Elkhart's Denial of Verizon’s Tower Was ‘Free From Legal Error,’ Says City's Answer

Elkhart, Indiana's denial of Verizon’s application to build a wireless facility to remedy a deficiency in its cellular network that causes dropped calls (see 2310170016) “is supported by substantial evidence in the record and free from legal error,” and so it doesn’t violate Section 332 of the Telecommunications Act, Indiana law or the city’s zoning ordinance, said the city’s answer Tuesday (docket 3:23-cv-00913) in U.S. District Court for Northern Indiana in South Bend. Verizon failed to establish that the proposed facility wouldn’t adversely affect the neighboring properties and the character of the neighborhood, said the answer. It also failed to establish that the proposed facility would “fill an existing significant gap in service and that, even if there exists a significant gap in service, that the proposed wireless communications facility is the least intrusive means,” it said. The case should be remanded to the city’s board of zoning appeals, so it can provide a written decision that explains its denial of Verizon’s use variance petition under Section 332, it said.