Full opinion text
MEMORANDUM AND ORDER DAVID J. WAXSE, United States Magistrate Judge. I. INTRODUCTION This is an action for declaratory, injunc-tive, and mandamus relief pursuant to the Federal Telecommunications Act of 1996 (the “TCA”). More specifically, T-Mobile alleges that the Defendant’s denial of Plaintiffs application for Special Use Permit to construct a wireless telecommunications facility violates the TCA. Before the Court are cross-motions for summary judgment filed by Plaintiff T-Mobile Central, LLC (“T-Mobile”) (doc. 22) and Defendant Unified Government of Wyandotte County/Kansas City, Kansas (“Unified Government”) (doc. 28). For the reasons set forth below, the Court will grant T-Mobile’s Motion for Summary Judgment and deny the Unified Government’s Motion for Summary Judgment. II. SYNOPSIS OF MEMORANDUM AND ORDER The issues presented in this lawsuit are: (1) whether the Unified Government’s denial of T-Mobile’s application to construct a wireless communication tower was supported by substantial evidence in the written record as required by the TCA; and (2) whether the denial had the effect of prohibiting the provision of personal wireless services in violation of the TCA. Although, at first glance, the issues presented above seem narrow and straightforward, there are a considerable number of uncontroverted facts in this case and, on several issues of law, no clear precedent in the Tenth Circuit In light of these circumstances, the Court finds it helpful to begin this opinion with a brief synopsis. After setting forth the legal standard for summary judgment (Section III) and the uncontroverted facts (Section IV), the Court will begin its analysis (Section V) by discussing the first issue raised in this lawsuit: whether denial of T-Mobile’s application is supported by substantial evidence (Section V(A)). Judicial review under the substantial evidence standard, even at the summary judgment stage, is quite narrow and highly deferential to the local decision-making entity. The court is limited to reviewing only the administrative record to see if it contains substantial evidence to support the local board’s decision. To that end, the Court will discuss the appropriate “substantial evidence” legal standard (Section V(A)(1)) and then will review the local zoning ordinances relied upon by the Unified Government in denying the application (Section V(A)(2)). Applying the facts to the law, the Court will then go through each of the Unified Government’s reasons for denying T-Mobile’s application in order to determine whether each is supported by substantial evidence (Section V(A)(3)). The Court will continue its analysis in Section V by discussing the second issue raised in this lawsuit: whether denial of T-Mobile’s Application had the effect of prohibiting the provision of personal wireless services in violation of the TCA (Section V(B)). Unlike a substantial evidence claim, the parties readily acknowledge that an effective prohibition claim is reviewed de novo and may be based on newly proffered evidence. To that end, the Court first will discuss the appropriate legal standard of review (Section V(B)(l)(a)) and then determine the meaning of the terms “prohibition” and “service gap” as used in the TCA (Section V(B)(l)(b)). Because review is de novo, the Court next will set forth the evidence presented by each of the parties (Section V(B)(2)). Finally, the Court will apply the facts to the law to determine whether denial of T-Mobile’s Application had the effect of prohibiting the provision of personal wireless services in violation of the TCA (Section V(B)(2)). III. SUMMARY JUDGMENT STANDARD Summary judgment is appropriate if the moving party demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to a judgment as a matter of law.” In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.” An issue of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. In attempting to meet that standard, a mov-ant that does not bear the ultimate burden of persuasion at trial need not negate the other party’s claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party’s claim. Once the movant has met this initial burden, the burden shifts to the nonmov-ing party to “set forth specific facts showing that there is a genuine issue for trial.” The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant” To accomplish this, the facts “must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein.” Finally, the court notes that summary judgment is not a “disfavored procedural shortcut”; rather, it is an important procedure “designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” IV. UNCONTROVERTED FACTS A. The Parries T-Mobile is in the telecommunications business and provides commercial mobile radio telecommunications services (“personal wireless service”) as that term is defined by the Federal Communications Commission (“FCC”). The Unified Government is the consolidated government of Wyandotte County and the City of Kansas City, Kansas. B. Wireless Communication Facilities in General Wireless communications systems rely on an overlapping and interconnected network of antenna facilities known as wireless communications facilities (“WCFs”). WCFs are radio antennas that receive and transmit low-power radio signals to and from mobile wireless handsets, thereby facilitating wireless or “mobile” communications. The antennas of WCFs must be located on structures of sufficient height, such as communication towers, to transmit and receive radio signals over large distances. Where no such structures exist, new communication towers may be needed. Any tower component of a WCF must be located within a limited area so it can provide line-of-sight communications with mobile wireless handsets and to properly interact with other WCFs. Each telecommunications tower has a limited maximum coverage area, the extent of which varies depending upon several factors, including the tower height, local topography, configuration of various existing structures, and population densities. C. The Lease for the Proposed Site T-Mobile is the lessee of certain real property located in the vicinity of 2900 Minnesota Avenue in Kansas City, Wyan-dotte County, Kansas (the “Proposed Site”), and T-Mobile seeks to construct a new WCF on that property. T-Mobile entered into a Site Lease with Option (the “Lease”) for the Proposed Site with First Baptist Church of Kansas City, Kansas (the “Church”). The Proposed Site is a 50-foot by 50-foot tract of land located on the Church’s property. Pursuant to the Lease, the Church grants T-Mobile the right “to erect and maintain on the Premises improvements, personal property and facilities necessary to operate its communications system, including, without limitation, radio transmitting and receiving antennas, microwave dishes, tower and base, equipment shelters and/or cabinets and related cables and utility lines and a location based system.” D. Kansas City, Kansas Code of Ordinances Kansas City, Kansas Code of Ordinances (“Code”) section 27-260 provides that decisions and recommendations of acting bodies should take into consideration: “(1) Conformance with regulations, the comprehensive plan, and other adopted plans, design guidelines and policies; (2) Recommendations of staff and recommending bodies; (3) Input of reviewing agencies