Category: Telecommunications towers

Minutes of meeting sufficient record for denial of cell tower application

Gary Taylor

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.’

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Update on FCC shot clock ruling on cell towers

Gary Taylor 1 Comment

by Gary Taylor

The FCC’s November order establishing a “shot clock” under which state and local governments must review and act upon tower siting requests (link to previous blog posts here) has been challenged by several government entities.  Five groups – The National League of Cities, the National Association of Telecommunications Officers and Advisors, the National Association of Counties, the United States Conference of Mayors, and the American Planning Association, filed a Petition for Reconsideration with the FCC and requested that the FCC stay the effective date of the new shot clock rules.  If the FCC does not stay the entire decision, however, the groups alternatively request that the FCC stay the requirement that state and local governments have 30 days to notify applicants that their filings are incomplete. The groups argue that the FCC exceeded its authority under Section 332(c)(7) of the 1996 Telecommunications Act when it created 30-day rule. The groups’ requests have been opposed by cell tower and wireless communications associations.

On January 14 the city of Arlington, Texas appealed the FCC’s decision to the United States Court of Appeals for the Fifth Circuit. According to the city, the FCC exceeded its authority when it adopted the shot clock requirements, and the FCC’s decision is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law.  A number of cities, most recently including Portland Oregon two days ago, have joined Arlington in the lawsuit.

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More on FCC’s shot-clock ruling on cell tower decisions

Gary Taylor

by Gary Taylor

The International Municipal Lawyers Association (IMLA) has assembled materials addressing the FCC’s recent ruling placing time limits on a city/county acting on a cell tower application (I previously blogged on the ruling itself – available here).  The Varnum law firm has developed a presentation on the ruling, what it means for local governments, and strategies for compliance, that is available here.  In addition, the firm of Miller and Van Eaton has drafted a memorandum – available here – that also discusses the possible consequences of the ruling.

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Council is proper party in claim of illegality of zoning amendment

Gary Taylor

by Gary Taylor

Rude v. City of Mapleton Board of Adjustment
(Iowa Court of Appeals, May 29, 2009)

Claim that zoning amendment is inconsistent with comprehensive plan must be brought against city council within 30 days of council decision.

In 2006 Long Lines Wireless applied for a special use permit to construct a cell tower on land it intended to purchase in Mapleton.  A public hearing was held by the Mapleton board of adjustment, at which Ronald Rude voiced objections, stating that the city zoning ordinance did not permit cell towers.  Long Lines withdrew its application.  The planning and zoning commission later recommended text changes to the ordinance to accommodate cell towers, and in June 2007 the city council adopted those changes.  Long Lines resubmitted its application and in November 2007 the board of adjustment issued a special use permit.  Long Lines completed construction of its tower in December 2007.  In the same month, Rude filed a writ of certiorari claiming the board of adjustment’s actions in granting the special use permit were illegal.  The district court dismissed the claim, and Rude appealed.

Rude raised two objections: (1) that the zoning amendments were adopted by the city council without consideration of the city’s comprehensive plan, and (2) that the special use permit granted Long Lines permission to violate the setback and frontage provisions of the zoning ordinance.

The Court of Appeals dispensed with Rude’s first claim by noting that Rude did not raise the issue at the special use permit hearing before the board of adjustment.  “An issue must first be presented to the agency [in this case, the board of adjustment] in order to be preserved for appellate review.”  The court also noted that the lawsuit was brought against the board of adjustment, not the city council.  The council was the legislative body that amended the ordinance.  To attack the legality of the ordinance it would have been necessary for Rude to file his action within 30 days of the city council’s adoption of the zoning ordinance amendments.

On the second claim, the Court of Appeals found that Rude was misinterpreting the city’s zoning ordinance with regard to the application of the setback regulations.  The amendments adopted in June 2007 were specifically applicable to cell towers, and the setback provisions in those amendments clearly supplanted those to be applied to other uses.

The Court of Appeals affirmed the district court’s decision in favor of the city.

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