an ordinance,and to thereby demonstrate that the UDO is
content-neutral, is through the UDO's legislative record. City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41,52-53;SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1272-73
(5"'Cir. 1998),cert denied,489 U.S. 1052(1989);MD II Entertainment, Inc. v. City of
Dallas, 935 F. Supp. 1394, 1397-98(N.D.Tex. 1995). On information and belief,no such
legislative records exist here,because the City Council did not in fact pass the UDO in
response to concerns about secondary effects,and therefore the UDO is unconstitutional.
VII
Second Cause of Action:
The UDO Fails to Provide for Prompt Judicial Review
,of a Denial of a Certificate of Occupancy,
In Violation of the First and Fourteenth
•
Amendments to the United States Constitution
[42 U.S.C. §19831
6
7.1 Additionally,a licensing scheme is an unconstitutional prior restraint on speech if it does
not provide for prompt judicial review in the event that a license application is denied.
FW/PBS,Inc.v. City-of Dallas,493 U.S. 215,227-229 (1990). In the College Station
UDO,the Certificate of Occupancy effectively doubles as a license to do business as a
sexually oriented business,because without it the business cannot legally operate.The
issuance of a Certificate of Occupancy is conditioned,among other things,on the City's
determination that the site of the business is a permissible location.
7.2 The UDO provides only for administrative review by the Zoning Board of Adjustment,
and even that is subject to the Board's unfettered discretion.No provision for judicial
review,prompt or otherwise,is made in the UDO. Thus,the entire licensing scheme is
void.FW/PBS.'
VIII
Third Cause of Action:
The Prohibition against Location of a Sexually Oriented Business
within S00 feet of the Frontage of Texas Avenue,Earl Rudder Freeway,
Raymond Stotzer Parkway,University Drive,or Harvey Road,
Is not Narrowly Tailored to Serve any Substantial Governmental Interest
8.1 The UDO prohibits the location of a sexually oriented business on the frontage or within
500 feet of the frontage of Texas Avenue,Earl Rudder Freeway,Raymond Stotzer
Parkway,University Drive,or Harvey Road.Exhibit 1, at$6.3(N)(6).
8.2 This provision is not narrowly tailored to serve any substantial governmental interest,
'While§3.17(B)does provide that the actions of the zoniag board may be temporarily
stayed by restraining Order,the UDO provides for no method of review which would
permanently reverse the findings of the zoning board.
7
such as the alleviation of any alleged secondary effects of sexually oriented businesses, as
required by Encore Videos v. City of San Antonio, 330 F.3d 288, 293 (5th Cir. 2003).
Instead, it was erected solely as a roadblock to the exercise of First Amendment protected
expressive activities. In Encore Videos, the Fifth Circuit held that:
A time,place,and manner regulation meets the narrow tailoring
standard if it"targets and eliminates no more than the exact source
of the evil it seeks to remedy."Frisby,487 U.S. at 485. Although
government need not choose the"least intrusive means"to advance
its legitimate interests,it"may not regulate expression in such a
manner that a substantial portion of the burden on speech does not
serve to advance its goals" Ward,491 U.S. at 799.
Encore Videos, 330 F.3d at 293.
8.3 If the City had demonstrated(which Plaintiff does not concede)that sexually oriented
businesses cause secondary effects, such as higher crime rates or the lowering of property
values,then the provisions of§6.3(N)(7)(b)prohibiting location of a sexually oriented
business within 500 feet of a residential district or within 1,000 feet of a park,school,
library or other place frequented by children would arguably be narrowly tailored to
combating those secondary effects.However,the prohibitions of§6.3(N)(6)would still
fail to meet this standard. This arbitrary rule places a substantial burden on speech, and
does not serve to advance any legitimate substantial governmental interest.
8.4 Plaintiff's business is not within 500 feet of any residential area or any protected use.The
only provision Of the UDO which renders it a non-conforming use is §6.3(N)(6).Because
•
this"substantial portion of the burden on speech"fails to serve any legitimate
8
governmental interest, this provision should be declared an unconstitutional restraint on
protected speech.
IX
The UDO Fails to Provide
Adequate Alternative Avenues of Communication
and is Therefore Unconstitutional.
9.1 The second requirement set out by the Supreme Court in City of Renton v. Playtime
Theatres Inc., is that an order regulating expressive businesses must allow adegi}ate
alternative avenues of communication for the same type of speech. Id.,at 46-47. In other
words,the UDO may not be used as a pretext to ban such speech within the jurisdiction.
Id. The burden is on the proponent of the ordinance to establish the existence of sufficient
ti
permissible locations under the terms of the ordinance
9.2 The UDO places restrictions on where sexually oriented expressive businesses may
locate,Exhibit 1 §6.3(N)(6) - (7), and does not, on its face, provide for adequate
alternative avenues of expression. Unless the City can demonstrate that College Station
contains adequate permissible sites for the location of sexually oriented expressive
businesses,the UDO must fail.
X
Attorney's Fees
[42 U.S.C. §1988]
10.1 It has been necessary for the Plaintiff to secure the services of Carter&Faille to pursue
this matter, and tole and litigate this lawsuit. Should Plaintiff prevail in this matter,
Plaintiff respectfully requests that the Court award reasonable and necessary attorney's
9
fees incurred in enforcing Plaintiff's civil rights. 42 U.S.C. §1988.
XI.
Conclusion and Prayer for Relief
11.1 The above premises considered, Plaintiff respectfully prays that this Court declare the
UDO in its entirety, and the specific provisions of the UDO set out above, to be violative
of the First and Fourteenth Amendments to the United States Constitution. Additionally,
Plaintiff requests a permanent injunction enjoining the Defendants from enforcing the
UDO. Further,Plaintiff requests an award of any damages to which it may show itself
justly entitled upon trial of this action. Further, Plaintiff requests that this Court order the
Defendants to reimburse Plaintiff for reasonable and necessary attorney's fees and costs
incurred in bringing this action. Finally, Plaintiff requests such other and further relief to
which it may show itself justly entitled.
Respectfully s
i�4T,�-
iI784031
Carter& Fahle
628 S. Presa
San Antonio, Texas 78210
(210) 884-9291
(210)212-9199 (fax)
Edward Mallett
SBN 12863000
712 Main St., Ste. 1600
Houston, Texas 77002
Attorneys for the Plaintif
10
Blue Dolphin, Inc.
I-
11
FA/04.1k-
,
JUL_ 1 9 2000
• CELL TOWER SITING:
•
ZONING AND PLANNING LAW
IMPLICATIONS
• International Municipal Lawyers Associations
Mid-Year Seminar -
Omni Shoreham Hotel
Washington, DC •
April 10, 2000
•
• Presented by:John C.Gillespie,Esquire
PARKER,McCAY&CRISCUOLO
• Three Greentree Centre
Route 73 and Greentree Road •
Marlton,NJ 08053
I. Background.
As anyone who has stood on the tenth floor of any building can attest, cellular
towers have come to define"the new American landscape." As far as the eye can see, in
almost any area throughout the country, such towers are visible in all directions. The
Federal Communications Commission("FCC") estimates that there are now
approximately 100,000 such towers constructed across the country. Where did they come
from? How did they get there?
The 1993 Omnibus Budget Reconciliation Act established procedures to be used
by the FCC for licensing personal communications systems("PCS").In 1994,the FCC
utilized a competitive bidding procedure by which it raised over$20 billion in the auction
of its PCS licenses. The nation is divided into 734 markets and the FCC grants licenses
within each market. These licensees,generally large corporations,then deal with other
companies who wish to enter that market.
To expedite recovery of their capital investment(i.e., the billions of dollars they
paid for these licenses),these corporations quickly filed applications for zoning, special
use,and building permits to construct the towers necessary to transmit frequencies. Local
governments,unfamiliar with this new technology,and protective of the`hot in my
backyard"(NIMBY)mentality of its residents(and often its elected officials)regularly
denied the applications on grounds of,for example,aesthetics,radio frequency emissions,
environmental effects, and the like. The telecommunications industry,tired of
confronting different rules and interference from the 30,000 different zoning jurisdictions
throughout the United States,heavily lobbied Congress for assistance in dealing with
local governments. As a result,the Telecommunications Act of 1996 was enacted.
Although initially intended by the industry to deny local governments any role in
the siting of transmission towers and associated equipment shelters,the Act actually
reposes in local government some regulatory authority over the siting of cellular towers.
II. The Provisions of the Act.
47 USC Section 332(c)(7) establishes the Local Zoning Authority. Subparagraph
• (A)provides that"except as provided in this paragraph,nothing in this chapter shall limit
2
or affect the authority of a State or local government or instrumentality thereof over
decisions regarding the placement,construction,and modification of personal wireless
service facilities." 47 USC Section 332(cx7)(B),does however,so limit the state or local
government as follows:
"(i) The regulation of the placement,construction,and modification of
personal wireless service facilities by any state or local government
or instrumentality thereof--
(I) Shall not unreasonably discriminate among providers of
functionally equivalent services;and
(II) Shall not prohibit or have the effect of prohibiting the
provision of personal wireless services.
"(ii) A state or local government or instrumentality thereof shall act on
any request or authorization to place,construct,or modify personal
wireless service facilities within a reasonable period of time after
the request is duly filed with such government or instrumentality,
taking in account the nature and scope of such request.
"(iii) Anydecision bya state or localgovernment or instrumentality
thereof to deny a request to place,construct,or modifypersonal
wireless service facilities shall be in writing and supported by
substantial evidence contained in.a written record:
"(iv) No state or local government or.instrumentality thereof may
regulate the placement,construction and modification of personal
wireless service facilities on the basis of the environmental effects
of radio frequency emission to the extent that such facilities
comply with the Commission's regulations concerning such
emissions.
"(v) Any person adversely affected by any final action or failure to act
by a state or local government or any instrumentality thereof that is
3
•
inconsistent with this subparagraph may,within thirty(30)days
after such action or failure to act,commence an action in any court
of competent jurisdiction. The court shall hear and decide such
action on an expedited basis. Any person adversely affected by an
act or failure to act by a state or local government or any
instrumentality thereof that is inconsistent with clause(iv)may
petition the Commission for relief."
Given the proliferation of cellular towers over the last few years,local agencies
generally do not discriminate against providers of functionally equivalent services,and
Section 332(c)(7)(B)(i)(I)is not generally implicated. Thus,this presentation will not
address that prohibition. Nor will this paper address the other prohibitions in this section
as they really have little to do with the actual siting of towers. Rather,they relate to the
governmental response to siting applications. For example,332(c)(7)(B)(ii)requires the
governmental entity to respond to the request"within a reasonable period of time after the
request is duly filed"; and subparagraph(iii)requires the governmental response to be"in
writing and supported by substantial evidence contained in a written record."
Subsubparagraph(iv)precludes governmental entities from regulating towers based upon
environmental effects of radio frequency emissions, so long as those emissions comply
with the FCC's regulations governing same. Finally,subsubparagraph(v)requires
communications providers to challenge denials within thirty(30)days. It is suggested,by
the way,that the thirty(30)day time limit applies only to a challenge under the
Telecommunications Act. It does not operate to otherwise shorten the time frame in
which challenges under state or local law can be made. In New Jersey, for example,the
forty-five(45)day rule to challenge governmental actions would apply if the challenge
was based solely on New Jersey's land use laws.
Section 332(cx7XBxi)(II),however,is important to this topic,both because it
relates directly to the siting of towers,and because it is frequently litigated. It precludes
local governments from"prohibiting or having the effect of prohibiting the provision of
4
•
personal wireless services." This situation generally arises where a municipality"zones
out"wireless communication facilities by not allowing them as permitted uses in any
zone or simply denies applications for building,zoning,or special use permits for such
activities. In"the early days",the prohibition also found life through"moratoria"or.
"freezes"on the construction of towers. Municipalities simply imposed moratoria and
freezes in order to"get a better handle"on the nature of the industry and the activities
proposed,and, again,to avoid"the fear of the unknown." Cases involving"freezes"are
no longer as frequent,given that municipalities are both more educated and more familiar
with this industry and its activities.
Thus, litigation surrounding this particular clause of the Telecommunications Act
is generally ordinance related,or driven by denials of specific applications.
A. Ordinances.
As practitioners in the field,we find,far too often,that municipalities simply
make no provision for cellular communication towers and associated facilities as either
permitted uses,accessory uses,or conditional uses under their zoning ordinances. This is
a mistake. Indeed,New Jersey's Supreme Court has encouraged municipalities to adopt
ordinances identifying zones and sites for such facilities. Smart SMR v.Fairlawn Bd.of
Adjustment, 152 LTJ 309,334336(1998). Even more recently,that Court has suggested
that a municipality"defaults"on the issue by failing to so zone;thereby giving the carrier
a"leg up"in the application process. New Brunswick Cellular v. South Plainfield Bd.of
Adjustment, 160 NI 1, 15 (1999).
It is not overly complicated for a municipality to enact an ordinance regulating
cellular communications towers. For example,it does not take much imagination to
justify the inclusion of cellular towers as permitted uses in zones typically classified as
"industrial." Such zones generally permit utilities,as well as buildings or operations
which are already in excess of residential height limitations such as hotels,hospitals and
manufacturing plants. Towers may also be appropriate in areas classified as"forest"or
agricultural districts,given their general distance from residential neighborhoods, and the
consequent avoidance of the NIMBY type objections. Moreover,concerns about the
height of a tower are ameliorated when the tower is in a forest surrounded by trees.
5
Likewise,the municipality could,without too much effort or expense,identify
areas within its borders where the topography offers higher elevations than in other areas,
thereby providing a logical and advantageous location for siting such towers..Areas
along State and other major highways also offer an opportunity to encourage cellular
towers: the traveling public is not as offended by the aesthetics;there are generally
pockets where residential development is either absent or isolated;and, again,there is no
significant NIMBY opposition.
Moreover,the enactment of such ordinances allows municipalities to regulate the
construction of new towers by encouraging co-location. Such co-location is permissible,
and can require the telecommunications providers to investigate the possibility of affixing
their antennae on existing towers of competitors. Ordinance provisions can, for example,
require new towers to accommodate other future users. Such ordinances can also
establish priorities for the co-location of antenna on existing structures,such as municipal
water towers, electrical towers, and the like. The encouragement of co-location
simultaneously discourages the construction of new towers,and public opposition to the
installation of mere antennae on existing facilities is generally not as intense as it is to the
construction of new towers.
A properly enacted ordinance also imposes upon the telecommunications provider
the obligation to submit significant amounts of information,which,when properly
digested,can also reduce public opposition and the NIMBY fears associated with such
applications. A sample ordinance is attached to this outline.
While such ordinances may not entirely eliminate the need for use variances if
those particular zones do not provide the"gap coverage"needed by the carrier to meet its
FCC requirements,they at least suggest to the Courts that the municipality has
consciously addressed the issue,and has attempted to regulate the activity as opposed to
"prohibiting"the activity. A properly drafted ordinance will also impose greater burdens
upon the applicant in terms of proofs necessary to secure a use variance or special use
permit for construction of a tower in a location where the use is not permitted under the
ordinance. As a consequence,where a land use agency denies the application,it should
be in a better position to defend its actions,and secure affirmance of its decision,than if it
6
acted"out of a vacuum."
B. Specific Site Applications: The Typical Factual Situation.
The following typical facts are generally adduced by the applicant
for a cellular communications tower:
1. The applicant provides personal communications services over a
network of wireless telecommunications facilities,pursuant to a
license from the Federal Communications Commission.
2. PCS technology is a new generation of wireless communication
services that uses digital transmission to improve the quality and
reliability of the communications.
3. Under FCC regulations,the applicant operates its wireless
telephone service for the general public as a common carrier.
4. Portable telephones using PCS digital technology operate by
transmitting a very low power radio signal between the telephone
and the applicant's antennas mounted on towers,poles,buildings,
• or other structures.
5. In order to provide continuous service to a PCS telephone user,
there must be a series of overlapping cells in a grid pattern
approximating a honeycomb.
6. Without this series of overlapping cells,a PCS telephoneusers
conversation might be interrupted when he or she enters an area
that is not within a functioning cell,and the service would not be
available,thereby causing the call to abruptly end.
7. The distance from cell site to a PCS telephone needs to be
relatively short.
8. The applicant's engineers use complex computer programs to
complete a propagation study,which shows where a cell site needs
to be located within a cell,based on the boundaries of the cell,
topography of the land,and other factors.
9. Once a potential site is identified,the applicant's engineers verify
• 7
that the site actually will provide sufficient coverage of the cell by
performing a`drive test' with radio equipment.
10. In order to provide PCS telephone service to a portion of the area
in which coverage needs to be effectuated to meet FCC licensing
requirements,the applicant needs to place an antenna cell site at a
particular location. Therefore,this location is identified and
becomes the subject of the permit application, special use permit,
or use variance.
[See Onmipoint Comm. Enterprises v. Charlestown Township, F. Supp.
2000 WL 128703 (E.D.Pa 2000)].
As can be seen from the foregoing,the nature of the application is quite specific,
involves technical information, and is always supported by the applicant's experts. A
standard permit,or variance application,involves the testimony of numerous witnesses.
First, the applicant's site acquisition expert will testify as to the nature of the service that
the applicant provides; (s)he will describe the area licensed to this applicant to provide
telecommunications services;will testify that a itimber of sites were investigated,but that
this site,because of its location,topography, availability of existing tall structures or
surrounding trees,etc.,presents the most suitable site for the location of the tower,in
order to meet the"grid"requirements and provide the coverage needed to comply with
FCC regulations.
The applicant's radio frequency engineer will testify that the tower is needed both
because of the high usage of cell phones along and around the area of the site upon which
the tower is proposed,and because the FCC requires that all"gaps"in this licensed area
be"filled in"and serviced. (S)he will explain why other competitors' towers in the area,
(assuming they exist and that co-location is a possibility),do not satisfy the applicant's
needs,because they are outside its"search ring." (This is the area within which a tower
can be situated in order to"fill in the gap"necessary to provide the required coverage.)
The radio frequency engineer will also describe other sites that were considered by the
applicant,which would have met its needs within the center of the area of the search ring,
8
but which, for various reasons,were not available,thereby leaving the subject site as the
"most suitable site"for the activity. Either the radio frequency engineer,or some other
witness on behalf of the applicant,will further testify that the tower will not interfere with
televisions,radios,household appliances,or with other cell carrier facilities, and
generally that the towers are not harmful to residents,but meet the federal and, if
applicable,state requirements, for radio frequency transmissions.
Applicants will generally produce the testimony of land use planners,who will
advance the notion that the use is"inherently beneficial"and/or that it advances the
public interest;and that this is a suitable site for the particular use. They will urge that
the use will neither negatively impact the zoning plan,nor substantially interfere with the
municipality's master plan. This last piece of testimony is particularly easy for the
planner where the municipality has failed to provide for telecommunications towers
within its master plan and has failed to identify any other sites that would be permitted
for the activity.
Against this backdrop,it is difficult for neighbors to counter such expert
testimony. Neighbors generally care about the aesthetic issues. They fear the unknown
of the radio frequency issues,over which local boards have no jurisdiction. They
complain about de-valuation of their properties caused by the tower's proposed location,
although they generally offer no expert proof in that regard. In short,their testimony is
almost always borne of the NIMBY mentality.
• It is suggested that where a municipality has a legitimate belief that the specific
site is inappropriate,there are a number of ways to validly reject the application. The
first is to have meaningful discussions with the communications provider. They actually
• prefer municipal cooperation. The sooner the tower is erected,the sooner they recoup
their expenses and generate revenues. Given the huge amounts of money involved, delay
is an immensely costly proposition. It is incumbent upon the municipality,then,to
encourage,and even assist,the communications provider in finding more suitable
locations that would also meet its"search ring"requirements.
Where municipal cooperation is unavailable,the governmental entity reviewing
the application can, and should, still familiarize itself with other preferable sites in the
9.
municipality that would appear to be legitimate candidates. The identification of such
sites,and the direct questioning of the applicant as to why those sites are unavailable, is
often helpful. There is a strong likelihood that the applicant will not have identified those
sites as potential candidates, and therefore will not have undertaken a`propagation
study"to determine whether it can meet its coverage requirements using that location.
In one recent New Jersey case, for example,the applicant sought to construct a
tower for Bell Atlantic Nynex in a P-1,or public purpose zone,which permits public or
institutional uses such as hospital,recreational facilities or educational facilities,but not
commercial or industrial uses. The applicant's witnesses testified that they had
investigated 27 sites,none of which were either available or suitable to this proposed use.
The Court,in what can only be characterized as an extraordinarily negative reaction to the
application,wrote: "Although[the applicant] did testify to the unavailability or
unsuitability of 27 sites he had investigated, it did not demonstrate that there might not be
other sites--available and suitable--which could meet its need and be less intrusive in
the neighborhood in which it would be located." New York SMSA v. Bd. of Adjustment
of Bemards Twp.,324 NJ Super 149, 156(App.Div. 1999).
The Bemards case is also a good example of how a governmental entity can
oppose the application. There,the Board of Adjustment itself presented the testimony of
a planning expert,
"who said that the major negative factor arguing against the variance was
the location of the proposed tower close to the two densely populated
resident developments. He said that because of the height of the tower and
the impossibility of effective screening through natural vegetation,
regardless of the distance, [the tower]will have an impact in terms of daily
comings and goings to that neighborhood in terms of view and a change of
character of their neighborhood."
Id. at 157. In upholding the Board's denial of the variance request,the Court
justified that denial and said:
"First,the parcel was not zoned to permit commercial uses Second,the
topography precludes effective screening and makes unavoidable the
negative effect of the unsightly tower on the residences both east and west
of the site. Third,the master plan's designation of the site for future
10
residential use....is inconsistent with construction of the tower And
finally,while the applicant referred to 27 other sites it had examined, it did
not claim or demonstrate that there was no other suitable or adequate site
that could meet its needs. Its reference to 27 sites which were explored
does not negate the possible existence of others that might have served
better and been less intrusive but which were not discussed."
Id. at 160-161.
The Court's approach to the testimony regarding the 27 other sites is tantamount
to requiring the applicant to"prove a negative". Under the Court's analysis, a
telecommunications applicant would be required to identify every parcel and tax lot in the
municipality within its"search ring",perform a propagation study as to each, and then,
based upon those studies,define which sites are suitable for the transmission of the
frequencies. The applicant would then have to negotiate with various owners whose
property qualifies and hope that someone would be interested in allowing the tower to be
constructed on their site. Such a process is unnecessarily unwieldy,overly burdensome,
and too time consuming.
If it wishes to fight the application, local government should also consider the
employment of a real estate expert who can,by way of expert testimony, show the likely
negative impact of the cell tower upon residential real estate values in the neighborhood.
Such concerns are legitimate in the context of evaluating the suitability of the site for the
particular activity.
Notwithstanding the foregoing, it is strongly suggested that cooperation between
the telecommunications carrier and the municipality can result in a"win-win"situation
for all. Yogi Bera recently said"There's no stopping the future." It is equally true that
there's"no stopping the cell towers." It is therefore appropriate for local government to
recognize the needs of this important industry, and attempt to create a means by which a
peaceful co-existence can develop. -
Indeed, the New Jersey Supreme Court recently had the following comments
regarding the need for governmental entities and the telecommunications industry to find
a common ground:
"The development of a wireless system that does not adversely
affect surrounding property calls for cooperation between carriers
11
and land use regulators. We anticipate that carriers will continue to
seek sites for telecommunications facilities. Across the country,
antennas will continue to grow to accommodate an increasing
number of subscribers. [The Court cites to one estimate of an
increase of 30,000 new subscribers per day].
At the beginning of the 20th century, telephone and telegraph
carriers dotted the landscape with poles to support the wires that
were essential for telecommunications. As the century comes to an
end,society is making the transition from wired to wireless
communications. Eventually,towers and monopoles, like the
telephone poles of the past,may become an accepted part of the
scene. At some time,moreover,Congress or the State Legislature
may declare that local land use agencies have no role in deciding
the location of wireless telecommunications facilities. For the
present,we believe it is more consistent with the existing federal
and state statutes to recognize a harmonious role for local land use
agencies in the location of those facilities. That recognition should
permit telecommunications carriers to erect needed
telecommunications facilities on suitable sites." Smart SMR v.
