Case 4:20-cv-00281-RGE-HCA Document 1 Filed 09/03/20 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF IOWA
`CENTRAL DIVISION
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`
`
`CLOUD 1 SERVICES, LLC, a Wisconsin
`limited liability company
`
`Plaintiff,
`
`v.
`
`THE BOARD OF ADJUSTMENT OF
`MADISON COUNTY, an administrative
`body created by the Madison County Board
`of Supervisors
`
`and
`
`MADISON COUNTY, a county in the State
`of Iowa,
`
`Defendant.
`
`Case No.: 4:20-cv-281
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`COMPLAINT
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`
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`The Plaintiff, Cloud 1 Services, LLC, by its attorneys, Husch Blackwell LLP, for its
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`Complaint against the defendants, the Board of Adjustment of Madison County and Madison
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`County alleges:
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`THE PARTIES
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`1.
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`Plaintiff, Cloud 1 Services, LLC (“Cloud 1”), is a Wisconsin limited liability
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`company registered to do business in the State of Iowa, with a principal business address of 417
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`Pine Street, Green Bay, Wisconsin 54301.
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`2.
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`Defendant, the Board of Adjustment of Madison County, Iowa (the “Board”) is an
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`administrative body created by the Madison County Board of Supervisors with an address of 112
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`N. John Wayne Drive, Winterset, Iowa 50273.
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`3.
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`Defendant, Madison County (the “County”) is a municipal body existing under the
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`laws of the State of Iowa with an address of 112 N. John Wayne Drive, Winterset, Iowa 50273.
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`JURISDICTION AND VENUE
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`4.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§ 1331 because of federal questions arising under the Telecommunications Act of 1996, 47 U.S.C.
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`§ 151 et seq., and specifically 47 U.S.C. § 332(c). This Court has supplemental jurisdiction over
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`the state law claim under 28 U.S.C. § 1367 as the claim is part of the same case or controversy as
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`the federal questions before the Court.
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`5.
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`This action presents an actual controversy under Article III of the United States
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`Constitution and 28 U.S.C. § 2201 because the County and Board have violated federal law, in
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`particular Cloud 1’s rights granted under the Telecommunications Act of 1996.
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`6.
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`Venue is proper pursuant to 28 U.S.C. § 1391(b) because a substantial part of the
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`events or omissions giving rise to this action occurred in Madison County, Iowa, which is located
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`in this judicial district.
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`REQUEST FOR EXPEDITED REVIEW
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`7.
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`Cloud 1 requests expedited review of this action pursuant to 47 U.S.C. §
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`332(c)(7)(B)(v), which provides that “court[s] shall hear and decide [actions under the
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`Telecommunications Act of 1996] on an expedited basis.”
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`STATEMENT OF FACTS
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`A. Wireless Service Technology
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`8.
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`Federally licensed wireless communications carriers work to provide commercial
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`mobile radio services, personal and advanced wireless services, and other telecommunications
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`services, as those terms are defined under federal law, in Iowa, including in the County. These
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`carriers seek to facilitate the development of wireless telecommunications networks in keeping
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`with the goals of the Telecommunications Act of 1996 and often times employs entities such as
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`Cloud 1 to develop, construct and manage their necessary telecommunications infrastructure,
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`including, among other things, communications towers.
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`9.
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`Section 151 of the Telecommunications Act of 1996 establishes a national policy
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`to “make available, so far as possible, to all people of the Unites States, without discrimination ....
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`a rapid, efficient, nation-wide, and world-wide wire and radio communication service with
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`adequate facilities at reasonable charges, for the purpose of national defense, [and] for the purpose
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`of promoting safety of life and property through the use of wire and radio communications.” 47
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`U.S.C. § 151.
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`10.
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`To meet these policy goals, Cloud 1, a provider of wireless infrastructure, works
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`with federally licensed wireless communications carriers to develop wireless networks which offer
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`a myriad of wireless communications services to local businesses, public safety entities, and the
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`general public. To advance national policies enumerated under 47 U.S.C. § 151, wireless
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`communications carriers work with infrastructure providers such as Cloud 1 to create and maintain
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`a network of digital “cell sites” each of which consists of antennas and related electronic
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`communications equipment designed to send and receive radio communications signals.
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`11.