and departments; (4) Public comment and testimony received at the hearing; and (5) Effects of the proposal on the neighborhood, area, and community-at-large.” Section 27-1252(a)(32) of the Code permits telecommunications antennas and towers in Kansas City, Kansas, under Special Use Permit. Section 27-1252(a)(32)(h) states that “[i]n evaluating such proposed sites, commercial districts are generally preferred over those in residential districts as are sites in less restrictive residential or commercial districts generally preferred over those in more restrictive districts (section 27-1049®).” Section 27-275®(7) of the Code provides for ten separate residential zoning districts in Kansas City, Kansas, classified from “Most Restrictive” to “Least Restrictive.” The property upon which T-Mobile’s proposed telecommunications tower is zoned R-l(B) Single Family District. The R-1(B) Single Family District zone is the third most restrictive residential zoning classification. Section 27-1160(a) states that the purpose of R-l(B) districts is to “provide for new and infill residential development in those older areas of the city where the existing development was substantially completed prior to World War II.” Section 27-1160(c)(l) of the Code generally contemplates that structures in R-l(B) districts will not be over 35 feet tall. The Kansas City, Kansas Master Plan Land Use map designates general areas for the following categories: (1) Agricultural & Rural Residential; (2) Low Density Residential; (3) Medium Density Residential; (4) Office; (5) Commercial; (6) Light Industrial; (7) Heavy Industrial; (8) Parks, Public, & Semi-Public Properties; and (9) Special Conditions. There is no mention of cell towers on the Kansas City, Kansas Master Plan Land Use map. The Master Plan Land Use map states: “This is a generalized plan. Please refer to area plans for specific parcel information.” E. T-Mobile’s Application for Special Use Permit On December 9, 2005, T-Mobile submitted an Application for Special Use Permit (the “Application”) to the Unified Government’s Department of Urban Planning and Land Use (“City Staff’). Included within the Application was a letter from Selective Site Consultants, Inc. to Mr. Scott Murray, Urban Planner for the Unified Government (the “Application Letter”). As stated in the Application Letter, the purpose of the Application “is to provide adequate coverage to the residential areas and vehicular traffic in all directions of the [PJroposed [S]ite.” The Application Letter further states: “This geographic area is an existing coverage gap in T-Mobile’s network, and customers in this area experience a high frequency of ‘dropped calls’ and ‘no signal found’,” which “prevents T-Mobile customers from initiating and carrying calls.” T-Mobile notes that the only residential properties near the Proposed Site “are located to the southeast of the parent tract and all view of the tower will be blocked by the church building.” T-Mobile describes the proposed tower as “an 80 foot monopole with 4-10 foot fiberglass flush mount, unipac antenna array mounted on top of each other for a total structure height of 120 feet” that would “look like a flagpole.” T-Mobile submitted a photo simulation of the proposed tower along with the Application. T-Mobile notes that the tower “will be surrounded by a six (6) foot wooden fence including brick columns that is intended to make this compound appear to be a part of the overall church facilities,” and the compound “will be surrounded with landscaping of mature vegetation providing a buffer zone to shield the ground portion of the facility visually.” T-Mobile also notes that the proposed tower is capable of supporting additional wireless telecommunications carriers if needed. T-Mobile states in the Application Letter that the proposed tower is only 120 feet in height, and therefore the tower does not need to be illuminated under FCC and FAA rules. T-Mobile further states that once the proposed tower is constructed, the only routine vehicular traffic to the tower will be that of a technician coming to the Proposed Site for about an hour once a month for routine maintenance services. Moreover, the Proposed Site will only use telephone and power services-no water, sewer, waste disposal, or similar public services are required. Along with the Application Letter, T-Mobile submitted the following exhibits: (1) Vicinity Maps of the area; (2) PIN Sheet relating to Parent Parcel; (3) Plat Maps of the Parent Parcel; (4) Title Report including Deed to Parent Property; (5) Aerial Map of the Parent Parcel and Surrounding Area; and (6) USGS Topographical Map of Parent Parcel and Surrounding Area. T-Mobile also submitted a site justification map prepared by Selective Site Consultants to capture all of the possible co-location properties within a mile radius of the Proposed Site. The site justification map of the preliminary search area submitted by T-Mobile identified the city-owned water tower and described it as infeasible because it was “Loaded, No Ground Space.” The map also identified a Board of Public Utilities (“BPU”) water tower and likewise described it as infeasible because it was “Top Occupied.” T-Mobile also submitted a “Tower Manufacturer’s Report on the Design and Reliability of Tapered Monopole Type Towers.” In conjunction with this report, T-Mobile submitted the Affidavit of Robert M. Herlihy (“Herlihy”), an employee of Selective Site Consultants, Inc., stating that T-Mobile requires site acquisition personnel to first look for co-location opportunities within a given search area before attempting to find areas where a new tower will be required, and that to fulfill such requirement, he drove the area -within a one-mile radius of the Proposed Site “to determine if there were any available structures that would meet the Radio Frequency Engineer’s requested antenna height.” T-Mobile submitted a map of the search area, or search ring, with Herlihy’s affidavit. The Application Letter explained: “When new tower sites are required, a location is chosen after a ‘Search Ring’ is developed and issued by T-Mobile’s Radio Frequency Engineers. The Search Ring indicates a geographic area in which potential sites may be located [that] will result in the maximum amount of coverage in an impaired service area.” Herlihy stated that he looked for structures such as water towers, existing telecommunication towers, and tall buildings that would provide co-location opportunities at the height limitation provided by T-Mobile’s Radio Frequency Engineers. Herlihy noted that he found a few water towers to the west of the Proposed Site, but the towers “appear to be full of antennas at the present time and are located too far to the west to be of value in covering the coverage objective of the area in and around the intersection of U.S. Highway 24 and 29th Street” Herlihy also explained: There is a stadium light standard monopole on the grounds of Wyandotte High School approximately .50 miles to the southeast of the [Proposed [S]ite. While this tower appears to be approximately the desired height requested by T-Mobile’s Radio Frequency Engineer of 130 feet, there is presently a carrier occupying the top of the tower. Because of vertical separation requirements between antennas of 20 feet, the highest T-Mobile could