Fairlawn Bd. of Adjustment, 152 NJ at 335-336 (1998).
It is our function as local government attorneys to recognize these realities, and to
guide our clients in effectuating a compromise that balances legitimate public planning
concerns with the needs of an industry that each of us becomes more dependent upon
each day.
12
§ 130-60.1. Telecommunications towers and antennas. [Added 6-21-1999 by Ord. No. 1999-11]
A. Subject to the conditions set forth in this section, and to plan approval, new
telecommunications towers and antennas shall be permitted as conditional uses in all nonresidential
zoning districts within the Township of Lumberton and upon the proposed new Municipal Complex
located on Municipal Drive.Telecommunications towers and antennas shall not be permitted in the
RA Rural Agricultural District; RA/STDR Sending Area District; RA/R-1 TDR Receiving Area
District;RA/R-2 TDR Receiving Area District;RA/R3 TDR Receiving Area District;RA/R4 TDR
Receiving Area District;RA/R5 TDR Receiving Area District;RA/ST TDR Transition Area District;
R-1.0 Residential Low-Density District; R-2.0 Residential Medium-Density District, with the
exception of Block 19, Lot 2.01, upon which said use shall be permitted as a conditional use; R-6
Residential Townhouse District; R-75 Residential District; and H/A Historic/Architectural Area
District. [Amended 11-15-1999 by Ord. No. 1999-21]
B. Preexisting towers and antennas.Wireless telecommunications towers that existed on the date
of the adoption of this section(nonconforming wireless telecommunications towers)are subject to
the following provisions:
(1) Nonconforming wireless telecommunications towers may continue in use for the purpose
now used,but may not be expanded without complying with this section.
(2) Nonconforming wireless telecommunications towers which are partially damaged or
destroyed due to any reason or cause may be repaired and restored to their former use, location and
physical dimensions subject to obtaining a building permit therefor, but without otherwise
complying with this section. However, should the destruction or damage be determined by the
Lumberton Land Use Board to be of such an extent that it is beyond the scope and intent of the
"partial destruction"clause ofN.J.S.A.40:55D-68,then repair or restoration will require compliance
with this section.
(3) The owner of any nonconforming wireless telecommunications tower may repair, rebuild
and/or upgrade(but not expand such telecommunications tower or increase its height or reduce the
setbacks) in order to improve the structural integrity of the facility, to allow the facility to
accommodate collocated antennas or facilities or to upgrade the facilities to current engineering,
technological or communications standards, without having to conform to the provisions of this
section.
C. General requirements for towers and antennas.
(1) Locational priority. If needed in accordance with an overall comprehensive plan for the
provision of full wireless telecommunications services within the Lumberton Township area,
wireless telecommunications towers, where permitted as a conditional use, shall be located in
accordance with the following prioritized locations:
(a) Existing towers. The first priority location shall be collocation on existing
telecommunications towers used for transmitting or receiving analog,digital,microwave, cellular,
telephone, personal wireless service or similar forms of an electronic communication, provided,
however,that locations which meet this criteria shall be subject to the design and siting components
of this Ordinance, and collocation sites shall not become "antenna farms" or otherwise be deemed
by the land use board to be visually obtrusive;
(b) Publicly used structures. The second priority location shall be on land or structures owned,
in order of specific preference: (1) the Township of Lumberton; (2) the Board of Education of the
Township of Lumberton; (3) the County of Burlington; (4) the State of New Jersey; (5) any other
state,county or local governmental agencies or bodies.These publicly used structures are preferred
locations throughout the township because they appear in many zoning districts, are disbursed
throughout the township and, due to their institutional or infrastructure uses, are generally similar
in appearance to, or readily adaptable for, telecommunications facilities. Therefore,
telecommunications facilities should be less noticeable when placed on publicly used structures than
when placed on a commercial or residential structure. Publicly used structures include, but are not
limited to,facilities such as municipal buildings,police or fire stations,schools,libraries,community
centers,civic centers,utility structures,water towers, elevated roadways,bridges, flagpoles, clock
or bell towers, lightpoles and churches.
(c) The third priority location shall be wholly industrial and commercial structures, such as
warehouses, factories, retail outlets, supermarkets, banks, garages or service stations, particularly
where existing visual obstructions or clutter on the roof or along a roofline can and will be removed
as part of the installation of the telecommunications facility.
(d) The fourth priority location shall be such locations as the applicant proves are essential to
provide required service to the Lumberton Township area.
(2) Collocation policy.
(a) Each applicant for a new telecommunications tower shall present documentary evidence
regarding the need for wireless antennas within the Township of Lumberton.This information shall
identify the wireless network layout and coverage areas to demonstrate the need for such equipment
within this township.
(b) An applicant proposing to erect a new wireless telecommunications tower shall provide
documentary evidence that a legitimate attempt has been made to locate the antennas on existing
buildings or structures or collocation sites. Such evidence shall include a radio frequency
engineering analysis of the potential suitability of existing buildings or structures or collocation sites
in the search area for such antennas. Efforts to secure such locations shall be documented through
correspondence between the wireless telecommunications provider and the property owner(s)of the
existing buildings or structures or collocation sites. The Township reserves the right to engage a
professional radio frequency engineer to review such documentation,the cost ofwhich engineer shall
be paid from escrow funds supplied by the applicant.
(c) Applicants proposing to construct new telecommunications towers shall document the
locations of all existing telecommunications towers within the Township of Lumberton and
surrounding areas with coverage in the township, as well as any changes proposed within the
following twelve-month period,including plans for new locations in the discontinuance or relocation
of existing facilities. Applicants shall provide competent testimony by a radio frequency engineer
regarding the 'suitability of potential locations in light of the design of the wireless
telecommunications network. Where a suitable location on an existing tower is found to exist,but
an applicant is unable to secure an agreement to collocate its equipment on such tower,the applicant
shall provide written evidence of correspondence with the owner of such tower verifying that
suitable space is not available on the existing tower(s). Where an applicant seeking to construct a
new tower is not a wireless service provider, the applicant shall prove that adequate wireless
telecommunications services, sufficient to meet the requirements of the Telecommunications Act
of 1996,as amended,cannot be provided without the proposed tower.
(d) Site location alternative analysis. Each application shall include a site location alternative
analysis describing the location of other sites considered, the availability of those sites,the extent
to which other sites do or do not meet the provider's service or engineering needs and the reason why
the subject site was chosen. The analysis shall address the following issues:
[1] How the proposed location of the telecommunications tower relates to the object of providing
full wireless communications services within the Township of Lumberton area;
[2] How the proposed location of the proposed wireless telecommunications tower relates to the
location of any existing antennas within and near the Lumberton Township area;
[3] How the proposed location of the proposed telecommunications tower relates to the
anticipated need for additional antennas within and near the Lumberton Township area by the
applicant and by other providers of wireless communications services within the Lumberton
Township area;
• •• [4] How the proposed location of the proposed telecommunications tower relates to the objective
of collocating the antenna of many different providers of wireless communications services on the
same wireless telecommunications tower; and
[5] How its plans specifically relates to,and is coordinated with,the needs of all other providers
of wireless communications services within the Lumberton Township area.
(3) State ofkfederal requirements. All towers must meet or exceed current standards and
regulations of the FAA,the FCC and any other agency of the State or Federal Government with the
authority to regulate towers and antennas.If such standards and regulations are changed,the owners
of the towers and antennas governed by this section shall bring such towers and antennas into
compliance with such revised standards and regulations within six months of the effective date of
such standards and regulations, unless a different compliance schedule is mandated by the
controlling state or federal agency,in which case the latter scheduling will control.Failure to bring
towers and antennas into compliance with such revised standards and regulations shall constitute
grounds for the removal of the tower or antenna at the owner's expense.
(4) Safety standards/building codes. To ensure the structural integrity of towers, the owner of
a telecommunications facility shall ensure that it is maintained in compliance with standards
contained in applicable local building codes and the applicable standards for such
telecommunications facilities, as amended from time to time, and as may be published by the
electronics industries association,or such other agency or association having expertise in the field.
Owners of towers shall conduct periodic inspections of such facilities at least once every year to
ensure structural integrity;said inspection shall be conducted by a qualified,independent engineer
licensed to practice in the State of New Jersey,and the results of such inspection shall be provided,
by way of written report, to the Township Committee of the Township of Lumberton. Failure to
undertake said inspection and/or provide the township with the aforementioned report shall
constitute grounds for the removal of the tower or antenna at the owner's expense.
(5) Tower setbacks.The following setback requirements shall apply to all telecommunications
towers and antennas,provided,however,that the Planning Board may reduce the standard setback
requirements of this section if the goals of this section would be better served thereby; and, in the
event that any of the following provisions conflict with one another, then the more strenuous and
stringent standards shall apply:
(a) Towers shall meet the set backs of the underlying zoning district with the exception of the
industrial zoning districts,where towers may encroach into the rear setback area,provided that the
rear property line abuts another industrially zoned property and the tower does not encroach upon
any easements.
(b) Towers shall be set back from the planned public rights-of-way as shown on the most
recently adopted Master Street Plan of the Township by a minimum distance equal to 1/2 of the
height of the tower, including all antennas and attachments.
•
(c) Towers shall not be located between a principal structure and a public street, with the
following exceptions:
[1] In industrial zoning districts,towers may be placed within a side yard abutting an internal
industrial street; and
[2] On sites adjacent to public streets on all sides, towers may be placed within a side yard
abutting a local street.
(d) Towers must be set back a distance equal to the height of the tower from any off site
residential structure.
(e) For antennas attached to the roof or a supporting structure on a rooftop,a 1 to 1 setback ratio
(example: ten-foot-high antenna and supporting structure requires ten-foot setback from edge of
roof)shall be maintained unless an alternative placement is shown to reduce visual impact.
(f) A tower's setback may be reduced,or its location in relation to the public street varied,at the
discretion of the Board,to allow the integration of a tower not an existing or proposed structure,such
as a church steeple,light standard,tower line support device or similar structure. '
(6) Lot size. For purposes of determining whether the installation of a tower or antennas
complies with district development regulations,including but not limited to setback requirements,
lot coverage requirements and such other requirements,the dimensions of the entire lot shall control,
even though the antennas or towers may be located only on a portion of such lots.
(7) Abandonment and removal.
(a) Abandonment. Any telecommunications tower and equipment which is not operated for
wireless communications purposes for a continuous period of six months shall be considered
abandoned,whether or not the owner or operator intends to make use of it or any part of it,and shall
be removed by the facility owner at its costs. The owner of a telecommunications tower and the
owner of the property where the facility is located shall be under a duty to remove the abandoned
telecommunications tower.If such antenna and/or tower is not removed within 60 days of receipt
of notice from the township notifying the owner of such abandonment,the township may remove
such tower and/or antenna as set forth below.
[1] If the owner of an abandoned tower or antenna wishes to use such abandoned tower or
antenna, the owner must first apply for and receive all applicable permits and meet all of the
conditions of this section as if such tower or antenna were a new tower or antenna.
(b) Removal.When an owner of a telecommunications tower and antenna,who has been notified
to remove the same,fails to do so within 60 days of receipt of notice from the Township notifying
the owner and/or operator of such abandonment and the need to remove the same,then the township
may remove such tower and/or antenna and place a lien upon the property for the cost of removal.
If removed by the owner, a demolition permit shall be obtained and the facility shall be removed.
Upon removal, the site shall be cleaned, restored and revegetated to blend with the existing
surrounding vegetation at the time of abandonment.The facility owner shall post a bond at the time
that a construction permit is issued for demolition, to cover the cost of tower removal and site
restoration.The amount of the bond shall have taken into consideration any cost escalations that may
be reasonably anticipated.
[1] Any delays by the township in taking action under this clause shall not in any way waive the
township's right to take action.
(8) Principal, accessory and joint uses.
(a) Accessory structures used in direct support of a telecommunications tower shall be allowed
but not be used for offices,vehicle storage or other outdoor storage.Mobile or immobile equipment
not used in direct support of a telecommunications facility shall not be stored or parked on the site
of the telecommunications facility.
(b) Telecommunications towers may be located on sites containing another principal use in the
same billable area.
(9) Monopole construction. Monopole tower construction shall be utilized in all cases except
where it can be conclusively demonstrated that a monopole construction is not suitable for a specific
location or application or that a different type pole is necessary for the collocation of additional
antennas on the tower.
D. Additional submission requirements.
(1) A report from a qualified expert containing the following:
(a) A description of the tower and the technical and other reasons for the tower design and
height, including cross sections and elevations.
(b) Documentation to establish that the tower has sufficient structural integrity for the proposed
use at the proposed location and meets the minimum safety requirements and margins according to
FCC requirements in their current adopted standards and revisions.
(c) Indicates the height above grade for all potential mounting positions for collocated antennas
and the minimum separation distance between antennas.
(d) Description of the tower's capacity, including the number and type of antennas that it can
accommodate.
(e) Statement detailing current FCC information concerning wireless telecommunications towers
and radio frequency admission standards as well as information concerning the projected power
density of the proposed facility and how it meets the FCC standards.
(2) A letter of commitment by the applicant to lease excess space on the tower to other potential
users at prevailing rates and standard terms.The letter of commitment shall be recorded prior to the
issuance of any building permits. The letter shall commit the tower owner and his successors in
interest to this obligation.
(3) Cessation of use. A copy of the relevant portions of a signed lease which requires the
applicant to remove the tower and associated facilities upon cessation of operations of the site shall
be submitted at the time of the application.
(4) Visual impact study. A visual impact study, graphically stimulating through models,
computer enhanced graphics or similar techniques, the appearance of any proposed tower and
indicating its view from at least five locations around and within one mile of the proposed wireless
telecommunications tower where the wireless telecommunications tower will be most visible.Aerial
photographs of the impact area shall also be submitted.
E. Design requirements.Telecommunications towers shall be of a monopole design unless the
Board determines that an alternative design would better blend into the surrounding environment.
(1) Aesthetics. At a tower site, the design of the buildings and related structures shall, to the
extent possible,use materials,colors,textures,screening and landscaping that will blend the tower
and related facilities to the natural setting and built environment.The towers themselves shall be of
a color appropriate to the tower's locational context so as to make it as unobtrusive as possible,
unless otherwise required by the FAA.
(2) Accessory utility buildings.All utility buildings and structures accessory to a tower shall be
architecturally designed to blend in with the surrounding environment and shall meet the minimum
setback requirements of the underlying zoning district.Ground-mounted equipment shall be screened
from view by suitable vegetation,except where a design of nonvegetative screening buffer reflects
and complements the architectural character of the surrounding neighborhood. A landscape plan
shall be submitted for review of proposed screening.
(a) Landscaping shall be provided along the perimeter of a security fence to provide a visual
screen or buffer for adjoining private properties and the public right-of-way. Required front yard
setbacks shall be landscaped. Existing on-site vegetation shall be preserved or improved, and
disturbance of existing topography shall be minimized,unless such disturbance would result in less
visual impact of the site to the surrounding area.
(3) Lighting.No lighting is permitted except as follows:
(a) Equipment buildings and compounds may have security and safety lighting at the entrance,
provided that the light is attached to the facility, is focused downward and is on timing devices
and/or sensors so that the light is turned off when not needed for safety or security purposes; and
(b) No lighting is permitted on a wireless telecommunications tower except lighting that
specifically is required by the FAA,and any such required lighting shall be focused and shielded to
the greatest extent possible so as not to project towards adjacent and nearby properties.
(4) Height.The antenna and any supporting structure shall not exceed 200 feet in height but,if
a lesser height, shall be designed so that its height can be increased to 200 feet if necessary to
accommodate other local communications facilities in the future.
(5) Signs and advertising. No advertising is permitted on a telecommunications tower or
accompanying facilities.Only signs for warning or equipment information shall be permitted on any
portion of a tower or equipment building.
(6) Fencing and other security devices. Telecommunications towers and equipment buildings
in compounds shall be surrounded by a security feature, including an appropriate anti-climbing
device or other similar protective device to prevent unauthorized access to the telecommunications
facilities, and shall be further surrounded with a security fence. Additional safety devices shall be
permitted or required as needed, and as approved,by the Board as may be necessary.
(7) Noise.No equipment shall be operated so as to produce noise in excess of limits set by the
township's noise ordinance,EN except in emergency situations requiring the use of a backup
generator.
(8) Radio frequency emissions. The FTA gives the FCC sole jurisdiction over the field of •
regulation of radio frequency(RF)emission and telecommunications towers which meet the FCC
standards shall not be conditioned or denied on the basis of RF impacts.Applicants shall provide
current FCC information concerning wireless telecommunications towers and radio frequency
emissions standards. Applicants for telecommunications towers shall be required to provide
information on the projected power density of the proposed facility and how this meets the FCC
standards.
F. Violations and penalties.
(1) Any person who attempts to erect or erects a telecommunications tower or antennas covered
by this section without having first obtained the necessary approvals,variances or building permits,
in the manner provided in this section,shall be deemed in violation of this section.Any responsible
party or other persons convicted by a court of competent jurisdiction or violating any provision of
this section shall be punished by a fine not to exceed$1,000 or by imprisonment not to exceed 90
days or by a sentence of community service not to exceed 90 days.
(2) If any structure is erected, constructed, reconstructed, altered, repaired, converted or
maintained in violation of this section,or without obtaining the required approvals or permits,or if
any building,structure or land is used in violation of this section,the Township Solicitor,in addition
to any other remedies, may institute proceedings to prevent such unlawful erection, construction,
reconstruction,alteration,conversion,maintenance or use or to correct or abate such violations.Each
and every day that such unlawful erection, construction, reconstruction, alteration, conversion,
maintenance or use continues shall be deemed a separate offense.In the event that the Township is
successful in securing the judicial relief requested, then the owner and operator of the
telecommunications tower shall be jointly and severally liable for the reasonable costs and attorneys
fees incurred by the township in the course of said action.
r
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BLUE DOLPHIN, INC. §
Plaintiff, §
V. § CIVIL ACTION NO. H-04-1921
CITY OF COLLEGE STATION, TEXAS §
Defendant §
DEFENDANT'S ANSWER TO
PLAINTIFF'S ORIGINAL COMPLAINT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, City of College Station, Texas (hereinafter referred to as "CITY"), files this
its Answer to Plaintiff's Original Complaint for Declaratory and Injunctive Relief in the above-
styled and numbered cause,and would show the Court the following:
PLAINTIFF'S PARAGRAPH V—FACTS
Sub-Paragraph 5.1 —Second Sentence
1. CITY admits that Plaintiff is subject to the Unified Development Ordinance
("U.D.O.").
Sub-Paragraph 5.2
2. CITY admits that it passed Ordinance No. 2617 on March 13, 2003, that the City
adopted the U.D.O., and that the U.D.O. became effective on June 13, 2003. (Adopting
Ordinance Exhibit#1, attached)
Sub-Paragraph 5.3—Third Sentence
3. CITY reasonably believed there were locations where a sexually oriented business
could permissibly locate under the U.D.O. at the time the U.D.O. became effective. On June 15,
Defendant's Answer
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2003, an article appeared in The Eagle noting that 4.5% of the City is available for sexually
oriented businesses. (Exhibit#2, attached)
Sub-Paragraph 5.4
4. CITY denies that it failed to consider the secondary effects of sexually oriented
businesses. On June 12, 2003, the City Council considered and approved Ordinance No. 2636
(Exhibit #3, attached) that addressed the adverse secondary effects of adult uses and referred
specifically to the City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986). This same
ordinance passage was reported in the June 15, 2003, newspaper article(Exhibit#2). It is worth
emphasizing that the CITY passed its ordinance on secondary effects before the U.D.O. became
effective. In Renton, the secondary effects findings were made after the City was sued, yet the
Supreme Court held that actions were timely and sufficient(footnote#5). (Exhibit#4, attached)
PLAINTIFF'S PARAGRAPH VI
Sub-Paragraph 6.4—Last Sentence
5. CITY denies that the City Council failed to consider the secondary effects. The
Plaintiff should have been aware of the City Council's action on June 12, 2003, to approve
Ordinance No. 2636 addressing adverse secondary effects. Further, the Plaintiff was contacted
as noted in the article of June 20,2003. (Exhibit#5, attached) Also the CITY sent notice to the
club by certified mail for which Plaintiff failed to accept.
PLAINTIFF'S PARAGRAPH VII
6. CITY denies that a certificate of occupancy is a licensing scheme as discussed by
the case cited by Plaintiff.
Defendant's Answer Page 2
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PLAINTIFF'S PARAGRAPH VIII
Sub-Paragraphs 8.1, 8.2
7. CITY denies that its provisions fail to serve a substantial governmental interest.
The CITY has a legitimate interest in protecting its entry ways and locations across from Texas
A&M University, and the other areas that are protected.
Sub-Paragraph 8.3
8. CITY, at the time of approving the U.D.O., reasonably believed that the
provisions were narrowly drawn. The CITY additionally points out that 6.3 (8)(d) of the U.D.O.
provides that a sexually oriented business may apply for an exemption for their location if that
location does not have a negative effect on their neighborhood. Also the Plaintiff could have
applied for additional time to recoup their investment under § 6.3 (8)(a) of the U.D.O. The
Plaintiff failed to utilize either provision.
Sub-Paragraph 8.4
9. CITY denies Plaintiff's allegations in their entirety.
PLAINTIFF'S PARAGRAPH IX
Sub-Paragraphs 9.1,9.2
10. CITY reasonably believed that it had provided sufficient alternative sites and that
4.5% of the City's total area was available for sites for sexually oriented businesses. (CITY's
Exhibits#2, #3, #5)
AFFIRMATIVE DEFENSE
The Plaintiff has not exhausted its appeal as provided for under the to be amended
U.D.O. CITY will amend its U.D.O. to provide for usable alternative sites for sexually oriented
businesses. The Plaintiff will be subject to the U.D.O.'s locational requirements one (1) year
from the date of the U.D.O. amendment approval. The result of the amendment of the U.D.O. is
Defendant's Answer Page 3
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to give Plaintiff an additional year, at least, to remain at its current site and additional time and
opportunity to ask for an exemption or additional amortization time. Plaintiff may apply for an
exemption for its location, if that location does not have a negative impact on its neighbors.
Also, Plaintiff can apply for additional time to recoup its investment, if it has not been recovered.
COUNTERCLAIM
1. CITY requests the Court to declare in all things the CITY's to be amended
U.D.O. is constitutional both on its face and as applied to Plaintiff.
CITY has found that an error was made and that the U.D.O. will be amended to provide
usable alternative sites for sexually oriented businesses. Pursuant to the amendment, Plaintiff
will be subject to U.D.O. locational requirements one(1) year from the date of amendment of the
U.D.O..
PRAYER
WHEREFORE, Defendant CITY prays that the Court deny Plaintiff's request for
permanent injunction, and that the City's amended U.D.O. be found to be constitutional on its
face and as applied to Plaintiff; and for such other relief, both general and special, to which
CITY may be entitled.
RESPECTFULLY SUBMITTED,
CITY OF COLLEGE STATION
BY: ��... _.
HARVEY C • .'d ILL, '4
City Attorne v
SBOT#03793000
SDID #21128
P.O. Box 9960
College Station, TX 77842
Phone: (979) 764-3507
Fax: (979) 764-3481
ATTORNEY-IN-CHARGE FOR DEFENDANT,
CITY OF COLLEGE STATION
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O:ILlligailon Binders-Files&Blue DolphintPleadingslDefendanl's Answer-FINAL 7-27-04.doc
7/27/04
ATTORNEYS:
City of College Station Legal Department
Harvey Cargill,Jr.,City Attorney
State Bar No. 03793000
SDID No. 21128
Roxanne Nemcik,First Assistant City Attorney
State Bar No. 14912850
SDID No. 12778
Carla Robinson, Senior Assistant City Attorney
State Bar No. 00794543
P.O. Box 9960
College Station,TX 77842
Telephone: (979) 764-3507
Facsimile: (979)764-3481
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Defendant City of
College Station's Answer to Plaintiff's Original Complaint has been served on the below-named
attorneys of record, in accordance with the Rules of Civil Procedure, by certified mail, return
receipt requested, by depositing the same, postage prepaid, in an official depository under the
care and custody of the United States Postal Service,on the 28th day of July, 2004:
John Fahle
Carter&Fahle
628 S. Presa
San Antonio,TX 78210
Edward Mallett
712 Main Street, Suite 1600
Houston,TX 77002
12tjez-VEY GILL,
Defendant's Answer Page 5
O:%L/u(gadon Binders-FllestBlue Dolphln1PkadingstDefendant's Answer_FINAL 7-27-04.dx
7/27104
1. The City of College Station adopted provisions covering Sexually
Oriented Businesses (SOB) when the Unified Development Ordinance
was adopted on February 20, 2003, effective June 13, 2003.