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`Unlike cellular services using analog-based systems, digital technology converts
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`voice or data signals into a stream of digits to allow a single radio channel to carry multiple
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`simultaneous signal transmissions. This allows wireless communications carriers to offer services
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`unavailable in analog-based systems, such as secured transmissions and enhanced voice, high-
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`speed data and imaging capabilities as well as voice mail, call forwarding and call waiting.
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`12. Wireless devices utilizing all digital technology operate by transmitting a radio
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`signal to antennas mounted on a tower, pole, building, or other structure. The antenna feeds the
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`signal to electronic devices housed in a small equipment cabinet, or base station. The base station
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`is connected by microwave, fiber optic cable, or ordinary telephone wire to a base station
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`controller, which subsequently routes calls throughout the world.
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`13.
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`To provide reliable service to a user, coverage from cell sites must overlap in a grid
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`pattern resembling a honeycomb. If a wireless communications carrier cannot construct a cell site
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`within a specific geographic area, it will not be able to provide service to its consumers within that
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`area.
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`14.
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`Engineers from the wireless communications carriers use sophisticated, established
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`industry standard computer programs and extensive field testing to complete a propagation study,
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`which shows where cell sites need to be located in order to provide service. The propagation study
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`also considers the topography of the land, the coverage boundaries of neighboring cell sites and
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`other factors. For a wireless network to perform well, cell sites must be located, constructed and
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`operated so reliable coverage can be achieved. Only when the entire wireless network is
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`operational will a mobile user have reliable service and uninterrupted communications throughout
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`a given territory. If there is no functioning cell site within a given area, there will be no mobile
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`wireless service for customers within that area, and mobile customers who travel into that area will
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`experience an unacceptable level of mobile wireless service.
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`B.
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`The Macksburg Tower Site
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`15.
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`On or about May 05, 2020, Cloud 1, through its agent Michele Roth, submitted an
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`application to the County for a Special Use Permit (the “Macksburg Application”) to install a 300-
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`foot communications tower within a 100 x 100 lease area (the “Macksburg Tower”) with
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`associated ground equipment on the property located in the County along Carver Road in Monroe
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`Township with a Parcel ID of 660141062040000 (the “Macksburg Property”). One purpose of
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`the Macksburg Tower was to support AT&T’s wireless voice and data communications services
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`including its FirstNet emergency communications network. A true and correct copy of the
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`Macksburg Application is attached hereto and incorporated herein as Exhibit A.
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`16.
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`The Macksburg Property is owned by Sherry L. Corkrean and is zoned “A-
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`Agricultural” per the County’s zoning map.
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`17.
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`The Macksburg Property was chosen by Cloud 1 after an extensive effort by Cloud
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`1’s agent, Michele Roth, to identify a property owner who was willing to enter into a lease
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`agreement for a property that was located within the geographic area which met the coverage needs
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`of Cloud 1’s tenants.
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`C.
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`The Winterset Tower Site
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`18.
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`On or about May 05, 2020, Cloud 1, through its agent Michele Roth, submitted an
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`application to the County for a Special Use Permit (the “Winterset Application”) to install a 300-
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`foot communications tower within a 100’ x 100’ lease area (the “Winterset Tower”) with
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`associated ground equipment on the property located in the County along Burr Oak Avenue in
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`Jackson Township with a Parcel ID of 290053260010000 (the “Winterset Property”). One
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`purpose of the Winterset Tower was to support AT&T’s wireless voice and data communications
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`services including its FirstNet emergency communications network. A true and correct copy of
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`the Winterset Application is attached hereto and incorporated herein as Exhibit B.
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`19.
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`The Winterset Property is owned by William C. and Kathleen Eggers and is zoned
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`“A-Agricultural” per the County’s zoning map.
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`20.
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`The Winterset Property was chosen by Cloud 1 after an extensive effort by Cloud
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`1’s agent, Michele Roth, to identify a property owner who was willing to enter into a lease
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`agreement for a property that was located within the geographic area which met the coverage needs
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`of Cloud 1’s tenants.
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`D.
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`The County’s Zoning Ordinance and Zoning Process.
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`21.
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`Per the County’s practice and procedure, it is generally held that the terms “Special
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`Use” and “Conditional Use” are synonymous.
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`22.
