Geneva sued over zoning denial of 100-foot Verizon pine tree cell tower

GENEVA – TowerNorth Development LLC filed a federal lawsuit against the city of Geneva over its denial last month of a zoning amendment to allow a 100-foot Verizon Wireless cell tower at 1800 W. State St., asking a judge to order the city to approve its zoning application.

TowerNorth, which develops, owns and operates wireless infrastructure, also filed the zoning application on behalf of Verizon Wireless.

The tower was to be disguised as a pine tree complete with fake branches. It was requested to be on two parcels of the 7.53 acres that is part of a local bed and breakfast and wedding venue, Oscar Swan Country Inn.

The 29-page amended complaint was filed Sept. 9 in U.S. District Court for the Northern District of Illinois.

A voicemail and a message for the city attorney seeking comment were not returned.

The lawsuit alleges that the City Council’s unanimous rejection was unlawful in that it “violates the federal Telecommunications Act of 1996, as amended … and is entitled to an order directing the city to grant TowerNorth’s application for the proposed facility.”

The lawsuit alleges that provisions in the Telecommunications Act limits action by state or local governments that would prohibit wireless service.

Verizon stated in the application that it needed a new facility to improve coverage and cover a gap in service in the areas of State Street, Randall Road, Geneva Commons and the surrounding business and residential area.

The lawsuit cites there are more than 400 million cellphone subscribers and that with increasing usage “wireless communication facilities are becoming overloaded with network traffic – both voice and data – resulting in a reduced effective communications range between handheld wireless devices and a given facility.”

To provide reliable wireless service requires cell site coverage that must overlap in a grid pattern and Verizon determined that the gap in Geneva was significant, according to the lawsuit.

The Oscar Swan site was more than 100 feet from the nearest home and was chosen so it would not interfere with future development of the site, according to the lawsuit.

Because the area of the proposed tower was a planned unit development that does not allow for special uses, city staff advised that TowerNorth’s application would have to seek to amend the Blackberry PUD, as well as request a special use application for the tower, according to the lawsuit.

Ultimately, Planning and Zoning commissioners voted unanimously not to recommend approval for TowerNorth’s application.

Among other assertions, the lawsuit alleges there was no substantial evidence to support that the tower, disguised as a pine tree, would be a “visual eyesore.”

“A denial based on a finding that is not authorized or required by applicable local law cannot be supported by substantial evidence,” the lawsuit stated. “Moreover, if the terms of a local ordinance allow a municipality to deny a permit based on less than substantial evidence, or no evidence at all, and a permit is denied on that basis, the record would lack substantial evidence to justify the decision.”