2. The City of College Station has been sued. The suit alleges that suitable
alternative sites have not been made available for SOB by the ordinance.
3. The United States Supreme Court has held that Cities cannot totally
ban Sexually Oriented Businesses.
Cities can regulate the location of Sexually Oriented Businesses. In the
leading case, Renton, the Supreme Court upheld regulations limiting the
SOB'S to 5% of the City's geographic area. The United States Supreme
Court held that Renton had provided sufficient sites for SOB; therefore,
the ordinance was constitutional.
4. After Dallas, Houston and Abilene adopted SOB ordinances, their
ordinances also were challenged.
Article 6. Zoning Districts
Section 6.3. Specific Use Standards
•
Q. Wireless Telecommunication Facility (WTF)
1. Purpose
The purpose of this section is to establish regulations pertaining to
wireless telecommunications facilities that are consistent with federal and
state law. The City Council of the City of College Station finds that:
a. It is in the public interest to promote competition in high quality
telecommunications services and the availability of broadband
transmission services to all residences and business;
b. It is in the public interest for the City to protect the public safety and
welfare, safeguard community land values, promote orderly planning
and development and preserve historic sites, structures and areas.
Wireless telecommunications facilities should not be allowed to detract
aesthetically from the visual quality of surrounding properties or the
City; and
c. The proliferation of wireless telecommunications facilities negatively
impacts the appearance, character, and property values of the
community. Therefore the City should endeavor to minimize the size,
number and obtrusiveness of antennas and towers. Collocation and
stealth technologies are strongly encouraged to mitigate negative
visual impacts and reduce the total number of towers within the City.
2. WTF Categories
In order to expedite the siting and review process, WTFs have been
divided into use categories. The review process is more thorough as the
intensity of the use increases.
a. Unregulated Facilities
The WTFs listed below are not regulated by this ordinance and do not
require review or approval. This does not exempt these facilities from
other applicable city codes, ordinances, and permits.
(1) Over the air reception devices exempted from local ordinances by
the Federal Communications Commission (FCC).
(2) Parabolic antenna less than 2 meters in diameter.
(3) Omni-directional antenna (whip antenna) 6 inches or less in
diameter and not extending more than 12 feet above support
structure.
(4) Directional antenna 1 meter or less measured across the longest
dimension and not extending over 12 feet above support
structure.
(5) Public safety tower or antenna.
b. Intermediate Facilities
(1) New transmission tower less than 35 feet (10.5 meters) in
height.
(2) Parabolic antenna over 2 meters in diameter.
(3) Omni-directional antenna (whip antenna greater than 6 inches in
diameter and/or extending 12 feet above the support structure.
(4) Directional antenna more than 1 meter measured across the
longest dimension and extending over 12 feet above support
structure.
6-12
Unified Development Ordinance 6/13/03 City of College Station, Texas
Article 6. Zoning Districts
Section 6.3. Specific Use Standards
(5) Attached WTFs.
• c. Major Facilities
New transmission tower greater than 35 feet (10.5 meters) in height.
3. Permittable Locations
a. All Intermediate WTFs are permitted by right in the following zoning
districts:
A-O M-1 C-1 M-2 C-B
A-P R&D C-2 PDD (except PDD-H)
WPC NG C-3 City-owned premises
b. Major WTFs are allowed in the following zoning districts with a
Conditional Use Permit
M-2 M-1 C-1 C-3
A-P R&D C-2 City-owned premises
c. WTFs may locate on city-owned premises without a conditional use
permit with approval of the City Council and subject to the
requirements of this ordinance.
4. Requirements For New Transmission Towers
a. Setbacks: The standard setbacks for each zoning district will apply to
WTFs with additional setbacks or separation being required in the
sections below. To protect citizens in their homes, transmission
towers shall be placed a distance equal to the height of the tower away
from any residential structure or R-1, R-1B, or R-2 zone boundary.
b. Proximity To Major Thoroughfares: To preserve and protect the
appearance of the City's major thoroughfares and entrances to the
City, additional setbacks are placed on WTFs proposed to be placed
near these areas. The setback for these areas is determined by
measuring from the centerline of the right-of-way of the thoroughfare.
)t1 �i Applicable thoroughfares include freeways and expressways, major
arterials and minor arterials, as shown on the Thoroughfare Plan.
U, '111 (1) Intermediate WTFs must be 150 feet from applicable
1 thoroughfares.
A D c��\�' (2) Major WTFs must setback from applicable thoroughfares by the
height of the tower x 3.
'5 0 f c. Separation Between Towers
--\WIn order to prevent tower proliferation and protect the City's natural
beauty and skyline, the number of transmission towers per square
mile has been limited. New transmission towers must be placed a
minimum distance from existing towers as described here:
(1) New transmission towers 35 feet or less in height shall be
separated from existing towers by a minimum distance of 1500
feet.
(2) New transmission towers more than 35 feet and less than 75 feet
in height shall be separated from existing towers by a minimum
distance of 2500 feet.
(3) New transmission towers 75 feet or more in height shall be
separated from existing towers by a minimum distance of 3500
feet.
6-13
Unified Development Ordinance 6/13/03 City of College Station,Texas
Article 6. Zoning Districts
Section 6.3. Specific Use Standards
d. Height Limitations
(1) Intermediate WTFs are subject to the normal height restrictions
for each zoning district where permitted by right. In any zoning
district where a tower is a conditional use, the requested height
may be reduced through the review of the visual impact analysis.
(2) In no case shall a proposed transmission tower exceed 150 feet
within the city lifiits, except where a height variance is granted
by the Zoning Board of Adjustments to allow a tower or antenna
that demonstrates a hardship that can only be remedied by
locating a tower or antenna exceeding such height on a proposed
site within the city limits.
e. Stealth Towers
Any tower determined to meet the Stealth Tower definition of this
ordinance by the approving authority may be located in any zoning
district with a Conditional Use Permit. Approved Stealth Towers do not
have to meet the tower separation or thoroughfare setback
requirements of this section. —�
5. Landscaping, Screening, And Aesthetic Standards
The following requirements shall govern any transmission tower or any
parabolic antenna larger than 2 meters.
a. Landscaping: Refer to Section 7.5, Landscaping and Tree Protection.
Plant materials and/or fencing that effectively screens the WTF site
from view of the public right-of-way will be required.
b. New transmission towers shall maintain a flat (not shiny, reflective, or
glossy) finish or be painted in accordance with any applicable
standards of the FAA (unfinished galvanized steel is not acceptable).
c. If an antenna is installed on a support structure other than a tower,
the antenna and supporting electrical and mechanical equipment must
be of a neutral color that is identical to, or closely compatible with, the
color of the supporting structure so as to make the antenna and
related equipment as visually unobtrusive as possible.
d. WTFs shall not be artificially lighted with the exception of motion
detectors as security lighting, unless required by the FAA or other
applicable authority. If lighting is required, the City may review the
available lighting alternatives and approve the design that would cause
the least disturbance to the surrounding properties.
e. Towers may not be used to exhibit any signage or other advertising.
6. Attached WTFs
WTFs may attach to the exterior of any non-residential and non-historic
building within any zoning district provided the antenna and antenna
support structure or equipment are mounted flush with the vertical
exterior of the building or projects no more than 24 inches from the
surface of the building to which it is attached and does not raise the
height of the building more than 10 feet and does not violate the
maximum height restriction of that zoning district. The attached WTF
must be colored so as to blend with the surrounding surface of the
building.
6-14
Unified Development Ordinance 6/13/03 City of College Station, Texas
Article 6. Zoning Districts
Section 6.3. Specific Use Standards
•
7. Stealth Antennas
A•
ny antenna meeting the stealth antenna definition of this ordinance and
locating on an alternative mounting structure may attach to the exterior of
any non-residential building within any zoning district with approval of the
zoning official.
8. Application Procedures
a. Site Plan Requirements
An application for administrative approval or a Conditional Use Permit
for a WTF shall include the following items (in addition to the site plan
and other information required for a standard CUP application):
b. An inventory of the applicant's existing and future towers that are
either within the City, the City's ET), or within at least 1 mile of the
City's boundary where the ET) does not extend that far. The inventory
shall include specific information about the location, design, and height
of each tower. The owner must have on file with the development
department a master list of all existing tower structures owned or
controlled by the owner. Such list must specify the name, address and
telephone number of the owner of record, the tower locations by
address and legal description, tower height, the number of antenna
arrays on the tower, and the names, addresses, and telephone
numbers of all other users of the tower structures. The zoning
administrator may share such information with other applicants or
organizations seeking to locate antennas within the City.
c. Site plan drawn to scale clearly indicating the location, height, and
design of the proposed tower, equipment cabinets, transmission
buildings and other accessory uses, access, parking, fences, and
landscaped areas.
d. The linear separation distance from other transmission towers within a
one-mile radius of the proposed tower site. The linear separation
distance from all residentially-zoned properties, residential structures
and applicable thoroughfares as outlined in Section 6.3.Q.4.b,
Proximity to Major Thoroughfares, within 500 feet of the proposed
tower.
e. A visual impact analysis, presented as color photo simulations,
showing the proposed site of the WTF. At least four views shall be
submitted looking toward the site (typically north, south, east and
west) including views from the closest residential property and from
adjacent roadways. The photo-realistic representation shall depict a
"skyline" view showing the entire height of the proposed tower or WTF
to scale, and the structures, trees, and any other objects contributing
to the skyline profile.
f. Plans for the antenna and the antenna tower shall be prepared and
signed by a licensed professional engineer and designed to withstand
sustained winds of at least 80 miles per hour.
g. All telecommunication facilities must meet or exceed the current
standards and regulations of the FAA, the FCC, and any other agency
of the Federal Government with the authority to regulate
telecommunication facilities. An applicant for a permit shall submit an
affidavit confirming compliance with applicable regulations.
6-15
Unified Development Ordinance 6/13/03 City of College Station,Texas
Article 6. Zoning Districts
Section 6.3. Specific Use Standards
h. Grid plan (propagation map) of the service area for existing and future
structures for a period of not less than 5 years. The submission should
include a map showing the "search ring" that was required for siting
the proposed facility.
9. Collocation Requirements
No new tower shall be built, constructed, or erected in the City unless the
tower is capable of supporting additional wireless telecommunication
facilities. The applicant must submit a letter addressed to the City
declaring an intent and willingness to construct a proposed tower that
would allow additional service providers to locate on the new tower.
10. Documentation of Need and Alternatives
No new communications tower shall be permitted unless the applicant
demonstrates to the reasonable satisfaction of the approving authority
that no existing tower, building, structure, or alternative technology can
accommodate the applicant's proposed antenna. The applicant shall
submit information related to the availability of suitable existing towers,
other structures or alternative technology that can accommodate the
applicant's proposed antenna. The zoning official or approving authority
may request information necessary to demonstrate that reasonable
alternatives do not exist. The applicant must submit:
a. The names, addresses, and telephone numbers of all owners of other
towers or usable antenna support structures within a one-half mile
radius of the proposed new tower site, including City-owned property.
b. A sworn affidavit attesting to the fact that the applicant made diligent,
but unsuccessful, efforts to obtain permission to install or collocate the
new facility on existing towers or antenna support structures located
within one-half mile radius of the proposed tower site. The affidavit
shall spell out the efforts taken by the applicant.
c. A description of the design plan proposed by the applicant to the City.
The applicant must demonstrate the need for towers and why
technological design alternatives, such as the use of microcell, cannot
be utilized to accomplish the provision of the applicant's
telecommunications services.
11. Conditional Use Permits
Major WTFs must apply for a conditional use permit (CUP) as outlined in
Section 6.3.Q.3, Permittable Locations, under the procedures set forth in
Section 3.13, Conditional Use Permit. In addition to the standard
guidelines, the following additional factors shall be considered by the
Planning & Zoning Commission when determining whether to grant a CUP
for WTFs:
a. Height of the proposed tower, surrounding topography and
surrounding tree coverage and foliage as they relate to:
(1) Skyline impact, examining whether the proportions of the
structure appears to dominate or blend in with the surrounding
environment.
(2) Shadow impact, whether or not the proposed tower will cast
shadows that would prevent the reasonable use or enjoyment of
surrounding properties.
6-16
Unified Development Ordinance 6/13/03 City of College Station, Texas
Article 6. Zoning Districts
Section 6.4. Accessory Uses
b. Design of the tower, with particular reference to design characteristics
that have the effect of reducing or eliminating visual obtrusiveness.
c. Proximity of the tower to residential structures and residential district
boundaries.
d. Economic impact on adjacent and nearby properties.
e. Proposed ingress and egress.
f. Availability of suitable alternatives and/or existing support structures.
g. All the information submitted as part of the site plan.
12. Abandonment
Any WTF that is not operated for a continuous period of 12 months shall
be considered abandoned, and the owner of such facility shall remove
same within 60 days of receipt of notice from the City notifying owner of
such abandonment. If such facility is not removed within said 60 days,
the City may remove such facility at the property owner's expense. If
there are two or more users of a single WTF, then this provision shall not
become effective until all users cease operations on the tower.
R. Places of Worship
1. Where the parking lot abuts residential development, a 10-foot buffer-
yard with a minimum 6-foot privacy fence is required pursuant to Section
7.6, Buffer Requirements.
2. When outdoor accessory uses including, but not limited to, playgrounds,
recreational areas, and special event areas abut residential uses, a
minimum 15-foot buffer yard and a 6-foot privacy fence is required
pursuant to Section 7.6, Buffer Requirements.
3. A low profile sign as defined in Section 7.4.F, Sign Standards, is
permitted.
6.4 Accessory Uses
A. Accessory Uses
Accessory uses are allowed with permitted, established primary structures and
uses subject to the following:
1. The use or structure is subordinate to and serves a primary use or
principal structure;
2. The accessory use shall be subordinate in area, extent, and purpose to the
primary use served;
3. The accessory use shall contribute to the comfort, convenience, or
necessity of occupants of the primary use served;
4. The accessory use shall be located within the same zoning district as the
primary use is permitted; and
5. Accessory uses located in residential districts shall not be used for
commercial purposes other than permitted home occupations.
B. Accessory Structures
1. No accessory structure shall be erected in any required setback area.
Excluded from this requirement is any portable storage building or
structure if the Building Official has determined that it does not require a
Building Permit.
6-17
Unified Development Ordinance 6/13/03 City of College Station,Texas
Article 11. Definitions
Section 11.2 Terms
breast with less than a fully opaque covering of any portion thereof below the top of
the areola, or the depiction of covered male genitals in a discernibly turgid state.
Specified Sexual Activities: Actual or simulated acts of masturbation, sexual intercourse,
oral or anal copulation or sadomasochism; fondling or other erotic touching of or
physical contact with one's own or another's genitals, pubic area, buttocks, or female
breasts, whether clothed or unclothed; human male or female genitals when in a
state of sexual stimulation or arousal; or excretory functions or acts with animals as
part of or in conjunction with any of the activities set forth herein. Activities which
are commonly referred to by the slang terms "lap dance," "straddle dance,;'"face
dance," or"table dance" shall be included in this definition. For purposes of this
definition, "sadomasochism" means infliction of pain, flagellation, or torture, or the
condition of being bound, fettered, or otherwise physically restrained.
Start of Construction: Includes substantial improvement, and means the date the building
permit was issued, provided the actual start of construction, repair, reconstruction,
placement, or other improvement was within 180 days of the permit date. The
actual start means the first placement of permanent construction of a structure on a
site, such as the pouring of a slab or footings, the installation of piles, the
construction of columns, or any work beyond the stage of excavation, or the
placement of a HUD-code manufactured home on a foundation. Permanent
construction does not include land preparation, such as clearing, grading, and filling;
nor does it include the installation of streets and/or walkways; nor does it include
excavation for basement, footings, piers, or foundations or the erection of temporary
forms; nor does it include the installation on the property of accessory buildings,
such as garages or sheds not occupied as a dwelling unit and not part of the main
structure.
State: The State of Texas.
Stealth Antenna: A telecommunication antenna located on an alternative mounting
structure that is effectively camouflaged or concealed from view. Examples include
architecturally screened roof-mounted antennas, building-mounted antennas painted
and/or textured to match the existing structure, and antennas integrated into
architectural elements.
Stealth Technology or Facility: Design technology that blends the wireless
telecommunications facility into the surrounding environment; examples of stealth
facilities include, but are not limited to, architecturally-screened roof-mounted
antennas, building-mounted antennas painted and/or textured to match the existing
structure, antennas integrated into architectural elements such as church spires or
window wall, and antenna structures designed to resemble light poles or flag poles.
Stealth Tower: A man-made tree, clock tower, church steeple, bell tower, utility pole, light
standard, identification pylon, flagpole, or similar structure, that is camouflaged to
be unrecognizable as a telecommunications facility and is designed to support or
conceal the presence of telecommunication antennas.
Storage Garage: A "storage garage" is any premises and structure used exclusively for the
storage of more than five automobiles.
Storage, Outdoor: See "Outdoor Storage."
Storage, Self Service: A structure containing separate, individual, and private storage
spaces of varying sizes.
Stormwater Management: All ordinances, standards, plans, and studies to insure the
timely and effective construction of:
(1) a system of vegetative and structural measures that control the increased
volume and rate of surface runoff caused by man-made changes to the land;
and
11-20 City of College Station,Texas
Unified Development Ordinance (Draft) 04/09/03
Article 3. Development Review Procedures
Section 3.13. Conditional Use Permit
•
3.13 Conditional Use Permit
A. Purpose
Conditional use permit review allows for Ci ty Council Prencen
Con eConference
discretionary approval of uses with unique or widely-
varying operating characteristics or unusual site
development features, subject to the terms and Not
conditions set forth in this UDO. Application
Submittal
B. Applicability
Conditional uses are generally compatible with those staff
uses permitted by right in a zoning district, but require Review
individual review of their location, design, Completeness
Review
configuration, density and intensity, and may require
the imposition of additional conditions in order to
ensure the appropriateness and compatibility of the
use at a particular location. Pla &
ComnningmissionZoning
C. Applications
A complete application for a conditional use permit
shall be submitted to the Administrator as set forth in
Section 3.1.C, Application Forms and Fees. A complete
site plan must accompany all applications for a city
Council
conditional use permit.
D. Approval Process
1. Preapplication Conference
Prior to the submission of an application for a conditional use permit, all
potential applicants shall request a preapplication conference with the
Administrator. The purpose of the conference is to respond to any
questions that the applicant may have regarding any application
procedures, standards, or regulations required by this UDO.
2. Review and Report by Administrator
Once the application is complete, the Administrator shall review the
proposed development subject to the criteria enumerated in Section E
below, and give a report to the Planning and Zoning Commission on the
date of the scheduled Public Hearing.
3. Planning and Zoning Commission Recommendation
a. Notice
The Planning and Zoning Commission shall publish, post, and mail
notice in accordance with Section 3.1.F, Required Public Notice.
b. Public Hearing
After review of the conditional use application, subject to the criteria
enumerated in Section E below, the Planning and Zoning Commission
shall hold a Public Hearing and recommend to the City Council such
action as the Planning and Zoning Commission deems proper.
4. City Council Action
a. Notice
The City Council shall publish, post, and mail notice in accordance with
Section 3.1.F, Required Public Notice.
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Unified Development Ordinance 6/13/03 City of College Station, Texas
Article 3. Development Review Procedures
Section 3.13. Conditional Use Permit
b. Public Hearing
The City Council shall hold a Public Hearing after review of the
conditional use application, subject to the criteria enumerated in
Section E below. With consideration of the recommendation provided
by the Planning and Zoning Commission, the City Council shall
approve, approve with modifications or conditions, or disapprove the
conditional use application.
E. Conditional Use Review Criteria
The City Council may approve an application for a conditional use where it
reasonably determines that there will be no significant negative impact upon
residents of surrounding property or upon the general public. The City Council
shall consider the following criteria in its review:
1. Purpose and Intent of UDO
The proposed use shall meet the purpose and intent of this UDO and the
use shall meet all the minimum standards established in this UDO for this
type of use.
2. Consistency with Comprehensive Plan
The proposed use shall be consistent with the development policies and
goals and objectives as embodied in the Comprehensive Plan for
development of the City.
3. Compatibility with Surrounding Area
The proposed use shall not be detrimental to the health, welfare, or safety
of the surrounding neighborhood or its occupants, nor be substantially or
permanently injurious to neighboring property.
4. Harmonious with Character of Surrounding Area
The proposed site plan and circulation plan shall be harmonious with the
character of the surrounding area.
5. Infrastructure Impacts Minimized
The proposed use shall not negatively impact existing uses in the area or
in the City through impacts on public infrastructure such as roads, parking
facilities, electrical, or water and sewer systems, or on public services
such as police and fire protection, solid waste collection, or the ability of
existing infrastructure and services to adequately provide services.
6. Effect on Environment
The proposed use shall not negatively impact existing uses in the area or
in the City.
F. Additional Conditions
The City Council may impose additional reasonable restrictions or conditions to
carry out the spirit and intent of this UDO and to mitigate adverse effects of the
proposed use. These requirements may include, but are not limited to,
increased open space, loading and parking requirements, additional
landscaping, and additional improvements such as curbing, utilities, drainage
facilities, sidewalks, and screening.
3-33
Unified Development Ordinance 6/13/03 City of College Station,Texas
Article 3. Development Review Procedures
Section 3.13. Conditional Use Permit
•
G. Expiration of Approval
i. Conditional Uses are granted for a period of 12 months from the date of
approval by the City Council. If construction of the project has not
commenced within this period, the Conditional Use shall expire.
2. The Administrator may extend the Conditional Use Permit for up to one
additional six-month period upon demonstration of substantial progress
and the lack of changed or changing conditions in the area and upon
written request from the applicant, which must be received before the
date of expiration.
3-34
Unified Development Ordinance 6/13/03 City of College Station, Texas
EXHIBIT C
PART 5: The regulations contained within the"Unified Development Ordinance"
pertaining to "Sexually-Oriented Businesses" are based on evidence concerning
the adverse secondary effects of adult uses on the communities presented in
findings incorporated in City of Renton v. Playtime Theaters, Inc., 475 U.S. 41
(1986) and in studies set out below:
- Detroit, Michigan
- Amarillo,Texas
- Los Angeles, California
- Indianapolis, Indiana
- Phoenix, Arizona
- St. Paul, Minnesota
- Beaumont,Texas
- Seattle, Washington
- Austin, Texas
* ;r LS•'+.a °. � •�s / r •its. ;11V W' t r.w `6`x.g71°�t
1\1; ,k41, 'te
-.r., t "`x,4. �; • ,
To: City Council
From: Kelly Templin
Through: Tom Brymer
Harvey Cargill, Jr.
Date: 20 May 2003
RE: Impacts of Sexually-Oriented Businesses
There is convincing documented evidence that adult entertainment enterprises,
because of their very nature, have a deleterious effect on both the existing
businesses around them and the surrounding residential areas adjacent to them,
causing increased crime and the downgrading of the property values. Numerous
studies, reports, and findings concerning the harmful effects of adult entertainment
uses on the surrounding land uses and neighborhoods have been produced.
(A) DETROIT, MICHIGAN-The Detroit Adult Entertainment Use Regulations were
adopted in 1972 as a part of an'Anti Skid Row Ordinance'that prohibited an adult
entertainment business within 500 feet of any residential area and within 1000 feet of
any two other regulated uses. The term regulated use applied to a variety of other
sexual entertainment, establishments, including adult theaters, adult book stores,
cabarets, bars, taxi dance halls, and hotels. During the hearings on the ordinance,
the City introduced extensive documentation that demonstrated the adverse socio-
economic and blighting impacts that adult entertainment uses have on surround
development. The documentation consisted of reports and affidavits from
sociologists, urban planners,and real estate experts, as well as some laymen on the
cycle of decay expected in Detroit from the Influx and concentration of such
establishments.