go on this structure is 110 feet. When you couple this with the fact that the High School tower sits at an elevation seventy feet (70') lower than that at the [Proposed [S]ite, the effect is to make this tower ineffective (see differences in coverage patterns shown by propagation comparisons included in this packet). T-Mobile also submitted the Affidavit of Joe Heikes (“Heikes”), the Director of Engineering and Operations for T-Mobile in the Kansas and Missouri markets, in support of its Application. In his affidavit, Heikes stated that the tower would be surrounded by a wooden fence and landscaped according to Zoning Regulations and that the tower would comply with all FAA and FCC regulations. Heikes submitted a second affidavit in support of the Application stating that the proposed tower would be able to accommodate two other wireless carriers for co-location. With its Application, T-Mobile provided evidence that wireless towers do not have an adverse impact on real property values. In addition, T-Mobile presented a Radio Frequency Engineer’s Propagation and Coverage Report (the “Coverage Report”) to document the coverage deficiency in T-Mobile’s network. To that end, the Coverage Report concludes there is a “significant lack of ‘in-building’ coverage near the area of U.S. Hwy. 24 & 29th Street.” The Coverage Report also contains a Propagation Prediction map labeled “Existing T-Mobile Coverage.” According to the Coverage Report, T-Mobile has three existing cell-site locations that “provide the areas near 1-635 & Chelsea Traffic Way, the areas along and near 1-70, and the area near the intersection of [U.S.] Hwy 24 an[d] 10th Street with good in-building coverage for a large number of residential and commercial buildings,” but the existing sites “do not provide any in-building coverage to the areas along Hwy 24 between 1-635 and 24th Street and stretching south to Kaw/Park Drive.” According to the Coverage Report, the Proposed Site “will provide much of the desired in-building coverage for the area along Hwy 24 between 1-635 and 24th Street and stretching south to Kaw/Park Drive.” According to the Coverage Report and accompanying Propagation Prediction Study titled “Proposed T-Mobile coverage using the existing monopole at Wyandotte High School,” T-Mobile’s coverage gap will not be filled if T-Mobile uses the monopole at Wyandotte High School (the “High School Tower”). According to the Coverage Report and accompanying Propagation Prediction Study titled “Proposed T-Mobile Coverage at the First Baptist Church Location,” a 120-foot tower at the Proposed Site will remedy the coverage gap. F. The March 13 City Staff Report City Staff prepared a report, dated March 13, 2006, for the City Planning Commission regarding T-Mobile’s Application (the “March 13 City Staff Report”). This March 13 City Staff Report noted that the Proposed Site is currently zoned R-l(B) Single Family District, and the Master Plan Designation is “Commercial.” The March 13 City Staff Report also acknowledged the following: • The property is currently used as a church. • The existing surrounding zoning is C-3 commercial to the north, RP-5 planned apartment to the south, and C-3 commercial and R-l(B) single family to the east and west; and • The existing uses of the property surrounding the Proposed Site are O’Reilly’s Auto Parts to the north, seminary buildings to the south, single family residential to the east, and the Church to the west G. Factors Considered by City Staff in the March 13 City Staff Report The March 13 City Staff Report contains an analysis prepared by City Staff evaluating how the Application meets the criteria, or factors, for considering Special Use Permits. This section of the report is entitled “Factors To Be Considered” and discusses the following thirteen factors: City Staff considered the “character of the neighborhood” (the “First Factor”) and stated: “The neighborhood is somewhat commercial in nature. There are few residential uses in the general area including some seminary residential uses.” City Staff considered the “zoning and uses of properties nearby and the proposed uses expected compatibility with mem” (the “Second Factor”) and stated: “The tower will be the tallest structure in the area and highly visible from all directions due to the relatively flat terrain in the vicinity.” City Staff considered the “suitability of the property for the uses to which it has been restricted” and whether “removal of the restrictions detrimentally affect nearby property” (the “Third and Fourth Factors”) and stated: “It is probable that a tower may be considered unsightly by many.” City Staff considered the “length of time the property has remained vacant as zoned” (the “Fifth Factor”) and stated: “The property is occupied by a church and related buildings.” City Staff considered the “degree of conformance of the proposed use to the Master Plan” (the “Sixth Factor”) and stated: “The Master Plan does not designate areas for cell towers. The church is in compliance.” City Staff considered the “relative gain to the public health, safety, and welfare as compared to the hardship imposed on the individual landowner or landowners” (the “Seventh Factor”) and stated: “The relative gain to the general public is difficult to determine. Unclear data was supplied to indicate that there is an actual deficiency in the performance of existing cellular coverage.” City Staff considered “whether the proposed use is reasonably necessary for the convenience and welfare of the public and will not substantially or permanently injure the appropriate use, visual quality, or marketability of adjoining property” (the “Eighth Factor”) and stated: This aspect of the application is difficult to prove by staff. Several requests for highly detailed information have been returned with incomplete or numbers that were difficult to quantify thoroughly. Unfortunately, the applicant refused to submit dropped call maps indicating a problem in the area this cell tower will cover. Thus, no accurate determination of need or necessity can be formulated at this time. Similar information was requested and received from other recent applications. City Staff considered “whether the proposed use will result in increasing the amount of vehicular traffic to the point where it exceeds the capacity of the street network to accommodate it” (the “Ninth Factor”) and stated: “No traffic impact will be realized.” City Staff considered “whether the noise, vibration, dust, or illumination that would normally be associated with such use if of such duration and intensity as to create problems for near-by property” (the “Tenth Factor”) and stated: “Not an issue.” City Staff considered “whether the proposed use will pollute the air, land or water” (the “Eleventh Factor”) and stated: “Not an issue.” City Staff considered “whether the use would damage or destroy an irreplaceable natural resource” (the “Twelfth Factor”) and stated: “Not an issue.” Finally, City Staff considered “whether the proposed use would result in overcrowding of land or cause undue concentrations of population” (the “Thirteenth Factor”) and stated: “Not an issue.” As noted in the March 13 City Staff Report, there was no public opposition to the Application as of the date of the report. H. City Staff Noted “Key Issues” In the