Client Alert- Court Upholds Local Control for Wireless Tech

On March 24, 2023, the U.S. District Court for the Southern District of California issued an Order in Vertical Bridge Development, LLC v. Brawley City Council et. al., favoring the City of Brawley (“City”) by upholding the City’s decision to deny a wireless facility proposed by Vertical Bridge Development (“Vertical Bridge”) in a City-owned park.  The proposed site included a 110-foot tower within 8-foot high, 36’ x 36’ chain link equipment enclosure. The proposed facility resulted in community opposition.

Prior to reaching the judiciary, this matter proceeded after an appeal of the City Planning Commission’s denial of Vertical Bridge’s facility. On that administrative appeal, the findings of the City Council included: (1) lack of evidence showing a “gap” in wireless service making a tower necessary in the area; (2) a nearby armory would be a suitable alternative site that would eliminate the impacts on activities at the City park; (3) the proposed tower would be approximately twice as tall as existing light standards and would thus have a significant negative visual impact, and (4) the proposal was not compatible with the existing use of the park as it would significantly reduce the available practice space for baseball and football activities.

With respect to the planning considerations, the Court found that the City complied with its zoning code and that there was substantial evidence to support the Council’s decision. Relevant to the Court’s holding was that the City’s code required the deciding body to make findings about aesthetics and compatibility with surrounding uses.

After review of the public hearings, the Court held that the City Council’s decision to deny the site was supported by substantial evidence in the record (including public comments), in that it did not comply with the City’s code by resulting in negative visual impacts, incompatible with existing park uses, and would adversely affect or be materially detrimental to adjacent uses. 

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