(B)AMARILLO,TEXAS-In 1977,the Amarillo Planning Department prepared a
report entitled,A Report on Entertainment Uses in Amarillo. The report concluded
that adult entertainment uses have adverse impacts on surrounding land uses, and
that those impacts on surrounding land uses, and that those Impact can de
distinguished from those of other businesses. The study found that street crime
rates are considerably the City's average in areas immediately surrounding the adult-
only businesses, and that late at night, during their primary operating hours, these
businesses create unique problems of noise, glare, and traffic.
(C) LOS ANGELES, CALIFORNIA-A November 1984 report, The Current Status of
Pornography and it's Effect on Society, prepared by Los Angeles Police
Department's concentrating adult entertainment businesses. The overwhelming
increase in prostitution, robberies, assaults,thefts, and proportionate growth in police
personnel deployed throughout Hollywood are all representative of the blighting that
clustering of adult entertainment establishments has on the entire community.
(D) INDIANAPOLIS, INDIANA- In 1984, Indianapolis surveyed real estate experts on
the impact that adult entertainment uses had on surrounding property values. A
random sample (20 percent)of the national membership of the American Institute of
Real Estate appraisers was used. The opinion survey found that an adult bookstore
located in the hypothetical neighborhood described would have a negative impact on
residential property values of premises located within on block of the site.
(E) PHOENIX, ARIZONA-A 1979 Planning Department study compared three study
areas containing adult entertainment uses with control areas that had similar
demographic and land use characteristics but not adult entertainment businesses.
Their study indicated that, on the average, " In the three study areas, property crimes
were 36 percent higher than in the control areas.
(F) ST. PAUL, MINNESOTA- In 1978, the Planning Department of St. Paul
completed a study of Effects on Surrounding Area of Adult Entertainment
Businesses. The study concluded: (1)that were was a statistically significant
correlation between neighborhood deterioration as reflected in housing values and
crime rates and the location of adult entertainment businesses; (2)the statistical
relationship was still significant after taking into account certain marketing factors,
and; (3)there was a stronger correlation with neighborhood deterioration after
establishment of an adult entertainment business than before.
(G) BEAUMONT, TEXAS-The effects of the concentration of adult entertainment
uses in Beaumont was clearly illustrated in the commercial revitalization plan for the
Charlton-Pollard neighborhood that was prepared by the City's Planning Department
in May of 1981. This plan described the economic decline that followed the
establishment of adult entertainment uses in a specific neighborhood. It was noted
that the growing presence of adult businesses drives away neighborhood
commercial stores.
(H) SEATTLE, WASHINGTON- In 1976, the city of Seattle amended its zoning
ordinance providing for the gradual elimination of nonconforming adult theaters. In a
memorandum to the City Planning Commission from the Planning Department,
proposed zoning ordinance amendments are recommended based in the evidence
that neighborhood property values will be negatively impacted and that residents fear
that some of the people attracted by adult theaters may constitute a threat to the
comfort and safety of the residents. Evidence was presented in the report,which
indicated that adult theaters were not compatible with adjacent residence and other
types of uses such as churches, schools, etc.
(I)AUSTIN, TEXAS- In May of 1986 the Austin Planning Department published a
report on adult businesses in Austin. An analysis of crime rates in Austin was
conducted by comparing areas with adult businesses to areas with out adult
businesses. Four study areas were chosen that did not certain adult containing only
one adult business each, and two study area were chosen containing two adult
businesses each.
Within those study areas containing adult businesses, sex crime were found to be
from two to nearly five times the citywide average. Also, sex related crime rates
were found to be 66% higher in study areas containing two adult businesses as
compared to study areas containing only one (1)adult business.
Austin conducted a survey of 120 real estate appraisers and lending institutions.
Eighty-eight percent(88%)of those responding indicated a belief that an adult
bookstore would decrease residential property values with in one (1) block, and 59%
felt that residential property values would decrease within three (3) blocks. A survey
of three adult businesses in Austin revealed that only three customers had
addresses within one mile of an adult business and 44% of all customers visiting the
three adult businesses had addresses outside the City of Austin.
The above studies show that concentrations of adult entertainment uses within a
community have a serious deleterious physical, social, and economic effect on
surrounding areas. The studies also show that regulations requiring the dispersion
of adult entertainment uses are justified. The studies also show that because of their
nature, adult entertainment uses can and should be relegated to nonresidential and
non-retail zoning districts.
Studies conducted in other cities and state throughout the country have shown a
decline in neighborhoods, and neighborhood oriented commercial, religious, and
institutional facilities when exposed to adult entertainment facilities.
The City of College Station is relying on the findings of these studies and is
attempting to benefit the public welfare by proposing new zoning rules.
The Supreme Court has upheld the validity of such controls that disperse these kinds
of activities within zoning districts that are less sensitive to their blighting influences.
That there will be adequate locations for adult entertainment enterprises with in the
City of College Station, after passage the Unified Development Ordinance (UDO).
Currently approximately 4.5% of the City is available for relocation sites.
It is recognized that adult entertainment enterprises due to their nature have serious
objectionable operational characteristics particularly when they are located in close
proximity to each other,thereby contributing to urban blight and downgrading the
quality of life in the adjacent areas.
The City seeks to minimize and control these adverse effects and thereby preserve
the property values and character of surrounding neighborhoods, deter the spread of
urban blight, protect the citizens from increased crime, preserve the quality of life,
and protect the health, safety, and welfare of the citizenry.
EXHIBIT #2
The Eagle
Article on June 15, 2003
Defendant's Answer
O:IUtigation Binders-FileslBlue DolphintPleadingslEXHJB/TS.doc
7/27/04
Bila.. .
_ndayE....,...The agle
e 15,2003
166.6 sections theeagle.com
J_ttri....1 li•ivivt •
O . . public park, playground, col-
...../S
Mill 11, lege, university, religious
institution, hospital, library,
museum and other institu-
• From Altions.
;ex orien a They also esnnot be within
.� cil that the owners have not 500 feet of a residential district
recouped their investment, or within 1,000 feet of each
development services director other.
Kelly Templin said. Why such harsh restric-
Adult Video and the Silk tions? Because studies per-
)usiuesses Stocking are the only busi- formed by cities such as Los
nesses in the city that have Angeles, Detroit and Austin,
been tagged with an amortiza- show a direct link between
tion clause, Cargill said. sexually oriented businesses
Sexually oriented business- and higher crime rates and
few zoning law requires es had previously been zoned neighborhood decline.
"general commercial," a des- Taking advantage of a
ignation that makes up nearly Supreme Court ruling in Ren-
!ss-proment locationsin80 percent of the city's corn- ton vs. Playtime Theaters, a
mercial zoning, Templin said. 1986 decision thai allows cities
That's why Adult Video was to use previously conducted
ETHAN BUTTERFIELD compel them to move. able to move in on Texas studies on sexually oriented
'le Staff Writer Councilman Scott Mears
also said that he heard no businesses instead of perform-
'rovisions in College Sta- public outcry for the move. Avenue directly across from ing their own,council adopted
n's new comprehensive But Mears did say that he had Texas A&M University. nine such studies at their
dng ordinance could force heard from developers who The areas that the two busi- Thursday meeting, providing
city's two sexually orient- had taken prospective busi- nesses can now-move to,zoned justification for the amortiza-
businesses, Adult Video nesses on tours of the city and heavy industrial and corn- tion clause.
I the Silk Stocking Lounge, been embarrassed to drive by mercial/industrial," make up "I don't know of any other
4.5 t percent of the city,within a year. Adult Video. justype of businesses where there
n the ordinance, which "They go over to the [Eco- after taking into account the has been a body of law that has
s passed by the city council nomic Development Corp.], various distance separation been developed which has rec-
March and went into effect they sit down and have a requirements placed upon the ognized, clearly and distinct-
sexually oriented businesses,
Friday, the city has laid meeting, they put them in a Templin said. ly, the negative effects on
entedt cbusinesses sexually where can ad University Drivelve totlook aem t
Under the new zoning plan, sexneivally oriented businesses,
-tot exist. A&M," Mears said. "And they known as the Unified Develop Cargill said.
Che current locations of get to the busiest intersection ment Ordinance, sexually or
No opposition was voiced
.ult Video on Texas Avenue for the whole community,and ented businesses are not from either business during
d the Silk Stocking on Earl there's the adult bookstore. allowed within 500 feet of the the public hearing process,
tdder Freeway are now pro- And it's pretty glaring." rights of way of Texas Templin said.
Sited for sexually oriented Unlike other businesses Avenue, Texas 6, Raymond
Stotzer Parkway, University II Ethan Butterfield's e-mail
as. that are now non conforming Drive and Harvey Road.
4ttempts to obtain com- and can stay in their current They also not allowed address is ebutterfield@
Int Saturday from repre- locations as long its they don't within 1are0 feetof any school, theeagle.com.
itatives of Adult Video and expand, the adult businesses
Silk Stocking were unsuc- will have to move because of
ssful. an amortization clause,
City Attorney Harvey Cargill said. That clause will
►rgill said there was no force the two businesses to
tsh by the city council to move within a year, unless
rce the businesses to move they are granted an extension
mm their highly visible lova- by the city council.
Mns. Instead, he said, the The only way to get an
ty simply took advantage of extension is to prove to coun-
EXHIBIT #1
Ordinance No. 2617
Adopting Unified Development Ordinance
Defendant's Answer
O:ILitlgatlon Binders-FllestBlue DolphintPleadingslEXHIBI7S.doc
7/27/04
EXHIBIT #5
THE EAGLE
Article on June 20, 2003
Defendant's Answer
O:ILitigatlon Binders-FileslBlue Dolphin%PleadingslEXHIBITs.doc
7/27/04
•
CS
club
Friday, June 20, 2003
t ed �- •
by new egion
•
Zoning theeagle.com
;y ETHAN BUTTERFIELD
'agle Staff Writer
Operators of the Silk Stock-
'tg Lounge, one of College
tation's two sexually orient- the Texas Secretary of State as for the delivery of the letter t
d businesses, were blind- C' b officers of Blue Dolphin Club. Silk Stocking. but h h l
ided a new city ordinance But Allen said he and his receive one for the lett ; to
net requires the topless club wife sold the club in December. Adult Video.
o change its business or Fron 149 1 after owning it for three years. The club does not open until
nove within a year, the club • I Neither would say who they 6 p.m., which could be tie reit
tanager said this week. The UDO was passed by city sold the club to. son the post office has not been
Stephanie Todd said she council in March and became Records at the Brazos County able to deliver the letter. Tem
nd the business's owners effective on June 13. Courthouse do not show a sale plin suggested.
vete unaware that College Todd, who spoke to The of the property in December "I'm sure they have a nail
;tation had rezoned the land Eagle on Monday but later 2002. box there, but if nobody w.&,
he topless bar sits on until declined to comment, said the Allen, however, said the city there to sign for it. that would
nformed by The Eagle last Silk Stocking never received is discriminating against the be a rational explanation. he
veekend. its copy of the UDO. business. said.
Under the ordinance, which "And'I check the mail, and "If I still owned the Silk Representatives of Adult
vent into effect last week, the the owner checks the mail," Stocking,I would go to Houston Video, who would not give
;ilk Stocking would be forced she said. "This is all coming as and get the biggest, baddest their names or speak on the
o move from its Texas 6 lora- a very big surprise to us. And First Amendment attorney and record,acknowledged that the\
ion if the owners want to con- we don't know if we can get sue the [expletive] out of the received the letter and knew of
ince to operate a strip club. anybody on our side or not. city," he said. "But I'm not the clause.
"I'm kind of blown away We're looking, obviously, for involved in it anymore." Several attempts to reach the
•fight now," Todd said Mon- attorneys and what not." Templin said he sent the let- ownership of Adult Video were
lay. "I'm trying to find out Public records show Blue ter to both businesses by certi- unsuccessful.
,what kind of legal action (the Dolphin Club Inc.as the owner. fled mail, meaning somebody
owners] actually do have." Jim Allen and his wife, Sheila would have had to sign for ■ Ethan Butterfield's e ma's
"You don't know any good Fay, who have a real-estate receipt of the letters. Templin address is ebuttertleid@
'eat estate attorneys in town office in Bryan, are listed by said he never received a receipt theeagle.com.
to you?" she added.
College Station develop-
nent director Kelly Templin
;aid he mailed copies of the
Unified Development Ordi-
nance, along with letters
explaining the amortization
clause that calls for the bust
nesses to move, to both the
Silk Stocking and the city's
other sexually oriented bust
ness, Adult Video, on .Mute 0
Templin said the letter was
sent as a courtesy, as it is not
standard practice for the city
to mail such a letter But, he
said, no other business had to
deal with an amortization
clause, and the city wanted to
be as open as possible.
See CLUB, Page All
EXHIBIT #4
City of Renton v. Playtime Theaters, Inc.,
475 U.S. 41 (1986)
Defendant's Answer
O:ILitigation Binders-FllestBlue DolphinlPleadingslEXHIBITS.doc
7/27/04
Page 2 of 16
Westlaw.
106 S.Ct.925 Page 1
89 L.Ed.2d 29,54 USLW 4160, 12 Media L.Rep. 1721
(Cite as:475 U.S.41,106 S.Ct.925)
P theaters from locating from within 1,000 feetof any
Briefs and Other Related Documents residential zone, single or multiple-family dwelling,
church, park or school was properly analyzed as a
form of time, place and manner regulation of
Supreme Court of the United States speech.U.S.C.A.Const.Amend. 1.
CITY OF RENTON,et al.,Appellants [2]Constitutional Law X90.4(4)
v. 92k90.4(4)Most Cited Cases
PLAYTIME THEATRES,INC.,et al.
A zoning ordinance that prohibited adult motion
No.84-1360. picture theaters from locating within 1,000 feet of
any residential zone, single or multiple-family
Argued Nov. 12, 1985. dwelling, church, park or school was a valid
Decided Feb.25, 1986. governmental response to the serious problems
Rehearing Denied April 21,1986. created by adult theaters and satisfied the dictates of
See 475 U.S. 1132, 106 S.Ct. 1663. the First Amendment.U.S.CA.Const.Amend. 1.
[3]Constitutional Law X90.4(4)
Suit was brought challenging the constitutionality 92k90.4(4)Most Cited Cases
of a zoning ordinance which prohibited adult (Formerly 92k90.1(4))
motion picture theaters from locating within 1,000
feet of any residential zone, single or The First Amendment does not require a city,
multiple-family dwelling, church, park or school. before enacting an adult theater zoning ordinance,
The United States District Court for the Western to conduct new studies or produce evidence
District of Washington ruled in favor of the city. independent of that already generated by other
The Court of Appeals for the Ninth Circuit, 748 cities, so long as whatever the evidence the city
F.2d 527, reversed and remanded for relies upon is reasonably believed to be relevant to
reconsideration, and the city appealed. The the problem that the city addresses. US.CA.
Supreme Court, Justice Rehnquist, held that the Const.Amend. 1.
adimnee was a valid governmental response to the
serious problems created by adult theaters and [4]Zoning and planning 0=76
satisfied the dictates of the First Amendment 414k76 Most Cited Cases
Reversed. Cities may regulate adult theaters by dispersing
them or by effectively concentrating them.
Justice Blackmun concurred in the result *41 Syllabus[FN*]
Justice Brennan filed a dissenting opinion in which
Justice Marshall joined. FN* The syllabus constitutes no part of the '
opinion of the Court but has been prepared
by the Reporter of Decisions for the
West Headnotes convenience of the reader. See United
Stat
s v. Detroit
(1]Constitutional Law X90.4(4) 321,337,6 S.Ct.282287,50 L.Ed.499.U.S.
92k90.4(4)Most Cited Cases
Respondents purchased two theaters in Renton, .
City ordinance that prohibited adult motion picture Washington, with the intention of exhibiting adult
Copr.0 West 2004 No Claim to Orig.U.S.Govt.Works
Page 3 of 16
106 S.Ct.925 Page 2
89 L.Ed.2d 29,54 USLW 4160, 12 Media L. Rep. 1721
(Cite as: 475 U.S.41, 106 S.Ct.925)
films and, at about the same time, filed suit in produced by, the nearby city of Seattle and other
Federal District Court, seeking injunctive relief and cities. Nor was there any constitutional defect in
a declaratory judgment that the First and Fourteenth the method chosen by Renton to further its
Amendments were violated by a city ordinance that substantial interests. Cities may regulate adult
prohibits adult motion picture theaters from locating theaters by dispersing them, or by effectively
within 1,000 feet of any residential zone, single- or concentrating them, as in Renton. Moreover, the
multiple-family dwelling, church, park, or school. ordinance is not "underinclusive" for failing to
The District Court ultimately entered summary regulate other kinds of adult businesses, since there
judgment in the city's favor, holding that the was no evidence that, at the time the ordinance was
ordinance did not violate the First Amendment. enacted, any other adult business was located in, or
The Court of Appeals reversed, holding that the was contemplating moving into, Renton. Pp.
ordinance constituted a substantial restriction on 930-932.
First Amendment interests, and remanded the case
for reconsideration as to whether the city had (d) As required by the First Amendment, the
substantial governmental interests to support the ordinance allows for reasonable alternative avenues
ordinance. of communication. Although respondents argue
that in general there are no "commercially viable"
Held: The ordinance is a valid governmental adult theater sites within the limited area of land left
response to the serious problems created by adult open for such theaters by the ordinance, the fact that
theaters and satisfies the dictates of the First respondents must fend for themselves in the real
Amendment. Cf. **925 Young v. American Mini estate market, on an equal footing with other
Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 prospective purchasers and lessees, does not give
L.Ed.2d 310.Pp.928-933. rise to a violation of the First Amendment, which
does not compel the Government to ensure that
(a) Since the ordinance does not ban adult theaters adult theaters, or any other kinds of speech-related
altogether, it is properly analyzed as a form of time, businesses, will be able to obtain sites at bargain
place, and manner regulation. "Content-neutral" prices.P.932.
time, place, and manner regulations are acceptable
so long as they are designed to serve a substantial 748 F.2d 527(CA9 1984),reversed.
governmental interest and do not unreasonably limit
alternative avenues of communication. Pp. REHNQUIST, J., delivered the opinion of the
928-929. Court, in which BURGER, C.J., and WHITE,
POWELL, STEVENS, and O'CONNOR, JJ.,
(b) The District Court found that the Renton City joined. BLACKMUN, J., concurred in the result.
Council's "predominate" concerns were with the BRENNAN, J., filed a dissenting opinion, in which
secondary effects of adult theaters on the MARSHALL,J.,joined,post,p.--.
surrounding community, not with the content of
adult fihns themselves. This fmding is more than **926 E. Barrett Prettyman, Jr., arguedthe cause
adequate to establish that the city's pursuit of its for appellants. With him on the briefs were David
zoning interests was unrelated to the suppression of W. Burgett, Lawrence J. Warren, Daniel Kellogg,
free expression, and thus the ordinance is a Mark E.Barber, and Zanetta L. Fontes.
"content-neutral"speech regulation.Pp.928-930.
Jack R. Burns argued the cause for appellees. With
(c) The Renton ordinance is designed to serve a him on the briefs was Robert E.Smith.*
substantial governmental interest while allowing for
reasonable alternative avenues of communication. * Briefs of amid curiae urging reversal were filed
A city's interest in attempting to preserve the quality for Jackson County, Missouri, by Russell D.
of urban life, as here, must be accorded high Jacobson; for the Freedom Council Foundation by
respect. Although the ordinance was enacted Wendell R. Bird and Robert K. Skolrood; for the
without the benefit of studies specifically relating to National Institute of Municipal Law Officers by
*42 Renton's particular problems, Renton was George Agnost, Roy D. Bates, Benjamin L. Brown,
entitled to rely on the experiences of, and studies J. Lamar Shelley, John W. Witt, Roger F. Cutler,
Copr.0 West 2004 No Claim to Orig.U.S.Govt.Works
Page 4 of 16
106 S.Ct.925 Page 3
89 L.Ed.2d 29,54 USLW 4160, 12 Media L.Rep. 1721
(Cite as:.475 U.S.41,106 S.Ct.925)
Robert J. Alfton, James K Baker, Barbara Mather, review a nonfmal judgment. See South
James D. Montgomery, Clifford D. Pierce, Jr., Carolina Electric & Gas Co. v. Flemming,
William H. Taube, William I. Thornton, Jr., and 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed.
Charles S. Rhyne; and for the National League of 1439 (1956); Slaker v. O'Connor, 278
Cities et al. by Benna Ruth Solomon, Joyce Holmes U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258
Benjamin, Beate Bloch, and Lawrence R. Velvel. (1929). But see Chicago v. Atchison, T.
& S.F. R. Co., 357 U.S. 77, 82-83, 78 S.Ct.
Briefs of amici curiae urging affirmance were filed 1063, 1066-1067,2 L.Ed.2d 1174(1958).
for the American Civil Liberties Union et al. by The present appeal seeks review of a
David Utevsky, Jack D. Novik, and Burt Neuborne; judgment remanding the case to the
and for the American Booksellers Association, Inc., District Court. We need not resolve
et al.by Michael A.Bamberger. whether this appeal is proper under §
1254(2), however, because in any event we
Eric M. Rubin and Walter E. Diercks filed a brief have certiorari jurisdiction under 28
for the Outdoor Advertising Association of U.S.C. § 2103. As we have previously
America,Inc.,et al.as amici curiae. done in equivalent situations, see El Paso
v. Simmons, 379 U.S. 497, 502-503, 85
S.Ct. 577, 580-581, 13 L.Ed.2d 446 (1965)
; Doran v. Salem Inn, Inc., 422 U.S. 922,
*43 Justice REHNQUIST delivered the opinion of 927, 95 S.Ct. 2561, 2565, 45 L.Ed.2d 648
the Court. (1975), we dismiss the appeal and, treating
the papers as a petition for certiorari, grant
This case involves a constitutional challenge to a the writ of certiorari. Henceforth, we
zoning ordinance, enacted by appellant city of shall refer to the parties as "petitioners"
Renton, Washington, that prohibits adult motion and"respondents."
picture theaters from locating within 1,000 feet of
any residential zone, single- or multiple-family
dwelling, church, park, or school. Appellees, *44 In May 1980, the Mayor of Renton, a city of
Playtime Theatres, Inc., and Sea-First Properties, approximately 32,000 people located just south of
Inc., filed an action in the United States District Seattle, suggested to the Renton City Council that it
Court for the Western District of Washington consider the advisability of enacting zoning
seeking a declaratory judgment that the Renton legislation dealing with adult entertainment uses.
ordinance violated the First and Fourteenth No such uses existed in the city at that time. Upon
Amendments and a permanent injunction against its the Mayor's suggestion, the City Council referred
enforcement. The District Court ruled in favor of the matter to the city's Planning and Development
Renton and denied the permanent injunction, but Committee. The Committee held public hearings,
the Court of Appeals for the Ninth Circuit reversed reviewed the experiences of Seattle and other cities,
and remanded for reconsideration. 748 F.2d 527 and received a report from the City Attorney's
(1984). We noted probable jurisdiction, **927471 Office advising as to developments in other cities.