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`Conditional Uses are those uses listed by the Madison County Ordinance as being
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`permissible at the discretion of the Board.
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`23.
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`Pursuant to Section 17-D-1-b of the Madison County Zoning Ordinance, the Board
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`shall have the power and duty “to hear and decide applications for conditional use permits and
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`exceptions upon which the Board is required to address by other sections of this Ordinance.”
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`24.
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`Pursuant to Section 14-F(f) of the Madison County Zoning Ordinance, all
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`applications for conditional use permits shall be submitted to the County Zoning Commission for
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`its review prior to the public hearing before the Board. Each application shall be considered by
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`the Zoning Commission at a public hearing. After the public hearing, the Zoning Commission
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`promptly shall submit a report to the Board on its findings and recommendations regarding the
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`application. No final action shall be taken by the Board on any application for special use permit
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`until such time as the Board has received and reviewed the report of the Zoning Commission.
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`25.
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`Pursuant to Section 17-D-5 of the Madison County Zoning Ordinance, “Every
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`variance, exception or conditional use permit granted or denied by the Board [of Adjustment] shall
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`be supported by testimony or evidence submitted in connection therewith.”
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`26.
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`Pursuant to Section 9-C of the Madison County Ordinance, no building shall exceed
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`two and one-half (2 ½) stories or thirty five (35) feet in height, except as provided in Section 14
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`of the Ordinance.
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`27.
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`Section 14 of the Ordinance contains the listed exceptions, modifications,
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`interpretations and conditional uses that are authorized after approval of the Board. Per the
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`Ordinance, the building height limitations shall be modified for several types of structures,
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`including radio or television towers.
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`28.
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`Section 14-C-12 of the Ordinance provides that for the placement of structures for
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`the purposes of public communications may be permitted in any zoning district.
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`29.
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`The County’s Zoning Administrator (“Staff”) determined that the conditional use
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`applications for the communications towers on the Macksburg and Winterset Properties were
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`similar to the named uses set forth in Section 14–C-12 and conformed to the intent of the
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`Ordinance.
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`The July 16, 2020 County Zoning Commission meeting
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`30.
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`On July 16, 2020, as required by Section 14-F-f of the County’s Zoning Ordinance,
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`the Zoning Commission considered both the Macksburg and Winterset Applications at a public
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`hearing.
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`31.
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`After concluding the public hearing, the Zoning Commission voted to deny both
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`the Macksburg and Winterset Applications.
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`32.
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` Per the County’s Zoning Ordinance, the action of the Zoning Commission was a
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`recommendation to the Board and not a final action on the Macksburg and Winterset Applications.
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`33.
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`Per the County’s Zoning Administrator, there are no minutes available for the July
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`16, 2020 Zoning Commission meeting.
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`The August 4, 2020 Board of Adjustment hearing.
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`34.
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`On August 4, 2020, the Board convened a public hearing (the “Hearing”) to
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`consider the Macksburg and Winterset Applications.
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`35.
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`Prior to the Hearing, the County’s Staff reviewed the Macksburg and Winterset
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`Applications and issued reports (the “Staff Reports”) providing an overview of each Application,
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`comments and recommendations. True and correct copies of the Staff Reports are attached and
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`incorporated by reference as Exhibit C.
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`36.
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`The Staff Reports offer the following:
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`(a)
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`The Macksburg and Winterset Applications are consistent with the Madison
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`County Comprehensive Plan and no conflicts have been identified.
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`(b)
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`Staff has “identified no effects” from the Macksburg and Winterset
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`Applications “which would result in any detrimental impact on adjoining or neighboring
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`properties.”
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`(c)
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`Staff consulted with the Madison County Assessor regarding properties
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`currently located near existing cellular towers to see if she has seen any impact on the value
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`of those properties and the Assessor replied that she has not seen any such effect.
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`(d)
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`Staff recommended approval of both the Macksburg and Winterset
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`Applications.
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`37.
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`At the Hearing, the Board took testimony from Cloud 1’s representatives and the
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`public.
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`38.
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`At the conclusion of the Hearing, the Board voted unanimously to deny the
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`Macksburg and Winterset Applications. These decisions were memorialized in written decisions
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`(the “Decisions”) signed by the Chairman of the Board, Carrie Larson, on August 4, 2020. True
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`and correct copies of the Decisions are attached hereto and incorporated herein as Exhibit D.