March 13 City Staff Report City Staff considered three “key issues” in its March 13 City Staff Report — location, data, and colors. As to location. City Staff noted: “The structure of the antenna appears to be properly located. The tower’s required distances away from other properties and residential structures have been met.” As to data, City Staff commented: “Information regarding the type of coverage needed was supplied and is clear. However, insufficient data regarding ‘dropped’ calls was provided. Therefore, staff has serious concerns about the need for this tower in this general location. Without information regarding a clearly presented deficiency in performance staff will have difficulty endorsing this application.” As to color, City Staff indicated: “Staff would like to see a color or materials board for the tower enclosure.” I. City Staff Review of Ordinance Requirements in March 13 City Staff Report City Staff evaluated the proposed WCF’s compliance with Code requirements in a section of the March 13 City Staff Report labeled “Regarding City Code’s Requirements.” This section acknowledges that the following requirements have been met: • As a tower more than 100 feet tall, it is designed to accommodate at least three communication carriers; • The tower is located a distance from the off-site main residential structure at least equal to twice the height of the tower; • The tower is not located within a distance of one-third of the height of the tower from any land without the landowner’s written consent; and • The tower is not located within a distance equal to the height of the tower from any off-site main residential structure. The Code also requires landscaping of the tower site to be in accordance with 27-1349(a)(5). With regard to this requirement, the March 13 City Staff Report notes that the “[l]andscaping needs to be more fully detailed.” J. City Staff comments and suggestions in the March 13 City Staff Report City Staff reported that in response to its request for information regarding dropped calls for “in-commercial buildings” in the vicinity, T-Mobile supplied the following information from the week of February 23, 2006 through March 1, 2006: [The] area has 1,812 drops in that week with 445+ K call attempts and nearly 8.5K hours of traffic. The information equates to nearly 280 minutes of use per drop for our customers. Looking at the Kansas sites within the metro core we averaged for that week a minute of use per drop for our customers of nearly 310 (5+ hours between drops on average). In this area there were nearly 53K drops with 1.6 + million call attempts and 270K hours of traffic. Loaded with this information it can be stated that the area ... needs to improve by an hour and a half per drop just to be average in the area. So a site in this area will help T-Mobile get that extra 90 minutes between drops. Along with this thinking the area ... would need to improve by a half an hour per drop again to be average for the network. So a site in this area will help get that extra 30 minutes between drops for our customers. With regard to this information, City Staff commented: “Staff understands the potential need for an additional tower in this location, however, information regarding dropped calls and the sincere need for a tower have not been fully divulged. Staff would like to see where, when and the number of dropped calls prior to recommending approval.” City Staff ultimately recommended that “the City Planning Commission make the findings contained within the City Staff Report related to Factors to be Considered, and Key Issues and recommend DENIAL” of T-Mobile’s Application “subject to all comments and suggestions outlined in this City Staff Report” At least one of the reasons City Staff based its recommended denial of the Application was that it did not believe T-Mobile’s gap in service coverage was serious enough to warrant a new WCF. K. The March 13 Planning Commission Public Hearing The Unified Government Planning Commission (the “Planning Commission”) first considered T-Mobile’s Application at a duly noticed public hearing on March 13, 2006 (the “March 13 Planning Commission hearing”). T-Mobile presented a site plan of the Proposed Site at the March 13 Planning Commission hearing. T-Mobile also presented radio frequency propagation maps at the March 13 hearing. Five people appeared at the March 13 Planning Commission hearing in support of T-Mobile’s Application, and no one appeared in opposition. At the March 13 Planning Commission hearing, Vice-Chairman Davis asked if there is another site that T-Mobile could co-locate on, and T-Mobile’s representative, Herlihy, explained: [T-Mobile] looked at the high school to the southeast and they did a propagation study and there were deficiencies that they could not [co-]loeate on the light standard. [T-Mobile] looked at a couple of water towers to the west and they seemed to have antenna on the top of them and it would indicate that they [T-Mobile] would be lower on the tower. Davis also asked Herlihy if T-Mobile talked to the Board of Public Utilities (“BPU”) to, first, determine whether there was space available and, if so, whether T-Mobile did a propagation study. Herlihy explained that T-Mobile has “dealt with BPU and when a site is available that meets their search area criteria or is close enough to be used for what they are trying to cover they do use that. But in this case, that was not acceptable; it was too far out of the search ring in order to be an acceptable site.” According to the minutes of the March 13 Planning Commission hearing, Planning Director Richardson stated: that the staff was provided propagation maps and the staff requested to see dropped call data on the maps. The Commission has seen propagation maps before and they are difficult to understand and that is why the staff asked for dropped call data and maps. [T-Mobile] provided dropped call data for an area and that area was not defined in the documentation received as far as the boundary. That is where the confusion was. If [T-Mobile] can supply the data requested, this case and the following case can be continued until next month and they can provide the data. Planning Commissioner Walden stated that he did not think T-Mobile would spend the money to build a tower at the Proposed Site if T-Mobile did not think that it needed it, and that because all of the Code requirements have been met, he did not understand why City Staff is requesting additional dropped call data. In response to Commissioner Walden’s comments, Planning Director Richardson stated: “[i]t may be less expensive for [T-Mobile] to build here than locating somewhere else.” At the end of the March 13 Planning Commission hearing, Planning Director Richardson stated that if T-Mobile can supply information supporting the need for the site, then the Planning Staffs concerns could potentially be eliminated. The Planning Commission scheduled the Application for reconsideration on April 10, 2006. L. T-Mobile’s Supplemental Coverage Report T-Mobile provided City Staff with a second Propagation Studies and Coverage Report (“Supplemental Coverage Report”) for the Proposed Site dated March 30, 2006. The Supplemental Coverage Report explained: Radio propagation prediction studies are computer simulations of the expected