U.S. 1013, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985), The City Council, meanwhile, adopted Resolution
and now reverse the judgment of the Ninth Circuit. No. 2368, which imposed a moratorium on the
[FN1] licensing of "any business ... which ... has as its
primary purpose the selling, renting or showing of
sexually explicit materials." App. 43. The
FN1. This appeal was taken under 28 resolution contained a clause explaining that such
U.S.C. § 1254(2), which provides this businesses "would have a severe impact upon
Court with appellate jurisdiction at the surrounding businesses and residences."Id., at 42.
behest of a party relying on a state statute
or local ordinance held unconstitutional by In April 1981, acting on the basis of the Planning
a court of appeals. As we have previously and Development Committee's recommendation, the
noted, there is some question whether City Council enacted Ordinance No. 3526. The
jurisdiction under § 1254(2) is available to ordinance prohibited any "adult motion picture
Copr.0 West 2004 No Claim to Orig.U.S.Govt.Works
Page 5 of 16
106 S.Ct.925 Page 4
89 L.Ed.2d 29,54 USLW 4160, 12 Media L. Rep. 1721
(Cite as: 475 U.S.41, 106 S.Ct.925)
theater" from locating within 1,000 feet of any imposed by the ordinance were no greater than
residential zone, single- or multiple-family necessary to further the governmental interests
dwelling, church, or park, and within one mile of involved. Relying on Young v. American Mini
any school. App. to Juris. Statement 79a. The Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49
term "adult motion picture theater" was defined as L.Ed.2d 310 (1976), and United States v. O'Brien,
"[a]n enclosed building used for presenting motion 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)
picture films, video cassettes, cable television, or , the court held that the Renton ordinance did not
any other such visual media, distinguished or violate the First Amendment.
characteri[zed] by an emphasis on matter depicting,
describing or relating to 'specified sexual activities' *46 The Court of Appeals for the Ninth Circuit
or 'specified anatomical areas' ... for observation by reversed. The Court of Appeals first concluded,
patrons therein."Id.,at 78a. contrary to the finding of the District Court, that the
Renton ordinance constituted a substantial
*45 In early 1982, respondents acquired two restriction on First Amendment interests. Then,
existing theaters in downtown Renton, with the using the standards set forth in United States v.
intention of using them to exhibit feature-length O'Brien, supra, the Court of Appeals held that
adult films. The theaters were located within the Renton had improperly relied on the experiences of
area proscribed by Ordinance No. 3526. At about other cities in lieu of evidence about the effects of
the same time, respondents filed the previously adult theaters on Renton, that Renton had thus
mentioned lawsuit challenging the ordinance on failed to establish adequately the existence of a
First and Fourteenth Amendment grounds, and substantial governmental interest in support of its
seeking declaratory and injunctive relief. While ordinance, and that in any event Renton's asserted
the federal action was pending, the City Council interests had not been shown to be unrelated to the
amended the ordinance in several respects, adding a suppression of expression. The Court of Appeals
statement of reasons for its enactment and reducing remanded the case to the District Court for
the minimum distance from any school to 1,000 feet. reconsideration of Renton's asserted interests.
In November 1982, the Federal Magistrate to In our view, the resolution of this case is largely
whom respondents' action had been referred dictated by our decision in Young v. American Mini
recommended the entry of a preliminary injunction Theatres, Inc., supra. There, although five
against enforcement of the Renton ordinance and Members of the Court did not agree on a single
the denial of Renton's motions to dismiss and for rationale for the decision, we held that the city of
summary judgment. The District Court adopted the Detroit's zoning ordinance, which prohibited
Magistrate's recommendations and entered the locating an adult theater within 1,000 feet of any
preliminary injunction, and respondents began two other "regulated uses" or within 500 feet of any
showing adult films at their two theaters in Renton. residential zone, did not violate the First and
Shortly thereafter, the parties agreed to submit the Fourteenth Amendments. Id., 427 U.S., at 72-73,
case for a final decision on whether a permanent 96 S.Ct., at 2453 (plurality opinion of STEVENS,
**928 injunction should issue on the basis of the J., joined by BURGER, C.J., and WHITE and
record as already developed. REHNQUIST, JJ.); id., at 84, 96 S.Ct., at 2459
(POWELL, J., concurring). The Renton ordinance,
The District Court then vacated the preliminary like the one in American Mini Theatres, does not
injunction, denied respondents' requested ban adult theaters altogether, but merely provides
permanent injunction, and entered summary that such theaters may not be located within 1,000
judgment in favor of Renton. The court found that feet of any residential zone, single- or
the Renton ordinance did not substantially restrict multiple-family dwelling, church, park, or school.
First Amendment interests, that Renton was not The ordinance is therefore properly analyzed as a
required to show specific adverse impact on Renton form of time, place, and manner regulation. Id., at
from the operation of adult theaters but could rely 63, and n. 18, 96 S.Ct., at 2448 and n. 18; id., at
on the experiences of other cities, that the purposes 78-79,96 S.Ct.,at 2456(POWELL,J.,concurring).
of the ordinance were unrelated to the suppression
of speech, and that the restrictions on speech [1] Describing the ordinance as a time, place, and
Copr.®West 2004 No Claim to Orig.U.S.Govt.Works
Page 6 of 16
106 S.Ct.925 Page 5
89 L.Ed.2d 29,54 USLW 4160, 12 Media L.Rep. 1721
(Cite as:475 U.S.41,106 S.Ct.925)
manner regulation is, of course, only the fust step in the Court of Appeals said it was applying:
our inquiry. This Court has long held that *48 "It is a familiar principle of constitutional
regulations enacted for the *47 purpose of law that this Court will not strike down an
restraining speech on the basis of its content otherwise constitutional statute on the basis of an
presumptively violate the First Amendment. See alleged illicit legislative motive....
Carey v. Brown, 447 U.S. 455, 462-463, and n. 7,
100 S.Ct. 2286, 2291, and n. 7, 65 L.Ed.2d 263 * * *
(1980); Police Dept. of Chicago v. Mosley, 408 "... What motivates one legislator to make a
U.S. 92, 95, 98- 99, 92 S.Ct. 2286, 2289, speech about a statute is not necessarily what
2291-2292, 33 L.Ed.2d 212 (1972). On the other motivates scores of others to enact it, and the
hand, so-called "content-neutral" time, place, and stakes are sufficiently high for us to eschew
manner regulations are acceptable so long as they guesswork."Id., at 383-384,88 S.Ct.,at 1683.
are designed to serve a substantial governmental
interest and do not unreasonably limit alternative The District Court's finding as to "predominate"
avenues of communication. See Clark v. intent, left undisturbed by the Court of Appeals, is
Community for Creative Non-Violence, 468 U.S. more than adequate to establish that the city's
288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 pursuit of its zoning interests here was unrelated to
(1984); City Council of Los Angeles v. Taxpayers the suppression of free expression. The ordinance
for Vincent, 466 U.S. 789, 807, 104 S.Ct. 2118, by its terms is designed to prevent crime,protect the
2130, 80 L.Ed.2d 772 (1984); Heffron v. city's retail trade, maintain property values, and
International Society for Krishna Consciousness, generally "protec[t] and preserv[e] the quality of
Inc., 452 U.S. 640, 647-648, 101 S.Ct. 2559, [the city's] neighborhoods, commercial districts, and
2563-2564,69 L.Ed.2d 298(1981). the quality of urban life," not to suppress the
expression of unpopular views. See App. to Juris.
**929 At first glance, the Renton ordinance, like Statement 90a. As Justice POWELL observed in
the ordinance in American Mini Theatres, does not American Mini Theatres, "[i]f [the city] had been
appear to fit neatly into either the "content-based" concerned with restricting the message purveyed by
or the "content-neutral" category. To be sure, the adult theaters, it would have tried to close them or
ordinance treats theaters that specialize in adult restrict their number rather than circumscribe their
films differently from other kinds of theaters. choice as to location." 427 U.S., at 82, n. 4, 96
Nevertheless, as the District Court concluded, the S.Ct.,at 2458,n.4.
Renton ordinance is aimed not at the content of the
films shown at "adult motion picture theatres," but In short, the Renton ordinance is completely
rather at the secondary effects of such theaters on consistent with our definition of "content-neutral"
the surrounding community. The District Court speech regulations as those that "are justified
found that the City Council's "predominate without reference to the content of the regulated
concerns" were with the secondary effects of adult speech." Virginia Pharmacy Board v. Virginia
theaters, and not with the content of adult films Citizens Consumer Council, Inc., 425 U.S. 748,
themselves. App. to Juris. Statement 31a 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)
(emphasis added). But the Court of Appeals, (emphasis added); Community for Creative Non-
relying on its decision in Tovar v. Billmeyer, 721 Violence, supra, 468 U.S., at 293, 104 S.Ct., at
F.2d 1260, 1266 (CA9 1983), held that this was not 3069; International Society for Krishna
enough to sustain the ordinance. According to the Consciousness, supra, 452 U.S., at 648, 101 S.Ct.,
Court of Appeals, if "a motivating factor " in at 2564. The ordinance does not contravene the
enacting the ordinance was to restrict respondents' fundamental principle that underlies our concern
exercise of First Amendment rights the ordinance about "content-based" speech regulations: that
would be invalid, apparently no matter how small a "government may not grant the use of a forum to
part this motivating factor may have played in the people whose views it fords acceptable, but deny
City Council's decision. 748 F.2d, at 537 use to those wishing to express *49 less favored or
(emphasis in original). This view of the law was more controversial views." Mosley, supra, 408
rejected in United States v. O'Brien, 391 U.S., at U.S.,at 95-96,92 S.Ct.,at 2289-2290.
382- 386, 88 S.Ct., at 1681-1684, the very case that
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It was with this understanding in mind that, in L.Ed.2d 796] (1973)." Id., at 82, n. 6, 96 S.Ct.,
American Mini Theatres, a majority of this Court at 2458,n.6.
decided that, at least with respect to businesses that
purvey sexually explicit materials, [FN2] zoning [2] The appropriate inquiry in this case, then, is
ordinances designed**930 to combat the whether the Renton ordinance is designed to serve a
undesirable secondary effects of such businesses are substantial governmental interest and allows for
to be reviewed under the standards applicable to reasonable alternative avenues of communication.
"content-neutral" time, place, and manner See Community for Creative Non-Violence, 468
regulations. Justice STEVENS, writing for the U.S., at 293, 104 S.Ct., at 3069; International
plurality, concluded that the city of Detroit was Society for Krishna Consciousness, 452 U.S., at
entitled to draw a distinction between adult theaters 649, 654, 101 S.Ct., at 2564, 2567. It is clear that
and other kinds of theaters "without violating the the ordinance meets such a standard. As a majority
government's paramount obligation of neutrality in of this Court recognized in American Mini Theatres,
its regulation of protected communication," 427 a city's "interest in attempting to preserve the
U.S., at 70, 96 S.Ct., at 2452, noting that "[i]t is th quality of urban life is one that must be accorded
[e] secondary effect which these zoning ordinances high respect." 427 U.S., at 71, 96 S.Ct., at 2453
attempt to avoid, not the dissemination of'offensive' (plurality opinion); see id., at 80, 96 S.Ct., at 2457
speech," id., at 71, n. 34, 96 S.Ct., at 2453, n. 34. (POWELL, J., concurring) ("Nor is there doubt that
Justice POWELL,in concurrence,elaborated: the interests furthered by this ordinance are both
important and substantial"). Exactly the same vital
governmental interests are at stake here.
FN2. See American Mini Theatres, 427
U.S., at 70, 96 S.Ct., at 2452 (plurality The Court of Appeals ruled, however, that because
opinion) ("[I]t is manifest that society's the Renton ordinance was enacted without the
interest in protecting this type of benefit of studies specifically relating to "the
expression is of a wholly different, and particular problems or needs of Renton," the city's
lesser, magnitude than the interest in justifications for the ordinance were "conclusory
untrammeled political debate..."). and speculative." 748 F.2d, at 537. We think the
Court of Appeals imposed on the city an
"[The] dissent misconceives the issue in this case unnecessarily rigid burden of proof. The record in
by insisting that it involves an impermissible this case reveals that Renton relied heavily on the
time, place, and manner restriction based on the experience of, and studies produced by, the city of
content of expression. It involves nothing of the Seattle. In Seattle, as in Renton, the adult theater
kind. We have here merely a decision by the city zoning ordinance was aimed at preventing the
to treat certain movie theaters differently because secondary effects caused by the presence of even
they have markedly different effects upon their one such theater in a given neighborhood. See
surroundings.... Moreover, even if this were a Northend Cinema, Inc. v. Seattle, 90 Wash.2d 709,
case involving a special governmental response to 585 P.2d 1153 (1978). The opinion of the Supreme
the content of one type of movie, it is possible Court of Washington in Northend Cinema, which
that the result would be supported by a line of *51 was before the Renton City Council when it
cases recognizing that the government can tailor enacted the ordinance in question here, described
its reaction to different types of speech according Seattle's experience as follows:
to the degree to which its special and overriding "The amendments to the City's zoning code which
interests are implicated. *50 See, e.g., Tinker v. are at issue here are the **931 culmination of a
Des Moines School Dist., 393 U.S. 503, 509-511 tong period of study and discussion of the
[89 S.Ct. 733, 737-739, 21 L.Ed.2d 731] (1969); problems of adult movie theaters in residential
Procunier v. Martinez, 416 U.S. 396, 413-414 areas of the City.... [T]he City's Department of
[94 S.Ct. 1800, 1811, 40 L.Ed.2d 224] (1974); Community Development made a study of the
Greer v. Spock, 424 U.S. 828, 842-844 [96 S.Ct. need for zoning controls of adult theaters.... The
1211, 1219-1220, 47 L.Ed.2d 505] (1976) study analyzed the City's zoning scheme,
(POWELL, J., concurring); cf. CSC v. Letter comprehensive plan, and land uses around
Carriers, 413 U.S. 548 [93 S.Ct. 2880, 37 existing adult motion picture theaters...." Id., at
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711,585 P.2d,at 1155. shown to produce the unwanted secondary effects,
"[T]he [trial] court heard extensive testimony thus avoiding the flaw that proved fatal to the
regarding the history and purpose of these regulations in Schad v. Mount Ephraim, 452 U.S.
ordinances. It heard expert testimony on the 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981), and
adverse effects of the presence of adult motion Erznoznik v. City of Jacksonville, 422 U.S. 205, 95
picture theaters on neighborhood children and S.Ct.2268,45 L.Ed.2d 125(1975).
community improvement efforts. The court's
detailed findings, which include a finding that the Respondents contend that the Renton ordinance is
location of adult theaters has a harmful effect on "under-inclusive," in that it fails to regulate other
the area and contribute to neighborhood blight, kinds of adult businesses that are likely to produce
are supported by substantial evidence in the secondary effects similar to those produced by adult
record."Id.,at 713,585 P.2d,at 1156. theaters. On this record the contention must fail.
"The record is replete with testimony regarding There is no evidence that, at the time the Renton
the effects of adult movie theater locations on ordinance was enacted, any other adult business was
residential neighborhoods." Id., at 719, 585 P.2d, located in, or was contemplating moving into,
at 1159. Renton. In fact, Resolution No. 2368, enacted in
October 1980, states that "the City of Renton does
[3] We hold that Renton was entitled to rely on the not, at the present time, have any business whose
experiences of Seattle and other cities, and in primary purpose is the sale, rental, or showing of
particular on the "detailed findings" summarized in sexually explicit materials." App. 42. That
the Washington Supreme Court's Northend Cinema Renton chose first to address the potential problems
opinion, in enacting its adult theater zoning created *53 by one particular kind of adult business
ordinance. The First Amendment does not require in no way suggests that the city has "singled out"
a city, before enacting such an ordinance, to adult theaters for discriminatory treatment. We
conduct new studies or produce evidence simply have no basis on **932 this record for
independent of that already generated by other assuming that Renton will not, in the future, amend
cities, so long as whatever evidence the city relies its ordinance to include other kinds of adult
upon is reasonably believed to be relevant to the *52 businesses that have been shown to produce the
problem that the city addresses. That was the case same kinds of secondary effects as adult theaters. -
here. Nor is our holding affected by the fact that See Williamson v. Lee Optical Co., 348 U.S. 483, .
Seattle ultimately chose a different method of adult 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563
theater zoning than that chosen by Renton, since (1955).
Seattle's choice of a different remedy to combat the
secondary effects of adult theaters does not call into Finally, turning to the question whether the Renton
question either Seattle's identification of those ordinance allows for reasonable alternative avenues
secondary effects or the relevance of Seattle's of communication, we note that the ordinance
experience to Renton. leaves some 520 acres, or more than five percent of
the entire land area of Renton, open to use as adult
[4] We also find no constitutional defect in the theater sites. The District Court found, and the
method chosen by Renton to further its substantial Court of Appeals did not dispute the finding, that
interests. Cities may regulate adult theaters by the 520 acres of land consists of "[a]mple,
dispersing them, as in Detroit, or by effectively accessible real estate," including "acreage in all
concentrating them, as in Renton. "It is.not our stages of development from raw land to developed,
function to appraise the wisdom of [the city's] industrial, warehouse, office, and shopping space
decision to require adult theaters to be separated that is criss-crossed by freeways, highways, and
rather than concentrated in the same areas.... [T]he roads."App.to Juris.Statement 28a.
city must be allowed a reasonable opportunity to
experiment with solutions to admittedly serious Respondents argue, however, that some of the land
problems." American Mini Theatres, 427 U.S., at in question is already occupied by existing
71, 96 S.Ct., at 2453 (plurality opinion). businesses, that "practically none" of the
Moreover, the Renton ordinance is "narrowly undeveloped land is currently for sale or lease, and
tailored" to affect only that category of theaters that in general there are no "commercially viable"
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adult theater sites within the 520 acres left open by In sum, we find that the Renton ordinance
the Renton ordinance. Brief for Appellees 34-37. represents a valid governmental response to the
The Court of Appeals accepted these arguments, "admittedly serious problems" created by adult
[FN3] concluded that *54 the 520 acres was not theaters. See id., at 71, 96 S.Ct., at 2453 (plurality
truly "available" land, and therefore held that the opinion). Renton has not used "the power to zone
Renton ordinance "would result in a substantial as a pretext for suppressing expression," id., at 84,
restriction"on speech. 748 F.2d,at 534. 96 S.Ct., at 2459 (POWELL, J., concurring), but
rather has sought to make some areas available for
adult theaters and their patrons, while at the same
FN3. The Court of Appeals' rejection of time preserving the quality of life in the community
the District Court's findings on this issue at large by preventing those theaters from locating
may have stemmed in part from the belief, in other areas. This, after all, is the essence of
expressed elsewhere in the Court of zoning. Here, as in American Mini Theatres, the
Appeals' opinion, that, under Bose Corp. v. city has enacted a zoning ordinance that meets these
Consumers Union of United States, Inc., goals while also satisfying the dictates of the *55
466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d **933 First Amendment. [FN4] The judgment of
502 (1984), appellate courts have a duty to the Court of Appeals is therefore
review de novo all mixed findings of law
and fact relevant to the application of First
Amendment principles. See 748 F.2d 527, FN4. Respondents argue, as an "alternative
535 (1984). We need not review the basis" 'for affirming the decision of the
correctness of the Court of Appeals' Court of Appeals, that the Renton
interpretation of Bose Corp., since we ordinance violates their rights under the
determine that, under any standard of Equal Protection Clause of the Fourteenth
review, the District Court's findings should Amendment. As should be apparent from
not have been disturbed. our preceding discussion, respondents can
fare no better under the Equal Protection
Clause than under the First Amendment
We disagree with both the reasoning and the itself. See Young v. American Mini
conclusion of the Court of Appeals. That Theatres, Inc., 427 U.S., at 63-73, 96
respondents must fend for themselves in the real S.Ct.,at 2448-2454.
estate market, on an equal footing with other Respondents also argue that the Renton
prospective purchasers and lessees, does not give ordinance is unconstitutionally vague.
rise to a First Amendment violation. And although More particularly, respondents challenge
we have cautioned against the enactment of zoning the ordinance's application to buildings
regulations that have "the effect of suppressing, or "used" for presenting sexually explicit
greatly restricting access to, lawful speech," films, where the term "used" describes "a
American Mini Theatres, 427 U.S., at 71, n. 35, 96 continuing course of conduct of exhibiting
S.Ct., at 2453, n. 35 (plurality opinion), we have [sexually explicit films] in a manner which
never suggested that the First Amendment compels appeals to a prurient interest." App. to
the Government to ensure that adult theaters, or any Juris. Statement 96a. We reject
other kinds of speech-related businesses for that respondents' "vagueness" argument for the
matter, will be able to obtain sites at bargain prices. same reasons that led us to reject a similar
See id., at 78, 96 S.Ct., at 2456 (POWELL, J., challenge in American Mini Theatres,
concurring) ("The inquiry for First Amendment supra. There, the Detroit ordinance
purposes is not concerned with economic impact"). applied to theaters "used to present
In our view, the First Amendment requires only material distinguished or characterized by
that Renton refrain from effectively denying an emphasis on [sexually explicit matter]."
respondents a reasonable opportunity to open and Id., at 53, 96 S.Ct., at 2444. We held that
operate an adult theater within the city, and the "even if there may be some uncertainty
ordinance before us easily meets this requirement. about the effect of the ordinances on other
litigants, they are unquestionably
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applicable to these respondents." Id., at FN1. The Court apparently finds comfort
58-59, 96 S.Ct., at 2446. We also held in the fact that the ordinance does not
that the Detroit ordinance created no "deny use to those wishing to express less
"significant deterrent effect" that might favored or more controversial views."
justify invocation of the First Amendment Ante, at 929. However, content-based
"overbreadth" doctrine. Id., at 59- 6l. 96 discrimination ft not rendered "any less
S.Ct.,at 2446-2448. odious" because it distinguishes "among
entire classes of ideas, rather than among
points of view within a particular class."
Reversed. Lehman v. City of Shaker Heights, 418
U.S. 298, 316, 94 S.Ct. 2714, 2724, 41
L.Ed.2d 770 (1974) (BRENNAN, J.,
Justice BLACKMUN concurs in the result. dissenting); see also Consolidated Edison
Co. v. Public Service Comm'n of N.Y., 447
U.S. 530, 537, 100 S.Ct. 2326, 2333, 65
L.Ed.2d 319 (1980) ("The First
Justice BRENNAN, with whom Justice Amendment's hostility to content-based
MARSHALL joins,dissenting. regulation extends not only to restrictions
on particular viewpoints, but also to
Renton's zoning ordinance selectively imposes prohibition of public discussion of an
limitations on the location of a movie theater based entire topic"). Moreover, the Court's
exclusively on the content of the films shown there. conclusion that the restrictions imposed
The constitutionality of the ordinance is therefore here were viewpoint neutral is patently
not correctly analyzed under standards applied to flawed. "As a practical matter, the speech
content-neutral time, place, and manner restrictions. suppressed by restrictions such as those
But even assuming that the ordinance may fairly be involved [here] will almost invariably
characterized as content neutral, it is plainly carry an implicit, if not explicit, message
unconstitutional under the standards established by in favor of more relaxed sexual mores.
the decisions of this Court. Although the Court's Such restrictions, in other words, have a
analysis is limited to *56 cases involving potent viewpoint-differential impact.... To
"businesses that purvey sexually explicit materials," treat such restrictions as viewpoint-neutral
ante, at 929, and n. 2, and thus does not affect our seems simply to ignore reality." Stone,
holdings in cases involving state regulation of other Restrictions of Speech Because of its
kinds of speech,I dissent. Content: The Peculiar Case of
Subject-Matter Restrictions, 46
I U.Chi.L.Rev.81, 111-112(1978).