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`39.
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`The Decisions include and further memorialize the Board’s ratification of the
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`Board’s Findings of Fact and Legal Principles Upon Which the Board Acts (the “Findings of Fact”)
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`for both the Macksburg and Winterset Applications.
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`40.
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`The Decisions specify that at the Hearing “the Board of Adjustment reviewed the
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`relevant provisions of the Madison County Ordinances, all documents constituting the record, any
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`new documents received from interested parties, heard the statements, remarks and comments by
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`the Zoning Administrator, the applicants, as well as statements, remarks and comments by others
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`in attendance. After all information had been received and all interested parties heard by the Board
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`of Adjustment, the hearing was closed pursuant to the rules of procedure of the Board of
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`Adjustment.”
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`41.
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`Nowhere within the four corners of the Decisions does the Board of Adjustment
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`offer any reason supported by substantial evidence for the denial of the Macksburg and Winterset
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`Applications.
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`42.
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`The Findings of Fact adopted by the Board for the Macksburg and Winterset
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`Applications each state “After careful consideration of all the information that has been presented,
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`and for the factual reasons set forth in the above noted Sections 14 & 17 (of the Ordinance), both
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`of which are incorporated by this reference herein, the Board of Adjustment hereby finds: ….the
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`applicant …… has not met the requirements of the Madison County Zoning Ordinance.”
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`43. While each Finding of Fact ratifies the Board’s denial of the Macksburg and
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`Winterset Applications, these Findings of Fact lack substantial evidence to support to these denials.
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`44.
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`Indeed, the record is devoid of substantial, competent evidence sufficient to support
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`the Board’s denial of the Macksburg and Winterset Applications.
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`FIRST CLAIM FOR RELIEF
`(Violation of 47 U.S.C. § 332(c)(7)(B)(iii) – Substantial Evidence)
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`Cloud 1 restates and incorporates by reference the allegations above.
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`Subsection 332(c)(7)(B)(iii) of the Telecommunications Act of 1996 requires that
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`46.
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`“[a]ny decision by a State or local government or instrumentality thereof to deny a request to place,
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`construct, or modify personal wireless service facilities shall be in writing and supported by
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`substantial evidence contained in a written record.”
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`47.
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`The Board’s denial of the Winterset and Macksburg Applications violated the
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`Telecommunications Act of 1996 because it was not supported by substantial evidence in a written
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`record.
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`48.
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`As result of the Board’s decision to deny the Winterset and Macksburg
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`Applications, Cloud 1 has suffered and will continue to suffer irreparable harm.
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`SECOND CLAIM FOR RELIEF
`(Violation of 47 U.S.C. § 332(c)(7)(B)(i)(II) – Prohibition of Personal Wireless Services)
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`49.
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`50.
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`Cloud 1 restates and incorporates by reference the allegations above.
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`Subsection 332(c)(7)(B)(i)(II) of the Telecommunications Act of 1996 provides, in
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`relevant part, that a state or local government or instrumentality “shall not prohibit or have the
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`effect of prohibiting the provision of personal wireless services.”
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`51.
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`On September 26, 2018, the Federal Communications Commission (“FCC”)
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`adopted a Declaratory Ruling and Third Report and Order, In the Matter of Accelerating Wireless
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`Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket Nos. 17-
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`79
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`and
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`17-84,
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`FCC
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`18-133
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`(“FCC Ruling
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`and Order”),
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`available
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`at
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`http://www.fcc.gov/document/fcc-facilities-wireless-infrastructure-deployment-5g. The FCC
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`Ruling and Order went into effect on January 14, 2019. See Fed. Reg. Vol 83, No. 199, Monday,
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`October 15, 2018, 47 C.F.R. Part 1.
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`52.
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`The FCC Ruling and Order clarified that under section 332(c)(7)(B)(i)(II) “an
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`effective prohibition [of wireless services] occurs where a state or local legal requirement
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`materially inhibits a provider’s ability to engage in any of a variety of activities related to its
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`provision of a covered service” including “not only when filling a coverage gap but also when
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`densifying a wireless network, introducing new services or otherwise improving services
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`capabilities.” FCC Ruling and Order at ¶ 37.