coverage from existing and proposed cell-site facilities. These studies take into account to some degree or other most of the variables that affect the radio coverage of a site. Some of these variables are transmit power, type of antennas, orientation of antennas, above ground height of the antennas, intervening terrain, and local clutter around the mobile station (phone). The computer then calculates an “on-street” signal level that it predicts will be seen by a mobile phone. Then it may be surmised from these predicted signal levels if the resultant coverage will be adequate for the mobile user in a variety of circumstances such as in vehicle or inside a building. The drive-test study, by contrast, is an actual measurement of the coverage of the network. This test is done by driving in a car in and around the area of interest with a phone which is hooked up to a GPS. In this way it is possible to determine the actual “on-street” coverage level of the network at all of the locations where the car drives. This test can be useful for comparison to the propagation prediction study, and can therefore validate that there are areas, such as part of Kansas City, KS where T-Mobile has a significant gap in coverage. The Supplemental Coverage Report included a propagation prediction study that states T-Mobile’s coverage objectives will not be met if T-Mobile uses the High School Tower, as well as a propagation map showing T-Mobile’s existing level of coverage in the area. The Supplemental Coverage Report also explained the results of the drive test as follows: The drive test results, which follow, experimentally confirm the propagation prediction analysis that demonstrated a significant gap in coverage in the T-Mobile network. The signal levels measured in this drive test were “on-street” equivalents and as such they may be compared in an apples-to-apples fashion with the data from the propagation predictions which also depict “on-street” levels. These drive test results are generally confirmatory of the propagation prediction studies, even though they reveal the propagation predictions to be at some places optimistic and at others pessimistic. The significant gap in coverage revealed by the propagation study is clearly confirmed in the drive test results. For the most part, the drive test results proved to match the computer generated predictions. The drive test shows that in-vehicle [coverage] in the area of concern is marginal and replicates that shown by the propagation studies in this report Because a house has more loss than a vehicle with a lot of windows, it can be concluded that if the caller is in a house, they would experience even worse coverage than is displayed in the drive test results. M. City Staff’s Updated City Staff Report City Staff prepared an updated City Staff Report for the Planning Commission, dated April 10, 2006 (the “April 10 Updated City Staff Report”), which indicated that there was still no public opposition to the Application. City Staff considered the same factors as they did in the March 13 City Staff Report, and the City Staffs responses to the Factors 1-6 and 9-13 did not change. City Staff did change its response to the Seventh Factor to state: “The relative gain to the general public-is difficult to determine. Unclear data was supplied to indicate that there is an actually deficiency in the performance of existing cellular coverage. The drive study seems to indicate adequate performance.” City Staff also changed its response to the Eighth Factor to state: Drive studies indicated no dropped calls in the area surveyed, in stark contrast to the other information previously provided. That study indicates that the drive study is a validation of the propagation study. This test indicated no dropped calls. The Planning Commission has used dropped calls as a measure of service previously. Indicating zero or limited dropped calls seems to indicate this tower is not necessary for the convenience of the public. Perhaps collocation [sic] on another tower in the area would better serve the public in this case. As to the key issues — location, data, and colors — the only response that changed from the March 13 City Staff Report was that relating to data, for which City Staff noted that “drive test data indicate zero dropped calls.” With regard to City Code Requirements, City Staff did not change its position from the March 13 City Staff Report. N. The April 10 Planning Commission Public Hearing On April 10, 2006, the City Planning Commission met and considered the Application (the “April 10 Planning Commission hearing”). Again, no one appeared in opposition to the Application. T-Mobile’s representative, Herlihy, explained that T-Mobile, at City Staffs request, performed a drive test It was done during a weekday, during the day, because of the way that these are done and as a safety precaution[ ] for the person doing them, they were not done during high-peak driving times, such as rush hour or during weekends. It was also, both of these were done in March when there are no leaves on any of the trees. Foliage alone can reduce a cell-coverage strength of their signal by 50 percent So, in effect, what you can see by this drive test is basically 50% worse during the summer months and at spring, fall and — summer/fall months than what you see. Herlihy also stated that “[djropped calls mean that there is no signal. We have never professed to say that in these areas there are no signals. What we do profess to say is that the signals where they occur are not sufficient to supply the cell phones with the minimal expectation of coverage that our clients have become accustomed to.” Herlihy further stated that T-Mobile will “buil[d] the site if their [radio frequency] engineers indicate that it is necessary to increase the signal strength to give their customers that expectation of coverage that they have become accustomed to.” T-Mobile’s engineer then explained the propagation maps as follows: The white areas [on the maps] are areas where you can only receive signals outdoors, you can typically not receive them in your house or place of business or even typically in your vehicle. The light green areas [on the maps] are where you typically receive the signals in your vehicle, but not inside the building. And the darker shaded green is where you receive them inside of a building. These are the drive-test results, it is the same as what you have on the board there. The blue on this drawing ... are areas where we wanted to show you where we drove at. However, if you were to compare it to the areas on the other map it would be white ... So as you can see there is a tot of this area that has no in-building coverage at all. And just because we didn’t drop a call in this area while we were driving around, doesn’t mean we wouldn’t drop a call if you walk inside their houses over there. We don’t do that during driving tests, we don’t drive into houses. And our data shows that we have about 300 dropped calls in this area in a day, we have about 300 customers in this area, as well, that would like to have cell phone coverage in their houses. T-Mobile’s engineer also explained that the computer propagation tool uses “terrain, as well as ground cover such as houses, trees and the hills and valleys, water, to detect what it can