Telecommunication infrastructure builder Cloud 1 Services, LLC filed a complaint on Thursday in the Southern District of Iowa against Madison County, Iowa, and its Board of Adjustment for denying its applications to construct cell towers within the county.
Cloud 1 Services noted that telecommunications providers employ entities, such as Cloud 1 “to develop, construct and manage their necessary telecommunications infrastructure, including, among other things, communications towers.” The plaintiff further noted that Section 151 of the Telecommunications Act of 1996 creates a national policy “to make available … a rapid, efficient, nation-wide, and world-wide wire and radio communication service.”
In order to meet these goals, Cloud 1 said it works with federally licensed communication carriers to develop wireless networks by creating and operating “a network of digital ‘cell sites’ each of which consists of antennas and related electronic communications equipment designed to send and receive radio communications signals.” In order to allow wireless communications, cell sites must overlap in a specific honeycomb grid pattern in an area to provide service to consumers in that area.
Cloud 1 claimed that in May it “submitted an application to the County for a Special Use Permit (the ‘Macksburg Application’) to install a 300-foot communications tower within a 100(’) x 100(’) lease area (the ‘Macksburg Tower’) with associated ground equipment on the property located in the County … One purpose of the Macksburg Tower was to support AT&T wireless voice and data communications services including its FirstNet emergency communications network.” The Macksburg property is zoned as agricultural land; Cloud 1 said it chose the property because it is within the desired geographic area and the owner was willing to lease the area. Additionally, Cloud 1 also applied with the county for a “Special Use Permit” for Winterset Tower, which is also zoned agricultural.
The plaintiff stated that according to the county’s practice and procedure “special use” and “conditional use” are the same thing. Conditional uses, like a zoning or use permit issue, would fall under the Board’s jurisdiction. Additionally, the county also has building requirements of under 35 feet or 2.5 stories except with exceptions for conditional uses, which are also approved by the board. Radio and television towers are specified in the ordinance as options for altered height limitations.
The complaint recounted the procedural background of its applications. In July, the county held a public Zoning Commission hearing, after which the Zoning Commission “voted to deny both the Macksburg and Winterset Applications.” This was not final, merely a recommendation to the Board. In August, the Board of Adjustment held a public hearing; the Board had previously reviewed the applications and determined that they are “consistent with the Madison County Comprehensive Plan” and no effects were identified that “would result in any detrimental impact on adjoining or neighboring properties,” nor would it affect property value. As a result, the staff recommended approving the applications. At the end of the hearing, however, the Board unanimously voted to deny the applications. Cloud 1 averred that the Board does not “offer any reason supported by substantial evidence for the denial” of its applications.
As a result, Cloud 1 proffered that the defendants have violated the Telecommunications Act of 1996 specifically citing claims for relief for substantial evidence, prohibition of personal wireless services, in addition to a certiorari petition for violation of Iowa Cell Siting Act for the aforementioned conduct.
The plaintiff has requested expedited review of this action. Cloud 1 Services has also sought declaratory judgment about the defendants’ violations, an injunction, an award for costs, and other relief. Cloud 1 Services is represented by Husch Blackwell LLP.
