by Allison Arends
Helcher v. Dearborn County (IN) Board of Zoning Appeals
(Federal Seventh Circuit Court of Appeals, February 9, 2010)
Cincinnati Bell wireless (Bell) applied for a conditional use permit to construct a cell phone tower on agriculturally zoned property owned by Dan and Merry Helcher. Bell was advised that in order to meet the Dearborn Zoning Ordinance they had to abide specifically by sections 3 and 15 of the Ordinance, which require Bell to obtain a conditional use permit and avoid causing a “negative impact on the character and environment of the County and to protect the health, safety and welfare of the public.” When the Zoning board met to review the application neighboring property owners objected to the permit, providing evidence that the tower would damage property values, cause possible hazards and dangers for children, and would be incompatible with the appearance and character of the area. As a result, the board denied Bell the conditional use permit. Despite several disagreements regarding the content of the minutes taken during the meeting, they were later approved as “revised minutes” by the board.
Bell and Helcher filed a complaint against the board arguing that the board violated the Telecommunications Act of 1996 for three reasons: (1) the approved minutes of the public hearing did not constitute an adequate written record, (2) the board’s decision was not based on substantial evidence contained in a written record as required by 47 U.S.C 332 (c) (B) (iii), (3) the zoning board’s decisions unreasonably discriminated against Bell, and (4) the board’s decision had the effect of denying the provision of wireless communication services. The district court granted summary judgment to the defendants and Bell and Helcher appealed.
The court first addressed the plaintiff’s claim that the minutes were not an adequate form of written record. According to the Telecommunications Act, “[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” The court recognized that there are many different interpretations of what is considered an adequate written record. Therefore the court defined the purpose of the “in writing” requirement as a provision which “allows meaningful judicial review of local government actions relating to telecommunications towers.” With this purpose in mind, the court adopted the standard used by the First and Sixth Circuit Courts of Appeals, which explains that the written record must, “contain sufficient explanation of the reasons for the permit denial to allow a reviewing court to evaluate the evidence in the record supporting those reasons.” As a result the court found the minutes adequate because it provided the decision of the board, supplied the reasons underlying the board’s decision, and it allowed for meaningful judicial review of the decision. The court found that the minutes clearly delineated the issues that arose with the application, provided evidence of both sides, illustrated the concerns of the applicants the residents of the area and the board members, as well as cited the specific provisions of the ordinance that the voting members found were not met by the application.
Bell’s second claim originated from a section of the Telecommunications Act that states, “any decision by a state or local government to deny a request to place, construct, or modify a personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.” In response the court applied the substantial evidence test, and found that the board’s decision to reject the permit on aesthetic grounds was supported by substantial evidence that included propagation maps, mock-ups of the proposed tower, a report on the aesthetic values at stake, public commentary and a presentation from the wireless carrier.
The court found that the board did not discriminate against Bell noting that there was an absence of evidence to show that the board had treated another functionally equivalent provider more favorably than Bell. Finally, the court found that the board’s denial of the permit was not denying the provision of wireless communication services, owing to the fact that there was no evidence that Bell had adequately investigated, to the board’s satisfaction, other kinds of zoned land that would be more compatible with the construction of the tower. The court found that, “so long as the service provider has not investigated thoroughly the possibility of other viable alternatives, the denial of an individual permit does not ‘prohibit or have the effect of prohibiting the provision of personal wireless services.’