be.” Planning Director Richardson expressed concern about the number of towers that T-Mobile will request and asked if there are other locations that small towers could be located that would give better service, but he then stated that he is not sure that he is supportive of additional smaller towers. Richardson also stated he had received a map from Cingular on one of that company’s applications, and that map pinpointed dropped call locations. Planning Director Richardson also commented: The tower is very tall, it is in a very unsightly position and we recommend denial of the case, because using the similar analysis that we have used before, it appears that they already have service in the area, whether or not it is in-building or in-car, there is general cell phone coverage in the area. Vice-Chairman Davis asked Planning Director Richardson: “I don’t know if you know the answer to this, Rob, without doing more research, but do you know if this coverage equals or approximately [sic] what the other carriers that have — and if it is in a site that covered the same area, do you know first of all?” Planning Director Richardson responded: “Well, the most recent one we asked for studies on was this one right here off of County Line Road [the Cingular application]. This is the data [Cingular’s dropped-call data] that we have on this site.” Planning Commissioner Walker asked if “the reason for recommending denial is because the staff feels that this solution will not solve the dropped calls issue,” to which Planning Director Richardson responded: It will in some areas, but it obviously doesn’t solve their problem. And, I mean, how many more towers are we going to get to solve their problems here? I think that we can ask them to show us what they need in this area to provide the coverage [t]hat they want and whether it is in-car, whatever they need. But they ought to be showing that to us, at least area-wide, if not, what they are going to plan to do in the city. I mean this is — are we going to get another 100 towers out of T-Mobile? I mean this is just one at a time, and their strategy is — doesn’t seem to be appropriate for use to look at how the city is covered with one use or multiple users. There is an open tower at Wyandotte High School that solves some of this problem, not all of it, and they are not collocating [sic] there. Planning Commissioner Walker immediately asked Planning Director Richardson if T-Mobile could co-locate at the High School Tower, and he responded “Correct.” At the conclusion of the April 10 Planning Commission hearing, the Planning Commission unanimously recommended denial of the Application. O. April 27, 2006 Planning & Zoning Session T-Mobile’s Application was forwarded to the Board of Commissioners for final consideration. On April 27, 2006, the Board of Commissioners agreed to continue the Application to May 25, 2006. No residents appeared in opposition to the Application at the April 27, 2006 session. P. City Staffs Second Updated City Staff Report In further support of its Application, T-Mobile submitted the Affidavit of Russell Pope, dated May 19, 2006. City Staff provided an updated City Staff Report to the Board of Commissioners dated May 25, 2006 (the “May 25 Updated City Staff Report”) addressing T-Mobile’s Application, which indicated that mere was no public opposition to the Application to date — and specifically that no one appeared in opposition at either the March 13, 2006 or April 10, 2006 public hearings. City Staff considered the same thirteen factors as they considered in the March 13 and April 10 City Staff Reports and City Staffs responses to all factors did not change. In addition, City Staffs consideration of the key issues and the Application’s compliance with City Code Requirements did not change from the April 10 Updated City Staff Report The May 25 Updated City Staff Report again recommended that the Board of Commissioners deny the Application. Q. The May 25, 2006 Board of Commissioners Meeting Because the Planning Commission recommended denial, the zoning code required two-thirds of the Board of Commissioners’ vote to override the Planning Commission’s recommendation. Only eight members of the Board were present. At the beginning of the meeting, T-Mobile requested that evaluation of the Application be held over because three members of the Board were absent. A motion to hold over the Application failed for lack of a second. The Board asked T-Mobile to proceed with its presentation on why the Board of Commissioners should approve the Application. No one appeared in opposition to the Application at the May 25 Board of Commissioners meeting. During the meeting, Commissioner Pettey stated “one of the criteria that’s been used is the number of dropped calls. There significantly are not very many dropped calls in this area. Is that correct?” In response, Planning Director Richardson stated the standard that we had used in the past was the drive test for dropped calls. Their drive test shows no dropped calls. Their computer system shows dropped calls within that area on a weekly basis but I don’t believe that’s been pinpointed to the sectors of the cells that would apply to where this would go. I don’t know that it’s fair to say that there aren’t any, but they have not been able to pinpoint where those were. The T-Mobile representative responded to this by explaining: I do want to take some exceptions to staffs report. Commissioner Pettey is correct, it does say the information we had provided showed no dropped calls. The confusion at the beginning of this application was we presented radio frequency propagation maps and a drive test data [that] was a field test that confirmed what the propagation maps were telling us. These maps are based on computer models and what we provided later to [Planning Director Richardson] is a drive test, which confirmed in the field what our maps already told us, that we had a hole in coverage in this particular area and we needed to fill that with a new site. I’m not sure if [Planning Director Richardson] is convinced at this point whether or not we do have a significant issue in this area. Absolutely 100% we would not be before this body if we didn’t believe we have a significant coverage issue in this area. These facilities cost hundreds of thousands of dollars to put up a site. It’s not to our business advantage to waste money by putting up sites that aren’t necessary. We do have a significant coverage gap issue in this particular location. The T-Mobile representative further explained the coverage gap by stating: We do have a significant coverage issue. [Planning Director Richardson] had focused on dropped calls and these maps don’t show you dropped calls and neither does the drive test data that we presented earlier. We had to present that to [Planning Director Richardson] separately in some follow up meetings and we did give [him] some data. We had tested the site on two separate weeks and in each of those tests we had over 1,800 dropped calls in this particular area the last week of February. In the first week of May we ran the test again and we had over 2,700 dropped calls in this area. I mentioned before this is an issue of coverage and an area of issue in capacity. It’s not to say that we don’t have some coverage in the area, but it is very