Failure to make minutes available “essentially contemporaneously” with the decision under Federal Telecommunications Act was harmless error
by Gary Taylor
Smith Communications, LLC v. Washington County, Arkansas
Federal 8th Circuit Court of Appeals, May 12, 2015
In February 2013 Smith Communications applied for a conditional use permit (CUP) to build a 300-foot-tall cell tower in Washington County, Arkansas. The property was zoned “Agriculture/Single-Family Residential,” and homes are located within 1/4-mile of the site. The criteria for granting a CUP are those general considerations typical for most zoning codes (compatibility with surrounding area, no endangerment to public health or safety, not injurious to use and enjoyment of nearby properties, etc.). The Washington County Planning Board approved the CUP, but nearby residents appealed the decision to the Washington County Quorum Court [Note: apparently a body akin to a Zoning Board of Adjustment]. The Quorum Court met twice – June 4 and June 24, 2013 – and held extensive hearings. The residents in attendance focused on safety, nearby property values, the tower’s “fit” with the surrounding area, and the “destruction” of scenic views. At the end of the June 24 meeting the Quorum Court voted 10-3 to reject Smith’s application. Four days later the county sent Smith an email containing a letter of denial that stated, among other things, that “the minutes and video of the first and last Quorum Court meetings will act as the County’s written reason for denial.” The minutes from the June 4 meeting were already available at that time; however, minutes from the June 24 meeting were not available until July 22. Smith appealed to district court citing a violation of the Federal Telecommunications Act (FTA). The district court determined that the county could not rely on the meeting minutes to constitute a legally adequate explanation for the denial under the FTA, ans so remanded the matter back to the Quorum Court with an order to explain the reasons for the denial in a writing separate from the minutes and written record. The county did so on April 18, 2014, largely citing the reasons advanced by the neighbors. The district court was satisfied with this, and so it was Smith appealing this ruling that brought the case before the 8th Circuit Court of Appeals.
Smith argued that under the district court’s authority to review FTA matters “on an expedited basis” the court should have simply “ordered the issuance of a permit” because the county had failed to provide an adequate written explanation for its denial. The Court of Appeals rejected this reasoning. It noted that in T-Mobile South the US Supreme Court recently held that “a locality may rely on detailed meeting minutes so long as the locality’s reasons are stated clearly enough to enable judicial review.” Thus, contrary to the district court’s first ruling, the county did not violate the FTA by relying on the meeting minutes.
What about the fact that the minutes from the June 24 meeting were not available until July 22? In T-Mobile South the Supreme Court also said that a local governments must provide written reasons for its denial “essentially contemporaneously” with the denial. The Court of Appeals concluded that the minutes of the June 4 meeting, which were available at the time of the denial, captured essentially the same concerns as were articulated on June 24. Representatives of Smith attended both meetings. “In light of these facts and the record before use, Smith received adequate notice of the reasons for the Quorum Court’s denial….[The county’s] failure to promptly make the latter meeting minutes available was, at most, a harmless error,” and did not require the district court to order immediate issuance of a CUP.
The Court of Appeals also went on to determine, after thoroughly reviewing all of Smith’s contentions and the record as a whole, that substantial evidence supported the Quorum Court’s denial of the CUP application. “Aesthetic concerns can be a valid basis on which to deny [a] permit, so long as the aesthetic judgment is grounded in the specifics of the case and not based on generalized aesthetic concerns…that are applicable to any tower, regardless of location.”
The district court decision favoring the county was affirmed.