by Gary Taylor
NE Colorado Cellular v. City of North Platte
(Federal 8th Circuit Court of Appeals, August 22, 2014)
NE Colorado Cellular, dba Viaero Wireless (Viaero) filed an application to construct a cell tower in North Platte, Nebraska (City). The application first went to the City’s planning commission. the commission conducted a public hearing and received both live testimony and letters from property owners near the proposed tower site. After the hearing,the commission issued a summary report recommending denial of the application because the tower would not be in harmony with the character of the area as required by the North Platte zoning code provisions concerning cell towers. The commission provided this report to the city council. The city council then conducted its own public hearing, where two people spoke in favor of the tower and twelve spoke in opposition. The council voted 6-2 to deny the application. The minutes of the council meeting included the finding that the proposed tower “does not meet the minimum standards stated in the [zoning ordinance]…based on the [finding] that the use is not in harmony with the character of the area and it is not the most appropriate use of the land as it is a historic neighborhood and the tower could decrease property values in the area.”
Viaero filed suit against the City, alleging that the decision was neither “in writing,” nor “supported by substantial evidence” as required by the Federal Telecommunications Act of 1996 (TCA). The district court upheld the City’s decision, and Viaero appealed to the Federal 8th Circuit Court of Appeals.
In writing. The interpretation of the TCA’s “in writing” requirement up until this time has been an open question in the 8th Circuit. The 1st, 2nd and 9th Circuits require that a decision (1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons. The 6th Circuit does not require that the decision and record be separate writings as long as the record permits the reviewing court to “focus with precision on the action that was taken and the reasons supporting such action.” The 4th and 11th Circuits consider the burden on local governments to be even lighter than that imposed by the other interpretations. The 4th Circuit has noted that “Congress knows how to demand findings and explanations” and has not done so in the TCA. Similarly, the 11th Circuit has stated that the decision and the bases thereof can be found in the transcript of the hearing and the minutes of the meeting in which the hearing was held; neither a separate written document, nor specific findings of fact are required.**
The 8th Circuit was persuaded that the 4th and 11th Circuits articulated the better rule. The Court did not find anywhere in the text of the TCA where the denial and the written record be separate documents. Likewise, the language of the TCA does not require that the written denial state findings of fact or the reasons for the denial. “Congress may require an agency or board to state its findings. Congress did not do so here.”
Supported by substantial evidence. The Court began by noting that “the TCA’s ‘substantial evidence’ requirement does not impose substantive standards on local governments. Rather, it requires a reviewing court to determine whether the local authority’s decision comports with applicable local law….It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The city’s ordinance requires that a tower “shall be in harmony with the character of the area and the most appropriate use of the land” in order to be approved. The Court found that the city council had before it the testimony of a dozen residents that the proposed tower would be an “eyesore,” would be inappropriate for the neighborhood, and would not be harmonious with the neighborhood. This, the Court concluded, was enough for a reasonable mind to accept as adequate to support a conclusion that the proposed tower would would not be in harmony with the neighborhood.
**Note: The US Supreme Court has accepted the case of T-Mobile South, LLC. v. City of Roswell, 731 F.3d 1213 (11th Cir. 2013), cert. granted, 134 S.Ct. 2136 (2014) to resolve these differing interpretations.