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`53.
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`The Board’s denial of the Winterset and Macksburg Applications effectively
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`prohibited and materially inhibited the tenants of Cloud 1, which includes AT&T and its related
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`FirstNet Services, from filling a coverage gap and densifying its network to address capacity needs
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`in violation of the Telecommunications Act of 1996.
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`54.
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`As a result of the Board’s decision to deny the Winterset and Macksburg
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`Applications, Cloud 1 has suffered and will continue to suffer irreparable harm.
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`THIRD CLAIM FOR RELIEF
`(Certiorari Petition for Violation of Iowa Cell Siting Act)
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`Cloud 1 restates and incorporates by reference the allegations above.
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`Iowa Code 2020, Chapter 8C, commonly known as the Iowa Cell Siting Act, was
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`
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`55.
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`56.
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`enacted to ensure uniformity across the state with respect to the consideration of every application
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`for the development of wireless communications infrastructure including towers.
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`57.
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`Pursuant to section 8C.4 (1) of the Iowa Cell Siting Act, an authority, such as the
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`County, may exercise zoning, land use, planning, and permitting authority within the authority’s
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`territorial boundaries with regard to the siting of new towers subject to the provisions of the Iowa
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`Cell Siting Act and federal law.
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`58.
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`Pursuant to section 8C.4 (6) “[a] party aggrieved by the final action of an authority,
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`either by its affirmative disapproval of an application under the provisions of this section or by its
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`inaction, may bring an action for review in any court of competent jurisdiction.”
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`59.
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`Under Iowa law, a party may bring a certiorari action “when authorized by a statute
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`or when an ‘inferior tribunal, board, or officer’ exceeded its jurisdiction or otherwise acted illegally
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`in executing judicial functions.” Bowman v. City of Des Moines Mun. Hous. Agency, 805 N.W.2d
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`790, 796 (Iowa 2011) (quoting Iowa R. Civ. P. 1.1401). “An inferior tribunal commits an illegality
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`if the decision violates a statute, is not supported by substantial evidence, or is unreasonable,
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`arbitrary, or capricious.” Id.
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`60.
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`The Board committed an illegality as its decision to deny the Application was not
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`supported by substantial evidence in a written record in violation of the Iowa Cell Siting Act.
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`WHEREFORE, Cloud 1 respectfully requests the following relief:
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`A.
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`Expedited review and disposition of this action pursuant to 47 U.S.C.
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`§ 332(c)(7)(B)(v);
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`
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`B.
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`An Order from this Court declaring that the County and Board violated 47 U.S.C.
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`§§ 332(c)(7)(B)(iii) and/or 332(c)(7)(B)(i)(II) by failing to support their denial of the Winterset
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`and Macksburg Applications with substantial evidence in the written record and by prohibiting the
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`provision of personal wireless services;
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`C.
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`An Order declaring that the County and the Board violated the Iowa Cell Siting Act
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`and otherwise acted illegally and ordering that all approvals necessary for zoning, construction
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`and operation of the Macksburg and Winterset Towers be granted;
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`D.
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`An injunction directing the County and the Board to grant the Macksburg and
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`Winterset Applications and all necessary permits for zoning, construction and operation of the
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`Macksburg and Winterset Towers;
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`E.
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`An award of Cloud 1’s costs, including such reasonable attorney’s fees as may be
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`allowable under law; and
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`F.
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`Such other and further relief as this Court may deem just and proper.
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`Dated this 3rd day of September, 2020.
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`CLOUD 1 SERVICES, LLC, Plaintiff,
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` By:
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`/s/ Quinn R. Eaton
`Quinn R. Eaton AT0013543
`Husch Blackwell LLP
`13330 California Street, Suite 200
`Omaha, Nebraska 68154
`Telephone: (402) 964-5060
`Fax: (402) 964-5050
`Email: quinn.eaton@huschblackwell.com
`
`James C. Remington (WI # 1079773)
`Pro Hac Vice Forthcoming
`555 East Wells Street, Suite 1900
`Milwaukee, Wisconsin 53202
`Telephone: (414) 978-5527
`Fax: (414) 223-5000
`Email: jake.remington@huschblackwell.com
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`Attorneys for Cloud 1 Services, LLC
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