"[A] constitutionally permissible time, place, or
manner restriction may not be based upon either the The fact that adult movie theaters may cause
content or subject matter of speech." Consolidated harmful "secondary" land-use effects may arguably
Edison Co. v. Public Service Comm'n of N.Y., 447 give Renton a compelling **934 reason to regulate
U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d such establishments; it does not mean, however,
319 (1980). The Court asserts that the ordinance is that such regulations are content neutral. *57
"aimed not at the content of the films shown at Because the ordinance imposes special restrictions
'adult motion picture theatres,' but rather at the on certain kinds of speech on the basis of content, I
secondary effects of such theaters on the cannot simply accept, as the Court does, Renton's
surrounding community," ante, at 929 (emphasis in claim that the ordinance was not designed to
original), and thus is simply a time, place, and suppress the content of adult movies. "[W]hen
manner regulation. [FN1] This analysis is regulation is based on the content of speech,
misguided. governmental action must be scrutinized more
carefully to ensure that communication has not been
prohibited 'merely because public officials
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disapprove the speaker's views.' " Consolidated was enacted, there was no evidence that
Edison Co., supra, at 536, 100 S.Ct., at 2332 any adult movie theaters were located in,
(quoting Niemotko v. Maryland, 340 U.S. 268, 282, or considering moving to, Renton. Thus,
71 S.Ct. 325, 333, 95 L.Ed. 267 (1951) there was no legitimate reason for the city
(Frankfurter, J., concurring in result)). "[B]efore to treat adult movie theaters differently
deferring to [Renton's] judgment, [we] must be from other adult businesses.
convinced that the city is seriously and .
comprehensively addressing" secondary-land use "This Court frequently has upheld underinclusive
effects associated with adult movie theaters. classifications on the sound theory that a
Metromedia, Inc. v. San Diego, 453 U.S. 490, 531, legislature may deal with one part of a problem
101 S.Ct. 2882, 2904, 69 L.Ed.2d 800 (1981) without addressing all of it. See e.g., Williamson
(BRENNAN, J., concurring in judgment). In this v. Lee Optical Co., 348 U.S. 483, 488-489, 75
case, both the language of the ordinance and its S.Ct. 461, 464-465, 99 L.Ed. 563 (1955). This
dubious legislative history belie the Court's presumption of statutory validity, however, has
conclusion that "the city's pursuit of its zoning less force when a classification turns on the
interests here was unrelated to the suppression of subject matter of expression. '[A]bove all else,
free expression."Ante, at 929. the First Amendment means that government has
no power to restrict expression because of its
A message, its ideas, its subject matter, or its
content.' Police Dept. of Chicago v. Mosley, 408
The ordinance discriminates on its face against U.S., at 95 [92 S.Ct., at 2290]." Erznoznik v. City
certain forms of speech based on content. Movie of Jacksonville, 422 U.S. 205, 215, 95 S.Ct.
theaters specializing in "adult motion pictures" may 2268,2275,45 L.Ed.2d 125(1975).
not be located within 1,000 feet of any residential
zone, single- or multiple-family dwelling, church, In this case, the city has not justified treating adult
park, or school. Other motion picture theaters, and movie theaters differently from other adult
other forms of "adult entertainment," such as bars, entertainment businesses. The ordinance's
massage parlors, and adult bookstores, are not underinclusiveness is cogent evidence that it was
subject to the same restrictions. This selective aimed at the content of the films shown in adult
treatment strongly suggests that Renton was movie theaters.
interested not in controlling the "secondary effects"
associated with adult businesses, but in **935 B
discriminating against adult theaters based on the
content of the films they exhibit. The Court Shortly after this lawsuit commenced, the Renton
ignores this discriminatory treatment, declaring that City Council amended the ordinance, adding a
Renton is free "to address the potential problems provision explaining that its intention in adopting
created by one particular kind of adult business," the ordinance had been "to promote the City of
ante, at 931, and to amend the ordinance in the *58 Renton's great interest in protecting and preserving
future to include other adult enterprises. Ante, at the quality of its neighborhoods, commercial
932 (citing Williamson v. Lee Optical Co., 348 U.S. districts, and the quality of urban life through
483, 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 effective land *59 use planning." App. to Juris.
(1955)). [FN2] However, because of the First Statement 81a. The amended ordinance also lists
Amendment interests at stake here, this certain conclusory "fmdings" concerning adult
one-step-at-a-time analysis is wholly inappropriate. entertainment land uses that the Council purportedly
relied upon in adopting the ordinance. Id., at
81a-86 a. The city points to these provisions as
FN2. The Court also explains that "[t]here evidence that the ordinance was designed to control
is no evidence that, at the time the Renton the secondary effects associated with adult movie
ordinance was enacted, any other adult theaters, rather than to suppress the content of the
business was located in, or was films they exhibit. However, the "legislative
contemplating moving into, Renton." Ante, history" of the ordinance strongly suggests
at 931. However, at the time the ordinance otherwise.
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Prior to the amendment, there was no indication Mount Ephraim, 452 U.S. 61, 77, 101 S.Ct. 2176,
that the ordinance was designed to address any 2187, 68 L.Ed.2d 671 (1981) (BLACKMUN, J.,
"secondary effects" a single adult theater might concurring). As the Court of Appeals concluded,
create. In addition to the suspiciously coincidental "[t]he record presented by Renton to support its
timing of the amendment, many of the City asserted interest in enacting the zoning ordinance is
Council's "findings" do not relate to legitimate very thin."748 F.2d,at 536.
land-use concerns. As the Court of Appeals
observed, "[b]oth the magistrate and the district
court recognized that many of the stated reasons for FN4. For example, "finding" number 12
the ordinance were no more than expressions of states that
dislike for the subject matter." 748 F.2d 527, 537 "[I]ocation of adult entertainment land uses
(CA9 1984). [FN3] That some residents may be in proximity to residential uses, churches,
offended by the content of the films shown at adult parks and other public facilities, and
movie theaters cannot form the basis for state schools, may lead to increased levels of
regulation of speech. See Terminiello v. Chicago, criminal activities, including prostitution,
337 U.S. 1,69 S.Ct.894,93 L.Ed. 1131 (1949). rape, incest and assaults in the vicinity of
such adult entertainment land uses." Id., at
83a.
FN3. For example, "finding" number 2
states that
"[1]ocation of adult entertainment land uses The amended ordinance states that its "findings"
on the main commercial thoroughfares of summarize testimony received by the City Council
the City gives an impression of legitimacy at certain public hearings. While none of this
to, and causes a loss of sensitivity to the testimony was ever recorded or preserved, a city
adverse effect of pornography upon official reported that residents had objected to
children, established family relations, having adult movie theaters located in their
respect for marital relationship and for the community. However, the official was unable to
sanctity of marriage relations of others, recount any testimony as to how adult movie
and the concept of non- aggressive, theaters would specifically affect the schools,
consensual sexual relations." App. to churches, parks, or residences "protected" by the
Juris.Statement 86a. ordinance. See App. 190-192. The City Council
"Finding"number 6 states that conducted no studies, and heard no expert
"[l]ocation of adult land uses in close testimony, on how the protected uses would be
proximity to residential uses, churches, affected by the presence of an adult movie theater,
parks, and other public facilities, and and never considered whether residents' concerns
schools, will cause a degradation of the could be met by "restrictions **936 that are less
community standard of morality. intrusive on protected forms of expression." Schad,
Pornographic material has a degrading supra, 452 U.S., at 74, 101 S.Ct., at 2186. As a
effect upon the relationship between result, any "findings" regarding "secondary effects"
spouses."Ibid. caused by adult movie theaters, or the need to adopt
specific locational requirements to combat such
effects, were not "findings" at all, but purely
Some of the "findings" added by the City Council speculative conclusions. Such "findings" were not
do relate to supposed "secondary effects" such as are required to justify the burdens *61 the
associated with adult movie *60 theaters. [FN4] ordinance imposed upon constitutionally protected
However, the Court cannot, as it does, merely expression.
accept these post hoc statements at face value.
"[T]he presumption of validity that traditionally The Court holds that Renton was entitled to rely on
attends a local government's exercise of its zoning the experiences of cities like Detroit and Seattle,
powers carries little, if any,weight where the zoning which had enacted special zoning regulations for
regulation trenches on rights of expression adult entertainment businesses after studying the
protected under the First Amendment." Schad v. adverse effects caused by such establishments.
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However, even assuming that Renton was would deteriorate due to a concentration of
concerned with the same problems as Seattle and such, theaters. The Seattle ordinance, by
Detroit, it never actually reviewed any of the studies contrast, was intended to concentrate the
conducted by those cities. Renton had no basis for theaters in one place so that the whole city
determining if any of the "findings" made by these would not bear the effects of them. The
cities were relevant to Renton's problems or needs. Renton Ordinance is allegedly aimed at
[FN5] Moreover, since Renton ultimately adopted protecting certain uses--schools, parks,
zoning regulations different from either Detroit or churches and residential areas—from the
Seattle, these "studies" provide no basis for perceived unfavorable effects of an adult
assessing the effectiveness of the particular theater." 748 F.2d, at 536 (emphasis in
restrictions adopted under the ordinance. [FN6] original).
Renton cannot merely rely on the general
experiencesof *62 Seattle or Detroit, for it must
"justify its ordinance in the context of Renton's In sum, the circumstances here strongly suggest
problems—not Seattle's or Detroit's problems." 748 that the ordinance was designed to suppress
F.2d,at 536(emphasis in original). expression, even that constitutionally protected, and
thus was not to be analyzed as a content-neutral
time, place, and manner restriction. The Court
FN5. As part of the amendment passed allows Renton to conceal its illicit motives,
after this lawsuit commenced, the City however, by reliance on the fact that other
Council added a statement that it had communities adopted similar restrictions. The
intended to rely on the Washington Court's approach largely immunizes such measures
Supreme Court's opinion in Northend from judicial scrutiny, since a municipality can
Cinema, Inc. v. Seattle, 90 Wash.2d 709, readily fmd other municipal ordinances to rely
585 P.2d 1153 (1978), cert. denied sub upon, thus always retrospectively justifying special
nom. Apple Theatre, Inc. v. Seattle, 441 zoning regulations for adult theaters. [FN7] Rather
U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d 1048 than speculate about Renton's motives for adopting
(1979), which upheld Seattle's zoning such measures, our cases require the conclusion that
regulations against constitutional attack. the ordinance, like any other content-based
Again, despite the suspicious coincidental restriction on speech, is constitutional "only if the
timing of the amendment, the Court holds [city] can show **937 that [it] is a precisely drawn
that "Renton was entitled to rely ... on the means of serving a compelling [governmental]
'detailed findings' summarized in the ... interest." Consolidated Edison Co. v. Public
Northend Cinema opinion." Ante, at 931. Service Comm'n of N.Y., 447 U.S., at 540, 100
In Northend Cinema, the court noted that S.Ct., at 2334; see also Carey v. Brown, 447 U.S.
"[t]he record is replete with testimony 455, 461-462, 100 S.Ct. 2286, 2290-2291, 65
regarding the effects of adult movie theater L.Ed.2d 263 (1980); Police Department of
locations on residential neighborhoods." Chicago v. Mosley, 408 U.S. 92, 99, 92 S.Ct. 2286,
90 Wash.2d, at 719, 585 P.2d, at 1159. 2292, 33 L.Ed.2d 212 (1972). Only this strict
The opinion however, does not explain the approach can insure that cities will not use their
evidence it purports to summarize, and zoning powers as a pretext for suppressing
provides no basis for determining whether constitutionally protected expression.
Seattle's experience is relevant to Renton's.
FN7.As one commentator has noted:
FN6.As the Court of Appeals observed: "[A]nyone with any knowledge of human
"Although the Renton ordinance purports nature should naturally assume that the
to,copy Detroit's and Seattle's, it does not decision to adopt almost any content-based
solve the same problem in the same restriction might have been affected by an
manner. The Detroit ordinance was antipathy on the part of at least some
intended to disperse adult theaters legislators to the ideas or information
throughout the city so that no one district being suppressed. The logical
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106 S.Ct.925 Page 13
89 L.Ed.2d 29,54 USLW 4160, 12 Media L. Rep. 1721
(Cite as:475 U.S.41,106 S.Ct.925)
assumption, in other words, is not that insufficient to support this assertion. The city
there is not improper motivation but, made no showing as to how uses "protected" by the
rather, because legislators are only human, ordinance would be affected by the presence of an
that there is a substantial risk that an adult movie theater. Thus, the Renton ordinance is
impermissible consideration has in fact clearly distinguishable from *64 the Detroit zoning
colored the deliberative process." Stone, ordinance upheld in Young v. American Mini
supra n. 1,at 106. Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49
L.Ed.2d 310 (1976). The Detroit ordinance, which
was designed to disperse adult theaters throughout
*63 Applying this standard to the facts of this case, the city, was supported by the testimony of urban
the ordinance is patently unconstitutional. Renton planners and real estate experts regarding the
has not shown that locating adult movie theaters in adverse effects of locating several such businesses
proximity to its churches, schools, parks, and in the same neighborhood. Id., at 55, 96 S.Ct., at
residences will necessarily result in undesirable 2445; see also Northend Cinema, Inc. v. Seattle, 90
"secondary effects," or that these problems could Wash.2d 709, 711, 585 P.2d 1153, 1154-1155
not be effectively addressed by less intrusive (1978), cert. denied sub nom. Apple Theatre, Inc. v.
restrictions. Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 L.Ed.2d
1048 (1979) (Seattle zoning ordinance was the
II "culmination of a long period of study and
Even assuming that the ordinance should be treated discussion"). Here, the Renton Council was aware
like a content-neutral time, place, and manner only that some residents had complained about
restriction, I would still fmd it unconstitutional. adult movie theaters, and that other localities had
"[R]estrictions of this kind are valid provided ... adopted special zoning restrictions for such
that they are narrowly tailored to serve a significant establishments. These are not "facts" sufficient to
governmental interest, and that they leave open justify the burdens the ordinance imposed upon
ample alternative channels for communication of constitutionally protected expression.
the information." Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, B
3069, 82 L.Ed.2d 221 (1984); Heffron v. Finally, the ordinance is invalid because it does not
International Society for Krishna Consciousness, provide for reasonable alternative avenues of
Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 2564, 69 communication. The District Court found that the
L.Ed.2d 298 (1981). In applying this standard, the ordinance left 520 acres in Renton available for
Court "fails to subject the alleged interests of the adult theater sites, an area comprising about five
[city] to the degree of scrutiny required to ensure **938 percent of the city. However, the Court of
that expressive activity protected by the First Appeals found that because much of this land was
Amendment remains free of unnecessary already occupied, "[1]imiting adult theater uses to
limitations." Community for Creative Non-Violence, these areas is a substantial restriction on speech."
468 U.S., at 301, 104 S.Ct., at 3073 (MARSHALL, 748 F.2d, at 534. Many "available" sites are also
J., dissenting). The Court "evidently [and wrongly] largely unsuited for use by movie theaters. See
assumes that the balance struck by [Renton] App. 231, 241. Again, these facts serve to
officials is deserving of deference so long as it does distinguish this case from American Mini Theaters,
not appear to be tainted by content discrimination." where there was no indication that the Detroit
Id., at 315, 104 S.Ct., at 3080. Under a proper zoning ordinance seriously limited the locations
application of the relevant standards, the ordinance available for adult businesses. See American Mini
is clearly unconstitutional. Theaters, supra, 427 U.S., at 71, n. 35, 96 S.Ct., at
2453 n. 35 (plurality opinion) ("The situation would
A be quite different if the ordinance had the effect of
... greatly restricting access to ... lawful speech");
The Court finds that the ordinance was designed to see also Basiardanes v. City of Galveston, 682 F.2d
further Renton's substantial interest in "preserv[ing] 1203, 1214 (CA5 1982) (ordinance effectively
the quality of urban life." Ante, at 930. As banned adult theaters *65 by restricting them to "
explained above, the record here is simply 'the most unattractive, inaccessible, and
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Page 15 of 16
106 S.Ct.925 Page 14
89 L.Ed.2d 29,54 USLW 4160, 12 Media L.Rep. 1721
(Cite as: 475 U.S.41,106 S.Ct.925)
inconvenient areas of a city' "); Purple Onion, Inc. Inc., National Association of College Stores, Inc.,
v. Jackson, 511 F.Supp. 1207, 1217 (ND Ga.1981) and th e Freedom to Read Foundation, as Amici
(proposed sites for adult entertainment uses were Curiae,in Support of Appellees(Aug. 15, 1985)
either "unavailable, unusable, or so inaccessible to
the public that...they amount to no locations"). • 1985 WL 669614 (Appellate Brief) Brief of the
American Civil Liberties Union and the American
Despite the evidence in the record, the Court Civil Liberties Union of Washington as. Amici
reasons that the fact "[t]hat respondents must fend Curiae in Support of Appellees(Aug. 15, 1985)
for themselves in the real estate market, on an equal
footing with other prospective purchasers and • 1985 WL 669597 (Appellate Brief) Brief of
lessees, does not give rise to a First Amendment Appellees(Aug. 14, 1985)
violation." Ante, at 932. However, respondents
are not on equal footing with other prospective • 1985 WL 669612 (Appellate Brief) Brief of the
purchasers and lessees, but must conduct business Outdoor Advertising Association of America, Inc.
under severe restrictions not imposed upon other and the American Advertising Federation as Amici
establishments. The Court also argues that the Curiae in Support of Appellees(Jul. 15, 1985)
First Amendment does not compel "the government
to ensure that adult theaters, or any other kinds of • 1985 WL 669611 (Appellate Brief) Brief of the
speech-related businesses for that matter, will be Freedom Council Foundation Amicus Curiae, in
able to obtain sites at bargain prices." Ibid. Support of Appellants(Jul.03, 1985)
However, respondents do not ask Renton to
guarantee low-price sites for their businesses, but • 1985 WL 669595 (Appellate Brief) Brief for
seek only a reasonable opportunity to operate adult Appellants(Jun.28, 1985)
theaters in the city. By denying them this
opportunity, Renton can effectively ban a form of • 1985 WL 669608 (Appellate Brief) Motion to File
protected speech from its borders. The ordinance Brief Amicus Curiae and Brief Amicus Curiae of
"greatly restrict[s] access to ... lawful speech," the National League of Cities, the National
American Mini Theatres, supra, 427 U.S., at 71, n. Association of Counties, the International City
35, 96 S.Ct., at 2453, n. 35 (plurality opinion), and Management Association, the United States
is plainly unconstitutional. Conference of Mayors, the Council of State
Governments , and the American Planning
106 S.Ct. 925, 475 U.S. 41, 89 L.Ed.2d 29, 54 Association in Support of Appellants(Jun.28, 1985)
USLW 4160, 12 Media L.Rep. 1721
• 1985 WL 669609 (Appellate Brief) Brief Amicus
Curiae of Jackson County, Missouri, in Support of
Briefs and Other Related Documents(Back to top) the Petitioners(Jun.28, 1985)
• 1985 WL 669610 (Appellate Brief) Motion for
• 1985 WL 669603 (Appellate Brief) Second Leave to File, and Brief Amicus Curiae of the
Supplemental Brief of Appellees(Nov.06, 1985) National Institute of Municipal Law Officers (Jun.
28, 1985)
• 1985 WL 669601 (Appellate Brief) Supplemental
Brief of Appellees(Oct.30, 1985) • 1985 WL 669605 (Appellate Brief) Brief of Amici
Curiae City of Whittier, California and Other
• 1985 WL 669599 (Appellate Brief) Reply Brief of Joining California Cities.in Support of Appellants'
Appellants(Oct.25, 1985) Jurisdictional Statement(Mar.29, 1985)
• 1985 WL 669613 (Appellate Brief) Brief of • 1985 WL 669607 (Appellate Brief) Motion to File
American Booksellers Association, Inc., Brief Amicus Curiae and Brief Amicus Curiae of
Association of American Publishers, Inc., Council the National League of Cities, the National
for Periodical Distributors Associations, Association of Counties, the International City
• International Periodical Distributors Association, Management Association, the United States
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Page 16 of 16
106 S.Ct.925 Page 15
89 L.Ed.2d 29,54 USLW 4160, 12 Media L.Rep. 1721
(Cite as:475 U.S.41,106 S.Ct.925)
Conference of Mayors, the Council of State
Governments , and the American Planning
Association in Support of a Plenary Hearing and
Reversal of the Decision Below(Mar.29, 1985)
• 1985 WL 669592 (Appellate Brief) Reply Brief
(Mar.28, 1985)
• 1985 WL 669604 (Appellate Brief) Brief of Amici
Curiae Washington and Utah Attorneys General in
Support of Appellants(Mar.28, 1985)
Copr.®West 2004 No Claim to Orig.U.S.Govt.Works
EXHIBIT #3
Ordinance No. 2636
Adopting Studies in Other Cities
Defendant's Answer
O:ILitigntion Binders-Files%Blue Dolphin%PleodingslEXH/BITS.doc
7/27/04
• The UDO requires a grid plan (propagation map) of the service area for
existing and future structures for a period of not less than 5 years. The
submission shall include a map showing the "search ring" that was
required for siting the proposed facility.
While we are in receipt of Ms. Towery's letter regarding the difficulties of
providing such a grid map for the future, this information is still required as
part of the application.
• With respect to the sworn affidavit of needs and alternatives, I have an
overall concern regarding the efforts undertaken and the methods used to
explore and secure alternative locations. In reviewing the application,
there appear to be alternative locations within the search ring that should
be explored more thoroughly. At a minimum, documentation of property
owner contacts should be provided. For example, the use of certified
letters instead of telephone messages for contact with prospective
owners. We need to ensure that Sprint has demonstrated that all possible
avenues have been exhausted within the proposed coverage area. With
respect to the efforts to date, I have the following concerns:
#6 on map: Beautiful Savior Lutheran Church -1007 Krenek Tap Road.
Additional information is necessary to demonstrate that the new Pastor at
the church would not be interested in pursuing lease negotiations with
Sprint. When was the original contact made? What efforts have you
taken to discuss this issue with the new Pastor or other leadership in the
church? Please provide documentation supporting your communication
with the church showing their disinterest in allowing a cell tower be located
on their site.
#7 on map: Raw land South of Dartmouth and West of Krenek Tap
Road.
In the affidavit it is stated that this site is not in the desired coverage area;
however, this site is located in Sprint's search ring. While this may not be
a preferred site it is still an alternative that needs to be explored. Please
provide additional information that the necessary steps have been taken
to notify the property owner and that Sprint has demonstrated that all
possible avenues have been exhausted with this site.
#8 on map: Raw Land North of Dartmouth and West of Krenek Tap
Road.
It has been stated in the affidavit that numerous messages were left for
the property owner. Additional information is necessary to demonstrate
that this property owner would not be interested in pursuing lease
negotiations with Sprint.
#9 on map: Shell convenience store/gas station at the intersection of
Dartmouth and Southwest Parkway.
You have stated in the affidavit that this could be a last resort location. It is
mentioned that 7-R1 single family lots are directly across the street. Your
current proposal is 117 feet away from an occupied single family home.
Please provide additional information supporting that this site would not
be a viable location, given that they do have existing flag poles that can
be replaced with a stealth tower designed as a flag pole. Please explain
design alternatives that were discussed with the property owner.
#10 on map: Planters and Merchants State Bank located on
Southwest Parkway just west of the Dartmouth intersection.
In the affidavit it is stated that there is insufficient space and the site is
unacceptable from a construction stand point. Please provide additional
information as to why the site is unacceptable and that all possible
avenues have been exhausted with this site. Please explain design
alternatives that were discussed with the property owner.
#12 on map: The apartment complex located on Dartmouth directly
behind P&M State Bank & the Shell station owned by Heritage at
Dartmouth.
In the affidavit it is stated that there is insufficient space and the site is
unacceptable from a construction stand point. Please provide additional
information as to why the site is unacceptable and that that all possible
avenues have been exhausted with this site. Please explain design
alternatives and/or attempts to contact the property owner.
#13 on map: The Haven apartment complex located on Dartmouth
immediately across from Teal Street.
In the affidavit it is stated that there is insufficient space and the site is
unacceptable from a construction stand point. Please provide additional
information as to why the site is unacceptable and that all possible
avenues have been exhausted with this site. Please explain design
alternatives and/or attempts to contact the property owner.
#14 on map: The duplex tract known as "Teal Street" located on
Dartmouth just east of the Southwest Parkway intersection.
In the affidavit it is stated that the zoning of this property was R-2 Duplex
Residential. This property is currently undeveloped, Please provide
additional information that the necessary steps have been taken to notify
the property owner and that Sprint has demonstrated that all possible
avenues have been exhausted with this site.
#15 on map: Waterwood Townhomes owned by Jim Stewart currently
under construction on Krenek Tap Road.
In the affidavit it is stated that the zoning of this property was R-1 Single
Family. However, the property was rezoned to R-5 Apartments Medium
Density in 2002. What attempts, if any, were made before or after 2002
when the property was rezoned? What efforts did Sprint undertake to
coordinate the location of a new cell tower site with the proposed
apartment development? This property is similar in size, has the same
zoning classification and is adjacent to the subject property. Please
provide additional information that the necessary steps have been taken
to notify the property owner and that Sprint has demonstrated that all
possible avenues have been exhausted with this site.
#16 on map: Windsor Point Apartments located on the south side of
Southwest Parkway, west of Central Park Lane intersection.
