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Smith Communications, LLC v. Washington County, Arkansas

United States Court of Appeals, Eighth Circuit

May 12, 2015

Smith Communications, LLC, an Arkansas limited liability company, Plaintiff - Appellant
v.
Washington County, Arkansas, Defendant - Appellee
v.
Gary Scott; Cathy Scott; Jerry Caudle; Kathy Caudle; Mike Anderson; Jessica Anderson, Intervenor Plaintiffs - Appellees
v.
Smith Communications, LLC, an Arkansas limited liability company, Intervenor Defendant

Submitted February 11, 2015.

Page 1254

Appeal from United States District Court for the Western District of Arkansas - Fayetteville.

For Smith Communications, LLC, an Arkansas limited liability company, Plaintiff - Appellant: Robert Justin Eichmann, Thomas N. Kieklak, Harrington & Miller, Springdale, AR.

For Washington County, Arkansas, Defendant - Appellee: George E. Butler Jr., Steven S. Zega, Washington County Attorney, Fayetteville, AR; Brian C. Hogue, Hogue Law Firm, Pllc, Fayetteville, AR.

For Gary Scott, Cathy Scott, Jerry Caudle, Kathy Caudle, Mike Anderson, Jessica Anderson, Intervenor Plaintiffs - Appellees: Dale W. Brown II, Kutak & Rock, Fayetteville, AR.

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

OPINION

Page 1255

SMITH, Circuit Judge.

The Quorum Court of Washington County, Arkansas (" Quorum Court" ) denied an application from Smith Communications, LLC (" Smith" ) to construct a cellular tower. The district court[1] upheld Washington County's denial of the application. We affirm.

I. Background

Smith installs and maintains wireless communications facilities, commonly referred to as " cellular towers" or " personal wireless facilities." In February 2013 Smith applied for a conditional use permit (CUP) to build an approximately 300-foottall cellular tower in Washington County. The county had zoned the property for the proposed tower site " Agriculture/Single-Family Residential." Homes are located within one-quarter of a mile from the tower's proposed site.

Section 11 of the Washington County Code (the " Zoning Code" ) governs applications for CUPs in Washington County. Section 11-200(a) of the Zoning Code provides that the Washington County Planning Board (" Planning Board" ) " shall hear and decide requests for a conditional use and may authorize such if it finds," in relevant part, the following:

(4) That the proposed use is compatible with the surrounding area.
(5) That the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, ...

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