unreliable and certainly not up to the standards of T-Mobile or [its] customers and what they expect to receive in the terms of service when they’re paying for it. We clearly have a coverage gap issue and we have the [radio frequency] engineer if you’d like to ask more questions about that. Commissioner Mitchell then stated: “You’re showing a certain test and [Planning Director Richardson] is asking for a different test, are you familiar with the test [he] is asking for?” And T-Mobile’s representative responded: We don’t have maps that represent dropped call data [which is what Planning Director Richardson is asking for]. We know what [Planning Director Richardson] wants and it’s dropped call data. We have since met with [Planning Director Richardson] personally and confidentially and provided him with dropped call data. I’ve mentioned earlier that we do have testing that shows we have had in two different weeks 1,700 dropped calls and 2,700 dropped calls in a week on this particular location. We do have dropped call data if that is important consideration for you because it really hadn’t been in the past. It does buffer what we’re telling you. To this explanation, Planning Director Richardson responded: On page five of the City Staff Report, in the fourth paragraph under D155 it says, they have 280 minutes of use per dropped in this area. If I had that much service out of my cell phone, I would think that was pretty good. I don’t think anyone in this room gets that kind of service. I don’t deny mere’s some kind of need here, but basically they gave us the dropped call drive test and there weren’t any on the drive test and their data shows they get 280 minutes of use in their system per dropped call. In response, the T-Mobile representative stated: What we have provided subsequent to providing this information to [Planning Director Richardson], in private because they don’t like handing out their dropped call data, is the dropped call data that shows that we have 1,700 and 2,700 dropped calls in two different weeks. [Planning Director Richardson’s] point that [280 minutes] without a dropped call is good, isn’t good in the industry. The industry averages 310 minutes without a dropped call and we’re well below that.... Our competitors are going to walk all over us in Wyandotte County if we provide that kind of service to our customers. At the May 25 Board of Commissioners meeting, T-Mobile addressed the possibility of co-location at the High School Tower and, using radio frequency propagation maps, explained: We did analyze this site at Wyandotte High School. That’s a Cingular site, but again it’s too far outside the [search ring]. The elevation difference between Wyandotte High School and our site here at First Baptist is 40 [feet]. There is a 40 [foot] drop in elevation, which makes a significant difference in terms of what we can cover. T-Mobile addressed the design of the tower by stating: We have tried to minimize the impact of this particular site with the structure itself The structure itself is called a stealth monopole. It is a single pole and will not have a triangular platform on the top with antennas hanging off. The antennas are going to be housed in containers on top of the tower. There will not be anything sticking out or away from the tower. When we first made this application, we wanted it to be 150 feet tall, which would still be better for us. Because of some of the resistance we’ve gotten from staff, [we] lowered this height to the bare minimum that we could be at, which is 120 feet. We are proposing a 120 foot tall monopole We showed our design to the church and everybody felt it was a good use for this site at this church. As to the nature of the surrounding area, T-Mobile stated: [T]he surrounding zoning for the property is C-3. This isn’t like this is surrounded by residential areas. If you’d look at the aerial map, the red arrow is highlighting where the pole will be located on the property. The [Church] is located below the red arrow and where the ta[il] of the arrow is touching, the white building immediately to the north is an O’Reilly Auto Parts store. The church to the west is called the Faith Deliverance Family Worship and we have had no issues with the church being there or them complaining about the proposal. We have a seminary associated with the [Church]. There’s a park and a youth center to the north. The only residential in this area that is nearby is the area to the south and east of the site.... Due to the relationship of where those houses are, that church structure is going to block a significant portion of this monopole structure. They’re not really going to be able to see the pole and apparently they don’t have a concern for it because all of these people were notified of this hearing and the neighborhood meeting and no one showed up ... We don’t have anyone opposing this site, we have surrounding zoning that’s C-3 Commercial. The Board of Commissioners ultimately voted 7-1 to deny the Application, and the Board of Commissioners instructed City Staff to prepare a detailed written statement of denial. R. The Board of Commissioners’ Written Denial of the Application In a document titled “Written Denial of Special Use Permit Petition # SP-2005-45” (the “Written Denial”), the Board gave the following reasons for denial of the Application: 1. Petitioner failed to show that denial of the Special Use Permit will prohibit the provision of personal wireless services. a. Drive studies indicated that there were no dropped calls in the area surveyed in stark contrast to studies submitted for other applications for cellular towers. Indicating zero or limited dropped calls seems to indicate this tower is not necessary for the convenience of the public. b. Petitioner presented no evidence of any gap in service by other providers of personal wireless service. c. The Commission takes judicial notice that its ordinances allows telecommunications towers by right in any M-2 or M-3 Industrial Zones and allows towers by Special Use Permit in all commercial, residential and agricultural zones. Antennas and their support structure are allowed as secondary uses in all zones on any legally established structure over SO feet tall, including towers, buildings, water towers, light poles, and signs. Subject to a maximum height of 75 feet, telecommunication towers are allowed as accessory to public and semi-public uses. d. Petitioner did not submit any service propagation study plans for a study which contemplates a greater number of shorter “stealth” towers or co-location on existing towers or buildings. 2. This particular 120 foot tower is not the least intrusive means of fulfilling a gap, if any exists, in the particular service provided by T-Mobile. a. The Unified Government’s Ordinance providing for Special Use Permits for telecommunications towers, Sec. 27-1252(32), creates a preference for commercial districts over residential. b. The property for which the Petition was filed is zoned R-l(B) Single Family, one of the most restrictive zoning classifications. The property is currently used for church purposes and the proposed cell tower is a new additional use which has no direct relation with the current use of the property although it would provide additional income to the church, c.The immediate neighborhood includes mixed residential, institutional and commercial uses typical of the land adjacent to Minnesota and State Avenue between 18th Street and 36th Street The areas to the Norm and South of the Avenues are primarily residential. A 120 foot tower is not aesthetically attractive in a residential neighborhood and would create blight in the views of the surrounding residential properties. This tower will be the tallest structure in the area and highly visible from all directions due to the relatively flat terrain. 