In the affidavit it is stated that there is not any type of buffer: trees or
otherwise to shield the proposed facility from the homes surrounding this
location. Installation of extensive landscaping could be provided as part of
the site plan to help mitigate the negative impacts. A flag pole could fit in
quite well with this existing development. Please provide additional
information that the necessary steps have been taken to notify the
property owner and that Sprint has demonstrated that all possible
avenues have been exhausted with this site. Please explain design
alternatives that were discussed with the property owner.
#17 on map: Eastmark Apartments located on the north side of
Southwest Parkway, at Central Park Lane intersection.
In the affidavit it is stated that there is insufficient space and the site is
unacceptable from a construction stand point. Please provide additional
information that the necessary steps have been taken to notify the
property owner and that Sprint has demonstrated that all possible
avenues have been exhausted with this site. Please explain design
alternatives that were discussed with the property owner.
Subject Property: Dr. Wright's Property on Krenek Tap Road.
In previous discussions, alternatives have been identified on the subject
property, including the entire 6+ acres owned by Dr. Wright. None of
these alternatives have been addressed or explored in your application.
Design alternatives including other methods of stealth technology have
been discussed including alternative locations on the site. Given the large
amount of acreage owned by Dr. Wright, there should be a number of
alternative locations that could lessen the visual impact from Krenek Tap
Road. Please provide additional information concerning alternative
locations on the subject property including other design alternatives.
In an effort to provide you with sufficient feedback on your application, we
performed a cursory review of the site plan. Given the current design and
location, we offer the following comments:
SITE PLAN COMMENTS:
1. Provide a general note that all roof and ground-mounted mechanical
equipment shall be screened from view or isolated so as not to be visible
from any public right-of-way or residential district within 150' of the subject
lot, measured from a point five feet above grade. Such screening shall be
coordinated with the building architecture and scale to maintain a unified
appearance.
2. Provide a general note that 100% coverage of groundcover, decorative
paving, decorative rock, or a perennial grass is required in parking lot
islands, swales and drainage areas, the parking lot setback, rights-of-way,
and adjacent property disturbed during construction._
3. It was discussed with Sprint that there would be proposed landscape
around the proposed equipment area. If the application goes forward in
its current configuration, staff will recommend that the site be heavily
landscaped around the outside of the masonry wall.
4. Streetscape will be required along Krenek Tap.
5. /All plantings must be irrigated.
6. Please note on the landscape plan that an irrigation plan is required to be
reviewed, approved and installed prior to C.O.
7. The two existing Live Oaks cannot not be counted for protected points, as
they are located within the equipment area and cannot be property
protected during construction.
8. Show how ADA requirements will be met with driveway connection to
sidewalk.
9. The mylar of the revised Final Plat and digital file were never submitted for
filing. Site Plan cannot be approved until Plat is filed.
DP•gy.
10. Coordinate electric service requirement with College Station Utilities.
Contact Tony Michalsky at 979-764-3438
11. Provides digital AutoCAD 2000 version of plat and/or site plan. Email to
tmichalsCc�cstx.gov
12. Provide service requirements and load data for project.
13. Developer will be responsible for providing necessary easement for
electric infrastructure as installed if necessary.
I look forward to receiving your response and moving forward with your
conditional use permit application. If you have any questions or need additional
information, please feel free to contact me at (979) 764-3570 or at
nruiz@cstx.gov.
'"'} Message Page 1 of 2
Jennifer Reeves - Re: FW: Proposed Sprint tower on Krenek Tap Road
�kn1..f..••..�iY�f,\ <.. ,4�`.,,,_§&;�:�$s,,.,�, ,fA�/'GH'�.>.Gnro'4i.3k� f'�. x:eH .,:i�.' ,,5. Ydl' .:::' .i,'f.fa. - =k. Af,>rwz�o::
From: Joey Dunn
To: Jim Stewart
Date: 10/5/2004 8:47 PM
Subject: Re: FW: Proposed Sprint tower on Krenek Tap Road
CC: Jennifer Reeves
Mr. Stewart,
Thanks for your note, and for your letter of response regarding the cell tower location. We have recieved your
letter, and you should also receive a call back from Jennifer Reeves, our Staff Planner for the case. Just so you
know also, we are waiting for a response from the cell tower applicant on a number of possible locations, and
items that need to be addressed as part of the application.
Again, thank you for your response, and you should be getting a call from us shortly.
Thank you,
Joey Dunn
Joseph A. Dunn, AICP
Director of Development Services
City of College Station,Texas
P.O. Box 9960
College Station, TX 77842
979.764.3570
>>> "Jim Stewart" <jbstewart6@comcast.net> 10/5/2004 2:48:24 PM >>>
Dear Mr. Dunn
I understand that you are now the Planning & Development Services Director. Yesterday, I sent the
people listed below the note below as well as the attachment. As you will note from the tone of
my letter, I am gravely concerned about the construction of this cell tower at its currently
proposed location. I am interested in finding out how this application for a conditional use permit
is scheduled to proceed regarding hearings and such things as that. Could you put me in touch
with whomever I need to speak to to find out more?
Thanks,
Jim Stewart
Original Message
From: Jim Stewart [mailto:jbstewart6@comcast.net]
Sent: Monday, October 04, 2004 1:47 PM
To: 'rsilvia@cstx.gov'; 'cmo@cstx.gov'; 'gbrown@cstx.gov'; Ikee@cstx.gov'; 'nruiz@cstx.gov';
'bgeorge@cstx.gov'; 'jreeves@cstx.gov'
Cc: Cully Lipsey
Subject: Proposed Sprint tower on Krenek Tap Road
October 4,2004
To: Ron Silvia—Mayor
Tom Brymer-City Manager
Glenn Brown—Asst City Manager,Acting Development Services Director
Jane Kee—City Planner
file://C:\Documents%20and%20Settings\jreeves\Local%20Settings\Temp\GW}00001.HTM 10/6/2004
• Message Page 2 of 2
Natalie Ruiz—Development Manager
Bridgette George—Asst Development Manager
Jennifer Reeves—Staff Planner
CC: Cully Lipsey
I am writing in response to a request for a Conditional Use Permit for the purposes of construction of a cell phone tower at
903 Krenek Tap Road.I am writing on behalf of Waterwood Townhomes,L.P.,the adjacent landowner at 1001 Krenek Tap
Road.Attached hereto is a letter I sent Friday to Mr.Michael Crain of Fossil Creek Land Company,who did the research
for Sprint Communications with regard to the location of the tower. In the letter he notes that when he was doing his
research in August,2003 my property located at 1001 Krenek Tap Road was zoned R-1.However,regardless as to
whatever documentation he was referencing for his research,our property received an R-4 zoning on or about August or
September of 2002,which you should easily be able to verify.
In his letter he states, "The City of College Station Planning Department is requiring that we present them with evidence
of the lack of available alternative sites for this project."In the letter to him,not only do I articulate forcefully why
Waterwood Townhomes,L.P.is so strongly opposed to the current site location,but I do offer him another site location
more acceptable to us.We suggest that Mr.Wright provide space for the Sprint tower closer to the rear of his property and
nearer to the other side of his property away from our common property line.This,it seems to me,not only does less
damage to the future marketablility of Mr.Wright's remaining land,but it also does significantly less damage to the current
marketability of our project.In addition to this suggested site relocation on Mr.Wright's land,we also offer another
alternative in the event that Mr.Wright is not willing to allow for the relocation of the tower on his property.We will, in
fact,make space available on our property,still within the site parameters required by Sprint,but away from the Krenek
Tap Road entrance.This,we are convinced,will do far less damage to the drive-up appeal of our project than if the tower
were to be erected at the currently proposed site.
Suffice it to say,the partners of Waterwood Townhomes,L.P.are adamantly opposed to the current tower location site,and
we will oppose it strenuously. We believe it does significant damage to the ongoing marketability of our project and to
the sales value of the units in our project,and we will pursue our opposition as far as need be to forestall its erection at its
currently proposed location.When we decided to pursue the construction of Waterwood,I do not recall seeing a cell phone
tower such as the one Sprint proposes to build here at any other College Station multi-family project. In fact,we passed on
several other sites because of objectionable elements located on surrounding properties.We felt safe from the possibility
that something like this could happen right next door to us,particularly because College Station typically holds its
developers as well as itself to such a high standard.We believed the City would never allow something like this right next
door to us and right across the street from its future city hall. Then,with the initiation of the Krenek Tap Overlay District,
we proceeded ahead with the utmost confidence that we could build an aesthetically attractive,high-end student housing
project free of the danger of getting undermined by the City and/or the surrounding neighbors. I hope this will continue to
be the City's position.
In the letter to Mr. Crain,we make what we believe is a compelling argument to deny approval for the tower to be erected at
its currently proposed location,and we offer two excellent alternatives. One of those alternatives would be to re-locate the
tower on Mr. Wright's property(which,of course,we have no control over).This would be our preference,as we are not
trying to horn in on Mr.Wright's business opportunity.But barring Mr.Wright's willingness to allow for the relocation of
the tower on his property,we are more than willing to make space available on our property away from the Krenek Tap
Road entrance.Therefore,in that there is now at least one suitable tower site location within the site parameters established
by Sprint,we trust that the City Staff will continue to recommend denial of a conditional use permit for the construction of
the tower at the presently proposed location.
Sincerely,
James B. Stewart
Managing General Partner
Waterwood Townhomes,L.P.
file://C:\Documents%20and%20Settings\jreeves\Local%20Settings\Temp\GW}00001.HTM 10/6/2004
1. "In response to the City's request that Sprint further substantiate its assertion that the
Proposed Site is the only site available to it, I, on behalf of Sprint, have taken the
following actions and received the following responses:
(a) "On September 18, 2004, I sent a letter to the Beautiful Savior Lutheran Church
�C) of College Station inquiring as to its interest in entering into negotiations with
',V 'd Sprint for the location of a telecommunications site on its property. A copy of
09. this letter is available for review. On September 29, 2004, I received a response
\t/ :9 from Rev. Caleb Schoeneck of the Beautiful Savior Lutheran Church wherein he
indicated that the church was not interested in the placement of a
't.677 telecommunications tower on its property. Rev. Schoeneck's letter is likewise
available for review.
(b) "On September 18, 2004, I sent a letter to the City inquiring as to its interest in
entering into negotiations with Sprint for the location of a telecommunications
site on its property. A copy of this letter is available for review. On
September 30, 2004, I received a response from Glenn D. Brown, Assistant City
Manager, wherein he indicated, among other things, that the City was currently
undertaking the development of a City Center Plan and that it was not the
appropriate time for the City to dedicate any of the City Center property for a
telecommunications tower. A copy of this letter is available for review.
(c) "On September 18, 2004, I sent a letter to Dean Ranch Properties LTD. inquiring
as to its interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. To date, we have not received a response
from Dean Ranch Properties LTD. Our letter makes clear that such a failure to
respond will be taken as a lack of interest in a telecommunications tower. A copy
of this letter is available for review.
(d) "On September 18, 2004, I sent a letter to Akber Karim Dosani inquiring as to its
interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. To date, we have not received a response
from Akber Karim Dosani to our inquiry. Our letter makes clear that such a
failure to respond will be taken as a lack of interest in a telecommunications
tower. A copy of this letter is available for review.
(e) "On September 18, 2004, I sent a letter to RD Eastmark Ltd. inquiring as to its
interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. On September 28, 2004, I received a
letter from James P. Rafton, the Manger of the General Partner of RD Eastmark
Ltd., wherein he objected to the location of the telecommunications site on the
RD Eastmark Ltd. property. A copy of this letter is available for review.
(0 "On September 18, 2004, I sent a letter to The Heritage at Dartmouth inquiring as
to its interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. To date, we have not received a response
from The Heritage at Dartmouth to our inquiry. Our letter makes clear that such a
failure to respond will be taken as a lack of interest in a telecommunications
tower. A copy of this letter is available for review.
(g) "On September 18, 2004, I sent a letter to HKR Investments LP inquiring as to its
interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. To date, we have not received a response
from HKR Investments LP to our inquiry. Our letter makes clear that such a
failure to respond will be taken as a lack of interest in a telecommunications
tower. A copy of this letter is available for review.
(h) "On September 18, 2004, I sent a letter to Oak Forest Mobile Home Park Ltd.
inquiring as to its interest in entering into negotiations with Sprint for the location
of a telecommunications site on its property. To date, we have not received a
response from Oak Forest Mobile Home Park Ltd. to our inquiry. Our letter
makes clear that such a failure to respond will be taken as a lack of interest in a
telecommunications tower. A copy of this letter is available for review.
(i) "On September 18, 2004, I sent a letter to Michael and Carol Park inquiring as to
their interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. To date, we have not received a response
from Michael and Carol Park to our inquiry. Our letter makes clear that such a
failure to respond will be taken as a lack of interest in a telecommunications
tower. A copy of this letter is available for review.
(j) "On September 18, 2004, I sent a letter to Planters & Merchants State Bank
inquiring as to its interest in entering into negotiations with Sprint for the location
of a telecommunications site on its property. To date, we have not received a
response from Planters & Merchants State Bank to our inquiry. Our letter makes
clear that such a failure to respond will be taken as a lack of interest in a
telecommunications tower. A copy of this letter is available for review.
(k) "On September 18, 2004, I sent a letter to Southwest Pointe LP inquiring as to its
interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. To date, we have not received a response
from Southwest Pointe LP to our inquiry. Our letter makes clear that such a
failure to respond will be taken as a lack of interest in a telecommunications
tower. A copy of this letter is available for review.
(1) "On September 18, 2004, I sent a letter to TCM Haven LTD inquiring as to its
interest in entering into negotiations with Sprint for the location of a
telecommunications site on its property. To date, we have not received a response
from TCM Haven LTD to our inquiry. Our letter makes clear that such a failure
to respond will be taken as a lack of interest in a telecommunications tower. A
copy of this letter is available for review.
(m) "On September 18, 2004, I sent a letter to Waterwood Town Homes LP inquiring
as to its interest in entering into negotiations with Sprint for the location of a
-2 -
telecommunications site on its property. On October 1, 2004, I received letter
from James B. Stewart, the Managing General Partner of Waterwood Town
Homes LP, wherein he expressed his opposition to the Proposed Site and yet
expressed an interest in making space available towards the rear of the
Waterwood project on the same lease terms and conditions as those proposed at
the Proposed Site. A copy of this letter is available for review. On October 26,
2004, I received a follow-up letter from Mr. Stewart indicating a withdrawal by
Waterwood of any interest in locating a telecommunications tower on its property.
Further, Mr. Stewart stated that if Sprint received permission from the City to
erect its tower on the Proposed Site, they "would like to see it done as a flagpole."
2. We have also filed, in accordance with the City's request, a memo from Arthur Wright to
the City's Planning Department wherein Arthur Wright states unequivocally that he
cannot allow any further movement of the Proposed Site on his property.
FURTHER, Affiant sayeth not.
♦
• 41111
M'c ael Crain
Sworn to and subscribed before me this tt&d day of December, 2004, by Michael
Crain.
Notary Public, In an for the State of T as
My commission expires:
l/-1(o-OS
�.:s SUSAN J.STANLEY
_°`` 'i° NOTARY PUBLIC STATE Of TEXAS
„ % ' COMMISSION EXPIRES:
' NOVEMBER 16,2005
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October 1,2004 ATER ',OO[)
Michael Crain,Market Director
Fossil Creek Land Company
7703 Painton Lane
Spring,TX 77389
Dear Mr.Crain:
I am in receipt of your letter dated September 18,2004,and I am writing in response-both with respect to my position
regarding the currently proposed cell tower location,as well as with respect to the prospects of making an alternative
location available on my property.
Regarding the currently proposed location,Waterwood Townhomes L.P.is strongly opposed to the proposed site of the
Stealth telecommunications tower on our neighbor's property. We have made substantial business investments in our
property,and we have commitments we must honor to our partners and to our bank for continuing our project. In addition,
we have created a project that the City of College Station can be proud of,and we have gone to considerable additional
expense to make it so.For this reason,we bad no substantial objections to the creation of the Krenek Tap overlay district,
because we felt it would help to protect our investment by ensuring that surrounding properties-when developed-would
meet the strict overlay criteria
Much of the success of a project is determined by its"sense of arrival"or"drive-up appeal",and we have gone to
considerable expense to create what we believe is an outstanding sense of arrival.In fact,the entrance to our development
is the centerpiece of our project.Not only were we able to preserve large native oak trees at or near our entrance,but also at
considerable additional expense we made our retention pond an attractive amenity-waterspout and all.Therefore,not only
does the location of an 80 foot tall tower adjacent to our entry streetscape fly in the face of the overlay district intent,but it
damages significantly Waterwood's drive-up appeal and may well do irreparable harm to its prospects for continued
success and adversely impact our sales values.Stealth tower or not,it is going to look out of place,and it will dominate the
streetscape,towering at least 30 feet above our largest native oak trees.
Thus,we are adamant in our opposition to the location of this tower at the proposed site;but we are not opposed to the
tower itself.If Mr.Wright has space toward the back of his property and closer to Mr.Wright's western property line,we
would have no objection.If he is not willing to make such space available,then as an alternative we would be willing to
make space available towards the rear of our project,with lease terms and conditions essentially the same as those proposed
to Mr.Wright.By making this offer,please understand that we are not trying to deprive Mr.Wright of the economic benefit
he would derive from this tower.In fact,we would prefer to have it remain on his property,only in a different location.But
if that does not work for him,then we will make space available. It may decrease our unit yield somewhat,and it's
unsightliness may harm sales values of some of the units,but it would still have a far less negative impact on our project
than if the tower were to be erected at the currently proposed site.
In conclusion,we believe the erection of this tower in the proposed location is most detrimental to us. While we do not
wish to interfere with Mr.Wright's business opportunities,neither do we want his to interfere with ours.And the fact of the
matter is,Waterwood is here.Considerable financial commitment has already been made. And given College Station's
stringent zoning requirements,we felt we had adequate protection-particularly with the approval of the overlay district-
against having our project economically damaged by what might be allowed on an adjacent property. Since,other available
sites exist in the targeted area,such as the one we offer on our property,we believe the City should not deviate from sound
zoning/land planning standards-as well as the more stringent standards in the Krenek Tap overlay district- when options
exist for other sites.
If you would like ' discuss our offer of an alternative site,please feel free to get in touch with me.
'in o',A-..,‘,4410r ,
I ' / p
i 4 f-s :. Stewart
yging General Partner
()y
Managing
O BOX IOB28 COLLEGE STATION, I X 77842-9901 IIPPICF.979-695-7744 CONSTRUCTION-979-ry95-8484 FAX 979-693-3482
_)_;....
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..........._....,._ _
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, , .,, , „ ,. ,, ,, „.
October 26,2004
Michael Crain,Market Director
Fossil Creek Land Company
7703 Painton Lane
Spring,TX 77389
Dear Mr.Crain:
After further discussion with my partners in the Waterwood Townhomes project on Krenek Tap
Road,we have decided to withdraw from consideration the possibility of the Sprint tower being
located on our property.Having to re-work our site plan around the tower along with the loss of
dwelling units we would experience,and having to explain to prospective buyers why we chose to
allow the tower to be erected on our site were factors that impacted our final decision.
We still prefer not to have the tower on Dr.Wright's property in its presently proposed location.
We would prefer to have the tower further back on the property and closer to Dr. Wright's west
property line.
At your suggestion we have toured some of the existing"stealth"tower sites in College Station.
Having done so,by far the most attractive of the"stealth"tower configurations is the flagpole with
the American flag on it over on the A&M campus.The flag does give it some reason for being
there,whereas the other towers are just poles in the air.So if Sprint does go ahead and receive
permission from the City of College Station to erect the tower on Dr.Wright's property,we would
like to see it done as a flagpole.
neer:y, / .,
`/
LAI es,:. te-.
. I.ging General Partner
Waterwood Townhomes,L.P.
P 0 BOX 10028 COLLEGE STATION,TX 77842-99111 OFf'ICE: 979-695-7744 CONST'RUCT'ION: 979 695-8484 FAX 979-693-3382
Sep 28 04 02: 39p EDGEWOOD PROPERTIES 925 299 1528 p. 2
EDGEWOOD PROPERTIES
Michael Crain September 28,2004
Fossil Creek Land Company
7703 Painton Lane
Spring,TX 77389
RE: RD Eastmark,LTD. -2400 Central Park Lane
Dear Mr. Crain,
This letter shall serve as our most strenuous objection to the installation of a proposed
wireless communications facility on a parcel of land located at 903 Krenek Tap Road,or
on any area of land on or adjacent to our property. This is a residential area and such an
obtrusive structure is not appropriate in this area and would severely impair the value of
not only our property but also all properties in the immediate vicinity. This would be an
eyesore and blight on the entire area.
Sincerely,
>>9/
James P. Rafton
Manager,JRJD Texas,LLC
General Partner,RD Eastmark,LTD.
1411 MT fTARl,0 RI,V1)..SUITE"5", AFAYETTE,CA. 94549
(925)299-1666,FAX(95)299-1528
Sep 28 04 02: 38p EDGEWOOD PROPERTIES 925 299 1528 p. 1
EDGEWOOI) FR0PER I S
This fax transmission contains privileged and coulidcntial4iufor1natiou intended only ii►r
the use of the addressee(s)named below. If you are not the intended recipient vl'this lax
or the employee or agent responsible for delivering it to the intended reelpicnl, you are
hereby notified that any dissemination or copying of this fax is strictly prohibited. If you
have received this fax in error please immediately notify us by telephone and return the
original lax to us at the address vet Ii>rll► below by United States Mail.
PLEASE DELIVER FOLLOWING lAGE(S) '10:
Name: Fax II:
'\C',\(>,c ki\ C,C6U( e— C 351\ c `4( \,.G►(q` (U053'7 " 2
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Total number of pages including this cover page: Date:_ (21.16H —_
IF YOU DO NOT RECEIVE ALL PAGES PLEASE CALL(925)299-1666 ASAI'
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Ud
TheCi of
College Station, Texas
Embracing the Past, Exploring the Future.
Office of the City Manager
P.O.Box 9960 • 1101 Texas Avenue • College Station,TX 77842 • (979)764-3510 • FAX:(979)764-6377
www.ci.college-station.tx.us
September 30, 2004
Mr. Michael Crain
Market Director
7703 Painton Lane
Spring, Texas 77389
Dear Mr. Crain:
This letter is in response to your letter of September 18th. In reviewing the map you
included in your letter, it appears that a very small area of the northern most portion of
what we refer to as our City Center property on Krenek Tap Road, is within your search
area for a cell tower site.
At the September 23 Council Meeting the City Council authorized a contract with
Bottino Grund Architects. The purpose of the contract is for Bottino Grund to develop a
conceptual site plan, develop recommendations for architectural character, and prepare a
project schedule among other items. Due to our status in regard to developing a City
Center plan, this is not the appropriate time for the City to commit any of the City Center
property for a cell tower site. However, once the plans are complete we could be in a
position to discuss a stealth tower location in this area that would be mutually beneficial
to the City and the provider.
Please let me know if you have any questions. Also for future reference, our mailing
address is PO Box 9960, College Station,Texas 77842.
Sincerely,
Glenn D. Brown
Assistant City Manager
cc: Joey Dunn, Director of Development Services
Home of Texas A&M University
Home of the George Bush Presidential Library and Museum
10/05/2004 13:35 9797643496 COCS DEVELOPMENT SEP PAGE 01/01
/iflfl41'c 1.:Dp ; mac, Gr.-•n UR,i)5 w.-7.15%
+ Sunday School: 9:15 a.m.,
`. F1 Sunday Worship: 10:15 a.m,
Praise be co Cod liar Sot/kir—Psalm 68:19
Beautiful Savior Lutheran Church
Wisconsin Evangelical Lutheran Synod (WELS)
Sponsor for A&M Lutheran Colle.gtant
1.007 Krenek Tap Rd.,College Station,TX 77840
Caleb Schoeneck,Pastor
Phone (9'19) 693-4514 E-mail:schoenecks@hotrnail.com
September 29, 2004
Dear Michael Crain
I am writing to you on behalf of the Beautiful Savior Church.Council—a group of individuals appointed to
provide leadership and make decisions on behalf of the church members and for the church's best interests.
We received your letter an Monday, September 27,2004, I have spoken with the Church Council members
individually since we did not have enough time to formally meet and discuss the issue before a response was due.
• I would like to confirm that Beautiful Savior was approached in early 2003 regarding the construction of an 80-
foot telecommunications tower on the church property. You also mentioned in your letter that the church
indicated a lack of interest in the tower project because they were in the process of changing pastors.
Since that time.Beautiful Savior has received their new pastor. However, the church's lack of interest in the
tower project was not due to a temporary pastoral vacancy.
The Church Council felt that an 80-foot tower or"stealth"flagpole would be unsightly given the requirements
that were presented to the church when initial contact was made regarding the project. One Councilman said,
"Ideally, it would probably be nice not to have the 80-foot tower anywhere around us." He said this because the
tower project, as it was presented to the church in early 2003,was aesthetically undesirable for the church.
Another Councilman expressed a lack of interest in the tower,project based on the tower's location that was
under consideration on the church property. "I don't think having a tower located there would be prudent."
The Beautiful Savior Church Council denied the construction of the tower on the church property for the
reasons stated above. Please feel free to contact Beautiful Savior with any further inquiries you might have.
We are forgiven by Jesus,
•
Rev.Caleb Schoeneck
fossii. CREEK
6 .
LAND COMPANY c
h
7703 Panton Lane i��
Spring, t 77389 Primary:281.536-5300
FAX:866-528-6479
kt
\O
MEMO
TO: Jennifer Reeves City of College Station
CC:
FROM: Michael Crain fossil Creek Land Company
DATE: January 19, 2005
RE: Proposed Sprint Wireless Telecommunications Facility at
903 Krenek Tap Road
Sprint Site designation: H059XC439A(Wright—College Station)
Attached please find the following for the above referenced site location.
• Letters and exhibits sent to property owners noted in memo dated December 14, 2004 received
from Joey Dunn
• Responses received from property owners relating to letters sent.
There are other items still pending relating to the above referenced memo that will come at a later date.
It is our goal to have everything to you in time for the Jan 31St filing deadline and to be on the agenda
for the March 3rd Planning and Zoning meeting and the March 24 City Council meeting
Thank you for your time on this.
Sunday School: 9:15 a.m.
Sunday Worship: 10:15 a.m.
Praise be to God our Savior–Psalm 68:19
...........T.
Beautiful Savior Lutheran Church
Wisconsin Evangelical Lutheran Synod (WELS)
Sponsor for A&M Lutheran Collegians
1007 Krenek Tap Rd.,College Station,TX 77840
Caleb Schoeneck, Pastor
Phone (979) 693-4514 E-mail: schoenecks@hotmail.com
September 29, 2004 .
Dear Michael Crain .
I am writing to you on behalf of the Beautiful Savior Church Council—a group of individuals appointed to
provide leadership and make decisions on behalf of the church members and for the church's best interests.
We received your letter on Monday, September 27, 2004. I have spoken with the Church Council members
individually since we did not have enough time to formally meet and discuss the issue before a response was due.
. I would like to confirm that Beautiful Savior was approached in early 2003 regarding the construction of an 80-
foot telecommunications tower on the church property. You also mentioned in your letter that the church
indicated a lack of interest in the tower project because they were in the process of changing pastors.
Since that time, Beautiful Savior has received their new pastor. However, the church's lack of interest in the
tower project was not due to a temporary pastoral vacancy.
The Church Council felt that an 80-foot tower or "stealth"flagpole would be unsightly given the requirements
that were presented to the church when initial contact was made regarding the project. One Councilman said,
"Ideally, it would probably be nice not to have the 80-foot tower anywhere around us." He said this because the
tower project, as it was presented to the church in early 2003, was aesthetically undesirable for the church.
Another Councilman expressed a lack of interest in the tower,project based on the tower's location that was
under consideration on the church property. "I don't think having a tower located there would be prudent."
The Beautiful Savior Church Council denied the construction of the tower on the church property for the
reasons stated above. Please feel free to contact Beautiful Savior with any further inquiries you might have.
We are forgiven by Jesus,
. A•hediwr'' <-1
Rev. Caleb Schoeneck
COSS I I CRK
LAND COMPANY 7703 Painton Lane Primary 832-928-0160
Spring,TX 77389 FAX: 281-537-7279
September 18, 2004
Beautiful Savior Lutheran Church of College Station Via: CM #7 004 1350 0005 49t6 9163
1007 Krenek Tap Road
College Station, TX 77840
Dear Sirs,
This letter is being sent in accordance with instructions from the City of College Station Planning Department in
connection with the application for a Conditional Use Permit relating to property located at 903 Krenek Tap Road.
The proposed Conditional Use Permit relates to the construction and use of a wireless communications thcility on a
tract of land located in the general vicinity of the property located at 1007 Krenek Tap Road.. ,sdhich is owned by
your organization.
The proposed wireless communications facility consists of leasing a 30'x 50' area (1,500 sq ft) upon the above-
mentioned property for the construction of a "Stealth" telecommunications tower (approximately 80 ft in height)
along with the corresponding facility to be place within the leased area.
In early 2003 a colleague of mine (Brandon with SBA Network Services) made contact with the church relating to
the locating of the above described facility on church property. At that time he was told that the church was in the
process of changing Pastors and that the church would not be interested in this proposal.
The City of College Station Planning Department is requiring that we present them with evidence of the lack of
available alternative sites for this project. We therefore hereby request that your organization prepare and forward
a letter to us confirming this and explaining any other reasons for your denial of this project on your organizations
property if indeed this is your stance,
The City of College Station has a deadline for the submittal of these letters as it relates to upcoming Planning &
Zoning and City Council meeting filing deadlines, and as such we request a response from your organization by
Monday, October 4th, 2004. Your response, or lack thereof, will be presented to the City of College Station in a
public thrum.
Please send all replies to the following address:
Fossil Creek Land Company
7703 Painton Lane
Spring, TX 77389
Respectful ---_ti
.•
Michae C :in
Market Director
Fossil Creek Land Company.
09/23/2004 13:48 764-3049 P & M STATE BANK CS PAGE 02/02
, SEP.23,2004 11:18RM P&M BANK 979 279 5365 N0.028 P.2
FOSSIL CREEK
SAND COMPANY a�►: .�►�►
j . sem,rxrr
FAX 281437-7279
September 15,2004
Planters&Merchants State Bank Via:CM#7004 MO 0005 016 6002122 West dd'St.
Hearne,TQC 77859
Dear Sirs,
This letter is being sent in accordance with instructions from the City of College Motion Planning Dement in
connection with the application for a Conditional Use Permit relating to property located at 903 Kreeek Tap Road.
The proposed Conditional Use Permit relates to the coasfru do and use of a wireless oCraintaaioations facility an a
tract of land located in the general vicinity of the properly located at 4)_Q__ usgalkaejregx,which is owned by
your organisation,
The proposed wireless oornmuni a Ions facility consists of leasing a 30'x 50' area(1.500 sq ft)upon the above-
mentioned property for the duction of a"Stealth"telecommunications tower(approximately 50 ft in height)
along with the corresponding facility to be place within the leased area.
After a review of your property through physical obset vatieu and with.plat maps it was determined that there is not
sufficient space to accommodate such a facility.
The City of College Station Planning Department is requiring that we present them with evidence of the lack of
available alternative sites for this project. We therefore hereby request that your organization pyo and forward
a letter to At coarndita this end explaining any other reasons for your denial of this project on your organizations
proper -if indeed this is your stance.
The City of College Station.has a deadline for the submittal of these letters as it relates to upcoming Planning&
Zoning and City Council meeting Filing deadlines, and as such we request a response from your organization by
Monday,October 4a,2004. Your response,or lack thereof;will be presented to the City of College Station in a
public faramx.
Please send all replies to the following address:
Fossil Creek Land Company
7703 Palnton Lane
Spring,TX 77359
Respectfu ow
/ F.
ichacl :'n
Market Director
Fossil Creek Land Company
Message Page 1 of 2
Jennifer Reeves -Proposed Sprint tower on Krenek Tap Road
h:•8,^s'
4.1VMMVAVV0vVirArt't4f3.?r<„vz•VV,V v",MTi" VVVOV 121:.. t ONOMOMMV,....3a....'."... .::i.•'... :L �':WORVV�,
From: "Jim Stewart" <jbstewart6@comcast.net>
To: <rsilvia@cstx.gov>, <cmo@cstx.gov>, <gbrown@cstx.gov>, <jkee@cstx.gov>,
<nruiz@estx.gov>, <bgeorge@cstx.gov>, <jreeves@cstx.gov>
Date: 10/4/2004 1:47 PM
Subject: Proposed Sprint tower on Krenek Tap Road
CC: "Cully Lipsey" <Cully@hle.com>
October 4,2004
To: Ron Silvia—Mayor
Tom Brymer-City Manager
Glenn Brown—Asst City Manager,Acting Development Services Director
Jane Kee—City Planner
Natalie Ruiz—Development Manager
Bridgette George—Asst Development Manager
Jennifer Reeves—Staff Planner
CC: Cully Lipsey
I am writing in response to a request for a Conditional Use Permit for the purposes of construction of a cell phone tower at
903 Krenek Tap Road.I am writing on behalf of Waterwood Townhomes,L.P.,the adjacent landowner at 1001 Krenek Tap
Road.Attached hereto is a letter I sent Friday to Mr.Michael Crain of Fossil Creek Land Company,who did the research for
Sprint Communications with regard to the location of the tower.In the letter he notes that when he was doing his research in
August,2003 my property located at 1001 Krenek Tap Road was zoned R-1.However,regardless as to whatever
documentation he was referencing for his research,our property received an R-4 zoning on or about August or September of
2002,which you should easily be able to verify.
In his letter he states, "The City of College Station Planning Department is requiring that we present them with evidence of
the lack of available alternative sites for this project."In the letter to him,not only do I articulate forcefully why
Waterwood Townhomes,L.P. is so strongly opposed to the current site location,but I do offer him another site location more
acceptable to us.We suggest that Mr.Wright provide space for the Sprint tower closer to the rear of his property and nearer
to the other side of his property away from our common property line.This,it seems to me,not only does less damage to the
future marketablility of Mr.Wright's remaining land,but it also does significantly less damage to the current marketability of
our project.In addition to this suggested site relocation on Mr.Wright's land,we also offer another alternative in the event
that Mr. Wright is not willing to allow for the relocation of the tower on his property.We will,in fact,make space available
on our property,still within the site parameters required by Sprint,but away from the Krenek Tap Road entrance.This,we
are convinced,will do far less damage to the drive-up appeal of our project than if the tower were to be erected at the
currently proposed site.
Suffice it to say,the partners of Waterwood Townhomes,L.P. are adamantly opposed to the current tower location site,and
we will oppose it strenuously.We believe it does significant damage to the ongoing marketability of our project and to
the sales value of the units in our project,and we will pursue our opposition as far as need be to forestall its erection at its
currently proposed location.When we decided to pursue the construction of Waterwood,I do not recall seeing a cell phone
tower such as the one Sprint proposes to build here at any other College Station multi-family project. In fact,we passed on
several other sites because of objectionable elements located on surrounding properties.We felt safe from the possibility that
something like this could happen right next door to us,particularly because College Station typically holds its developers as
well as itself to such a high standard. We believed the City would never allow something like this right next door to us and
right across the street from its future city hall.Then,with the initiation of the Krenek Tap Overlay District,we proceeded
ahead with the utmost confidence that we could build an aesthetically attractive,high-end student housing project free of the
danger of getting undermined by the City and/or the surrounding neighbors.I hope this will continue to be the City's
position.
In the letter to Mr. Crain,we make what we believe is a compelling argument to deny approval for the tower to be erected at
its currently proposed location,and we offer two excellent alternatives.One of those alternatives would be to re-locate the
tower on Mr.Wright's property(which,of course,we have no control over).This would be our preference,as we are not
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Message Page 2 of 2
trying to horn in on Mr.Wright's business opportunity.But barring Mr.Wright's willingness to allow for the relocation of
the tower on his property,we are more than willing to make space available on our property away from the Krenek Tap Road
entrance.Therefore,in that there is now at least one suitable tower site location within the site parameters established by
Sprint,we trust that the City Staff will continue to recommend denial of a conditional use permit for the construction of the
tower at the presently proposed location.
Sincerely,
James B. Stewart
Managing General Partner
Waterwood Townhomes,L.P.
file://C:\Documents%20and%20Settings\jreeves\Local%20Settings\Temp\GW}00001.HTM 10/5/2004
CiTheCi of
College Station Texas
Embracing the Past,Exploring the Future.
Office of the City Manager
P.O.Box 9960 • 1101 Texas Avenue • College Station,TX 77842 • (979)764-3510 • FAX:(979)764-6377
www.ci.college-station.tx.us
September 30, 2004
Mr. Michael Crain
Market Director
7703 Painton Lane
Spring, Texas 77389
Dear Mr. Crain:
This letter is in response to your letter of September 18th. In reviewing the map you
included in your letter, it appears that a very small area of the northern most portion of
what we refer to as our City Center property on Krenek Tap Road, is within your search
area for a cell tower site.
At the September 23 Council Meeting the City Council authorized a contract with
Bottino Grund Architects. The purpose of the contract is for Bottino Grund to develop a
conceptual site plan, develop recommendations for architectural character, and prepare a
project schedule among other items. Due to our status in regard to developing a City
Center plan, this is not the appropriate time for the City to commit any of the City Center
property for a cell tower site. However, once the plans are complete we could be in a
position to discuss a stealth tower location in this area that would be mutually beneficial
to the City and the provider.
Please let me know if you have any questions. Also for future reference, our mailing
address is PO Box 9960, College Station, Texas 77842.
Sincerely,
'1/49L—Q)24/\"-"N
Glenn D. Brown
Assistant City Manager
cc: Joey Dunn, Director of Development Services
Home of Texas A&M University
Home of the George Bush Presidential Library and Museum
Message Page 2 of 3
Sent: Monday, October 04, 2004 1:47 PM
To: 'rsilvia@cstx.gov'; 'cmo@cstx.gov'; 'gbrown@cstx.gov'; Ikee@cstx.gov'; 'nruiz@cstx.gov';
'bgeorge@cstx.gov'; 'jreeves@cstx.gov'
Cc: Cully Lipsey
Subject: Proposed Sprint tower on Krenek Tap Road
October 4,2004
To: Ron Silvia—Mayor
Tom Brymer-City Manager
Glenn Brown—Asst City Manager,Acting Development Services Director
Jane Kee—City Planner
Natalie Ruiz—Development Manager
Bridgette George—Asst Development Manager
Jennifer Reeves—Staff Planner
CC: Cully Lipsey
I am writing in response to a request for a Conditional Use Permit for the purposes of construction of a cell phone
tower at 903 Krenek Tap Road. I am writing on behalf of Waterwood Townhomes,L.P.,the adjacent landowner at
1001 Krenek Tap Road.Attached hereto is a letter I sent Friday to Mr.Michael Crain of Fossil Creek Land
Company,who did the research for Sprint Communications with regard to the location of the tower. In the letter he
notes that when he was doing his research in August,2003 my property located at 1001 Krenek Tap Road was
zoned R-1.However,regardless as to whatever documentation he was referencing for his research,our property
received an R-4 zoning on or about August or September of 2002,which you should easily be able to verify.
In his letter he states, "The City of College Station Planning Department is requiring that we present them with
evidence of the lack of available alternative sites for this project."In the letter to him,not only do I articulate
forcefully why Waterwood Townhomes,L.P. is so strongly opposed to the current site location,but I do offer him
another site location more acceptable to us.We suggest that Mr.Wright provide space for the Sprint tower closer to
the rear of his property and nearer to the other side of his property away from our common property line. This,it
seems to me,not only does less damage to the future marketablility of Mr.Wright's remaining land,but it also does
significantly less damage to the current marketability of our project.In addition to this suggested site relocation on
Mr. Wright's land,we also offer another alternative in the event that Mr.Wright is not willing to allow for the
relocation of the tower on his property.We will,in fact,make space available on our property,still within the site
parameters required by Sprint,but away from the Krenek Tap Road entrance.This,we are convinced,will do far
less damage to the drive-up appeal of our project than if the tower were to be erected at the currently proposed site.
Suffice it to say,the partners of Waterwood Townhomes,L.P. are adamantly opposed to the current tower location
site,and we will oppose it strenuously.We believe it does significant damage to the ongoing marketability of our
project and to the sales value of the units in our project,and we will pursue our opposition as far as need be to
forestall its erection at its currently proposed location. When we decided to pursue the construction of Waterwood,I
do not recall seeing a cell phone tower such as the one Sprint proposes to build here at any other College Station
multi-family project. In fact,we passed on several other sites because of objectionable elements located on
surrounding properties.We felt safe from the possibility that something like this could happen right next door to us,
particularly because College Station typically holds its developers as well as itself to such a high standard. We
believed the City would never allow something like this right next door to us and right across the street from its
future city hall. Then,with the initiation of the Krenek Tap Overlay District,we proceeded ahead with the utmost
confidence that we could build an aesthetically attractive,high-end student housing project free of the danger of
getting undermined by the City and/or the surrounding neighbors.I hope this will continue to be the City's position.
In the letter to Mr. Crain,we make what we believe is a compelling argument to deny approval for the tower to be
erected at its currently proposed location,and we offer two excellent alternatives. One of those alternatives would be
to re-locate the tower on Mr.Wright's property(which,of course,we have no control over). This would be our
preference,as we are not trying to horn in on Mr.Wright's business opportunity.But barring Mr.Wright's
willingness to allow for the relocation of the tower on his property,we are more than willing to make space
available on our property away from the Krenek Tap Road entrance.Therefore,in that there is now at least one
suitable tower site location within the site parameters established by Sprint,we trust that the City Staff will continue
to recommend denial of a conditional use permit for the construction of the tower at the presently proposed location.
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Message Page 3 of 3
Sincerely,
James B. Stewart
Managing General Partner
Waterwood Townhomes,L.P.
College Station. Heart of the Research Valley.
file://C:\Documents%20and%20Settings\jreeves\Local%20Settings\Temp\GW}00002.HTM 10/6/2004
Sep 10 04 03: 17p Mel Wood 979-764-9583 p• 1
A - 5k (0. - ( )g
lAWRIGHT PROPERTIES
Rentals: douses, Duplexes, Windsor Square Apts.
OFFICE: 1008 HOLT
COLLEGE STATION, TX 77840
(979)693-1448
TO: Planning Department City of College Station
FROM: Arthur Wright
DATE: August 6, 2004
RE: Statement relating to the proposed Sprint Wireless Telecommunications
Facility at 903 Krenek Tap Road
With regard to the location of the proposed Sprint cell tower on my Krenek Tap Road property:
An access road is required to service the proposed tower and I simply cannot afford the risk of
jeopardizing the future development potential of a tract of land worth several hundred thousand
dollars. I cannot allow an access road to be in the interior portion of the tract. The road must be
as short as possible and located just south of the drainage easement and on the east edge of the
property. As an accommodation to the City we have already moved the site almost 100' further
away from Krenek Tap Road. This equates to an additional 3000 square feet of real estate tied
up with an easement.
It is the professional opinion of some local developers that the marginal cost of any other
location would reduce the value of the property more the marginal benefits of the Sprint lease
and therefore make the Sprint lease unprofitable to me.
Sincerely,`'
e .4„4 ' 4) Z,2j
Arthur Wright
Jennifer Reeves- Re: Wright College Station Cell Tower on Krenek Tap Road Page 1
From: Jennifer Reeves
To: Joey Dunn
Date: 10/13/2004 9:52:19 AM
Subject: Re: Wright College Station Cell Tower on Krenek Tap Road
Joey- I just wanted to let you know that I called Michael Crain this morning and left a detailed message
for him. I wanted to make sure there were no problems or issues that we need to know or help out with
since we did not receive there submittal this past Monday. I told him to be sure and give us a call if he
needed anything.
Thanks,
Reeves
Jennifer Reeves
Staff Planner
City of College Station
jreeves@cstx.gov
(979)764-3570
(979) 764-3496 FAX
Message Page 1 of 3
Jennifer Reeves - RE: FW: Proposed Sprint tower on Krenek Tap Road
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From: "Jim Stewart” <jbstewart6@comcast.net>
To: "'Joey Dunn” <Jdunn@cstx.gov>
Date: 10/5/2004 10:42 PM
Subject: RE: FW: Proposed Sprint tower on Krenek Tap Road
Thanks for responding, Mr. Dunn. I do hope something else can be worked out other than the proposed location
on Dr. Wright's property. If I can be helpful in any way, please let me know.
Sincerely,
Jim Stewart
Original Message
From: Joey Dunn [mailto:Jdunn@cstx.gov]
Sent: Tuesday, October 05, 2004 8:48 PM
To: jbstewart6@comcast.net
Cc: Jennifer Reeves
Subject: Re: FW: Proposed Sprint tower on Krenek Tap Road
Mr. Stewart,
Thanks for your note, and for your letter of response regarding the cell tower location. We have recieved
your letter, and you should also receive a call back from Jennifer Reeves, our Staff Planner for the case.
Just so you know also, we are waiting for a response from the cell tower applicant on a number of
possible locations, and items that need to be addressed as part of the application.
Again, thank you for your response, and you should be getting a call from us shortly.
Thank you,
Joey Dunn
Joseph A. Dunn, AICP
Director of Development Services
City of College Station,Texas
P.O. Box 9960
College Station, TX 77842
979.764.3570
>>> "Jim Stewart” <jbstewart6@comcast.net> 10/5/2004 2:48:24 PM >>>
Dear Mr. Dunn
I understand that you are now the Planning & Development Services Director. Yesterday, I
sent the people listed below the note below as well as the attachment. As you will note from
the tone of my letter, I am gravely concerned about the construction of this cell tower at its
currently proposed location. I am interested in finding out how this application for a
conditional use permit is scheduled to proceed regarding hearings and such things as that.
Could you put me in touch with whomever I need to speak to to find out more?
Thanks,
Jim Stewart
Original Message
From: Jim Stewart [mailto:jbstewart6@comcast.net]
file://C:\Documents%20and%20Settings\jreeves\Local%20Settings\Temp\GW}00002.HTM 10/6/2004
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RACEWELL
ATTERSONLL.P ��'�
ATTORNEYS AT LAW RECEIVED
LEGAL DEPARTMENT
FES 1 8
205 Brock Bailey
Partner
CITY OF 500 N.Akard Street,Suite 4000
COLLEGE STATION Dallas,Texas 75201-3387
Office:214.758.1076 800.887.1993
February 17, 2005 Fax:214.758.8376
brock.bailey@bracepatt.com
Via Federal Express
Mr. Harvey Cargill, Jr.
City Attorney
City of College Station Legal Dept.
1101 S. Texas Avenue
College Station, Texas 77840
Re: SprintCom, Inc. ("Sprint") Wright Cell Tower, 903 Krenek Tap Road,
College Station, Texas
Dear Harvey:
Enclosed please find an inventory of Sprint sites within Bryan/College Station and its ETJ.
DATA FURNISHED IN THIS DOCUMENT IS PROPRIETARY AND CONFIDENTIAL
AND SHALL NOT BE DUPLICATED, USED, OR DISPLACED IN WHOLE OR IN
PART FOR ANY PURPOSE OTHER THAN TO EVALUATE THE DOCUMENT.
Please contact me with any questions or comments.
Very truly yours,
Bracewel & Patte on, L.L.P.
/0„/) 7 / ,,),,'
K. Brock Bailey
KBB/jmh /
Enclosure
cc: Ms. Pat Towery
SprintCom, Inc.
DALLAS 1240212.1
Texas Washington,D.C. London Almaty
Jennifer Reeves- Cell Tower 903 Krenek Tap CUP.DOC Page 11
From: Roxanne Nemcik
To: Reeves, Jennifer
Date: 3/10/2005 9:31:16 AM
Subject: Cell Tower 903 Krenek Tap CUP.DOC
Jennifer,
I made a few changes. Note that the P&Z is only recommendatory and the Council is the final decision
maker on all zoning matters. Also, please be sure that you include the Jan. 31 letter and attachments
from Bracewell Patters with the packet. The Commission should have all of the information required by
the ordinance and the application in its packet.
CC: Harvey Cargill; Joey Dunn