3. The Commission has considered the “Golden” factors set forth in the City Staff Report and for the reasons stated herein denies Special Use Permit # SP-2005-45. At the June 29, 2006 meeting, the Board of Commissioners voted to adopt the Written Denial prepared and provided by the City Staff. The Board of Commissioners’ June 29, 2006 adoption of the Written Denial constituted “final action” under 47 U.S.C. § 332(c)(7)(B)(v). V. ANALYSIS Congress enacted the TCA to promote competition and higher quality in telecommunications services and to encourage the rapid deployment of new telecommunications technologies. Congress intended to promote a national cellular network and to secure lower prices and better service for consumers by opening all telecommunications markets to competition. One of the ways in which the TCA accomplishes these goals is by reducing impediments imposed by local governments upon the installation of wireless communications facilities, such as antenna towers. The TCA does not, however, abolish all local authority. It tries to balance its goals with the preservation of some local authority over land use. Put simply, the TCA “attempts to reconcile the interests of consumers and residents (many of whom are themselves cell phone users).” The TCA places six restrictions on the authority of local government to regulate the placement, construction, and modification of personal wireless service facilities. Two of these restrictions are at issue in this case: • Any decision by a local authority denying a request to place, construct, or modify a personal wireless facility must be supported by substantial evidence contained in a written record; and • Local authorities “shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” To that end, T-Mobile’s first claim in this lawsuit is that the Board of Commissioners’ decision to deny its request for Special Use Permit is not supported by substantial evidence and thus violates the TCA. Judicial review under the substantial evidence standard, even at the summary judgment stage, is quite narrow and highly deferential to the local decision-making entity. The court is limited to reviewing only the administrative record to see if it contains substantial evidence to support the local board’s decision. T-Mobile’s second claim asserts that the Board of Commissioners’ decision to deny its request for Special Use Permit effectively prohibits T-Mobile from providing wireless service in the area at issue. Unlike a substantial evidence claim, the parties readily acknowledge that an effective prohibition claim is reviewed de novo and may be based on newly proffered evidence. A. Whether the Unified Government’s Denial of T-Mobile’s Application to Construct a Wireless Communication Tower was Supported by Substantial Evidence. 1. The Substantial Evidence Standard Under 47 U.S.C. § 332(c)(7)(B)(iii), ' “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” Section 332(c)(7)(B)(iii)’s substantial evidence requirement “does not ‘affect or encroach upon the substantive standards to be applied under established principles of state and local law.’ ” Thus, the Court looks to the requirements set forth in the local zoning ordinance to ascertain the substantive criteria to be applied. In sum, “[t]he reviewing court’s task is to determine whether the [local authority’s] decision, as guided by local law, is supported by substantial evidence.” It is well-settled that judicial review under the substantial evidence standard is quite narrow. That said, the Court’s review, though highly deferential, is not a rubber stamp. The court is limited to reviewing only the administrative record to see if it contains substantial evidence to support the Board of Commissioners’ decision. “Substantial evidence is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the [decision maker]. Substantial evidence requires more than a scintilla but less than a preponderance.” Significantly, if the evidence can support one of two conclusions, the court must affirm the administrative agency’s decision on summary judgment and not substitute its own judgment for that of the local board. 2. Procedural and Substantive Requirements In Local Zoning Ordinances As a general rule, section 27-260 of the Kansas City, Kansas Code requires acting bodies like the Board of Commissioners to make decisions based upon specific Code requirements and the following considerations: “(1) Conformance with these regulations, the comprehensive plan, and other adopted plans, design guidelines and policies; (2) Recommendations of staff and recommending bodies; (3) Input of reviewing agencies and departments; (4) Public comment and testimony received at the hearing; and (5) Effects of the proposal on the neighborhood, area, and community-at-large.” With regard to Special Use Permits, section 27-279 of the Code dictates that approval or denial of Special Use Permit must be based on consideration of the following factors: a. The character of the neighborhood. b. Whether the proposed use will increase the amount of vehicular traffic to the point where it exceeds the capacity of the street network to accommodate it. c. Where applicable, hours of operation. d. Whether the proposed use is reasonably necessary for the convenience and welfare of the public and will not substantially or permanently injure the appropriate use, visual quality, or marketability of adjoining property. e. Whether the noise, vibration, dust, or illumination that would normally be association with such use is of such duration and intensity as to create problems for nearby property- f. Whether the proposed use would pollute the air, land or water. g. Compatibility with existing and proposed land uses in the surrounding area. h. Whether the use would damage or destroy an irreplaceable natural resource. i. The relative gain to the public health, safety, morals, and welfare as compared to the hardship imposed upon the individual landowner or landowners. j. The applicant’s ability to maintain the use in an “as proposed” condition. k. Whether the proposed use would result in overcrowding of land or cause an undue concentration of population. 1.In general, commercial and industrial Special Use Permits should not be granted adjacent to residential districts. 3. The Unified Government’s Reasons for Denying T-Mobile’s Application The Written Denial provides three reasons for the Board of Commissioners’ decision to deny the special use application: (a) T-Mobile “failed to show that denial of the Special Use Permit will prohibit the provision of personal wireless services”; (b) “This particular 120 foot tower is not the least intrusive means of fulfilling a gap, if any exists, in the particular service provided by T-Mobile”; and (c) “The Board of Commissioners has considered the ‘Golden